FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710
SECRETARY OF LABOR, : Docket No. SE 2021-0163
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 2022-0001
on behalf of JASON HARGIS :
: Docket No. SE 2022-0013
v. :
:
VULCAN CONSTRUCTION :
MATERIALS, LLC :
:
:
JASON HARGIS :
:
v. :
:
VULCAN CONSTRUCTION :
MATERIALS, LLC :
ORDER FOR SUPPLEMENTAL BRIEFING
These proceedings all involve cross-petitions for discretionary review by the Secretary of Labor (“Secretary”), Vulcan Construction Materials, LLC (“Vulcan”), and a miner, Jason Hargis (“Complainant”). On January 9, 2023, the Commission granted all three petitions for discretionary review. On January 20, 2023, the Commission consolidated the cases and set forth a briefing order. Since the filing of the parties’ briefs, however, the Commission has noticed an issue not previously briefed by the parties.
The issue involves the interaction between two sections of the Mine Act. Specifically, section 105(c)(2) authorizes temporary reinstatement pending “the final order on the complaint” and instructs that the “order shall become final upon 30 days after [the] issuance” of the decision. 30 U.S.C. § 815(c)(2) (emphasis added).
Section 113(d)(1) of the Act states that “[t]he decision of the administrative law judge of the Commission shall become the final decision of the Commission 40 days after its issuance unless within such period the Commission has directed that such decision shall be reviewed by the Commission . . . .” 30 U.S.C. § 823(d)(1) (emphasis added).
Thus, the issue in calculating the final order date for ending temporary reinstatement concerns the applicability and interaction of the 30-day language in section 105(c)(2) and the 40-day language in section 113(d)(1).
As a result, the Commission requests supplemental briefing on the calculation of a “final order” date for temporary reinstatement purposes given section 105(c)(2) and section 113(d)(1). The briefs of the parties shall be filed within 14 days of the date of this order and shall not exceed 15 pages in length.
/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:
Emma P. Cusumano, Attorney
April E. Nelson, Associate Solicitor
Emily Toler Scott, Counsel for Appellate
Litigation Office of the Solicitor, U.S. Department
of Labor Division of Mine Safety & Health
201 12th Street South, Ste. 401
Arlington, VA 22202
Cusumano.emma.p@dol.gov
Nelson.April@dol.gov
scott.emily.t@dol.gov
Christopher M. Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219
smith.christopher.m@dol.gov
Elaine M. Youngblood, Esq.
Ortale Kelley
330 Commerce Street, Suite 110
Nashville, TN 37201
eyoungblood@ortalekelley.com
Margaret S. Lopez, Esq.
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, PC
1901 K Street NW, Suite 1000
Washington, DC 20006
margaret.lopez@ogletree.com
Chief Administrative Law Judge Glynn F. Voisin
Office of the Chief Administrative Law Judge
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
Administrative Law Judge Michael Young
Office of the Chief Administrative Law Judge
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
myoung@fmshrc.gov