Secretary of Labor v. Knight Hawk Coal, LLC

Plain-English summary

Knight Hawk and the Secretary proposed settling three citations by removing the significant-and-substantial designation from two and reducing total penalties from $7,960 to $4,590. The ALJ accepted the explanation for one removal but found inadequate support for removing S&S from a roof-control citation discovered after a roof fall. The Commission majority held that sections 110(k) and 110(i) limit the Secretary's settlement discretion and provide standards for reviewing S&S removals. It required reasoning and facts tied to the gravity and hazard analysis, while emphasizing that a judge does not conduct a mini-trial on a settlement motion. The Commission affirmed denial of the settlement and remanded the case. Commissioner Althen dissented.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(d)(1), 820(i), and 820(k); 30 C.F.R. § 100.3
• Outcome: The settlement denial was affirmed, and the case was remanded.
• Key point: Removing an S&S designation in settlement requires Commission approval and factual support addressing the cited hazard.

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
2021-0160

:

:

KNIGHT HAWK COAL,
LLC :

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

DECISION

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

This
proceeding, arising under the Federal Mine Safety and Health Act of 1977,

30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), involves the interlocutory review
of a Commission Administrative Law Judge’s denial of a proposed settlement
between the Secretary of Labor and Knight Hawk Coal, LLC (“Knight Hawk”). 44
FMSHRC 23 (Jan. 2022) (ALJ).

At
issue is whether the Secretary has unreviewable discretion to remove a
significant and substantial (“S&S”) designation[1] from a
contested citation without the Commission’s approval under section 110(k) of
the Mine Act, 30 U.S.C. § 820(k).[2]
For the reasons that follow, we answer that question in the negative, affirm
the Judge’s denial of the settlement motion, and remand the case to the Judge.

I.

Factual and Procedural Background

This case originally
involved three citations, Citation Nos. 9198030, 9198038, and 9198165, issued to
Knight Hawk at its Prairie
Eagle-Underground mine
by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). The
Secretary submitted to the Judge a motion to approve a settlement pursuant to
Section 110(k). In that motion, the Secretary proposed removing S&S designations
from two citations: Citation Nos. 9198165 and 9198038. The third citation
remained unaltered. Additionally, the motion requested a penalty reduction from
$7,960.00 to $4,590.00.

The Judge denied
this settlement motion. In doing so, he requested clarification regarding why
the parties believed that the circumstances surrounding Citation Nos. 9198165
and 9198038 were not reasonably likely to contribute to an event with the
potential to cause significant injuries for S&S purposes.

The Secretary subsequently
submitted three amendments to the motion to approve settlement. Although the
Judge determined that the amended explanation for the removal of the S&S
designation from Citation No. 9198165 was satisfactory, he remained unsatisfied
with the parties’ justification for removing the S&S designation from the
remaining citation, Citation No. 9198038. He noted that Citation No. 9198038 “arises
from an alleged violation of the operator’s roof control plan, which appears to
have been discovered after a roof fall occurred.” 44 FMSHRC at 33.

The Judge held
that given the lack of an adequate justification for removing the S&S
designation from Citation No. 9198038, approval would unfairly compromise the
public interest. Therefore, pursuant to the Commission’s longstanding authority
to approve settlements under section 110(k) of the Act, he issued an order
denying the motion to approve settlement.

The Judge subsequently
granted the
Secretary’s motion to certify this case for interlocutory review. The
Commission granted interlocutory review on the issue of “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.”[3]

II.

The
Parties’ Arguments

The Secretary argues
that the Judge abused his discretion by denying the settlement motion, based on
an “improper understanding of the law.” S. Op. Br. at 10; see Shemwell
v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014); see also Calle-Vujiles
v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (citations omitted)
(articulating de novo standard of review). The Secretary asserts that she
has unreviewable prosecutorial discretion to remove an S&S designation
because S&S designations are “enforcement decisions,” not “penalties,”
under the language of section 110(k). S. Op. Br. at 10-18.

The Secretary grounds
her claim to this authority in the Administrative Procedure Act (“APA”), arguing
that enforcement agencies are generally presumed to have unreviewable
discretion to settle enforcement actions. She submits that such a presumption
can be overcome only when the controlling statute both (1) indicates an intent
to circumscribe agency enforcement discretion; and (2) provides meaningful
standards for defining the limits of that discretion (citing as support the “Heckler
Test” established in Heckler v. Chaney, 470 U.S. 821, 834 (1985)). The
Secretary asserts that the presumption of unreviewability cannot be overcome for
the removal of S&S designations because section 110(k) fails to meet the
second prong of the Heckler test; that is, it does not provide any
meaningful standards for judicial review of the Secretary’s S&S decisions,
but only for penalty amounts.

The Secretary cites
to the Commission’s decisions in Mechanicsville Concrete, Inc. and American
Aggregates of Michigan, Inc. to support her position that she need only
depend on her discretion when vacating S&S designations in settlements. S.
Mot. ¶ 6(C)(2); Am. Aggregates of Mich., Inc., 42 FMSHRC 570, 576–79
(Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879–89
(June 1996)).

The Secretary
further relies on the Act’s split-enforcement scheme to argue that the Mine Act
precludes Commission review of the Secretary’s decision to remove an S&S designation.
According to the Secretary, the role of the Commission is limited to adjudicating
disputes and not to “second-guess the Secretary’s enforcement choices or to
make its own.” S. Op. Br. at 18-19.

Finally, the Secretary
argues that other considerations support the Secretary’s unreviewable
discretion to remove S&S designations, such as fairness to operators, public
confidence in enforcement of the Mine Act, and the Equal Access to Justice Act
(“EAJA”).

The operator filed
a response brief reiterating many of the same arguments made by the Secretary.

III.

Disposition

For the reasons set
forth below, we hold that the Secretary does not have unreviewable discretion
to remove an S&S designation from a contested citation without the
Commission’s approval under section 110(k) of the Act. We further hold that the
parties must provide sufficient reasoning and justification to support the
removal of an S&S designation in a settlement motion.[4] Accordingly, we
conclude that the Judge did not abuse his discretion by denying the settlement
motion.

A. Sections 110(k)
and 110(i) of the Mine Act Demonstrate an Intent to Circumscribe the
Secretary’s Enforcement Discretion and Supply a Meaningful Standard of Review
to Evaluate the Secretary’s Removal of S&S Designations in Settlement
Proceedings.

Agency decisions not to enforce,
including an agency’s decision to settle, are generally committed to the agency’s
discretion and are therefore presumptively unreviewable. Heckler v. Chaney,
470 U.S. at 831; see, e.g., Baltimore Gas & Elec. Co. v.
FERC, 252 F.3d 456, 459-60 (D.C. Cir. 2001). However, this presumption of
unreviewability may be overcome if the relevant statute “has indicated an intent
to circumscribe agency enforcement discretion, and has provided meaningful
standards for defining the limits of that discretion.” 470 U.S. at 834
(emphasis added).

For the reasons below, we hold that
the Mine Act meets both requirements of the Heckler test, therefore the
Secretary does not have unreviewable authority to settle proceedings under the
Mine Act.

1.
Section
110(k) of the Act demonstrates an intent to circumscribe the Secretary’s
enforcement discretion to remove S&S designations in the context of
settlement proceedings.

The Commission
has held that, in the settlement context, section 110(k) rebuts the general
rule of unreviewability. Section 110(k) expressly curtails the Secretary’s
authority to exercise a basic power of prosecutorial discretion: the power to
settle a case. As stated in American Coal Co.,
38 FMSHRC 1972, 1980 (Aug. 2016) (“AmCoal I”),
“section 110(k) is an explicit expression of Congressional authorization that
rebuts any presumption of unreviewability” under Heckler. As a
result, the remaining question before us is the scope of the intended
circumscription.

A review of the language, the
legislative history, comparisons to other health and safety statutes, and
practical considerations all signal an expansive role for the Commission. This
includes the authority to review S&S removals in citations within
settlements as a necessary component of its settlement review authority. In
reaching this holding, we do not grant the Commission any new settlement review
authority beyond that of AmCoal I, 38 FMSHRC at 1972 and American Coal Co., 40
FMSHRC 983 (Aug. 2018) (“AmCoal II”).

With respect to the language of section
110(k), it is highly significant that Congress included the terms “compromised”
and “mitigated” in addition to “settled” in section 110(k), 30 U.S.C. § 820(k).
See AmCoal I, 38 FMSHRC at 1975-76. In order to grasp that significance,
it is important first to understand what the words in section 110(k) mean in
context. “Compromise” and “mitigate” are not defined in the Act. In the absence
of a statutory definition, courts typically “construe statutory term[s] in
accordance with [their] ordinary or natural meaning[s].” FDIC v. Meyer,
510 U.S. 471, 476 (1994).[5]
Furthermore, when Congress uses multiple terms, such as here, the courts
construe each term to have a particular, non-superfluous meaning. See, e.g.,
Bailey v. U.S., 516 U.S. 137, 145-46 (1995)
(rejecting interpretation that would have made “uses” and “carries” redundant
in a statute penalizing using or carrying a firearm in commission of offense), superseded by statute, Criminal Use of Guns 1998, Pub.L. 105–386, §
1(a)(1), 112 Stat. 3469, as recognized in U.S. v. O'Brien, 560 U.S. 218,
232–233 (2010) (discussing statutory amendment known as the “Bailey fix”).

Therefore, the inclusion of the
terms “compromised,” “mitigated,” and
“settled” in section 110(k) indicates a Congressional intent for Judges to
apply a holistic approach to reviewing settlements. The fact that Congress
chose these words instead of using narrower language specifying that a penalty
amount may not be lowered without Commission approval demonstrates that Judges
must be able to review more than the mere settlement of civil penalty dollar figures.
Congress did not simply state that the Commission could review penalty
settlements, instead it used additional, broad terms like “compromise” and
“mitigate” to ensure that the Commission’s review authority was broad and
encompassing. Congress’ choice of broad language further demonstrates that penalties
are closely intertwined with the allegations set forth in citations in
settlement proceedings.

Our reading of section 110(k) is
consistent with previously announced interpretations of the Mine Act. For
instance, the Commission has recognized that Judges 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 (emphases added). During settlement review, a Judge cannot be
limited to looking solely at discrete penalty dollar amounts, but rather must
be able to take a holistic approach to analyzing settlements. Judges may look
at compromises of the citation’s allegations, and those compromises may impact
the penalty amount or have other legal consequences.

The
legislative history and policy considerations of section 110(k) reinforce the need
for Commission review of the Secretary’s removal of S&S designations in
settlement proceedings. As we have previously recognized, Congress
unquestionably delegated to the Commission the power to administer section
110(k) by granting the Commission the authority to review all
settlements of citations under the Act. See AmCoal I, 38 FMSHRC at 1975.
Congress explained that section 110(k) was intended to assure that prior abuses
involved in the unwarranted lowering
of penalties, because of off-the-record negotiations, would
be avoided by providing for independent Commission settlement review. S. Rep.
No. 95-181, at 44-45 (1977), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 632–33 (1978) (Leg.
Hist.).

Congress knew that having such
authority is a necessary component of the Commission’s ability to meaningfully
review the “compromise,” “mitigation,” and “settlement” of penalties as a whole
and to effectively deter future violations. 30 U.S.C. § 820(k). Section 110(k)
serves to maintain the deterrent
effect of violations and penalties, in part by preventing the Secretary from abusing her authority to settle such
violations without appropriate justification. See AmCoal I, 38 FMSHRC at
1975-76 (citing S. Rep. No. 95-181, at 44-45, reprinted in Leg. Hist. at
632-33). The Commission cannot effectively review the Secretary’s reduction of
a penalty without examining the factors that go into it. This underscores the
importance of a meaningful, all-encompassing review by the Commission that goes
beyond mere dollar amounts.

Congress’ intent is further reinforced by a comparison
of the Mine Act to the Occupational Safety and Health Act (“OSH Act”). The OSH
Act contains similar language to section 110(k), but with an important
distinction. Section 655(e) of the OSH Act states that “[w]henever the
Secretary [of the Occupational Safety and Health Administration] promulgates
any standard, makes any rule, order, or decision, grants any exemption or
extension of time, or compromises, mitigates, or settles any penalty assessed
under this chapter, he shall include a statement of the reasons for such
action, which shall be published in the Federal Register.” 29 U.S.C. § 655(e). Although
the caselaw and legislative history of the OSH Act do not specify what the
terms “compromises” or “mitigates” a penalty means, the legislative history makes
it clear that these actions are within the purview of the Secretary. See
generally S. Rep. 91-1282 (1970), as reprinted in 1970
U.S.C.C.A.N. 5177.

It is important to distinguish that in the OSH Act,
the Secretary is authorized to take such actions without approval
by the Occupational Safety and Health Review Commission (“OSHRC”), while in the
Mine Act – which was passed seven years later – Commission approval is
required. See 30 U.S.C. § 820(k). As with the Mine Act’s legislative
history, this comparison between the language of the statutes elucidates
Congress’ intent, in drafting the Mine Act, to avoid the abuses arising from off-the-record
negotiations by the Secretary, by envisioning a greater role for the Commission
under the Act.

Finally, practical and common-sense
considerations support an interpretation of the statute that grants broad
authority to the Commission to approve or deny settlement motions. In fact, it
is hard to fathom any meaningful review under section 110(k) if all relevant
factors are not considered.

That is evident in this case. Specifically,
here, the Secretary’s removal of an S&S designation in a citation during a
settlement proceeding resulted in a reduced penalty amount. Whether the penalty
amount is appropriate cannot be properly determined without consideration of
how other changes to the citation impact the penalty. Further, this case
demonstrates that non-monetary considerations in one citation may have monetary
consequences later. For example, an operator might be willing to pay the full
amount of a proposed penalty in exchange for the Secretary’s removal of an
S&S designation in order to avoid a Pattern of Violations (“POV”) notice in
the future thereby “mitigat[ing]” the harshness of the proposed penalty. All
factors, rather than simply the penalty amount, are part of the bargained-for
exchange, i.e., the “compromise” that occurs in Mine Act settlements.

The Secretary would interpret
section 110(k) narrowly, as applying only to monetary “penalties.” Specifically, the Secretary argues
that she has the unreviewable
authority to remove S&S designations in a settlement proceeding without the
Commission’s approval because “[t]he ‘particular language’ of section 110(k) .
. . grants the Commission only the authority to approve the settlement of ‘penalties,’” S. Op. Br. at

17. The Secretary further argues that S&S removals are not “penalties.” Id. She also relies
    on the language of section 104(h), which provides for the Secretary’s authority to “modif[y], terminat[e], or vacat[e]”
    citations or orders. 30 U.S.C. § 814(h). The Secretary asserts that removing an S&S designation in a settlement is
    analogous to modifying a citation, and that “Congress would not have given the Secretary the independent authority to
    modify violations if Congress did not mean
    for the Secretary to exercise that authority independently.” S. Op. Br. at 17. According
    to the Secretary, the language and overall structure of the Act and the “nature
    of the administrative action at issue” confirm that the Secretary’s decisions
    to remove S&S designations in citations are unreviewable decisions in a settlement, as distinct from her
    decisions to settle “penalties.” Id. at 17-18.

In
essence, the Secretary’s argument boils down to an assertion that Congress must
have meant something different from what the language obviously says, which is the
Commission must approve settlements. However, other language in the Mine
Act, relevant for other purposes, does not negate this clear Congressional
intent. Further, the Secretary’s interpretation would effectively undermine
Congressional intent, by allowing for unfettered discretion to modify any
settlement if the penalty amount remains the same. Taken to its logical
conclusion, this would enable the Secretary to take an end run around Commission
review of settlements, rendering such review a nullity. Accordingly, we necessarily
read section 110(k) as circumscribing the Secretary’s discretion for her
removal of S&S designations in settlement proceedings.

2.
Sections
110(i) and 110(k) supply a meaningful standard of review to evaluate the
Secretary’s removal of S&S designations in settlement proceedings.

Having determined that Congress
clearly intended to circumscribe the Secretary’s enforcement authority in
Section 110(k), we now turn to the question of whether the statute in question provides “meaningful standards for defining the limits of that discretion.” Heckler, 470 U.S. at 822.
(emphasis added). Whether a
statute provides a “meaningful standard” depends on “the particular language and overall structure of the
statute in question, . . . as well as ‘the nature of the administrative action at issue.’” Speed Mining,
Inc. v. FMSHRC, 528 F.3d 310, 317 (4th Cir. 2008) (citing Webster v. Doe, 486 U.S. 592, 600-01 (1988)
and quoting Drake
v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002)). If there are “no judicially manageable standards .
. . for judging how and when an agency
should exercise its discretion,” then those discretionary
decisions are unreviewable. Heckler, 470 U.S. at
830.

We hold that section 110(i), 30
U.S.C. § 820(i), of the Mine Act provides a judicially manageable standard
that constrains the Secretary’s discretion and allows Commission Judges to
evaluate how and when the Secretary should exercise her decision-making when removing S&S
designations in settlement proceedings. See Speed Mining, 528
F.3d at 317. This standard is set forth in the six penalty factors that the
Commission must consider in assessing a penalty.

Although section 110(i) does not
explicitly reference S&S, it does require consideration of evidence of the
“gravity” of the violation. 30 U.S.C. § 820(i). The Commission has held that
gravity and S&S, although not identical, are “based frequently upon the
same or similar factual circumstances.” Quinland Coals, Inc., 9 FMSHRC
1614, 1622 n. 11 (Sept. 1987), citing 30 U.S.C. §§ 820(i), 814(d). S&S
is essentially the interplay between the “likelihood” and “severity” components
of “gravity” in the Mine Act and its related regulations.[6] See e.g.
30 C.F.R. § 100.3, Tables XI, XII. In short, the Commission’s review of the
Secretary’s decision to remove an S&S designation is not arbitrary but is
instead guided by the statutory language in section 110(i) regarding gravity.

In addition to section 110(i), the
Commission has interpreted section 110(k) to require settlements to be “fair,
reasonable, appropriate under the facts, and protects the public interest.” AmCoal
I, 38 FMSHRC at 1976. This standard also applies with respect to the
Secretary’s decision to remove an S&S designation.

Thus, sections 110(i) and 110(k) provide
a “judicially manageable standard[] . . . for judging
how and when [the Secretary]
should exercise [her] discretion” in removing S&S
designations in settlement proceedings. Speed Mining, 528 F.3d at 317. Accordingly,
we hold that the Heckler presumption of unreviewability for the
Secretary has been overcome. Heckler, 470 U.S. at 834.

B. The Secretary’s
Broad Reliance on Mechanicsville and American Aggregates is
Misplaced and Overlooks Contrary Commission Caselaw.

As noted above,
the Secretary argued that the Commission decisions in Mechanicsville and
American Aggregates render her decision to remove an S&S designation
unreviewable. However, those cases are inapposite.

Mechanicsville is distinguishable
in two respects. First, as the Judge noted below, Mechanicsville
involved a Judge’s attempt to add an S&S designation while
the current case involves a proposal by the Secretary to eliminate an
S&S designation. 18 FMSHRC 877, 879-80 (June 1996) (holding that, where
MSHA has not charged an S&S violation, a Judge may not make an S&S
finding on his or her own initiative).[7]
Second, Mechanicsville relies on a line of precedent stemming from a
case brought under the OSH Act. See RBK Constr., Inc., 15 FMSHRC 2099,
2101 (Oct. 1993), citing Cuyahoga Valley Ry. Co v. United Transp. Union,
474 U.S. 3, 6-7 (1985). As noted above, the OSH Act and the Mine Act diverge
regarding the Secretary’s authority over settlements. Therefore, precedent
developed under the OSH Act does not inherently apply to the Mine Act in the
settlement context.

We also agree with the Judge’s
determination that the Secretary’s reliance on American Aggregates is
also “misplaced.” 44 FMSHRC at 25 In American Aggregates, 42 FMSHRC at 576-81,
“the Commission vacated a Judge’s
decision to deny a settlement motion because the Judge ignored information that was relevant to the reasonableness of the settlement under the AmCoal
criteria.” 44 FMSHRC at 25; see AmCoal I, 38 FMSHRC
at 1979-81; AmCoal II,
40 FMSHRC at 991. That information
had “included several facts that were relevant to, and plausibly supported, a decrease in gravity and negligence, and
the removal of the S&S designation.”
44 FMSHRC at 25. As the Judge stated, the
Commission reversed the Judge’s denial of the settlement, including the removal
of the S&S designation, solely because the Judge had failed to consider the relevant
factual support provided. Id. Nothing in that case supports the
parties’ broad, sweeping position that the Secretary’s decision to remove an
S&S designation in a settlement constitutes unreviewable prosecutorial
discretion.

Thus, neither Mechanicsville nor
American Aggregates supports the parties’ positions in this case that
S&S determinations made in the context of a settlement are presumptively
unreviewable “enforcement decisions.”

In fact, long-standing Commission
caselaw holds that Commission Judges must review all settlements of
citations, as the Commission has consistently required its Judges to consider
reasoning and justifications that are both substantive and relevant to proposed
modifications before a motion to approve any settlement may be granted. See,
e.g., Solar Sources Mining, LLC, 41 FMSHRC 594, 601, 605-06 (Sept. 2019)
(reversing Judge’s determination
that the parties presented no
justification to support settlement, when the parties “actually presented
relevant facts,” including the non-applicability of the standard);
Hopedale Mining, LLC, 42 FMSHRC 589, 597-602 (Aug. 2020) (reversing the
Judge’s settlement denial because the Secretary had provided relevant
justification in part to support the lowering of negligence and gravity).

Here, the Secretary failed to
submit sufficient support showing why the citation involving a roof control
plan violation was not S&S although a roof fall had occurred. The Secretary
merely stated that the area in question at the mine had never been deemed to be
wider than the roof control plan allowed, so that additional bolts had not been
installed, and that the condition was not obvious, had not been noted on prior
inspections, and did not present visible signs that a roof fall was imminent. While
the Judge found that “these facts would support a reduction in negligence, they
would not support a reduction of the likelihood of injury in an area where a
roof fall occurred.” 44 FMSHRC at 33.[8]

Although Judges need not engage in
fact-finding, weighing conflicting evidence, or making credibility
determinations, they must still “probe gaps or inconsistencies in the
explanation offered in support of a settlement motion.” Cf. Hopedale
Mining, 42 FMSHRC at 595 (offered in response to the dissent); see also Black
Beauty Coal Co., 34 FMSHRC 1856, 1863, n.6 (Aug. 2012) (holding that the
Judge did not abuse her discretion in noting gaps and inconsistencies in
settlement motion); Solar Sources Mining LLC, 41 FMSHRC at 602 (stating
that Judges are “expected to . . . determine whether the facts support the
penalty agreed to by the parties”).[9]
Here, the parties failed to provide the Judge with sufficient justifications to
serve as the basis for an evaluation for why the citation for an alleged roof
control plan violation issued after a roof fall was not S&S under AmCoal
I.

C. The Secretary’s Policy Arguments
Relying on the Mine Act’s Split-Enforcement Scheme Are Unpersuasive in the
Context of Settlements.

The Secretary also claims that the
Act’s split-enforcement scheme precludes Commission review of the Secretary’s
S&S decisions during settlement proceedings. According to the Secretary,
the role of the Commission is limited to adjudicating disputes and not to
“second-guess the Secretary’s enforcement choices or to make its own.” S. Op.
Br. at 18-19. Applying this principle, the Secretary describes the Commission’s
assertion of settlement authority here as a “pernicious” intrusion into the
Secretary’s enforcement decisions, which would “invite [the Commission] to
substitute its views of enforcement policy for those of the Secretary, a power
that . . . the Commission does not possess.” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 158 (D.C. Cir.
2006)[10];
Speed Mining, 528 F.3d at 319. The Secretary speculates that, as a
result of this “intrusion,” a Commission Judge could presumably reject the
Secretary’s S&S removals, forcing her to pursue elevated enforcement
actions that she does not believe to be warranted, thus violating Commission
Procedural Rule 6(b)(2), 29 C.F.R. § 2700.6(b)(2) (stating that the signer of a
document certifies that the document “is well grounded in fact and is warranted
by existing law . . . .”). S. Op. Br. at 19.

We reject the Secretary’s argument.
If any relevant circumstances exist to plausibly suggest that an S&S
enforcement action is unwarranted, all the Secretary needs to do is provide
justification for removing the S&S designation to the Judge in her
settlement motion – and her motion must be granted. AmCoal I,
38 FMSHRC at 1982;
Hopedale, 42 FMSHRC at 601. If
a Judge were to still reject the motion, the Secretary could employ various
procedural safeguards to protect herself from having to pursue an unwarranted
S&S enforcement action. She could, for example, seek interlocutory review,
as she did in this case. Even if a Judge were to deny or disregard the
Secretary’s motion for interlocutory review, the parties could seek review of
that denial or disregard of the motion before the Commission and the Courts of
Appeals.[11]

D. The Secretary’s Remaining Policy
Arguments Relying on Fairness to Operators, Public Confidence in Mine Act
Enforcement, and EAJA Considerations are not Sufficiently Compelling Reasons to
Withhold Commission Review of S&S Removals in Settlements.

The Secretary
contends that being able to prevent her from removing an S&S designation would
improperly place the Commission in the role of the prosecutor, as well as risk
serious unfairness to operators. According to the Secretary, an operator who
receives a safety and health conference and presents facts warranting removal
of an S&S designation will have it removed, but if the operator contests
the citation before presenting identical facts, there would be no
guarantee that the Commission would agree to the Secretary’s decision to remove
the special finding. The Secretary argues that an operator’s ability to present
information to the Secretary, and to have special findings removed when
warranted, should not depend on when a citation negotiation happens to
occur in the contest process.

We conclude that
these procedural fairness concerns are outweighed here by the safety policies
of the Act. As declared by section 2 of the Act, “the first priority and
concern of all in the coal or other mining industry must be the health and
safety of its most precious resource--the miner.” 30 U.S.C. § 801(a). Here,
the Commission’s interpretation of section 110(k) and 110(i) furthers this
purpose by maintaining the deterrent
effect of violations and penalties, in part by preventing the Secretary from abusing her authority to settle such
violations without appropriate justification. See AmCoal I, 38 FMSHRC at 1975-76 (citing S. Rep. No.
95-181, at 44).

“Statutes are
hardly, if ever, singular in purpose,” but rather, “most laws seek to achieve a
variety of ends in a way that reflects the give-and-take of the legislative
process.” Van Hollen, Jr. v. Fed. Election Comm'n, 811 F.3d 486, 494
(D.C. Cir. 2016). Here,
the Commission’s interpretation of section 110(k) reflects a reasonable
accommodation of the safety goals and other policies of the Act.

Furthermore, the
Secretary’s EAJA arguments lack merit. The Secretary claims that being able to prevent her from
removing an S&S designation in a settlement could inappropriately force her
to assume EAJA risk when she has decided not to. The Secretary again paints a
hypothetical scenario where an operator contests a citation and, during
settlement negotiations, it presents facts that warrant removal of an S&S
designation. In this scenario, the Secretary agrees to modify the citation and
informs a Judge of that decision but refuses to inform the Judge of the
exculpatory justifications presented by the operator. As a result, the Judge
refuses to permit the settlement modification. The operator, unwilling to
accept a citation with a special finding the Secretary has already agreed to
remove, goes to hearing. Subsequently, the Judge, Commission, or court of
appeals vacates the citation, and the operator seeks EAJA fees.

In such a
scenario, according to the Secretary, it could be difficult for her to prove
that her position (litigating the citation that includes the S&S
designation) was “substantially justified”[12] because of her
earlier agreement to remove the designation – which could effectively be used
against her. The Secretary claims that this risky and undesirable litigating
position would flow from the Commission’s refusal to grant the Secretary
unfettered discretion to remove S&S designations in settlements.

We reject this
argument. As discussed above, if any relevant facts exist to plausibly suggest
that an S&S enforcement action is unwarranted, all the Secretary needs to
do is provide the reasoning and justification for removing the S&S
designation to the Judge – and the settlement motion must be granted. AmCoal I,
38 FMSHRC at 1973-74;
Black Beauty, 34 FMSHRC at 1863; Cf. Hopedale, 42 FMSHRC
at 589. Furthermore, if a Judge were
to still reject the settlement motion, as stated above, the Secretary would
still have the benefit of various procedural safeguards, such as being able to
petition for interlocutory review, to protect herself from having to pursue an
unwarranted S&S enforcement action. See, e.g., Hopedale, 42
FMSHRC at 592-94 (holding that a Judge erred in convening a hearing rather than
ruling on a motion seeking interlocutory review); Shamokin Filler Co.,
33 FMSHRC at 175. Further, it is a bedrock principle of American jurisprudence
that a party’s settlement positions and offers cannot be used against a party
in litigation to show inconsistency or contradiction. See e.g. Federal
Rule of Evidence 408.

In sum, we
conclude that sections 110(k) and 110(i) of the Mine Act demonstrate an intent
to circumscribe the Secretary’s enforcement discretion and supply a meaningful
standard of review to evaluate the Secretary’s removal of S&S designations
in settlement proceedings. We find unpersuasive the Secretary’s arguments to
the contrary.

IV.

Conclusion

For
the reasons stated above, we hold that the Secretary does not possess
unreviewable discretion to remove an S&S designation from 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 remove an
S&S designation under such circumstances. We therefore conclude that the
Judge did not abuse his discretion by denying the settlement motion. Accordingly,
we affirm the Judge’s denial of the motion and remand the case 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.1 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.2 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.3

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.4

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.5

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.2.6 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 879.7

·
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.8

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).9

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
576.10 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:

Alexandra J.
Gilewicz, Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

John Miklos

Director of Health
and Safety

Knight Hawk Coal,
LLC

500 Cutler-Trico
Road

Perry, IL 62272

[email protected]

Mark E. Heath

Spilman, Thomas
& Battle PLLC

PO Box 273

Charleston, WV
25321-0273

Phone:
304-340-3843

[email protected]

Emily Toler Scott

Senior Trial
Attorney

Office of the
Solicitor

U.S. Department of
Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

April Nelson, Esq.

Office of the
Solicitor

U.S. Department of
Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Melanie Garris

U.S. Department of
Labor

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine
Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative Law
Judge Michael Young

Federal Mine
Safety & Health Review Commission

Office of the
Chief Administrative Law Judge

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

[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 or
health hazard . . . .”

[2] Section 110(k)
provides in relevant part:

No proposed penalty which has been contested before
the Commission under section 105(a) shall be compromised, mitigated, or settled
except with the approval of the Commission.

30 U.S.C. § 820(k).

[3]
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. 46 FMSHRC ___, slip op. at 13,
No. SE 2021-0112, et. al. (August 30, 2024). However,
as we have not consolidated the instant proceedings with Crimson Oak,
the issues raised in Crimson Oak 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).

[4]
Our dissenting colleague states the issue in this case as “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.” Slip op. at 15. This is not an accurate
characterization of the issue before us. The question before us is not whether
a Judge may subjectively “disagree” with the Secretary, but whether a Judge may
review a proposed settlement to determine whether the Secretary has provided
sufficient justification for her decision to remove an S&S designation. Under
Commission Rule 76(d), “review shall be confined to the issues raised in the
Judge’s certification,” and the dissent’s attempt to answer a different
question than the one certified violates the Commission’s procedural rules. 29
C.F.R. 2700.76(d).

[5]
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).

[6] MSHA has effectively conceded the
interrelatedness of S&S and gravity. For example, when evaluating the
penalty points for gravity, MSHA is required to assign additional points for
any violation where the “event against which a standard is directed” is
“reasonably likely” to occur, which is similar to the language used in the Mathies
test for S&S. See 30 C.F.R. § 100.3, Table XI; compare
Mathies Coal Co., 6 FMSHRC 1, 3 (Jan. 1984). Similarly, the MSHA Inspector
Citation Handbook and MSHA Handbook both structure their guidance on S&S
within the gravity context. See generally MSHA Handbook Series U.S.
Dep’t of Labor, Mine Safety and Health Administration, Dec. 2020 Handbook
Number PH20-I-3, Citation and Order Writing Handbook, available at: https://arlweb.msha.gov/READROOM/HANDBOOK/
PH20-I-13.pdf (listing “S&S” as subsection 10(c) of section 10 which is
entitled “gravity”).

[7]
Our dissenting colleague states “[n]o 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.” Slip op. at 18. We agree. That issue is well-settled
and not before us at this time. For the reasons outlined above, the question of
whether the Secretary has unfettered discretion to eliminate an S&S
designation is a legally distinct issue.

[8]
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 21. 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 how the facts asserted could reasonably be cited
for the compromised gravity determination they agreed upon. The ALJ gave the
parties opportunities to provide that explanation for this compromise, but they
failed to provide one.

[9]
Our dissenting colleague characterizes this analysis as a “mini hearing” on the
merits of the case. Slip op. at 22. That is not an accurate characterization of
what has occurred here. The ALJ did not convene a hearing, he did not 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.

[10]
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 22, quoting Twentymile
Coal Co. 456 F.3d at 157. In Twentymile, the D.C. Circuit reversed a
Commission decision which overturned a decision by the Secretary of Labor to
cite both the owner-operator of a mine, as well as its independent contractor,
for safety violations committed by the contractor. Id. at 152. The court
determined that because the Mine Act provided no meaningful standards against
which to judge the Secretary's decisions regarding which parties 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.

[11] See, e.g., Hopedale,
42 FMSHRC at 592-94 (holding that a Judge erred in convening a hearing rather
than ruling on a motion seeking interlocutory review); see also Shamokin
Filler Co., 33 FMSHRC 1753 (Aug. 2011). 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 270 (Jun. 2019); Rockwell
Mining, LLC, 40 FMSHRC 994 (Aug. 2018); AmCoal II, 40 FMSHRC at 983;
Amax Lead Co. of MO, 4 FMSHRC 975 (Jun. 1982).

[12]
5 U.S.C. § 504 authorizes the payment of attorney’s fees to a prevailing party
in an action against the United States unless the government can show that its
position in the underlying litigation “was substantially justified.”

1 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.” 46 FMSHRC
___, slip op. at 2, No. SE 2021-0112, et. al. (August 30, 2024).

2 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.” Unaccountably, the majority misstates the issues before us in both of their
opinions.

3 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.

4 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.

5 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.

6 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.

7 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. Slip op at 9-10.

8 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.

9 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).

10 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.