FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 29, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

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 July 29, 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 Interlocutory Review.” On the same day, Armstrong also filed a document entitled “Respondents Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc.’s Joint Emergency Application for Temporary Stay Pending Review.”

            Both of Armstrong’s pleadings seek relief from the “Order Denying Stay” issued by Administrative Law Judge (“ALJ”) Jerold Feldman on July 26, 2013. In his Order, Judge Feldman denied a stay of the Cease and Desist Order he had previously issued on June 19, 2013. Following issuance of the Order Denying Stay, Armstrong had filed with the ALJ an “Emergency Motion to Certify for Interlocutory Review” pursuant to Commission Procedural Rule 76(a)(1)(i), 29 C.F.R. § 2700.76(a)(1)(i). Judge Feldman issued an “Order Denying Request for Certification for Interlocutory Review” on July 26, 2013.

            Armstrong represents that the parties have verbally agreed upon terms of a settlement of this case, and seeks “a temporary stay of the Cease and Desist Order until August 15, 2013, during which time the Parties could finalize and submit a written Joint Settlement Motion for consideration.” Joint Petition For Interlocutory Review at 2. Armstrong further represents that during the period of stay, it will take no action to further its Kentucky civil tort action against Shemwell. Id. The Secretary has notified the Commission that he does not oppose Armstrong’s Joint Petition for Interlocutory Review, and does not oppose Armstrong’s Application for Stay Pending Review as long as the stay extends only until August 15, 2013.

            Upon consideration of the foregoing, the Commission hereby orders that the ALJ’s Cease and Desist Order be stayed until the Commission rules upon the Joint Petition for Interlocutory Review, but not beyond August 15, 2013. During the period of stay, Armstrong shall take no action to further its Kentucky civil tort action against Shemwell.