**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIA AVE.,N.W., SUITE 1400

WASHINGTON, DC20004-1710

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

 

 
| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                 Petitioner

 

                        v.

 

GREENBRIER  MINERALS, LLC,

                 Respondent                                                               |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket  No. WEVA 2021-0294

    A.C.  No. 46-09563-532369

 

 

 

    Mine:  Eagle No. 1 Mine          |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**ORDER CERTIFYING CASE FORINTERLOCUTORY REVIEW**

 

Before:  JudgeYoung

 

Thiscase is before me on a Petition for the Assessment of Civil Penalty undersection 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),30 U.S.C. § 815(d). I denied a motion to approve settlement of this docket, andfour similarly situated proceedings.[1] The Secretaryseeks interlocutory review of all five proceedings,[2]pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76.

 

Iagree with the Secretary that this interlocutory ruling involves a controllingquestion of law, and that immediate review will materially advance the finaldisposition of this proceeding and the other four similar cases. I certify forreview this question: Whether the Secretary has unreviewable discretion tovacate a contested citation without the Commission’s approval.

 

Thisdocket includes six citations issued pursuant to Section 104(a) of the MineAct. On August 5, 2021, the Secretary submitted a motion to approve settlement.The motion proposed vacating two citations, leaving the remaining four citationsundisturbed and reducing the total penalty from $1,960.00 to $1,213.00. *See*S. Mot. to Approve Settlement at 2 (Aug. 5, 2021). In support of thesemodifications, the Secretary offered only the following:

 

The Secretary has determined thatthis violation should be vacated in an exercise of his prosecutorial discretionrecognized by the Commission in *RBK Construction, Inc.*, 15 FMSHRC 2099(October 1993).

 

*Id.* at 3.[3]

 

            Idenied approval of the settlement—specifying that the asserted unreviewablediscretion is contrary to the Mine Act’s requirement that the Commissionapprove all settlements, as these vacaturs were proposed within a motion toapprove settlement. *See* Unpublished Order at 1 (Sept. 30, 2021) (“Order”).[4]The Order, however, provided possible resolution—either a certificationor a detailed explanation—rather than Commission review. *See id.* at 3.[5]

 

Ina phone conference on October 14, 2021, regarding a similarly situateddocket—YORK 2021-0023—the Solicitor maintained her reliance on the Secretary’sasserted authority to vacate citations without the approval of a CommissionJudge, even when done as part of a settlement proposal.[6]Parties agreed that interlocutory review was an appropriate means of resolution,and the undersigned agreed to grant certification. *See* Stay Order at 2.

 

            Section110(k) of the Mine Act provides, “No proposed penalty which has been contestedbefore the Commission under section 105(a) shall be compromised, mitigated, orsettled except with the approval of the Commission.” 30 U.S.C. § 820(k). Thestandard for Commission evaluation is whether the proposed settlement is “fair,reasonable, appropriate under the facts, and protects the public interest.” *Am.Coal Co.*, 40 FMSHRC 983, 987 (Aug. 2018).

 

Toeffectively apply this standard, Commission Judges must have “sufficientinformation” upon which to base this evaluation. *Id.* (quoting *BlackBeauty Coal Co.*, 34 FMSHRC 1856, 1862 (Aug. 2012)); *see also* 29C.F.R. § 2700.31(g) (“Any order by the Judge approving a settlement shall setforth the reasons for approval and shall be supported by the record.”).

 

            TheSecretary here has chosen not to provide information supporting the vacatur ofcontested citations within a motion to approve settlement, instead invoking unreviewablediscretion to vacate citations under *RBK Construction, Inc.**See* 15FMSHRC 2099, 2101 (Oct. 1993) (“*RBK*”). In the Order, I held that *RBK*does not control the resolution of this issue. I found that *RBK*’s reasoningand provenance distinguish that case from the case at bar.

 

             First,*RBK* recognizes that Section 110(k) of the Mine Act “only applies tosettlements of penalties, not to vacations of citations and orders.” *Id.*Here, the Secretary vacated citations within a motion to approve settlement, leavingothers undisturbed. *See* Order at 1, 3 (noting the suggestion of a *quidpro quo*—vacating relatively large penalties in return for agreement to paythose remaining).

 

            Second,the Supreme Court decision upon which *RBK* is grounded reinforces therequirement for Commission review by contrast to the Occupational Safety andHealth Act (“OSHA”). *See Cuyahoga Valley Ry. Co. v. United Transp. Union*,474 U.S. 3, 6–7 (1985) (holding that the Secretary had unlimited discretion tovacate citations under OSHA and requiring no settlement approval by OSHRC). Indirect contrast to OSHA, the Mine Act *expressly requires* Commissionapproval for settlement of contested citations. *See* Order at 2(describing OSHA language granting sole discretion to the Secretary where theMine Act does not, rendering the *Cuyahoga Valley Railway Co.* decisionirrelevant to FMSHRC settlements).

 

Becausethe Secretary declined an offer to certify or explain his decision to vacatethe settlement as either independent of the disposition of the other citationsor as a justifiable compromise, I have considered his vacatur as part of asettlement, rendering *RBK* inapplicable.[7]I also acknowledge the Secretary’s prosecutorial discretion in two priorinstances—the authorized representative’s decision to cite the violation, andthe Secretary’s decision to petition for penalty. Each citation in this dockethas now, therefore, been contested before the Commission and requires approvalfor settlement. *See* Order at 2–3.

            UnderCommission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that thisinterlocutory ruling involves a controlling question of law—whether theSecretary has unreviewable discretion to vacate a contested citation withoutthe Commission’s approval—and that immediate review will materially advance thefinal disposition of the proceeding.

 

            Thisinterlocutory ruling is hereby **CERTIFIED**.

 

 

 

 

/s/Michael G. Young

Michael G. Young 

Administrative Law Judge

 

 

 

Distribution(by email):

 

Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’tof Labor, gilewicz.alexandra.j@dol.gov

 

Emily Toler Scott, Office of the Solicitor, U.S. Dep’t ofLabor, scott.emily.t@dol.gov

 

Lorna M. Waddell, Counsel forRespondent, Dinsmore & Shohl LLP, lorna.waddell@dinsmore.com

 

 

 

Attachments:

 

AppendixA: Order Denying Motion to Approve Settlement, Docket No. WEVA 2021-0294 (Sept.30, 2021)

 

AppendixB: Order Staying Proceedings, Docket No. WEVA 2021-0294 (Oct. 19, 2021)

----

[1] The others are DocketNos. YORK 2021-0023, LAKE 2021-0145, SE 2021-0134, and SE 2021-0112, all ofwhich were similarly stayed pending certification. *See* Unpublished Orderat 1 n.1 (Oct. 19, 2021) (“Stay Order”).

[2]I deferredto the Secretary which case to submit for interlocutory review. *See* StayOrder at 2 n.2. I suggested that it was not necessary to certify all fivecases. The Secretary has elected to petition for review of all of them. Theother four will be certified in separate orders. I infer from his choice thatthere may be distinctions in one or more of the other cases that the Secretarywishes to bring to the attention of the Commission.

[3] This identicallanguage, provided as the only explanation for vacatur, was used for bothcitations in paragraphs 6(A) and 6(B) to “assist the Commission in evaluatingwhether the proposed penalty reductions are fair, reasonable, adequate underthe facts, and in the public interest.” S. Mot. at 2–3.

[4] The Order, andthe Stay Order, are attached as Appendices “A” and “B” and incorporated in thisorder by reference. 

[5] The same offer was provided beforethe Secretary’s request that the undersigned reduce the denial to a formalorder. *See* E-mail from Kirsten Brown, Attorney Advisor to AdministrativeLaw Judge Michael G. Young, to MSHA Conference and Litigation RepresentativeDonald R. Hayhurst, Jr. (Aug. 26, 2021, 7:29 PM EDT).

[6] The Solicitorasserted the authority for all associated dockets, including this one. *Seesupra* note 1.

[7] I recognize thatthe Secretary may have decided to challenge my decision on principle, even ifhe had sought to vacate the penalty on independent grounds. Nothing in thisorder prejudices the Secretary’s ability to certify that he decided to vacatepenalties in any of the affected dockets for reasons independent of thesettlement, should the Commission affirm my order.