Secretary of Labor v. Crimson Oak Grove Resources, LLC and Secretary of Labor v. River City Stone-DIV/Mathy Construction Co. and Secretary of Labor v. Holcim (US) Inc. and Secretary of Labor v. Greenbrier Minerals, LLC

Read the official release (fmshrc.gov)

Plain-English summary

These five cases involved proposed settlements or dismissals in which the Secretary would vacate citations while operators accepted or withdrew contests to other citations and waived potential attorney-fee claims. The ALJ required either assurance that the vacaturs were independent of the other terms or facts supporting them as part of a settlement. The Secretary argued that citation vacaturs were unreviewable exercises of prosecutorial discretion. The Commission majority held that section 110(k) requires review of the entire settlement package, including contingent vacaturs, and that the Mine Act supplies standards for that review. It distinguished voluntary jurisdictional withdrawals from vacaturs exchanged for operator concessions. The Commission affirmed the settlement denials and remanded all five cases; Commissioner Althen dissented.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(a), 820(i), and 820(k)
• Outcome: The settlement denials were affirmed, and the five cases were remanded.
• Key point: A citation vacatur offered in exchange for settlement concessions is subject to Commission approval and must have sufficient factual support.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

CRIMSON
OAK GROVE RESOURCES

LLC

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

RIVER
CITY STONE-DIV/MATHY

CONSTRUCTION
CO.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

HOLCIM
(US) INC.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

GREENBRIER
MINERALS, LLC

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Docket No. SE 2021-0112

Docket No. SE 2021-0134

Docket
No. LAKE 2021-0145

Docket
No. YORK 2021-0023

Docket
No. WEVA 2021-0294

|

BEFORE: Jordan,
Chair; Althen, Rajkovich, Baker, and Marvit, Commissioners

DECISION

BY: Jordan,
Chair; Rajkovich, Baker, and Marvit, Commissioners:

These civil penalty
proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). They come before us upon five
Administrative Law Judge’s certifications for interlocutory review wherein the
Judge denied the Secretary’s motions to settle or dismiss the proceedings. In
each of these cases, the Judge denied the motions because he concluded that the
Secretary had failed to provide sufficient information to support the vacating
of certain citations. The Judge had requested that the Secretary either: 1)
certify that the decision to vacate certain citations was not contingent upon
the resolution of the remaining citations, or 2) explain how the decision to
vacate is an appropriate compromise, mitigation, or settlement pursuant to
section 110(k) of the Mine Act. See 30 U.S.C. § 820(k).

Section 110(k) provides as
follows:

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).

On
interlocutory review, the question before the Commission is whether section
110(k) of the Mine Act authorizes review of the Secretary’s decision to vacate
a citation in the context of a settlement, when the vacatur is contingent upon
the resolution of other citations.

For the reasons discussed
below, we conclude that the Secretary does not possess unfettered prosecutorial
discretion to vacate a citation in consideration of an operator’s concessions. Rather,
the Mine Act requires the Commission to review the vacating of citations when
done in the context of a settlement. Therefore,
we remand these cases to the Judge for proceedings consistent with this ruling.[1]

I.

Factual and Procedural Background

A.
Proceedings Before the
Administrative Law Judge

1.
Crimson Oak – Docket No. SE
2021-0112

This case involves two
section 104(a) citations and one section 104(g) order.[2]
On September 27, 2021, the Secretary filed a Motion to Dismiss. The motion
states that the operator decided to withdraw its contest of a citation and
order and that the Secretary decided to vacate the remaining citation. The
motion further states that the parties agreed to bear their own attorney fees,
including waiving fees that might be available under the Equal Access to
Justice Act. Maintaining that no issues remained for adjudication, the
Secretary requested that the case be dismissed.

On October 6, 2021, the Judge
issued an Order Denying Motion to Dismiss Civil Penalty Proceeding. The Judge
noted that the Secretary had vacated the smaller penalty in this case and
surmised that this could indicate that the Secretary had “acknowledged an error
in the issuance of the vacated citation, and that this acknowledgement, in the
context of discussions of the relative strengths and weaknesses of the matters
in controversy, was sufficient inducement for the operator to acquiesce to the
payment of the others.” Order at 3.

However, the Judge rejected
the Secretary’s reliance on RBK Construction, 15 FMSHRC 2099 (Oct.
1993), to support her unreviewable authority to vacate a citation in the
context of a settlement. According to the Judge, the Commission’s succinct
holding in RBK did not specifically address a vacated citation in the
context of a quid-pro-quo settlement and relied primarily on the Supreme
Court’s rationale in a case involving the Occupational Safety and Health Review
Committee (“OSHRC”). See Cuyahoga Valley Ry. Co. v. United Transp. Union,
474 U.S. 3 (1985). Accordingly, the Judge found that absent certification that
the vacation of the citation was coincidental and not contingent upon dismissal
of the remaining violations, the parties would need to explain the
appropriateness of the compromise, mitigation, or settlement pursuant to
section 110(k) of the Mine Act.

2. Crimson Oak – Docket No. SE 2021-0134

This case involves five
section 104(a) citations. On September 28, 2021, the Secretary filed a Motion
to Approve Settlement. The proposed settlement states that the “Secretary has
agreed to vacate Citation No. 9493063. Additionally, as part of this settlement
Respondent agrees to accept citation No. 9493062.” Each of the citations had a
proposed penalty of $6,858. The parties agreed to modify the negligence of the
remaining three citations from “High” to “Medium” with a corresponding
reduction in penalty. The motion further stated that the parties agreed to bear
their own attorney fees, including waiving fees that might be available under
the Equal Access to Justice Act.

On October 1, 2021, the Judge
reached out to the parties through email to notify them that he required an
explanation for the decision to vacate. He instructed the parties to “[p]lease
provide a written statement or amend the settlement proposal motion to include
language that the vacation is independent from, and not contingent upon, the
compromise or settlement [of] the other violations in the motion.” On October
5, 2021, the Secretary requested that the ALJ reduce the denial of the motion
to approve settlement to a final order. On October 7, 2021, the Judge issued an
Order Denying Motion to Dismiss Civil Penalty Proceeding utilizing the same
rationale as outlined in Docket No. SE 2021-0112, supra.

3. River City Stone-Div/Mathy Construction Company –
   Docket No. LAKE 2021-0145

This case involves two
section 104(a) citations. On October 5, 2021, the Secretary filed a Motion to
Dismiss. The motion stated that the operator had decided to withdraw its
contest of one citation and that the Secretary had decided to vacate the other
citation. The motion further stated that the parties agreed to bear their own
attorney fees, including waiving fees that might be available under the Equal
Access to Justice Act. As no issues remained for adjudication the Secretary
requested that the case be dismissed.

On October 8, 2021, the Judge
issued an Order Denying Motion to Dismiss Civil Penalty proceeding relying on
the same rationale as outlined in Docket No. SE 2021-0112, supra.

4. Holcim (US) Inc. – Docket No. YORK 2021-0023

This case involves thirteen section
104(a) citations. On August 3, 2021, the Secretary filed a Motion for Decision
and Order Approving Settlement. In the motion, the operator agreed to withdraw
contests of five citations. The Secretary agreed to vacate four citations and
the parties agreed to a reduction in penalty in the remaining four citations
and reduce the negligence finding in one citation. The motion further stated
that the parties agreed to bear their own attorney fees, including waiving fees
that might be available under the Equal Access to Justice Act.

On August 26, 2021, the Judge
notified the parties that, if the decision to vacate was part of an agreement with
the operator to accept other citations as written, the parties would need to
provide an explanation for the Judge to review pursuant to section 110(k). On
August 31, 2021, the Secretary requested that the ALJ reduce the denial of the
motion to approve settlement to a final order. On September 28, 2021, the Judge
issued an Order Denying Motion to Approve Settlement utilizing the same
rationale as outlined in Docket No. SE 2021-0112, supra.

5. Greenbrier Minerals – Docket No. WEVA 2021-0294

This case involves six 104(a)
citations. On August 5, 2021, the Secretary filed an Amended Motion to Approve
Settlement.[3]
In the motion, the operator withdrew contest of four citations. The Secretary
agreed to vacate two citations. The motion further states that the parties
agreed to bear their own attorney fees, including waiving fees that might be
available under the Equal Access to Justice Act.

On August 26, 2021, the Judge
notified the parties that, if the decision to vacate was part of an agreement
with the operator to accept other citations as written, the parties would need
to provide an explanation for the Judge to review pursuant to section 110(k). On
September 1, 2021, the Secretary requested that the Judge express the denial of
the motion to approve settlement in a final order. On September 30, 2021, the
Judge issued an Order Denying Motion to Approve Settlement utilizing the same
rationale as outlined in Docket No. SE 2021-0112, supra.

B. The Granting of Interlocutory Review

The Judge subsequently certified
for review the orders denying the settlement or dismissal in each of the five
cases.[4]
The Commission granted review “of the Judge’s
orders denying the motions and the issue of whether section 110(k) of the Mine
Act authorizes review of the Secretary’s decision to vacate a citation in the
context of a settlement, when the vacatur is contingent upon the resolution of
other citations.” Order Granting Interlocutory Review (Mar. 2, 2022).

C.
The Secretary’s Arguments

On review, the Secretary maintains
that she possesses unreviewable prosecutorial discretion in determining whether
to vacate a citation or order. She argues that the Mine Act’s split-enforcement
scheme grants the Secretary the sole authority to enforce the statute, thus precluding
review of her decision to vacate a citation or order. The Secretary relies on
the Supreme Court’s holding in Cuyahoga Valley that the power to issue
citations necessarily requires the Secretary to have the power to withdraw them.
See Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (Nov.
1985) (“Cuyahoga Valley”); RBK Construction Inc., 15 FMSHRC 2099
(Oct. 1993) (“RBK Construction” or “RBK”). The Secretary contends
that, like OSHRC, the Commission is to serve as a neutral arbiter and is
strictly limited to the confines of the role traditionally assumed by
adjudicatory bodies. According to the Secretary, review of her vacatur
decisions would amount to an intrusion into her enforcement authority, forcing her
to pursue enforcement actions where she does not believe there is any
violation.

The Secretary further
contends that section 110(k) of the Mine Act does not restrict her enforcement
discretion in vacatur decisions. The Secretary argues that section 110(k) only
applies to the settlement of penalty amounts. The Secretary asserts that in
cases where she has vacated a citation, the elimination of the penalty is
merely an incidental effect of the enforcement decision to vacate the
underlying citation. According to the Secretary, the decision to vacate a
citation has consequences for potential pattern-of-violations, history of
violations and other enforcement actions. Thus, the Secretary maintains that
vacatur is solely an enforcement decision, not a penalty decision.

Finally, the Secretary points
out that Congress did not explicitly grant the Commission the authority to
review vacatur decisions in the Mine Act. Nor does anything in the legislative
history expressly mention the Commission’s authority to review vacated
citations. Instead, the Secretary argues, the legislative history is concerned
primarily with transparency and ensuring that there is no unwarranted lowering
of penalties stemming from off-the-record settlement negotiations. The
Secretary maintains that, had Congress intended the Commission to review vacatur
decisions, it would have provided the Commission with a meaningful standard by
which to judge the validity of such enforcement actions.

II.

Disposition

For the reasons stated below,
we hold that the Secretary does not have unreviewable discretion to vacate a
citation or order without the Commission’s approval under section 110(k) of the
Act. We further hold that the parties must provide sufficient facts to support the
vacatur of a citation or order in a settlement proceeding. Accordingly, we
conclude that the Judge did not abuse his discretion by denying the settlement
motions in these cases.

The Commission derives its
authority to review the adequacy of settlements proposed by the Secretary from
section 110(k) of the Act, which states that: “[n]o proposed penalty which has
been contested before the Commission under section [105(a)] shall be
compromised, mitigated, or settled except with the approval of the Commission.”
30 U.S.C. § 820(k). As demonstrated below, section 110(k) of the Act authorizes
the Commission to review the adequacy of all settlements proposed by the
Secretary.

A. The Legislative History of Section 110(k)

In drafting the Mine Act, Congress
made clear that it wanted to avoid the pitfalls of the prior regulatory regime.[5]
The Senate Report states that the “compromising of the amounts of penalties
actually paid” had reduced “the effectiveness of the civil penalty as an
enforcement tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 632 (1978) (“Legis. Hist.”). The
Committee explained that in investigating the penalty collection system under
the Coal Act, it learned “that to a great extent the compromising of assessed
penalties [did] not come under public scrutiny,” and that “[n]egotiations
between operators and Conference Officers of MESA [MSHA’s predecessor] are not
on the record.” Id. It noted 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.

Accordingly, Congress drafted section 110(k) with the
intent that the settlements of penalties be open to scrutiny in order to better
serve the purpose of civil penalties by encouraging operators’ compliance with
mandatory standards. The Senate report further provided:

The
Committee strongly feels that the purpose of civil penalties, 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 and their representatives, as well as the Congress and
other interested parties, can fully observe the process.

Id. at 633. Thus, Congress made clear, when it enacted the 1977
Mine Act, that the terms of all settlements had to be on the record and that
the Commission has the final word on the settlement of contested cases. The
American Coal Co., 38 FMSHRC 1972, 1975-76 (Aug. 2016) (“AmCoal I”).

Based on the clear expression
of Congressional intent and the unambiguous language in the Mine Act, the
Commission has held that section 110(k) “directs the Commission and its judges
to protect the public interest by ensuring that all settlements of contested
penalties are consistent with the Mine Act’s objectives.” Knox County Stone
Co., 3 FMSHRC 2478, 2479 (Nov. 1981). To perform that function in exercise
of its statutory authority, the Commission has promulgated Rule 31, which
provides, inter alia, that a motion to approve a penalty settlement shall
include facts in support of the penalty agreed to by the parties. See 29
C.F.R.

§
2700.31(b)(1). Thus, “[s]ettlements are committed to the ‘sound discretion’ of
the Commission and its judges” and they “are not bound to endorse all proposed
settlements.” Madison Branch Mgmt., 17 FMSHRC 859, 864 (June 1995).

B. The Secretary Does Not Have Unreviewable Prosecutorial
Discretion to Settle Cases by Vacating Citations

While there is a general
presumption of unreviewability of decisions not to enforce, Congress may
withdraw an agency’s discretion over such decisions. In Heckler v. Chaney,
the Supreme Court recognized that the presumption of unreviewability may be
overcome if a statute “has indicated [Congress’s] intent to circumscribe agency
enforcement discretion, and has provided meaningful standards for defining the
limits of that discretion . . . .” 470 U.S. 821, 834 (1985).

In the settlement context, section
110(k) provides an exception to the general rule of unreviewability. That
provision expressly curtails the Secretary’s authority to exercise a basic
power of prosecutorial discretion: the power to settle a case. As stated in AmCoal
I, 38 FMSHRC at 1980, “section 110(k) is an explicit expression of
Congressional authorization that rebuts any presumption of unreviewability.” Indeed,
the Secretary “has acknowledged that the [Heckler] presumption is
rebutted by the existence [of] section 110(k).” Id. at 1980 n.10, citing
AmCoal I, Sec’y Reply Br. at 4.

The remaining issue under Heckler
is whether the Commission would have a “meaningful standard” to apply in
determining whether the Secretary has met her burden of justifying a proposed
settlement. The Commission has recognized that the standards to be applied may
be found in section 110(i), which sets forth the six statutory factors for
assessing penalty amounts.[6]
AmCoal I, 38 FMSHRC at 1981. In addition, the Commission has interpreted
Section 110(k) to require the Judge to determine whether the proposed
settlement is fair, reasonable, appropriate under the facts, and protects the
public interest. Id. at 1976. The Commission’s parameters of review are
set out in section 110(i), the Act’s legislative history, and the Commission’s
Procedural Rules. Thus, the Secretary’s argument of unreviewable prosecutorial
discretion is erroneous.[7]

C. The Cases Upon Which the Secretary Attempts to Rely
Are Readily Distinguishable

The core of Secretary’s argument that she possesses
unreviewable discretion to vacate citations, regardless of the context, relies
on two cases: Cuyahoga Valley and RBK Construction.

In the OSH Act case of Cuyahoga Valley, 474
U.S. at 4-5, the Secretary of Labor moved to vacate a penalty citation on the
grounds that the Federal Railway Administration, not OSHA, had jurisdiction
over the relevant safety conditions. The Supreme Court agreed that the
Secretary had unreviewable discretion to withdraw a citation, finding that encroaching
on the prosecutorial decisions of the Secretary would unduly hamper enforcement
of the Act by discouraging settlement and commingling of roles that Congress
did not intend. Id. at 6-7.

In RBK Construction, Inc., 15 FMSHRC at 2101, a
case closely mirroring the facts of Cuyahoga Valley, the Secretary of
Labor notified the Commission that it had vacated all the citations at issue
because jurisdiction of the site should have been under OSHA, not MSHA. Relying
on the Supreme Court’s decision in Cuyahoga Valley, the Commission
reasoned succinctly that “[w]e agree with the Secretary that he has the
authority to vacate the citations in issue, and, therefore, we grant the
motions to dismiss.” Id.

These cases can be easily
distinguished from the present case on three major points. First, as noted
above, Cuyahoga Valley is an OSH Act case, and not a Mine Act case. This
is important because the OSH Act does not contain any provision identical to
section 110(k), i.e., a provision that authorizes the Commission to review the
Secretary’s proposed settlements and disapprove settlements when appropriate.

While there are similarities
in the OSH Act and the Mine Act, a sponsor of the Mine Act expressly stated
that the Mine Act was intended to adopt the stronger features of the OSH Act
while learning from areas where prior laws fell short. See 123 Cong. Rec. 4387–88 (1977) (statement of Sen.
Williams, the Mine Act’s sponsor, upon introduction of the Act).[8]
One such area of improvement was granting review of settlements to the
Commission. By contrast, the OSH Act grants OSHRC no authority to review
settlements, instead only requiring that such settlements be published in the
Federal Register. 29 U.S.C. § 655(e). As such, application of the holding in Cuyahoga
Valley in Commission cases is severely limited in the settlement context.

Second, RBK and Cuyahoga Valley’s motions
to dismiss were done in the context of a voluntary dismissal, not a settlement,
and that is of significant consequence. As explained above, we have recognized
that the Secretary has a general presumption of unreviewability in her
decisions not to enforce. However, section 110(k) provides an exception to this
presumption in the limited context of settlements.

Third, in both RBK and
Cuyahoga Valley, the administrative agency provided the court with an
explanation as to why the withdrawal or vacatur was taken. The Secretary in Cuyahoga
Valley conceded that the relevant safety violation was under the Federal
Railway Administration’s jurisdiction, not OSHA’s. 474 U.S. at 4. Similarly, in
RBK, the Secretary explained that the operator was under the
jurisdiction of OSHA, not MSHA, and provided evidence of policy controlling the
jurisdictional dispute. 15 FMSHRC at 2099. In the present case, the crux of the
matter is that the Secretary has declined to even state if the vacatur of
citations was an independent decision, or whether the decision was in
consideration for the operator accepting the other civil penalties at issue.[9]

D. Application of Section 110(k) in These Cases

Assuming that the Secretary had reached a
deal with the operator in these cases to vacate citations in exchange for the mitigation
or acceptance of the proposed penalty, section 110(k) grants the Commission the
responsibility to review this arrangement.[10]
In each of these cases, there are at least two civil penalties, contested
pursuant to section 105(a), at issue: the one vacated by the Secretary and the
one accepted by the operator. Even if there were some validity to the
Secretary’s argument that the penalty for the vacated citation is not relevant
because the removal of the penalty is merely incidental to the vacatur of the
enforcement action, the civil penalty that the operator has agreed to no longer
contest is still part of the deal.

The deal that the parties have reached
involving citations clearly constitutes a settlement. In order to effectuate
the resolution of a contentious legal matter, the parties have mutually agreed
to take actions against their own self-interest without the intervention of a
court.[11]

Moreover, the broad language of 110(k) goes beyond mere
settlements of civil penalties.[12]
The Mine Act also requires that the Commission review all “compromises” and “mitigations”
of civil penalties as well. 30 U.S.C. § 820(k).[13]
The inclusion of such language contemplates Commission review of arrangements
between the Secretary and the operator that, by themselves, may not directly affect
a civil penalty but are integral to the settlement package. See The
American Coal Co., 40 FMSHRC 983, 989 (Aug. 2018) (“AmCoal II”).

In these five cases, the Secretary has agreed to
vacate citations and their corresponding penalties. In exchange, the operator appears
to have agreed to forfeit its right to contest the citations by accepting the
proposed penalties as written or with minor changes. The operator is also
waiving its right to bring an Equal Access to Justice Act claim before the
Commission.

The legislative history is clear that such
arrangements are the types of arrangements that Congress intended for the
Commission to review. The Senate Committee stated unambiguously that section
110(k) was intended to create transparency in the previously opaque settlement
process and serve as a check on the Secretary of Labor so that settlements
further the public interest and promote the remedial nature of the Mine Act. S.
Rep. No. 95-181, at 44 (1977), reprinted in Legis. Hist. at 632-633.
If the Secretary was able to exchange vacatur for concessions from the operator
without Commission oversight, there would be very little opportunity for
miners, Congress, and other interested parties to assess the fairness and
effectiveness of MSHA. It would be easy for the Secretary to hide arbitrary
enforcement actions. Similarly, without Commission review, there would be no
check on the Secretary’s ability to vacate legitimate citations for unsafe
conditions.

One of the Secretary’s errors is that she fails to
treat a proposed settlement as an integral package consisting of related
citations, orders, and vacaturs. She instead deals separately with each part of
the settlement package and thus fails to acknowledge, for example, that a
vacatur will likely have a significant impact on other elements of the package.
Indeed, the Commission has recognized that during settlement review, a Judge
must “accord due consideration to the entirety of the proposed settlement
package, including both its monetary and nonmonetary aspects.” AmCoal II,
40 FMSHRC at 989 (internal citations omitted).[14]

Because civil penalties are so closely intertwined
with citations, the vacatur of a citation in a proposed settlement will result
in a change in penalty amounts and affect the operator’s agreement to pay. Of
course, the ultimate penalty change occurs when the citation in question is
vacated, and the civil penalty becomes zero. Nevertheless, under the
Secretary’s position, the Commission and the public would have no ability or
right to understand what has happened. This position is clearly inconsistent
with section 110(k) of the Mine Act.

III.

Conclusion

For the reasons stated above,
we hold that the Secretary does not possess unreviewable discretion to vacate a
contested citation without the Commission’s approval under section 110(k) of
the Act. Further, we hold that the parties must provide sufficient factual
support to vacatur under such circumstances. We therefore conclude that the
Judge did not abuse his discretion by denying the settlement motions. Accordingly,
we affirm the Judge’s denial of the motions and remand the cases to the Judge.

/s/ Mary
Lu Jordan

Mary Lu
Jordan, Chair

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Commissioner
Althen, dissenting:

This opinion addresses two
cases presently being acted upon by the Commission. These cases involve a total
of six settlement dockets now pending before the Commission concerning whether
a Commission Administrative Law Judge (“ALJ”) may interfere with the
Secretary’s exercise of prosecutorial discretion. In each case, I respectfully
dissent.

In Crimson Oak Grove
Resources, LLC, Docket No. SE 2021-0112 et al., the Commission considers
whether an ALJ may disapprove a
settlement based upon disagreement with the Secretary’s discretionary decision
to vacate a citation.[15]
In Knight Hawk Coal, LLC, Docket No. LAKE 2021-0160, the Commission
considers whether an ALJ may disapprove a settlement based upon disagreement
with the Secretary of Labor’s discretionary
decision to vacate a special finding of a Significant and Substantial
(“S&S”) violation.[16]
In each case, the
Commission majority seeks to wrest discretionary policy and enforcement
decisions from the Secretary. The majority does so by misconstruing the
wording, purpose, and limit of section 110(k) of the Mine Act, 30 U.S.C. §
820(k) and refusing to accept the Secretary’s policymaking and enforcement
authority.[17]

Common threads join the cases—the
Secretary’s exclusive executive authority to make enforcement decisions and the
Commission's failure to have any policy-making authority. Rather than writing
separate opinions, I consolidate my dissenting opinion into one opinion to be
issued in each case, respectively.

The express terms of the Mine
Act and the established enforcement authority of the Secretary undercut the
ALJ’s and Commission’s desire to become an enforcement agency through its
review of penalty settlements rather than properly tending to its adjudicative
function and the review of penalties. The Commission’s decisions in these cases
would allow ALJs to second-guess discretionary enforcement decisions ranging
from vacating citations to designations of S&S violations finding
unwarrantable failures, finding flagrant violations, and beyond. Interference
by ALJs with the Secretary’s substantive authority is a legal error and a very
large step backward for the efficient and lawful administration of the Mine
Act.[18]

I.

BACKGROUND

In 1966, Congress enacted the Federal
Metal and Nonmetallic Mine Safety Act, 30 U.S.C. § 721 et seq. (1976). Congress
placed standard-setting and enforcement authority in the Department of the
Interior. It further created a Federal Metal and Nonmetallic Mine Safety Board
of Review possessing authority to review citations contested by operators. The
President appointed five members to the Board with the advice and consent of
the Senate.

Building upon
this effort to increase mine safety for metal/nonmetal mines, Congress turned
its attention to the coal industry in 1969. It enacted the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) (amended 1977). Again,
Congress granted regulatory authority to the Department of Interior. That
Department created the Mining Enforcement and Safety Administration to conduct
mine safety enforcement activities.

Notwithstanding
improvements, a frightening number of injuries and accidents continued to
occur. An incomplete summary includes the death of 91 miners from carbon
monoxide asphyxiation at the Sunshine Silver Mine in 1972, the death of 125
persons due to the bursting of an impoundment at the Buffalo Creek Mine in
1972, and the 1976 Scotia disaster in which twenty-three miners and three
federal inspectors died in two explosions of accumulated methane gas with some
blaming MESA for the failure to detect or address ongoing inadequate
ventilation deficiencies. See Tim Talbott, Kentucky Historical Society, Scotia
Mine Disaster, https://explorekyhistory.ky.gov/items/show/238 (last visited
Aug. 28, 2024); MSHA, Sunshine Mine Disaster, https://www.msha.gov/sunshine-mine-disaster
(last visited Aug. 28, 2024); MSHA, Buffalo Creek Mine Disaster 50th
Anniversary, https://www.msha.gov/buffalo-creek-mine-disaster-50th-anniversary
(last visited Aug. 28, 2024).

In response to
these tragedies, Congress undertook a comprehensive review of mine safety in
the mid-1970s. This review led to the passage of the Federal Mine Safety &
Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or the “Act”).

Dissatisfied with
the performance of the Department of Interior generally and especially its
assessment and collection of penalties, Congress shifted the authority to
regulate and inspect mines from the Department of Interior to the Department of
Labor (“DOL”). DOL established the Mine Safety and Health Administration
(“MSHA”). Under its authority from the Mine Act, MSHA exercises broad
regulatory powers over the mining industries including promulgating mandatory
standards and regulations. Additionally, by statute, MSHA conducts frequent and
comprehensive inspections of all mines. During inspections, MSHA issues
citations for violations of standards and regulations. Subsequently, it
proposes penalties for the cited violations. Generally, those proposals result
from the application of a penalty point system at

30 C.F.R § 100.3 that accounts for all elements prescribed by
Congress for penalty proposals in Section 110(i) of the Mine Act, 30 U.S.C. §
820(i). Occasionally, MSHA will propose a special assessment.

The Mine Act also
created a smaller but constitutionally important federal agency—the Federal
Mine Safety and Health Review Commission (“FMSHRC”). Congress assigned
important functions to the Commission. These are (1) due process adjudication
of alleged violations of standards and regulations promulgated by MSHA and of
discrimination complaints; and (2) the assessment of penalties for established
violations. The Mine Act grants the Commission authority to assess all civil
penalties and identifies six specific factors for the Commission to consider
when setting penalties.

The Secretary and Commission perform important but distinctly different functions within
their separate jurisdictions. MSHA is the sole agency authorized to set policies
and regulations for the regulation and enforcement of the Mine Act. The
Secretary, through MSHA, also performs frequent and thorough inspections of
mines and other investigations to enforce the Act and the Secretary’s regulations.
Only MSHA may issue and enforce a citation. MSHA is the sole enforcement
authority for the Act and exercises plenary jurisdiction in enforcement.

The Commission is
an adjudicative agency and does not have any policymaking or enforcement
responsibilities. Sec’y of Labor v.
Twentymile Coal Co., 456 F.3d 151,
171 (D.C. Cir. 2006) (“[T]he Commission has no ‘policymaking role,’” id.
at 154, 111 S.Ct. 1171. Instead . . .‘the Commission is authorized to review
the Secretary’s interpretations only for consistency with the regulatory
language and for reasonableness.’ Id. at 154–55, 111
S. Ct. 1171. And, like a court, the
Commission is not as a general matter authorized to review the Secretary’s
exercise of prosecutorial discretion.”), citing Martin v. OSHRC, 299
U.S. 144 (1991); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463
(D.C. Cir. 1994); Sec’y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 114
(4th Cir. 1996).

In the cases under
review, the majority interjects the Commission into discretionary Secretarial
enforcement decisions—decisions to vacate a previously issued citation and,
separately, to vacate a special finding that a violation was S&S. The
majority’s assertion of a right to second-guess discretionary enforcement
decisions by the Secretary is contrary to the Congressionally intended split of
authority between the Secretary and the Commission. The designation of a
violation as S&S and many other prosecutorial enforcement functions are
wholly reserved for the Secretary. The Secretary, acting through MSHA, has the
discretionary and only authority to issue or vacate a citation or S&S
designation.

Policy-making and
discretionary enforcement decisions are left wholly to the Secretary. Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 159 (4th Cir. 2016) (“[W]e have
previously recognized that the Secretary is the authoritative policymaking
entity under the Mine Act's scheme.”); Energy West Mining Co. v. FMSHRC, 40
F.3d at 463. The Commission does not exercise any enforcement role other than
setting penalties and must remain neutral and impartial concerning enforcement.
Sec’y of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 114 (4th Cir. 1996) (“As the Supreme Court concluded for an analogous
adjudicatory body, the Commission operates as a ‘neutral arbiter’ . . . that possesses ‘nonpolicy-making
adjudicatory powers.’”).

To put this case in
perspective, if an ALJ may use a settlement to make decisions regarding
maintaining a citation or finding a special S&S violation, it would open a
host of other discretionary enforcement areas to ALJ interference—flagrant
violations, unwarrantable failures, etc. No one would suggest that, before or
after a hearing, an ALJ could find the Secretary showed more violations than
had been cited or add to the number of violations. No one would suggest that,
before or after a hearing, an ALJ could add a special S&S finding even
though the violation was not cited as S&S. An ALJ may not use consideration
of a settlement to second-guess the Secretary’s enforcement decisions.

II.

SECTION 110(K) ADDRESSES THE
COMPROMISE OF PENALTIES; IT DOES NOT PERMIT COMMISSION REVIEW OF POLICY
DECISIONS BY THE SECRETARY.

The majority
incorrectly seeks to justify incursion into areas of prosecutorial discretion
by turning to the penalty section of the Mine Act. The penalty section, its
history, and its implementation by the Commission demonstrate conclusively that
the Commission does not have the authority to encroach upon the Secretary’s
enforcement authority.

Section 110 of the Mine
Act sets out a comprehensive roadmap for penalty assessments. Section 110(i)
grants the Commission authority over all civil penalties by providing,

The Commission shall have authority to
assess all civil penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider 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. In proposing civil
penalties under this Act, the Secretary may rely upon a summary review of the
information available to [her] and shall not be required to make findings of
fact concerning the above factors.

30 U.S.C. § 820(i).

The section
accomplishes three goals. First, it grants the Commission the authority to
assess “all” civil penalties. Second, it sets forth the specific factors the
Commission must consider in setting penalties. Third, consistent with the
Commission’s ultimate authority, the Secretary may propose a penalty for review
by the Commission without making findings of fact related to its proposal of
penalties.

Two other sections of
the Act confirm the Commission’s authority over penalties. First, Section 105
provides that if an operator does not contest a proposed assessment within 30
days, “the proposed assessment of penalty shall be deemed a final order of the
Commission and not subject to review by any court or agency.” 30 U.S.C. §
815(a). So, even when the Commission is not directly involved in setting a
penalty, the penalty is deemed an order of the Commission.

Second, and most
importantly here, Congress recognized a potential hole in the Commission’s
authority. If the Secretary compromised a penalty proposal and the operator did
not contest it, the compromised penalty would be deemed an order of the
Commission under section 105 cited above. Congress closed that loophole in the
Commission’s penalty authority in the penalty section relevant to this case.

Section 110(k) closes
the loophole thereby confirming the Commission’s authority providing that “[n]o
proposed penalty which has been contested before the Commission under section
105(a) of this Act shall be compromised, mitigated, or settled except with
the approval of the Commission.” 30 U.S.C. § 820(k) (emphasis added).

This
section fits neatly into the Congressional direction for penalties by assuring
the Commission’s ultimate authority over penalties notwithstanding an MSHA
proposal to settle a penalty. It explicitly and only applies to a “proposed
penalty.”

Congress
could have granted the Commission oversight generally of all compromises or
settlements by writing “no case brought before the Commission under section 105(a)
of this Act.” It did not do so. It wrote, “[n]o proposed penalty which has been
contested before the Commission under section 105(a) of this Act.” Congress
could have applied the language to “citations,” or “violations.” It did not do
so. Congress could have given the Commission broader authority in the section
of the Mine Act that created the Commission and its adjudicative
authority—Section 113, 30 U.S.C. § 823. It did not do so. Section 110(k)
affirmed the Commission’s authority over penalties.

Congress
granted the Commission oversight for penalty settlements, and it did so only in
the penalty section of the Act. Previously, the Commission recognized the
specificity of section 110(k). In The American Coal Company, the
Commission wrote, “[i]n exercising its discretion, the Commission evaluates
whether a proposed reduction in a penalty or penalties ‘is fair, reasonable,
appropriate under the facts and protects the public interest.’” 40 FMSHRC 330,
332 (Mar. 2018), citing The American Coal Co.,
38 FMSHRC 1972, 1982 (Aug. 2016) (“AmCoal I”).

Section 110 is headed “Penalties.” The section
only addresses penalties. In the words of a prior Commission decision, the
Commission “does not review the Secretary’s decision to settle. Rather
the Commission reviews the proposed reduction of civil penalties in
settlements.” AmCoal I, 38 FMSHRC at 1982 (emphasis in original).

In American Coal, the Commission
expressly recognized that the Commission’s review of penalties in settlements
is limited by boundaries. “Such boundaries are provided by section 110(i) of the Mine Act, the Act’s legislative
history, and the Commission’s Procedural Rules.” Id. Section 110 does not provide for assessing a penalty based
upon an S&S violation, unwarrantable failure, or other substantive
requirements of the Mine Act.[19]

The legislative history of the Mine Act
confirms this interpretation. Congress repeatedly and expressly emphasized its
dissatisfaction with penalties assessed under the Coal Act. Early in the Senate
Report, the Senate said:

The assessment and collection of civil
penalties under the Coal Act has also been a great disappointment to the
Committee. The Committee firmly believes that the civil penalty is one of the
most effective mechanisms for insuring lasting and meaningful compliance with
the law.

S. Rep. No. 95-181, at 15 (1977), as reprinted in 1977
U.S.C.C.A.N. 3401, 3415.

Later in its report, the
Senate focused upon its desire for public awareness of penalty compromises,
writing:

In addition to the delay in
assessing and collecting penalties, another factor which reduces the
effectiveness of the civil penalty as an enforcement tool under the Coal Act is
the compromising of the amounts of penalties actually paid. In its
investigation of the penalty collection system under the Coal Act, the
Committee learned that to a great extent the compromising of assessed
penalties does not come under public scrutiny. . . .

. . . The Committee strongly feels that
the purpose of civil penalties, 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 and their
representatives, as well as the Congress and other interested parties, can
fully observe the process.

To remedy this situation,
Section 111(1) [section 110(k) in the final Act] provides that a penalty
once proposed and contested before the Commission may not be compromised
except with the approval of the Commission.

S. Rep. No. 95-181 at 44–45 (emphasis added).

The legislative history of section 110(k)
demonstrates that the reduction of penalties through settlements was the target
of section 110(k). Low penalties were the motivating concern for sections
110(i) and 110(k) expressly articulated by Congress. Previously, the Department
of Interior could settle a case by reducing the penalty. An operator could
bargain for a reduction in penalty to avoid litigation over a citation. Thus, a
deal could be reached without any consideration of the penalty factors.

MSHA and the operator may still undertake
such compromises. However, they may only do so if they can explain to the
Commission how the compromise penalty comports with the penalty criteria
expressly established in section 110(i). There is no evidence, hint, or
insinuation in any of this to suggest the Commission may interfere in
enforcement policy decisions such as whether to issue or enforce a citation,
charge an S&S violation, charge a flagrant violation, charge an unwarrantable
failure or any other substantive aspect of the Mine Act with exclusive
expertise and authority of the Secretary.

Commission authority over the settlement
of penalties does not appear in section 105 setting out the procedures for
enforcement and for operators’ right to challenge citations (30 U.S.C. § 815)
or section 113 establishing and providing rules for the governance of the
Commission (30 U.S.C.§ 823). The express words of section 110(k) and
legislative history show the only concern of section 110(k) is the reduction of
penalties.

The third bounding element also
demonstrates the Commission’s formal acceptance that its settlement authority
applies to penalties. The Commission’s relevant procedural rules, identified in
American Coal, supra, as a third boundary upon the review of
settlements, is expressly limited to penalties. The settlement rule, Procedural
Rule 31, is limited to a “Penalty Settlement” and provides, inter alia,
that “[a] motion to approve a penalty settlement shall include for each
violation the amount of the penalty proposed by the Secretary . . . .” 29
C.F.R. § 2700.31(b)(1) (emphasis added). Further, Rule 31(c)(1) states:

Factual support.
A proposed order approving a penalty settlement shall include for each
violation the amount of 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(c)(1).

Consequently,
the factors expressly held by the Commission as boundaries of Commission
authority—the express words of the statute, the legislative history, and the
Commission’s rules—demonstrate that an ALJ’s settlement authority consists of
reviewing the penalty proposed in the settlement. In doing so, the ALJ may consider
the application of the six penalty factors but that does not mean the ALJ may
conduct mini hearings.

In Hopedale Mining, LLC, the
Commission properly explained that a settlement does not present an opportunity
or a right for ALJs to engage in a fact-finding proceeding.

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.

42
FMSRHC 589, 595 (Aug. 2020). The ALJ is not permitted to demand evidence or
make findings concerning discretionary enforcement decisions by the Secretary.

As
we see below, not only do the words of the Act, its legislative history, and
Commission rules limit the Commission’s authority to review penalties, but also
strong and prevailing case law reserves discretionary enforcement authority to
the Secretary at every stage of a proceeding.

III.

PROSECUTORIAL
DECISIONS SUCH AS WHETHER TO VACATE A CITATION OR CHARGE A VIOLATION AS
SIGNIFICANT AND SUBSTANTIAL ARE EXERCISES OF PROSECUTORIAL DISCRETION RESERVED
FOR THE SECRETARY.

Policy-making and
discretionary enforcement decisions are left wholly to the Secretary. Mutual
Mining, Inc., 80 F.3d at114 (“As the Supreme Court concluded with respect to an
analogous adjudicatory body, the Commission operates as a ‘neutral arbiter.’”);
Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985); Knox Creek Coal Corp., 811 F.3d at 159 (“[W]e
have previously recognized that the Secretary is the authoritative policymaking
entity under the Mine Act’s scheme.”);
Twentymile Coal Co., 456 F.3d at 158;
Energy West Mining Co., 40 F.3d at 463. The Commission must be
neutral and does not have jurisdiction over enforcement decisions. Certainly,
it does not have jurisdiction to find a violation the Secretary has not cited
or to contradict a Secretarial decision to vacate a citation, special S&S
finding, flagrant violation, or a host of other enforcement decisions.

The D.C. Circuit
authoritatively holds only MSHA has the authority to make enforcement decisions
under the Mine Act and that authority is not bounded by the Commission. In
short, “the Secretary’s charging discretion is as
uncabined as that of a United States Attorney under the Criminal Code.” Twentymile Coal Co. 456 F.3d at 157. Indeed, the Circuit Court
characterized the attempt by the Commission to assert a right for the
Commission to review enforcement decisions as “pernicious,” writing “the most
pernicious aspect of employing this purported standard as a check on charging
decisions is that it invites the reviewing body to substitute its views of
enforcement policy for those of the Secretary, a power that . . . the
Commission does not possess.” Id. at 158. The Commission and
courts have repeatedly applied the fundamental principle of the Secretary’s
exclusive authority over the broad range of enforcement decisions and policies,
including the right to vacate citations and S&S enforcement.

A. Citations

The Secretary annually conducts thousands of meticulous
inspections of mines. MSHA inspectors use their training, knowledge, and
experience to make judgment calls concerning compliance with the thousands of
requirements governing the mining industries. As a result, MSHA issues tens of
thousands of citations. Thereafter, MSHA supervisors may review, approve,
revise, or overrule inspectors’ decisions. If a contest is filed, trained
representatives of the Secretary pore over the citations reviewing the facts
and the penalty assessment. Maintenance of a citation is one of the basic, if
not the most basic, exercises of the Secretary’s enforcement authority.

In RBK Construction, Inc., 15 FMSHRC 2099 (Oct. 1993) (“RBK”), the
Commission held that the Supreme Court’s decision in Cuyahoga Valley,
474 U.S. 3, mandated that the Secretary had the dispositive authority to vacate a citation. The
Commission correctly ended its decision with a short, declarative
acknowledgment of the Secretary’s authority, “We agree with the Secretary that
he has the authority to vacate the citations in issue.” RBK, 15 FMSHRC
at 2101. For thirty years until today, no Commission has challenged this
holding.

The Commission
emphasized the Secretary’s authority by instructing the Secretary and operators
that they “may in the future file stipulations of dismissal signed by all
parties to a proceeding, in order to effect voluntary dismissal. . . . Upon the
parties’ filing of the appropriate stipulation, the presiding Commission Judge
shall enter an order dismissing the proceeding.” Id. at 2101 n.2.[20] Therefore, if the parties had
presented the vacation decisions separately from penalty adjustment on other
citations being resolved, the ALJ would simply have ordered dismissal. It would
be silly and counterproductive for the Secretary to have to resort to such
gamesmanship to exercise her right to settle enforcement actions. The Secretary’s unreviewable right to vacate a
citation is the clear and long-standing discretionary right of the Secretary.

·
In Bixler Mining
Company, 16 FMSHRC 1427 (July 1994), the ALJ issued a default judgment
against the operator for failing to comply with a prehearing order. More than
30 days later, the Secretary filed a motion to vacate the default decision,
vacate the underlying citation, and dismiss the proceeding. The Commission
reopened the case and vacated the citation. The Commission “concluded that the Secretary has
unreviewable authority to vacate or withdraw his own enforcement actions.” Id.
at 1428.

·
In Bridger Coal Company, 17
FMSHRC 270 (Mar. 1995), the Secretary sought to dismiss the Secretary’s own
previously filed PDR. Notably, the Secretary’s motion stated the motion was
made “in an effort to effectively utilize his
resources.” Id. at 270l. Affirming the dispositive effect of RBK,
the Commission unanimously granted the motion. Id. at 271. The
Secretary, not the Commission, decides upon the appropriate use of Secretarial
resources.

·
In Mechanicsville
Concrete, Inc. T/A Materials Delivery, 18
FMSHRC 877 (June 1996), the principal issue was the ALJ’s decision to enter an
S&S finding even though the Secretary had not made a special finding of
S&S. The Commission held that the Commission does not have authority to
make an S&S finding not sought by the Secretary. Without a supporting
finding by the Secretary, the ALJ did not possess the authority to add a new
finding. Id. at 879-80, citing Mettiki Coal Co., 13 FMSHRC 760, 764-765 (May 1991). Further, the Commission reemphasized the ongoing
guiding principle: “The
Commission has recognized that the Secretary’s discretion to vacate citations
is unreviewable.” Id. at 879.[21]

·
In United Metro
Materials, 24 FMSHRC 140 (Feb. 2002), Chairman Verheggen and Commissioner
Beatty summarily granted the Secretary’s motion
to dismiss a Direction for Review of citations. Then-Commissioner (now Chair)
Jordan separately concurred writing, “The [Supreme] Court pointed out that
allowing the Commission to overturn the Secretary’s decision to withdraw a
citation would amount to allowing the Commission ‘to make both prosecutorial
decisions and to serve as the adjudicator of the dispute, a commingling of
roles that Congress did not intend.’” Id. at 142 (citing Cuyahoga
Valley, 474 U.S. at 7).

· Following Cuyahoga, 474 U.S. 3, this
Commission in RBK, 15 FMSHRC at 2101, concluded that
it lacked the authority to overturn a Secretarial decision to withdraw or
vacate a citation.

· In United Mine Workers of America on behalf of
Local 1248, District 2 v. Maple Creek Mining, Inc., 29 FMSHRC 583
(July 2007), the Commission reversed
an ALJ’s decision to permit litigation of a Withdrawal Order notwithstanding
the Secretary’s settlement. It did so even though, “[w]e are aware that vacating the judge’s
denial of the operator’s motion for summary decision may have an adverse impact
upon miners who might otherwise have been eligible for up to a week’s
compensation for the time they were not permitted to work due to the withdrawal
order. We are sympathetic to their position. However, the Secretary has broad
authority to vacate orders she has issued.” Id. at 596-7.

·
In North American
Drillers, LLC, 34 FMSHRC 352, 355-56 (Feb. 2012), the Commission wrote: “The
Commission has acknowledged that it lacks authority to overturn a decision by
the Secretary to withdraw or vacate a citation under the Mine Act. RBK, 15
FMSHRC at 2101, citing Cuyahoga, 474 U.S. at 7-8; Mechanicsville
Concrete, Inc., 18 FMSHRC 877, 879 (June 1996). The Commission and
the courts have also recognized that under the Mine Act, Congress intended to
delegate such enforcement authority to the Secretary, not the Commission. Mechanicsville, 18
FMSHRC at 879; Sec’y of Labor v. Twentymile Coal Co., 456
F.3d 151, 161 (D.C. Cir. 2006); Speed Mining, Inc. v. FMSHRC, 528
F.3d 310, 319 (4th Cir. 2008).”

The
majority does not provide any basis for veering from the express language of
the Mine Act, its legislative history, the Commission’s rules, or established
case law to undercut the established principle of the Secretary’s right to
vacate a citation—the most basic exercise of her exclusive enforcement
authority. In summary, the basic principles of split enforcement agencies, the
Secretary’s exclusive right to exercise prosecutorial discretion, the plain
language of section 110(k), the legislative history of section 110(k), and the
Commission’s rules demonstrate the Secretary’s right to vacate citations at any
point.[22]

B.
S&S
Designations

The
standard for determining if an S&S violation has occurred is whether (1)
there is an underlying
violation of a mandatory safety standard; (2) the violation was reasonably
likely to cause the occurrence of the discrete safety hazard against which the
standard is directed; (3) the occurrence of that hazard would be reasonably
likely to cause an injury; and (4) there would be a reasonable likelihood that
the injury in question would be of a reasonably serious nature. Peabody Midwest Mining, LLC, 42
FMSHRC 379, 383 (June 2020).

If an S&S
determination is challenged, an ALJ reviews the evidence and decides which
party has made the more convincing argument. However, before and after the
hearing, the Secretary has a right and duty to review the facts and decide
whether to press a special S&S finding.

The Commission
has understood the Secretary’s enforcement power and the absence of Commission
authority to interfere with the Secretary’s authority:

As is true under the OSH Act, “enforcement of the
[Mine] Act is the sole responsibility of the Secretary,” 499 U.S. at
152, 111 S.Ct. 1171 (internal quotation marks omitted), and the
Commission has no “policymaking role,” id. at 154, 111 S.Ct.
1171. Instead, “Congress intended to delegate to the Commission the type of
nonpolicy-making adjudicatory powers typically exercised by a court in
the agency-review context.” Id. “Under this conception of adjudication,
the Commission is authorized to review the Secretary’s interpretations only for
consistency with the regulatory language and for reasonableness.” Id. at
154-55, 111 S.Ct. 1171. And, like a court, the Commission is not as a
general matter authorized to review the Secretary’s exercise of prosecutorial
discretion.

Twentymile Coal Co., 456 F.3d at 161 (emphasis in original).[23]

In Mechanicsville, 18
FMSHRC 877, the Commission recognized the breadth and scope of MSHA’s
prosecutorial discretion. The Commission explained the distinctly different
roles of MSHA and the Commission under the Mine Act, finding that the
Commission must adjudicate disputes under the Mine Act; the Commission does not
enforce the Mine Act itself. Id. at 879-80.

In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court held an agency’s decision not to
institute enforcement proceedings to be presumptively unreviewable under 5
U.S.C.

§ 701(a)(2). Id. at 831. An agency’s “decision not to
enforce often involves a complicated balancing of a number of factors which are
peculiarly within its expertise.” Id. Numerous other decisions reiterate
this fundamental principle. Lincoln v. Vigil, 508 U.S. 182, 191 (1993); Wayte v. United States,
470 U.S. 598, 607 (1985); Robbins v.
Reagan, 780 F.2d 37, 44-45 (D.C. Cir.
1985).

Citing Heckler
and Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C.
Cir. 1986), the Commission found that MSHA, as the enforcing administrative
agency, has “virtually
unreviewable discretion in making decisions not to take particular enforcement
action relating to its statutory or regulatory authority.” Mechanicsville,
18 FMSHRC at 879. An ALJ forcing the Secretary to continue an enforcement
action that she has decided not to pursue directly contradicts this seminal
principle.

In American Aggregates of Michigan, Inc., 42 FMSHRC 570 (August 2020), the Commission held that an
Administrative Law Judge may “not to engage in fact finding as he would
post-hearing.” Id. at 576.[24]
The Commission recognized MSHA’s right to determine whether to assert with an
S&S claim stating, “[w]hether a violation is S&S is a matter in the
first instance of prosecutorial discretion. The Mine Act, therefore, recognizes
the expertise of MSHA in judging whether a violation is S&S.” Id.

Determination of whether a violation should be
designated S&S is a fact-based inquiry requiring the exercise of
prosecutorial discretion. If an S&S designation is contested at a hearing,
the ALJ is presented with evidence by both parties and may decide the merits of
the designation. That authority, however, does not permit an ALJ to add an
S&S finding to a citation that MSHA did not designate with a special
S&S finding. By parity of legal reasoning, if MSHA withdraws an S&S
designation before a hearing, an ALJ could not make a post-hearing decision
finding an S&S violation. Similarly, it is an impermissible abuse of
discretion for an Administrative Law Judge effectively to engage sua sponte
in a fact-based inquiry and determine that the Secretary may not remove an
S&S designation before settling a case.

IV.

CONCLUSION

The controlling element of these decisions is the
exclusive enforcement authority of the Secretary. Granting the Commission power
to review the Secretary’s policy decisions to enforce the Mine Act would place
numerous such decisions in the hands of an ALJ who has heard no evidence, who
has no mining experience, and to whom the parties have presented agreed-upon
facts. Moreover, the Commission cannot, and should not be able, to force the
Secretary to undertake prosecutions she no longer supports.

The express words of the Mine Act, its legislative
history, Commission rules, established case law, and sound policy demonstrate
the right of the Secretary of Labor to issue citations, vacate citations, issue
special S&S findings, vacate special S&S findings, issue flagrant
violation citations, vacate flagrant violation citations, assert unwarrantable
failures, withdraw the assertion of unwarrantable failures, and engage in a
host of other enforcement, policy-driven, qualified expert decisions. ALJs and
Commissioners must resist the siren call to self-importance; they must stay
within the boundaries of the law. The Secretary has the “uncabined” right to
assert or to vacate citations, special S&S findings, and other enforcement
decisions.

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

|

William
Allen McGilton

Assistant
Director of Safety-Assessments

American
Consolidated Natural Resources, Inc.

46226
National Rd.

St.
Clarisville, OH 43950

[email protected]

|

Joshua
Schultz, Esq.

Law
Office of Adele L. Abrams P.C.

600
17th St. #2800 South

Denver,
CO 80202

[email protected]

|

Lorna
M. Waddell, Esq.

Dinsmore
& Shohl LLP

215
Don Knotts Blvd. Suite 310

Morgantown,
WV 26501

[email protected]

|

John
Jerrels

Sr.
Regional Health & Safety Manager

LafargeHolcim

2942
US Highway 61

Bloomsdale,
MO 63627

[email protected]

|

Brandon
Witz

Regional
Health & Safety Coordinator

LafargeHolcim

3500
State Highway 61

Bloomsdale,
MO 63627

[email protected]

|

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

|

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

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Alexandra
J. Gilewicz, Esq.

Office
of the Solicitor

U.S.
Department of Labor

200
Constitution Ave. NW

Washington,
DC 20210

[email protected]

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Administrative
Law Judge Micheal G. Young

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

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Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

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[1] Our dissenting
colleague has opted to issue a consolidated dissent for both Knight Hawk
and Crimson Oak, which the Commission is issuing on the same date. Knight Hawk,
46 FMSHRC ___, slip op. at 15-28, No. LAKE 2021-0160 (August 30, 2024). However, as we have not consolidated the instant
proceedings with Knight Hawk, the issues raised in Knight Hawk
exceed the scope of our interlocutory review in this matter, and we do not
address them here. See 29 C.F.R. § 2700.76(d).

[2] A 104(a) citation is issued whenever the Secretary
believes that an operator has violated the Act or any health or safety standard
promulgated pursuant to the Act. 30 U.S.C. § 812(a). A 104(g) order is issued
whenever the Secretary determines that a miner has not received the requisite
safety training required by the Act. 30 U.S.C. § 812(g).

[3] There is no other Motion to Approve Settlement in the
record, so it is unclear what was being amended.

[4] Pursuant to Rule 76, the Commission, at its
discretion, may grant a motion for interlocutory review upon a “determination
that the Judge’s interlocutory ruling involves a controlling question of law
and that immediate review may materially advance the final disposition of the
proceeding.” 29 C.F.R. § 2700.76.

[5] Until enactment of the Federal Mine Safety and Health
Act of 1977, enforcement of the 1969 Coal Act was the responsibility of the
Secretary of the Interior. The Department of Interior’s enforcement functions,
except those assigned under section 501 of the 1969 Coal Act and those
expressly transferred to the Commission, were transferred to the Secretary of
Labor when the 1977 Mine Act took effect. 30 U.S.C. § 961(a) (Supp. III 1979).

[6] Section 110(i) sets forth six criteria to be
considered in the assessment of penalties under the Act:

[1] the operator’s history of previous
violations, [2] the appropriateness of such penalty to the size of the business
of the operator charged, [3] whether the operator was negligent, [4] the effect
on the operator’s ability to continue in business, [5] the gravity of the
violation, and [6] 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] Our dissenting colleague cites Twentymile Coal Co.,
for the proposition that “the Secretary’s charging discretion is as uncabined
as that of a United States Attorney under the Criminal Code.” Slip op. at 21,
quoting Sec’y of Labor v. Twentymile Coal Co. 456 F.3d 151, 157 (D.C.
Cir. 2006). In that case, the Commission overturned the Secretary of Labor’s
decision to cite both the owner-operator of a mine, as well as its independent
contractor, for the contractor’s safety violations. Twentymile, 456 F.3d
at 152. The D.C. circuit determined that because the Mine Act provided no
meaningful standards against which to judge the Secretary’s decision regarding
which party to cite, the Commission is generally without authority to review
such decisions. Id. That is distinguishable from the situation here. As
discussed at length above, Sections 110(i) and 110(k) evince Congress’ desire
to limit the Secretary’s discretion during settlement and provide a standard of
review for the Commission to analyze the Secretary’s actions.

[8] The Legislative
History of the Mine Act is replete with bipartisan references to the weakness
of the OSH Act and its administration. See, e.g., Legis. Hist. at
964-65 (Senator Schmitt noting reluctance to move mine safety regulation to the
DOL because OSHA has been “strongly criticized for its handling of those health
and safety programs” under their jurisdiction); id. at 976 (Senator
Williams noting OSHA’s “ineptness” in the past); id. at 1002 (Senator
Hatch noting the “poor administration” of OSHA); id. at 1037 (Senator
Domenici discussing why the history of OSHA has largely been one of failure).

[9] Our dissenting colleague states “[t]he majority does
not provide any basis for veering from the express language of the Mine Act,
its legislative history, the Commission’s rules, or established case law to
undercut the established principle of the Secretary’s right to vacate a
citation . . .” Slip op. at 23. However, the Dissent does not recognize or
address the arguments and analysis set forth in this section of the majority
opinion.

[10] Our dissenting colleague notes that the parties can
only settle “if they can explain to the Commission how the compromise penalty
comports with the penalty criteria expressly established in section 110(i).” Slip
op. at 19. However, that is exactly what the parties failed to do here: they
failed to explain how the facts they assert comport with the penalty they
agreed to assess. Specifically, the parties failed to explain why they agreed
to accept one citation and vacate another. The ALJ gave the parties
opportunities to provide that explanation for this compromise, but they failed
to provide one.

[11] See, e.g., “Settle,” Black’s Law Dictionary (10th ed. 2014)
(defining “settle” as “to bring to a conclusion (what has been disputed or
uncertain);” “to adjust differences; to come to a good understanding”).

[12] Our dissenting
colleague would read section 110(k) narrowly to only require Commission review
when the parties have agreed to lower the penalty for a citation. However, such
a narrow view of the law stands in stark contrast to the broad language of
Congress in which all settlements, mitigations, or compromises of civil
penalties be subject to Commission review. Had Congress intended to proscribe
review of settlements of civil penalties involving vacated citations, it would
have placed clear limits on the Commission’s review.

[13] The term “compromise,” has been defined as the
“settlement of differences or by consent reached by mutual concessions.” Compromise,
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/compromise (last
visited Aug. 27, 2024). The term
“mitigates” has been defined as “to cause to become less harsh” or “to make
less severe or painful” (i.e., or ameliorate, lessen, or balance out
something). Mitigate, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/mitigate (last
visited Aug. 27, 2024).

[14] Our dissenting colleague characterizes the ALJ’s
analysis here as a “mini-hearing” on the merits of the case. Slip op. at 20. That
is not an accurate characterization of what has occurred here. The Judge did
not convene a hearing nor did he question witnesses or make credibility
determinations. Instead, he simply read the submissions provided by the
parties, noticed inconsistencies between the facts asserted and the penalty
assessed, and requested clarification. The parties failed to provide sufficient
clarification and the ALJ denied the settlement.

[15] In Crimson Oak the question for review is,
“whether section 110(k) of the Mine Act authorizes review of the Secretary’s
decision to vacate a citation in the context of a settlement, when the vacatur
is contingent upon the resolution of other citations.” Slip op. at 2.

[16] The Commission’s Order for Interlocutory review in Knight
Hawk is “whether the Secretary has unreviewable discretion to remove
an [S&S] designation from a contested citation without the Commission’s
approval under section 110(k) of the Mine Act.” 46 FMSHRC ___, slip op. at 1,
No. LAKE 2021-0160 (August 30, 2024) (citation omitted). Unaccountably, the
majority misstates the issues before us in both of their opinions.

[17] The other dockets included in the cases identified
above are: Greenbrier Minerals, LLC, Docket No. WEVA 2022-0403, Crimson
Oak Grove Res., LLC, Docket No. SE 2021-0134, River City
Stone-Div/Mathy Construction Co., Docket No. LAKE 2021-0145, and Holcim
(US) Inc., Docket No. YORK 2021-0023.

[18] MSHA data reveals that in
calendar year 2022, MSHA issued 87,474 citations. MSHA, Dept. of Labor, MSHA
Enforcement Data, MSHA Violations, https://enforcedata.dol.gov/views/

data_catalogs.php
(last visited Aug. 28, 2024). Internal Commission records show that challenges
to citations resulted in creation of 1,751 Commission dockets. The Commission
resolved 1411 of those dockets by settlement, 314 for miscellaneous reasons,
and only 13 by a decision after a hearing. In sum, the Commission processed
more than 100 times more settlements than decisions after hearings.

[19] An S&S violation has occurred if (1)
there is an underlying violation of a mandatory safety standard; (2) the
violation was reasonably likely to cause the occurrence of the discrete safety
hazard against which the standard is directed; (3) the occurrence of that
hazard would be reasonably likely to cause an injury; and (4) there would be a
reasonable likelihood that the injury in question would be of a reasonably
serious nature. Peabody Midwest Mining, LLC, 42 FMSHRC
379, 383 (June 2020). Although S&S violations contain a gravity element, an
S&S finding is not the same as a finding on gravity, and gravity is treated
as a distinct and
separate element in the assessment of penalties.

[20] Based upon this instruction on procedure by the
Commission, when the Secretary is resolving a group of contests included in one
docket, the Secretary may dispose of the vacation of a citation by filing the
appropriate motion and, in turn, the ALJ “shall”—that is, “must”—approve. RBK,
15 FMSHRC at 2101 n.2.

[21] Oddly, the majority attempts to negate the clear holding
of Mechanicsville by arguing it derived from the Commission’s own prior dispositive
decision in RBK. Knight Hawk, 46 FMSHRC ___, slip op. at 9-10,
No. LAKE 2021-0160 (August 30, 2024).

[22] Even if those overwhelming principles were
insufficient, commonsense principles of government decision-making mandate the
absence of authority for the Commission to refuse to accept a decision to
vacate a citation. The Commission cannot compel the Secretary to litigate a
citation. If the Secretary finds a citation should be vacated, she may simply
decline to prosecute it. In the absence of the presentation of a case by the
Secretary, the citation must fail. It would be an unworkable and futile policy
to attempt to force the Secretary to prosecute a citation once she has decided
not to do so. Moreover, the Secretary recognizes that it is grossly unfair to
the private citizen for a group of lawyers on the Commission to force the
knowledgeable and experienced Secretary to prosecute the citizen despite her
decision not to do so.

[23] A host of cases affirm these basic premises. See,
e.g., Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 319 (4th Cir. 2008); RAG Cumberland Res. LP v. FMSHRC, 272
F.3d 590, 595-96 (D.C. Cir. 2001); Sec’y of Labor v. Excel
Mining, LLC, 334
F.3d 1, 5-6 (D.C. Cir. 2003); Akzo Nobel Salt, Inc. v. FMSHRC, 212
F.3d 1301, 1303 (D.C. Cir. 2000).

[24] A searching factual inquiry by the ALJ into the Secretary’s
exercise of prosecutorial discretion to vacate a violation or a special S&S
finding almost certainly precludes the ALJ from continuing as the Judge at a
hearing. For example, in Knight Hawk, Docket No. LAKE 2021-0160, the ALJ
wrote, “the operator may yet establish by evidence that there was no violation or that any violation was not S&S.” Unpublished Order Denying Motion to Approve
settlement, at 5 n.4 (Sept. 30, 2021) (emphasis added). Although the Judge does
not formally find S&S and disclaims finality, he places the burden of proof
on the operator to establish at a hearing that the violation was not S&S. Having
reached that view before the presentation of any evidence, he could not
possibly continue as the trial Judge.