Secretary of Labor v. River City Stone-DIV/Mathy Construction Co.

Plain-English summary

River City Stone and the Secretary proposed resolving two citations by vacating one, leaving the other unchanged, and reducing total penalties from $250 to $125. Judge Michael G. Young treated the motion to dismiss as a settlement because the vacatur appeared tied to the operator's agreement to pay the other citation. The Secretary did not provide information supporting the vacatur or state that it was independent of the remaining citation. The judge certified for interlocutory review whether the Secretary may vacate a contested citation without Commission approval. The Commission later affirmed the settlement denial and remanded this case with four related proceedings.

Decision snapshot

• Cited authority: 30 C.F.R. § 2700.76; 30 U.S.C. § 815(d)
• Outcome: The citation-vacatur question was certified for interlocutory Commission review.
• Subsequent review: The Commission affirmed the settlement denial and remanded in lake-2021-0145-commission.
• Key point: A motion labeled as dismissal may be treated as a settlement when a citation vacatur appears exchanged for payment of another citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

1331 PENNSYLVANIA AVE.,
N.W., SUITE 1400

WASHINGTON, DC
20004-1710

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

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA),

Petitioner

v.

RIVER
CITY STONE-DIV/MATHY

CONSTRUCTION
CO,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2021-0145

A.C.
No. 47-03196-534597

Mine:
Plant #53

ORDER CERTIFYING CASE FOR
INTERLOCUTORY REVIEW

Before:  Judge
Young

This
case is before me on a Petition for the Assessment of Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815(d). I denied a motion to approve settlement of this docket, and
four similarly situated proceedings. [1] The Secretary
seeks interlocutory review of all five proceedings, pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76.

This
docket includes two citations issued pursuant to Section 104(a) of the Mine
Act. On October 6, 2021, the Secretary submitted a motion to dismiss civil
penalty proceeding. The motion proposed vacating one citation, while leaving the
other undisturbed and reducing the total penalty from $250.00 to $125.00. See
S. Mot. to Dismiss Civ. Penalty Proc. at 1 (Oct. 6, 2021). Because the motion
appears to vacate one contested citation in return for agreement to pay the
other, I treat it as a motion to approve settlement.

The
question certified for review and my position have been clearly expressed in
the Order Certifying Case for Interlocutory Review for Docket No. WEVA
2021-0294 (Appendix C). As in each associated docket, the Secretary chose not
to provide information supporting the vacatur of the contested citations or
certify that vacatur was not contingent upon resolution of the remaining
citations. Instead, he invoked unreviewable discretion under RBK
Construction, Inc. [2] See 15
FMSHRC 2099, 2101 (Oct. 1993) (“ RBK ”). I found that RBK does not
control the resolution of this issue, and that the citations proposed to be
vacated have been contested before the Commission and are subject to my
approval. See Unpublished Order at 3 (Oct. 8, 2021) (Appendix A).

Under
Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this
interlocutory ruling involves a controlling question of law—whether the
Secretary has unreviewable discretion to vacate a contested citation without
the Commission’s approval—and that immediate review will materially advance the
final disposition of the proceeding.

For
the reasons stated herein, and in my order certifying interlocutory review in
WEVA 2021-0294, this interlocutory ruling is hereby CERTIFIED .

/s/
Michael G. Young

Michael G. Young

Administrative Law Judge

Distribution
(by email):

Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of
Labor, [email protected]

Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t
of Labor, [email protected]

Joshua Schultz, Esq., Law Office of Adele L. Abrams, P.C., [email protected]

Attachments:

Appendix
A: Order Denying Motion to Approve Settlement, Docket No. LAKE 2021-0145 (Oct. 8,
2021)

Appendix
B: Order Staying Proceedings, Docket No. LAKE 2021-0145 (Oct. 19, 2021)

Appendix
C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294
(November 19, 2021)

[1] The others are Docket
Nos. WEVA 2021-0294, YORK 2021-0023, SE 2021-0134, and SE 2021-0112, all of
which were similarly stayed pending certification. See Unpublished Order
at 1 n.1 (Oct. 19, 2021) (Appendix B).

[2] “In an exercise
of his prosecutorial discretion as previously recognized by the Federal Mine
Safety and Health Review Commission in RBK Construction , 15 FMSHRC 2099
(October 1993), the Secretary has decided to vacate Section 104(a) Citation
9482296.” S. Mot. at 1.