Secretary of Labor v. Rulon Harper Construction, Inc.

Plain-English summary

A judge denied amended settlement motions because the submitted facts did not show that the proposed terms were fair, reasonable, appropriate, or protective of the public interest. The judge certified that denial for interlocutory review. The Commission accepted the certification and agreed to decide whether the judge abused her discretion. It ordered the Secretary to file an opening brief within 30 days and allowed the operator another 30 days to respond.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.76(a)
• Outcome: Interlocutory review was granted on whether the judge abused her discretion in denying settlement approval.
• Key point: A settlement denial presenting a controlling legal question may receive immediate Commission review before the underlying cases end.

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) :

: Docket No. WEST 2022-0249

: Docket No. WEST 2022-0250

v. : A.C. No. 42-02078-554812

:

:

RULON HARPER CONSTRUCTION, INC. :

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

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018). On December 12, 2022, a Commission Administrative Law Judge issued an order certifying for interlocutory review her denial of the Secretary of Labor’s amended motions to approve settlement in the captioned proceedings. The Judge denied the settlement motions concluding that the submitted facts could not support a finding that the settlement terms were fair, reasonable, appropriate under the facts, or protective of the public interest. See Am. Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016).

Commission Procedural Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a).

Upon consideration by the Commission, the Judge’s December 12, 2022, certification for interlocutory review is accepted. The Commission hereby grants interlocutory review on the issue of whether the Judge abused her discretion in denying the motions to approve settlement.[1] The Secretary shall file an opening brief with the Commission within 30 days of this order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the Secretary’s brief.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

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]

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]

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]

Dennis Sortor

Harper Companies

P.O. Box 18549

Salt Lake City, Utah 84118

[email protected]

Bruce H. Jakubauskas

U.S. Department of Labor

Mine Safety and Health Administration

Thornhill Industrial Park

178 Thorn Hill Road, Suite 100

Warrendale, PA 15086

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

[email protected]

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

721 19th Street, Suite 443

Denver, CO 80202-2500

[email protected]

[1] These proceedings also involve the same question currently on review before the Commission in Knight Hawk Coal, LLC, Docket No. LAKE 2021-0160, which we include in our review of these proceedings.