Brody Mining, LLC v. Secretary of Labor, MSHA
Brody Mining, LLC v. Secretary of Labor (FMSHRC WEVA 2014-82-R, et al.): Pattern-rule ruling certified for review
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Chief Judge Robert J. Lesnick had upheld MSHA's 2013 pattern-of-violations rule against Brody Mining's facial, due-process, and retroactivity challenges. On his own motion, he certified that ruling for immediate Commission review. He found that the rule's validity was a controlling legal question because the answer would determine whether MSHA could proceed with the many pattern-based withdrawal orders in the consolidated cases. He also noted that the issue would guide future enforcement and was already before the Sixth Circuit in another case. The Commission granted interlocutory review one week later and eventually affirmed the underlying ruling.
Decision snapshot
- Governing provisions: 29 C.F.R. § 2700.76(a)(1)(i); 30 C.F.R. § 104
- Outcome: The January 30 pattern-rule ruling was certified for interlocutory Commission review.
- Subsequent review: The Commission granted review in weva-2014-82-r-commission-3 and later affirmed the ruling in weva-2014-82-r-commission-2.
- Key point: A rule-validity issue may be certified when resolving it will determine whether a large group of related enforcement cases can proceed.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF
ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA
AVE., N.W., SUITE 520N
WASHINGTON, DC 20004‑1710
TELEPHONE:
202-434-9958 / FAX: 202-434-9949
January 30, 2014
BRODY MINING, LLC,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
CONTEST PROCEEDINGS
Docket No. WEVA 2014‑82‑R
Order No. 9003242;
10/28/2013
Docket No. WEVA 2014‑83‑R
Order No. 7166788;
10/28/2013
Docket No. WEVA 2014‑86‑R
Order No. 4208892;
10/29/2013
Docket No. WEVA 2014‑87‑R
Order No. 4208893;
10/29/2013
Docket No. WEVA 2014‑97‑R
Order No. 7166790;
11/04/2013
Docket No. WEVA 2014‑151‑R
Order No. 9003246;
11/07/2013
Docket No. WEVA 2014‑161‑R
Order No. 9004638;
11/12/2013
Docket No. WEVA 2014‑190‑R
Order No. 4208898;
11/14/2013
Docket No. WEVA 2014‑191‑R
Order No. 7166793;
11/18/2013
Docket No. WEVA 2014‑192‑R
Order No. 4208899;
11/19/2013
Docket No. WEVA 2014‑193‑R
Order No. 9005720;
11/20/2013
Docket No. WEVA 2014‑221‑R
Order No. 8155306;
11/26/2013
Docket No. WEVA 2014‑244‑R
Order No. 9005722;
12/03/2013
Docket No. WEVA 2014‑284‑R
Order No. 8154092;
12/05/2013
Docket No. WEVA 2014‑285‑R
Order No. 7166798;
12/09/2013
Docket No. WEVA 2014‑447‑R
Order No. 7166805;
01/15/2014
Docket No. WEVA 2014‑448‑R
Order No. 7166806;
01/15/2014
Docket No. WEVA 2014‑449‑R
Order No. 7166807;
01/15/2014
Docket No. WEVA 2014‑450‑R
Order No. 7166808;
01/15/2014
Docket No. WEVA 2014‑451‑R
Order No. 8154104;
01/15/2014
Docket No. WEVA 2014‑452‑R
Order No. 9005729;
01/13/2014
Docket No. WEVA 2014‑453‑R
Order No. 9005731;
01/13/2014
Docket No. WEVA 2014‑454‑R
Order No. 9005732;
01/14/2014
Docket No. WEVA 2014‑455‑R
Order No. 9005733;
01/14/2014
Docket No. WEVA 2014‑456‑R
Order No. 9005735;
01/15/2014
Docket No. WEVA 2014‑457‑R
Order No. 9005736;
01/15/2014
Docket No. WEVA 2014‑479‑R
Order No. 7166815;
01/23/2014
Docket No. WEVA 2014‑480‑R
Order No. 7166816;
01/23/2014
Brody Mine No. 1
Mine ID 46‑09086
CERTIFICATION
OF INTERLOCUTORY RULING
Before: Chief Judge Lesnick
These consolidated proceedings are
before me under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §
815(d) (Mine Act). Brody Mining, LLC (Brody) filed a Motion for Summary
Decision on November 27, 2013. On December 10, 2013, the Secretary filed a
Motion for Partial Summary Decision and Opposition to Brody Mining’s Motion for Summary
Decision. On January 30, 2014, I issued an order denying Brody’s motion and granting the
Secretary’s motion.
Commission Procedural Rule
(76)(a)(1)(i) provides that I may certify, upon my own motion, that my
interlocutory ruling of January 30, 2014, involves a controlling question of
law and that immediate review by the Commission will materially advance the
final disposition of this proceeding.
The issue addressed in my January
30, 2014 Order is whether the Secretary’s
Pattern of Violations rule promulgated at 78 Fed. Reg. 5056, and effective
March 25, 2013, is valid as it was applied by the Secretary’s Mine Safety and Health
Administration (MSHA) when it issued a “pattern
of violations” notice,
Notice No. 7219154, to Brody on October 24, 2013. My Order concludes that the
subject rule is a valid exercise of the Secretary’s
rulemaking authority under the Mine Act, meets the relevant requirements of the
Administrative Procedure Act, and does not unconstitutionally deprive operators
of procedural due process rights. Further, my Order holds that with respect to
Brody, the 2013 rule was not applied in an impermissibly retroactive manner.
The subsequent hearings in this
case will reach the issue of the validity of the underlying citations listed in
the pattern notice issued to Brody, whether the Secretary has shown through
those citations that a “pattern” existed within the meaning
of section 104(e) of the Mine Act, and further, whether the subsequent 104(e)
orders issued to Brody after October 24, 2013 were valid. Resolution of the
threshold issue of whether the regulation on which MSHA relied to issue the
pattern notice was validly promulgated will remove any doubt as to whether the
Secretary can proceed with the bulk of his case. I note that the validity of
the pattern of violation regulation is a question currently before the United
States Court of Appeals for the Sixth Circuit in the matter Nat’l Mining Ass’n v. MSHA, Case No.
13-3324. Resolution of the threshold issues before me in these cross-motions
for summary decision in this matter is thus not only important for the
resolution of the above dockets, but will also provide guidance to the
Secretary and the regulated community as to the extent the rule may be used in
future enforcement actions.
In light of the foregoing, pursuant
to Commission Procedural Rule 76(a)(1)(I), 29 C.F.R. § 2700.76(a)(1)(I), the Order of January
30, 2014 confirming the validity of 30 C.F.R. Part 104, as promulgated at 78
Fed. Reg. 5056 and as applied to Brody Mining, LLC in the above dockets, is
certified for interlocutory review.
/s/ Robert J. Lesnick
Robert J. Lesnick
Chief Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway
Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222
Michael T. Cimino, Esq., Jackson Kelly, PLLC, 1600 Laidley
Tower, P.O. Box 553 Charleston, WV 25322
Benjamin M. McFarlane, Esq., Jackson Kelly, PLLC, 1144
Market Street, Wheeling, WV 26003
Robert S. Wilson, Esq., Office of the Solicitor, U.S.
Department of Labor, 1100 Wilson Blvd., 22 Floor West, Arlington, VA 22209‑3939
Jason Grover, Esq., Office of the Solicitor, U.S. Department
of Labor, 1100 Wilson Blvd., Room 2226, Arlington, VA 22209‑2296
Find out what applies today
This decision wasn't the final word: the Commission reviewed the case, and its decision is the one that controls. Ezel starts from the controlling decision and answers your specific situation under current law, with citations.
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