.
SAMUEL B. AND NANCY SANDERS, on behalf of JOSEPH MARTIN SANDERS
March 14, 1996
WEST 95-538-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
March 14, 1996
SAMUEL B. AND NANCY SANDERS, : CONTEST PROCEEDING
on behalf of JOSEPH MARTIN :
SANDERS, :
Complainants : Docket No. WEST 95-538-RM
:
v. :
:
SECRETARY OF LABOR, : Smokey Valley Common
MINE SAFETY AND HEALTH : Operations of Round
ADMINISTRATION, (MSHA), : Mountain Gold Corporation
Respondent :
ORDER OF DISMISSAL
Before: Judge Merlin
On August 18, 1995, the Commission received a letter from
Samuel and Nancy Sanders (hereafter referred to as the
"complainants"). This letter was assigned the above-captioned
docket number.
In their letter, the complainants state that they represent
their deceased son who suffered fatal injuries at the Smokey
Valley Common Operation. They request that the Commission
review the decision of the Mine Safety and Health Administration
(MSHA) to drop Citation Nos. 4140328, 4140327 and 4140322. They
further seek verification of Citation No. 4140322 which they
say was included in 4140321. Finally, they allege that a water
truck of Christensen Boyles Corporation, their son's employer,
should be cited for a mechanically unsafe transmission.
There was no indication that complainants had sent a copy
of their letter to the Solicitor of the Department of Labor
who represents MSHA before the Commission. Therefore, on September
20, 1995, an order was issued directing complainants to serve
the Solicitor with a copy of the letter. The order also directed
the Solicitor to file a response to the letter. On December 18,
1995, complainants filed a copy of a certified mail return
receipt showing that the Solicitor received a copy the letter.
On January 16, 1996, complainant, Mrs. Sanders, filed a
letter with the Commission, enclosing several documents. These
documents included a letter dated December 20, 1995, from
MSHA to complainant, explaining the status of the citations
and complainant's reply. Also included in the enclosures
were statistics compiled by complainant with respect to
accidents in Nevada.
The Solicitor failed to respond to the September 20 order.
Accordingly, another order was issued on January 24, 1996,
again directing the Solicitor to file a reply to complainants'
August 18 letter.
On February 26, 1996, the Solicitor submitted his response.
The Solicitor advises that the citations referred to by
complainants were vacated. According to the Solicitor, it was
necessary to vacate citations because some of them were
duplicative. The Solicitor asserts that the Secretary has
authority to vacate citations. In addition, the Solicitor states
that the Secretary has the responsibility to investigate mine
accidents to determine their cause and any health or safety
violations. Lastly, the Solicitor maintains that Congress has not
provided that relatives or survivors of victims have legal
standing to contest a citation or order issued under the Mine Act.
It is well established that the Commission as an administra-
tive agency has only the jurisdiction which Congress gives it.
Lyng v. Payne, 476 U.S. 926, 937 (1986); Killip v. Office
of Personnel Management, 991 F.2d 1564, 1569 (Fed Cir. 1993).
The Commission has long recognized that it cannot exceed the
limits of its authority as enacted by Congress. Kaiser Coal
Corp., 10 FMSHRC 1165, 1169, (September 1988). It appears from
the materials in the file that the complainants are concerned
about citations which MSHA has issued and then vacated. Section
105(d) of the Act, 30 U.S.C. � 815(d), sets forth how and under
what circumstances Commission review may be obtained of actions
taken by MSHA. An examination of section 105(d) discloses that
there is no provision for a miner or a miner representative to
contest a citation. The Commission has held that there is no such
right under the Act and stated that while it might be desirable
for a miner or miner representative to have such a right, it is
up to Congress to provide for it. UMWA v. Secretary of Labor,
5 FMSHRC 807 (May 1983). UMWA v. Secretary of Labor, 5 FMSHRC
1519, 1520 (September 1983). The Commission has also held that
the Secretary has unreviewable discretion to vacate a citation
and the Commission has no jurisdiction to review that
determination. RBK Construction, Inc., 15 FMSHRC 2099, 2101
(October 1993).
The Commission does not have jurisdiction to consider
complainants' other requests for relief. Section 105(d) does
not give the Commission general oversight over MSHA's actions.
The Commission has no authority with respect MSHA's internal
practices and procedures. Wallace Brothers, 14 FMSHRC 586, 587
(April 1992); cf. Mid-Continent Resources, 11 FMSHRC 1015 (June
1989). Moreover, the Commission and the courts have recognized
that the Secretary has wide discretion in enforcement. W-P Coal
Company, 16 FMSHRC 1407, 1411 (July 1994); See, e.g., Bulk
Transportation, 13 FMSHRC at 1360-61; Consolidation Coal, 11
FMSHRC at 1443; Brock v. Cathedral Bluffs Shale Oil Co., 796
F.2d 533, 538 (D.C. Cir. 1986). I cannot therefore, consider
MSHA's alleged failure to cite a certain piece of equipment
or its investigation of the accident. Kaiser Coal Company, supra.
In light of the foregoing, it is ORDERED that this case be
DISMISSED.
Paul Merlin
Chief Administrative Law Judge
Distribution:
(Certified Mail)
Mr. Samuel B. and Mrs. Nancy J. Sanders,
HC 60, Box CH 210,
Round Mountain, NV 89045
Douglas N. White, Esq., Office of
the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Suite
400, Arlington, VA 22203
/gl