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

November 19, 2021

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, pursuant to Commission 

Procedural Rule 76, 29 C.F.R. § 2700.76.

This docket includes two citations issued pursuant to Section 104(a) of the Mine Act. On 

October 6, 2021, the Secretary submitted a motion to dismiss civil penalty proceeding. The 

motion proposed vacating one citation, while leaving the other undisturbed and reducing the total 

penalty from $250.00 to $125.00. See S. Mot. to Dismiss Civ. Penalty Proc. at 1 (Oct. 6, 2021). 

Because the motion appears to vacate one contested citation in return for agreement to pay the 

other, I treat it as a motion to approve settlement.

The question certified for review and my position have been clearly expressed in the 

Order Certifying Case for Interlocutory Review for Docket No. WEVA 2021-0294 (Appendix 

C). As in each associated docket, the Secretary chose not to provide information supporting the 

vacatur of the contested citations or certify that vacatur was not contingent upon resolution of the 

remaining citations. Instead, he invoked unreviewable discretion under RBK Construction, Inc.2 

1 The others are Docket Nos. WEVA 2021-0294, YORK 2021-0023, 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 See Unpublished Order at 1 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) (Appendix B).

2 “In an exercise of his prosecutorial discretion as previously recognized by the Federal Mine 

Safety and Health Review Commission in RBK Construction, 15 FMSHRC 2099 (October 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

RIVER CITY STONE-DIV/MATHY

 CONSTRUCTION CO,

 Respondent

 CIVIL PENALTY PROCEEDING

 Docket No. LAKE 2021-0145

 A.C. No. 47-03196-534597

 Mine: Plant #53
2 

See 15 FMSHRC 2099, 2101 (Oct. 1993) (“RBK”). I found that RBK does not control the 

resolution of this issue, and that the citations proposed to be vacated have been contested before 

the Commission and are subject to my approval. See Unpublished Order at 3 (Oct. 8, 2021) 

(Appendix A).

 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.

 For the reasons stated herein, and in my order certifying interlocutory review in WEVA 

2021-0294, this interlocutory ruling is hereby CERTIFIED. 

Michael G. Young 

Administrative Law Judge

Distribution (by email):

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

Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor, 

Gilewicz.Alexandra.J@dol.gov 

Joshua Schultz, Esq., Law Office of Adele L. Abrams, P.C., jschultz@aabramslaw.com 

Attachments:

Appendix A: Order Denying Motion to Approve Settlement, Docket No. LAKE 2021-0145 

(Oct. 8, 2021) 

Appendix B: Order Staying Proceedings, Docket No. LAKE 2021-0145 (Oct. 19, 2021)

Appendix C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294 

(November 19, 2021) 

1993), the Secretary has decided to vacate Section 104(a) Citation 9482296.” S. Mot. at 1.