Secretary of Labor v. Hopedale Mining, LLC

Plain-English summary

MSHA cited four significant-and-substantial failures to follow Hopedale Mining's ventilation plan, including inadequate airflow, a misplaced curtain, plugged water sprays, and insufficient roof-bolter vacuum. The parties proposed reducing the total penalties from $18,093 to $3,339 after lowering negligence on all four citations and gravity on two. An ALJ rejected the settlement, convened a hearing before resolving the request for interlocutory review, and then vacated violations the parties had stipulated occurred. The Commission majority reversed those procedural and settlement rulings, restored the admitted citations, and approved the $3,339 agreement as fair, reasonable, factually appropriate, and protective of the public interest. Commissioners Mary Lu Jordan and Arthur Traynor concurred in part but would have upheld the Judge's rejection of the penalty reductions.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.370(a)(1)
• Outcome: The Judge's merits ruling and settlement denial were vacated, and the four-citation settlement was approved for $3,339.
• Key point: A Judge must allow the prescribed interlocutory-review process and evaluate a settlement on the parties' submitted facts without turning the review into an independent prosecution.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                    

MINE
SAFETY AND HEALTH                    :

ADMINISTRATION
(MSHA)                       :

:

v.
                                              :         Docket No. LAKE 2019-0149

:        

HOPEDALE MINING,
LLC                            :

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

DECISION

BY: Rajkovich,
Chairman; Young, and Althen, Commissioners

This
civil penalty proceeding arises under the Federal Mine Safety and Act of 1977,

30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). It involves the review of a
Commission Administrative Law Judge’s denial of a proposed settlement between
the Secretary of Labor and Hopedale Mining, LLC, regarding four citations, and
the Judge’s subsequent convening of a hearing rather than ruling on a motion
seeking interlocutory review of the denial. 41 FMSHRC 322, 339 (Jun. 2019)
(ALJ).

For
the reasons that follow, we reverse the Judge’s denial of the motion seeking
interlocutory review, and vacate that portion of the Judge’s decision reaching
the merits of the citations. We further reverse the Judge’s denial of approval
of the settlement motions and approve the settlement.

I.

Factual and Procedural Background

At issue in the
proposed settlement are four citations issued to Hopedale on December 4, 2018,
at its underground coal mine located in Harrison County, Ohio. All four
citations alleged a significant and substantial (“S&S”) [1] violation
of 30 C.F.R. § 75.370(a)(1) [2]
for failure to follow the mine’s ventilation plan. More specifically, Citation
No. 8055975 alleged that the operator failed to follow the ventilation plan in
an area where the roof bolter was operating because an air reading behind a
line curtain measured 2,792 cfm rather than the required measurement of 3,000
cfm. Citation No. 8055976 alleged that the operator failed to follow the
ventilation plan because the operator failed to drop a tail curtain in an
intake entry while cutting into intake air. Citation No. 8055977 alleged that
only 19 of 30 water sprays on a continuous miner were operating, while the
ventilation plan requires a minimum of 27 of 30 sprays to be operating. Citation
No. 8055978 alleged that the roof bolter’s vacuum measured only 10 inches of
mercury (Hg), while the ventilation plan requires 12 inches.

The
Department of Labor’s Mine Safety and Health Administration (“MSHA”) proposed
civil penalties in the sum of $18,093 for the four violations. Hopedale
contested the penalties, and the matter was assigned to the Judge.

On
March 25, 2019, the Secretary filed a motion to approve settlement stating that
the operator agreed to pay $3,339 of the $18,093 penalty proposal total. The
penalties agreed to in settlement were calculated in accordance with 30 C.F.R.
Part 100 based on agreed upon reduced levels of gravity for two citations and
reduced negligence for all four citations. The parties agreed that negligence
of three of the four citations should be reduced from moderate to low, that
negligence of one of the four citations should be reduced from high to
moderate, and that the gravity of two citations should be reduced from highly
likely to result in injury to reasonably likely to result in injury.

That
same day, the Judge sent an email to the parties stating that she could not
approve the settlement as submitted because of the seriousness of the
violations and the operator’s history of ventilation violations. Mot. for
Recon., Ex. B. The Judge thereafter set the matter for hearing on April 24,
2019, and ordered the parties to submit a list of witnesses and exhibits if the
matter did not settle. On April 5, 2019, the Secretary submitted an amended
motion to approve settlement, providing additional information with respect to
each citation.

Five
days later, on April 10, the Judge, sua sponte, issued a subpoena directing the
MSHA inspector who issued the citations to appear and testify at the hearing on
April 24, and to bring materials related to issuance of the citations. Subsequently,
Hopedale and the Secretary filed prehearing submissions in response to the
Judge’s hearing notice, identically stating that they did not intend to present
witnesses during the hearing and that the proposed exhibits they intended to
introduce were joint stipulations.

On
April 17, 2019, the Judge issued an order denying the amended motion for
settlement. On April 22, the Secretary filed a Motion for Reconsideration of
Denial of Settlement Agreements, or, alternatively, Motion to Revoke Subpoena,
or alternatively, Motion to Certify for Interlocutory Review and for Stay
Pending Interlocutory Review. [3]

On
April 24, the parties and Judge met at the hearing site. The Judge provided the
parties with an opportunity to argue about the appropriateness of the
settlement and the pending motion prior to the actual start of the hearing. Tr.
5-8, 19, 20-23. The Judge denied the motion for reconsideration, but did not
rule on the motions pertaining to the subpoena or interlocutory review. The
Judge informed the parties that they were expected to call witnesses if they
wanted facts in the record and not stipulations. Tr. 27. The Secretary
submitted revised stipulations into the record, which were admitted. Tr. 15, 29,

33. Although the inspector was present, the Judge did not ask him any
    questions. Tr. 39-40. Rather, the Judge dismissed the case on the basis that
    the Secretary failed to meet his burden of proving the violations. Tr. 39-40.

On
June 24, 2019, the Judge issued the decision, vacating the citations and
dismissing the case. First, the Judge concluded that prior to hearing, the
settlement proposals were rejected because they were not fair, reasonable,
appropriate under the facts, or in furtherance of the public interest. The
Judge explained that the facts presented in the amended settlement motion and
both sets of the joint stipulations were insufficient to support the reductions
in penalties proposed. More specifically, the Judge found that the Secretary
had failed to prove lower negligence as to the four citations and a lowering of
gravity as to two citations. The Judge explained that for each citation, the
parties presented insufficient information or “information that had little to
no bearing” on the designation of gravity or negligence for which they sought
modification. 41 FMSHRC at 325.

Second,
the Judge denied the Secretary’s motion for reconsideration and its alternative
grounds for relief.  

Finally,
the Judge considered the merits of the four citations. The Judge accepted the
agreed upon facts contained in the stipulations, including that the four
violations had occurred. However, the Judge concluded that the Secretary had
failed to meet his burden of establishing all four violations as alleged in the
citations. She then vacated the citations, and dismissed the proceeding.

The
Secretary filed a petition for discretionary review, which the Commission
granted. The Secretary and Hopedale filed opening briefs contending that the
Judge made four legal errors. They contend that the Judge erroneously: (1)
convened a hearing that denied the parties the right to seek interlocutory
review; (2) issued a subpoena to obtain evidence in connection with settlement;
(3) failed to apply or incorrectly applied the standard set forth in
American Coal Co. , 38 FMSHRC 1972, 1976 (Aug. 2016) (“ AmCoal I ”);
and (4) vacated the citations even though the parties stipulated that the
violations occurred.

For
the reasons discussed below, we conclude that the Judge erred in convening a
hearing and failed to correctly apply the AmCoal I standard.

II.

Disposition

A.         The
Judge erred in convening a hearing rather than ruling on the motion seeking
interlocutory review.

The
Commission reviews a Judge’s management of a case, including pre-trial rulings,
under an abuse of discretion standard. Marfork Coal Co. , 29 FMSHRC 626,
634 (Aug. 2007). We conclude that the Judge abused discretion in convening a
hearing in this case before ruling on the Secretary’s pending motion seeking
interlocutory review.

The
Judge’s error involves in part the timing of key pre-trial rulings under the
circumstances of this case. In the Judge’s April 17 decision denying the
amended motion to approve settlement, the Judge stated that the parties would
be given one additional opportunity to explain why the settlement should be
approved, but that if the settlement were rejected, the parties should move
forward to present witnesses and exhibits.  

Five
days later, on April 22, the Secretary filed a motion requesting that the Judge
reconsider the denial of the settlement agreements. The Secretary’s motion
alternatively requested that the Judge revoke the subpoena issued to the
inspector. As a final ground of alternative relief, the Secretary requested
that if the Judge did not reconsider the denial of settlement or revoke the
subpoena, the Judge should certify both matters for interlocutory review. The
Secretary requested that the proceedings be stayed pending interlocutory
review.

The
Judge did not reschedule the April 24 hearing in order to first rule on the
Secretary’s extant motion. Rather, consistent with the Judge’s statement in the
April 17 order, the parties met at the hearing site on April 24 and were given
an opportunity to argue regarding the appropriateness of the proposed settlement.
Tr. 5-6. In addition, the Judge permitted the parties an opportunity to argue
the pending motion. Tr. 20-23.

Although
the Judge again rejected the settlement during the proceedings on April 24, she
did not explicitly rule on the motion to revoke the subpoena or the motion
seeking certification for interlocutory review. Tr. 18-19, 34-35. Rather, the
Judge disposed of the Secretary’s motion in the June 24 decision, which also
covered the post-hearing merits of the citations.

In
the June 24 decision, the Judge denied the motion seeking interlocutory review
on the basis that it was moot since the matter had already proceeded to
hearing. 41 FMSHRC at 329. The Judge reasoned that, in any event, the questions
of whether she correctly denied the settlement motions and issued a subpoena to
the inspector did not involve controlling questions of law and that the
questions were not “novel” or did not involve “unresolved questions of law.” Id.
at 330.

Commission
Procedural Rule 76 describes the requirements for interlocutory review and
provides two alternative paths by which parties may gain interlocutory review. Under
section 2700.76(a)(1)(i), the Judge may certify that the interlocutory ruling
involves a controlling question of law and that immediate review will
materially advance the final disposition of the proceeding. Alternatively,
under section 2700.76(a)(1)(ii), if the Judge denies a party’s motion for
certification of the interlocutory ruling, the party must file 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)(i)
& (ii).  

The
Judge erroneously foreclosed the opportunity for the parties to avail
themselves of the protections afforded by Rule 76(a). Even if the Judge determined
implicitly that it was appropriate to deny the motion for interlocutory review
before proceeding to a hearing on the merits, Procedural Rule 76(a)(1)(ii)
requires that the parties be allowed the opportunity to appeal that ruling to
the Commission. The issue of whether the issues should be certified for
interlocutory review became moot only as a result of the Judge’s abuse of
discretion in convening the hearing rather than ruling on the motion and
allowing the parties to seek interlocutory review directly.

Immediate
review of the question would have advanced the final disposition of this
proceeding because resolution of the question could have resulted in
settlement. The Commission has repeatedly granted interlocutory review of
orders denying approval of settlement motions. See, e.g., Solar Sources, LLC ,
41 FMSHRC 594 (Sept. 2019); Am. Aggregates of Michigan, Inc. , 41 FMSHRC
(Jun. 2019); Rockwell Mining, LLC , 40 FMSHRC 994 (Aug. 2018);
American Coal Co. , 40 FMSHRC 983 (Aug. 2018) (“ AmCoal II ”); Amax
Lead Co. of MO , 4 FMSHRC 975 (Jun. 1982) . In such instances, the
Commission concluded that the standard set forth in section 2700.76 had been
satisfied. See, e.g, Ohio Cty Coal Co. , 40 FMSHRC 1096 (Aug. 2018).

The
Judge’s decision raises further concerns, particularly regarding the longstanding
principle of party presentation. I t is not appropriate for a Judge to
assume a role as an investigating attorney, prosecuting attorney, or defense
counsel. This prohibition is underscored by the unanimous decision of the U.S.
Supreme Court in United
States v. Sineneng-Smith , 140 S.Ct. 1575 (2020). Justice Ginsburg, in
delivering the opinion of the Court, stated it very succinctly:

In our
adversarial system of adjudication, we follow the principle of party
presentation. As this Court stated in  Greenlaw  v.  United
States , 554 U. S. 237 (2008),  “in both civil and criminal cases,
in the first instance and on appeal . . ., we rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters
the parties present.” Id. at 243.

140
S.Ct. at 1579. In
quoting Justice Scalia in Castro  v. United
States ,  540
U. S. 375 (2003) , Justice Ginsburg went on to reiterate the “general
rule” that:

[O]ur system “is
designed around the premise that [parties represented by competent counsel]
know what is best for them, and are responsible for advancing the facts and argument
entitling them to relief.” Id.,  at 386 (Scalia, J., concurring in p art and concurring in judgment) .

In
short: “[C]ourts are essentially passive instruments of government.” United States  v. Samuels ,  808 F. 2d 1298, 1301 (CA8 1987)
(Arnold, J., concurring in denial of reh’g en banc) ). They “do not,
or should not, sally forth each day looking for wrongs to right. [They] wait
for cases to come to [them], and when [cases arise, courts] normally decide
only questions presented by the parties.” Ibid.

Sineneng-Smith , 140 S.Ct. at
1579.

Our dissenting colleagues, in complete
disregard of the controlling law of Sineneng-Smith , would mandate
Judges to take on the role of supervisory prosecutors. While our colleagues may
disagree with Sineneng-Smith,
it
is undoubtedly applicable to “ our adversarial system of adjudication” of Mine Act
cases.

At
the onset of these events, insistence of convening a substantive hearing without
affording the parties the opportunity to avail themselves of the process set
forth in Procedural Rule 76 was error. Accordingly, we reverse the Judge’s
denial of the Secretary’s motion seeking interlocutory review and vacate that
portion of the Judge’s decision disposing of the merits of the citations.

We
need not discuss at length additional errors – the Judge’s issuance of a
subpoena for witness at the hearing and dismissal of violations admitted by the
operator. Nevertheless, we emphasize that Judges’ conduct must conform to the principle of
party presentation as reiterated in Sineneng-Smith . For the Judge to:
schedule an almost immediate substantive hearing, deprive the parties of their
right to seek interlocutory review of the denial of the proffered settlement,
issue a subpoena for a witness attendance at the rushed hearing, and then cap
it off by vacating admitted violations, was the type of “radical transformation
of the th[e] case” that the Supreme Court rejected as judicial action that
“goes well beyond the pale.” Sineneng-Smith , 140 S.Ct. at 1581-82. Likewise,
we need not discuss at length the Judge’s clearly erroneous post-hearing
dismissal of citations with respect to which the operator had stipulated its
liability.

Thus,
we now consider the question presented in the Secretary’s petition for
discretionary review which should have been the subject of interlocutory
review, that is, whether the Judge erred in denying the proposed settlement.

B.        The
Judge erred in denying the settlement.

Section
110(k) of the Mine Act sets forth the Commission’s authority to approve
settlements of the Secretary’s proposed assessments once contested. It 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. No penalty assessment which has become a final order of the
Commission shall be compromised, mitigated, or settled except with the approval
of the court.

30
U.S.C. § 820(k). The Commission has explained that “Congress authorized the
Commission to approve the settlement of contested penalties . . . ‘to ensure
penalties serve as an effective enforcement tool, prevent abuse, and preserve
the public interest.’” AmCoal I , 38 FMSHRC at 1976 (quoting Black
Beauty Coal Co. , 34 FMSHRC 1856, 1862 (Aug. 2012)). In “effectuating this
Congressional mandate, the Commission and its Judges consider whether the
settlement of a proposed penalty is fair, reasonable, appropriate under the
facts, and protects the public interest.” AmCoal I , 38 FMSHRC at 1976.

The
Commission and its Judges must have information sufficient to carry out this responsibility.
Commission Procedural Rule 31 requires that a motion to approve penalty
settlement must include, for each violation, the penalty proposed by the
Secretary, the amount of the penalty agreed to in settlement, and facts in
support of the penalty agreed to by the parties. 29 C.F.R. § 2700.31(b)(1). The
Commission has recognized that parties may submit factual support consistent
with the penalty criteria factors found in section 110(i) of the Mine Act, 30
U.S.C. § 820(i), as well as facts supporting settlement that fall outside of
the section 110(i) factors. AmCoal I , 38 FMSHRC at 1982.

During
the review of a proposed settlement, the Judge is not expected to engage in
fact finding as she would post-hearing. See Solar Sources , 41
FMSHRC at 602 (“At the pre-hearing settlement stage of a Commission proceeding,
no evidence has been adduced into the record and the Judge is not required to
engage in fact finding.”). Judges are “expected to consider the facts as
alleged by the parties in their settlement, evaluate such information under the
applicable Commission standard for review, and determine whether the facts
support the penalty agreed to by the parties.” Id. Consideration of
facts as alleged by the parties is entirely consistent with Sineneng-Smith.

Contrary to our
dissenting colleagues’ misrepresentation, our holding does not “instruct[] our
Judges to ignore whole sections of the record before them.” Slip op. at 22. It
does not find that “Judges may no longer probe gaps or inconsistencies in the
explanation offered in support of a settlement motion.” Id. Our holding simply
follows our own precedents in a manner consistent with the Supreme Court’s
unanimous mandate regarding litigation.

We
have held that at the pretrial settlement phase of litigation, Judges may not
“assign[] probative value to some facts without the benefit of an evidentiary
hearing.” AmCoal II , 40 FMSHRC at 991. Hence, any fact finding or
legal conclusions at the settlement stage must be on the facts stipulated to
by the parties in support of their settlement motion. A Judge may request
additional facts, if the parties have not provided a sufficient basis for
evaluation under the standard we articulated in AmCoal I. The Judge,
however, may not reject stipulated facts that do not comport with the Judge’s
personal view of what should or must have happened at the time of the violation.

This
settlement, like most, was submitted on facts stipulated by the parties. There
was no testimony to review. Under such circumstances, it is unnecessary and
inappropriate to make a credibility determination regarding the stipulated
facts, directly or indirectly, unless the record before the Judge positively
demonstrated that a stipulated fact is not correct. [4]

In
prior cases, the Commission has applied an abuse of discretion standard in
reviewing the denial of a settlement. Sec’y of Labor on behalf of Shemwell
v. Armstrong Coal Co. , 36 FMSHRC 1097, 1101 (May 2014). Notably, however,
in a settlement, the Judge does not weigh conflicting evidence or make credibility
determinations. The “facts” are the representations made by the parties in the
settlement motion. The issue is whether, given the representations and
stipulations of the parties, the settlement meets the Commission’s standard for
a settlement. Thus, there is no element of support for findings of fact based
upon substantial evidence.

If
taking those representations into account, the settlement meets the standard we
articulated for approval in AmCoal I (fair, reasonable, etc.), the
settlement should be approved. Although the Commission gives weight to the
experience gained by ALJs through the handling of many settlements, the denial
of a settlement that comports with the standard we have established is an abuse
of discretion, and the Commission may exercise its discretion to accept the
settlement. The facts of the settlement come to the Commission in exactly the
same form and relevance as before the Judge.

In
sum, it is an abuse of discretion to deny a settlement when agreed-upon or
stipulated facts satisfy the standard for approval. We must review the facts
and the conclusions the Judge draws from those facts against an objective
standard, because one of the elements of the standard requires the settlement
to be “reasonable.” [5]
Under the Mine Act, it is the responsibility of the Commission to be the final
authority of the compliance of a settlement with the standards we have
established.

Although
the Judge correctly articulated the AmCoal I standard for reviewing
proposed settlements, the denial of the settlement motions was based on a
misunderstanding of the law and a misapplication of AmCoal I and its
progeny.

The
Judge misapprehended the distinction between the type of factual support necessary
to support penalty assessment after a hearing with the type of factual
support that would satisfy the AmCoal standard before a hearing and
before any evidence has been adduced . That is, the Judge erred by requiring
the parties to provide evidence to support findings that would be appropriate
after a hearing, rather than during a settlement review.

Indeed,
the distinction between how factual support should be handled by the Judge
during settlement review versus how a penalty is set after a hearing is set
forth in the Commission’s procedural rules. During a Judge’s consideration of
reduced penalties in settlement, a Judge need not make factual findings with
respect to each of the section 110(i) factors. [6]
AmCoal I , 38 FMSHRC at 1982; AmCoal II , 40 FMSHRC at 991. Rather,
Commission Procedural Rule 31(g) provides that a Judge’s decision approving
settlement need only “set forth the reasons for approval and shall be supported
by the record.” 29 C.F.R. § 2700.31(g). In contrast, Commission Procedural Rule
30(a) provides that in assessing a penalty after a hearing, a Judge “shall
determine the amount of penalty in accordance with the six statutory criteria
contained in section 110(i) of the Act,” and that the decision “shall contain
findings of fact and conclusions of law on each of the statutory criteria.” 29
C.F.R. § 2700.30(a).

In
the proposed settlement, the parties provided facts supported by the record
with respect to the four ventilation plan violations supporting one-gradient
reductions in gravity regarding two of the citations and in negligence
regarding all four. In addition, in response to the Judge’s statement that the
operator had a “significant” history of violations, the parties provided
specific facts related to the operator’s ventilation plan violation history. Tr.
30-32; Jt. Ex. 2 at ¶¶ 4, 7(a), 8(a), 9(a), 10(a).  

Although
Hopedale agreed to accept the fact of violation as to all four citations, the
parties provided facts supporting the penalty reduction that showed partial
compliance with the relevant portions of the ventilation plan. With respect to
Citation No. 8055975, the 2,792 cfm air reading taken by the inspector behind
the line curtain was 93% of the level required by the plan (3,000 cfm). Jt. Ex.
2 at ¶ 7(f). The parties agreed that the section supervisor’s air reading,
which was taken just prior to the inspection, showed over 3,200 cfm of air
behind the line curtain, and that the inspector’s notes confirmed that the
foreman stated he had over 3,000 cfm prior to roof bolters installing roof
bolts. Id . at ¶¶ 7(e), (g).

With
respect to Citation No. 8055977, approximately two-thirds of the water sprays
on the continuous miner were functional, and the inspector’s contemporaneous
notes reflected that the water sprays had been checked after the miner
completed the third cut of the shift. Id. at ¶ 9(g).

With
respect to Citation No. 8055978, the parties stated that the inspector’s notes
reflected that the roof bolter parameters had been in compliance at the start
of the shift, and that the roof bolter’s vacuum later measured 10 inches of the
12 inches of mercury required under the ventilation plan. Id. at ¶ 10(e);
Amended Set. Mot. at 5 ¶ 7(d).

Related
to the level of negligence, Hopedale also provided facts demonstrating that the
violative conditions were not obvious or readily known to the operator. Jt. Ex.
2 at ¶ 7(h); Amended Set. Mot. at 3-5 ¶¶ 7(a), (b), (c), (d). The Secretary
agreed to accept such facts in mitigation of the penalties. Amended Set. Mot.
at 5-6 ¶ 8.

As
to Citation No. 8055975, the parties agreed that “[a]s the continuous miner
advances through the section, it moves further away from the source of
ventilation, potentially resulting in an air volume reading lower than what is
required by the ventilation plan, but at a variation in volume not readily
discernable to a miner.” Jt. Ex. 2 at ¶ 7(h). With respect to Citation No.
8055977, Hopedale provided that the location of the plugged sprays made it
difficult for the miner operator to recognize that the sprays were plugged, and
that dust was not observed “rolling” over the miner operator or shuttle car
operators. [7]
Amended Set. Mot. at 4 ¶ 7(c). As to Citation No. 8055976, “the Secretary
agree[d] the section foreman was at the continuous miner as it cut through from
E to F but was unaware the ventilation curtain had not been adjusted per the
requirements of the plan prior to cutting through.” Id. at 3 ¶ 7(b). Similarly,
Hopedale contended with respect to Citation No. 8055978, that the difference in
10 inches and 12 inches of mercury was not easily detected by the roof bolter
operator. Id. at 5 ¶ 7(d).

Although
Hopedale agreed to accept the S&S designations for all four violations, it
provided facts related to a lowering of gravity as to Citation Nos. 8055976 and
8055977, and the Secretary agreed to accept such facts in mitigation of the
penalties. The parties agreed that the inspector’s contemporaneous notes
reflected that the respirable dust parameters were in compliance at the start
of the shift. Jt. Ex. 2 at ¶ 9(g). Hopedale provided results of Continuous
Personal Dust Monitoring samples that were taken from the shuttle car operators
on the section at the time the citations were issued that showed readings below
the 1.5 mg standard. Amended Set. Mot. at 3 ¶¶ 7(b), (c). In addition, the
Secretary stipulated that he was “aware of no evidence that respirable dust
exposures experienced by other miners, including the roof bolters and the
continuous miner operator, exceeded the standard.” Jt. Ex. 2 at ¶ 8(g).

In
concluding that the Secretary had failed to justify the lowering of negligence
as to the four citations and the lowering of gravity for two of those
citations, the Judge erred in applying an overly-stringent standard. The Judge
erroneously considered the proposed penalties in settlement against the section
110(i) factors in a similar manner that would be required after a hearing .
For instance, in the Judge’s April 17 settlement denial, the Judge noted that
facts showing no violation of the dust standard with regard to the shuttle car
operators did not support the reduction because “the continuous miner operator
and the roof bolter do not have the same exposure as shuttle car operators.” Unpublished
Order at 3 (April 17, 2019). In the portion of the June decision considering
the merits of the citations after hearing, the Judge similarly reasoned that
the likelihood of injury for Citation No. 8055976 should not be modified based
upon the shuttle car operators’ samples because shuttle car operators do not
receive the same or similar dust exposure as the continuous miner operators. 41
FMSHRC at 335.

The
Judge also concluded that the levels of negligence should not be reduced in
settlement because a foreman had been in the area at the time that the
citations were issued.  41 FMSHRC at 328. The Judge appears to make a
credibility determination that the foreman’s lack of knowledge was not
credible, but there is no basis to make such a determination because there is
no record to support such speculation.

Moreover,
the Commission has considered the absence of a foreman as a factor supporting a
reduced penalty in settlement. Ohio Cty Coal , 40 FMSHRC at 1098-99 &
n.3. The Commission’s recognition that the absence of a foreman supports a
penalty reduction in settlement does not necessarily lead to the conclusion
that the presence of a foreman prohibits the reduction of penalty in
settlement, particularly under the facts provided by Hopedale and the Secretary
to support the penalties agreed to in settlement.

Similarly,
the Judge erred by essentially requiring the parties to prove a particular level
of negligence in the context of settlement, much as would be required after
a hearing . Fact-finding against various legal standards of negligence and
gravity is not appropriate during settlement review when no evidence has been
adduced, although such fact-finding is required following a hearing on the
merits. Rather, during a settlement review, a Judge need only review the
proposed penalty reduction to see if it is “fair, reasonable, appropriate under
the facts, and protects the public interest.” AmCoal I , 38 FMSHRC at
1976.

Furthermore,
the Judge made a fundamental error in the application of AmCoal II in
stating that the citations would retain their enforcement value only if
Hopedale had accepted them as they had been written at issuance. 41 FMSHRC at

327. Under the Judge’s faulty reasoning, any proposed penalty reductions
     modified in accordance with Part 100 during settlement would have no
     enforcement value.

Giving
“due consideration to the entirety of the proposed settlement package,
including both its monetary and nonmonetary aspects,” we conclude that the
non-monetary aspect of the proposed settlement, that is, the enforcement value
of the citations, is significant. AmCoal II , 40 FMSHRC at 989 (citations
omitted). Hopedale agreed to accept the fact of violation as to all four
citations, that all four violations were S&S, and that all four violations
were a result of the operator’s negligence. The important nature and quality of
the violations has been preserved for enforcement purposes.   

As
the Commission recognized in AmCoal I , “under the Mine Act, violations
accepted by an operator in a settlement agreement may be considered as part of
the operator’s history of violations in the assessment of future civil penalty
assessments.” 38 FMSHRC at 1984 (citation omitted). Thus, the four citations
have enforcement value in that they may be considered as part of Hopedale’s
history of violations in the calculation of civil penalties for future
violations.

In
such future assessments, Hopedale may not benefit from the reduced penalties it
paid in settlement. The Commission has explained that the amount of penalties
assessed in the context of a settlement may not be used to arrive at penalties
assessed in a decision on the merits after a hearing. Newmont USA, Ltd. ,
37 FMSHRC 499, 506 (Mar. 2015). [8]

The
Judge also erred to the extent she concluded that the settlement should not be approved
because of the operator’s history of violations. In the March 25 denial, the
Judge noted in part that the operator had a “significant history of ignoring
the ventilation requirements.” Mot. for Recon., Ex. B. The Judge later based the
April 17 rejection of the settlement in part on “the operator’s significant
history of similar violations for failure to adhere to ventilation plan
requirements.” Unpublished Order at 2 (Apr. 17, 2019). The Judge observed that
the parties had failed to address that history and attached the operator’s
two-year history of violations to the order. Id. at 2-3. The Judge later
incorporated the earlier decisions in the June 24 decision (41 FMSHRC at 324),
but did not appear to address the operator’s history of violations in the
Judge’s June evaluation of the settlement. [9]

As
previously noted, primary authority to approve settlements of contested proposed
assessments is vested by Congress in the Commission. 30 U.S.C. § 820(k); AmCoal
I , 38 FMSHRC at 1976. While such authority may be delegated to the Judges,
the Commissioners retain such full authority to find a proposed settlement is
otherwise fair, reasonable, appropriate under the facts, and protects the
public interest.

Contrary
to the Judge’s determination, the facts provided by the parties in regard to
the operator’s violation history supported the penalty reduction agreed to in
settlement. The parties submitted facts that: (1) in the two years prior to the
instant citations, the operator was cited for violations of 30 C.F.R. §
75.370(a)(1) on 10 occasions, seven of which were not classified as S&S;
and (2) during calendar year 2018, only four 30 C.F.R. § 75.370(a)(1)
violations were issued prior to the subject citations. Jt. Ex. 2 at ¶ 4. The
parties also provided information regarding how often the Hopedale Mine had
been cited for the violations that were cited in the subject citations during
the prior two years. They stipulated: (1) Citation No. 8055975 - only one
previous violation (Aug. 28, 2018); (2) Citation No. 8055976 – no previous
violations; (3) Citation No. 8055977 – two previous violations (on April 24,
2017 and on Dec. 18, 2017); and (4) Citation No. 8055978 - one previous
violation (Nov. 13, 2017). Id. at 2-7 at ¶¶ 7(a), 8(a), 9(a), 10(a). These
four citations, and this compliance history, are wholly inconsistent with our
dissenting colleagues’ characterization of the operator as “cavalier – almost
indifferent – to the need to comply with these important safety standards.” Slip
op. at 15.

In
sum, the Judge misapplied our precedents governing settlements. The Judge
erroneously reviewed the facts submitted by the parties to support settlement
against the more stringent standard that applies after a hearing on the merits.
The Judge further failed to reconcile the Judge’s earlier holding that the
operator’s history of violations supported rejection of the settlement with
additional facts submitted by the parties that supported the settlement. Finally,
the Judge erred by concluding that the violations lacked enforcement value
because they had not been accepted as written. [10]
41 FMSHRC at 327.

The
Commission and its Judges may not look behind the Secretary’s decision to
settle or behind the decision to choose a particular amount for settlement. See
AmCoal I , 38 FMSHRC at 1980 (“The Commission does not review the
Secretary’s decision to settle . Rather, the Commission reviews the
proposed reduction of civil penalties in settlements.”) (emphasis in original);
Tazco, Inc. , 3 FMSHRC 1895, 1897 (Aug. 1981) (noting that the
Commission’s and its Judges powers are limited by the Mine Act). Instead, we
review the proposed penalty reductions in settlement with the facts submitted
by the parties against the AmCoal I standard.

Upon
reviewing the facts submitted by the parties in the amended motion to approve settlement
and amended joint stipulations, we conclude that the proposed reduction of
penalties is fair, reasonable, appropriate under the facts, and protects the
public interest. Because the parties presented sufficient facts to support the
reduced penalties agreed to in settlement, we conclude that remand is
unnecessary. See, e.g., Solar Sources , 41 FMSHRC at 605. [11]

Our dissenting colleagues cite, with
apparent approval, that 99.96% of all settlement agreements were granted in the
years 2011 to 2016 – that is, about 1 in approximately every 2,200 motions. Slip
op. at 16 n.2. Nevertheless, their dissent would make one think that the
exercise of our discretion to grant the settlement places the settlement
process on the verge of collapse.

In fact, however, the rarity of
disapproval suggests that the defects of a properly-rejected settlement should
be self-evident, and easily explained. The Judge’s role is as an adjudicator
not as an investigator or as a prosecutor. The 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. The rejection therefore does not conform to the
standards we have established for the evaluation of settlements, consistent
with our precedents and the directives of Congress.

III.

Conclusion

For
the reasons set forth above, we reverse the Judge’s denial of the motion
seeking interlocutory review, and vacate that portion of the Judge’s decision
reaching the merits of the citations. We reverse the Judge’s denial of the
settlement motions and approve the settlement.

/s/ Marco M.
Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Chairman

/s/ Michael G.
Young

Michael G.
Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Commissioners Jordan and Traynor
concurring in part and dissenting in part:

I.

Introduction

This case
involves serious violations of ventilation regulations that could lead to dust
exposure. The inspector arrived at the mine and saw that at every phase of
mining there was something wrong. When the four violations are reviewed
together, it appears that the operator was cavalier – almost indifferent – to
the need to comply with these important safety standards. Almost the entire
mining cycle was affected – the curtain, the continuous miner, the roof bolter,
the air flow.

The original
penalty assessment was $18,093. The proposed settlement amount was $3,339. As
the Judge noted, this was a major reduction of almost 81.5%.

It is
significant that the foreman was present on the section when these violations
occurred. It was his job to make sure that the curtain was moved properly, and
that the water sprays on the continuous miner were properly maintained. It was
certainly not mitigating to allege that the foreman simply was not aware of some
of these violations. A “should have known” analysis is reasonable here, and not
inconsistent with our caselaw examining the section 110(i) negligence
criterion. And the Judge’s application of that analysis is not outside the
boundaries of her wide discretion. 41 FMSHRC 322, 328 (Jun. 2019) (ALJ).

The Judge
concluded that the proposed penalty amount was not an adequate deterrent. She
reviewed the facts provided by the parties and concluded that they had not
persuaded her to grant the motion.

This is not
an abuse of discretion – one must keep in mind that this is an extremely
deferential standard. The majority’s focus on deciding for themselves whether there
is enough there to approve the settlement is far afield from our precedents
emphasizing that our Judges have wide discretion that may not be
reversed by a Commission that simply wishes to substitute its own preferred
outcome. This is not consistent with the deference owed a Judge’s exercise of
discretionary judgment.

In short,
the Judge’s denial of the motion is supported by the factual record and is the
product of a reasonable determination, a determination made within the
boundaries of her discretion. Thus, her denial should be affirmed.

The majority
decision ends meaningful substantive review of agreements between the
government and mine operators to reduce the penalties the government originally
proposes in connection with mine safety violations, enabling nearly
frictionless and potentially unwarranted reduction of such penalties. The
Commission has in multiple decisions recognized that this is not what Congress
intended. Our precedents recognize that under the statutory enforcement
framework preceding the 1977 Mine Act, 1 the government’s
compromise of proposed penalties without oversight or transparency had
seriously undermined safety enforcement. And that Congress responded in the
Mine Act of 1977 by requiring the Commission to review and, only if warranted,
approve the Secretary’s compromise of a proposed penalty in an agreement to
settle an operator’s contest of a citation. Yet today, the majority,
substituting its view of the case for that of the Judge, finds that she erred
by undertaking a meaningful evaluation of the parties’ contention that the
penalty reduction is justified.

The Commission
and its Judges have for decades fulfilled their settlement review
responsibility by requiring the Secretary to publicly demonstrate that the
penalty reductions are warranted by addressing in his settlement motions, among
other things, the amount of the Secretary’s original penalty proposal and those
facts justifying Commission approval of a lesser penalty. Our Judges have then
exercised wide discretion, referencing the section 110(i) penalty criteria and
other factors, to determine whether the compromising parties had provided in
their motion a full set of accurate facts and information sufficient to
publicly demonstrate that the reduced penalty is “fair, reasonable, appropriate
under the facts, and protects the public interest.” American Coal Co. ,
38 FMSHRC 1972, 1976 (Aug. 2016) (“ AmCoal I ”). See also 40
FMSHRC 983, 984 (Aug. 2018) (“ AmCoal II ”).

The majority’s
decision in this case cuts the heart out of unanimous decisions in the American
Coal case and in other prior precedents governing transparent settlement
approval, making major changes to this area of law. 2 First,
the majority strips our Judges of the power and responsibility to look beyond
the self-serving presentation of select facts and legal conclusions in the
parties’ settlement motion to determine in their own discretion whether the
alleged facts and proffered conclusions, examined in light of the record as a
whole, demonstrate the proposed penalty reductions are actually “fair,
reasonable, appropriate under the facts, and protects the public interest.” AmCoal
I , 38 FMSHRC at 1976. In a sharp departure from settled precedent, the
majority prohibits our Judges from assessing whether a penalty reduction the
parties attempt to justify by reference to agreed upon modifications to the
contested citations is warranted by application of section 110(i) and other
factors we have recognized as relevant to our penalty assessment role. 3

Second, though
they do so only implicitly, the majority reviews the Judge’s decision on each
of the AmCoal elements – fairness, reasonableness, appropriateness to
the facts, and the public interest – under a de novo rather than an abuse
of discretion standard. This break from precedent undertakes a nearly total
elimination of our Judges’ discretion to determine whether a penalty reduction
is warranted. And does so in a case where no arguments against such a
significant change were litigated, the parties’ positions were fully aligned
and no party before the Commission presented argument in opposition. In this
non-adversarial proceeding, both sides sought the same outcome and the majority
delivered it, along with the apparent reversal of the foundational precedents
applying section 110(k) of the Mine Act, 30 U.S.C. § 820(k). 4

While we concur that the
Judge erred in vacating the citations, we disagree with the majority’s decision
to usurp the Judge’s discretion by granting the motion to approve settlement. 5
We conclude that the Judge’s rationale for rejecting the parties’ proposed
settlement is consistent with our well settled and deferential standard of
review. Accordingly, we would remand this proceeding to the Judge, with
instructions to the parties to reconsider their settlement agreement and to
file a new motion. If the parties do not agree to settle, and they continue to
stipulate to the violations, we would have the Judge assess a penalty (which
could necessitate a hearing).

Below, we recount the origin
and development of the legal standard our Judges apply for settlement approval
decisions and our own standard for review of the same. Then, we highlight how
much the majority’s decision departs from these precedents, before concluding
with an application of those precedents to the facts of this case.

II.

Discussion

A.        The Commission and its Judges’
Settlement Review Obligation

Once the penalties
which the government proposes for mine safety violations have been contested
before the Commission, the Mine Act does not permit the government and mine
operators to settle or compromise such penalties unless and until they obtain
Commission approval. Section 110(k) of the Act provides:

No proposed penalty which has been contested before
the Commission under section 815(a) of this title shall be compromised,
mitigated, or settled except with the approval of the Commission. No penalty
assessment which has become a final order of the Commission shall be
compromised, mitigated, or settled except with the approval of the court.

30 U.S.C. § 820(k). Some of the earliest
cases in which the Commission exercised its settlement approval authority under
section 110(k) recognized that “[t]he judges’ front line oversight of the
settlement process is an adjudicative function that necessarily involves
wide discretion .” Knox Cty. Stone Co. , 3 FMSHRC 2478, 2479
(1981) (emphasis added). These early cases emphasized the degree to which we
must defer to the reasonable exercise of our Judges’ discretion to accept or
reject proposed penalty settlements. See, e.g., Pontiki Coal Corp ., 8
FMSHRC 668, 675 (May 1986) (“the Commission has stated repeatedly, if a judge disagrees
with a stipulated penalty amount or believes that any questionable matters
bearing on the violation or appropriate penalty amount need to be clarified
through trial, he is free to reject the settlement and direct the matter for
hearing”).

Our precedents
have continued to hold that our Judges’ wide discretion is a fundamental aspect
of our settlement review under section 110(k), observing more recently:

[The] statutory language [in the Mine Act] contains
no explicit restrictions on what a Commission Judge may consider when reviewing
a settlement proposal . Thus, Congress provided a broad mandate to the
Commission (and its Judges), charging it with reviewing and approving all
settlements of penalty cases pending before it and imposing no explicit limits
on what should be considered in this review.

Black Beauty Coal Co ., 34 FMSHRC at
1865 (emphasis added).

In Black
Beauty , the Commission affirmed that section 110(k) and the Mine Act’s
legislative history make clear that Congress requires the Commission to
scrutinize the settlement of contested penalties “[i]n order to ensure
penalties serve as an effective enforcement tool, prevent abuse, and preserve
the public interest.” Id . at 1862 (citations omitted). In order to carry
out that function, the Commission in Black Beauty expressly rejected the
Secretary’s contention that “it has no authority to review the underlying
modification of the citation.” Id . at 1860. Observing that under section
110(i) of the Act, only the Commission has authority to “assess all civil
penalties provided in this Act,” id . at 1862, the Commission held that
“if a Judge’s approval or rejection of a settlement is ‘fully supported’ by the
record, consistent with the [section 110(i)] statutory penalty criteria, and
not otherwise improper, it will not be disturbed, but . . . abuses of discretion or plain errors are subject to
reversal.” Id . at 1864. 6

In addition to
holding that a Judge must review the underlying modification of a citation
offered as justification for a penalty reduction to ensure, inter alia ,
that it is consistent with the 110(i) penalty criteria, the Commission in Black
Beauty was also very clear that a Judge had wide discretion to require
information from the parties demonstrating the same, holding that its Judges
are “clearly authorized by the Mine Act to review a proposed settlement of a
contested penalty and to require the parties to submit the factual support
necessary for that review.” Id . at 1860. Thus, the Commission in Black
Beauty concluded, “[t]he Judge did not abuse her discretion in requiring
the Secretary to provide further factual support to demonstrate the penalty
criteria as they relate to the subject penalties [and] . . . [o]n remand, the
Judge shall take such further evidence as she reasonably requires
to consider the six statutory criteria [in section 110(i)] in reviewing the
motions for settlement.” Id. at 1864, 1869 (emphasis added). 7

In carrying out
the Congressional mandate to oversee and ensure transparent justification of
penalty settlements, the Commission and its Judges regularly request that the
parties provide additional information – e.g ., explanations as to how
the facts in the record, in light of applicable caselaw, justify the penalty
reduction proposed in the motion. Often, depending on how the parties attempt
to justify their settlement, such information pertains to the statutory
criteria for assessment of civil penalties set forth in section 110(i). See,
e.g., Knox County Stone Co ., 3 FMSHRC at 2480 (stating that “the judge
issued to the parties a notice of hearing and pretrial order requiring in two
phased responses extensive information relevant to the six penalty criteria
specified in section 110(i) of the Mine Act”).

After issuing Black
Beauty, the Commission in subsequent cases faithfully applied its ruling to
require Judges to determine that information provided by the parties in light
of the record as a whole justifies the proposed reduction in penalty in
accordance with the section 110(i) penalty criteria. See Big Ridge,
Inc ., 38 FMSHRC 1348, 1349 (June 2016) (“In light of the factual
justifications provided by the parties, we determine that the penalty is
appropriate under the criteria set forth in section 110(i) of the Mine Act . . .
[and] further find that the terms of the settlement are supported by the
record, in accordance with Commission case law.”); see also UMWA, on behalf
of Franks v. Emerald Coal Res ., 38 FMSHRC 935, 938 (May 2016) (finding that
the information provided demonstrates that a reduction in penalty is
appropriate under the criteria in section 110(i)).

In 2016, the
Secretary chose American Coal “to be the ‘test case’ for advancing his
position that the Commission’s authority to review settlements of contested
penalties under Section 110(k)… is much more limited than that described in Black
Beauty Coal Co. ” AmCoal I , 38 FMSHRC at 1972-73. We issued two
unanimous decisions in the American Coal Co. case that comprehensively addressed
the substance of our Judges’ responsibility to obtain sufficient information to
decide whether a proposed penalty reduction is warranted and to ensure that the
penalty reduction is transparent. To prompt the test case, the Secretary
attached to its motion to approve settlement in AmCoal I (and
subsequently in other cases) boilerplate referencing a unilateral “professional
judgment” and a desire to conserve “resources that the Secretary would need to
expend in going through a trial” in lieu of the substantive factual support
traditionally provided to justify a penalty reduction. 8 Id .
at 1973-74. The Secretary took the position that section 110(k) review is
perfunctory and limited to “whether the proposed settlement (1) is legally
sound, (2) is clear, (3) resolves the claims in the penalty petition, and (4)
is not tainted by improper collusion or corruption.” Id. at 1983. The
operator agreed.

The Commission
rejected the Secretary and operator’s position, concluding adoption of their
proposed “standard would effectively render section 110(k) meaningless,” id .
at 1983, and “is completely inconsistent with the need for transparency that
Section 110(k) was enacted to address.” Id . at 1984. The Commission, in
a unanimous opinion, elaborated on this basis for our decision by reciting key
excerpts of the legislative history of section 110(k), as it did in its Black
Beauty decision, including Congress’s finding that under the predecessor to
the Mine Act, “to a great extent the compromising of assessed penalties [did]
not come under public scrutiny” and that “even after a petition for civil
penalty had been filed, settlement efforts between the operator and Solicitor
[were] not on the record, and a settlement need not be approved by the
Administrative Law Judge.” Id . at 1975-76 (quoting Legis. Hist.
at 632-33).

The Commission
in AmCoal I reaffirmed Congress’s clear explanation 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 off-the-record
negotiations are avoided.’” Id . at 1976. (emphasis added in AmCoal
I ). It also affirmed “the purpose of civil penalties, [that is,] convincing
operators to comply with the Act’s requirements, is best served when the
process by which these penalties are assessed and collected is carried out in
public,” where miners, Congress, and other interested parties, “can fully
observe the process.” Id .

The
Congressional transparency mandate has always meant 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. See, e.g., Co-Op Mining Co .,
2 FMSHRC 3475, 3475 (Dec. 1980) (“[S]ettlement should not have been approved
[where t]he parties’ stipulation shows that the alleged violation did not
occur.”); Madison Branch Mgmt. , 17 FMSHRC 859, 864 (Jun. 1995) (“[T]he
Commission will not disturb a Judge’s approval or rejection of a settlement if
it is supported by the record, is consistent with the six statutory criteria
specified in section 110(i) of the Act for the assessment of civil penalties,
and is not otherwise improper.”). Referencing its holding in Black Beauty ,
the Commission in AmCoal I held “[t]he requirements to provide factual
support in the settlement proposal and for the [J]udge’s decision approving
settlement to be supported by the record have been largely unchanged since the
inception of the Commission’s procedural rules in 1979” and “standards for such
factual support may be found in section 110(i).” AmCoal I , 38 FMSHRC at
1981. Indeed, the Commission expressly rejected the Secretary’s argument that
“it is inappropriate for a Judge to consider section 110(i) factors when
considering whether to approve a proposed penalty settlement” and reaffirmed
that the reach of section 110(i) “clearly includes contested penalties that are
the subject of a settlement agreement.” Id. at 1981-82 (internal quotations
omitted).

In AmCoal I ,
we affirmed the centrality of the section 110(i) factors to all penalty
assessments, whether they result from contest or compromise. In recognition of
our Judges’ wide discretion, including our precedents requiring them to consider
certain factors outside of section 110(i) penalty criteria when presented in a
motion to approve settlement, Judges are not required to “make factual findings
with respect to each of the section 110(i) factors as a Judge would in the
assessment of a penalty after hearing. Rather, the Judge considers such
information in the evaluation of whether the proposed reduction of penalties is
fair, reasonable, appropriate under the facts, and protects the public
interest.” Id . at 1982.

We affirmed the Judge’s
rejection of the settlement agreement in AmCoal I and remanded the case.
The Secretary and operator filed a second settlement motion, which was also
rejected by the same Judge. We took review of an interlocutory appeal from that
decision in AmCoal II . The resulting unanimous decision fully affirmed
the above described holdings in AmCoal I and Black Beauty ,
including the requirement that “the parties provide mutually acceptable facts
that demonstrate the proposed penalty reduction is fair, reasonable,
appropriate under the facts, and protects the public interest.” AmCoal II ,
40 FMSHRC at 991. The Commission also held that a full explanation as to how
the Judge concluded that the penalty reduction was warranted serves to protect
the “public interest in evaluating whether a settlement should be approved.” Id .
at 987-88. The Judge’s decision was vacated for a variety of errors, inter
alia , a mistaken interpretation of our decision in AmCoal I as
prohibiting consideration of any factors outside of section 110(i), a failure
to consider nonmonetary aspects of the settlement, etc. But, importantly, it
was remanded back to him for reconsideration of the settlement motion.

Commission
decisions issued contemporaneous with and subsequent to AmCoal II have
reinforced our Judges’ active role in verifying, noting inconsistencies and
filling gaps in the factual representations and legal contentions parties make
to justify settlement motions. For example, in The Ohio County Coal Company ,
a Judge denied a motion claiming a penalty reduction was warranted because the
section 110(i) negligence level should be reduced from “moderate” to “low.” 40
FMSHRC 1096 (Aug. 2018). The parties’ motion sought to justify the reduction by
explaining that a foreman was not present at the time of the violation,
pointing out that the foreman’s absence was recorded in the inspector’s
contemporaneous notes. The Judge denied the settlement for the sole reason that
he mistakenly perceived an inconsistency in the facts offered to support the
motion that was not adequately explained. The Commission reversed,
acknowledging that such inconsistencies are certainly germane to the Judge’s
analysis, but explaining at length how the Judge misconstrued the facts and
concluding in this case the Commission “do[es] not discern an internal
inconsistency in the settlement terms that undermines the parties’ agreement.” Id.
at 1099.

Recently, the
Commission emphatically reaffirmed the authority of our Judges to request
additional facts when presented with a settlement motion. In Solar Sources
Mining, LLC , the Commission stated that “a Judge who properly determines
that a settlement motion lacks sufficient information may permissibly request
further facts from the parties” and that “the Judge may identify gaps in the
parties' explanations or specific information he may need to review and approve
the settlement. ” 41 FMSHRC 594, 602-03 (Sept. 2019) (emphasis added). 9

In sum, we have
consistently protected our Judges’ exercise of wide discretion in evaluating
motions for settlement in light of the record as a whole to determine whether
the movants have demonstrated that proposed modifications to the underlying
citation are consistent with our caselaw applying the penalty criteria in section
110(i) and the AmCoal standard. And that discretion only exists to the
extent Commission majorities have deferred to its exercise rather than reversing
and substituting their own view as to whether the parties’ factual presentation
and legal contentions justify the penalty reduction.

B.        The Majority Decision is
Contrary to Our Precedents.

The majority
decision instructs our Judges to ignore whole sections of the record before
them when considering whether a settlement motion contains complete and
accurate facts and legal contentions sufficient to transparently demonstrate,
as the public interest requires, that the penalty reduction is “fair,
reasonable and appropriate under the facts.” AmCoal I , 38 FMSHRC at
1982. Judges may no longer probe gaps or inconsistencies in the explanation
offered in support of a settlement motion, yet must now somehow determine
whether a penalty reduction is “appropriate under the facts” by relying solely
and uncritically on the parties’ joint presentation of facts and legal
contentions. The decision also eliminates abuse of discretion review in all but
name only. It removes our Judges’ discretion to determine whether the parties
have demonstrated that a proposed penalty reduction is warranted, by reviewing de
novo our Judges’ application of a multi-factored standard that has long
been committed to their wide discretion.

1.         Judges
must continue to examine whether the proposed penalty reduction is appropriate
to the facts of the case and should not be prohibited from doing so.

Our Judges are
not required to blind themselves to the full record on their docket or refrain
from reasonable legal analysis when evaluating factual and legal claims in the
compromising parties’ motion that a penalty reduction is “fair, reasonable and
appropriate under the facts” by reference to the section 110(i) factors. Rather,
they start with the factual allegations in the citation attached to the penalty
petition initiating the case as well as the Secretary’s initial penalty
proposal grounded on those facts. They then look to the parties to provide
additional facts and explanations in the settlement motion that could
demonstrate a penalty reduction is warranted, often pertaining to the parties’
agreement to modify the underlying citation by tinkering with the section
110(i) factors in light of subsequently discovered facts, contextual
information or legal uncertainties. The Judge is not bound to blindly
accept legal contentions the parties make in an effort to demonstrate a penalty
reduction is supported by the record viewed in light of the section 110(i)
factors.

Our precedents
consistently require submission of facts in support of settlement motions. This
is not so that the Judge might make formal ‘findings of fact’ to establish or
disprove the violations alleged or any characteristic of such violations. Rather,
such facts are essential to any substantive evaluation of the parties’ claim
that their penalty compromise is warranted under the AmCoal standard. 10
And to satisfy the public interest in transparency, a decision to reduce a
penalty must include a written explanation as to how such facts demonstrate the
penalty reduction is warranted. While no party is required to ‘prove’ any facts
included in the motion to justify the settlement, the Judge does need to meaningfully
evaluate (not blindly accept) any claim by the parties that the penalty
reduction is justified by modifications to the underlying citation – e.g.
deleting an S&S designation, or ‘lowering’ one of the section 110(i)
criteria, such as negligence or gravity. And that judicial evaluation,
summarized in the Judge’s written published decision, is what “protects the
public interest in evaluating whether a settlement should be approved.” AmCoal
II , 40 FMSHRC at 984. 11

A Judge must
actually evaluate – probe for gaps and inconsistencies and not blindly accept –
the facts and legal contentions in any settlement motion asserting a penalty
reduction is warranted. A part of that evaluation requires a determination of
what the parties claim in their motion, i.e., that the penalty reduction is
justified because of modifications to the underlying citation, is reasonable
and appropriate under all of the facts alleged and provided in the motion, and
those facts alleged in the original pleadings. Pursuant to this holding, our Judges
often request additional factual support for such modifications, or a full
explanation of why they were agreed upon – e.g ., recognition of some
uncertainty as to the applicability of a certain point of law, reconsideration
of the strength of the factual allegations made in the pleadings in light of
subsequently discovered information or explanation, or, “a description of an
issue on which the parties have agreed to disagree.” AmCoal II , 40
FMSHRC at 991. 12

The
responsibility to ensure a penalty reduction is reasonable or appropriate under
the facts cannot be met by a Judge compelled to ignore gaps in the explanation,
including unexplained inconsistencies between the Secretary’s version of the
alleged facts set forth in the case pleadings and a revised version of facts
the parties agree to include in their motion. In settlement review, such gaps
and inconsistencies in the factual presentation do not require a full hearing
for conclusive resolution, do not implicate the need for testimony to make
credibility determinations, and do not require a final determination of the
merits of the citations. Instead, they simply inform the Judge’s decision –
left to her wide discretion – as to whether the parties have demonstrated that the
penalty compromise is fair, reasonable and “appropriate to the facts.” And they
form the basis of the explanation for approving or denying the penalty
reduction that the Judge must include in a written decision. A Judge may
request from the parties additional information explaining or providing context
to omissions or inconsistencies. Or she might decide that despite gaps or
inconsistencies in an explanation regarding one criterion, the proposed
reduction is warranted by comparatively complete and consistent factual support
relating to another of the section 110(i) factors, or factors outside of those
in section 110(i) we have held justify penalty reduction. This is what is meant
by wide discretion and is how our Judges have been successfully doing this job
for many years.

2.         Our Judges
must continue to have meaningful discretion to perform “front line oversight”
of settlement agreements

The Commission
has long held that settlements are committed to the sound discretion of the
Commission and its Judges, and that Judges are not “bound to endorse all
proposed settlements.” Madison Branch Mgmt. , 17 FMSHRC at 864 (quoting Knox
County Stone , 3 FMSHRC at 2480); see also Wilmot Mining Co ., 9
FMSHRC 684, 686 (Apr. 1987) (“The Commission has held repeatedly that if a
judge disagrees with a penalty proposed in a settlement he is free to reject
the settlement and direct the matter for hearing.”); Pontiki Coal Corp .,
8 FMSHRC at 675. We have never expressly overruled or limited these holdings.

Instead, in our
latest cases addressing our Judges’ discretionary settlement review function,
we affirm that the concept of “wide discretion” articulated in our precedents
has real substance. We have held:

A Judge’s approval or rejection of a proposed
settlement must be based on principled reasons. Thus, the Commission has held
that if a Judge’s approval or rejection of a settlement is “fully supported” by
the record, consistent with the statutory penalty criteria, and not otherwise
improper, it will not be disturbed, but that abuses of discretion or plain
errors are subject to reversal.

Black Beauty , 34 FMSHRC at
1864 (citations omitted). Under this formulation, the Commission may not
reverse a decision that meets these standards simply because the Judge
evaluated the parties’ factual presentation and legal contentions differently
from the approach preferred by a majority of Commissioners on review. Application
of the multifactor AmCoal standard – incorporating the section 110(i)
and other factors we have held relevant – will generally result in some factors
pointing toward one result and others to the opposite result. And nothing in section
110(i) or our caselaw explains the relative weight to be given to them. But
they do focus the Judge’s analysis. If a Judge has faithfully applied each
factor in a manner consistent with our law and supported by the record, we have
held her determination “will not be disturbed.” 13 Id .
By contrast, if the Judge has neglected to apply or erroneously misapplied
factors that served as a basis for the decision, the Commission would have a
basis for reversal.

But now, today’s
majority ends Black Beauty/AmCoal I discretion, announcing a standard
that is “abuse of discretion” in name only, serving to confuse the state of our
law and conceal the degree to which the majority decision is incompatible with
precedent. Addressing the factual and legal “representation” the parties must
include in their motion to demonstrate the penalty reduction is fair and
appropriate, the majority states:

If taking those representations into account, the
settlement meets the standard we articulated for approval in AmCoal I
(fair, reasonable, etc.), the settlement should be approved. Although the
Commission gives weight to the experience gained by ALJs through the handling
of many settlements, the denial of a settlement that comports with the standard
we have established is an abuse of discretion, and the Commission may exercise
its discretion to accept the settlement. The facts of settlement come to the
Commission in exactly the same form and relevance as before the Judge.

In sum, it is an abuse of discretion to deny a
settlement when agreed-upon or stipulated facts satisfy the standard for approval.

Slip op. at 8. Nowhere in this standard
of review is there room for a Judge to make a decision with respect to
application of the AmCoal I elements that differs from the preferred
outcome of a majority of Commissioners but is nevertheless insulated by a
standard that requires deference to a decision that “is ‘fully supported’ by
the record, consistent with the statutory penalty criteria, and not otherwise
improper.” Black Beauty , 34 FMSHRC at 1864. Simply put, the majority
takes an elaborately obscured path to ending abuse of discretion review, and
with it, our Judges’ discretion. 14

Of course, with
the discretion we have long granted our Judges comes a corresponding obligation
to fully explain the basis of its exercise. “While Judges have the duty to consider
the sufficiency of facts submitted in support of a settlement, the proper
exercise of their discretion in doing so requires them to articulate with some
particularity any deficiencies against the standard we set forth in [ AmCoal I ].”
Solar Sources , 41 FMSHRC at 601-02. But the majority has turned the AmCoal
standard on its head. In American Coal , we required our Judges to
exercise true discretion to apply each of its elements – fair, reasonable,
appropriate under the facts – and upheld their decisions so long as they were
supported by the record. If not, or if the Judge misapplied our law in the
course of her evaluation, we remanded to the judge with instructions as to how
to properly exercise discretion.

Under the
majority’s approach, the Judge’s application of each of these elements and
criteria is no longer really a function of discretion. Now, the Judge can be
reversed by the Commission, which will substitute its own de novo
application of any and all elements of the standard. Rather than providing room
for discretion and, where error is found, remanding to the Judge for exercise
of wide discretion, the Commission now refuses remand as a matter of course,
rather than rare exception. This arrogation of power—in this case, undertaking
a de novo review of the parties’ motion to approve a greater than 80%
penalty reduction – is not consistent with the Commission’s duty when reviewing
under the abuse of discretion standard to defer to the Judge’s exercise of wide
discretion. See Gall v. United States , 552 U.S. 38, 56 (2007) (“The
Court of Appeals gave virtually no deference to the District Court’s decision .
. . [and a]lthough the Court of Appeals correctly stated that the appropriate
standard of review was abuse of discretion, it engaged in an analysis that more
closely resembled de novo review of the facts presented.”); General
Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (“In applying an overly
‘stringent’ review to [a discretionary] ruling, [the Court of Appeals] failed
to give the trial court the deference that is the hallmark of
abuse-of-discretion review.”).

The role the majority
decision leaves for our Judges is now more clerical than judicial – taking the
parties’ representations at face value, uncritically approving them, and
entering a decision neither party will appeal. Under the majority’s newly
contrived standard, it does not make sense to speak of our Judges having
discretion or to pretend we are engaged in a proper review of such discretion. “Discretion,
like the hole in a doughnut, does not exist except as an area left open by a
surrounding belt of restriction.” Ronald Dworkin, Taking Rights Seriously
48 (Bloomsbury Academic 2013) (1977). True discretion is gone.

C.        Pursuant
to our Precedents, the Judge Properly Exercised her Discretion to Determine that
the Motion Failed to Demonstrate the Penalty Reduction is Warranted.

Each of the four
citations alleges that Hopedale Mining failed to comply with its ventilation
plan as required by 30 C.F.R. § 75.370(a)(1). 15 The Secretary
originally proposed civil penalties totaling $18,093 for the four citations and
agreed to settle the four citations for a total penalty of $3,339. The Judge
denied the motions to approve settlement, finding that the information provided
was not sufficient to support the proposed modifications to negligence and
gravity, or the “drastic reduction” in penalty. 41 FMSHRC at 324-26. The Judge
further elaborated:

A full evaluation of the facts set forth in each
citation reveals that all of the citations were issued within a relatively
short period of time and in the same area of the mine. Each citation was issued
for a violation of the ventilation plan and the mine foreman was in the area
when the citations were issued. While the Secretary asserts that the negligence
of three of the violations should be reduced from moderate to low largely
because the foreman or an “agent of the operator” was not aware of the
violations, the facts paint a different view . . . . [T]he mine foreman is held
to a higher standard and the negligence inquiry centers around whether he “knew
or should have known.” For all of these reasons, I deny the Secretary’s request
to reconsider the denials of settlement.

Id. at 328. In addition, the Judge
found that the operator had a history of not complying with its ventilation
plan and the Secretary failed to explain his cursory assertion that the
granting of the settlement motion would aid his future enforcement efforts. Id.
On the whole, the Judge found that the parties failed to carry their burden to
demonstrate that the proposed reduction was appropriate under the facts,
reasonable, fair or in the public interest. To summarize with more specificity,
the Judge ruled as follows with respect to each citation:

Citation No. 8055975 alleges
that the operator failed to ensure that adequate air was provided behind the
line curtain in the active section where the roof bolter was operating. In
settlement, the parties proposed reducing the penalty from $1,031 to $462, the
penalty that results from reducing the negligence attributable to the operator
from “moderate” to “low.” 16 The Judge found that the parties
failed to justify that a lower negligence designation was appropriate and
reasonable, in part, because a foreman was present and “an operator’s actual or
constructive knowledge is a key component of a negligence evaluation. Id .
at 333 (citing Ohio Cty. Coal , 40 FMSHRC at 1099). The Judge determined
the parties’ presentation failed to demonstrate how it would be “reasonable”
and “appropriate to the facts” that a penalty reduction is warranted by the
alleged absence of a foreman who should know that as mining advances farther
from the ventilation source, adequate steps must be taken to ensure continued
compliance with the ventilation plan. Id. at 333-34; cf. Black
Beauty , 34 FMSHRC at 1863 n.6 (“[T]he explanation provided by the Secretary
for a reduction in penalty related to a preshift violation was inconsistent
with the inspector’s description of the violation described in the order, but
the inconsistency was not explained in the motion.”).

Citation No. 8055976
alleges that the operator failed to remove the tail curtain in the entry
intake, exposing miners to respirable coal dust and silica. In settlement, the
parties proposed reducing the penalty from $12,321 to $1,666, reducing the
alleged negligence from “high” to “moderate” and reducing the alleged gravity
of the violation. The parties stated that a reduction in negligence is
justified because the condition only existed for a short time and the foreman
on the section was unaware of the violation. Assessing whether the proposed
modifications are “reasonable” and “appropriate under the facts,” the Judge
found that these contentions do not support the modifications to the citation,
citing the serious dangers presented by dust exposure and the high standard of
care the Mine Act requires of a foreman. A reasonably prudent foreman would
have taken proactive measures to ensure that the curtain was properly adjusted. 17
41 FMSHRC at 335. The Judge found that paying approximately 14% of the
originally proposed penalty in settlement of this citation was not fair,
reasonable, or in the public interest.

Citation No. 8055977
alleges that the continuous miner had plugged water sprays; 19 out of 30 water
sprays were plugged. The ventilation plan requires a minimum of 27 sprays to be
operational. In settlement, the parties proposed reducing the penalty from
$3,710 to $749, reducing the negligence from “moderate” to “low” and reducing
the gravity of the violation. The parties stated that management was not aware
of the violative condition and the personal samples taken by the shuttle car
operator showed that dusts levels were in compliance despite the violation. The
Judge concluded that the compliant dust levels were not relevant to the operator’s
negligence in failing to abide by the water spray requirement. Furthermore, she
noted that the record demonstrated that a high number of sprays were clogged,
it took almost an hour to clean and repair and that a supervisor was in the
area.

Citation No. 8055978
was issued for failing to maintain the roof bolter vacuum as required by the
ventilation plan. To settle the citation, the parties proposed modifying the
penalty from $1,031 to $462 and reducing the negligence from “moderate” to
“low.” The parties contended that a reduction in negligence was justified
because the violation did not exist at the beginning of the shift, it was hard
to detect a violation, and an agent of the operator was not aware of the
violation. The Judge determined the parties failed to explain how these
contentions warranted a penalty reduction given that a foreman was present and
should have known of the violation.

We find no abuse of
discretion in the aforementioned analysis. Rather, we conclude that the Judge
properly considered the facts proffered by the parties as alleged and
found that those alleged facts and the parties’ explanations and legal
contentions did not demonstrate under the AmCoal standard that the proposed
modifications to the citations were “reasonable” “fair” or “appropriate under
the facts” and therefore failed to demonstrate the reduction in penalty is
warranted. Cf. Black Beauty , 34 FMSHRC at 1863 n.6 (“[T]he motion to
approve settlement lists the same facts for the reduction in penalty for each
roof control and accumulation violation, but the motion does not include facts
necessary to evaluate whether a reduction in negligence was appropriate, or an
explanation for why the number of persons affected by the violation should be
modified.”). The Judge’s conclusions are consistent with the AmCoal
standard of review, “fully supported by the record, consistent with the
statutory penalty criteria, and not otherwise improper.” Black Beauty ,
34 FMSHRC at 1864 (internal quotations omitted).

III.

Conclusion

The majority provides no
good reason for overturning the central holdings of at least three decisions in
the Black Beauty and AmCoal cases – to completely rework a
settlement review system that has performed admirably well. Principles of stare
decisis are considered binding absent a strong reason, which should be
provided in any opinion that changes or overrules precedent. Yet no policy or
other reason is to be found in the majority’s opinion explaining even one of
multiple departures from our binding precedents. Other than an inapt quote from
a Supreme Court case and misinterpretation of a few select quotes from
precedential decisions to arrive at conclusions contrary to those decisions’
essential holdings, the majority offers no reason – and certainly not a strong
one – for departing from the rules of stare decisis to upend a
demonstrably successful review process.

We
are concerned that the majority’s substantial yet unexplained departures from
our precedent compromise the Commission’s role as a check against abuses of
power. Congress intended for Commission Judges to ensure that the information
provided in support of settlement agreements is true and correct and that a
penalty reduction based upon such information is warranted under the
appropriate criteria. Without this oversight, it is possible a government
Solicitor seeking to conserve litigation expenses and an operator looking to
reduce penalties could cooperate to arrive at a mutually acceptable penalty
amount and then backfill factual stipulations that would support modifications
to the underlying citation needed to arrive at the desired Part 100
recommendation. Congress enacted the unique provision at section 110(k) for the
express purpose of ensuring the Commission would not be a mere rubber stamp,
opening the door to the type of deal-making and unwarranted settlements that
originally concerned them enough to delegate the Commission oversight authority
in section 110(k).

/s/ Mary Lu
Jordan

Mary Lu Jordan,
Commissioner

/s/ Arthur R.
Traynor, III

Arthur R.
Traynor, III, Commissioner

[1] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.

§
814(d)(1), which distinguishes as more serious in nature any violation that
“could significantly and substantially contribute to the cause and effect of a
. . . mine safety and health hazard.”

[2] Section
75.370(a)(1) provides in part that, “[t]he operator shall develop and follow a
ventilation plan approved by the district manager.” 30 C.F.R. § 75.370(a)(1).

[3] Hopedale later
joined the Secretary’s motion for reconsideration and alternative grounds of
relief.

[4]
For
example, the parties’ Joint Stipulation 8(f) states, “The section foreman was
at the continuous miner as it cut through the E to F Crosscut, but was unaware
the ventilation curtain had not been adjusted per the requirements of the plan
prior to cutting through.” The Decision, on this point, and without examination
of actual witness testimony, states, “The argument that the foreman was unaware
that the line curtain had not been advanced is wholly unpersuasive and does not
comport with the reasonably prudent miner standard of care.” 41 FMSHRC at 335.

[5] Consistent with
this, we previously recognized that the public interest inquiry is not to
determine “whether the resulting array of rights and liabilities ‘is one that
will best serve society,’” but only to show that the resulting
“settlement is ‘within the reaches of the public interest.’” Armstrong ,
36 FMSHRC at 1103-04 (citations omitted) (emphasis in original).

[6] In fact, the
Commission amended Rule 31 to delete a requirement that decisions approving
settlement must include a discussion of the section 110(i) factors in order “to
enhance the flexibility of the judges to approve settlements.” AmCoal II ,
40 FMSHRC at 991 & n.12 (citations omitted).

[7] “Rolling” of
dust is an observation that can be used to evaluate whether the water sprays are
effectively controlling dust. Jt. Ex. 1 at ¶ 9(f).

[8] Moreover, since
all four violations are S&S, they could be relevant for pattern of
violations consideration. Brody Mining, LLC , 36 FMSHRC 2027, 2038 (Aug.
2014) (holding that section 104(e) of the Mine Act encompasses S&S
violations including non-final orders).

[9] Rather, it
appears that the Judge considered the operator’s history of violations in reviewing
the merits of Citation No. 8055975. 41 FMSHRC at 333. We have vacated that
portion of the Judge’s decision reaching the merits of the citations.

[10]
No
case would ever be settled on such a literal application of “as written”
because accepting all of the Secretary’s findings and conclusions would render
a reduction in the penalty untenable. Agreeing in toto to an opponent’s
case in chief is not a settlement but a capitulation.

[11]
Commissioner
Young notes that, in contrast to our decision in American Aggregates of
Michigan, Inc. , Docket No. LAKE 2018-0340, issued on the same day as
our decision in this case, the Judge here did not fail to consider entirely an
evidentiary argument made by the operator, which arguably could have been the
subject of further questioning on remand. The settlement in this case was a
commonplace proposal to reduce negligence and gravity, the usual means through
which the parties compromise similarly unremarkable disputes, and remand in this
case would be unproductive.  

1 The Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976).

2 The majority
provides no policy reason or explanation for making such radical breaks with
our precedent addressing our obligation to review penalty reductions, such as
our decisions in the American Coal Co. case and in Black Beauty Coal
Co ., 34 FMSHRC 1856, 1870 (Aug. 2012) (requiring the Secretary to provide
such factual support to demonstrate the applicability of the penalty criteria as
they relate to the penalties contained in the settlement proposal presented to
her for review). This is an especially glaring omission in light of the fact
our judges applying this precedent are able to approve 99.96% of settlement
motions submitted for their review. See AmCoal I , 38 FMSHRC at
1977 n.7 (noting that in a five-year period from approximately 2011 to 2016,
Commission Judges approved 38,501 settlements and denied only 17).

3 Factors we have
recognized that a Judge may rely upon to determine in his or her discretion
whether the parties’ motion demonstrates a penalty reduction is “warranted”
include, for example: the future enforcement value of accepting violations as
written, AmCoal II , 40 FMSHRC at 989; the possibility of criminal
penalties, Aracoma Coal Co ., 32 FMSHRC 1639, 1641 (Dec. 2010);
settlement provisions requiring that the operator implement personnel changes
or training improvements, AmCoal I , 38 FMSHRC at 1982; and deterrence, Black
Beauty , 34 FMSHRC at 1864-65.

4 Commissioner Traynor
separately observes that in the AmCoal cases, representatives of the
regulated community participated as intervenors and a member of Congress as amicus
curiae in opposition to the Secretary and another operator’s arguments in
favor of curtailing the Commission’s settlement review authority. In similar
circumstances, appellate courts on occasion take steps to ensure adversarial
presentation. See, e.g., Beckles v. United States , 137 S. Ct. 886, 892
(2017) (“Because the United States, as respondent, agrees with petitioner that
the Guidelines are subject to vagueness challenges, the Court appointed [an
attorney] as amicus curiae to argue the contrary position.”). Unfortunately,
the Commission in this case did not receive arguments on “the contrary
position.” And neither party will appeal the Commission’s approval of their
settlement motion. Thus, the departures from precedent in this case are fully
insulated from appellate review.

5 We concur with
the majority’s conclusion that the Judge abused her discretion when she
convened a hearing without first ruling on the Secretary’s pending motion for
interlocutory review that was filed pursuant to Commission Procedural Rule 76,
29 C.F.R. § 2700.76. However, as we are now providing appellate review, this
issue is now moot.  

6 The six section
110(i) statutory criteria by which all penalties must be assessed are “the operator’s
history of previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was negligent,
the effect on the operator’s ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.” 30 U.S.C.
§ 820(i).

7 Though the
majority decision is directly contrary to this, a central and unanimous holding
in Black Beauty , the majority does not express intent to overrule it
either in whole or in part, or identify subsequent authority that does so.

8
In recognition
of the legislative history of the Mine Act, we have held that “ for  the purpose of encouraging operator
compliance with the Act's requirements , the need
to save litigation and collection expenses should play no role in determining
settlement amounts.” Black Beauty , 34 FMSHRC at 1866 (quoting S. Rep. No.
95-181, at 41-45 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of
1977 , at 629-33 (1978) (“ Legis. Hist. ” ).

9 Additionally, we
find it notable that in Solar Sources , the Commission examined the
totality of the facts as alleged by the parties and found, sua sponte ,
that the parties’ proposed settlement was justified in part because two of the
citations at issue may have been duplicative. 41 FMSHRC at 594, 603-04 (Sept.
2019). However, in the case at hand, the majority criticizes the Judge for
examining the totality of the facts at issue and considering, sua sponte ,
reasons why the parties’ proposed settlement may not be justified under
our caselaw. Slip op. at 8-13. Here, of course, the Judge found that the
proposed reduction in negligence was not appropriate because the presence of a
foreman in this section of the mine, at the time of the issuance of these four
citations, suggests that an agent of the operator either knew or should have
known of the violative conditions, which is inconsistent with the “low”
negligence the parties agreed to in the settlement motion. 41 FMSHRC at 338.

10 To the extent
the majority purports to prohibit our judges from requesting information that
goes beyond the factual and legal contentions in the parties’ motion, their
holding precludes the proper exercise of discretion to require factual support
demonstrating the proposed penalty reduction is warranted by reference to the section
110(i) penalty factors, in addition to other relevant criteria, which is
directly contrary to our unanimous precedential decision in AmCoal I .

11 A Judge’s
written evaluation of the parties’ factual and legal contentions as to why a
penalty reduction is supported by modifications to an underlying citation does
not serve the public interest if it uncritically overlooks gaps and
inconsistencies with the full record or our case law applying the section
110(i) factors.

1 2 Like the
majority, we do not consider the Judge’s issuance of a subpoena, scheduling a
hearing prior to a decision on the parties’ motion for interlocutory review, or
vacature of the citations. However, the majority claims our Judges may not
probe the veracity, consistency and completeness of the facts and legal claims
the parties include in their motion to justify approval of their motion,
relying in part on the concept of “party presentation” discussed in United States v.
Sineneng-Smith ,
140 S.Ct. 1575 (2020) .
Slip op. at 5-6. But the Supreme Court in that decision expressly observed that
the concept of “party presentation” – the idea that Judges should maintain a
passive role allowing the parties to develop the factual record and arguments –
is a feature of an “adversarial system of adjudication.” Id . at 1579. Obviously,
proceedings under section 110(k) to consider the parties’ jointly proposed
penalty reduction are non-adversarial – even cooperative. Nothing in Sineneng-Smith
supplies any coherent rationale for contravening our precedents and the Act’s
legislative history to curb our Judges’ responsibility to ensure that penalty
reductions in compromises struck by cooperating parties are both warranted and
transparent .

Because
Sineneng-Smith does not address the unique administrative processes
under section 110(k) of the Mine Act, in which Commission Judges review jointly
proposed settlement motions to determine if the parties’ penalty compromise is
warranted, it does not control. It is not even persuasive, given the uniquely
non-adversarial nature of proceedings under section 110(k). Claiming otherwise,
our colleagues maintain an obvious fiction that section 110(k) proceedings are
indistinct from penalty contests, discrimination proceedings and the other
types of cases in our “adversarial system of adjudication” under the Mine Act. Slip
op. 6. Accepting this claim would require that we ignore that in section 110(k)
settlement review cases the interests of the parties before our Judges are
totally aligned, and neither engages the other in argument or examination or
any of the other tools used in an adversarial system to bring forward truth. Most
significantly, neither party rebuts the factual claims and arguments that are
jointly presented to our Judges for approval of a penalty reduction in section
110(k) proceedings. They are indisputably non-adversarial and thus Sineneng-Smith
– the only authority the majority cites as justification for its
departure from our precedents – is unquestionably irrelevant to interpretation
of section 110(k).

13 It must be
noted in the context of the majority’s curbing of our Judges’ wide discretion,
this phrase, “consistent with our law,” means not contrary to any precedential
decision of the Commission and reviewing courts, which is very different from “consistent
with the views of what our law should be, as espoused by a majority of
Commissioners who will review the settlement approval decision de novo .”

14 The majority is
profoundly confused as to the Commission’s role in this and other cases in
which we are asked to review the exercise of discretion by one of our Judges. At
one point, the majority writes that the “dissent would make one think that the
exercise of our discretion to grant the settlement places the settlement
process on the verge of collapse.” Slip op. at 14 (emphasis added). Elsewhere,
they write “the Commission may exercise its discretion to accept
the settlement.” Slip op. at 8 (emphasis added).

The majority mistakenly believes the
question before us on review is whether the Commission itself has
discretion to approve or deny the settlement agreement, which simply makes no
sense in the context of a case where we are called to review the exercise of
discretion by the lower court. The confused majority does not appreciate any
difference between a case in which the settlement motion is filed initially
with an ALJ, in which we review the Judge’s exercise of discretion, and an
entirely different case – not before us – in which the settlement motion is
filed with the Commission, in which case we would exercise discretion and a
reviewing Circuit Court would review our decision under an abuse of discretion
standard.

15 Section
75.370(a)(1) requires the operator to “develop and follow a ventilation plan
approved by the district manager.” 30 C.F.R. § 75.370(a)(1).

16 According to
the Secretary’s own Part 100 guidelines, “moderate negligence” occurs when “the
operator knew or should have known of the violative condition or practice, but
there are mitigating circumstances” and “low negligence” occurs when “the
operator knew or should have known of the violative condition or practice, but
there are considerable mitigating circumstances.” 30 C.F.R. § 100.3(d). While a
Commission Judge may consider the Secretary’s Part 100 regulations, the
Secretary’s definitions are not controlling. Commission Judges undertake a
traditional negligence analysis.

17 In her analysis
the Judge accepted the stipulated facts that the foreman was both present and
unaware of the violative conditions. The Judge then considered how these
stipulated facts affected the negligence attributable to the mine operator. The
Judge recognized that a foreman may be considered to have constructive
knowledge of conditions. It is a reasonable basis for her rejection of the
parties’ legal contention that the reduction in negligence was justified
because the foreman had no actual knowledge of the violative conditions.
The Judge certainly did not engage in any credibility determination as the
majority inaccurately alleges. See slip op. at 8 n.4.