**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

Office of the Chief AdministrativeLaw Judge

721 19th Street, Suite443

Denver, CO 80202-2536

303-844-3577 FAX303-844-5268

 

 

**ORDER DENYINGGRIMES ROCK’S REQUEST FOR STAY**

 

Thesecases are before me upon a notice of contest filed by Grimes Rock, Inc.(“Grimes Rock”) and petitions for assessment of civil penalty filed by theSecretary of Labor (the “Secretary”), acting through the Mine Safety and HealthAdministration (“MSHA”), against Grimes Rock pursuant to sections 105 and 110of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820(the “Mine Act”).

 

OnNovember 29, 2023, I lifted the stay in these matters and ordered the partiesto confer regarding the possibility of settlement and, if settlement did notappear feasible, a timetable for submitting briefs or motions for summarydecision. In response to that order, the Secretary notified the court that theparties were responding to written discovery and would confer with each otherfollowing that discovery to consider how to proceed in these cases. On December13, I ordered the parties complete discovery as soon as possible and provide astatus update to the court by January 31. On January 31 Grimes Rock submitted aRequest for Stay.[1]The Secretary opposed a stay in these cases. For reasons set forth below, GrimesRock’s request is **DENIED**.

 

            Thecontest docket and two penalty dockets at issue in these proceedings involvetwo 104(a) citations and one 104(b) order that arise from Grimes Rock’s allegedfailure to comply with orders issued by former Commission Judge Miller in thetemporary reinstatement proceeding of Sec’y of Labor on behalf of Saldivar v.Grimes Rock Inc. in docket number WEST 2021-0178-DM (hereinafter “Saldivartemporary reinstatement proceeding” or “Saldivar case”). Citation No. 9619114,issued under section 104(a) on August 15, 2022, alleges a violation of section105(c) of the Mine Act because Grimes Rock failed to comply with Judge Miller’sMay 28, 2021 Order of Temporary Economic Reinstatement and June 17, 2022 OrderGranting the Secretary’s Motion to Enforce. Order No. 9619115, issued undersection 104(b) on August 21, 2022, alleges that Grimes Rock continued to failto comply with Judge Miller’s orders by not making certain required payments. Finally,Citation No. 9619116, issued on August 22, 2022, under section 104(a), allegesthat Grimes Rock violated section 104(b) when it continued to conduct workactivities at the mine site despite not complying with Order No. 9619115. 

 

OnNovember 28, 2023, the Commission issued a decision in the Saldivar temporaryreinstatement proceeding. 45 FMSHRC ___; 2023 WL 8714341 (Nov. 28, 2023).[2] On December 26, 2023,Grimes Rock appealed the Commission’s decision to the Court of Appeals for NinthCircuit (“Ninth Circuit”) in Case No. 23-4418. 

 

GrimesRock raises two primary points in its Request for Stay. First, Grimes Rockargues that this court lacks jurisdiction in these matters because of itsappeal of the Commission’s decision in the Saldivar temporary reinstatementproceeding. Presently the Ninth Circuit has exclusive jurisdiction over the Saldivarcase. Grimes Rock asserts that because the citations and order at issue inthese proceedings are entirely dependent on the questions before the NinthCircuit in the Saldivar case, the Ninth Circuit also has exclusive jurisdictionover these proceedings. As a result, this court “would and should . . . haveauthority to hear this matter” only after the Ninth Circuit rules on the issuesbefore it in the Saldivar temporary reinstatement proceeding appeal. GrimesRock Request for Stay 8. 

 

Second,Grimes Rock argues that, even if this court concludes it has jurisdiction, the courtshould exercise its discretion to stay these cases until the Ninth Circuit issuesits decision on the petition for review in the Saldivar temporary reinstatementproceeding. It asserts that the Ninth Circuit could conclude that the temporaryreinstatement order was invalid, that the tolling motions Grimes Rock filed withthe Commission in that case should have been granted, or that other errors weremade in that proceeding that would invalidate Judge Miller’s orders that formedthe bases of the citations and order in the present proceedings. Grimes Rock alsostates that because the judge dismissed Saldivar’s underlying discriminationcase on June 17, 2022 (WEST 2021-0265-DM) which terminated the temporaryreinstatement order well before MSHA issued the citations and order in disputehere, it is not clear what authority the Secretary was proceeding under whenissuing them. Grimes Rock also questions the Secretary’s authority to shut downthe mine absent any “health” or “safety” concerns when she issued the section104(b) order. Finally, Grimes Rock asserts that these cases should be stayedfor the same reasons cited by this court in earlier orders staying these caseswhile the temporary reinstatement case was on appeal to the Commission. Forthese reasons, it maintains that this court should stay these cases until theNinth Circuit has been given the opportunity to sort out these issues. 

 

            TheSecretary argues that a stay of these matters is not appropriate because thetemporary reinstatement order that Grimes Rock appealed to the Ninth Circuithas no legal relevance to these proceedings. At the time the Secretary took theenforcement actions at issue in these proceedings, the temporary reinstatementorder was not stayed and Grimes Rock was obliged to comply with that order evenwhile its appeal was pending before the Commission. In failing to comply withthe unstayed order, Grimes Rock violated the Mine Act, regardless of whether itbelieved that order was incorrectly issued. 

 

I findthat this court presently has jurisdiction over the above captionedproceedings. 

These docketswere assigned to me on January 13, 2023. There is no question that thesedockets are related to the Saldivar temporary reinstatement proceedingpresently on appeal to the Ninth Circuit. However, these dockets are *not*the same as the Saldivar temporary reinstatement proceeding, do not include thesame issues as the Saldivar case, and were not included in Grimes Rock’s appealto the Ninth Circuit. 

 

Section106(a)(1) of the Mine Act states, in pertinent part, as follows:

 

Anyperson adversely affected or aggrieved by an order of the Commission issuedunder this Act may obtain a review of such order in any United States court ofappeals for the circuit in which the violation is alleged to have occurred . .. by filing . . . a written petition praying that the order be modified or setaside. . . . Upon such filing, the court shall have exclusive jurisdiction ofthe proceeding and of the questions determined therein[.]

 

30U.S.C. § 816(a)(1). Although there are issues in the Saldivar temporaryreinstatement proceeding[3]that relate to these proceedings, the questions that will be determined inthese proceedings are not the same and, accordingly, are not subject to theexclusive jurisdiction of the Ninth Circuit.[4] 

 

Whenthe Commission issued its November 28, 2023, decision in the Saldivar temporaryreinstatement proceeding, its findings became the law of the Commission withrespect to that proceeding. At no time prior to its decision in the Saldivarcase did the Commission stay Judge Miller’s order of temporary economic reinstatementor stay Judge Miller’s order enforcing that order, while the matters were pendingbefore them.[5]Commission Procedural Rule 45 makes clear that the filing of a petition forreview of a temporary reinstatement order “shall not stay the effect of theJudge’s order unless the Commission so directs[.]” 29 C.F.R. § 2700.45(f). Iagree with the Secretary that because the orders pending before the Commission werenot stayed at the time the Secretary took the enforcement actions at issue inthese proceedings, Grimes Rock was obligated to comply with those orders, evenif it believed that the orders were incorrect. *See Coleman v. Tollefson*,575 U.S. 532, 539, (2015); *see also Chapman v. Pac. Tel. & Tel. Co.*,613 F.2d 193, 197 (9th Cir. 1979). 

 

Moreover,Commission case law makes clear that “[a] decision issued by . . .[the]Commission is binding on the parties unless and until stayed or overturned by areviewing court of appeals.” *Maben Energy Corporation*, 3 FMSHRC 2776,2777 (Dec. 1981) (citing 30 U.S.C. § 816(c). The Commission’s decision in theSaldivar case has not been stayed or overturned by the Ninth Circuit. Absentany direction from the Commission or the Ninth Circuit that the Commission’sdecision and order in the Saldivar temporary reinstatement proceeding has beenstayed or otherwise modified, I must treat it as the law of the Commission. 

 

Grimes Rock cites the decision of aCommission ALJ, *Monongalia County Coal Co.*, 41 FMSHRC 631 (Sept. 2019)(ALJ), and the dissent in a Commission decision, *Mach Mining, LLC*, 33FMSHRC 1100 (May 2011), for the general proposition that the above captioned casesshould be stayed due to their connection to the Saldivar temporaryreinstatement proceeding on appeal to the Ninth Circuit. However, Grimes Rock’sreliance is misplaced. Both of the cited cases involved stays requested whileother Commission proceedings played out. Here, the Commission has alreadyspoken on some issues in the Saldivar temporary reinstatement proceeding and remandedother issues back to this court.

 

Although GrimesRock argues these cases should be stayed for the same reasons articulated bythis court during the previous stay while the Saldivar case was pending beforethe Commission, I disagree. The Commission is the final authority on issuesthat come before the agency and its rulings are the law of the Commissionunless and until overturned or modified by a reviewing court of appeals. Priorto the Commission’s decision in the Saldivar case, there was no law of theCommission on the issues raised in that case that could have affected theissues in the present cases. Now that the Commission has issued its decision, thereis Commission law on those issues and I will proceed in these related casesunless otherwise directed.

 

 

 

 

For theabove reasons, the I find that I retrain jurisdiction over these matters andthat Grimes Rock’s Request for Stay must be **DENIED**. 

 

 

 

 

                                                                        /s/Richard W. Manning

Richard W. Manning

Administrative Law Judge

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Distribution(Via First Class Mail and email)

 

KennethH. Moss, Esq., Mark R. Pachowicz, Esq., and Tina Amoke, Pachowicz |Goldenring,6050 Seahawk Street, Ventura, CA 93003 (ken@pglaw.lawmark@pglaw.lawtina@pglaw.law) 

 

AlexandraJ. Gilewicz, Esq., and Susannah M. Maltz, Esq., Office of the Solicitor, MSHA,U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington, VA 22202

(gilewicz.alexandra.j@dol.govmaltz.susannah.m@dol.gov)

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[1] Grimes Rock’sfiling was captioned as “Respondent Grimes Rock, Incorporated’s Status Reportand Request for Stay Pending the United States Court of Appeal for the NinthCircuit’s Ruling on Respondent’s Petition for Review of Commission’s DecisionDated November 28, 2023 in the Related Saldivar Case.” For purposes of this order,I refer to the filing as the “Request for Stay.”

[2] On January 4, 2024,the Commission remanded the Saldivar temporary reinstatement proceeding to thiscourt. On February 6, 2024, I stayed that matter until further notice. 

[3] The NinthCircuit’s exclusive jurisdiction over the Saldivar temporary reinstatementproceeding began when Grimes Rock filed its December 26, 2023 appeal of theCommission’s decision in WEST 2021-0178-DM.

 

[4]Here,as mentioned in my Order Granting the Secretary’s Motion to Limit Discovery,the issue is whether the Secretary can establish the three alleged violationsby a preponderance of the evidence. 

[5] On August 30, 2022,a unanimous Commission denied Grimes Rock’s request to stay Judge Miller’s June17, 2022 order enforcing the parties settlement agreement for temporaryeconomic reinstatement. 44 FMSHRC 725 (Aug. 2022). In denying Grimes Rock’srequest for a stay the Commission made clear that the complainant’s “failure tosucceed in his discrimination case does not invalidate his previous award fortemporary reinstatement[.]” *Id*. at 730.