Secretary of Labor v. Cactus Canyon Quarries, Inc.

Plain-English summary

Cactus Canyon asked the Commission to review an ALJ order that denied its motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. No merits hearing had occurred, and the Commission had not issued a final decision. The Commission therefore treated the filing as a request for interlocutory review under Procedural Rule 76(a)(1). It found that the rule's certification requirements had not been met and denied the petition as premature. The underlying civil penalty proceeding remained before the ALJ.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1) and 29 C.F.R. § 2700.76(a)(1)
• Outcome: The petition for interlocutory review was denied.
• Key point: Interlocutory review requires an ALJ certification or a timely petition after the ALJ denies a request for certification.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR

MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),

Petitioner

v.

CACTUS CANYON QUARRIES, INC,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. CENT 2024-0120

A.C. No. 41-00009-592668

Mine: Fairland Plant & Qys

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BEFORE: Jordan, Chair; Baker and Marvit, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). Cactus Canyon Quarries, Inc. (“Cactus Canyon”) filed with the Commission a “Petition for Discretionary Review of Claim Preclusion Misapplied to FRCP 12(b)(1) Defense of Lack of Subject Matter Jurisdiction.” The filing challenges an order issued by a Commission Administrative Law Judge denying the operator’s motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

Although Cactus Canyon has styled its document as a petition for discretionary review, no hearing on the merits has taken place in this matter, and there has been no final decision of the Commission under section 113(d)(1) of the Act. 30 U.S.C. § 823(d)(1). We therefore construe the petition as a petition for interlocutory review under Commission Procedural Rule 76(a)(1), 29 C.F.R. § 2700.76(a)(1). See, e.g., Cactus Canyon Quarries of Texas, Inc., 25 FMSHRC 528 (Sept. 2003) (construing a pleading styled as a petition for discretionary review as a petition for interlocutory review); Southmountain Coal, Inc., 16 FMSHRC 28 (Jan. 1994) (same).

Under Commission Rule 76(a)(1), interlocutory review is a matter of sound discretion of the Commission. Review cannot be granted unless a “judge has certified, upon his own motion or the motion of a party, that his interlocutory ruling involves a controlling question of law and that in his opinion immediate review will materially advance the final disposition of the proceeding; or . . . the Judge has denied a party’s motion for certification of the interlocutory ruling to the Commission, and the party files with the Commission a petition for interlocutory review within 30 days of the Judge’s denial of such motion for certification.” 29 C.F.R. § 2700.76(a)(1).

Upon consideration of the filings of Cactus Canyon and the Secretary, and the issuances of the Judge, the Commission concludes that the procedural requirements in Commission Rule 76(a)(1) have not been met. See 29 C.F.R. § 2700.76(a)(1); Appalachian Res. WVA, LLC, 44 FMSHRC 721 (Dec. 2022) (denying petition for interlocutory review as premature); Cty Line Stone Co., 44 FMSHRC 507, 508 (July 2022) (same).

Accordingly, Cactus Canyon’s petition is denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Andy Carson, Esq.

7232 County Road 120

Marble Falls, TX 78654

[email protected]

Felix R. Marquez, Esq.

U.S. Department of Labor

Office of the Solicitor

525 S. Griffin Street, Suite 501

Dallas, TX 75202-5092

[email protected]

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Administrative Law Judge Alan G. Paez

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

Chief Administrative Law Judge Glynn Voisin

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]