FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner
v.
CACTUS CANYON QUARRIES, INC, Respondent |
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CIVIL PENALTY PROCEEDING
Docket No. CENT 2024-0120 A.C. No. 41-00009-592668
Mine: Fairland Plant & Qys |
BEFORE: Jordan, Chair; Baker and Marvit, 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. (2018) (“Mine Act” or “Act”). Cactus Canyon Quarries, Inc. (“Cactus Canyon”) filed with the Commission a “Petition for Discretionary Review of Claim Preclusion Misapplied to FRCP 12(b)(1) Defense of Lack of Subject Matter Jurisdiction.” The filing challenges an order issued by a Commission Administrative Law Judge denying the operator’s motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
Although Cactus Canyon has styled its document as a petition for discretionary review, no hearing on the merits has taken place in this matter, and there has been no final decision of the Commission under section 113(d)(1) of the Act. 30 U.S.C. § 823(d)(1). We therefore construe the petition as a petition for interlocutory review under Commission Procedural Rule 76(a)(1), 29 C.F.R. § 2700.76(a)(1). See, e.g., Cactus Canyon Quarries of Texas, Inc., 25 FMSHRC 528 (Sept. 2003) (construing a pleading styled as a petition for discretionary review as a petition for interlocutory review); Southmountain Coal, Inc., 16 FMSHRC 28 (Jan. 1994) (same).
Under Commission Rule 76(a)(1), interlocutory review is a matter of sound discretion of the Commission. Review cannot be granted unless a “judge has certified, upon his own motion or the motion of a party, that his interlocutory ruling involves a controlling question of law and that in his opinion immediate review will materially advance the final disposition of the proceeding; or . . . the Judge has denied a party’s motion for certification of the interlocutory ruling to the Commission, and the party files with the Commission a petition for interlocutory review within 30 days of the Judge’s denial of such motion for certification.” 29 C.F.R. § 2700.76(a)(1).
Upon consideration of the filings of Cactus Canyon and the Secretary, and the issuances of the Judge, the Commission concludes that the procedural requirements in Commission Rule 76(a)(1) have not been met. See 29 C.F.R. § 2700.76(a)(1); Appalachian Res. WVA, LLC, 44 FMSHRC 721 (Dec. 2022) (denying petition for interlocutory review as premature); Cty Line Stone Co., 44 FMSHRC 507, 508 (July 2022) (same).
Accordingly, Cactus Canyon’s petition is denied.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chair
/s/ Timothy J. Baker
Timothy J. Baker, Commissioner
/s/ Moshe Z. Marvit
Moshe Z. Marvit, Commissioner
Distribution:
Andy Carson, Esq.
7232 County Road 120
Marble Falls, TX 78654
Felix R. Marquez, Esq.
U.S. Department of Labor
Office of the Solicitor
525 S. Griffin Street, Suite 501
Dallas, TX 75202-5092
marquez.felix.r@dol.gov
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Administrative Law Judge Alan G. Paez
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
apaez@fmshrc.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452