1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004

May 15, 2023

DAVID A. ROSE FARM & AG SERVICES, : CONTEST PROCEEDINGS

Contestant, :

: Docket No. SE 2023-0159-RM

: Order No. 9707523; 04/26/2023

 v.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent.

:

: Docket No. SE 2023-0160-RM

: Citation No. 9707524; 04/26/2023

: 

: Docket No. SE 2023-0161-RM

: Citation No. 9707525; 04/26/2023

: 

: Docket No. SE 2023-0162-RM

: Citation No. 9707526; 04/26/2023

: 

: Ortona Mine

: Mine ID 08-01452

GARCIA MINING, LLC, : CONTEST PROCEEDINGS

Contestant, :

: Docket No. SE 2023-0165-RM

: Citation No. 9707527; 04/26/2023

 v.

 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent.

:

: Docket No. SE 2023-0166-RM

: Citation No. 9707528; 04/26/2023

: 

: Docket No. SE 2023-0167-RM

: Citation No. 9707529; 04/26/2023

:

: Caloosahatchee Mine

: Mine ID 08-01453

ORDER DENYING MOTION FOR EXPEDITED HEARING 

AND 

ORDER GRANTING MOTION TO CONSOLIDATE

The above-docketed contest cases are before me upon the four notices of contest filed by 

David A. Rose Farm & AG Services on April 28, 2023, and three notices of contest filed by 

Garcia Mining, LLC, on May 1, 2023, under section 105 of the Federal Mine Safety and Health 

Act of 1977 (“Mine Act”), 30 U.S.C. § 815. On May 2, 2023, counsel for Contestants filed a 
2

Motion for Consolidation and Expedited Proceedings. Thereafter, on May 8, 2023, the Secretary 

of Labor filed her Opposition to Motion for Expedited Hearing but did not address the motion to 

consolidate. Before me is one significant and substantial (“S&S”) section 104(g)(1) order for 

miner training and three non-S&S section 104(a) citations issued to David A. Rose Farm & AG 

Services, as well as three non-S&S section 104(a) citations issued to Garcia Mining, LLC, all of 

which were issued by the same MSHA inspector on April 26, 2023. 

I. MOTION FOR EXPEDITED HEARING

In the motion, Contestants “request that their cases be consolidated, that all citations and 

orders listed above be vacated based on MSHA’s lack of jurisdiction, or in the alternative, that an 

expedited hearing be granted.” (Mot. at 3.) Contestants assert that an expedited hearing is 

appropriate because they will “suffer irreparable harm” from “financial costs[] and disruption of 

their work activities.” (Mot. at 2–3.) Contestants argue that “expedited proceedings are 

warranted because these employers will continue to be inspected and unduly subject to onerous 

MSHA requirements while performing work that is not under that agency’s jurisdiction and 

which is not performed on a permitted mine site, but at the dredging operation of the Corps.” 

(Mot. at 2.) 

Commission Rules do not provide any guidance on prerequisites for granting a request 

for expedited hearing. See 29 C.F.R. § 2700.52. Under Commission case law, Commission 

Judges are tasked with using “informed discretion” considering all the facts when determining if 

an expedited hearing is appropriate. Wyo. Fuel Co., 14 FMSHRC 1282, 1287 (Aug. 1992). I 

find persuasive cases where Commission Judges have held that to prevail on a request for 

expedited hearing, the moving party bears the “burden of showing extraordinary or unique 

circumstances resulting in continuing harm or hardship.” Consolidation Coal Co., 16 FMSHRC 

495, 496 (Feb. 1994) (ALJ). 

The Commission suggests that a mine currently closed or under a withdrawal order due to 

MSHA action may warrant an expedited hearing. See Wyo Fuel Co., 14 FMSHRC 1282, 1287 

(Aug. 1992) (reversing ALJ’s finding that he did not have discretion to grant an expedited 

hearing on a closure order). Commission Judges have determined that simply the mere threat of 

mine closure or the need for miner training is not an extraordinary or unique circumstance 

warranting an expedited hearing, and I find these cases persuasive. See Pennyrile Energy, LLC, 

38 FMSHRC 1886 (July 2016) (ALJ) (denying contestant’s motion for expedited hearing on an 

order issued for an alleged training violation, because “[m]iner training is not a hardship that 

necessitates an expedited hearing.”); Energy W. Mine Co., 15 FMSHRC 2223, 2223–25 (Oct. 

1993) (ALJ) (continuing threat of closure and the possibility of subsequent withdrawal order 

resulting from a section 104(d)(1) order is insufficient to warrant an expedited hearing). Here, 

Contestants are neither subject to a withdrawal order nor the threat of mine closure. Given the 

facts provided, I determine that the order issued to David A. Rose Farm & AG Services to train 

miners under section 104(g)(1) is not a hardship that necessitates an expedited hearing. And the 

issuance of the other six non-S&S section 104(a) citations is likewise insufficient.
3

Other than broad allegations of financial harm and disruption of work, Contestants fail to

allege specific facts showing extraordinary or unique circumstances resulting in continuing harm 

or hardship if denied an expedited hearing. Contestants allege they were not engaged in mining 

activities or working upon a mine site but rather were working on river-widening and dredging 

which do not come under MSHA jurisdiction, based on an interagency memorandum. (Mot. at 

2.) In essence, Contestants argue that they should be inspected by another federal agency—the 

Occupational Safety and Health Administration (“OSHA”)—rather than MSHA. However, I 

determine that such a jurisdictional issue is not an extraordinary or unique circumstance resulting 

in continuing harm or hardship that warrants an expedited hearing.

Consequently, upon considering all the facts in exercising my informed discretion, I 

determine that Contestants allege no extraordinary or unique circumstances that will result in 

continuing harm or hardship. Therefore, I conclude an expedited hearing is not warranted.

II. MOTION FOR CONSOLIDATION

Commission Procedural Rule 12 allows Commission Judges to consolidate cases 

involving similar issues. 29 C.F.R. § 2700.12. Commission Procedural Rule 55, 29 C.F.R. 

§ 2700.55, also grants Commission Judges broad powers to issue orders and procedurally 

manage the cases before them. Contestants were issued several citations and an order by the 

same MSHA inspector on the same date, are alleging the same jurisdictional arguments involving 

the same work being done in proximate locations, and share the same counsel. The Secretary has 

not objected to consolidation of these dockets. Given the overlap of these matters and in the 

interest of judicial economy, I conclude that consolidating these dockets is appropriate.

III. ORDER

WHEREFORE, it is hereby ORDERED that the motion for an expedited hearing in the 

above-captioned dockets is DENIED. 

It is further ORDERED that Contestants’ Motion for Consolidation is GRANTED. The 

parties are further ORDERED to notify my Law Clerk when they file their respective pleadings 

(petition and answer) in the penalty proceeding, so I may then seek to consolidate the contest and 

penalty cases for hearing and disposition.

Alan G. Paez

Administrative Law Judge
4

Distribution: (Via Electronic Mail & U.S. Mail)

Kristin R. Murphy, Esq. & Kathryn C. Hagerman, Esq., U.S. Department of Labor, 

Office of the Solicitor, 61 Forsyth Street, SW, Room 7T10, Atlanta, GA 30303-8931

(murphy.kristin.r@dol.gov)

(hagerman.kathryn.c@dol.gov)

(atl.fedcourt@dol.gov)

Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, MD 20705-3332

(safetylawyer@gmail.com)

/gw