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: 

             This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006). On October 19, 2011, the Secretary of Labor filed with the Commission a petition for discretionary review pursuant to Commission Procedural Rule 70, 29 C.F.R. § 2700.70. In her petition, the Secretary seeks review of a summary decision issued by Administrative Law Judge Jacqueline R. Bulluck on September 20, 2011. The Secretary seeks review of the judge’s rejection of the unwarrantable failure designation of the violation and of her reduction of the civil penalty. On October 20, 2011, Jim Walter Resources, Inc. (“JWR”) filed a petition for discretionary review of the judge’s decision sustaining the significant and substantial (“S&S”) designation of the violation. For the following reasons, we grant both petitions, vacate the judge’s decision, and remand for further proceedings.

            In her petition, the Secretary states that during a conference call with the judge on November 22, 2010, the parties asked to address the issue of violation via cross-motions for summary decision and requested that consideration of the S&S, unwarrantable failure, and civil penalty issues be postponed until a latter stage of the proceeding. The Secretary alleges that the judge accepted this proposal, and that consequently the parties did not refer to these issues in their cross-motions for summary decision. She argues that her description of the conference call is corroborated by the fact that both the Secretary and the operator filed cross-motions, replies, and surreplies that addressed only the issue of violation. The Secretary asks the Commission to vacate the rulings on the unwarrantable failure and civil penalty issues and to remand the case to the judge to rule on those issues after providing an adequate opportunity for the parties to address the questions.  

              In its petition, JWR argues that the judge’s decision sustaining the S&S designation should be reversed because the judge’s ruling was based on findings of fact not supported by substantial evidence and the judge’s decision is contrary to law.

            It appears from the present record that the judge may have prematurely decided the S&S, unwarrantable failure, and civil penalty issues. In the interest of justice, we hereby vacate the judge’s decision and remand the case to her for a determination as to whether the parties and the judge had agreed that the cross-motions submitted by the parties should have been confined to the issue of violation. If she finds that this was the case, she should, pursuant to that agreement, reopen the record to permit the parties to present evidence and argument on the S&S, unwarrantable failure, and civil penalty issues.

/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, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

Warren B. Lightfoot, Jr., Esq.

Maynard, Cooper & Gale, P.C.

1901 Sixth Avenue, North

2400 Regions/Harbert Plaza

Birmingham, AL 35203

Uche N. Egemonye, Esq.

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street, S.W., Room 7T10

Atlanta, GA 30303

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

US Department of Labor

1100 Wilson Blvd. 25^th Floor

Arlington, VA 22209

Administrative Law Judge Jacqueline R. Bulluck

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021