Administrative Law Judge Alan Paez

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

1331 Pennsylvania Avenue NW, Suite 520N
Washington, DC 20004-1710


Distribution:

Samuel Petsonk, Esq.
Mountain State Justice
223 Prince Street
Beckley, WV 25801

Jonathan Ellis

Steptoe & Johnson PLLC
P.O. Box 1588

Charleston, WV 25326-1588

Joseph U. Leonoro

Steptoe & Johnson PLLC
P.O. Box 1588

Charleston, WV 25326-1588

Philip K. Kontul, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
One PPG Place, Suite 1900

Pittsburgh, PA 15222

Margaret Lopez, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart P.C.
1909 K Street NW, Suite1000

Washington, DC 20006

Ali Beydoun, Esq.

Office of the Solicitor

US Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

April Nelson, Esq.

Office of the Solicitor

US Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

Melanie Garris

Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

FEB 0 5 2020
MARSHALL JUSTICE
v. : Docket No. WEVA 2018-48-D

ROCKWELL MINING, LLC
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners

SUA SPONTE DIRECTION FOR REVIEW AND BRIEFING ORDER
BY: Rajkovich, Chairman; Young and Althen, Commissioners

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Mine Act”). Pursuant to section 113(d)(2)(B) of the Mine Act, 30 U.S.C.
§ 823(d)(2)(B), and Commission Procedural Rule 71, 29 C.F.R. § 2700.71, the Commission on
its own motion directs review of the January 6, 2020 decision of the Judge in the above-
captioned case on the ground it may be contrary to law or Commission policy and presents a
novel policy question. Specifically, the Judge noted that the Commission has not settled on the
legal test for assessing claims of interference filed under section 105(c)(1) of the Mine Act, 30
U.S.C. § 815(c)(1). Slip op. at 9. The review of the decision is limited to the appropriate
standard of proof for such claims.'

The Commission has received briefs on this issue in a number of prior cases, and has the
briefs filed in Monongalia County Coal Co. v. FMSHRC, No. 18-1196, voluntarily dismissed,
2020 WL 282907 (D.C. Cir. Jan. 17, 2020). Therefore, the parties are not required to file briefs

' Our dissenting colleague does not find a basis for this review. On the contrary, the
Mine Act expressly grants the Commission the authority to review cases upon the ground that
“the decision may be contrary to law or Commission policy, or that a novel question of policy
has been presented.” 30 U.S.C. § 823(d)(2)(B). Congress clearly gave the Commission the
statutory authority to clarify policies of legal interpretation set forth in Administrative Law
Judges’ decisions that are irreconcilable, cause confusion and waste for the parties and Judges
alike through lack of clarity, and delay the outcome of section 105(c) proceedings. In the
absence of either party seeking review, by its terms the Mine Act grants us the authority to
“remand .. . , affirm, set aside, or modify” the result in the case after resolving the identified
legal or policy issue — here the necessary and proper standard for review. 30 U.S.C.
§ 823(d)(2)(B)&(C).


but may do so within forty (40) days of the date of this Order. The Commission will not accept
reply briefs.

Because of public interest in this matter, the Commission will consider motions to
intervene or to file amicus briefs that accompany briefs from interested parties. All such motions
and briefs must be filed within forty (40) days of the date of this order. This order is also being
sent to the parties who filed briefs in the referenced court proceeding.

Gig

Marco M. Rajkovich, Jr., Chairman

William I. Althen, Commissioner


Commissioner Jordan, dissenting:

I dissent from the sua sponte grant of review in this matter. This case involves a miner’s
complaints of discrimination and interference, which the Judge dismissed. The grant of review,
however, does not involve any inquiry as to whether the Judge’s dismissal was correct. Rather,
review is limited to “the appropriate standard of proof for such claims.” Thus the majority is
teaching out to simply opine on a legal issue in a case instead of deciding its ultimate outcome —
that is, whether the Judge properly found no discrimination or interference.

The Commission’s decision in this case will have no real-world consequences for either
of the parties. It is a theoretical undertaking devoid of any practical effect on the litigants here.
Moreover, the decision that ultimately issues will necessarily exceed the scope of our authority
under the Mine Act, which states that the Commission may either “remand the case to the
administrative law judge for further proceedings as it may direct or it may affirm, set aside, or
modify the decision or order of the administrative law judge in conformity with the record.”

30 U.S.C. § 823(d)(2)(iii)(C). That will not happen here, where the scope of the grant of review
is limited to a discussion about a legal standard, depriving us of the authority to rule on the
ultimate decision of the administrative law judge.

The majority’s grant of review of an isolated legal issue will necessarily result in the
issuance of an advisory opinion. In so doing, my colleagues contravene the well-established
principle that we do not issue such opinions. For example, in Wade Sand & Gravel Co., 37
FMSHRC 1874, 1877-78 (Sept. 2015), we refused to consider the validity of the Secretary’s
regulatory interpretation because “to do so would constitute an advisory opinion, a type of
decision that the Commission, like the federal courts, does not issue.” See also Oak Grove Res.,
LLC, 36 FMSHRC 2411 (Sept. 2014) (stating that review of the Judge’s order articulating the
standard for establishing a repeated flagrant violation would amount to “an advisory opinion on
an abstract legal principle”).

The majority’s grant of sua sponte review is particularly ironic here, because for each of
the three alleged claims of interference, the Judge meticulously applied both of the tests that
various Commissioners have adopted in prior cases and found no interference under either of
them. Hence I would be hard-pressed to say that his decision may be contrary to law because he
might not have utilized the proper standard for reviewing interference claims. In fact, he
painstakingly applied the two and only tests the Commission has articulated for
interference. How could he have applied the wrong standard if he used both of them?

This case should not be used as a vehicle to opine on a legal standard in a vacuum.

Articulating a test for interference in a decision where it will not be applied to the facts in the
record is an academic exercise in which we should not participate.

Wug Fe be

Mary Lu fordan, Contyhissioner