Ezel / Agency Decisions / west-94-623-m-alj-2
FMSHRC ALJ decision Docket WEST 94-623-M, WEST 94-624-M, WEST 94-625-M, WEST 94-626-M, WEST 94-627-M Decided October 20, 1994 Procedural Judge Paul Merlin

Eugene Russell, Ervin E. Nichols, James M. Dodd, Reynold E. Channer, and Scott Furman employed by Echo Bay Minerals Company

Echo Bay Minerals Company employees (FMSHRC WEST 94-623-M): Assignment request denied

Apply this to your situation

This order from 1994 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1994
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Interlocutory ALJ order, not Commission precedent
This order denied a request to decide a timeliness motion before assignment and directed a separate assignment order, so it did not dispose of the penalty cases or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). It is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Secretary filed civil penalty petitions against five Echo Bay Minerals Company employees under section 110(c) of the Mine Act. Their counsel asked the judge to decide a motion to dismiss for untimeliness before the cases were assigned, arguing that the judge assigned to a related operator case might be predisposed on the timeliness issue. The Chief Administrative Law Judge denied that request, finding that the individual cases raised separate issues and that nothing in the related judge's order required disqualification. A separate assignment order was to follow.

Decision snapshot

  • Cited standard(s): None identified in the release.
  • Outcome: The request for a pre-assignment ruling on the dismissal motion was denied. The cases were to receive a separate assignment order.
  • Key point: A judge's ruling in a related operator case did not by itself require a different judge to decide the timeliness issue in individual penalty proceedings.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EUGENE RUSSELL
DDATE:
19941020
TTEXT:

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October 20, 1994

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-623-M
Petitioner : A.C. No. 45-03184-05528-A
:
v. : Docket No. WEST 94-624-M
: A. C. No. 45-03184-05529-A
EUGENE RUSSELL, ERVIN E. :
NICHOLS, JAMES M. DODD, : Docket No. WEST 94-625-M
REYNOLD E. CHANNER, AND : A. C. No. 45-03184-05530-A
SCOTT FURMAN EMPLOYED BY :
ECHO BAY MINERALS COMPANY, : Docket No. WEST 94-626-M
Respondents : A. C. No. 45-03184-05531-A
:
: Docket No. WEST 94-627-M
: A. C. No. 45-03184-05532-A
:
: Overlook Mine Site

                             ORDER

 The above captioned cases are petitions for the assessment

of civil penalties filed by the Secretary of Labor against the
named individuals under section 110(c) of the Act. The related
section 110(a) case is presently assigned to Administrative Law
Judge John J. Morris.

 On October 12, 1994, Judge Morris issued an order in the

110(a) case denying the operator's motion to dismiss the Secreta-
ry's penalty petition on the ground that it was untimely.
Counsel for respondents who represents the operator in the 110(a)
matter, has now filed a motion to dismiss the instant cases on
the basis that they were not timely. In addition, by letter
addressed to me dated October 18, 1994, counsel has requested
that I rule on the merits of the dismissal motion before assign-
ing the case. Counsel asserts that the findings in Judge Morris'
Order may predispose him to deciding the timeliness issue against
the individuals. On October 20, 1994, the Solicitor filed a
letter objecting to counsel's request. Respondents' counsel
submitted a further letter on October 20.

 The request of counsel cannot be granted. As her brief

demonstrates, the issue of untimeliness in these 110(c) cases
raises matters that are separate and distinct from those that
arose in the 110(a) action. The circumstances and questions
presented with respect to the individuals are not the same as
those previously considered by Judge Morris. Moreover, there is
nothing in the judge's order dated October 12 which would dis-
qualify him from ruling upon the motion in these cases. He made

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no determination regarding the status of the respondents, but
merely pointed out that for purposes of deciding whether or not
the operator had been prejudiced by delay, persons other than the
deceased general mine foreman would be available to testify.

 In light of the foregoing, counsel's request is DENIED. A

separate assignment order will be issued.

                           Paul Merlin
                           Chief Administrative Law Judge

Distribution: (Certified Mail)

Stephen D. Turow, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

Laura B. Beverage, Esq., Jackson & Kelly, Suite 2710, 1660
Lincoln Street, Denver, CO 80264

/gl

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