**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

                        v.

 

CONSOL  MINING COMPANY LLC                                             | :

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Docket  No. WEVA 2023-0141

 

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BEFORE:  Jordan,Chair; Althen, Rajkovich, and Baker, Commissioners

**DECISION**

 

BY THE COMMISSION:

This proceeding arises under the FederalMine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”).On July 27, 2023, the Commission granted interlocutory review pursuant to CommissionProcedural Rule 76, 29 C.F.R. § 2700.76, to consider *inter alia*whether theJudge assigned to this matter abused his discretion when he struck an argumentand related caselaw citations from the Secretary’s motion to approve settlement.

 

For the reasons which follow, we concludethat the Judge acted upon an improper understanding of his authority under theMine Act and the Commission’s Procedural Rules and, therefore, abused hisdiscretion. 

**I.              ****Factualand Procedural Background**

 

This case concerns citations issued by aninspector from the Department of Labor’s Mine Safety and Health Administration(“MSHA”) to Consol Mining Company pursuant to section 104(a) of the Mine Act,30 U.S.C. § 814(a). The citations allege violations of mandatory safetystandards. The settlement motion reflects Consol’s agreement to pay civilpenalties in exchange for the Secretary of Labor’s agreement to modify severalcitations, including the removal of a significant and substantial (“S&S”)designation in one citation. The “significant and substantial” terminology istaken from section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), whichdistinguished as more serious in nature any violation that “could significantlyand substantially contribute to the cause and effect of a . . . mine safety orhealth hazard.”

 

In the subject motion to approvesettlement, the Secretary claimed that she has the unilateral authority tomodify citations contested before the Commission, citing *American*

*Aggregatesof Michigan, Inc*.,42 FMSHRC 570 (Aug. 2020) and *Mechanicsville Concrete, Inc*., 18 FMSHRC877 (June 1996). The Judge believed that the Secretary’s legal argument directlyconflicts with the language of section 110(k) of the Mine Act, 30 U.S.C. §820(k), which allocates authority to the Commission to review proposed penaltysettlements between the Secretary and mine operators.[1]The Judge found that the Commission decisionscited by the Secretary in support of her alleged authority “cannot support thepremise for which they have been cited.” Order at 1 (May 11, 2023) (citationsomitted). Accordingly, the Judge denied the motion without reviewing thesettlement agreement and, as a sanction, ordered that the offending argumentand citations be struck from the Secretary’s motion. *Id.* at 2 n.2. Specifically, the Judge struck the following passagefrom the Secretary’s motion: 

 

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)).

 

*Id*.[2]

 

On July 7, 2023, the Judge certified tothe Commission for interlocutory review the question of his authority to strikematerial from the record, stating that the “question [is] impedingconsideration of the motion to approve settlement.” Order at 1 (July 7, 2023). 

 

**II.           ****Disposition**

 

            Weconclude that the Judge abused his discretion when he struck the Secretary’s argumentand citations to *American Aggregates* and *Mechanicsville Concrete*fromthe record. The Judge lacks authority to impose such sanctions.

 

In making anargument and filing a motion, a representative of the Secretary must certifypursuant to Commission Procedural Rule 6(b)(2), that it “is warranted byexisting law or a good faith argument for extension, modification, or reversalof existing law.” 29 C.F.R. 

§2700.6(b)(2). We find that neither the presentation of the argument nor theSecretary’s citation to Commission caselaw violates the requirements ofProcedural Rule 6.[3]

Further, by disallowing the Secretary frompresenting certain arguments or citing particular cases, the Judge’s orderimproperly prevented the Secretary from preserving issues on appeal. The MineAct generally limits the Commission’s jurisdiction to questions that were firstreviewed by the Judge. *See* 30 U.S.C. § 823(d)(2). The Secretary mustcite to cases and make arguments that she believes are meritorious, even if theJudge does not agree, if she desires to preserve them for consideration beforethe Commission or federal courts. *See Midwest Minerals, Inc.*, 12 FMSHRC1375, 1378 (July 1990) (stating that matters not raised before the Judge andinstead set forth for the first time on review “cannot be considered by theCommission.”) (citations omitted). In short, if a Judge “strikes” an argument(and the cases that argument relies upon), the Secretary may find it impossibleto receive review regarding that argument later.

 

We understand a Judge may becomefrustrated with the repetitive recitation of arguments and citations the Judgedoes not find relevant. Pending resolution of the underlying issue, however, theSecretary does not act in bad faith in continuing to present the argument or inciting Commission cases in an attempt to support her argument. 

 

Even if a Judge believes that a partyrepresentative has failed to “conform to the standards of ethical conductrequired of practitioners in the courts of the United States,” the propercourse of action is not to strike arguments or case citations but instead torefer the practitioner to the Commission in writing. 29 C.F.R. § 2700.80. Here,the Judge did not submit a written referral to the Commisison and, accordingly,we findit unnecessary to consider any disciplinary proceedings against the Secretary’srepresentative in this instance. 

 

We conclude that the Judge relied upon animproper understanding of his authority under the Mine Act and the Commission’sProcedural Rules and abused his discretion. *See Sec’y of Labor on behalf ofShemwell v. Armstrong Coal Co.*, 36 FMSHRC 1097, 1101 (May 2014) (statingthat a Judge abuses his discretion when he issues a decision based upon animproper understanding of the law). 

 

In so finding, we *do not* addressthe merits of the Secretary’s own claim of authority. The Commission willaddress whether the Secretary has unreviewable discretion to remove an S&Sdesignation from a contested citation without the Commission’s approval in one ofthe aforementioned pending cases in which the issue arises. 

 

 

            Inthe interim, the Judge retains jurisdiction over this captioned proceeding. Heshould now consider whether the proposed settlement in the motion to approvesettlement“isfair, reasonable, appropriate under the facts, and protects the publicinterest” as required by the Commission in *American Coal Co*., 38 FMSHRC1972, 1976 (Aug. 2016). 

 

 

 

/s/ Mary Lu Jordan

MaryLu Jordan, Chair

 

 

 

/s/William I. Althen

WilliamI. Althen, Commissioner

 

 

 

/s/Marco M. Rajkovich, Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

Distribution:

 

Emily Toler Scott,Esq.

Counsel forAppellate Litigation

U.S. Department ofLabor

Office of theSolicitor

Division of MineSafety & Health

201 12th StreetSouth, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

Robert S. Wilson

Office of theSolicitor

U.S. Department ofLabor, MSHA

201 12thStreet, Suite 401

Arlington, VA 22202

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

 

Jame McHugh, Esq. 

Hardy Pence LLC

10 Hale Street, 4thFloor

P.O. Box 2548

Charleston,WV 25329

jmchugh@hardypence.com

 

CraigAaron

CONSOLEnergy Inc.

275 TechnolgyDrive, Suite 101

Canonsburg, PA  15317

craigaaron@consolenergy.com

 

Michael G. Young,

Administrative LawJudge

Federal MineSafety and Health Review Commission

Office of theChief Administrative Law Judge

1331 PennsylvaniaAve, NW, Suite 520N

Washington, DC  20004

myoung@fmshrc.gov

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[1] In pertinentpart, 30 U.S.C. § 820(k) provides, “[n]o proposed penalty which has been

contestedbefore the Commission under section 815(a) of this title shall be compromised,

mitigated,or settled except with the approval of the Commission.”

 

[2] The Judge hadpreviously ordered the Secretary to cease citing the aforementioned cases asauthority to remove a S&S designation. Order at 1 (May 11, 2023) (“aconference and litigation representative who submitted a motion with suchcitations would be barred from practice before me.”) (citation omitted). 

 

[3]In coming tothis conclusion, we rely on the Commission’s prior grant of interlocutoryreview of the *identical issue* in multiple separate proceedings, whichare currently pending on the Commission’s docket. *See e.g., Knight HawkCoal, LLC,* LAKE 2021-0160 (Apr. 2022); *Greenbrier Minerals, LLC*, 44FMSHRC 706 (Dec. 2022) (“whether the Secretary has unreviewable discretion to removean S&S designation from a contested citation without the Commission’sapproval under section 110(k) of the Mine Act, 30 U.S.C. § 820(k).”) (footnoteomitted); *Bluestone Oil Corp*., 44 FMSHRC 709 (Dec. 2022); *RulonHarper Constr., Inc*., 44 FMSHRC 717 & n.1 (Dec. 2022).