Secretary of Labor v. Consolidation Coal Company (Commission decision, April 29, 1985)

Plain-English summary

Consolidation Coal sought reconsideration after the Commission declined discretionary review of a judge's decision in three contest dockets. The company argued that its petition would have been more likely to obtain review if the five-member Commission had no vacancies. The Commission said the Mine Act allows a three-member panel to exercise its powers, each sitting member had considered the petition and record, and fewer than two voted to grant review. It found no reason to reconsider and denied the request. The judge's decision remained the final Commission order; this document does not state the underlying merits or a penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 823(c), 823(d)(1), and 816(a).
• Outcome: The petition for reconsideration was denied; the judge's decision remained the final order.
• Key point: Two vacancies did not invalidate the three-member Commission's consideration of the review petition.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONSOLIDATION COAL
DDATE:
19850429
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. April 29, 1985 SECRETARY OF LABOR, MINE SAFETY AND HEALTH Docket Nos. WEVA 83-280-R
ADMINISTRATION (MSHA)
WEVA 83-281-R
WEVA 84-16-R v.
CONSOLIDATION COAL COMPANY

BEFORE: Backley, Acting Chairman; Lastowka, Nelson, Commissioners ORDER BY THE COMMISSION: On April 9, 1985, the Commission issued a notice informing the parties that the petition for discretionary review filed in this matter by Consolidation Coal Company (Consol) had not been granted and, accordingly, that the decision of the administrative law judge was the final order of the Commission. 30 U.S.C. § 823 (d)(1). On April 24, 1985, the Commission received a "petition for re-consideration" from Consol. The petition for reconsideration states: At the present time, the Commission is composed of three members. If the Commission presently consisted of its statutory five members, it would be more likely that this non-frivolous appeal, which is of great importance to Consol specifically and the mining industry in general, would be ordered reviewed. Consol requests that the Commission reconsider and grant its petition.
~491
Consol correctly observes that two vacancies presently exist on this five-member Commission. We note, however, that section 113(c) of the Mine Act authorizes panels of three members to exercise "any or all of the powers of the Commission". 30 U.S.C. § 823(c). Consol's petition for discretionary review, the administrative law judge's decision, and the entire record were fully considered by each of the present members of the Commission. No two members, however, voted to grant the Petition and the judge's decision became the final order of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(1) and (2). No reasons have been advanced by Consol justifying the reconsideration it seeks. Further review of the Commission's final order is available in an appropriate U.S. Court of Appeals. 30 U.S.C.
§ 816(a)
Accordingly, the petition for reconsideration is denied. Richard V. Backley, Acting Chairman L. Clair Nelson, Commissioner
~492
Distribution
Robert M. Vukas. Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Richard Steffey
Federal Mine Safety & Health Review Commission 5203 Leesburg Pike, lOth Floor Falls Church, Virginia 22041