FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 22, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These consolidated proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006)(“Mine Act” or “Act”). On December 21, 2012, Coal River Mining, LLC, (“Coal River”) filed with the Commission a document entitled “Petition to Enforce ‘Law of the Case Doctrine’ and to Set Aside Erroneous Order Lifting Stay and Amended Notice of Hearing.” Coal River seeks review of a Corrected Order of Assignment issued by Chief Administrative Law Judge Robert J. Lesnick on November 30, 2012, and of an accompanying Prehearing Order issued by Administrative Law Judge Margaret A. Miller on that same date. Coal River also seeks review of Judge Miller’s December 13, 2012, Order Denying Motion to Stay, Order Lifting Stay and Amended Notice of Hearing. The basis of the petition is that in two of these three dockets, Judge Lesnick had previously granted the Secretary’s motion to stay assignment for 180 days.

            We have determined that none of these orders are final decisions ending the judge’s jurisdiction over this matter. Section 113(d) of the Mine Act, 30 U.S.C. § 823(d), only allows for review of final decisions. Accordingly, we treat these orders as interlocutory in nature.

            Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may review a judge’s ruling, prior to the judge’s final decision in the case, only if certain conditions are met. First, pursuant to Rule 76(a)(1), either the judge must certify that his or her interlocutory ruling involves a controlling question of law and that immediate review will materially advance the final disposition of the proceeding, or the judge must deny a party’s motion for certification of the interlocutory ruling to the Commission and the party must file with the Commission a petition for interlocutory review within 30 days of the judge’s denial of such motion for certification. Second, under Rule 76(a)(2), a majority of the Commission may grant review upon a determination that the judge’s interlocutory ruling involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding.

            The first condition was not met, because the judge did not certify review on her own accord, and Coal River failed to ask the judge to certify the rulings for interlocutory review. However, even if these requirements were met, we have concluded that review is not warranted because the orders do not involve a controlling question of law and immediate review would not materially advance the final disposition of the case. 

            For the reasons set forth above, the petition filed by Coal River is denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

F. Thomas Rubenstein, Esq.

Ryan Seelke, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Linda Hrovatic

Conference & Litigation Representative

U.S. Department of Labor, MSHA

100 Bluestone Road

Mt. Hope, WV 25880-1000

Administrative Law Judge Margaret Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 119^th Street, Suite 443

Denver, CO 80202-5268