**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICEOF ADMINISTRATIVE LAW JUDGES

1331PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,DC 20004-1710

TELEPHONE:202-434-9987 / FAX: 202-434-9949

 

 
| SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH      

 ADMINISTRATION (MSHA),

                Petitioner

 

                        v.

 

CONSOL MINING COMPANY  LLC,

                Respondent                                                             |   |   | CIVIL PENALTY  PROCEEDING

 

    Docket No. WEVA  2023-0141

    A.C. No. 46-09569-568207

 

 

 

    Mine: Itmann No. 5          |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

**ORDERDENYING MOTION TO APPROVE SETTLEMENT**

**ANDSTRIKING MATERIAL FROM MOTION**

** **

            OnApril 25, 2023, a Commission ALJ issued an order noting with disapproval theSecretary’s ongoing citation to *Mechanicsville Concrete, Inc.*,**18FMSHRC 877, 880, 882 (June 1996), as authority for her removal of thesignificant and substantial designations from citations during the settlementprocess. *See* Decision Approving Settlement with SignificantReservations, Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ)(“Reservations”). Commission judges have routinely observed that *Mechanicsville*,and the also oft-cited *American Aggregates of Michigan,**Inc.*, 42FMSHRC 570, 576 (Aug. 2020), cannot support the premise for which they havebeen cited.[1]

 

In this instance,though, the Judge correctly pointed out that parties have a duty not to misstatecase law and that such misconduct has been affirmed as sanctionable under Rule11 of the Federal Rules of Civil Procedure. *See* Reservations at 6 (citing*Teamsters Local No. 579 v. B & M Transit, Inc.*, 882 F.2d 274, 280 (7thCir. 1989)).

 

Following this, Iissued an order on May 3 denying a motion to approve settlement, in which Isaid that the continued citation to these cases as authority for the removal ofS&S designations falls below the minimum standards of practice before theCommission. *See*Order Accepting Appearance and Denying Motion to ApproveSettlement, Docket No. WEVA 2023-0071, at 7 (May 3, 2023) (ALJ). I said that aconference and litigation representative who submitted a motion with suchcitations would be barred from practice before me. *Id.*

 

I also said thatthere might be other consequences. I noted that an attorney should know better,and that such misstatements of the law by an attorney would be even moreegregious. *Id.* at 7 n.5. The supervising attorney for the LaborDepartment’s CLR’s was included in the distribution for the order.

 

On May 9, theSecretary filed with the Commission a Motion to Approve Partial Settlement,which again included the offending citations to *Mechanicsville*and *AmericanAggregates*. *See* S. Mot. to Approve Partial Settlement, Docket No.WEVA 2023-0141, at 3 (May 9, 2023). Not only is the recitation of these cases obviouslyinappropriate; it is impertinent. To my knowledge, no Commission judge hasagreed with this mischaracterization of the law, and I have approved dozens ofS&S removals without ever considering either case as authority for theremoval. Rather than adhering to the clearly-expressed expectations of theCommission’s judges, the Secretary has continued to recite this non-sequiturany time an S&S designation is proposed for removal in a settlement.

 

An attorney for agovernment agency who misstates the law arrogates the properly conferred constitutionalauthority of others to determine what the law *is.* Like bridge scour,this subtle corrosion wears on the foundation of the rule of law and threatensthe integrity of a structure upon which the public depends.

 

While the fullarray of sanctions under Rule 11 may not be available as a corrective, I havemade clear that misleading use of precedent fails to meet the minimum standardsof practice before the Commission. Its redress begins with a refusal to acceptthe unacceptable. By this order, I therefore **STRIKE****the referenceto the cited cases and the assertions they purportedly support.[2]

 

Striking material,and even professional sanctions, are appropriate responses to bad faithemployment of case law. *See Collar v. Abalux, Inc.*, 806 Fed. Appx. 860,864 (11th Cir. 2020) (affirming sanctions where an attorney continuallymisstated the import of case law); *Kamdem-Ouaffo v. Huczko*, 810 Fed.Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting thatimpertinent analysis of law is “plainly vulnerable to [] remedial strike”). Strikingthe impertinent matter from the motion is the least severe sanction I couldimpose in these circumstances. As with the Mine Act, those who persist in thediscredited and misleading use of precedent should reasonably anticipate thattheir conduct will be deemed knowing or intentional and will be addressed withprogressive severity until the practice is discontinued.

 

The motion toapprove settlement is **DENIED**without reaching the merits. This denialwill be reconsidered if the parties refile the motion without the noted language,*see supra* note 2. The parties should anticipate that the mattersaddressed by the motion will be resolved at hearing unless and until a motionthat meets the standards of practice before the Commission has been filed.

 

 

 

 

/s/Michael G. Young

Michael G. Young

Administrative Law Judge

 

 

 

 

Distribution: 

 

Robert S. Wilson,Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite401, Arlington, VA 22202-5450, 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

 

Jim McHugh, HardyPence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 25329, jmchugh@hardypence.com

 

Craig Aaron,CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, craigaaron@consolenergy.com

----

[1]*See*Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023);Order Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ);Order Denying Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11(Oct. 18, 2022) (ALJ).

[2] The language tobe stricken from the motion reads: “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)).” Mot. at 3.