All American Asphalt (Commission decision, April 30, 1997)

Plain-English summary

All American Asphalt asked the Commission to issue a show-cause order and dismiss a remanded discrimination proceeding, arguing that the Secretary had not complied with two ALJ orders about a supplemental brief. The Commission denied the request because the case and related motions remained with the ALJ while the matter was on remand. It explained that the Mine Act assigns the judge responsibility for proceedings and motions, absent discretionary or interlocutory review. The Commission therefore did not dismiss the proceeding.

Decision snapshot

• Cited provisions: 29 C.F.R. § 2700.66(a), 29 C.F.R. § 2700.70, 29 C.F.R. § 2700.76, and 30 U.S.C. § 823(d)(1)
• Outcome: The request for a show-cause order was denied, and the remanded matter remained before the ALJ.
• Key point: A remanded proceeding and related motions remain with the ALJ unless the Commission's review procedures are properly invoked.

Full text (FMSHRC public release)

[DOCID: f:allameri.wais]

ALL AMERICAN ASPHALT
April 30, 1997
WEST 93-336-DM

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C. 20006

April 30, 1997

:
SECRETARY OF LABOR, : Docket Nos. WEST 93-336-DM through MINE SAFETY AND HEALTH : WEST 93-339-DM ADMINISTRATION (MSHA) : on behalf of : DOUGLAS MEARS, DERRICK : WEST 93-436-DM through SOTO, and GREGORY DENNIS : WEST 93-439-DM
:
v. : WEST 94-21-DM
:
ALL AMERICAN ASPHALT :

ORDER

On March 19, 1997, All American Asphalt ("AAA") filed a request for an order to show cause as to why the instant proceeding should not be dismissed. The primary basis for AAA's request was the Secretary's purported noncompliance with the administrative law judge's January 9, 1997 and February 20, 1997 orders regarding the filing of a supplemental brief following the Commission's remand of the case to the judge (see 18 FMSHRC 2096 (December 1996)). As authority for the Commission's issuance of a show cause order, AAA relies on Commission Procedural Rule 66(a), 29 C.F.R. § 2700.66(a).

Having considered AAA's request and the Secretary's response, we deny AAA's request. The proceeding is on remand before the judge. Under section 113 (d)(1) of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), the judge assigned to this case "shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith." 30 U.S.C. § 823(d)(1). Commission Procedural Rule 66(a), upon which AAA relies, is in Subpart G of the Commission's rules, which governs hearings and related matters before the Commission's administrative law judges. Absent a petition for discretionary review of a final decision by an administrative law judge, Commission Procedural Rule 70, 29 C.F.R. § 2700.70, or compliance with the Commission's interlocutory review procedures, Commission Procedural Rule 76, 29 C.F.R. § 2700.76, this case and motions filed in relation to it remain with the judge.

Accordingly, for the foregoing reasons, we deny AAA's request for the issuance of a show cause order.[1]

Mary Lu Jordan, Chairman

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Theodore F. Verheggen, Commissioner

FOOTNOTES

[1]: We note that the Secretary's actions fall far short of the conduct that has been the basis for show cause orders in prior Commission proceedings. E.g., Broken Hill Mining Company, Inc., 18 FMSHRC 679, 679-80 (May 1996) (failure to file brief or proffer a reason for doing so); North Star Contractors, Inc. 17 FMSHRC 886 (June 1995) (failure to file answer to motion for default judgment). Thus, while the Secretary's response to the January 9 order necessitated a second order from the judge and caused a further delay in this proceeding, the Secretary did respond to the orders.