Secretary of Labor v. R. J. McDonald, Inc.

Plain-English summary

A Commission judge denied two proposed settlements because the Secretary had not supplied enough supporting information, then certified those rulings for interlocutory review. The proposed changes would have removed significant-and-substantial and unwarrantable-failure designations from one citation, reduced its penalty from $2,314 to $1,107, and reduced a specially assessed $10,500 penalty on a training order to $4,377. The Commission unanimously declined immediate review, stressed that denial did not direct any particular next step, and remanded so the judge and parties could continue under the Mine Act and Commission procedure, including through a new settlement motion.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14101(a)(3) and 46.7(a)
• Outcome: Interlocutory review was denied and the proceeding was remanded to the judge.
• Key point: Commission interlocutory review is discretionary; declining it did not resolve the settlement merits or require a specific action by the judge or parties.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,                             :

MINE SAFETY AND HEALTH                    :

ADMINISTRATION (MSHA)                       :

:

v.                                                :         
Docket No. YORK 2017-136

:

R. J. MCDONALD, INC.                                 :

BEFORE: Althen, Acting Chairman; Jordan, Young, and
Cohen, Commissioners

ORDER

This case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). The matter is
before us upon the Judge’s July 10, 2018 certification of his April 30, 2018 decision
denying the Secretary’s motion to approve settlement and his May 11, 2018
decision denying the Secretary’s amended motion to approve settlement of one
citation and one order. [1]
See Commission Procedural Rule
76(a)(1)(i), 29 C.F.R. § 2700.76(a)(1)(i). The Judge denied the motions to
approve the settlement because he concluded that the Secretary had failed to
provide sufficient information to support the proposed settlement.

The citation alleges a “significant and substantial”
(S&S) violation of the standard at 30 C.F.R. § 56.14101(a)(3) and an
unwarrantable failure to comply. In the settlement motion, the Secretary
proposed removing both the S&S and unwarrantable failure designations and
reducing the proposed penalty from $2,314 to $1,107. The order alleges an
S&S violation of the standard at 30 C.F.R. § 46.7(a) that was attributable
to a high degree of negligence. The Secretary originally proposed a $10,500
penalty using his special assessment procedures. In the settlement motion, the
Secretary proposed reducing the penalty to $4,377 (using the regular penalty procedures
at 30 C.F.R. § 100).  

Procedural Rule 76 provides that “the Commission, by a
majority vote . . . may grant interlocutory review upon a determination that the
Judge’s interlocutory ruling involves a controlling question of law and that immediate
review may materially advance the final disposition of the proceeding.” 29
C.F.R. § 2700.76(a)(2). Rule 76 further provides that

“[i]nterlocutory review by the Commission shall not be
a matter of right but of the sound discretion of the Commission.” 29 C.F.R. §
2700.76(a).  

Upon consideration of the Judge’s July 10, 2018 order,
as well as his April 30 and May 11 decisions, we decline to exercise our right
of review and deny interlocutory review. Denial of interlocutory review does
not suggest or require any specific action by the Judge or parties in this
case. The Secretary may file a new settlement motion. Accordingly, the case is
hereby remanded to the Judge for further proceedings consistent with the Mine
Act, our procedural rules, and case law.

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1]
On June 7, 2018, the Secretary filed an
unopposed motion requesting that the Judge certify his decisions denying the
motions to approve settlement for interlocutory review by the Commission. On
July 10, 2018, the Judge certified his rulings for review.