FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 28, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DIRECTION FOR REVIEW AND DECISION

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On September 21, 2011, Administrative Law Judge Gary Melick issued a summary decision finding that the Secretary of Labor (“Secretary”) had shown no factually supported reason for why her petitions for assessment of civil penalty were not timely filed and dismissed the petitions. Unpublished Order at 2 (September 21, 2011). On October 21, 2011, the Secretary filed a Petition for Discretionary Review. For the following reasons, we grant the Secretary’s petition, vacate the judge’s order, and remand for further proceedings.

            In her petition, the Secretary notes that on April 2, 2010, Chief Administrative Law Judge Robert Lesnick granted the Secretary’s motions for leave to file penalty petitions out of time. She asserts that Judge Melick erred in failing to take into account that another judge in the same case had previously ruled that adequate cause for the delayed filing of the Secretary’s penalty petitions had been established. She argues that he abused his discretion in setting aside Judge Lesnick’s ruling without discussing the effect of that ruling and without determining if compelling circumstances necessitated that this ruling be set aside.

            On October 26, 2011, the Commission received CAM Mining LLC’s (“CAM”) Brief in Opposition to Commission Review. CAM contends that the Commission should deny the Secretary’s Petition for Discretionary Review on the grounds that the summary decision of Judge Melick was correctly decided and that many of the citations at issue are moot because the Secretary has already vacated them. In addition, CAM asserts that there is no authority for the Secretary’s contention that a judge should apply appellate standards on motions for reconsideration before a case is final.

             Judge Melick’s summary decision did not acknowledge Chief Judge Lesnick’s earlier order nor did he outline his reasons for declining to follow it. Without this essential information, the Commission cannot determine whether there were sufficient grounds for Judge Melick’s decision.

            For the foregoing reasons, we grant the Secretary’s Petition for Discretionary Review, vacate the judge’s summary decision, and remand these matters to Judge Melick for further proceedings.

            /s/ Mary Lu Jordan.

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/ Michael F. Duffy

                                                                                    Michael F. Duffy, Commissioner

                                                                                    /s/ Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Robert F. Cohen

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

Mark E. Heath, Esq.

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East

P.O. Box 273

Charleston, WV 25321

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Gary Melick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021