Brody Mining, LLC v. Secretary of Labor; Secretary of Labor v. Brody Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

After dismissing MSHA's pattern-of-violations notice against Brody Mining, Judge William B. Moran agreed that immediate Commission review could materially advance the consolidated proceedings because 357 non-S&S citations and orders remained unresolved. He therefore certified controlling legal questions concerning jurisdiction, prehearing disclosure, the meaning of a pattern, and due process. The judge denied the Secretary's renewed request to stay the dismissal, finding no sufficient showing of likely success, irreparable harm, lack of harm to Brody, or public interest. He also reaffirmed that vacating the POV notice automatically converted withdrawal orders based on that notice from section 104(e) orders to section 104(a) citations. The Commission later vacated the underlying dismissal and remanded.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(e), 30 C.F.R. Parts 104 and 29 C.F.R. § 2700.76
• Outcome: Interlocutory review was certified, the renewed stay was denied, and the conversion of dependent section 104(e) orders was reaffirmed.
• Subsequent review: The Commission vacated the POV dismissal and remanded in weva-2014-82-r-commission.
• Key point: A controlling POV ruling may be certified while collateral citations remain pending, but a stay still requires an independent showing on the traditional stay factors.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933

FAX: 202-434-9949

December 30,
2014

BRODY
MINING, LLC,                                    :     CONTEST PROCEEDINGS

Contestant,                        :

:     Docket
No. WEVA 2014-82-R

v.                                                   :     Order
No. 9003242; 10/28/2013

:    

:     Docket
No. WEVA 2014-83-R

: 
 Order No. 7166788; 10/28/2013

:

:     Docket
No. WEVA 2014-86-R

SECRETARY
OF LABOR,                                :     Order No. 4208892; 10/29/2013

MINE
SAFETY AND HEALTH                       :

ADMINISTRATION
(MSHA),                         :     Docket No. WEVA 2014-87-R

Respondent.                                          :     Order No. 4208893;
10/29/2013

:

:
    Docket No. WEVA 2014-97-R

:     Order
No. 7166790; 11/04/2013

:

:     Docket
No. WEVA 2014-151-R

:     Order
No. 9003246; 11/07/2013

:

:     Docket
No. WEVA 2014-161-R

:     Order
No. 9004638; 11/12/2013

:

:     Docket
No. WEVA 2014-190-R

:     Order
No. 4208898; 11/14/2013

:

:     Docket
No. WEVA 2014-191-R

:     Order
No. 7166793; 11/18/2013

:

:     Docket
No. WEVA 2014-192-R

:     Order
No. 4208899; 11/19/2013

:

:     Docket
No. WEVA 2014-193-R

:     Order
No. 9005720; 11/20/2013

:

:     Docket
No. WEVA 2014-221-R

:     Order
No. 8155306; 11/26/2013

:

:     Docket
No. WEVA 2014-244-R

:     Order
No. 9005722; 12/03/2013

:

:     Docket
No. WEVA 2014-284-R

:     Order
No. 8154092; 12/05/2013

:

:     Docket
No. WEVA 2014-285-R

:     Order
No. 7166798; 12/09/2013

:

:     Docket
No. WEVA 2014-447-R

:     Order
No. 7166805; 01/15/2014

:

:     Docket
No. WEVA 2014-448-R

:     Order
No. 7166806; 01/15/2014

:

:     Docket
No. WEVA 2014-449-R

:     Order
No. 7166807; 01/15/2014

:

:     Docket
No. WEVA 2014-450-R

:     Order
No. 7166808; 01/15/2014

:

:     Docket
No. WEVA 2014-451-R

:     Order
No. 8154104; 01/15/2014

:

:     Docket
No. WEVA 2014-452-R

:     Order
No. 9005729; 01/13/2014

:

:     Docket
No. WEVA 2014-453-R

:     Order
No. 9005731; 01/13/2014

:

:     Docket
No. WEVA 2014-454-R

:     Order
No. 9005732; 01/14/2014

:

:     Docket
No. WEVA 2014-455-R

:     Order
No. 9005733; 01/14/2014

:

:     Docket
No. WEVA 2014-456-R

:     Order
No. 9005735; 01/15/2014

:

:     Docket
No. WEVA 2014-457-R

:     Order
No. 9005736; 01/15/2014

:

:     Docket
No. WEVA 2014-479-R

:     Order
No. 7166815; 01/23/2014

:

:     Docket
No. WEVA 2014-480-R

:     Order
No. 7166816; 01/23/2014

:

:     Docket
No. WEVA 2014-529-R

:     Order
No. 7166817; 01/27/2014

:

:     Docket
No. WEVA 2014-530-R

:     Order
No. 9005739; 01/27/2014

:

: 
 Docket No. WEVA 2014-531-R

: 
 Order No. 9005747; 02/10/2014

:

:     Docket
No. WEVA 2014-537-R

:     Order
No. 9007544; 02/04/2014

: 

: 
 Docket No. WEVA 2014-539-R

: 
 Order No. 7166822; 01/28/2014

: 

: 
 Docket No. WEVA 2014-561-R

: 
 Order No. 9005740; 01/27/2014

: 

: 
 Docket No. WEVA 2014-562-R

: 
 Order No. 9005742; 01/29/2014

: 

: 
 Docket No. WEVA 2014-563-R

: 
 Order No. 7166826; 02/04/2014

: 

: 
 Docket No. WEVA 2014-570-R

: 
 Order No. 9005750; 02/19/2014

: 

: 
 Docket No. WEVA 2014-571-R

: 
 Order No. 7166824; 01/29/2014

: 

: 
 Docket No. WEVA 2014-572-R

: 
 Order No. 9005741; 01/29/2014

: 

: 
 Docket No. WEVA 2014-593-R

: 
 Order No. 9005753; 02/20/2014

:

: 
 Docket No. WEVA 2014-594-R

: 
 Order No. 7166831; 02/11/2014

: 

: 
 Docket No. WEVA 2014-638-R

: 
 Order No. 9005754; 02/24/2014

: 

: 
 Docket No. WEVA 2014-639-R

: 
 Order No. 9005762; 03/04/2014

: 

: 
 Docket No. WEVA 2014-640-R

: 
 Order No. 9003274; 03/04/2014

: 

: 
 Docket No. WEVA 2014-641-R

: 
 Order No. 9005763; 03/04/2014

: 

: 
 Docket No. WEVA 2014-672-R

: 
 Order No. 9005758; 02/25/2014

: 

: 
 Docket No. WEVA 2014-673-R

: 
 Order No. 9005756; 02/25/2014

: 

: 
 Docket No. WEVA 2014-674-R

: 
 Order No. 7166838; 02/24/2014

: 

: 
 Docket No. WEVA 2014-675-R

: 
 Order No. 7166839; 02/24/2014

: 

: 
 Docket No. WEVA 2014-676-R

: 
 Order No. 8166840; 02/24/2014

: 

: 
 Docket No. WEVA 2014-678-R

: 
 Order No. 7166837; 02/24/2014

: 

: 
 Docket No. WEVA 2014-679-R

: 
 Order No. 9005755; 02/24/2014

: 

: 
 Docket No. WEVA 2014-680-R

: 
 Order No. 9005757; 02/25/2014

: 

: 
 Docket No. WEVA 2014-681-R

: 
 Order No. 9005759; 02/25/2014

:

: 
 Docket No. WEVA 2014-715-R

: 
 Order No. 8135796; 03/11/2014

: 

: 
 Docket No. WEVA 2014-716-R

: 
 Order No. 8135797; 03/12/2014

: 

: 
 Docket No. WEVA 2014-717-R

: 
 Order No. 9001091; 03/11/2014

: 

: 
 Docket No. WEVA 2014-718-R

: 
 Order No. 9001095; 03/19/2014

: 

: 
 Docket No. WEVA 2014-719-R

: 
 Order No. 9001096; 03/11/2014

: 

: 
 Docket No. WEVA 2014-720-R

: 
 Order No. 9005764; 03/05/2014

: 

: 
 Docket No. WEVA 2014-722-R

: 
 Order No. 9007123; 03/23/2014

: 

: 
 Docket No. WEVA 2014-745-R

: 
 Order No. 9969627; 03/24/2014

: 

: 
 Docket No. WEVA 2014-804-R

: 
 Order No. 9005343; 04/03/2014

: 

: 
 Docket No. WEVA 2014-805-R

: 
 Order No. 9005768; 04/03/2014

: 

: 
 Docket No. WEVA 2014-806-R

: 
 Order No. 9005769; 04/07/2014

: 

: 
 Docket No. WEVA 2014-807-R

: 
 Order No. 9005770; 04/07/2014

: 

: 
 Docket No. WEVA 2014-811-R

: 
 Order No. 9005344; 04/09/2014

: 

: 
 Docket No. WEVA 2014-813-R

: 
 Order No. 9005772; 04/09/2014

:  

: 
 Docket No. WEVA 2014-814-R

: 
 Order No. 9005773; 04/09/2014

: 

: 
 Docket No. WEVA 2014-819-R

: 
 Order No. 9005774; 04/15/2014

: 

: 
 Docket No. WEVA 2014-854-R

: 
 Order No. 9005778; 04/21/2014

: 

: 
 Docket No. WEVA 2014-855-R

: 
 Order No. 9005779; 04/22/2014

: 

: 
 Docket No. WEVA 2014-856-R

: 
 Order No. 9005780; 04/22/2014

: 

: 
 Docket No. WEVA 2014-909-R

: 
 Order No. 9005347; 05/01/2014

: 

: 
 Docket No. WEVA 2014-974-R

: 
 Order No. 9005349; 05/13/2014

: 

: 
 Docket No. WEVA 2014-975-R

: 
 Order No. 9005350; 05/13/2014

: 

: 
 Docket No. WEVA 2014-976-R

: 
 Order No. 9007426; 05/13/2014

:

:     Docket
No. WEVA 2014-1012-R

:     Order
No. 9005786; 05/29/2014

:

:     Docket
No. WEVA 2014-1013-R

:     Order
No. 9005787; 05/29/2014

:

: 
 Docket No. WEVA 2014-1035-R

: 
 Citation No. 9005792; 06/12/2014

:

: 
 Docket No. WEVA 2014-1036-R

: 
 Citation No. 9005362; 06/11/2014

:

: 
 Docket No. WEVA 2014-1037-R

: 
 Citation No. 9005360; 06/04/2014

:

: 
 Docket No. WEVA 2014-1038-R

: 
 Citation No. 9005361; 06/11/2014

:

:     Docket
No. WEVA 2014-1135-R

:     Order
No. 9905374; 07/15/2014

:

:     Docket No. WEVA
2014-1138-R

:     Order
No. 9005376; 07/16/2014

:

:     Docket No. WEVA
2014-1157-R

:     Order
No. 9009660; 07/22/2014

:

: 
 Docket No. WEVA 2014-1993-R

: 
 Order No. 9005384; 07/30/2014

:

: 
 Docket No. WEVA 2014-1994-R

: 
 Order No. 9005383; 07/30/2014

:

: 
 Docket No. WEVA 2014-1995-R

: 
 Order No. 9005382; 07/30/2014

:

: 
 Docket No. WEVA 2014-1996-R

: 
 Order No. 9005380; 07/30/2014

:

:     Docket No. WEVA
2014-2172-R

:     Order
No. 9003948; 09/08/2014

:

: 
 Docket No. WEVA 2014-2173-R

: 
 Order No. 9005393; 09/09/2014

:

: 
 Docket No. WEVA 2014-2174-R

: 
 Order No. 9005398; 09/10/2014

:

: 
 Docket No. WEVA 2014-2175-R

: 
 Order No. 9005400; 09/10/2014

:

:     Docket No. WEVA
2014-2221-R

:     Order
No. 9007439; 09/17/2014

:

:     Docket
No. WEVA 2015-59-R

:     Order
No. 7272454; 10/07/2014

:

:     Docket
No. WEVA 2015-60-R

:     Order
No. 7272462; 10/07/2014

:

:     Docket
No. WEVA 2015-61-R

:     Order
No. 7272494; 10/07/2014

:

:     Docket
No. WEVA 2015-63-R

:     Order
No. 9005704; 10/14/2014

:

:     Docket
No. WEVA 2015-66-R

:     Order
No. 9005705; 10/14/2014

:

:     Docket
No. WEVA 2015-67-R

:     Order
No. 9006768; 10/14/2014

:

:     Docket
No. WEVA 2015-68-R

:     Order
No. 9006769; 10/14/2014

:

:     Docket
No. WEVA 2015-121-R

:     Order
No. 7219154; 10/24/2014

:

:     Mine:
Brody Mine No. 1

:     Mine
ID: 46-09086

:

:

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDINGS

MINE
SAFETY AND HEALTH                        :

ADMINISTRATION
(MSHA),                          :     Docket No. WEVA 2013-370

Petitioner,                          :     A.C.
No. 46-09086-308309

:

v.                                                   : 
 Docket No. WEVA 2013-564

: 
 A.C. No. 46-09086-310927

: 

: 
 Docket No. WEVA 2013-997

: 
 A.C. No. 46-09086-321030

: 

: 
 Docket No. WEVA 2013-1055

: 
 A.C. No. 46-09086-323691

: 

: 
 Docket No. WEVA 2013-1189

: 
 A.C. No. 46-09086-326531

: 

: 
 Docket No. WEVA 2013-619

: 
 A.C. No. 46-09086-342759

: 

: 
 Docket No. WEVA 2013-620

: 
 A.C. No. 46-09086-342759

: 

: 
 Docket No. WEVA 2014-702

: 
 A.C. No. 46-09086-344708

: 

: 
 Docket No. WEVA 2014-842

: 
 A.C. No. 46-09086-347271     

BRODY
MINING, LLC,                                    :   

Respondent.                      : 
 Mine: Brody Mine No. 1

Before:           
 Judge William B. Moran

Order on the Secretary’s
Motion for Certification for Interlocutory Review and Order on the Secretary’s Renewed
Emergency Motion to Stay the Court’s Order Dismissing the Pattern of Violations
Notice

Upon
consideration of the Secretary’s Motions and the response thereto, for the
reasons which follow, the Court GRANTS the Motion for Certification for
Interlocutory Review and DENIES the Secretary’s Renewed Emergency Motion to
Stay.[1]

I.                  
Order
on the Secretary’s Motion for Certification for Interlocutory Review

The Secretary’s Motion for Certification
for Interlocutory Review (“Motion for IR”) requests that this Court certify its
November 1, 2014 Order, which among other actions and findings, dismissed the claim
that Brody had a pattern-of-violations (“POV”), as asserted in the POV notice
issued by the Secretary to Brody Mining on October 24, 2013. Pursuant to
Commission Rule 76 (29 C.F.R. § 2700.76), the Secretary now requests that the
ALJ certify its Order for interlocutory review.

In support of its Motion for IR, the
Secretary states that the Court’s Order is interlocutory because it did not
resolve the 357 citations and orders not designated as “significant and
substantial” (“S&S”) that were included with the 54 S&S citations and
orders.[2]
It notes that “[a]n order qualifies for interlocutory review under Rule 76 if:
(i) the interlocutory ruling involves a controlling question of law, and (ii)
immediate review may materially advance the final disposition of the proceeding
[and the Secretary maintains that] both requirements are met here.” Motion for
IR at 2.  

The IR motion continues with the
Secretary stating that the “dismissal order presents the following controlling
questions of law: (i) whether the ALJ had jurisdiction to adjudicate the
validity of the POV notice issued to Brody when the hearing notice listed only
the civil penalty dockets containing the citations and orders underlying the
POV notice, and not the dockets containing Brody’s contests of the withdrawal
orders issued pursuant to the POV notice;

(ii)
whether the ALJ erred as a matter of law in finding that the Secretary failed
to comply with the ALJ’s oral pre-hearing order; and, (iii) whether the
Secretary’s definition of “pattern of violations” satisfies the requirements of
Section 104(e)(4) of the Mine Act and the Due Process Clause of the Fifth
Amendment to the United States Constitution.”[3]
Motion for IR at 2.  

The
Court does agree with the Secretary’s assertion that “[i]mmediate review may
materially advance resolution of this proceeding by allowing the POV issues,
which are legal issues that may be resolved independently from the rest of the
case, to be adjudicated on appeal without awaiting the ALJ’s adjudication of
the 357 non-S&S citations and orders—which have no bearing on the POV
issues—contained in the civil penalty dockets pending before the ALJ.” Motion
for IR at 2-3.[4]
(emphasis added).  

Finally, the Secretary notes that it “contacted
Brody’s counsel, who stated that he does  

not
oppose the motion to certify the ALJ’s decision vacating the pattern of
violations notice, but reserves the right to address any particular assertion
by the Secretary in this motion.” Motion for IR at 3. Brody, in a December 17,
2014 email response to an email inquiry from the Court about the Secretary’s
characterization of its position, advised that while it does “not necessarily
agree with the Secretary's formulation of the three issues [presented in the
Secretary’s Motion for certification for Intelocutory Review] [ it believes
that] the fundamental issue of whether the vacation of the POV notice (which in
the Secretary's view raises those three issues ) is properly [the] subject of
interlocutory review and the Judge could rule on it without further submission
by Brody.”

Based on the foregoing, the Court GRANTS
the Secretary’s Motion and in so doing certifies that the determinations made
by it in its November 3, 2014 Order are interlocutory in the sense that a large
number of citations and orders are associated with the listed dockets which do
not involve claims that they were S&S, and that the rulings which were made
in the November 3, 2014 Order involve controlling questions of law and that, in
the Court’s opinion, immediate review will materially advance the final
disposition of the proceeding.[5] 

II.               
Order
on the Secretary’s Renewed Emergency Motion to Stay the Court’s Order
Dismissing the Pattern of Violations Notice

The Secretary has also filed a Renewed
Emergency Motion to Stay the Court’s Order

Dismissing
the pattern of violations notice[6]
(“Renewed Motion”).  The Motion correctly asserts that the Court’s November 1,
2014 Order “effectively preclud[es] the Secretary from issuing any further
withdrawal orders pursuant to that notice so long as the ALJ’s order remains in
effect.” Renewed Motion at 1.[7]

As the Renewed Motion essentially
repeats the arguments made in its first Emergency Motion, an extended
discussion is not required. Although the Secretary expends effort on a
contention that, in its most favorable construction, could be described as a
semantic dispute, there is no genuine question about the subjects that were litigated
during the three weeks set aside for hearing. In this regard the Court would comment
that, in reaction to the Secretary’s claim that the Court cannot address the
validity of a POV notice, the heart of the matter at issue here need not be
made more complex than it deserves. Arguments over nomenclature should not
control the resolution of this matter. For example, one could contend that a
POV notice stands forever, unassailable by itself, but such notice has
no meaning, effect or impact until the first 104(e) withdrawal order flows from
it. At that point, all would agree that whether there is in fact a pattern of
violations and whether the alleged violations in support of that claim are
present may be challenged. And that is exactly what occurred here with the end
result of this Court dismissing the Secretary’s claim that it demonstrated a
pattern of violations.

In his January 30, 2014 Order, Chief
Administrative Law Judge Robert Lesnick noted that the basis for the
Secretary’s pattern notice rested upon 54 S&S citations and orders, which
were “grouped according to the hazards they allege[d] (ventilation and methane
hazards, emergency preparedness and escapeway hazards, roof and rib hazards,
and inadequate examination hazards)” 36 FMSHRC 284, 293 (Jan. 2014). Thus, it
has been clear since the inception of the issuance of the pattern notice that
the 54 citations and orders were the foundation upon which that pattern charge
was built. Contrary to the implication of the Secretary that “[t]he ALJ
subdivided the hearing into three separate parts, each part corresponding to
one subgroup of the 54 S&S citations and orders relating to one of the
distinct patterns identified by the POV notice,” (Renewed Motion at 3) the
Court didn’t invent those groupings; they were presented by the Secretary, with
a hearing week dedicated to each group. Importantly, Chief Judge Lesnick took
note that “[s]ince the issuance of Notice No. 7219154, MSHA has issued (and
continues to issue as of the date of this order) numerous section 104(e)
withdrawal orders. Brody has contested, and continues to contest, all of these
orders (since Brody received its POV notice, and as of the date of this order,
it has been issued 28 section 104(e) orders that have been contested and
docketed at the Commission). As additional contests are filed with the
Commission, [the Chief Judge announced in his January 30, 2014 Order that
he would] “consolidate them with these proceedings.”[8]
36 FMSHRC 284, 293 (Jan. 2014)(emphasis added).

The overriding point is that the
Secretary completely understood that the hearing before the Court had a twofold
purpose associated with the POV notice: 1. the Secretary had to present a
coherent basis for its claim that the 54 citations/orders constituted a pattern
of violations and  2. upon setting forth that basis, the Secretary was then
obligated to prove that each of the citations/orders making up the claim of a
pattern of violations were factually established as having the significant and
substantial trait. The Secretary failed in both regards. The Secretary never explained
the basis for his claim that the alleged violations constituted a pattern and,
of no small consequence, at the hearing he failed to establish for nearly half,
46.3%, of the citations/orders that they were in fact S&S violations. With
these, twin, significant and substantial failures on the Secretary’s
part, no pattern of violations was established and the claim that Brody had
engaged in a Pattern of Violations was properly dismissed. As the foundation
for its Pattern of Violations Notice crumbled, the required consequence was
that all subsequently issued 104(e) orders built on that defective
foundation were necessarily converted to 104(a) citations.

Brody
submitted a Response in Opposition. As the Court is denying the Secretary’s
Renewed Motion, the discussion of that Response will be brief. However, the
Court would comment that it largely endorses Brody’s contentions. For example,
the Court agrees that the Secretary’s claim of lack of jurisdiction is hollow.[9]
So too, the Court rejects the Secretary’s claims regarding the likelihood that
the movant will prevail on the merits of its appeal; that irreparable harm will
result to the movant if the stay is not granted; that there is an absence of
adverse effects on other interested parties; and that it has established that
the stay is in the public interest.  See the Court’s November 26, 2014 Order
Denying the Secretary’s first emergency motion to stay.

Conclusion

On the basis of
the foregoing, the Court DENIES the Secretary’s Renewed Emergency Motion to
Stay the Court’s Order Dismissing the Pattern of Violations Notice.

So
Ordered

/s/
William Moran

William
B. Moran

Distribution:

Michael
T. Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600,
Charleston, WV 25301-3202

R.
Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

K.
Brad Oakley, Esq., Jackson Kelly PLLC, 175 East Main Street, Suite 500,
Lexington, KY 40507

Adam
J. Schwendeman, Esq., 500 Lee Street East, Suite 1600, Charleston, WV
25301-3202

Benjamin
M. McFarland, Esq., Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV 26003

Robert
S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22 Floor West, Arlington, VA 22209-3939

Lauren
Marino, Esq. Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., Room 2226, Arlington, VA 22209-2296

Jason
Grover, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., Room 2226, Arlington, VA 22209-2296

Ronald
Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., Room 2226, Arlington, VA 22209-2296

Dana
Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., Room 2226, Arlington, VA 22209-2296

[1]
The use of
the term “Emergency” is the Secretary’s self-characterization of its motion to
stay. The Court does not subscribe to the accuracy of that characterization.

[2]
The
Secretary adds that “[t]o the extent that the contested POV withdrawal orders
were properly before the ALJ—and the Secretary contends they were not—the fact
that the ALJ did not adjudicate those orders not only prevents the order from
being final but also deprived the ALJ of jurisdiction to rule on the validity
of the POV notice.” Motion for IR at n.1. 

[3]
The quoted
language reflects the Secretary’s characterization of the issues.

[4]
The
Secretary adds that “[a]lternatively, the ALJ may wish to consider directing
that his November 1, 2014 order of dismissal be entered as a final, appealable
order pursuant to Federal Rule of Civil Procedure 54(b), citing
Westmoreland Coal Co., 5 FMSHRC 1406, 1411-12 (1983)(“Westmoreland”).
Motion at 3, n. 2. The Commission observed in Westmoreland that Rule
54(b) permits adjudication of fewer than all claims presented in an action and
that the judge in that case could have applied that Rule allowing him to
resolve two of the three claims while retaining jurisdiction of the third. The
Commission noted that had the Judge issued a decision resolving the first two
claims and that, as there was no just reason to delay that decision, the
decision would have been a final decision, subject to the review procedures of
the Mine Act and that such an outcome would also have been in harmony with then
Commission Rule 64(a), (now Rule 2700.67(a)), which then and now provides
in pertinent part that at any time after commencement of a proceeding and
before the scheduling of a hearing on the merits, a party to the proceeding may
move the judge to render summary decision disposing of all or part of the
proceeding. The Commission held that the resolution of such a question “belongs
within the informed discretion of the judge.” However, in Westmoreland as
here, neither party suggested applying Federal Rule 54(b) and the hearing has
occurred for the critical aspects of the Secretary’s Pattern claim. While it
would appear that this option is not available, as noted in the body of this
Order, the Court may avail itself of procedural rule section 2700.76(a)(1)(i),
addressing interlocutory review and does so.

[5]
Brody has
also urged the Court to leave no doubt that its decision vacating the pattern
notice “automatically converts the Section 104e orders based on the POV notice
to 104a citations.” Brody email dated December 17, 2014. Although the Court
believes that its Order clearly conveyed that its decision had that effect, it hereby
reaffirms that its decision, which vacated the claim that Brody had a pattern
of violations.  That determination automatically converts all Section 104e
orders based on the POV notice to 104a citations. That result is ineluctable. When
faced with the evidentiary burdens at the hearing, the Secretary’s Pattern of
Violation Notice turned out to be stillborn. Beyond listing some 54 citations
with, at 25, nearly half of its basis for the claim determined not to be
S&S, the Secretary was also unable to present a coherent basis for its
claim that there was a pattern of violations by Brody.

[6]
The
Renewed Motion notes that the Secretary previously filed an “Emergency Motion
to Stay Order” with the Court on November 4, 2014, which Brody opposed and
which was denied on November 26, 2014. This is an opportune moment to note the extent
to which Brody has been adversely impacted by a process which was advertised by
MSHA as being designed for the expeditious resolution of challenges to POV
notices. With the pattern-of-violations notice having been issued to Brody
Mining on October 24, 2013, more than a year and two months now have elapsed since
then and there is no near term resolution of Brody’s challenges to that POV
notice in sight. To maintain legitimacy, enforcement of the Mine Act’s
provisions, through measures such as a charge of a pattern of violations, must
still be about fair procedures. A stay would effectively mean that Brody,
though it prevailed at the hearing, would continue to face an indefinite, and
likely prolonged, period of new section 104(e) withdrawal orders, each of which
in this Court’s determination stem from the same defective notice. In this
Court’s view, such a result is inconsistent with procedural due process.

[7]
In what
the Court views as a troublesome inclusion, the Secretary has inserted the irrelevant
and inaccurate claim that “[i]n the six weeks since issuance of the ALJ’s order
dismissing the POV notice, Brody’s rate of “significant and substantial”
violations has tripled.” Renewed Motion at 2. The Court views this inclusion as
emblematic of the Secretary’s continuing conflation of charges with proof of
violations, as if they were the same thing. Brody’s rate of citations
being issued with the significant and substantial element may have increased
threefold, but that does not mean that its rate of established violations
with that element has tripled, unless the Secretary believes that leveling
the charge is all that is needed.  

[8]
It should
also be noted that if the docket numbers containing Brody’s contests of the
withdrawal orders were deemed to have been improperly included, subsequent
litigation would change nothing - the core issues have already been litigated
and decided. Thus, in the Court’s estimation, this is simply an attempt by the
Secretary to avoid facing up to its twin failings in its pattern of violations
claim.

[9]
As Brody
observed in its Response, “The Secretary first raised such argument in his
posthearing brief but had not previously raised that issue. . . . In his
Position Statement to the ALJ, filed July 17, 2014, which included docket
numbers for prepenalty contests of Section 104(e) orders in its caption, the
Secretary clearly evidenced an understanding that any hearing would include the
contests of the POV notice (Position Statement at 11). In his prehearing
statement filed August 25, 2014, the Secretary again included as part of the
caption four prepenalty contests of Section 104(e) orders in addition to the
civil penalty dockets that he now includes in the caption by themselves. . . . It
has been clear in each notice of contest filed by Brody that the POV notice is
at issue. It has also been clear that the Secretary concedes that in the
contest of a Section 104(e) order, the POV notice can be challenged. . . . It
is clear that the Secretary fully understood that the validity of the POV was
at issue prior to and during the hearing and his removal of the docket numbers
from his last submissions is either inadvertent or disingenuous. . . .

It
is clear that throughout the 7 days of hearing that the Secretary believed that
the issue of the POV notice and a pattern was at issue as evidenced by a
discussion of the docket numbers at hearing:

MR.
MOORE: -- are related to every prepenalty contest in the 104(e) order that’s
pending before the Commission, and there are approximately a hundred – a
hundred of those, some of which were before the commission on the appeal, the
interlocutory appeal. So I’m a little bit – I want to be careful that we’re –
all understand that, while we’re looking at individual citations for civil
penalty dockets, we’re also looking at the broader issue or else we wouldn’t
even have to talk about that. . . . The Secretary did not object to such
assertion.” Response at 7-9.