Secretary of Labor v. Alex Energy, Inc. (ALJ decision, March 17, 2010)

Plain-English summary

Three Alex Energy penalty proceedings were scheduled for an April 7, 2010 hearing. The parties reported a settlement in principle for one docket after months of negotiations, but no settlement-approval motion had been filed in any case. Judge Jerold Feldman kept the hearing on schedule and stated that no continuance request would be favorably considered. Written settlement motions were due by March 31, and any later agreement had to be presented on the hearing record. Failure to appear would result in dismissal or default judgment.

Decision snapshot

• Cited standard(s): No Mine Act or regulatory provision governs the substance of this scheduling notice.
• Outcome: The April 7 hearing remained scheduled, with a March 31 deadline for written settlement motions.
• Key point: A settlement in principle does not remove a case from the hearing calendar until the parties submit an agreement for approval.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, D.C. 20001

March 17, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

ALEX ENERGY, INC.,

Respondent

:

:

:

CIVIL PENALTY PROCEEDINGS

Docket No. WEVA 2007-742

A.C. No. 46-07165-122306-01

Docket No. WEVA 2007-743

A.C. No. 46-07165-122306-02

North Surface Mine

Docket No. WEVA 2007-821

A.C. No. 46-08838-124903

Superior Surface Mine

NOTICE OF HEARING SITE

The captioned civil penalty proceedings are scheduled for hearing on April 7, 2010. The initial Prehearing Order in these matters, issued on July 14, 2009, required the parties to engage in, and complete, settlement negotiations by September 25, 2009. As the September 25, 2009, settlement deadline approached, the parties made repeated representations that they were continuing to negotiate with the anticipation of reaching an agreement. Today,

on March 17, 2010, the respondent’s counsel advised my office, via email, that the parties “reached a settlement agreement in principle” with respect the citations contained in Docket No. WEVA 2007-742. However, to date, no motions for the approval of settlement have been filed in any of the captioned proceedings.

In view of the above, given the Commission’s unprecedented workload, the hearing in these matters will proceed as scheduled at 9:00 a.m., on Wednesday, April 7, 2010, at Commission headquarters. No requests for continuance will be favorably entertained. Any motions for the approval of settlement of these matters must be received in my office on or before March 31, 2010, by facsimile or regular mail. Any settlement agreement after March 31, 2010, must be presented by the parties for my approval on the record at the scheduled hearing. The failure of either party to appear at the hearing will result in the entry of a dismissal order or default judgment.

The hearing location is:

The Richard V. Beckley Hearing Room

Suite 9500 - Ninth Floor

601 New Jersey Ave, NW

Washington, DC 20001

Any person who plans to attend this hearing and requires special accessibility features and/or any auxiliary aids, such as sign language interpreters, must request them in advance (subject to the limitations set forth in § 2706.160(d)).

Jerold Feldman

Administrative Law Judge 

Distribution: (Facsimile and Certified Mail)

Richard D. Hosch, Conference & Litigation Representative, U.S. Department of Labor, MSHA,

100 Bluestone Road, Mt. Hope, WV 25880

Max L. Corley, III, Esq., Curtis Capehart, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887,

900 Lee Street, Suite 600, Charleston, WV 25339

/rps