FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
SECRETARY OF LABOR :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEST 2022-0249
: Docket No. WEST 2022-0250
v. : A.C. No. 42-02078-554812
:
:
RULON HARPER CONSTRUCTION, INC. :
BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, 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). On December 12, 2022, a Commission Administrative Law Judge issued an order certifying for interlocutory review her denial of the Secretary of Labor’s amended motions to approve settlement in the captioned proceedings. The Judge denied the settlement motions concluding that the submitted facts could not support a finding that the settlement terms were fair, reasonable, appropriate under the facts, or protective of the public interest. See Am. Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016).
Commission Procedural Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a).
Upon consideration by the Commission, the Judge’s December 12, 2022, certification for interlocutory review is accepted. The Commission hereby grants interlocutory review on the issue of whether the Judge abused her discretion in denying the motions to approve settlement.[1] The Secretary shall file an opening brief with the Commission within 30 days of this order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the Secretary’s brief.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chair
/s/ William I. Althen
William I. Althen, Commissioner
/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner
/s/ Timothy J. Baker
Timothy J. Baker, Commissioner
Distribution:
Emily Toler Scott, Esq.
Counsel for Appellate Litigation
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
April Nelson, Esq.
Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Dennis Sortor
Harper Companies
P.O. Box 18549
Salt Lake City, Utah 84118
dsortor@harperscompaniesinc.com
Bruce H. Jakubauskas
U.S. Department of Labor
Mine Safety and Health Administration
Thornhill Industrial Park
178 Thorn Hill Road, Suite 100
Warrendale, PA 15086
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Administrative Law Judge Margaret A. Miller
Federal Mine Safety & Health Review Commission
721 19th Street, Suite 443
Denver, CO 80202-2500
[1] These proceedings also involve the same question currently on review before the Commission in Knight Hawk Coal, LLC, Docket No. LAKE 2021-0160, which we include in our review of these proceedings.