Secretary of Labor v. Consol Mining Company LLC

Plain-English summary

MSHA sought Commission review after an administrative law judge denied a proposed settlement and said the issues would be resolved at hearing. The Commission treated the filing as a petition for interlocutory review because the judge's order was not final. Commission rules required the judge either to certify the controlling legal question or to deny a certification request before the party petitioned the Commission. MSHA had not first requested certification from the judge. The Commission denied interlocutory review without prejudice, leaving MSHA free to follow the required procedure.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)
• Outcome: Interlocutory review was denied without prejudice.
• Key point: A party seeking review of a nonfinal ruling must first request interlocutory certification from the administrative law judge.

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

:

:

:

:

:

:

:

:

Docket
No. WEVA 2023-0141

A.C.
No. 46-09569-568207

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 June 9, 2023, the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”) filed a Petition for Discretionary
Review seeking review of the Judge’s May 11, 2023 Order denying the parties’
motion to approve settlement of the captioned matter. The Judge stated that
“[t]he parties should anticipate that the matters addressed by the motion will
be resolved at hearing . . . .” Order at 2.

Although
the Secretary titled her filing as a Petition for Discretionary Review, we
conclude that her filing is more aptly described as a petition for interlocutory
review. That is because the Judge’s Order is not a final decision and thus the
Commission is unable to consider a petition for discretionary review filed
pursuant to section 113(d) of the Mine Act, 30 U.S.C. § 823(d) and Commission
Procedural Rule 70. [1]
See Sec’y of Labor on behalf of Reuben Shemwell , 35 FMSHRC 2056, 2057
(July 2013) (“[s]ection 113(d) of the Mine Act, 30 U.S.C. § 823(d), only allows
for review of final decisions.”).

However, 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. According
to Rule 76(a)(1), the Judge must certify that his interlocutory ruling involves
a controlling question of law and that immediate review will materially advance
the final disposition of the proceeding. Or, in the alternative, the Judge must
deny a party’s motion for certification of the interlocutory ruling to the
Commission, and then the party must file with the Commission a petition for
interluctory review within 30 days of the Judge’s denial of such motion. In the
present case, the Judge has neither certified the case for interlocutory
review, nor has the Secretary initially sought such certification by first
filing a motion with the Judge.

Accordingly,
because the Secretary has filed for review of a Judge’s interlocutory ruling
with the Commission, prior to first filing a motion for certification with the
Judge, we DENY the petition for interlocutory review without prejudice. [2]

/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

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,
Esq.

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, Esq.

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]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine
Safety Health Review Commission

Office of the
Chief Administrative Law Judge

1331 Pennsylvania
Avenue, NW Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative Law
Judge Michael G. Young

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]

[1]
Commission
Procedural Rule 70 implements section 113(d) of the Mine Act and sets forth the
provisions under which a party can seek relief before the Commission from a
final order of an administrative law judge. 29 C.F.R. § 2700.70.

[2]
This case
consists of a total of six citations. Currently pending before the Judge is a
motion to bifurcate this matter into two cases: one case concerning the four citations
which are the subject of the denied motion to approve settlement and the second
case consisting of the two additional citations that are scheduled for hearing
on July 25, 2023. Bifurcating this matter into multiple cases, with discrete
docket numbers, would both facilitate potential Commission interlocutory review
and prevent any unintentional delays leading up to the scheduled hearing on the
unresolved citations.