Secretary of Labor (MSHA) on behalf of Joseph Pastine v. Fairfax Trucking Company (ALJ decision, May 28, 1982)

Plain-English summary

MSHA moved, with Joseph Pastine's consent, to withdraw the discrimination complaint it had filed against Fairfax Trucking on his behalf. It said a later investigation indicated no violation. Judge Charles C. Moore, Jr. granted the withdrawal and dismissed the case. He declined to decide whether Pastine could later bring his own complaint under the Mine Act, saying any ruling here would not bind a future case. The order assessed no penalty.

Decision snapshot

• Governing provision discussed: 30 U.S.C. § 815(c)(3).
• Outcome: MSHA's discrimination complaint withdrawn and dismissed; no penalty assessed.
• Key point: The judge left any separate complaint by Pastine to be resolved in a future proceeding.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. FAIRFAX TRUCKING
DDATE:
19820528
TTEXT:
~970

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
Complaint of Discharge
MINE SAFETY AND HEALTH
Discrimination or Interference
ADMINISTRATION (MSHA),
ON BEHALF OF JOSEPH PASTINE,
Docket No: WEVA 81-393-D
APPLICANT
MORG CD 81-16
v.
Susan No. 1 Mine
FAIRFAX TRUCKING COMPANY,
RESPONDENT

ORDER GRANTING MOTION TO WITHDRAW

MSHA, with the consent of Mr. Pastine, has moved to withdraw its complaint of discrimination that it filed on Mr. Pastine's behalf. Its reason for filing the motion is that subsequent investigation has indicated that there was no violation.

MSHA has stated that its position is that Mr. Pastine should be able to file his own complaint under Section 105(c)(3) of the Act within 30 days after the case is dismissed if he chooses to do so. The Act, however, does not address the situation where the government files an action on a miner's behalf and later changes its mind and obtains a dismissal of the case. The government's proposition is equitable, however, and if Mr. Pastine should choose to file an action on his own behalf he would certainly have an argueable position. But I do not see that any ruling that I might make in the instant case could have any effect on a case he might file in the future.

The Motion to withdraw is granted and the case is dismissed.

Charles C. Moore, Jr.
Administrative Law Judge