Mammoth Coal Company (Commission decision, January 22, 2007)

Plain-English summary

Mammoth Coal filed a citation contest and later contested the related penalty assessment in a separate civil-penalty case. The judge dismissed the citation contest without prejudice because the penalty case would resolve the same issues. The Commission held that the order did not explain why dismissal was chosen instead of consolidation, a procedure recognized by Commission precedent and its rules. It vacated the dismissal and remanded, directing the judge to provide a rationale if she again chose dismissal.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.12; 30 U.S.C. §§ 815(a) and 815(d)
• Outcome: The dismissal was summarily vacated and the citation contest was remanded for further proceedings.
• Key point: A judge must explain why a citation contest should be dismissed rather than consolidated with the related penalty case.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001
January 22, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MAMMOTH COAL COMPANY

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Docket No. WEVA 2006-759-R

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

DIRECTION FOR REVIEW AND DECISION

BY THE COMMISSION:

This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (“Mine Act” or “Act”), involves a Notice of Contest filed by Mammoth Coal Company (“Mammoth”) pursuant to section 105(d) of the Act, 30 U.S.C.
§ 815(d). The Secretary of Labor issued a proposed civil penalty for the citation being contested, Mammoth contested that penalty pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the Secretary has filed a petition for assessment of the penalty in Commission Docket No. WEVA 2006-971. Consequently, in a sua sponte Order issued December 29, 2006, the judge dismissed the contest case without prejudice, because “[a]ll issues related to the alleged violation and the amount of the proposed penalty will be resolved in the civil penalty proceeding.”

In Energy Fuels Corp., 1 FMSHRC 299 (May 1979), the Commission stated:

Inasmuch as a citation and related withdrawal orders may
be issued before the Secretary has proposed a penalty, the operator’s interest in immediately contesting the allegation of violation and the special findings in a citation may be considerable. As we have said, affording the operators this opportunity will not adversely affect the interests of miners. The Secretary has not convinced us that the interest in avoiding piecemeal litigation necessarily outweighs the interests of the operators, for we think that the Commission both could allow operators to immediately contest all parts of citations, and largely accommodate the interest cited by the Secretary. If the citation lacked special findings, and the operator otherwise lacked a need for an immediate hearing, we would expect him to postpone his contest of the entire citation until a penalty is proposed. Even if he were to immediately contest all of a citation but lacked an urgent need for a hearing, we see no reason why the contest of the citation could not be placed on the Commission’s docket but simply continued until the penalty is proposed, contested, and ripe for hearing. The two contests could then be easily consolidated for hearing upon motion of a party or the Commission’s or the administrative law judge’s own motion.

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 (“The Commission and its judges may at any time, upon their own motion or a party’s motion, order the consolidation of proceedings that involve similar issues”).

The judge’s order does not explain why the initiation of the civil penalty proceeding should result in the dismissal of the contest proceeding, as opposed to the consolidation of the contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the Commission directs this case for review on a question of law and Commission policy, and summarily vacates the judge’s order and remands the case for further proceedings. See The Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting reasons). If on remand the judge elects to dismiss this matter, she should provide a rationale explaining why she chose to dismiss the case instead of consolidating it with the penalty proceeding.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Carol Ann Marunich, Jr., Esq.

Dinsmore & Shohl, LLP

2604 Cranberry Square

Morgantown, WV 26508

Richard D. Hosch

Conference & Litigation Representative

U.S. Department of Labor, MSHA

100 Bluestone Road

Mt. Hope, WV 25880-1000

Administrative Law Judge Jacqueline R. Bulluck

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021