FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 26, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            This matter rises under the Federal Mine Safety and Health Act of 1977 (the Act” or “Mine Act”), 30 U.S.C. § 801 et seq. (2006). On July 19, 2013, Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc. (“Armstrong”) filed with the Commission a document entitled “Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc.’s Joint Petition for Discretionary Review.” The Commission has also received a document entitled “Respondents Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc.’s Joint Application for Stay Pending Appeal.

            Both of Armstrong’s pleadings seek relief from the “Decision on Liability and Cease and Desist Order” issued by Administrative Law Judge (“ALJ”) Jerold Feldman on June 19, 2013. In his Decision, Judge Feldman granted the discrimination complaint filed by the Secretary of Labor (“the Secretary”) on January 8, 2013 on behalf of Reuben Shemwell (“Shemwell”) under section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). The ALJ determined that a civil lawsuit which Armstrong had filed against Shemwell in Kentucky, seeking compensatory and punitive damages, violates section 105(c)(1) of the Mine Act because it interferes with Shemwell’s right to file a discrimination complaint under the Act. Decision at 19.

            In the Cease and Desist Order, Judge Feldman ordered Armstrong to “cease and desist from prosecuting its civil suit brought against Shemwell in the Commonwealth of Kentucky’s Muhlenberg County Circuit Court by filing an appropriate motion to dismiss.” Decision at 22. The ALJ then stated:

     This Decision on Liability is an interim decision. It does not become final until a Decision on Civil Penalty and Supplemental Decision on Relief is issued. Accordingly, IT IS FURTHER ORDERED that the parties should confer before July 30, 2013, in an attempt to reach an agreement on the specific relief to be awarded. . . . If the parties cannot agree on the relief to be awarded, the parties ARE FURTHER ORDERED to file, on or before August 23, 2013, Proposals for Relief specifying the appropriate relief to be awarded.

Decision at 23 (emphasis in original).

            With regard to Armstrong’s Petition for Discretionary Review, filed “pursuant to Commission Procedural Rule 70,” Armstrong PDR at 1, we have determined that the ALJ’s Decision and Cease and Desist Order is not a final decision 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. Ordinarily, a judge’s decision finding a violation under the Mine Act is not final until the judge issues a penalty against the operator under section 105(d) of the Mine Act, 30 U.S.C. § 815(d). In his Decision in this case, quoted above, Judge Feldman explicitly stated that the decision does not become final until the judge issues a Decision on Civil Penalty and Supplemental Decision on Relief. Thus, the Commission lacks jurisdiction to entertain Armstrong’s Petition for Discretionary Review and must reject it.

            We recognize that under 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. However, the procedure for interlocutory review under Rule 76(a)(1) includes certain mandatory provisions including the requirement that the party seeking interlocutory review first present the request to the judge and request his certification that the “interlocutory ruling involves a controlling issue of law” and that “immediate review will materially advance the final disposition.” 29 C.F.R. § 2700.76(a)(1).

            In this case, Armstrong could have sought interlocutory review under Rule 76, but did not do so. Armstrong’s Petition for Discretionary Review was filed exclusively pursuant to Commission Rule 70, and did not mention the particular requirements applicable to interlocutory review under Rule 76. Indeed, nowhere in its 23-page petition did Armstrong recognize that Judge Feldman’s Decision was not final, or even that the judge had very specifically emphasized that his Decision was not final. In the absence of any request for interlocutory relief by Armstrong, we need not address whether such relief would be appropriate.

            Armstrong’s Application for Stay Pending Appeal seeks “a stay of the Cease and Desist Order entered in this matter on June 19, 2013 in its entirety pending a ruling upon Respondents’ Petition for Discretionary Review and any subsequent appellate proceedings.” Application at 1, 9. The Commission has determined that it does not have jurisdiction to consider Armstrong’s Petition for Discretionary Review. Thus, it also lacks jurisdiction to consider granting a stay in connection with a non-existent appeal. Armstrong may seek a stay of the judge’s Cease and Desist Order by motion addressed to the judge.

            For the reasons set forth above, Armstrong’s Petition for Discretionary Review 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:

Mary Beth Zamer, Esq.

Office of the Solicitor

U.S. Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

Matt S. Shepherd, Esq.

Office of the Solicitor

U.S. Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

Adam K. Spease, Esq.

Miller Wells

710 W. Main Street, 4^th Floor

Louisville, KY 40202

Mason L. Miller, Esq.

300 E. Main Street, Suite 360

Lexington, KY 40507

Daniel Z. Zaluski, Esq.

Armstrong Coal Company

407 Brown Road

Madisonville, KY 42431

Tony Oppegard, Esq.

P.O. Box 22446

Lexington, KY 40522

Wes Addington, Esq.

Appalachian Citizens Law Center

317 Main Street

Whitesburg, KY 41858