FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

May 11, 2023

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

AND STRIKING MATERIAL FROM MOTION

On April 25, 2023, a Commission ALJ issued an order noting with disapproval the 

Secretary’s ongoing citation to Mechanicsville Concrete, Inc., 18 FMSHRC 877, 880, 882 (June 

1996), as authority for her removal of the significant and substantial designations from citations 

during the settlement process. See Decision Approving Settlement with Significant 

Reservations, Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”). 

Commission judges have routinely observed that Mechanicsville, and the also oft-cited American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise 

for which they have been cited.1

In this instance, though, the Judge correctly pointed out that parties have a duty not to 

misstate case law and that such misconduct has been affirmed as sanctionable under Rule 11 of 

the Federal Rules of Civil Procedure. See Reservations at 6 (citing Teamsters Local No. 579 v. B

& M Transit, Inc., 882 F.2d 274, 280 (7th Cir. 1989)). 

Following this, I issued an order on May 3 denying a motion to approve settlement, in 

which I said that the continued citation to these cases as authority for the removal of S&S 

designations falls below the minimum standards of practice before the Commission. See Order 

Accepting Appearance and Denying Motion to Approve Settlement, Docket No. WEVA 2023-

0071, at 7 (May 3, 2023) (ALJ). I said that a conference and litigation representative who 

submitted a motion with such citations would be barred from practice before me. Id.

1 See Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order 

Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ); Order Denying 

Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ).

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

CONSOL MINING COMPANY LLC,

 Respondent 

 CIVIL PENALTY PROCEEDING

 Docket No. WEVA 2023-0141 

 A.C. No. 46-09569-568207 

 Mine: Itmann No. 5
I also said that there might be other consequences. I noted that an attorney should know 

better, and that such misstatements of the law by an attorney would be even more egregious. Id.

at 7 n.5. The supervising attorney for the Labor Department’s CLR’s was included in the 

distribution for the order.

On May 9, the Secretary filed with the Commission a Motion to Approve Partial 

Settlement, which again included the offending citations to Mechanicsville and American 

Aggregates. See S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 3

(May 9, 2023). Not only is the recitation of these cases obviously inappropriate; it is 

impertinent. To my knowledge, no Commission judge has agreed with this mischaracterization 

of the law, and I have approved dozens of S&S removals without ever considering either case as 

authority for the removal. Rather than adhering to the clearly-expressed expectations of the 

Commission’s judges, the Secretary has continued to recite this non-sequitur any time an S&S 

designation is proposed for removal in a settlement.

An attorney for a government agency who misstates the law arrogates the properly 

conferred constitutional authority of others to determine what the law is. Like bridge scour, this 

subtle corrosion wears on the foundation of the rule of law and threatens the integrity of a 

structure upon which the public depends.

While the full array of sanctions under Rule 11 may not be available as a corrective, I 

have made clear that misleading use of precedent fails to meet the minimum standards of 

practice before the Commission. Its redress begins with a refusal to accept the unacceptable. By 

this order, I therefore STRIKE the reference to the cited cases and the assertions they 

purportedly support.

2

Striking material, and even professional sanctions, are appropriate responses to bad faith 

employment of case law. See Collar v. Abalux, Inc., 806 Fed. Appx. 860, 864 (11th Cir. 2020) 

(affirming sanctions where an attorney continually misstated the import of case law); KamdemOuaffo v. Huczko, 810 Fed. Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting that 

impertinent analysis of law is “plainly vulnerable to [] remedial strike”). Striking the impertinent 

matter from the motion is the least severe sanction I could impose in these circumstances. As 

with the Mine Act, those who persist in the discredited and misleading use of precedent should 

reasonably anticipate that their conduct will be deemed knowing or intentional and will be 

addressed with progressive severity until the practice is discontinued.

The motion to approve settlement is DENIED without reaching the merits. This denial 

will be reconsidered if the parties refile the motion without the noted language, see supra note 2. 

The parties should anticipate that the matters addressed by the motion will be resolved at hearing 

2 The language to be stricken from the motion reads: “Taking into account the uncertainty of the 

outcome of these issues at trial, the Secretary has decided to exercise her discretion to modify the 

gravity to unlikely and not S&S as recognized in Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996)).” Mot. at 3.
unless and until a motion that meets the standards of practice before the Commission has been 

filed.

 Michael G. Young

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov 

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov 

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com 

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com