Secretary of Labor v. Brody Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

An ALJ invalidated Brody Mining's pattern-of-violations notice before taking evidence because the Secretary had not clearly explained how the listed citations formed a pattern. On interlocutory review, the Commission held that the ALJ had jurisdiction because contests of section 104(e) withdrawal orders based on the notice were properly before him. It defined a pattern as an inspection history of recurrent S&S violations whose nature and relationship demonstrate disregard for miner health or safety, without requiring a fixed number of violations or proof of intent. Although the Secretary ordinarily must disclose the theory connecting the alleged violations before the pattern hearing, the Commission found dismissal premature because the record had not established prejudice. It vacated the invalidation, restored converted section 104(e) orders, and remanded for briefing and any necessary record development. Chairman Mary Lu Jordan concurred on the ground that Brody already had adequate notice; Commissioner William I. Althen would have affirmed the dismissal for denial of due process.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(e); 30 C.F.R. §§ 104.1 and 104.2
• Outcome: The POV notice's invalidation was vacated, affected withdrawal orders were restored, and the proceedings were remanded.
• Key point: A POV requires related recurrent S&S violations demonstrating disregard for safety, while fair process ordinarily requires advance disclosure of the Secretary's theory connecting those violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,                             :                       

MINE SAFETY
AND HEALTH                    :                   

ADMINISTRATION
(MSHA)                       :                  

:                               

v.                                              
             :        Docket Nos. WEVA 2014-82-R, et al.[1]           
                                                           :

:                              

BRODY MINING, LLC                                   :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and
Althen, Commissioners

DECISION

BY: Young, Cohen, and Nakamura, Commissioners

These proceedings, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine
Act”), are before the Commission a second time on interlocutory review. In this
case of first impression, a Commission Administrative Law Judge dismissed a “pattern
of violations” (“POV”) notice issued by the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) to Brody Mining, LLC pursuant to section
104(e) of the Mine Act,[2]
36 FMSHRC 2941 (Nov. 2014) (ALJ), and we granted
review of the Secretary of Labor’s petition. At issue is whether the Judge had
jurisdiction to review the validity of the POV notice and, if so, whether the
Judge erred in dismissing the notice. For the reasons discussed more fully
below, we conclude that the Judge had jurisdiction to review the POV notice. However,
we further conclude that under the circumstances of this case he erred in
invalidating the POV notice. Accordingly, we vacate the Judge’s invalidation of
the POV notice and remand for further proceedings.

I.

Procedural
Background

Section 104(e) of the Mine Act sets forth provisions regarding the issuance and termination of a POV notice. Section
104(e)(1) provides that if an operator has a pattern of violations of mandatory
health or safety standards which are of such nature as could significantly and
substantially contribute to the cause and effect of health or safety hazards,
it shall be given written notice that such a pattern exists. 30 U.S.C. §
814(e)(1). If, within 90 days following issuance of the POV notice, an
inspector cites the operator for a significant and substantial (“S&S”) violation,[3]
then MSHA shall issue a withdrawal order under section 104(e) of the Act. Id.
The operator will thereafter be subject to additional withdrawal orders for
each new S&S violation subsequently discovered until a complete inspection
of the mine has revealed no further S&S violations. 30 U.S.C. §§ 814(e)(2),
(3).

MSHA has published regulations at
30 C.F.R. Part 104 to implement section 104(e) of the Mine Act. The regulations,
which were first published in 1990, initially included provisions which identified
information that MSHA used to determine mines with a “potential” pattern of
violations (“PPOV”) and provided that only citations and orders that had become
final orders were used to identify a mine with a PPOV. 30 C.F.R. § 104.3 (1991).
When notified of a PPOV, an operator had an opportunity to engage in certain
remedial measures. 30 C.F.R.

§ 104.4(a) (1991). The rule set forth procedures for the
issuance of a POV notice if the MSHA District Manager continued to believe that
a pattern of violations existed at the mine. 30 C.F.R. § 104.4(b) (1991). Under
these regulations, MSHA never successfully used its pattern of violations
authority against a mine operator.[4]

Part 104 was most recently revised
in January 2013, and the revised rules became effective on March 25, 2013. 78
Fed. Reg. 5056, 5056-74 (Jan. 23, 2013). The revised POV regulations implemented
two major changes from the 1990 rule: (1) the elimination of the PPOV notice
and review process; and (2) the elimination of the requirement that MSHA could
consider only final orders in its POV review. Id. at 5056. In relevant
part, the POV regulations list eight factors that MSHA considers in making its
POV determination, and provide that MSHA will post specific pattern criteria on
its website. 30 C.F.R. §§ 104.2(a), (b).

These proceedings involve a POV notice
and subsequent withdrawal orders issued to Brody pursuant to section 104(e) of
the Mine Act and the revised POV regulations. In our first interlocutory review,
as described below, we upheld the facial validity of the revised rules. In this,
our second interlocutory review, we review the application of the rules to the
subject proceedings.

A. First interlocutory review

On October 24, 2013, MSHA issued a
POV notice to Brody for conditions at its No. 1 Mine. The notice lists 54 citations and orders issued between October 9, 2012 and October 8, 2013, in groups
regarding conditions and or practices that contribute to: (1) ventilation and/or
methane hazards; (2) emergency preparedness and escapeway hazards; (3) roof and
rib hazards; and (4) inadequate examinations. The notice further states that, “[t]hese
groups of violations, taken alone or together, constitute a pattern of
violations . . . .” Notice No. 7219154.

Brody filed a contest with the
Commission, challenging the issuance of the notice. Chief Administrative Law Judge
Robert Lesnick dismissed the contest on the basis that no provision of the Mine
Act or the Commission’s procedural rules authorized him to adjudicate the
notice in the absence of a withdrawal order predicated on the notice. 36 FMSHRC
284, 287 (Jan. 2014) (ALJ). Brody did not seek review of the Judge’s dismissal
of the contest.

After issuance of the POV notice, Brody
received several section 104(e) withdrawal orders. Brody filed contests of the
withdrawal orders and an application seeking temporary relief from the POV
notice and withdrawal orders. The application for temporary relief was denied,
and Brody did not seek review of that decision. 36 FMSHRC 2027, 2033 (Aug.
2014).

In the contest proceedings on the
orders,[5]
the parties filed cross-motions for summary decision regarding the validity of
the revised POV regulations. Among other issues, the parties disputed whether
MSHA properly eliminated the 1990 PPOV notice and review process and the
requirement that MSHA could only consider final orders in its POV review
process.

By order dated January 30, 2014, the
Chief Judge affirmed the facial validity of the revised POV regulations. 36
FMSHRC at 298-316. The Judge certified his order for interlocutory review,
which we granted.

While the facial validity of the
rule was pending before us on interlocutory review, prehearing proceedings
continued at the trial level.[6]
The Chief Judge reassigned the case to Administrative Law Judge William Moran for
hearings on the citations and orders underlying the POV notice. On August 4,
2014, Judge Moran issued notices scheduling the hearings for the weeks of
September 23, September 29, and October 7, 2014. The captions of the hearing
notices identified the docket numbers of the civil penalty proceedings[7]
associated with the citations and orders listed in the POV notice but did not
list the docket numbers of the contests of the section 104(e) orders.

On August 28, 2014, we issued our
decision on the first interlocutory appeal. 36 FMSHRC at 2027 (“Brody I”).
We concluded that the revised POV regulations are facially valid and consistent
with the requirements of procedural due process, that MSHA’s screening criteria
available on MSHA’s website (see 30 C.F.R. § 104.2(b)) were not required
to be the subject of notice-and-comment rulemaking, and that the rule was not
applied in an impermissibly retroactive manner to Brody. Id. at 2054. Accordingly,
we affirmed the Judge’s interlocutory order and remanded for further
proceedings. Id. Brody has filed a petition challenging the Commission’s
decision in the U.S. Court of Appeals for the D.C. Circuit.[8]

B. Second interlocutory review

Prior to the first hearing date
before Judge Moran, the parties filed several pretrial motions, including
Brody’s Motion in Limine Concerning Definition of a Pattern, in which the
operator sought to compel the Secretary to define “pattern of violations” and
to explain how the alleged S&S violations constitute a pattern of
violations. During a conference call on September 19, 2014, the Judge granted
Brody’s motion and ordered the Secretary to provide a clearer definition of the
term and to set forth with specificity what constitutes a POV with respect to
the citations and orders involved in the case. Conf. Call Tr. (9-19-14) at 9-11;
see also Tr. (9-23-14) at 14.

During the three-week hearing period
in September and October 2014, the Judge conducted a hearing on 28 of the
citations and orders listed in the POV notice.[9]
At the beginning of the hearing, prior to taking evidence, the Judge dismissed
the POV charge. Tr. (9-23-14) at 68-69; Tr. (9-24-14) at 439-40. Subsequently,
the Judge issued an order, dated November 3, 2014, stating that he had dismissed
the POV notice at the beginning of the hearing because the Secretary had failed
to adequately set forth the basis for his POV charge and had denied Brody
procedural due process. 36 FMSHRC at 2952-53. The Judge also set forth his
findings with respect to the violations and S&S designations alleged in the
citations and orders, and assessed civil penalties. Id. at 2960-3031. He
held that 17 citations and orders were S&S, while 11 were not. Id.

The parties filed several post-hearing
pleadings, including the Secretary’s motion requesting that the Judge certify
his November 3 order for interlocutory review. In the motion, the Secretary
argued in part that the Judge’s dismissal order presented the controlling
questions of whether the Judge had jurisdiction to adjudicate the validity of
the POV notice, and whether the Secretary’s definition of “pattern of
violations” satisfies section 104(e)(4) of the Mine Act and due process
requirements. The Secretary further asserted that immediate review would
materially advance resolution of these proceedings.

On December 30, 2014, the Judge
issued an order which, in relevant part, granted the Secretary’s motion for certification.
36 FMSHRC 3355, 3363-64 (Dec. 2014) (ALJ). The Judge also stated that, as a
result of his dismissal of the POV notice, all section 104(e) orders issued to
Brody were automatically converted to section 104(a) citations. Id. at 3364
n.5.

In January 2015, we issued an order
granting interlocutory review of the Judge’s November 3 order “with regard to
whether the Judge had jurisdiction to adjudicate the validity of the POV notice
issued by the Secretary to Brody on October 24, 2013, and if so, whether the
Judge erred in dismissing the Secretary’s POV notice.” Unpublished Order at 1 (Jan.
8, 2015). We granted leave to the United Mine Workers of America to file an
amicus curiae brief supporting the Secretary’s position, and heard oral
argument.

II.

Disposition

A.        Jurisdiction

The Secretary makes two main arguments in
support of his position that the Judge lacked jurisdiction to adjudicate the
validity of the POV notice. First, he contends that the Judge’s hearing notices
did not include the dockets of the contests of the section 104(e) withdrawal
orders, and that the Judge may not adjudicate the validity of the notice in the
absence of a contest of a section 104(e) withdrawal order. Second, the
Secretary asserts that the contested withdrawal orders are before the D.C.
Circuit on interlocutory appeal, and the Court has exclusive jurisdiction over
the contests under section 106(a)(1) of the Mine Act, 30 U.S.C. § 816(a)(1). [10]

As to the Secretary’s first argument, the
Secretary is correct in asserting that if the contests of the section 104(e)
withdrawal orders were not before the Judge, the Judge lacked jurisdiction to
consider the validity of the POV notice issued to Brody. Under the law of the
case doctrine, a decision made at one stage of litigation and not challenged on
appeal continues to govern the proceedings. Manalapan Mining Co., 36
FMSHRC 849, 852 (Apr. 2014). In his January 30, 2014 order, the Chief Judge
dismissed Brody’s contest of the POV notice on the basis that no provision of
the Mine Act or the Commission’s procedural rules authorized him to adjudicate
a notice in the absence of a contest of a withdrawal order based upon the
notice. 36 FMSHRC at 287. Because Brody did not seek review of the Judge’s
dismissal of the contest, the Judge’s ruling is the law of the case in this proceeding.
36 FMSHRC at 2033. Thus, in this proceeding, the validity of the POV notice may
only be considered as part of the adjudication of a contest of withdrawal orders
predicated on the notice.[11]

As mentioned above, the Judge’s hearing
notices did not include the docket numbers of the contest proceedings of the
section 104(e) withdrawal orders that were predicated on the POV notice. Rather,
the Judge included the docket numbers of the civil penalty proceedings
associated with the citations and orders listed on the POV notice. The Judge,
however, included the docket numbers of the contests of the withdrawal orders in
his November 3, 2014 order disposing of the matters at issue during the
hearing.

We conclude that, although the Judge did not
include the docket numbers of the contests of section 104(e) withdrawal orders
in the notices of hearing, those contests were before him at the time of the
hearing. In his January order, the Chief Judge consolidated all contests of the
section 104(e) orders predicated on the POV notice.[12]
36 FMSHRC at 293. When the Chief Judge reassigned the case to Judge Moran, he
included all of the pending contest proceedings (the original 28 contests that
were captioned in the Chief Judge’s January 2014 order plus 48 additional
contests). Thus, all of the pending contests of the section 104(e) orders were
assigned to Judge Moran, including the 28 contests that later became part of an
interlocutory appeal to the D.C. Circuit.

While the docket numbers of the section 104(e)
contests were not included on Judge Moran’s notices of hearing, the parties and
Judge clearly understood that those contests were at issue during the hearing. Indeed,
some of them are listed on the Secretary’s Prehearing Statement. In addition, counsel
for the Secretary and the operator made statements during the hearing indicating
their understanding that the contests were at issue during the hearing. Tr.
(9-23-14) at 35, 65-67. On the first day of the hearing, the Judge read the
docket numbers at issue in the hearing and specifically included the docket
numbers of contests of section 104(e) orders predicated on the POV notice. Tr.
(9-23-14) at 4; see also (Tr. 9-23-14) at 69; Tr. (9-29-14) at 825. The
Secretary’s counsel did not object, or indicate any surprise, about the
inclusion of the docket numbers of contests of section 104(e) orders. The
parties were not prejudiced by the Judge’s failure to include the docket
numbers of the withdrawal order contests in the hearing notices. [13]
Thus, the Judge’s omission of the docket numbers of the contests of the
withdrawal orders in the hearing notices amounts to harmless error and does not
deprive the Judge of jurisdiction over the contests.  

We further hold that the Judge was not deprived
of jurisdiction over the POV notice because the contested withdrawal orders are
before the D.C. Circuit on interlocutory appeal. Following our remand in Brody
I, the 28 contest dockets that were the subject of our decision were
simultaneously pending before Judge Moran and the D.C. Circuit.

Section 106(a) of the Mine Act provides that if
a party appeals a Commission decision to a court of appeals, the court “shall
have exclusive jurisdiction of the proceeding and of the questions determined
therein.” 30 U.S.C. § 816(a). Appellate review of Commission action is
restricted to final Commission orders. See Meredith v. FMSHRC, 177 F.3d
1042, 1047-48 (D.C. Cir. 1999) (“[W]e do not discern any exception to the
principle of finality within the Mine Act’s judicial review provisions.”). Because
Brody I remanded the contests to the Judge “for further proceedings” (36
FMSHRC at 2054), our decision was not a final Commission order. Meredith,
177 F.3d at 1047 (“[T]he Commission’s order . . . remanding the matter to the
ALJ for further record development clearly falls outside the heartland of final
action.”).

The collateral order doctrine provides a court
of appeals with a basis for jurisdiction to hear appeals from a limited
category of decisions that are not final. Id. at 1048. Under that
doctrine, “even though a disposition does not end the litigation, it qualifies
for immediate review if it: (i) conclusively determines a disputed question;
(ii) resolves an important issue completely separate from the merits of the
action; and (iii) is effectively unreviewable on appeal from a final judgment.” [14]
Id. (citations omitted). All three prongs must be satisfied in order for
review to be granted. Stringfellow v. Concerned Neighbors in Action, 480
U.S. 370, 375 (1987); Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978). If the Court determines that it has jurisdiction over the contest
proceedings under this doctrine, such jurisdiction would necessarily involve a
question determined to be completely separate from the merits of the
proceedings, essentially by operation of an exception to section 106(a). See,
e.g., Vulcan Constr. Materials, LP v. FMSHRC, 700 F.3d 297, 300 (7th Cir.
2012).

Thus, the exercise of the Court’s jurisdiction
would not deprive the Judge of jurisdiction to consider the merits of the
contest proceedings. Accordingly, we conclude that the Judge had jurisdiction
to consider the validity of the POV notice because the contests of the
withdrawal orders predicated on the POV notice were properly before him.

B.        The
Judge’s Dismissal of the POV Notice

The Judge noted that Brody filed before him a
motion in limine seeking to compel the Secretary to identify: “(1) what
constituted a pattern of violations; (2) what number of S&S designations
Brody had to prevail upon to defeat the pattern of violations designation; and
(3) how the grouping of citations in the pattern notice constituted a pattern
of violations.” 36 FMSHRC at 2952. The Judge “agreed that each of these were
reasonable and necessary inquiries, essential for a Respondent to be able to
defend against the [POV] charge,” and dismissed the POV notice at the beginning
of the hearing based on his determination that the Secretary had failed to set
forth the basis for his POV charge. Id. at 2952-53.

We address the Judge’s determinations with
respect to each of the three elements that he concluded were essential for
Brody’s defense against the POV charge. We begin by addressing whether the
Secretary failed to adequately identify what constitutes a “pattern of
violations.”

In enacting section 104(e),
Congress explicitly recognized that the provision was necessary to “provide an
effective enforcement tool to protect miners when the operator demonstrates
[its] disregard for the health and safety of miners through an established
pattern of violations.” S. Rep. No. 95-181, at 32 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977 (“Legis. Hist.”), at 620 (1978). Congress
stated that it viewed the pattern notice “as indicating to both the mine
operator and the Secretary that there exists at that mine a serious safety and
health management problem, one which permits continued violations of safety and
health standards.” S. Rep. No. 95-181 at 33, Legis. Hist. at 621. It
observed that the existence of a pattern “should signal to both the operator
and the Secretary that there is a need to restore the mine to effective safe
and healthful conditions and that the mere abatement of violations as they are
cited is insufficient.” Id. Congress explained that while it “considers
that a pattern is more than an isolated violation, pattern does not necessarily
mean a prescribed number of violations of predetermined standards nor does it
presuppose any element of intent or state of mind of the operator.” Id.

On review and
before the Judge, the Secretary construes “pattern” to mean “[a] mode of
behavior or series of acts that are recognizably consistent,” and submits that
as few as two violations may constitute a pattern. Sec’y Br. at 10, citing
Pattern, Black’s Law Dictionary (9th ed. 2009); Sec’y Post-Hr’g Br. at 9. The
Secretary further states that “a POV exists if the S&S violations are
‘ordered’ or ‘arranged’ in such a way that reflects an ‘external organizing
principle’ – the principle that the operator has a tendency to commit []
S&S violations.” [15]
Sec’y Br. at 10; Sec’y Post-Hr’g Br. at 9. The Secretary emphasizes that a
“mode of behavior or series of acts” is “rendered ‘ordered’ or ‘arranged’ based
on their relationship to each other or some external principle, rather than a
mere numerical calculation.” Sec’y Br. at 10-11; see also Sec’y
Post-Hr’g Br. at 9.[16]

The POV rule itself
provides additional guidance regarding the interpretation of “pattern of
violations.” It states that it implements section 104(e) of the Act “by
addressing mines with an inspection history of recurrent S&S violations of
mandatory safety or health standards that demonstrate a mine operator’s
disregard for the health and safety of miners.” 30 C.F.R. § 104.1 (emphasis
added). The stated purpose of the procedures set forth in the POV regulations
“is the restoration of effective safe and healthful conditions at such mines.” Id.
The POV regulations also set forth eight criteria that MSHA reviews to identify
mines with a POV in section 104.2:

(1) Citations for S&S
violations;

(2) Orders under section 104(b) of
the Mine Act for not abating S&S violations

(3) Citations and withdrawal orders
under section 104(d) of the Mine Act, resulting from the mine operator’s
unwarrantable failure to comply;

(4)  Imminent danger orders under
section 107(a) of the Mine Act;

(5)  Orders under section 104(g) of
the Mine Act requiring withdrawal of miners who have not received training and
who MSHA declares to be a hazard to themselves and others;

(6) Enforcement measures, other
than section 104(e) of the Mine Act, that have been applied at the mine;

(7) Other information that
demonstrates a serious safety or health management problem at the mine, such as
accident, injury, and illness records; and

(8) Mitigating circumstances.

30 C.F.R. § 104.2(a).[17]

We can discern in the
Secretary’s definition of “pattern,” together with the Secretary’s implementing
regulations, a definition of “pattern of violations” that is consistent with
the purpose of section 104(e), as evident in the legislative history. Accordingly,
we hold that a “pattern of violations” under section 104(e) is established by
an inspection history of recurrent S&S violations of a nature and relationship
to each other such that the violations demonstrate a mine operator’s disregard
for the health or safety of miners. No particular number of S&S violations
is required in order to constitute a pattern of violations, and a finding of a
pattern of violations does not presuppose any element of intent or state of
mind of the operator.[18]
The eight criteria listed in section 104.2(a) are relevant to the determination
of whether a pattern of violations exists.[19]
As specific to this case, the POV notice issued to Brody lists four patterns,
identifying the specific standard or hazard that was implicated by those patterns.
Sec’y Br. at 16; Oral Arg. Tr. at 10; Sec’y Post-Hr’g Br. at 10, 15; Conf. Call
Tr. (7-22-14) at 9.

Regarding the second part
of the motion in limine, the Judge accepted Brody’s argument that it was
“essential” that Brody know the number of S&S designations that it had to
prevail upon in order to defeat the pattern of violations designation.[20]
36 FMSHRC at 2952; see also Conf. Call Tr. (7-22-14) at 7-8; Tr.
(9-23-14) at 13, 15-16. The Secretary contends that no particular number of
violations is necessary to establish a POV. Sec’y Br. at 10. The Secretary’s
contention is supported by legislative history, in which Congress explained
that while it “considers that a pattern is more than an isolated violation,
pattern does not necessarily mean a prescribed number of violations.” S. Rep.
No. 95-181 at 33, Legis. Hist. at 621. Accordingly, because no
particular number of S&S violations is required in order to constitute a
POV, we conclude that the Judge erred in his determination that Brody would
need to know what number of S&S designations it had to prevail upon in
order to defeat the pattern charges.

We next address the Judge’s determination that
the Secretary failed to adequately identify how the grouping of the citations
and orders in the POV notice issued to Brody constituted a pattern of
violations. We recognize that in this case of first impression, the appropriate
procedural path is far from clear. While we commend the Judge on his expeditious
and decisive handling of this case, we nonetheless conclude that it was
premature to dismiss the POV notice at the beginning of the hearing, prior to
taking evidence.

Preliminarily, we briefly describe our due
process holding in Brody I in order to clarify the scope of our
consideration in the subject appeal.

In the first interlocutory appeal
before us, Brody argued that the POV rule denied it due process because the
rule permitted interruptions in its mining operations caused by the issuance of
section 104(e) withdrawal orders without a prior hearing. 36 FMSHRC at 2041. We
applied the three-part test set forth in Mathews v. Eldridge, 424 U.S.
319, 335 (1976), to consider whether due process was denied by the POV rule’s
elimination of the provision that MSHA could consider only final orders in its
POV review and its elimination of the PPOV review process.[21]
36 FMSHRC at 2042-47. We concluded that an operator may have a
“post-deprivation” hearing on a POV notice after it has been issued a section
104(e) withdrawal order, after it has been deprived of its property interest of
uninterrupted mining, and still be afforded adequate due process under the regulations.
Id. at 2044. In reaching this conclusion, we relied upon various
protections afforded operators.[22]
We also noted that the unwarrantable failure provisions of section 104(d), like
the POV provisions of section 104(e), do not contain any provisions for a
hearing or other due process protection prior to the withdrawal of miners. Id.

At issue in the instant litigation are the
contests of section 104(e) orders and the validity of the POV notice upon which
they are predicated. The Commission’s formal adjudicatory procedures set forth
in 29 C.F.R. Part 2700 apply to these proceedings, including the opportunity
for a full due process hearing as required by the Administrative Procedure Act,
5 U.S.C. § 551  et seq. (2011) (“APA”). See 75 Fed Reg. 81459, 81460
(Dec. 28, 2010) (noting that hearings provided under the Commission’s
procedural rules, including those designated for simplified proceedings, are
“full due process hearings”).

Section 105(d) of the Mine Act requires that in adjudicating
contests of orders issued under section 104 of the Mine Act, the Commission
shall comply with the notice requirements set forth in section 554 of the APA. It
provides:

If, within 30 days of receipt thereof,
an operator of a coal or other mine notifies the Secretary that he intends to
contest the

issuance . . . of an order issued
under section 104 . . . the Secretary shall immediately advise the Commission
of such notification, and the Commission shall afford an opportunity for a
hearing (in accordance with section 554 of title 5, United States Code, but
without regard to subsection (a)(3) of such section), and thereafter shall
issue an order . . . .

30 U.S.C. § 815(d). The APA “codifies fairness guarantees
for the administrative process.” Dep’t of Educ. of State of Cal. v. Bennett,
864 F.2d 655, 659 (9th Cir. 1988); accord SunBridge Care and Rehab. for
Pembroke v. Leavitt, 340 Fed.Appx. 929, 935 (4th Cir. 2009) (“The APA
‘requires procedural fairness in the administrative process.’”) (citations omitted).
Thus, we apply principles developed under the APA in considering whether the
Secretary failed to adequately state how a pattern of violations exists with
respect to the citations and orders listed in the POV notice. 

Section 554(b)(3) of the APA requires that
parties “shall be timely informed of . . . the matters of law and fact
asserted.” 5 U.S.C. § 554(b)(3).[23]
Under this standard, courts have held that as “long as a party to an
administrative proceeding is reasonably apprised of the issues in controversy,
and is not misled, the notice is sufficient.” St. Anthony Hosp. v. U.S.
Dep’t of Health & Human Servs., 309 F.3d 680, 708 (10th Cir. 2002)
(citations omitted); SunBridge, 340 Fed.Appx. at 936. “To establish a
due process violation, an individual must show he or she has sustained
prejudice as a result of the allegedly insufficient notice.” 309 F.3d at 680 (citations
omitted); Long v. Bd. of Governors of the Fed. Reserve Sys., 117 F.3d
1145, 1158 (10th Cir. 1997). Prejudice may be demonstrated by a showing that a
party would have litigated the matter differently if adequate notice had been
received. See 117 F.3d at 1158; Rapp v. U.S. Dep’t of Treasury,
Office of Thrift Supervision, 52 F.3d 1510, 1520 (10th Cir. 1995); Citizens
Bank of Marshfield, MO v. FDIC, 751 F.2d 209, 213-14 (8th Cir. 1984); see
also Cumberland Coal Res., LP, 32 FMSHRC 442, 449 (May 2010).

Here, the Judge invalidated the POV notice at
the beginning of the hearing prior to the taking of evidence[24]
based on his conclusion that the Secretary had failed to describe how the
citations and orders listed in the notice constituted one or more patterns of
violations. Tr. (9-23-14) at 68-69; Tr. (9-24-14) at 439-40. The Judge
perceived that the Secretary had refused to describe how the citations and
orders listed on the notice constituted patterns until after such time that the
Judge had made his S&S determinations. Tr. (9-23-14) at 12; see also
36 FMSHRC at 2953 n.5 (citing Tr. (9-24-14) at 439-42); Id. at 2949-50
(noting that the Secretary’s refusal to identify the basis for the pattern
claim until after the Judge made his S&S determinations was antithetical to
procedural due process).[25]

We agree with the Judge that the
Secretary is ordinarily required to disclose his theory of how the groupings in
a POV notice constitute one or more patterns of violations prior to a hearing
on the pattern. In Brody I, we accepted the Secretary’s interpretation
of the term “violations” in the phrase “pattern of violations” to include nonfinal
orders that have not been the subject of Commission review. 34 FMSHRC at
2036-38. The Secretary relied upon nonfinal orders to describe the patterns set
forth in the POV notice issued to Brody. Before the Commission, the Secretary
requested that the proceedings be bifurcated so as not to disclose his theory
of how the individual S&S violations comprised a pattern until after the
Judge ruled on which citations were S&S. Conf. Call Tr. (9-19-14) at 2-3;
Tr. (9-23-14) at 12. As an exercise of his discretion, the Judge properly
rejected this request. 36 FMSHRC at 2950, 2959. Given the Judge’s ruling
rejecting bifurcation, Brody was entitled to the Secretary’s theory of how the
groupings amounted to patterns prior to the hearing on the pattern so as to be
able to defend against the pattern charges.

In future cases,[26]
we anticipate that in proving a POV, the Secretary may call one or more
witnesses, such as inspectors or District Managers, who will testify about how
the S&S violations constitute a POV. The identity of such witnesses will be
disclosed prior to hearing by virtue of a Judge’s prehearing order. The
operator may become familiar with the Secretary’s theory of the pattern by
discovery, including contention interrogatories [27]
and/or depositions of the Secretary’s POV witness. However, evidence should not
be developed, nor should discovery be permitted, regarding MSHA’s prosecutorial
discretion in issuing a POV notice.

Nonetheless, we conclude that the
Judge used an overly harsh remedy in invalidating the POV notice before it was
sufficiently clear that such a remedy was warranted. Contrary to the Judge’s
perception that the Secretary was maintaining the position that he would not
address the pattern charges until after the Judge made his S&S
determinations, it appears that the parties had indicated at the beginning of
the hearing prior to the taking of evidence that they would address the alleged
patterns during closing arguments at the conclusion of evidence relating to the
citations and orders included in each pattern, and in post-hearing briefs. Tr.
(9-23-14) at 49, 71-72. In fact, the Secretary’s counsel attempted to describe
in his opening statement regarding a grouping listed in the notice – “emergency
preparedness and escapeway hazards” – how the alleged S&S violations formed
a pattern.[28]
Notice No. 7219154. The Secretary’s counsel stated:

[Y]ou’ll be hearing
this week the first group of violations, the escapeway, emergency preparedness
violation[s]. These violations are all similar in nature. Several of them cite
the same standard. Several of them cite very similar conditions. They all
relate to the same hazard; that hazard being, in the event of a mine emergency,
miners being able to evacuate the mine quickly or to access lifesaving
equipment, such as SCSRs or refuge alternatives.

These violations were
all issued within a confined period of time. We started in September of 2012
and went through up until when the POV notice was issued in October of 2013. And
we believe that those are the types of factors that, as I discussed earlier,
support a finding that these violations – that there’s a pattern here. They
were told by the violations themselves, “You’re not maintaining your lifelines;
you’re not maintaining your directional indicators; you’re not maintaining
access to lifesaving equipment.” And they were cited over and over and over
again.

And you’ll hear from
Inspector Hatfield that he had a meeting with mine management in July of 2013,
gave them a copy of the Cumberland Mining decision, told them, talked to them
about what S&S meant and how that applied to escapeway and emergency-type
violations and that you have to view those conditions in the context of an
emergency. And yet there were more violations after that.[29]

We believe that the
totality of the evidence, your Honor, will show that there was a consistent
mode of behavior with respect to these types of violations and that that history
shows a pattern of violations.

Tr. (9-23-14) at 52-53.[30]
The Judge, however, effectively foreclosed such argument based on his dismissal
of the POV notice at the beginning of the hearing. Tr. (9-24-14) at 438-40; Tr.

(9-25-14) at 691-92, 814-15. Furthermore, based on the
Judge’s ruling, Brody did not defend against the patterns.[31]
Tr. (9-24-14) at 438-39; Tr. (9-25-14) at 814-15.

In light of the foregoing, we conclude that the
Judge dismissed the POV notice before Brody had demonstrated that it had
sustained prejudice as a result of the Secretary’s failure to describe how the
citations and orders listed in the POV notice amounted to patterns. See Long,
117 F.3d at 1158 (“To establish a due process violation, an individual must
show he or she has sustained prejudice as a result of the allegedly
insufficient notice.”) (citations omitted). Instead, the Judge should have permitted
the Secretary to submit evidence regarding the citations and orders, including
any evidence relevant to the patterns, and allowed Brody to rebut the evidence
and to argue post-hearing that it had been prejudiced by the Secretary’s
alleged failure to identify the basis for the pattern charges. It is possible
that the opportunity to rebut such evidence and make such argument would have
been sufficient for Brody to defend against the POV charges. However, if
Brody was prejudiced by the Secretary’s pre-hearing failure to provide a
sufficiently clear articulation of how the citations and orders listed on the
notice constituted patterns, Brody would have the record necessary to
specifically demonstrate how it would have litigated its defense differently. Because
the POV notice was invalidated prior to the taking of evidence, we lack the
record necessary to review whether Brody had been prejudiced by the Secretary’s
failure to disclose his POV theory prior to hearing and, if not, whether one or
more patterns had been proven. See generally Beech Fork Processing, Inc.,
14 FMSHRC 1316, 1321 (Aug. 1992) (noting the importance of the development of
necessary factual findings at the trial level to the Commission’s review function).
Hence, we conclude that the Judge erred in dismissing the POV notice at the
beginning of the hearing.

Accordingly, because the Judge erred in finding it
necessary for the Secretary to respond to Brody’s inquiry regarding the number
of S&S designations it had to prevail upon in order to defend against the
POV charge, and in dismissing the POV notice at the beginning of the hearing,
we vacate the Judge’s invalidation of the POV notice and remand for further
proceedings. [32]

On remand, the Judge shall apply
the definition of “pattern of violations” set forth above in determining
whether the Secretary has proven one or more patterns of violations with
respect to the 29 citations and orders[33]
affirmed as S&S.[34]
In so doing, the Judge shall permit the parties to brief the application of the
definition of POV to the 29 violations found to be S&S, and such other
matters as he may consider appropriate. After such briefing, if any, the Judge
shall consider any request by Brody to reopen and further develop the record in
order to defend against the POV allegations. Any such further development of
the record by Brody shall be subject to evidentiary rebuttal by the Secretary. [35]

III.

Conclusion

For the reasons discussed above, we vacate the
Judge’s invalidation of the POV notice and remand for further proceedings
consistent with this decision.[36]

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Chairman Jordan, concurring:

Although I agree with the majority that the
decision of the judge below should be vacated and remanded, I reach that
conclusion by way of a different analysis and therefore write separately.1
As discussed below, I find that the information provided to Brody before the
hearing about MSHA’s pattern of violations notice afforded the operator
sufficient due process.

My colleagues in the majority conclude
the judge erred in dismissing the Secretary’s pattern of violations (POV)
notice in this case. However, they “agree with the Judge that the Secretary is
ordinarily required to disclose his theory of how the groupings on a POV notice
constitute one or more patterns of violations prior to a hearing on the
pattern.” Slip op. at 16. Without explaining whether the Secretary’s failure to
provide such a theory would amount to a violation of due process, as Brody and my
dissenting colleague maintain, the implication of their opinion is that
disclosure of the Secretary’s theory will be required in future cases and is
best accomplished by following the majority’s suggested framework for litigating
a POV case:

In future cases we anticipate that in proving a POV,
the Secretary may call one or more witnesses, such as inspectors or District
Managers, who will testify about how the S&S violations constitute a POV. The
identity of such witnesses will be disclosed prior to hearing by virtue of a Judge’s
prehearing order. The operator may become familiar with the Secretary’s theory
of the pattern by discovery, including contention interrogatories and/or
depositions of the Secretary’s POV witness. However, evidence should not be
developed, nor should discovery be permitted, regarding MSHA’s prosecutorial
discretion in issuing a POV notice.

Slip op. at 16 (footnotes omitted).

On the other hand, my dissenting
colleague would affirm the judge because in his view “[t]he Secretary’s failure
to provide an ascertainable basis for the POV determination, standing alone,
demonstrates a denial of due process warranting dismissal of the POV
determination.” Slip op. at 33.

Turning to the majority opinion,
although the procedure outlined therein might be one that parties choose to
adopt, I do not consider it to be a necessary prerequisite to the Secretary’s
prosecution of a POV charge. This is because the POV notice issued to Brody
“reasonably apprised [it] of the issues in controversy” so as to provide the notice
required under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (2011).
St. Anthony Hosp. v. U.S. Dep’t of Health & Human Servs., 309 F.3d
680, 708 (10th Cir. 2002) (citation omitted). Brody’s contention, accepted by
the judge and the dissent, that it was deprived of due process because it did
not know why the underlying citations referenced in the notice constituted a
pattern of violations is, in my view, without merit.

Due process is a flexible concept, the
test being “one of fairness under the circumstances of each case whether the
employer knew what conduct was in issue and had a fair opportunity to present
his defense.” Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1074
(1st Cir. 1981), abrogated on other grounds, NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775 (1990).

As the majority correctly states,
under the APA we must discern whether Brody was “timely informed of . . . the
matters of law and fact asserted.” Slip op. at 15, citing 5 U.S.C.

§ 554(b)(3). The majority also notes that federal appellate
courts have held that “[a]s long as a party to an administrative proceeding is
reasonably apprised of the issues in controversy, and is not misled, the notice
is sufficient.” Slip op. at 15, citing St. Anthony Hosp., 309 F.3d
at 708.

Here, Brody was informed of the
specific conduct upon which the Secretary would rely to support his allegation that
Brody had engaged in a pattern of violations. The POV notice referenced 54
citations or withdrawal orders previously issued to Brody. Each of those
enforcement actions had alleged a violation of a particular mandatory safety
standard and described the conduct that prompted its issuance. Moreover, each
citation or order contained the allegation that the violation was deemed “significant
and substantial.” The POV notice organized these citations and orders into the
following four groups:

·                    
18 citations and orders involving ventilation and/or methane
hazards

·                    
20 citations and orders involving emergency preparedness and
escapeway hazards

·                    
9 citations and orders involving roof and rib hazards and

·                    
7 citations involving inadequate examinations.

The POV notice alleged that these four groups of violations,
either alone or together, established a pattern of violations. See Brody
Mining, LLC, 36 FMSHRC 2027, 2032 (Aug. 2014) (“Brody I”).2

Brody contends it needed more
information in order to prepare its defense to the pattern charge. However in
promulgating the POV regulation, the Secretary provided guidance about the kind
of behavior that would prompt an allegation of “pattern of violations.” See
Harmon Mining Co. v. Layne, No. 97–1385, 1998 WL 610651 (4th Cir. Aug. 27,
1998) (holding that the regulation at issue provided the operator adequate
notice of the applicable standard used to rebut a claim of disability in a
black lung case). The regulation explained that it implemented section 104(e)
of the Mine Act (the pattern of violations provision) “by addressing mines with
an inspection history of recurrent S&S violations of mandatory safety or
health standards that demonstrate a mine operator’s disregard for the health
and safety of miners.” 30 C.F.R. § 104.1.3 Besides the underlying
citations and the description of the kind of conduct the pattern regulation was
designed to address, the regulation and its accompanying preamble also set
forth several factors that the Secretary indicated he might consider in
deciding whether to issue a POV.4 Thus, after the receipt of the POV
notice, Brody knew that the Secretary would rely on the conduct described in
the underlying citations (at least those that were upheld as S&S
violations), and would apply any relevant criteria listed in the POV regulation
and preamble, in urging the Judge to conclude that the operator had exhibited a
disregard for the safety and health of miners to such an extent that the
enforcement tool of a POV notice was warranted.5

Admittedly, Brody did not know
exactly how the Secretary would make that argument. However the discovery
process, as well as the use of prehearing orders, is available to help in that
regard. This is different than holding that due process requires that an
operator be provided with the Secretary’s “theory” prior to the hearing, which
seems akin to a requirement that the Secretary provide the operator with his
closing argument or post-hearing brief, prior to the start of the trial.

The information provided to Brody
was sufficient to afford it due process. Moreover it is consistent with the
type of notice provided to operators when other kinds of enforcement actions
are taken. For example, an operator can be subjected to a withdrawal order or
citation that contains the Secretary’s determination that the underlying
condition is “significant and substantial” or resulted from an “unwarrantable failure”
to comply.6 In such cases, the operator has been
provided with a citation or withdrawal order describing the condition or
behavior that prompted the enforcement action. The Commission has never concluded
that due process required the Secretary to provide his underlying theory as to
why the violations merited these determinations before the operator could mount
a defense. In the case of citations describing conditions deemed S&S or
unwarrantable, an operator would be considered adequately informed, for due
process purposes, even if the citation did not spell out why the Secretary
decided to attach those designations to the conditions described therein.

Undoubtedly caselaw concerning what
constitutes a pattern of violations will develop over the coming years, just as
the law regarding the enforcement actions referred to above has been clarified.
This does not mean, however, that because Brody’s challenge to its POV notice
occurred before Commission jurisprudence in this area had been refined that due
process was not provided.

Our precedent regarding
unwarrantable failure provides an analogous example. In Emery Mining
Corporation, 9 FMSHRC 1997 (Dec. 1987), the Commission announced for the
first time that unwarrantable failure meant “aggravated conduct constituting
more than ordinary negligence.” The parties had litigated the case without the
benefit of this definition, and on appeal the Commission, after stating this
ruling, went on to determine whether the specific violation was unwarrantable. In
subsequent rulings, the Commission identified factors that could be considered
to help determine if such aggravated conduct occurred. See Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

Brody’s due process claim also
fails because an integral part of a due process claim based on a lack of
sufficient notice is a party’s showing that it was prejudiced:

“To establish a due process violation,
an individual must show he or she has sustained prejudice as a result of the allegedly
insufficient notice.”. . . Long v. Bd. of Governors of the Fed. Reserve Sys.,
117 F.3d 1145, 1158 (10th Cir. 1997). Prejudice may be demonstrated by a
showing that a party would have litigated the matter differently if adequate
notice had been received. See 117 F.3d at 1158; Rapp v. U.S. Dep’t of
Treasury, Office of Thrift Supervision, 52 F.3d 1510, 1520 (10th Cir.
1995); Citizens Bank of Marshfield, MO v. FDIC, 751 F.2d 209,
213-14 (8th Cir. 1984); see also Cumberland Coal Res., LP, 32 FMSHRC
442, 449 (May 2010).

Slip op. at 15.

Clearly the burden was on Brody to
show that it had been prejudiced. Brody failed to meet this burden. Nowhere in
its briefs to the Commission did it explain how it would have litigated the
case differently if a more elaborate or detailed theory regarding the pattern
had been presented by the Secretary in the POV.7

The operator has offered nothing
more to demonstrate that it suffered prejudice. It failed to show in any
meaningful way what it would have done differently at the hearing – in terms of
evidence, witnesses, lines of inquiry, etc. – had it been provided the
additional information about the alleged patterns it claims it required. Consequently,
its due process claim cannot survive. For the reasons discussed above, I join
my colleagues in the majority in vacating the Judge’s decision invalidating the
POV notice and remanding for further procedures.8

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

Commissioner Althen, concurring in part and dissenting in
part:

I concur with the Commission majority regarding
the jurisdictional issues raised by the Secretary. Regarding the reversal of
the Judge’s dismissal of the Secretary’s pattern of violations determination, I
respectfully dissent. I agree with the excellent opinion of the Administrative
Law Judge. I write only to explain my disagreement with the majority’s decision
and to comment briefly upon the framework outlined by the majority for
adjudication of future pattern of violation cases.

I.

DISCUSSION

A.        The
Majority’s Decision

The majority reverses the Judge on
two grounds. First, it asserts that the Judge required the Secretary to
identify a specific number of S&S violations necessary for a pattern of
violations, thereby committing reversible error. Second, it holds that the
Judge erred by dismissing the case at the beginning of the hearing.

The first is a makeweight to
justify reversal. The second is inexplicable. The majority’s instruction for
the handling of future pattern of violation (“POV”) cases demonstrates that it
agrees that the Secretary failed to provide due process rights. However, the
majority finds dismissal “too harsh” a remedy. Thus, the majority treats the Secretary
as a schoolchild failing to complete his homework rather than a cabinet officer
failing to accord the operator due process protections in seeking the most
severe sanction available under section 104 of the Mine Act.

1. The
   Judge did not require the Secretary to identify a specific number of proven
   violations necessary to sustain the POV notice.

The majority asserts that the Judge
required the Secretary to specify how many S&S designations he had to
prevail upon in order for Brody to defend against the POV. The Judge did no
such thing. The Judge did not issue a written order. However, the nature of his
oral order is clear. He directed the Secretary to provide an explanation of the
theory by which the 54 alleged violations set forth in the POV notice
constituted a pattern of violations.

At an early stage of the
proceeding, the Judge asked Secretary’s counsel for an explanation of why the
alleged violations constituted a pattern,

Okay. Let me ask this and I think I know the answer but I want to
hear. Is there any document that’s been filed by the Secretary that has clearly
identified at this point in time, basis for the charge if there’s a pattern
involving Brody. Or is it sort of still, a haze. Kind of, you know, something
that’s sort of like London fog where there's an assertion made that there’s a
pattern but the Secretary hasn’t yet clearly identified the basis of that
claim. Is that what – is that the way things are?

Conf. Call Tr. (7-22-14) at 9. In reply, the Secretary’s counsel
referred only to the POV notice.

In a later prehearing conference, the Judge
clearly articulated that he wanted the Secretary to identify the basis for
asserting that the alleged violations constituted a POV. In part, the Judge
stated:

Now, let’s get to the last outstanding motion which is Brody’s
motion that the Secretary should define a pattern. . . . I agree with Brody on
this. It is my position that the Secretary should announce at the outset its
theory as to how these violations either in total or independently as the four
group . . . .

. . . Here’s my thinking on this. I think as a fundamental
matter of fairness, Brody is entitled to know this.

Conf. Call Tr. (9-19-14) at 9. At the outset of the hearing,
the Judge recapitulated his order:

So I did grant the – Brody’s motion to compel the Secretary to –
this is not an exact quote, but it doesn’t distort it – to define what constitutes
a pattern of violation in these particular cases and to set forth with
specificity what the Secretary believes constitutes a pattern of violation with
respect to the 52 citations or orders involved here.

Tr. (9-23-14) at 14.

Earlier, when the parties said they were
attempting to settle some of the alleged violations, the Judge responded:

Yes, I’m glad to hear that
some of these are being worked out. I guess whatever number are
determined to be S&S, the larger issue is, “What is the definition of a
pattern and do these constitute that?” That’s
what we want to keep our eye on ultimately and that’s all you care about ultimately, one of the major things you care
about ultimately.

Conf. Call Tr. (9-19-14) at 14.

Finally, on the opening day of the
hearing, the Judge could not have been more explicit. He expressly said he was
not looking for numbers: “We’re not looking for numbers here. I’m not looking
for numbers. I’m looking for something a little more sophisticated than that.”
Tr. (9-23-14) at 52.

In none of these
statements does the Judge state or imply that the Secretary had a duty to
provide a specific number of violations necessary to prevail. In fact, as set
forth immediately above, he expressly disclaimed such a desire. Indeed, the
Judge and the parties were well aware of the Secretary’s position that there
are not a specific number of S&S violations necessary or sufficient to
constitute a Pattern of Violations. The Secretary articulated this position in
briefing the first Brody POV case before the Commission. Sec’y Resp. Br. at 32,
Brody Mining, LLC, 36 FMSHRC 2027 (Aug. 2014) (Docket Nos. WEVA 2014-82-R,
et al.). Accordingly, there could have been no doubt in either party’s mind
that the Judge’s order was not focused on a particular number of violations but
rather on a basic description of why the Secretary contended the alleged violations
identified in the POV notice constituted a pattern of violations.1

Notwithstanding these
orders issued before the hearing, including the express disclaimer of a need
for numbers, the majority plucks one word – “essential” – from the Judge’s
lengthy dismissal order after the hearing to conjure a reason for reversal.2
Of course, in reality, the reason for dismissal was the failure of the
Secretary to provide any explanation of why the alleged violations identified
in the POV notice constituted a pattern of violations.

Just as in his prehearing orders, the Judge’s written
dismissal order repeatedly restates that his order was for an explanation of
why the alleged violations constituted a pattern of violations. Two examples of
this basis suffice:

An agency provides adequate notice in such a situation when,
whether “by reviewing the regulations and other public statements issued by the agency, a regulated party acting in good
faith would be able to identify, with
‘ascertainable certainty,’ the standards
with which the agency expects parties to conform.” Gen.
Elec. Co. v. EPA, 53 F.3d 1324,
1329 (D.C. Cir. 1995).

36 FMSHRC at 2957 (footnote omitted). Earlier the Judge
stated “[t]hus, the Court expressed that, on procedural due process grounds,
it was an obligation on the
Secretary’s part to identify, in advance of
the hearing, the road map explaining
the basis for his claim that
the mine has shown a pattern of violations.”
Id. at 2953.

Indeed, in the
very paragraph from which the majority seizes one word, the Judge reiterates
that he “directed that, prehearing, the Secretary was to set forth
the basis for its contention that those violations
created a pattern of violations.” Id. at 2952. The Judge then
notes the due process issue arose from a Motion in Limine by Brody asserting
the need to have several identified types of information. In the following
sentence, the Judge characterized Brody’s request as reasonable and refers to
the previously identified grouping of inquiries as “essential.”

The majority focuses upon the one word
“essential” in the post-trial written order in which the Judge referred to a
group of varying inquiries as the support for finding that the Judge had
required the Secretary to identify a specific number of violations. As we have
seen, however, throughout the prehearing process and in his post-hearing
decision, the Judge grounded dismissal in the generalized failure of the
Secretary to provide any basis for his contention that the allegations in the
POV notice set forth a suitable basis for his POV determination. I cannot join
in a reversal founded upon a gross and obvious mischaracterization of the
Judge’s order.3

Two points remain. First, even
under the majority’s selection of one word upon which to hang reversal, the
majority does not claim that the Judge based the dismissal solely upon a
failure to provide a specific number of necessary. They cannot deny that the
Judge ordered an explanation of the basis for finding a pattern of violations
and the Secretary failed to obey that order. Indeed, the majority expressly
recognizes this in its finding that “[h]ere, the Judge invalidated the POV
notice . . . based on his conclusion that the Secretary had failed to describe
how the citations and orders listed in the notice constituted one or more
patterns of violations.” Slip op. at 15. Given the indisputable failure of the
Secretary to provide any prehearing explanation of the basis of the POV
determination, an erroneous demand for a precise number would be harmless error
when compared to the Secretary’s failure to provide any of the necessary
information covered by the Judge’s order. That leads to a final point.

At the Commission meeting on this case, Commissioners
spoke of a need to advise the Secretary of the requirements for presentation of
a POV case. In turn, as part of its roadmap,4 the majority requires
the Secretary, in future cases, to provide exactly the kind of information
required by the Judge in this case. The majority writes “[w]e agree with the
Judge that the Secretary is ordinarily required to disclose his theory of how
the groupings in a POV notice constitute one or more patterns of violations
prior to a hearing on the pattern.”5 Slip op. at 16. Thus, the majority
reverses the Judge for applying a standard with which they agree and which they
themselves now impose upon the Secretary.

I would advance the process for the fair
adjudication of POV cases by requiring the Secretary to comply with the
requirements of the Constitution from the earliest cases forward. There is no
learning curve or hall pass for due process violations by federal agencies.

2. Dismissal
   was not premature.

The majority’s second reason for
reversal is that the Judge erred by dismissing the case at the beginning of the
hearing – that such action was “too harsh.” Two propositions underlie the
majority’s belief that dismissal was premature. These are (1) Brody did not
show prejudice from not receiving fair notice of the basis of the POV
determination; and (2) on the opening day of the hearing, the Secretary
allegedly changed his position and stated he would explain the basis of his
determination as the trial proceeded.

The majority asserts that the Judge
dismissed the proceeding without a showing of prejudice. This position reflects
a fundamental misunderstanding of the Judge’s decision and of the application
of the pattern criteria to a POV determination.6

Citing General Electric Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995), the Judge based dismissal on the
undebatable proposition that the government must provide “fair notice” of the
basis of its claim with “ascertainable certainty” in the imposition of a civil
or criminal sanctions. See Loma Linda Univ. Med. Ctr. v. Sebelius, 408
Fed. Appx. 383 (D.C. Cir. 2010), aff’g 684 F. Supp. 42 (D.D.C. 2010); City
of Chicago v. Morales, 527 U.S. 41 (1999); Gates & Fox Co. v.
OSHA, 790 F.2d 154 (D.C. Cir. 1986);
Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980); Dravo Corp. v. OSHA,
613 F.2d 1227, 1232 (3d Cir. 1980) (citing Diamond Roofing Co. v. OSHRC,
528 F.2d 645, 649-50 (5th Cir. 1976)).

As the United States Court of
Appeals for the Fourth Circuit stated in U.S. v.
Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997), “because
civil penalties are ‘quasi-criminal’ in nature, parties subject to such
administrative sanctions are entitled to ‘clear notice.’” See also Diamond
Roofing, 528 F.2d at 649 (“Like other
statutes and regulations which allow monetary penalties against those who
violate them, an occupational safety and health standard must give an employer
fair warning of the conduct it prohibits or requires . . . .”).

Moreover, in his dismissal order,
the Judge made a specific and well-founded finding of prejudice,

By [MSHA] not setting forth the basis for its claim of a pattern of violations, Brody was put at a great disadvantage to defend itself from that charge. Not being
forearmed with the knowledge of the theory of
the Secretary’s pattern of violations, facing
the unknown as it were, Brody could not know how to defend itself. It could not, for example, anticipate nor
ask questions during the hearing if it
has not been informed of the basis
for the alleged pattern. In fact, under the Secretary’s approach,
Brody would not know of the grounds
for the pattern charge until after the
Court made its findings as to which of the citations/orders were affirmed and among
those, which were significant and substantial.

36 FSMSHRC at 2958-59 (emphasis in original). The
Secretary’s failure to provide an ascertainable basis for the POV determination,
standing alone, demonstrates a denial of due process warranting dismissal of
the POV determination. Were it necessary, however, even a cursory examination
of the record demonstrates the substantial prejudice.

When the Judge said “good morning”
on the first day of the hearing, Brody knew that the Secretary originally had
based the POV determination on 54 alleged S&S violations that, by then, had
been reduced to 40 in number.7 Brody also knew the substantive pattern
criteria for POV determinations promulgated by MSHA after formal rulemaking.8
Due to the Secretary’s noncompliance with the Judge’s order, Brody did not know
why MSHA claimed 12 conceded and 28 contested S&S citations constituted a
pattern of violations.9

Of course, Brody could apply the
pattern criteria to the 40 alleged violations, and the pattern criteria do
serve as a form of notice of alleged conduct constituting a pattern of
violations. Of those 40 alleged S&S violations:
none alleged a failure to abate; five alleged unwarrantable failures; none
alleged an imminent danger violation; none alleged a training violation; none
alleged a violation related to an accident, injury, or illness records; four
alleged high negligence, thirty-five alleged moderate (ordinary) negligence,
and one alleged low negligence.

From
the yearlong monitoring process, therefore, out of 40 alleged S&S
violations, at least insofar as the formally promulgated pattern criteria were
involved, the Secretary’s case depended upon alleged unwarrantable failures to
comply with several different safety standards and the criterion of “information
that demonstrates a serious safety or health management problem” from 30 C.F.R.
§104.2(a)(7).
Presumably, the Secretary knew why MSHA found the 40 S&S citations
demonstrated a serious safety or health management problem warranting POV
status. If the Secretary could not explain the relationship among the alleged
violations that led to that determination until after a hearing, how did MSHA
make the determination in the first place? Yet, the Secretary refused to
provide such information to the respondent.

Under these circumstances, as the Judge below
correctly stated in vivid terms, the need for an advance explanation of the
basis of the basis for finding “management disregard” is obvious. The prejudice
in facing a hearing without such explanation is palpable.

To borrow the imagery of the Judge, the
Secretary refused to explain why he asserted he had a winning hand based upon
the 54 S&S violation cards he himself had deliberately selected and dealt,
but instead wanted to see which cards remained after the hearing thereby
allowing a post hoc rationalization for his initial determination. Further, in
this case, that rationalization occurs against an ambiguous standard of a “safety
and health management problem” and without any advance explanation of how or
why the alleged violations demonstrated a safety and health management problem.
In the absence of any explanation of the relationship basis allegedly
supporting the POV notice, it is clear that the respondent could not be
prepared to submit evidence to rebut an unknown prosecution theory.10

The majority sets out a unique
standard for dismissal of an insufficient claim – a party must show prejudice
from not knowing vital information that it cannot know because the government
withholds the information. Further, based upon the duty of the Secretary in
future cases to disclose his theory of how the groupings on a POV notice
constitute one or more patterns of violations prior to a hearing on the
pattern, future respondents will be entitled to receive such information. In
light of the obvious prejudice of not knowing the basis of the claim of POV
status, the majority decision demands future respondents have the very
information it denies Brody. The roadmap for future cases is appropriate. The
majority does not explain why Brody was not similarly entitled to such
information.

Separately, the majority credits
the Secretary’s offer on the first day of the hearing of additional factors
that it asserts could play into the finding of a pattern of violations. Of
course, a listing of a few random factors the Secretary might seek to apply in
any pattern of violation case minimally expressed in the opening statement at
hearing was not responsive to the Judge’s order. It does not explain the theory
of liability in the particular case. Further, a partial list of potential
factors does not apprise a party of the relationship factors regarding the
specifically alleged violations that must underlie a finding that a specific
respondent was a pattern violator. That is what the Judge rightly ordered. As
the Judge sagely observed, “I’m looking for the [link], the underlying
intellectual theory that groups these together and then equates to a pattern.” Tr.
(9-23-14) at 52.11

Tossing out a few
potential “factors” on the opening day of the hearing without correlation to
the allegations against Brody clearly did not cure the prejudice of the
Secretary’s refusal to obey the Judge’s pre-hearing order. The Secretary had
not identified any of these factors before the opening day despite two years of
rulemaking, and having issued the POV determination nearly a year before the
start of the hearing and the Judge’s pre-trial order. That offer was far too little
and far too late to satisfy the Judge’s order or the Secretary’s due process
obligation.12

The Commission
should sustain the dismissal of the POV notice. The Judge did not demand a
detailed advance description of all the evidence or even all the arguments the
Secretary planned to make. He demanded an explanation of the theory underlying
the claim that the specifically identified alleged S&S violations
constituted a pattern of violations. Affirmance of the dismissal would go much
further to assuring the Secretary’s good-faith compliance with the majority’s
future roadmap than inventing excuses for the Secretary’s failure to provide
basic due process.13

B.        Future
POV Litigation

The majority opinion
provides two directions for future POV cases. First, it holds that a pattern of
violations “is established by an inspection history of recurrent S&S
violations of a nature and relationship to each other such that the violations
demonstrate a mine operator’s disregard for the health or safety of miners.” Slip
op. at 11. Second, recognizing the requirements of due process, at least for
future cases, the majority announces that the Secretary “is ordinarily required
to disclose his theory of how the groupings on a POV notice constitute one or
more patterns of violations prior to a hearing on the pattern.” Id. at 16.
Both the definition and the imposition of minimal requirements of due process
are welcome. I offer a few additional comments regarding the elements
identified by the majority.

The majority states that disregard of health and
safety does not imply intent or state of mind. I agree. Congress has found that
the first priority of everyone involved in mining must be the health and safety
of miners. Therefore, when an operator is, or should be, aware of the
recurrence of violations of mandatory safety standards that significantly and
substantially threaten the health or safety of miners, it must take steps to
prevent such recurrences. Applying that obligation in the context of POV
determinations, however, requires an understanding of the reality of S&S
citations in the mining industries.

In order to protect the health and
safety of miners, MSHA, in accordance with the Congressional directive, heavily
regulates and vigorously inspects mines. Mining involves continual movement of
miners, machines, and strata in difficult and ever-changing environments. As a
result, given the pervasive regulation of mining and the frequency of
inspections, MSHA annually issues numerous citations many of which are designated
S&S. For example, according to data on the MSHA’s website, during the five
years between 2010 and 2014, MSHA issued approximately 395,000 citations to
coal operators, and approximately 29 percent, or approximately 115,000, were
marked significant and substantial. Mine Safety and Health at a Glance,
MSHA, http://www.msha.gov/MSHAINFO/FactSheets/MSHAFCT10.asp (last visited Sept.
25, 2015).

Effectively, therefore, dependent
upon the size of the operation, operators of underground coal mines annually
receive numerous S&S citations. Thus, every operator experiences a
“recurrence” of S&S violations, and every S&S violation manifests some
failure to meet a mandatory safety standard. However, MSHA has emphasized that
the pattern of violations regulation aims at operators who have demonstrated a
repeated disregard for the health and safety of miners and the health and
safety standards.14

It is in this context of numerous
S&S violations but a regulation aimed at operators that disregard safety
that we must focus upon the four key elements of a pattern of violations:
recurrent S&S violations of a nature and relationship that show a pattern
of disregard of health and safety. At the outset, MSHA must prove a series of
recurrent S&S violations. Then, based upon the evidence presented by the
parties, the Judge must evaluate the nature and relationship of the S&S
violations. This evaluation must lead to a reasoned conclusion of whether the
Secretary has demonstrated the recurrent S&S violations prove the operator
disregards safety.

Understanding the centrality of the
four elements, the question becomes how, when virtually all underground coal
operators annually receive numerous S&S citations, the Commission should
determine when the recurrence of S&S violations by a specific operator
demonstrates the particular set of violations are sufficient to place that
operator in the category of disregarding safety.

The starting point is application of the
substantive regulatory criteria promulgated by MSHA at 30 C.F.R. § 104.2 (a).
The regulatory criteria result from notice-and-comment rulemaking and are
particularly suited for the POV task because they identify types of S&S
violations that tend to demonstrate disregard for safety. The substantive
pattern criteria form the conceptual platform for a POV determination.15

Most of the substantive pattern
criteria involve violations that by their nature tend to show disregard of
safety – failures to abate cited violations, unwarrantable failures (aggravated
conduct beyond ordinary negligence), withdrawal orders for insufficient
training, and orders issued in conjunction with an accident.16 An
operator that recurrently fails to abate violations, does not sufficiently
train miners, or engages repetitively in unwarrantable failures of a standard
tends to demonstrate a disregard of safety. Indeed, the Secretary’s notion of
an “external organizing principle” is useful in this regard, provided it means
that the operator “organizes” it operations in a manner that permits repeated
S&S violations that are serious and grave and demonstrate that the operator
is failing to make sufficient efforts to meet the requirements of a compliant
mining operation.

While starting with the substantive pattern criteria that by their
nature tend to show a disregard of safety, the inquiry does not necessarily end
there. Although most of the pattern criteria set forth violations that by their
nature tend to demonstrate a disregard of safety, the pattern criteria include
“[o]ther information that demonstrates a serious safety or health management
problem at the mine such as accident, injury, and
illness records.” 30 C.F.R.

§
104.2(a)(7).17 Therefore, MSHA may seek to build a
POV case based upon S&S violations of specific mandatory safety standards that
occur during the mining process – that is, S&S violations other than those
expressly identified in the criteria that provided the evidence proves the
requisite disregard of safety. Use of such violations leads to, and
demonstrates the need for, the third critical element of analysis – to show a
“relationship” among the S&S violations demonstrating disregard of safety.

For the Secretary to prevail in prosecuting a POV notice, he must
prove a sufficient relationship among the violations to warrant a finding of a
disregard of safety. The relationship element is integral and essential to
proof of a “pattern.”18 The requirement for demonstration of a
relationship applies to all POV cases including those involving violations
expressly identified in the pattern criteria. Thus, the totality of conduct by
the operator in light of the nature of proven S&S violations and the
relationships among them must determine the outcome of the case.

Obviously, relationship issues involve a fact-intensive analysis of a
wide array of factors. An exhaustive list is not possible. At footnote 19, the
majority identifies “other information” listed by the Secretary and notes
examples of additional evidence that also may be useful such as a change in
safety or senior management personnel – a list to which I would add the degree
of negligence for proven S&S violations. The key, of course, is not a
precise or specific list of factors. It is whether there is a discernable and
identifiable relationship among the proven S&S violations. The Secretary
and operator both may introduce evidence relevant to the proving or disputing
the nature of and relationship among proven S&S violations bearing upon the
final, dispositive issue – disregard of health and safety.

Ultimately then, the outcome determinative question is whether the
preponderance of the evidence proves a disregard of safety through commission
of S&S violations showing disregard of safety. The Judge may find some
factors more or less relevant or important in each particular case. In the end,
the Judge must undertake a reasoned consideration of proven S&S violations,
the criteria set forth in 30 C.F.R. § 104.2(a), and the relationship between
and among the proven S&S violations.

Finally, with respect to due process rights,
given that the relationship among S&S violations is an outcome
determinative element of a pattern of violations charge, the Secretary must
provide in advance a sufficient theory of such relationships to allow the
operator to prepare to meet the case with rebuttal evidence. Further, although
a respondent may not invade the deliberative or other privileges, it is
entitled to know the basis for the POV determination – a basis that presumably
inspectors issuing individual citations cannot provide. In short, as the
majority said, the Secretary must “disclose his theory of how the groupings on
a POV notice constitute one or more patterns of violations prior to a hearing
on the pattern.” Slip op. at 16. Discovery material, including depositions of
relevant individuals, disclosing the factual basis for the allegation that the
S&S violations identified in the POV notice constitute a pattern of
violations must be available. In short, permissible discovery must be
sufficient to permit a fair hearing on the Secretary’s theory of why the
recurrent S&S violations by their nature and relationship establish the
respondent disregarding miners’ health and/or safety.

II.

Conclusion

The Commission has jurisdiction over this
proceeding. Further, the majority properly has identified a workable definition
of pattern of violations and properly required implementation of at least
minimal due process elements for POV determinations. My disagreement is only
with the majority’s forgiveness of the deprivation of due process in the
present proceeding. For that reason, I respectfully dissent.

/s/
William I. Althen

William
I. Althen, Commissioner

APPENDIX A

WEVA 2014-83-R

WEVA 2014-86-R

WEVA 2014-87-R

WEVA 2014-97-R

WEVA 2014-151-R

WEVA 2014-161-R

WEVA 2014-190-R

WEVA 2014-191-R

WEVA 2014-192-R

WEVA 2014-193-R

WEVA 2014-221-R

WEVA 2014-244-R

WEVA 2014-284-R

WEVA 2014-285-R

WEVA 2014-447-R

WEVA 2014-448-R

WEVA 2014-449-R

WEVA 2014-450-R

WEVA 2014-451-R

WEVA 2014-452-R

WEVA 2014-453-R

WEVA 2014-454-R

WEVA 2014-455-R

WEVA 2014-456-R

WEVA 2014-457-R

WEVA 2014-479-R

WEVA 2014-480-R

WEVA 2014-529-R

WEVA 2014-530-R

WEVA 2014-531-R

WEVA 2014-537-R

WEVA 2014-539-R

WEVA 2014-561-R

WEVA 2014-562-R

WEVA 2014-563-R

WEVA 2014-570-R

WEVA 2014-571-R

WEVA 2014-572-R

WEVA 2014-593-R

WEVA 2014-594-R

WEVA 2014-638-R

WEVA 2014-639-R

WEVA 2014-640-R

WEVA 2014-641-R

WEVA 2014-672-R

WEVA 2014-673-R

WEVA 2014-674-R

WEVA 2014-675-R

WEVA 2014-676-R

WEVA 2014-678-R

WEVA 2014-679-R

WEVA 2014-680-R

WEVA 2014-681-R

WEVA 2014-715-R

WEVA 2014-716-R

WEVA 2014-717-R

WEVA 2014-718-R

WEVA 2014-719-R

WEVA 2014-720-R

WEVA 2014-722-R

WEVA 2014-745-R

WEVA 2014-804-R

WEVA 2014-805-R

WEVA 2014-806-R

WEVA 2014-807-R

WEVA 2014-811-R

WEVA 2014-813-R

WEVA 2014-814-R

WEVA 2014-819-R

WEVA 2014-854-R

WEVA 2014-855-R

WEVA 2014-856-R

WEVA 2014-909-R

WEVA 2014-974-R

WEVA 2014-975-R

WEVA 2014-976-R

WEVA 2014-1012-R

WEVA 2014-1013-R

WEVA 2014-1035-R

WEVA 2014-1036-R

WEVA 2014-1037-R

WEVA 2014-1038-R

WEVA 2014-1135-R

WEVA 2014-1138-R

WEVA 2014-1157-R

WEVA 2014-1993-R

WEVA 2014-1994-R

WEVA 2014-1995-R

WEVA 2014-1996-R

WEVA 2014-2172-R

WEVA 2014-2173-R

WEVA 2014-2174-R

WEVA 2014-2175-R

WEVA 2014-2221-R

WEVA 2015-59-R

WEVA 2015-60-R

WEVA 2015-61-R

WEVA 2015-63-R

WEVA 2015-66-R

WEVA 2015-67-R

WEVA 2015-68-R

WEVA 2015-121-R

WEVA 2013-370

WEVA 2013-564

WEVA 2013-997

WEVA 2013-1055

WEVA 2013-1189

WEVA 2013-619

WEVA 2013-620

WEVA 2014-702

WEVA 2014-842

[1]
The other relevant docket numbers involved in this proceeding are listed in
Appendix A, attached to this decision.

[2]
Section 104(e) of the Mine Act, 30 U.S.C. § 814(e), provides:

(1) If an operator has a pattern of
violations of mandatory health or safety standards in the coal or other mine
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards, he shall be given written notice that such pattern exists. If, upon
any inspection within 90 days after the issuance of such notice, an authorized
representative of the Secretary finds any violation of a mandatory health or
safety standard which could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard, the
authorized representative shall issue an order requiring the operator to cause
all persons in the area affected by such violation, except those persons
referred to in subsection (c), to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary
determines that such violation has been abated.    

(2) If a withdrawal order with respect
to any area in a coal or other mine has been issued pursuant to paragraph (1),
a withdrawal order shall be issued by an authorized representative of the
Secretary who finds upon any subsequent inspection the existence in such mine
of any violation of a mandatory health or safety standard which could
significantly and substantially contribute to the cause and effect of a coal or
other mine health or safety hazard. The withdrawal order shall remain in effect
until an authorized representative of the Secretary determines that such
violation has been abated.

(3) If, upon an inspection of the
entire coal or other mine, an authorized representative of the Secretary finds
no violations of mandatory health or safety standards that could significantly
and substantially contribute to the cause and effect of a coal or other mine
health and safety hazard, the pattern of violations that resulted in the issuance
of a notice under paragraph (1) shall be deemed to be terminated and the
provisions of paragraphs (1) and (2) shall no longer apply. However, if as a
result of subsequent violations, the operator reestablishes a pattern of
violations, paragraphs (1) and (2) shall again be applicable to such operator.

(4) The Secretary
shall make such rules as he deems necessary to establish criteria for
determining when a pattern of violations of mandatory health or safety
standards exists.

[3]
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.

§ 814(d)(1), which
distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.”

[4]
See, U.S. Dep’t of Labor, Office of Inspector General audit report, “In
32 Years MSHA Has Never Successfully Exercised its Pattern of Violations
Authority,” Rep. No. 05-10-005-06-001 at 14 (Sept. 29, 2010), referenced in the
preamble of the 2013 POV rule, 78 Fed. Reg. 5056, 5058 (Jan. 23, 2013).

[5]
Contest proceedings arise under 30 U.S.C. § 815(d), as implemented by 29 C.F.R.
Part 2700 Subpart B, and involve the contest of a citation or order before MSHA
has proposed a civil penalty for the violation described in the citation or
order.

[6]
Commission Procedural Rule 76(a)(2) provides in part, “[i]nterlocutory review
by the Commission shall not operate to suspend the hearing unless otherwise
ordered by the Commission.” 29 C.F.R. § 2700.76(a)(2).

[7]
Civil penalty proceedings arise under 30 U.S.C. § 815(a), as implemented by 29
C.F.R. Part 2700 Subpart C, and involve the contest of a civil penalty that
MSHA has proposed for a violation described in a citation or order.

[8]
The case is pending as No. 14-1171.

[9]
Prior to hearing, the 54 citations were reduced to 52 because the Secretary
vacated two citations listed in the POV notice. 36 FMSHRC at 3033 (stips. 8, 9).
The Secretary further agreed to delete the S&S designations with respect to
12 citations, and Brody agreed to accept the allegations of violation and
S&S designations with respect to 12 citations. Id. at 2960-61.

[10]
30 U.S.C. § 816(a)(1) provides in relevant part:

Any person
adversely affected or aggrieved by an order of the Commission issued under this
Act may obtain a review of such order in any United States court of appeals . .
. . Upon such filing, the court shall have exclusive jurisdiction of the
proceeding and of the questions determined therein, and shall have the power to
make and enter . . . a decree affirming, modifying, or setting aside, in whole
or in part, the order of the Commission . . . .

[11]
The issue of whether the Commission is authorized to directly review a POV
notice is before the Commission in Pocahontas Coal Co., Docket No. WEVA
2014-202-R.

[12]
A Commission Judge may at any time, upon his or her own motion, order the
consolidation of proceedings assigned to the Judge and involving similar
issues. 29 C.F.R.

§ 2700.12.

[13]
We do not consider it significant that the Judge did not refer to the
disposition of the section 104(e) contests in his November 3 order. The Judge
clarified in his December 30 order that the effect of his determination that
the POV notice was invalid was to modify the section 104(e) orders to section
104(a) citations. 36 FMSHRC at 3364 n.5.

[14]
The D.C. Circuit has requested that the Secretary and Brody brief whether the
Commission’s order is final and appealable. Unpublished Order, No. 14-1711
(D.C. Cir. Jan. 13, 2015).

[15]
The Secretary’s identification of an “external organizing principle” is not
very helpful. In defining the external organizing principle as a “tendency to
commit S&S violations,” the Secretary essentially is referring to the
pattern rather than identifying what it is a pattern of. Thus, with regard to
the “external organizing principle,” the Secretary’s definition is circular. As
noted below and consistent with the legislative history and regulations
discussed herein, the actual “external organizing principle” is whether the
operator has demonstrated a disregard for the health and safety of miners.

[16]
The Secretary has invited the Commission to determine which factors are
relevant to determining the existence of a pattern of violations. Sec’y
Post-Hr’g Br. at 12; Sec’y Br. 13-14.

[17]
We note that with respect to section 104.2(a)(7), regarding “[o]ther
information that demonstrates a serious safety or health management problem at
the mine,” the Secretary stated in the preamble to the regulations that:

[T]his other information may
include, but is not limited to, the following:

•                    
Evidence of the mine operator’s lack of good faith in correcting the
problem that results in repeated S&S violations;          

•                    
Repeated S&S violations of a particular standard or standards
related to the same hazard;

•                    
Knowing and willful S&S violations;

•                    
Citations and orders issued in conjunction with an accident, including
orders under sections 103(j) and (k) of the Mine Act; and

•                    
S&S violations of health and safety standards that contribute to the
cause of accidents and injuries.

78 Fed. Reg.
5056, 5062 (Jan. 23, 2013).

[18]
Nor is it necessary, as the Judge suggested (Tr. (9-23-14) at 60; Tr. (9-25-14)
at 649-50; 36 FMSHRC at 2953), for the Secretary to demonstrate that the
existing enforcement scheme is unable to address the history of recurrent
violations.

[19]
In a particular case, there may be “other information that demonstrates a
serious safety or health management problem . . . .” 30 C.F.R. § 104.2(a)(7). In
this case, the Secretary suggested, before the Judge and on review, that the
Commission consider such factors as:

1.     
The nature and seriousness of the
hazards presented;

2.     
The timing of the violations;

3.     
The location of the violations in
the mine;

4.     
Any trends with regards to
injuries and/or accidents;

5.     
Whether management personnel were
involved;

6.     
The standards violated;

7.     
The conduct of the operator in
responding to the related violations and whether the operator exhibited any
heightened awareness of possible consequences; and

8.     
Any other factor that is revealed
by the evidence to establish a ‘mode of behavior or series of acts that are
recognizably consistent.’

Sec’y Br. at 13; Sec’y Post Hr’g Br. at 12-13; Tr. (9-23-14)
at 48-49. At oral argument before us, the Secretary’s counsel provided a fuller
explanation of these factors. With respect to the third factor above, counsel
stated that if violations “keep happening in the same location, that would be a
factor strengthening a pattern allegation.” Oral Arg. Tr. at 33. The sixth
factor above refers to the standards encompassed by MSHA’s Rules to Live By
initiative, whereas the first factor relates to standards other than those
encompassed by the Rules to Live By. Id. at 34. With respect to the
seventh factor, the “consequences” referred to are those that relate to the
safety and health of miners. Id. at 34-35. Depending upon the facts of a
case, we agree that these may be helpful interpretative tools. The Judge may
also consider other evidence that tends to show or refute a pattern arising
from the relationship between violations and other circumstances, such as a
change in safety or senior management personnel, or notice of a general problem
communicated to mine management and the response by the mine.

[20]
Our dissenting colleague disagrees that the Judge accepted Brody’s argument
that it was “essential” that Brody know the number of S&S designations that
it had to prevail upon in order to defeat the POV designation. Our colleague
relies in part upon a statement that the Judge made on the first morning of the
hearing that he was not “looking for numbers.” Slip op. at 27-29.  As Brody has
acknowledged, however, Brody repeatedly sought “information as to what number
of S&S citations it needed to defeat to have the POV notice vacated,” from
the first hearing on temporary relief to the hearing before Judge Moran. See,
e.g., B. Br. at 2, 4, 18. In his November 3 decision, the Judge stated that
he had “agreed” that Brody’s inquiry regarding the number of S&S
designations was a “reasonable and necessary inquir[y], essential for a
Respondent to be able to defend against the [POV] charge.” 36 FMSHRC at 2952
(emphasis added). We view this statement by the Judge in his written decision
as adequate to support our conclusion that the Judge’s invalidation of the POV
notice rested in part on his conclusion that Brody would need to know what
number of S&S designations it would have to prevail upon in order to defeat
the pattern charges. See Moses v. Whitley Dev. Corp., 4 FMSHRC 1475,1483
(Aug. 1982) (citing Capitol Aggregates, Inc., 2 FMSHRC 1040, 1041 (May
1980)) (holding that a bench decision may be subject to later revision by a
Judge and that it is not considered a final decision until it is written).

[21]
The three-part test set forth in Mathews v. Eldridge balances the
operator’s interest in avoiding a loss against the interests which the
government seeks to advance through summary proceedings. 4 Jacob A. Stein et
al., Administrative Law § 32.02[1], at 32-54, 32-55 (2015). If the
“private interest outweighs the government’s interest, greater procedural due
process rights will be afforded to the affected party.” Id. at 32-55,
32-60, 32-61. The test requires “a weighing of the interests of the affected
[operator], the risk of erroneous decision-making based on the procedures used,
and the government’s interest in efficient resolution of the issues.” Id.
at 32-54.

[22]
The Commission noted the following pre-deprivation protections: MSHA’s monthly
monitoring tool; a process allowing operators to present information to support
mitigating circumstances to the District Manager; a procedure permitting a
corrective action program at any time; an opportunity to discuss citations with
inspectors during a close-out conference; and an expedited procedure for
contesting S&S citations. 36 FMSHRC at 2044-46. The Commission also relied
upon the following post-deprivation procedures: an operator may seek temporary
relief from a section 104(e) withdrawal order; and operators may seek expedited
proceedings on contests of section 104(e) orders. Id. at 2046-47.

[23]
5 U.S.C. § 554(b) provides:

(b) Persons entitled to notice
of an agency hearing shall be timely informed of—

(1) the time, place,
and nature of the hearing;

(2) the legal authority and
jurisdiction under which the hearing is to be held; and

(3) the matters of
fact and law asserted. . . .

[24]
The Judge clarified during the hearing that he had dismissed the POV notice at
the beginning of the hearing, although he would issue the order setting forth
his ruling after the hearing. Tr. (9-24-14) at 439-40; see also Tr.
(9-23-14) at 34-35, 68.

[25]
Indeed, in the introduction to his order, the Judge said, “Like the unfair card
game, the Secretary advised that he would be announcing the ‘rules,’ not simply
after the hearings were concluded, but that he would also wait until after the
Court made its determinations as to which of the litigated citations and orders
were found to have the significant and substantial findings associated with
them.” 36 FMSHRC at 2950. As described below, however, the Secretary’s counsel
had modified his position and had agreed to address how the S&S violations
link up and establish a pattern at the conclusion of evidence on each group of
S&S violations. Tr. (9-23-14) at 49.

[26]
We note that parties may file motions to sever non-pattern related citations
from dockets involved in contests of section 104(e) orders. See 36
FMSHRC at 2960 n.9.

[27]
We note that Brody, for instance, could have filed contention interrogatories
requesting the basis for the Secretary’s contention that the groupings on the
POV notice constituted patterns. See 29 C.F.R. § 2700.58; see also
Fed. R. Civ. P. 33(a)(2) (“An interrogatory is not objectionable merely because
it asks for an opinion or contention that relates to fact or the application of
law to fact . . . .”).

[28]
We further note that during the course of the hearing and during closing
argument, the Secretary’s counsel attempted to make arguments relating the
citations to patterns. Tr. (9-24-14) at 372; Tr. (9-25-14) at 814-15; see
36 FMSHRC at 2958.

[29]
We disagree with our dissenting colleague that an inspector can “offer no
meaningful testimony regarding the basis for MSHA’s POV determination.” Slip
op. at 34 n.9. For example, an inspector who witnesses safety practices at a
mine over a period of time and who may have communicated concerns about those
practices to mine management and seen the response by the mine, can certainly provide
meaningful testimony.

[30]
Our dissenting colleague states that the Secretary “toss[ed] out a few
potential ‘factors’ on the opening day of the hearing” without correlating them
to the POV allegations against Brody. Slip op. at 36. We disagree. The opening
statement quoted above clearly reflects application of the factors to the
specific POV charges.

[31]
Brody attempted to elicit testimony that it considered relevant to the pattern
charges but the Judge stated, “Do you want to open the door to the subject of
what constitutes a pattern when the government has essentially said, well,
we’ll let you know about that after the judge has decided what violations are
S&S?” Tr. (9-24-14) at 437-38. As noted, the Judge was incorrect that the
Secretary would not state the basis for the pattern charges until after the
Judge made his S&S determinations. This had been the Secretary’s position
previously, but it had changed as of the Secretary’s opening statement.

[32]
Our dissenting colleague states that affirmance of the dismissal would go much
further toward assuring the Secretary’s good-faith compliance with our future
roadmap. Slip op. at 36. However, our decision to vacate rests on an essential
balancing of the private interests at stake against the paramount public
interest in miner safety, in considering a statutory sanction that has not been
effectively employed in nearly four decades. See Long Branch Energy, 34
FMSHRC 1984, 1996 (Aug. 2012) (recognizing that the public interest in miner
safety must be balanced against private interests). We recognize that the Mine
Act is built around Congress’s fundamental declaration that “the first priority
and concern of all in the . . . mining industry must be the health and safety
of its most precious resource – the miner.” 30 U.S.C. § 801(a). It is worth
noting that Brody had received 253 S&S citations during the POV screening
period. 36 FMSHRC at 2060.

[33]
The 29 citations and orders include the 17 affirmed as S&S by the Judge and
the 12 citations for which Brody agreed to accept the S&S designations.

[34]
We reject the Secretary’s suggestion that appeals from the Judge’s S&S
determinations should be handled in the instant proceeding. Such review exceeds
the scope of our order granting interlocutory review. See 29 C.F.R. §
2700.76(d); Asarco, Inc., 14 FMSHRC 1323, 1326-27 (Aug. 1992). Moreover,
the Secretary’s position would mean that once the Secretary issued a POV
notice, the mine would be subject to section 104(e) withdrawal orders not only
during the litigation of the underlying S&S citations and orders, but also
during appeals of Judges’ S&S determinations to the Commission. Due process
does not permit such a delay in the resolution of the validity of the POV
notice.  

[35]
While a second evidentiary hearing as described above may be appropriate in the
unusual posture of this case, which involves multiple interlocutory appeals
including an appeal to the D.C. Circuit, we emphasize the need for expedition
in other POV cases in the future.

[36]
The Secretary filed with the Commission a motion to stay the effect of the
Judge’s November 3, 2014 order, so that MSHA may continue issuing section
104(e) withdrawal orders to Brody. The effect of our decision is to permit MSHA
to resume issuing section 104(e) orders to Brody, effective upon the issuance
of this decision. Furthermore, any withdrawal orders issued to Brody which had
been converted to section 104(a) citations by virtue of the Judge’s
invalidation of the POV notice are hereby converted back to orders issued under
section 104(e) of the Act. Hence, we hereby deny the Secretary’s motion to stay
as moot. See Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co.,
34 FMSHRC 996, 1001 (May 2012).

1 I agree, however, with the analysis of
the majority supporting its ruling that the Commission has jurisdiction to
decide this case.

2 As the majority correctly points out,
only 28 citations were litigated at the hearing. Prior to that, the Secretary
vacated two citations listed in the POV notice, and agreed to delete the
S&S designations with respect to 12 citations. Brody agreed to accept the
allegations of violation and S&S designations with respect to 12 other
citations. Slip op. at 5, n.9.

3 My colleagues have adopted a definition
of “pattern of violations,” derived from the language of the Secretary’s POV
regulation, a definition with which I agree. Slip op. at 11 (majority opinion),
slip op. at 37 (dissenting opinion).

4 The POV regulations set forth eight
criteria that MSHA reviews to identify mines with a POV:

(1) Citations for S&S violations;

(2) Orders under section 104(b) of the Mine Act for
not abating S&S violations;

(3) Citations and withdrawal orders under section
104(d) of the Mine Act, resulting from the mine operator’s unwarrantable
failure to comply;

(4)  Imminent danger orders under section 107(a) of
the Mine Act;

(5)  Orders under section 104(g) of the Mine Act
requiring withdrawal or miners who have not received training and who MSHA
declares to be a hazard to themselves and others;

(6) Enforcement measures, other than section 104(e) of
the Mine Act, that have been applied at the mine;

(7) Other information that demonstrates a serious
safety or health management problem at the mine, such as accident, injury, and
illness records; and

(8) Mitigating circumstances.

30 C.F.R. § 104.2(a).

Regarding the above reference to “[o]ther information
that demonstrates a serious safety or health management problem at the mine,”
the preamble to the POV regulation explained that it may include, but is not
limited to, the following:

•           Evidence of the mine operator’s lack of
good faith in correcting the problem that results in repeated S&S
violations;          

•           Repeated S&S violations of a
particular standard or standards related to the same hazard;

•           Knowing and willful S&S violations;

•           Citations and orders issued in conjunction
with an accident, including orders under sections 103(j) and (k) of the Mine
Act; and

•           S&S violations of health and safety
standards that contribute to the cause of accidents and injuries.

78 Fed. Reg. 5056, 5062 (Jan. 23, 2013).

5 My dissenting colleague
points out that due to the heavily regulated nature of mining, operators of
underground coal mines receive numerous S&S citations every year, and that
therefore every operator experiences a “‘recurrence’ of S&S violations.” Slip
op. at 37. It is worth bearing in mind, however, that 99 percent of mines are not
even considered for a POV notice because they do not meet the pattern screening
criteria. Brody I, 36 FMSHRC at 2049, n.19. Brody’s receipt of 253
S&S citations during the POV screening period helped make it a potential
candidate for a POV notice. Id. at 2060 (Althen, dissenting).

6 Certain violations can be deemed to be
“of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard” or caused by
the “unwarrantable failure” of the operator to comply with the mandatory health
and safety standard. 30 U.S.C. § 814(d)(1). The Secretary’s decision to attach
these designations can result in the immediate issuance of a withdrawal order or,
like the pattern notice, lead to withdrawal orders upon the detection of future
violations.

7 At oral argument before the Commission,
Counsel for Brody was asked “how specifically was the operator prejudiced by
these proceedings . . . . What would you have done that you weren’t able to do
as a result?” Oral Arg. Tr. at 59. Counsel responded that he would have asked
“why you think, for example, this particular group’s citations forms a pattern
based on any of the 13 criteria?” (referring, presumably to the criteria in the
Secretary’s POV regulations and the preamble to the regulations). In my view,
this fairly obvious question could have been posed at the hearing before the
Judge based solely on the information available to Brody at the beginning of
the proceedings.

8 I agree with my colleagues in the
majority that the effect of the Commission’s decision is to permit MSHA to
resume issuing section 104(e) withdrawal orders to Brody, and that therefore
the Secretary’s motion to stay should be denied as moot.

1 The Secretary asserts
and the Commission agrees that MSHA need not prove any specific number of
violations to demonstrate a pattern of violations. Conversely, no specific
number of S&S violations, standing alone, establishes POV status. In every
case, the Judge must apply the pattern criteria to determine whether the
Secretary has demonstrated that recurrent S&S violations, by their nature
and relationship with one another, prove the operator is one of “those few
operators who have demonstrated a repeated disregard for the health and safety
of miners and the health and safety standards issued under the Mine Act.” 78
Fed. Reg. 5056, 5058 (Jan. 23, 2013).

2
The majority also references two transcript cites: Conf. Call Tr. (7-22-14) at
7-8 and Tr. (9-23-14) at 13, 15-16. Slip op. at 12-13. Neither is relevant. In
the first, the Judge inquired how many of the alleged violations the Secretary
would need to prove. His orders, however, do not reflect any such inquiry. In
the other cited pages, the Judge notes that in an earlier POV case the
Secretary did identify a specific number but had stepped back from that
position in this case. That was simply a factual statement. Indeed, the passage
shows that the Judge and Brody understood that the Secretary’s position that no
specific number of violations was needed to demonstrate a pattern of
violations. On these pages, as elsewhere, the Judge simply emphasized the need
for the Secretary to explain how the alleged violations identified in the POV notice
constituted a pattern of violations. He said, “[a]nd so with that being
alleged, the Secretary must not only define a ‘pattern’ but also how the cited
violations constitute a pattern.” Tr. (9-23-14) at 16.

3 The majority concede that the Judge expressly
said he not looking for numbers – a point that directly undercuts their
position. Slip op. at 12 n.20. Their further comment in that footnote explains
that they vacate the Judge’s decision not based upon the Judge’s findings, but
instead based upon the majority’s claim that Brody wanted a specific number. Thus,
the majority admits to basing their decision upon the unfulfilled desires of
the respondent.

4 The Judge asked the Secretary for a
roadmap of the basis for the POV determination.

5 Use of the term “ordinarily” by the
majority is somewhat mysterious. They do not elaborate upon the kind of case
that would be sufficiently “extraordinary” to obviate the due process
requirement for fair notice. In any event, they do not find this case to be
extraordinary.

6 The majority cites cases under the
notice requirement of section 554(b)(3) of the Administrative Procedure Act. Slip
op. at 15. The cited cases involve issues of whether the claimant could fairly
understand the issues ruled upon by the Administrative Law Judge based upon the
notice it received. That issue is subtly but substantially different from the
duty to provide the basis of the claim with sufficiently ascertainable
certainty to permit a fair trial in the first place. Tribunals set aside claims
failing the requirement for fair notice. Dep’t of Educ. of State of Cal. v.
Bennett, 864 F.2d 655, 659 (9th Cir. 1988) (“For
notice to have been adequate in this case, then, California must have been
afforded ample opportunity to understand that reallocations among local
educational agencies outside of the Tydings period could be the determinative
issue. . . . The Secretary’s final decision thus ranged beyond the issues
defined in the notice of hearing. The final decision is therefore void . . .
.”). As the United States Court of Appeals for the Second Circuit has
explained, “the time for giving notice of the matters of fact and law asserted
is prior to the hearing, not in what the Board calls ‘General Counsel’s
post-complaint theory of the case’ unveiled in a post-hearing brief.” NLRB
v. Majestic Weaving Co., 355 F.2d 854, 861 (2d Cir. 1966).

7 By then the Secretary had vacated two
of S&S citations entirely and had modified 12 others to drop their S&S
designations. On the opening day of the hearing, therefore, the POV claim
rested upon 40 alleged S&S violations. Brody conceded 12 of the violations,
leaving 28 for trial. After trial, the Judge sustained 17 of the alleged
S&S violations. Therefore, after trial, the Judge sustained 29 S&S
violations out of the original 54 allegations – 54%.

8 The criteria, set forth
in 30 C.F.R. § 104.2(a), are:

1. Citations for S&S violations;

2. Orders under section 104(b) of the Mine Act for not abating
   S&S violations;

3. Citations and withdrawal orders under section 104(d) of the
   Mine Act, resulting from the mine operator's unwarrantable failure to comply;

4. Imminent danger orders under section 107(a) of the Mine Act;

5. Orders under section 104(g) of the Mine Act requiring
   withdrawal of miners who have not received training and who MSHA declares to be
   a hazard to themselves and others;

6. Enforcement measures, other than section 104(e) of the Mine
   Act, that have been applied at the mine;

7. Other information that demonstrates a serious safety or
   health management problem at the mine, such as accident, injury, and illness
   records; and

8. Mitigating circumstances.

In
the preamble to the final rule, MSHA stated that the catchall provision of
“other information” includes evidence of the mine operator’s lack of
good faith in correcting the problem that results in repeated S&S
violations; repeated S&S violations of a particular standard or standards
related to the same hazard; knowing and willful S&S violations; citations
and orders issued in conjunction with an accident, including orders under
sections 103(j) and (k) of the Mine Act; and S&S violations of health and
safety standards that contribute to the cause of accidents and injuries. 78
Fed. Reg. at 5062.

9 Of course, Brody had information about
each of the 40 alleged S&S violations, but information about a particular
citation does not inform the operator of any relationship connection warranting
a POV determination. Further, inspectors obviously do not make the POV
determination. Therefore, they could offer no meaningful testimony regarding
the basis for MSHA’s POV determination. Each inspector can testify about the
citations he/she wrote but, unless the inspector was involved in making the POV
determination, the inspector cannot explain the theory of how the groupings on
a POV notice constitute one or more patterns of violations – information the
majority recognize as essential to the Secretary’s case. Slip op. at 16.

10 The dilemma facing the
Secretary arises from the decision to base POV determinations on unproven
allegations. A respondent facing a decision based on relationships among and
between unproven allegations is most certainly prejudiced if the charging party
can wait to explain the basis of the charge until after a hearing. Such a
process allows the Secretary to refuse to explain the basis of the decision
until after he arrives at the place where he could have begun – a set of proven
violations.

11 The
Secretary derived the few factors expressed on the opening day from Commission unwarrantable
failure cases: “the extent of the condition,
the length of time that it existed, whether the violation was obvious, whether
it posed -- it posed a significant hazard, the operator’s knowledge.” Tr.
(9-23-14) at 47. This list, even if offered in the weeks before the hearing,
provided little or no meat to the skeletal charges against Brody. In his
post-hearing brief, the Secretary
offered a more comprehensive list consisting of the nature and seriousness of the hazards; timing of the
violations; location of the violations in the mine; any trends regarding
injuries and/or accidents; whether management personnel were involved; the
standards violated; the conduct of the operator in responding to the related
violation and whether the operator exhibited any heightened awareness of the
possible consequences; and the ever present catchall of any other factor that
is revealed that would be evidence to establish a “mode of behavior or series
of acts that are recognizably consistent.” Sec’y Post-Hr’g Br. at 12-13. As of
the opening day of the hearing, the Secretary had not expressed these factors
and, more importantly, had not alerted Brody in any respect how relationships
among the alleged violations could sustain MSHA’s POV determination.

12 The majority quotes in full a scant four-paragraph
(267 words) statement by the Secretary’s counsel on the opening day of the
hearing to argue that some disclosure, however late-blooming, was made or
attempted to be made to Brody. Slip op. at 17-18. Not only does the majority
fail to deal with the fact that this was the “opening day of the hearing”
thereby hardly affording time for preparation but also, and far more
importantly, the Secretary’s statement provided virtually no information
related to the pattern criteria. The Secretary did not claim, let alone,
specify that any of the alleged violations were orders for failure to abate,
unwarrantable failure orders, imminent danger orders, failure to train orders,
etc. Indeed, from the face of the text, it appears they all fell into the
“other” category of the pattern criteria. Even then, the only “factors” from
the list suggested by the majority are terse statements that the groupings were
for violations of the same standard or related to the similar hazards, occurred
within a 13 month period (hardly the definition of a short period of time), and
there was allegedly one conversation with one unidentified member of “mine
management.”

13 The majority criticizes the view that
the Commission would advance fair and efficient enforcement of section 104(e)
by requiring adherence to the Constitution in this early POV proceeding. Slip
op. at 19 n.32. Their stated basis is that the unquestionable purpose of the
Mine Act to preserve miner safety outweighs the constitutional rights of the
respondent. They take their argument a revealing step too far, however, by
expressly basing their equation upon the failure of the Secretary to enforce
section 104(e) effectively for forty years. To the majority, therefore, a
weighty factor in their balancing has nothing to do with this case but rather
is dependent on the past failures of the Secretary. By the date this decision
issues, Brody will have been operating for more than nine months without the
POV sanction. If Brody has failed the specific pattern criteria, the Secretary
obviously may make another POV determination regarding Brody.

14 This is a repeated theme of the POV
regulation:

The final rule allows MSHA to focus on the most troubling mines
that disregard safety and health conditions and will not affect the vast
majority of mines, which operate substantially in compliance with the Mine Act.

. . . .

. . . the majority of mine operators are conscientious about
providing a safe and healthful work environment for their miners. The POV
regulation is not directed at these mine operators. . . .

. . . .

With respect to compliance performance, MSHA’s experience
reveals that the vast majority of mines operate substantially in compliance
with the Mine Act.

78 Fed. Reg. at 5058, 5070.

15 30 C.F.R. § 104.1 provides,

This part establishes the
criteria and procedures for determining whether a mine operator has established
a pattern of significant and substantial (S&S) violations at a mine. It
implements section 104(e) of the Federal Mine Safety and Health Act of 1977
(Mine Act) by addressing mines with an inspection history of recurrent S&S
violations of mandatory safety or health standards that demonstrate a mine
operator’s disregard for the health and safety of miners.

Thus, the criteria deal specifically with the issue of the
types of recurrent violations that show a disregard for health and safety. The
criteria are set out in their entirety in note 8 above. Slip op. at 33
(dissent).

16 The Secretary established the use of
specific pattern criteria at 30 C.F.R. § 104.2(b), but has announced that the
specific criteria are only a statement of policy, and has published the criteria
only on its website. The Judge below and I agree “with the Secretary’s position
that the screening criteria are not relevant to the hearing on the subsequent withdrawal orders issued under section 104(e) or on the notice of pattern
of violations issued to Brody Mining on October
24, 2014.” Conf. Call Tr. (9-19-14)
at 8. Therefore, alleged violations considered in the specific pattern criteria
that are not alleged to support the POV notice play no role in a Judge’s
determination whether an operator satisfies the substantive criteria formally
established at 30 C.F.R. § 104.2(a).

17 Use of the term “information” is
inappropriate. The proper terminology is “S&S violations” that show a
health and safety management problem. On the other hand, use of the term
“management problem” has some advantages – namely, it avoids terminology that
might seem to imply a requirement of particular state of mind.

18 Cases under the Racketeer Influenced and
Corrupt Organizations (“RICO”) Act illustrate the elements of a “relationship”
among acts alleged to constitute a “pattern.” See Sedima v. Imrex Co.,
473 U.S. 479 (1985); H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229 (1989).[37]
In H.J. Inc., the Supreme Court characterized “relationship” as
including acts that “are interrelated by
distinguishing characteristics and
are not isolated events.” H.J. Inc., 492 U.S. at 230. Although a
pattern of S&S violations is different from a pattern of RICO violations,
this model does serve to convey the notion of interrelationship that must
exist. These cases also identified
“continuity” as an element of a pattern. The need for this element seems to be
implicit in the factors identified for evaluation of the regulatory pattern
criteria and in the Secretary’s use of discrete one-year periods of evaluation.