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

January 21, 2022

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW

Before: Judge Young

This matter is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”), pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary filed a Motion to Approve 

Settlement setting forth the factual bases for the proposed modifications. When I disapproved 

the settlement, the Secretary filed amended motions, which I disapproved based on my concerns 

with the removal of a “Significant and Substantial” (“S&S”) designation.

The Secretary now seeks interlocutory review of this proceeding, pursuant to 

Commission Procedural Rule 76, 29 C.F.R. § 2700.76. I agree with the Secretary that this 

interlocutory ruling involves a controlling question of law, and that immediate review will 

materially advance the final disposition of this proceeding. I certify for review this question: 

whether the Secretary has unreviewable discretion to remove a “Significant and Substantial” 

(“S&S”) designation from a contested citation without the Commission’s approval.

This case was assigned to me on August 18, 2021. This docket includes three citations 

issued pursuant to Section 104(a) of the Mine Act. The Secretary submitted a motion to approve 

settlement on August 24, 2021, in which the Secretary proposed removing S&S designations 

from two citations: Citation Nos. 9198165 and 9198038. The third citation remained unaltered. 

Additionally, the motion requested a penalty reduction from $7,960.00 to $4,590.00. After 

review and careful consideration, I denied approval of this settlement via email—specifying that 

for Citation Nos. 9198165 and 9198038, I needed clarification of the operator’s arguments in 

support of why the facts and circumstances surrounding the conditions were not reasonably 

likely to contribute to an event with the potential to cause significant injuries. The email 

provided possible resolution—a detailed explanation—rather than Commission review.

The Secretary chose to submit subsequent motions to approve settlement on September 3, 

September 13, and September 14, 2021. Although I determined that the amended explanation 

for the removal of the S&S designation from Citation No. 9198165 was satisfactory, I was not 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

KNIGHT HAWK COAL, LLC,

 Respondent

 CIVIL PENALTY PROCEEDING

Docket No. LAKE 2021-0160

 A.C. No. 11-03147-536309

 

 Mine: Prairie Eagle-Underground
2

provided with sufficient factual support to approve such removal from Citation No. 9198038.1

As such, my approval of the settlement would unfairly compromise the public interest by 

conceding an important issue without reasonable justification for doing so. Therefore, I issued 

an order on September 30, 2021, denying the motion to approve settlement (“Denial Order”).

2 In 

order to resolve the question of law before us, the Secretary submitted a motion for certification 

on November 24, 2021.

I. The Standard for Approval of Proposed Settlements

The Secretary relies on the Commission’s decisions in Mechanicsville Concrete, Inc. and 

American Aggregates of Michigan, Inc. as support for his contention that he need only depend on 

his discretion when vacating S&S designations. S. Mot. ¶ 6(C)(2); Am. Aggregates of Mich., 

Inc., 42 FMSHRC 570, 576–79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 

877, 879–89 (June 1996)). However, Mechanicsville and American Aggregates do not confer 

sole discretion upon the Secretary or limit the evaluation of the Commission under section 

110(k) of the Mine Act. The Secretary made a S&S designation and now intends to modify it. 

He cannot rely solely on discretion, but must provide sufficient factual support. See 29 C.F.R. 

§ 2700.31(b)(1) (requiring “facts in support of the penalty agreed to by the parties”); see also 

Am. Coal Co., 38 FMSHRC 1972, 1981 (Aug. 2016) (“AmCoal I”); Black Beauty Coal Co., 34 

FMSHRC 1856, 1856 (Aug. 2012).

The unreviewable discretion asserted by the Secretary is contrary to the Mine Act’s 

requirement that the Commission approve all settlements. See 29 C.F.R. § 2700.31(g) (“Any 

order by the Judge approving a settlement shall set forth the reasons for approval and shall be 

supported by the record.”). While the Secretary retains prosecutorial discretion at the citation 

and petition stage, Commission Judges have the authority to review proposed compromises. 30 

C.F.R. § 2700.31(b) (“A motion to approve a penalty settlement shall include for each 

violation . . . facts in support of the penalty agreed to by the parties.”) (emphasis added). Rule 31 

enables Judges to review proposed penalties under section 110(k) of the Mine Act, which

provides, “No proposed penalty which has been contested before the Commission under section 

105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.” 

30 U.S.C. § 820(k). 

The Secretary argued in AmCoal I that enforcement agencies are generally presumed to 

have unreviewable discretion to settle enforcement actions, and that section 110(k) does not 

provide meaningful or substantive standards sufficient to limit the Secretary’s prosecutorial 

discretion as applied to settlement agreements. 38 FMSHRC at 1974–75 (citing as support the 

“Heckler Test” established in Heckler v. Chaney, 470 U.S. 821, 834 (1985)). The Commission 

has expressly rejected, and the text and structure of the Mine Act refutes, this argument. Id. at 

1979–81. As the Commission held in AmCoal I, Congress charged the Commission with the 

administration of section 110(k), which explicitly grants the Commission the authority to 

1 This is a controlling question of law because there is no other defect with the settlement. If I 

am found to be in error, I will approve on remand the motion as submitted to me. Otherwise, the 

case will still be before me subject to further action by the Secretary and Respondent.

2 I incorporate that order here by reference. 
3

approve settlements and limits the Secretary’s authority to reduce contested penalties. As the 

Commission noted, the assessment of civil penalties under the Mine Act has not been committed 

to the Secretary by law, but was instead expressly and clearly delegated to the Commission. Id. 

The Commission has employed a meaningful abuse of discretion standard—discussed in detail 

below—under which the Secretary is required to provide facts in support of settlement. This 

requirement may only be deemed inappropriate if it is unreasonable or inconsistent with the 

Mine Act—and it is not. 

A. The Secretary's cited authority does not confer the discretion asserted. 

The Secretary’s reliance on Mechanicsville is misplaced. Mechanicsville is irrelevant to 

this proceeding because it relies upon the Commission’s decision in RBK Construction, Inc., 

15 FMSHRC 2099, 2101 (Oct. 1993), which in turn relied upon the U.S. Supreme Court’s 

decision in Cuyahoga Valley Railway Co. v. United Transportation Union, 474 U.S. 3, 6–7 

(1985). In contrast to the case at hand, RBK Construction did not involve a settlement, and the 

Court in Cuyahoga Valley grounded its decision on the statutory scheme of the Occupational 

Safety and Health Act, which—unlike section 110(k) of the Mine Act—does not require the 

Occupational Safety and Health Review Commission to approve settlements. 

Even if the cited authority was relevant to a case which has been contested before the 

Commission under section 105(a), an important distinction between this proceeding and 

Mechanicsville renders it inapplicable. The present case involves a proposal to eliminate an S&S 

designation, while the Commission in Mechanicsville held that an ALJ may not add an S&S 

designation on his or her own initiative. Mechanicsville Concrete, Inc., 18 FMSHRC at 880, 

882. These important distinctions between this case and Mechanicsville render this authority 

irrelevant to this case.

The Secretary’s reliance on American Aggregates is also misplaced. In this case, the 

Commission vacated a Judge’s decision to deny a settlement motion because the Judge ignored 

information that was relevant to the reasonableness of the settlement under the AmCoal criteria. 

42 FMSHRC at 577, 581. This information included several facts that were relevant to, and 

plausibly supported, a decrease in gravity and negligence, and the removal of the S&S 

designation. The Commission only reversed the Judge’s denial of the settlement, and the 

included removal of the S&S designation, because of the Judge’s failure to consider the 

significant factual support provided. 

B. The Secretary must provide substantive, relevant facts in support of modifying 

violations in a motion to approve settlement. 

The Commission has consistently required its judges to consider facts that are both 

substantive and relevant to proposed modifications before a motion to approve settlement may be 

granted. The facts provided must enable a plausible inference that the violation at issue can be 

justly compromised. In the case at hand, the facts provided must permit an inference that facts 
4

might be established at hearing that could result in the violation in question not being affirmed as 

S&S.3

1. The Commission has consistently required Judges to consider substantive, relevant 

facts in support of settlement. 

No definition of the term “relevant” has been provided by the Commission to date. 

However, Black’s Law Dictionary defines the term “relevant” as “[l]ogically connected and 

tending to prove or disprove a matter in issue; having appreciable probative value — that is, 

rationally tending to persuade people of the probability or possibility of some alleged fact.” See 

Relevant, BLACK’S LAW DICTIONARY (10th ed. 2014). The Federal Rules of Evidence defines 

“relevant” as a contention that “has any tendency to make a fact more or less probable than it 

would be without the evidence and the fact is of consequence in determining the action.” Fed. R. 

Evid. § 401.

In Solar Sources Mining, LLC, the Commission approved a denied settlement based on a 

Judge’s failure to consider the facts submitted in support of settlement. 41 FMSHRC 594, 605, 

606 (Sept. 2019). The Commission held that the Judge erred in concluding that the parties 

presented no facts to support settlement, when the parties “actually presented relevant facts,” 

including the non-applicability of the standard. See 41 FMSHRC at 601.

4

 

In addition to relevant facts, the Commission has consistently recognized that Judges 

must consider substantive evidence, defined as “[e]vidence offered to help establish a fact at 

issue,” in order to approve or deny settlement motions. Substantive Evidence, BLACK’S LAW 

DICTIONARY (10th ed. 2014). In AmCoal I, the Commission rejected the Secretary’s “boilerplate 

referencing” of “professional judgment” and enforcement value “in lieu of the substantive factual 

support traditionally provided to justify a penalty reduction.” AmCoal I, 38 FMSHRC at 1973–

74. Another Am. Coal Co. case was denied settlement by a split Commission because of a lack 

of facts, and was approved by the disapproving Commissioners only upon submission of 

additional facts. See 40 FMSHRC 765, 766 n.1 (June 2018); Am. Joint Mot. Approve Settlement 

Agreement, Docket No. LAKE 2009-0035, at 8–10 (May 18, 2018).

The Commission discussed the proper substantive evidence requirement for modifying 

individual citations in Hopedale Mining, 42 FMSHRC 589 (Aug. 2020). In Hopedale, the 

Commission held that a Judge’s denial of a settlement constitutes an abuse of discretion when 

the agreed-upon facts supplied by the parties satisfy the standard for approval established in 

AmCoal I. Although judges need not engage in fact-finding, weighing conflicting evidence, or 

making credibility determinations, the majority stressed that this holding does not restrict judges 

by limiting their ability to “probe gaps or inconsistencies in the explanation offered in support of 

3 I note that I have not found, and do not find, that the violation must be affirmed as S&S. Nor 

have I required the Secretary to establish that it is not. I merely note that the limited facts the 

parties have chosen to provide would preclude a non-S&S finding for this violation. 

4 Commissioners Jordan and Traynor dissented, arguing that the parties failed to meet the 

AmCoal standards because the motion contained insufficient factual support. See Id. at 607 

(Jordan, Traynor, dissenting).
5

a settlement motion.” Id. at 595; see also Solar Sources Mining LLC, 41 FMSHRC at 602

(stating that Judges are “expected to . . . determine whether the facts support the penalty agreed 

to by the parties”). 

The Commission determined that the provided facts in Hopedale supported the penalty 

reduction agreed to in the settlement, and that “[t]he rejection in this case was contrary to 

stipulated facts, mischaracterized the operator’s compliance history, and failed to give weight to 

the considerable non-monetary value preserved by the settlement.” Id. at 602. For citations 

where the Secretary proposed a reduction in negligence, he provided respondent contentions 

demonstrating that the “violative conditions were not obvious or readily known to the operator.” 

Id. at 598. For other violations challenging gravity, the Secretary provided contentions showing 

possible compliance (i.e., no violation) or the reduced likelihood of hazard because the 

equipment was found to be functioning better than noted. Id. at 597–98. These facts were all 

substantive because they were offered to dispute a fact at issue. These substantive facts, as 

described, were also relevant to the individual modifications proposed, a principle that should 

also apply to the removal of S&S designations. This case thus differs from Hopedale Mining, in 

that it does not involve the rejection of substantive, relevant facts. Rather, the parties have not 

provided me with sufficient facts to serve as the basis for an evaluation under AmCoal I.

5

2. The Secretary misreads the cited authorities. 

a. Although the Secretary cites Am. Coal Co., this case requires the submission of 

relevant facts. 

The Secretary states in the Motion to Approve Settlement that he “has considered the 

deterrent value of the penalty and obtaining a final resolution to this matter.” As support for this 

statement, the Secretary cites the following excerpt:

The Amended [motion] provides substantive explanations supporting the 

Secretary’s decision to compromise the issues of one violation at issue . . . . In 

5 Though the Commission found that the facts provided in Hopedale Mining were substantive 

and relevant to either gravity or negligence modifications, two Commissioners thought even 

these facts were insufficient to support the modifications. See 42 FMSHRC at 608–09 

(Commissioners Jordan and Traynor, arguing in dissent that settlements must provide substantive 

explanations). The dissenting Commissioners asserted that “[t]he Congressional transparency 

mandate has always meant that the Judge’s decision must include a substantive explanation as to 

how the penalty reduction submitted for approval is (or is not) warranted by the facts and legal 

contentions the parties claim as support for their motion.” Id. (citing Co-Op Mining Co., 2 

FMSHRC 3475, 3475, 3476 (Dec. 1980) (vacating a settlement with finding of violation where 

the stipulations demonstrate that a violation did not actually occur)). My decision is consistent 

with both the majority and the dissent in Hopedale and the decision in Co-Op Mining. All of the

opinions rely on the same legal principles requiring settlement decisions to be consistent with the 

facts provided, but the dissent in Hopedale disagreed that the required quantum of substantive 

evidence had been met. 
6

addition, the Secretary has set forth reasons why it would not be in the public 

interest to litigate certain legal issues in the context of this case. Moreover, the 

amended motion explains that the operator’s mines have closed since the citations 

issued, reducing the deterrent value of the penalty. Commissioners Jordan and 

Cohen note that these justifications were absent in the initial settlement motion. 

Upon review of the amended motion, Commissioners Jordan and Cohen agree to 

grant the motion and approve the settlement.

Am. Coal Co., 40 FMSHRC at 766 n.1 (emphasis added).

The Secretary asserts that it is sufficient for him to “consider the deterrent value” of the 

penalty. This assertion is based on only a partial understanding of the cited authority. In citing 

this footnote as support, the Secretary ignores the facts of the case. Importantly, the settlement at 

issue was only granted following the submission of additional facts. Id. at 766. After AmCoal 

appealed a remanded decision, the parties submitted a motion to approve settlement that was 

denied by the Commission in a 2-2 split. 

As support for their denial, Commissioners Jordan and Cohen set forth reasons why 

approval would not be in the public interest, including their concerns that (1) it was unclear what 

AmCoal had agreed to give in exchange for settlement, (2) the Commission did not remand for a 

gravity reduction where the trier of fact already made a gravity determination, and (3) the 

settlement was one-sided and did not help with enforcement of the Mine Act. Am. Coal Co., 

40 FMSHRC 330, 337–39 (Mar. 2018). 

Commissioners Jordan and Cohen joined in approving settlement after the parties 

submitted an amended motion that included additional factual support. Amended Joint Motion 

to Approve Settlement Agreement, Docket No. LAKE 2009-0035, at 8 (May 18, 2018). 

The amended motion included at least three additional substantive facts that were directly 

relevant to the proposed modification, including acknowledgement that the operator’s mines had 

since closed. Am. Coal Co., 40 FMSHRC at 766 n.1. This decision, and the footnote cited by 

the Secretary, do not support the contention that the Secretary need only consider the deterrent 

value of a penalty in obtaining a final resolution. The outcome of this case clearly depended on 

the submission of substantive, relevant facts. This is the standard I have followed in rejecting the 

settlement. 

b. AmCoal II also requires the submission of substantive facts. 

The Secretary states that he has evaluated enforcement values and maximized his 

prosecutorial impact, citing page 989 of AmCoal II. The cited authority requires that the facts 

provided “reflect a mutual position that the parties have agreed is acceptable to them in lieu of 

the hearing process.” Am. Coal Co., 40 FMSHRC 983, 991 (Aug. 2018) (“AmCoal II”). The 

Secretary uses this language to make the overbroad assertion that he need only state that the 

parties are in agreement without submitting adequate support. However, the Commission has 

consistently required that the Secretary provide substantive facts, relevant to the proposed 

modifications.
7

The standard for Commission evaluation is whether the proposed settlement is “fair, 

reasonable, appropriate under the facts, and protects the public interest.” AmCoal II, 40 

FMSHRC at 987.6

 The Commission found that in order to effectively apply this standard, 

Commission Judges must be provided with “sufficient information” upon which to base their 

evaluation. Id. (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)). 

Specifically, the Commission found that the Judge required substantive facts to support proposed 

penalty reductions. Id. at 989 (“[T]he Judge appropriately determined that the submission of 

additional substantive facts to support the proposed penalty reductions was necessary . . . .”)

(emphasis added). 

Similar to the AmCoal case noted above, see supra Section I.B.2.a., the settlement motion 

approved by the Commission depended on the submission of new facts that were substantial and 

relevant to the modifications—primarily that the mine ceased production two years prior, and 

that the respondent’s other mine also ceased production, facts that proved a reduced enforcement 

value. Am. Coal Co., 40 FMSHRC 1380, 1388 (Sept. 2018) (ALJ); Joint Mot. Approve 

Settlement & Dismiss Proc., Docket No. LAKE 2011-0013, at 2 (Sept. 7, 2018).

In this case, the Secretary denies that he must provide substantive, relevant facts in 

support of settlement. AmCoal II does not support this claim. The Commission requires 

sufficient facts—including nonmonetary assessments regarding enforcement value—upon which 

Judges can make an appropriate finding. AmCoal II, 40 FMSHRC at 991 (“[F]acts required by 

Rule 31 may include a description of an issue on which the parties have agreed to disagree.”). In 

the present case, the Secretary has failed to provide any detailed explanation of how the 

enforcement value of the violation will be maintained.

II. The facts provided by the Secretary do not justify removal of the S&S designation.

A. The Commission utilizes an abuse of discretion standard to evaluate the Secretary’s 

enforcement decisions. 

Rule 31 requires that a settlement motion include facts in support of the penalty agreed to 

for “each violation,” and that a Judge’s order set forth reasons for approval and be supported by 

the record. 29 C.F.R. § 2700.31(b), (g). The abuse of discretion standard requires the Secretary 

to provide relevant facts from which a Commission Judge may understand the reasonable 

conclusions drawn in support of his decision. See Prairie State Generating Co., 792 F.3d 82, 92 

(D.C. Cir. 2015); Knight Hawk Coal, LLC, 42 FMSHRC 435, 445–46 (July 2020). 

The Commission has established that denial or reversal is justified in cases where there is 

no evidence to support the Secretary’s decision. See Solar Sources Mining, LLC, 41 FMSHRC 

at 599 (citing Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (“An 

6 While this is a “four factor” analysis, as a practical matter, there is often considerable overlap 

between the factors. Thus, a proposed settlement may not be “fair” because it is insufficiently 

protective of the public interest, or it may not be “reasonable” because it is inappropriate to the 

facts provided in support of the settlement.
8

abuse of discretion may be found where there is no evidence to support the Judge’s decision or if 

the decision is based on an improper understanding of the law”)); see also Twentymile Coal Co., 

27 FMSHRC 260, 278 (Mar. 2005) (Jordan, dissenting) (quoting Mingo Logan Coal Co., 

19 FMSHRC 246, 249–50 n.5 (Feb. 1997), aff’d, 133 F.3d 916 (4th Cir. 1998)).

On review, the D.C. Circuit Court of Appeals has noted that the Commission’s ALJs 

determine, in the first instance, whether the Secretary has been arbitrary and capricious, abusing 

his discretion in his decision, and that the Commission’s standard of review is whether 

substantial evidence supports the Judge’s determination. See Sec’y of Lab. v. Knight Hawk Coal, 

LLC, 991 F.3d 1297, 1308 (D.C. Cir. 2021) (citing 30 U.S.C. § 823(d)(2)). Under the arbitrary 

and capricious standard, the Secretary must “articulate a satisfactory explanation for its action 

including a ‘rational connection between the facts found and the choice made.’” Id. at 1307 

(quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).

This standard is deferential to the Secretary, but its grace is not unlimited. In particular, 

the law—statutory law, Court and Commission precedents, and the Commission’s procedural 

rules—clearly establishes a requirement that the Secretary’s decisions be consistent with the 

reasoning and assumed facts provided with a motion to approve settlement. 

Congressional intent, as well as Commission and court precedent, compels a meaningful 

review of all settlements submitted for approval. Section 110(k) of the Mine Act serves to 

maintain the deterrent effect of violations and penalties, in part by preventing the Secretary from 

abusing his authority to settle such violations without appropriate justification. See AmCoal I, 38

FMSHRC at 1976 (citing S. Rep. No. 95-181, at 44, reprinted in Senate Subcommittee on Labor, 

Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 632–33 (1978)) (“Congress explained that ‘[b]y imposing [the] 

requirements’ of section 110(k), it ‘intend[ed] to assure that the abuses involved in the 

unwarranted lowering of penalties as a result of the off-the-record negotiations are avoided.”). 

The Commission has acknowledged the importance of section 110(k) in preventing 

abuse, and it possesses the authority to deny the Secretary’s decisions when appropriate. This 

includes when the Secretary declines to provide an explanation for a settlement decision, or 

when the facts provided by the Secretary do not reasonably support a settlement decision. See 

Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012) (authorizing the Commission to 

approve the settlement of contested penalties in section 110(k) “[i]n order to ensure penalties 

serve as an effective enforcement tool, prevent abuse, and preserve the public interest.”)

Thus, under the governing law, I—as well as the Secretary—must make a rational 

decision governed by the operative facts and the law as it has been interpreted. I would abuse 

my discretion if I approved a settlement that is inconsistent with the facts provided. I have 

declined to do so. 
9

B. Judges must have sufficient facts from which to plausibly infer that the violation would 

not meet S&S requirements. 

The abuse of discretion standard requires judges to consider sufficient facts, taken as true, 

from which they may plausibly infer that proposed modifications are reasonable. Although the 

term “plausible” has not yet been defined by the Commission (and has in fact caused confusion 

amongst judges and scholars alike), the plausibility standard is evident in Commission precedent. 

The Commission has consistently required consideration of facts relevant to proposed 

modifications. See Knight Hawk Coal, LLC, 42 FMSHRC at 446 n.22 (requiring “some 

plausible—i.e., not speculative or preconceived—factual basis.”). 

In Knight Hawk Coal, LLC, the Commission affirmed a Judge’s decision to vacate the 

Secretary’s rejection of a ventilation plan because substantial evidence existed in support of the 

Judge’s conclusion that the plan was acceptable. 42 FMSHRC at 452. The Commission applied 

a plausibility standard, agreeing that the Secretary had failed to articulate reasons, “rationally 

supported by the facts,” that the ventilation approach did not protect miners. Id. The 

Commission could not condone rejection of a long-used plan based upon an “implausible belief” 

that harmful conditions might arise from the plan. Id. at 446 n.22 (describing such “implausible 

belief” as an “irrational belief not grounded on the record evidence”). 

The Commission articulated that the minimum standard requires “some plausible—i.e., 

not speculative or preconceived—factual basis for rejecting an operator’s claim.” Id.

(“Requiring the Secretary to show his work in this regard is hardly a ‘new’ requirement. Rather, 

it reflects his fundamental duty under the Act to defend his choices as ‘reasonable,’ at a 

minimum.”). This should be no different from requiring the Secretary to provide facts in support 

of a proposed settlement—i.e., “show[ing] his work”—to support a Judge’s 110(k) review.

This standard is also supported by the Commission’s requirement to be guided, when 

practicable, by the Federal Rules of Civil Procedure. See 29 C.F.R. § 2700.1(b) (“[T]he 

Commission and its Judges shall be guided so far as practicable by the [FRCP].”); see also Jim 

Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993). Specifically, the Secretary’s case can be 

likened to a pleading to survive a motion to dismiss for failure to state a claim under Rule 

12(b)(6). 

Black’s Law Dictionary equates the term “Plausibility Test” to the “Twombly Test,” 

which requires the following in a pleading to survive a 12(b)(6) motion: “(1) state facts that, 

taken as true, make a plausible (rather than conceivable) claim, and (2) not rely solely on 

conclusions of law, which are not entitled to the same assumption of truth as factual allegations.” 

Twombly Test, BLACK’S. The Court in Bell Atlantic Corp v. Twombly required a FRCP 8 

pleading to “possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” 550 U.S. 544, 

557 (2007). 

The Court noted that “[a]sking for plausible grounds does not impose a probability 

requirement at the pleading stage; it simply calls for enough facts to raise a reasonable 

expectation that discovery will reveal evidence of illegal agreement.” Id. at 556. Requiring 

substantive, relevant facts in a settlement motion only requires sufficient facts to “raise a 
10

reasonable expectation” that there was no violation, or that the violation did not meet the level of 

gravity or negligence cited.

In Ashcroft v. Iqbal, the Supreme Court provided a description of the plausibility 

requirement, stating that in order to survive a motion to dismiss, “a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court described facial 

plausibility as “factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In 

relation to a settlement motion, the factual content provided should allow a Commission Judge to 

draw the reasonable inference that there is no violation, or that the violation does not meet the 

level of gravity or negligence cited.

The standard of plausibility exists in Commission review of decisions on the merits of a 

violation. Upon a prima facie showing of a violation by the Secretary, a respondent operator 

must demonstrate a “plausible theory based upon any facts in the record to support a reasonable 

inference” that the violation did not occur. Jim Walter Res., Inc., 28 FMSHRC 983, 988, 989–90 

(Dec. 2006) (affirming the Judge’s decision to uphold a S&S designation because there was 

substantial evidence to support the conclusion that the respondent did not show “any plausible 

theory” rebutting the Secretary’s case).

The need to make a plausible demonstration refuting the existence of a violation could 

and should be applied to facts required in a settlement motion. Such a requirement is not

contradictory to the Commission’s directives in AmCoal II. See 40 FMSHRC at 991 (ruling that 

judges must not assign probative value to some facts). It merely requires that the submitted 

facts, if taken as true, plausibly demonstrate that there was no violation, or that the violation did

not reach the level of gravity or negligence assigned.

C. The facts provided by the Secretary cannot support the removal of the S&S designation.

An S&S designation is appropriate if, “based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard [danger to safety or health] 

contributed to will result in an injury or illness of a reasonably serious nature.” Mathies Coal 

Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 

825 (Apr. 1981)). An S&S determination must be based on the continuation of normal mining 

operations. See Consol PA Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ must be based on the facts existing at the time of issuance and assuming continued 

normal mining operations, absent any assumption of abatement or inference that the violative 

condition will cease.”). 

The four elements supporting an S&S designation provided in Mathies have been refined 

and expressed as follows: (1) an underlying violation of a mandatory safety standard; (2) a 

reasonable likelihood the violation will cause the occurrence of the discrete safety hazard against 

which the standard is directed; (3) a reasonable likelihood that the hazard would cause an injury; 

and (4) a reasonable likelihood that the injury would be of a reasonably serious nature. Peabody 
11

Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement of the 

second Mathies step in Newtown Energy, Inc.). 

1. The relevant facts provided demonstrate a prima facie showing of a S&S violation.

The Mine Act and the Commission’s precedents interpreting it compel me to determine 

whether the settlement tendered is appropriate to the facts provided to me. Citation No. 9198038 

arises from an alleged violation of the operator’s roof control plan, which appears to have been 

discovered after a roof fall occurred. See 30 C.F.R. § 75.220(a)(1) (requiring operators to 

develop and follow approved roof control plans); see also 30 C.F.R. § 75.202(a) (requiring roof 

support to protect miners from hazards related to roof falls). Under the terms of the plan, entry 

widths are limited to 19 feet. The operator asserts that a variance permits it to inadvertently mine 

widths up to 211⁄2 feet wide. In that case, the variance requires the operator to use additional

bolts that are one foot longer in between the rows to support the roof in the wider area. 

Both the second and third amended motions state, “Because the area had never been 

deemed to be wider than the plan allowed, the additional bolts had not been installed.” This

explanation does not provide a sufficient evidentiary basis to support removal of an S&S 

designation. The explanation notes that the condition was not obvious, had not been noted on 

prior inspections, and did not present visible signs that a roof fall was imminent. 

While these facts would support a reduction in negligence, they would not support a 

reduction of the likelihood of injury in an area where a roof fall occurred. Additionally, the 

operator’s belief that a confluence of factors did not exist has no value to an assessment of the 

likelihood of injury from the hazard. 

The limited facts provided in the motion included an acknowledgment that at least one 

miner, the examiner, would work or travel in the area where the fall occurred—an area where the 

Secretary has alleged the roof support was deficient—and a roof fall in fact occurred. During 

that time, the area was examined at least once every shift by an examiner. The motion provided 

no facts from which one might infer that this miner was not exposed to a possible hazard of 

serious injury from a roof fall. 

A finding of S&S for a violation of an approved roof control plan is supported by 

Commission precedent. See, e.g., Consol Pa. Coal Co., 43 FMSHRC 145, 149 (Apr. 2021)

(affirming Judge’s determination that roof control plan violation was S&S); Halfway, Inc., 8 

FMSHRC 8, 12–13 (Jan. 1986) (affirming S&S for failing to comply with roof control plan 

when miners could have worked or traveled in areas with inadequately supported roof). 

Importantly, I do not find that the cited violation is or must be held to be S&S. I have been 

provided with limited facts, and neither party has waived its right to contest this issue by 

providing additional facts or legal authority at hearing. I am thus not substituting my 

enforcement judgment for that of the Secretary; I am merely noting that his conclusion that this 

violation might not be found to be S&S is entirely inconsistent with the evidence the Secretary 

himself has chosen to provide.
12

2. The Secretary has provided no facts plausibly supporting the inference that the 

violation does not meet any one of the Mathies elements.

Mathies Step 1 requires that the Secretary establish a violation of a mandatory safety 

standard. The Respondent’s roof control plan is the functional equivalent of a mandatory safety 

standard and specifies the means of compliance with the ground support requirement for 

underground mines: “The roof, face and ribs of areas where persons work or travel shall be 

supported or otherwise controlled to protect persons from hazards related to falls of the roof, face 

or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). A failure to comply with the provisions 

of a roof control plan would satisfy Step 1 of the Commission’s S&S analysis. The Secretary has 

provided no facts plausibly supporting an inference that Respondent was in compliance with the 

allowed variance.7

Mathies Step 2 requires a reasonable likelihood that the violation will cause the 

occurrence of a discrete safety hazard against which the standard is directed. The fact that a roof 

fall actually occurred here is dispositive as to the second S&S factor, because unintended roof 

falls in areas where miners work or travel is the focal point of Section 75.202(a) and the plan 

developed to ensure the protection of miners from such falls. See Jim Walter Resources, Inc., 

37 FMSHRC 493, 495–96 (2015) (noting that the Mine Act strictly requires protection of miners 

from roof falls in areas where miners work or travel). I find that an event that has occurred is 

perforce reasonably likely to have occurred. 

Unlike the second factor, the remaining two S&S factors are not conclusively established. 

However, the settlement motion must provide at least a plausible basis for concluding that a 

hearing might result in a finding that there was no S&S violation, either because one of the 

remaining factors might not be proved or depends on questionable evidence, or because there 

may not have been a violation.

Mathies Step 3 requires a reasonable likelihood that the hazard would cause an injury. It 

is accepted that roof falls may cause injury as miners have died from roof falls. See, e.g., Doe 

Run Co., 42 FMSHRC 521, 521 (Aug. 2020); Jim Walter Res., Inc., 37 FMSHRC at 493. To 

support removal of a S&S designation, the facts must allow the plausible inference that 

occurrence of the hazard would not cause an injury. The Secretary has provided that only the 

examiner travels the area and that exposure to the hazard would only last for a “split second of 

time,” but these facts are insufficient for me to plausibly infer than an injury was unlikely. 

Respondent acknowledged that an examiner traveled the area for the entire duration the 

violative condition existed. The fact that a roof fall did not occur while the examiner was 

traveling there does not negate the likelihood of an injury. Nor does the fact that the examiner 

was only exposed once per shift. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

7 The facts provided would establish a violation of the plan. The motion does not provide even a 

contention by the operator that the entries did not exceed the plan’s limits or that the additional

longer bolts permitted by the variance had been employed in the areas cited by the inspector. As 

noted in the Denial Order, my decision does not prejudice Respondent’s ability to argue or prove 

facts contrary to those provided in the settlement motions. 
13

sufficient for Step 3 that the inspector determined that miners and an examiner would be exposed 

to the hazard twice per shift). Additionally, an unplanned roof fall is an “instantaneous event,” 

so the Secretary’s mention of only a split-second exposure fails to negate the likelihood of injury. 

Mathies Step 4 requires a reasonable likelihood that the injury would be of a reasonably 

serious nature. An inspector’s conclusion that a possible injury is of a reasonably serious nature 

has been held sufficient for Step 4. Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient that the inspector characterized the potential injury as “serious”). Therefore, to support 

removal of a S&S designation, the facts provided to challenge Step 4 must allow the plausible 

inference that an injury would not be of a reasonably serious nature. 

The inspector characterized the likely injury as “fatal” at the time of citation and 

petitioned for civil penalty on that finding. Roof and rib falls are subject to an extensive 

regulatory regime precisely because of the great danger of serious injury or death posed by 

unplanned ground movements in underground mines. No facts contended by the Secretary allow 

a plausible inference to the contrary—that the injury from a roof fall might not be of a 

reasonably serious nature.

D. Application of the abuse of discretion standard leaves me no choice but to deny the 

Secretary’s motion to approve settlement.

Having made a S&S designation, the Secretary must provide substantial and relevant 

evidence as support for its removal. My denial of the Secretary’s motion to approve settlement 

was specifically based on a lack of sufficient factual support available for me to properly 

consider the settlement under the AmCoal factors.

The Secretary must provide me with a plausible basis for the proposed modification of 

Citation No. 9198038. The Commission should not condone the removal of a cited and 

petitioned designation based on the implausible conclusion that the violation did not meet the 

requirements of an S&S designation. The conclusion to which the Secretary comes—that the 

proposed modification is justified by the respondent’s contentions—must be rationally supported 

by the facts. It is not. The facts provided by the Secretary do not allow me to plausibly infer that 

the violation did not meet the Mathies requirements for a S&S designation. If anything, they 

support the existence of a S&S violation. 

III. Certification

A settlement would finally resolve this matter without a hearing. I have invited the 

parties to submit additional facts that might permit approval, and they are apparently unable to 

agree on such facts. Following Hopedale, it would not be appropriate for me to proceed to a 

hearing with this legal question unresolved. Therefore, 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 remove an S&S designation from a 
14 

contested citation without the Commission’s approval—and that immediate review will 

materially advance the final disposition of the proceeding. 

 This interlocutory ruling is hereby CERTIFIED. 

Michael G. Young 

 Administrative Law Judge 

Distribution (by email):

Alexandra J. Gilewicz, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, 

Suite 401, Arlington, VA 22202 gilewicz.alexandra.j@dol.gov 

Emily Toler Scott, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202 scott.emily.t@dol.gov

John Miklos, Director of Health and Safety, Knight Hawk Coal, LLC, 500 Cutler-Trico Road, 

Perry, IL 62272, johnmiklos@knighthawkcoal.com