FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

 

October 29, 2015

 

SECRETARY OF LABOR,

  MINE SAFETY AND HEALTH

  ADMINISTRATION (MSHA),

                  Petitioner,

 

                        v.

 

DOMINION COAL CORPORATION,

                              Respondent.

 

 

CIVIL PENALTY PROCEEDING

 

Docket No. VA 2015-285

 

 

 

 

Mine: Dominion No. 7

Mine ID: 44-06499

 

 

STAY ORDER PENDING ULTIMATE DISPOSITION

OF UNDERLYING DISCRIMINATION PROCEEDING

 

 

Before: Judge Feldman

 

This proceeding is before me based upon a petition for assessment of civil penalty filed by the Secretary on July 24, 2015, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). 30 U.S.C. § 815(d). The Secretary seeks to impose a civil penalty of $12,500.00 as a consequence of a June 11, 2015, Decision on Liability in a 105(c)(3) discrimination proceeding, docketed as VA 2014-233, which concluded that Dominion Coal Corporation (“Dominion”) was liable for a violation of section 105(c) of the Act when it interfered with Scott D. McGlothlin’s rights under Part 90 of the Act. McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ).

 

On September 2, 2015, the parties in Docket No. VA 2014-233 filed a Joint Motion to Dismiss McGlothlin’s complaint in light of the parties’ proposed agreed-upon relief.        The parties’ Joint Motion to Dismiss was predicated upon McGlothlin’s agreement that “the parties jointly move the Court to dismiss all claims in this action with prejudice,” in exchange for Dominion’s agreement to the relief, including attorney fees, sought by McGlothlin.         On October 21, 2015, the parties’ request to dismiss McGlothlin’s complaint was denied because it was contingent on proposed settlement terms that seek to release Dominion from an adjudicated finding of liability in a Commission proceeding. [1] Thus, while the appropriate relief to be awarded to McGlothlin in Docket No. VA 2014-233 is yet to be determined, Dominion will be precluded from denying liability in this civil penalty proceeding brought by the Secretary


based on the doctrine of collateral estoppel, unless the Decision on Liability is ultimately vacated by the Commission.

 

As such, in view of the above, IT IS ORDERED that the captioned docket IS STAYED pending the ultimate resolution of the issue of Dominion’s liability for violation of section 105(c) of the Act in Docket No. VA 2014-233.

 

 

 

 

                                                                        /s/ Jerold Feldman

Jerold Feldman

                                                                        Administrative Law Judge

 

Distribution:

 

Pollyanna Hampton, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street, Fifth Floor, Arlington, VA 22202-5450

 

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

 

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc.,         317 Main Street, Whiteburg, KY 41858

 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

 

/acp     

 

 

 


[1] Although the Decision on Liability is not final in that the judge retains jurisdiction under Commission Rule 69(b), a decision on liability is an interlocutory decision that may be appealed or reviewed, subject to the discretion of the Commission, pursuant to the provisions of Commission Rule 76(a). 29 C.F.R. §§ 2700.69(b), 2700.76(a). However, the parties may not mutually agree to “vacate” an interlocutory liability decision.