Consolidation Coal Company v. Secretary of Labor (ALJ decision, February 14, 1990)

Plain-English summary

Consolidation Coal asked Judge Paul Merlin to certify his earlier order denying the operator’s motion to dismiss for interlocutory appeal. The judge explained that certification under 29 C.F.R. § 2700.74 is discretionary and reserved for exceptional cases. He found that the factual issues appeared relatively simple, limited discovery and stipulations could allow an efficient hearing, and an appeal would delay rather than materially advance final disposition. He also declined certification because allowing review of the regulatory questions could encourage many other non-final appeals and burden the Commission. The motion was denied, and the January 24, 1990 directives remained in effect.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.74
• Outcome: The motion to certify an interlocutory appeal was denied.
• Key point: Interlocutory review is discretionary, and certification is inappropriate when an appeal would create delay and piecemeal litigation without materially advancing final disposition.

Full text (FMSHRC public release)

CCASE:
CONSOLIDATION COAL V. SOL,
SOL V. CONSOLIDATION COAL
DDATE:
19900214
TTEXT:

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FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C.
February 14, 1990

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDINGS Contestant
Docket No. WEvA 89-234-R
v. Citation No. 3114001; 5/31/89

Docket No. WEVA 89-235-R
Citation No. 3114002; 5/31/89
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. WEVA 89-236-R ADMINISTRATION (MSHA), Citation No. 3114003; 5/31/89
Respondent
Docket No. WEVA 89-237-R
Citation No. 3114004; 5/31/89

Docket No. WEVA 89-238-R
Citation No. 3103921; 6/1/89

Docket No. WEVA 89-239-R
Citation No. 3103922; 6/1/89

Docket No. WEVA 89-240-R
Citation No. 3103923; 6/1/89

Docket No. WEVA 89-241-R
Citation No. 3103924; 6/1/89

Docket No. WEVA 89-242-R
Citation No. 3103925; 6/1/89

Docket No. WEVA 89-243-R
Citation No. 3103926; 6/1/89

Docket No. WEVA 89-244-R
Citation No. 3103927; 6/1/89

Docket No. WEVA 89-245-R
Citation No. 3103928; 6/1/89

Blacksville No. l Mine

Mine ID 46-01867

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SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Docket No. WEVA 90-3
Petitioner A. C. No. 46-01867 03815

v. Blacksville No. 1 Mine

CONSOLIDATION COAL COMPANY, Docket No. WEVA 90-8 Respondent A. C. No. 46-01318-03901

Robinson Run No. 95

ORDER DENYING CERTIFICATION

The operator now has filed a motion to certify for interlocutory appeal the questions decided in my order dated January 24, 1990, denying its motion to dismiss.

Interlocutory review, including certification of interlocutory rulings by an Administrative Law Judge, is governed by section 2700.74 of Commission regulations. 29 C.F.R. 2700.74. The regulations follow much of 29 U.S.C. 1292(b) which concerns interlocutory appeals in the Federal Courts. At th outset, it must be noted that both under the Commission regulations and the Federal statute interlocutory appeals are a matter of discretion and not of right. Only in exceptional cases are such appeals to be allowed. Kraus v. Board of County Road Commissioners, 364 F.2d 919 (6th Cir. 1966).

After a careful review of this matter, I conclude that certification of my prior rulings would not be appropriate. One of the standards by which allowance of interlocutory appeals is measured is the material advancement of final disposition. If this case proceeds along its normal course without an appeal, a lengthy and expensive hearing will not be required. On the contrary, the operator's reply brief filed on January 11, 1990, represents that the factual issues are relatively simple and perhaps not in dispute at all. (Operator's reply brief p. 15). Likewise, the Solicitor's opposition to the operator's present motion advises that limited discovery is possible and that thereafter the Secretary is amenable to factual stipulations. Accordingly, leaving this case on its present track should, with the cooperation of the parties, result in an expeditious final decision at the trial level. Cf. U.S. v. Bear Marine Services, 696 F.2d 1117 (5th Cir. 1983).

Conversely, ultimate disposition would not be accelerated by allowing an interlocutory appeal at this time. The Commission would have to familiarize itself with :he many pleadings and briefs already filed and passed upon by this Judge. Oral argument before the Commission would consume further time. And if

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the Commission agreed with my order denying the operator's motion to dismiss, the case would then be returned to me after a substantial delay. In other words, all the evils of piecemeal litigation would be realized.

Finally, many cases that come before this Commission and its Judges involve challenges to the validity of the Secretary of Labor's regulations. If the questions presented here were certified and accepted for interlocutory appeal, there would be no reason why a myriad of other such cases should not be similarly appealed. In no time the Commission would become bogged down in a vast array of non-final cases, resulting in a prolonged and attenuated adjudicatory process. The Commission should not be so burdened.

In light of the foregoing, the motion to certify is DENIED.

The directives in my order of January 24, 1990 remain in effect and I look forward to seeing counsel on March 13, 1990.

Paul Merlin
Chief Administrative Law Judge

Distribution:

Henry Chajet, Esq., G. Lindsay Simmons, Esq., Pamela S. Bacharach, Esq., Consolidation Coal Company, 919 Eighteenth Street, N.W., Suite 1000, Washington, D.C. 20006 (Certified Mail)

Walter J. Scheller, Esq., Consolidation Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

Page H. Jackson, Esq., Office of the Solicitor, U. S. Department of Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

Mr. Steven Solomon, UMWA, Box 370, Cassville, WV 26527 (Certified Mail)

Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, DC 20005 (Certified Mail)