Secretary of Labor v. Consol Mining Company LLC (Commission decision, July 27, 2023)

Plain-English summary

The Administrative Law Judge certified questions for interlocutory review before issuing a final decision in the case. Commission Rule 76 permits this early review when a ruling presents a controlling legal question and immediate review would materially advance the proceeding. The Commission found those conditions satisfied and granted review. The order does not identify the certified questions or decide their merits.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.76
• Outcome: The request for interlocutory Commission review was granted.
• Key point: The Commission may review a nonfinal ruling when the certified legal question is controlling and immediate review will materially advance the case.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH    

ADMINISTRATION
(MSHA)         

v.

CONSOL
MINING COMPANY LLC

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Docket
No. WEVA 2023-0141

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

ORDER

BY THE COMMISSION:

This
case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On July 7, 2023, the Administrative Law Judge assigned to this matter issued an order granting certification of questions for interlocutory review.

Pursuant to Commission Procedural Rule 76,
29 C.F.R. § 2700.76, the Commission may review a Judge’s ruling, prior to the Judge’s final decision in the case, if certain conditions are met. This includes a Judge certifying that his interlocutory ruling involves a controlling question of law and that immediate review will materially advance the final disposition of the proceeding.

We find that the qualifications contained
in Procedural Rule 76, 29 C.F.R. § 2700.76, have been met, and hereby GRANT interlocutory review.

/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

Counsel for
Appellate Litigation

U.S. Department of
Labor

Office of the
Solicitor

Division of Mine
Safety & Health

201 12th Street
South, Suite 401

Arlington,
VA 22202

[email protected]

Robert S. Wilson

Office of the
Solicitor

U.S. Department of
Labor, MSHA

201 12 th
Street, Suite 401

Arlington, VA 22202

[email protected]

D. Cass Trent, CLR

U.S. Department of
Labor, MSHA

4499 Appalachian
Hwy

Pineville, WV 24874

[email protected]

Jim McHugh

Hardy Pence LLC

10 Hale Street, 4 th
Floor

P.O. Box 2548

Charleston, WV 25329

[email protected]

Craig Aaron

CONSOL Energy Inc.

275 Technolgy
Drive, Suite 101

Canonsburg, PA  15317

[email protected]

Michael G. Young

Administrative Law
Judge

Federal Mine
Safety and Health Review Commission

Office of the
Chief Administrative Law Judge

1331 Pennsylvania
Ave, NW, Suite 520N

Washington, DC  20004

[email protected]