Secretary of Labor v. Appalachian Resource West Virginia, LLC

Plain-English summary

The Secretary moved to approve settlements in two proceedings involving Appalachian Resource West Virginia. The judge certified for immediate review whether the Secretary had to provide related section 104(b) orders when requested. The Commission noted that the judge had not yet granted or denied the settlement motions. It therefore found the certification premature and denied interlocutory review without prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. § 814(b); 29 C.F.R. § 2700.76(a)
• Outcome: Interlocutory review was denied without prejudice because the judge had not ruled on the settlement motions.
• Key point: A disputed document request was not ready for immediate Commission review before the judge decided whether to approve the settlements.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket Nos. WEVA 2022-0301

v. : WEVA 2022-0428

: A.C. No. 46-08930-551112

APPALACHIAN RESOURCE WEST :

VIRGINIA, LLC :

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY THE COMMISSION:

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018). On approximately October 14, 2022, the Secretary of Labor filed motions to approve settlement in these proceedings. On December 13, 2022, a Commission Administrative Law Judge issued orders certifying for interlocutory review the question of whether the Secretary is obligated, upon a Judge’s request, to supply orders issued pursuant to section 104(b) of the Act, 30 U.S.C. § 814(b), that are associated with citations in a docket before the Judge on a motion to approve settlement.

Commission Procedural Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a).

Upon consideration of the Judge’s December 13 orders and the case records, we conclude that, because the Judge has yet to rule on the Secretary’s motions to approve settlement, the Judge’s certification for interlocutory review is premature. See Cty Line Stone Co., 44 FMSHRC 507, 508 (July 2022).[1]

In Perry County Resources, LLC, 44 FMSHRC ___, No. KENT 2022-0024 (December 6, 2022), the Commission granted interlocutory review on the issue of “whether the Judge abused his discretion in denying approval of the settlement motion based on the Secretary’s refusal to provide a section 104(b) order that was associated with a citation that was a subject of the motion to approve settlement.” In contrast, in these proceedings, the Judge has yet to issue an order either granting or denying the Secretary’s motions to approve settlement.

For these reasons, we deny interlocutory review without prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

K. Brad Oakley, Esq.,

Jackson Kelly PLLC,

100 W. Main Street, Suite 700

Lexington, KY 40507

[email protected]

David C. Trent

Conference & Litigation Representative

U.S. Department of Labor, MSHA

4499 Appalachian Highway

Pineville, WV 24874

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

[email protected]

Administrative Law Judge William B. Moran

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

[email protected]

[1] The Commission granted the Secretary’s second petition for interlocutory review, filed after the Judge issued orders denying the Secretary’s renewed motions to approve settlement. Cty Line Stone Co., 44 FMSHRC 548, 549 (Aug. 2022).