Kevin Tustin (ALJ decision, September 5, 1991)

Plain-English summary

Kevin Tustin challenged the Secretary of Labor's proposed revocation of his certification to take respirable-dust samples. The related citations had been issued to Consolidation Coal Company for allegedly tampering with dust cassettes. Judge Paul Merlin held that, although Tustin's certification interests were entitled to due-process protection, the judge had no jurisdiction to hear an independent suit by the miner or grant him relief. The judge dismissed both groups of contest proceedings and noted that Tustin could consider joining the operator's contests.

Decision snapshot

• Governing authority: 30 U.S.C. § 818(d)
• Outcome: The contest proceedings were dismissed.
• Key point: The ALJ held that a certified miner could not pursue an independent action in these proceedings, although he could consider becoming a party in the operator's contests.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

September 5, 1991

KEVIN TUSTIN, : CONTEST PROCEEDINGS
Contestant : .
: Docket No. WEVA 91-1436-R
v. : through WEVA 91-1447-R
:
: Citation No. 9861681; 4/4/91
SECRETARY OF LABOR, through 9861692; 4/4/91
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA), : Docket No. WEVA 91-1448-R
Respondent : through WEVA 91-1493-R
:
: Citation No. 9861694; 4/4/91 through 9861739; 4/4/91
Consolidation Coal Company
Blacksville No. 2 Mine
Mine ID 46-01968
DECISION
Before: Judge Merlin
These cases are notices of contest filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 818(d), seeking to challenge the Secretary's proposed revoca- tion of contestant's status as a person certified by the Secre- tary of Labor to take respirable dust samples. Each notice of contest relates to a citation issued by the Secretary to con- testant's operator, Consolidation Coal Company, for allegedly tampering with a dust cassette. The Secretary has filed a motion to dismiss and contestant has submitted a memorandum in opposition.
On September 4, 1991, I held in Roberts v. Secretary Docket No. KENT 91-896-R, that an individual such as contestant has rights arising from his certification which are entitled to due process protections. However, I further held that I had no jurisdiction to entertain an independent suit by such a miner or to grant him relief. The issues in Roberts are the same as those presented here and therefore, that decision is dispositive of this matter.
As contestant's memorandum points out, the operator here, unlike the operator in Roberts, has filed notices of contest challenging the citations issued to it. Contestant may wish to consider the possibility of becoming a party in the operator's suits. (See Footnote 1, page 3 of the Roberts decision.)

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Page 2

In light of the foregoing, it is ORDERED that these cases be and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston National Plaza, P. O. Box 3394, Charleston, WV 25333-3394 (Certified Mail) James B. Crawford, Esq., Office of the Solicitor, U. S. Depart- ment of Labor, 4015 Wilson Boulevard, Arlington, VA (Certified Mail)

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