FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE.,
N.W., SUITE 520N
WASHINGTON, DC
20004-1710
May 20, 2026
|
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) v. GMS MINE REPAIR &
MAINTENANCE, INC. |
|
|
Docket No. VA 2023-0021 |
BEFORE:
Rajkovich, Chair; Jordan and Baker, Commissioners
DECISION
BY:
Jordan and Baker, Commissioners
This proceeding, arising under the
Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2024) (“Mine Act” or “Act”), addresses legal issues of
safeguard enforceability and issue preclusion.
GMS Mine Repair & Maintenance, Inc. (“GMS”) is an independent
contractor providing services at Buchanan Mine #1. An inspector with the Department of Labor’s
Mine Safety and Health Administration (“MSHA”) cited GMS for failing to comply
with a safeguard notice previously issued to the mine’s production-operator.[1] The safeguard requires that rail mounted
vehicle operators adhere to block light signals controlling traffic in the
underground mine.
GMS concedes that it violated the
requirements of the safeguard; a GMS miner traveled the track after
encountering a red stop light, resulting in a head-on collision and serious
injuries to multiple miners. However,
GMS argues that it cannot be held liable because it was not specifically issued
the safeguard by the Secretary. It
argues that 30 C.F.R. § 75.1403-1(b) requires the Secretary of Labor to provide
operators with written notice of a safeguard prior to
enforcement,
and although GMS meets the definition of an operator it received no such
written notice.[2] GMS also asserts that the Secretary is precluded
from relitigating this issue because a different Administrative Law Judge
previously issued a decision finding a different safeguard unenforceable
against GMS in the absence of written notice from the Secretary.
In the current proceeding, the
Administrative Law Judge concluded that the prior Judge’s decision was not a
final judgment of the Commission and had no preclusive effect. 46 FMSHRC 824, 830 (Sept. 2024) (ALJ). She then interpreted section 75.1403-1(b) to
require written notice to “mine operators.” She found the safeguard had been issued to the
mine’s owner-operator, and GMS had constructive notice of the safeguard’s
requirements. Accordingly, she determined
that the safeguard was enforceable against GMS and affirmed the citation. Id. at 833. GMS appeals
and asks the Commission to vacate the citation.
The Commission conducts de novo review
of legal issues arising from a decision on summary judgment. E.g., West Alabama Sand &
Gravel, Inc., 37 FMSHRC 1884, 1887 (Sept. 2015). For the reasons below, we conclude that the
Judge’s nonbinding decision in the prior proceeding does not have preclusive
effect here. We also hold that a valid
safeguard issued in writing to any operator at a mine may subsequently be
enforced against other operators at that mine (including independent contractors).
If written notice was provided to an
operator at the mine consistent with 30 C.F.R. § 75.1403-1(b), and another
operator at the mine has constructive notice of the safeguard, separate written
notice by the Secretary is not required for the safeguard to be enforceable
against that second operator.
Here, the relevant safeguard was properly
issued to the mine’s former production-operator, and
GMS had constructive knowledge of the safeguard’s requirements. Accordingly, we affirm the Judge’s finding
that the safeguard was enforceable against GMS.
We will address the topic of issue preclusion
as a threshold determination first.
Then, we will discuss the enforceability of this safeguard against this
operator based upon the safeguard standard and the particular facts present
here.
I.
Issue Preclusion
The doctrine of issue preclusion, also
called collateral estoppel, prevents a party from relitigating an issue that
has been actually and necessarily decided in a prior case involving the same
parties. E.g., Montana v. United
States, 440 U.S. 147, 153 (1979); B&B Hardware, Inc. v. Hargis
Indus., Inc., 575 U.S. 138, 148 (2015).
Final administrative adjudications that meet these requirements may have
preclusive effect. E.g., B&B
Hardware, 575 U.S. 148. However,
issue preclusion is ultimately an equitable doctrine. E.g., PenneCom
B.V. v. Merrill Lynch & Co., Inc., 372 F.3d 488 (2d Cir. 2004). Certain conditions may render preclusion
inappropriate even if the baseline requirements are met. For example, a decision should not be granted
preclusive effect if doing so would be contrary to Congressional intent or the
public good, or if the common issue is a pure question of law. E.g., Astoria
Federal Savings and Loan Assoc. v. Solimino, 501
U.S. 104, 107 (1991); Env't Def. v. U.S. E.P.A., 369 F.3d 193, 203 (2d Cir. 2004); United States v. Moser, 266 U.S. 236,
242 (1924). For the reasons below, we find that even if the baseline
requirements have been met, preclusion is inappropriate in this instance.
A.
Factual and Procedural Background
As detailed further below, GMS was cited for
violating a safeguard which required compliance with the mine’s underground
traffic control system. GMS was not separately
issued written notice of the safeguard by the
Secretary, although the safeguard’s requirements were included in training
materials provided to GMS by the production-operator. GMS concedes that it violated the safeguard; the
issue is whether the safeguard can be enforced against GMS.
In 2018, a citation was issued to GMS for
failing to comply with a different safeguard at a different mine. That safeguard was issued to Consol Energy,
the mine’s owner-operator, and requires workers to be in a safe position when
using cables to move equipment. GMS
never received written notice of the safeguard from the Secretary, although Consol
provided GMS with a summary of the mine’s safeguards.
GMS contested the citation, and a
Commission Judge vacated the citation on three grounds: the safeguard was not
enforceable against GMS because section 75.1403-1(b) provides that only those operators
who have been advised of the safeguard in writing by the Secretary may be
cited; the safeguard was facially invalid because it did not specify the hazard
and remedy or fix a time for compliance; and the safeguard did not apply to the
factual circumstances described in the citation. GMS Mine Repair & Maintenance, Inc.,
42 FMSHRC 135, 137-40 (facts), 140-45 (analysis) (Feb. 2020) (ALJ). The Judge’s decision was not appealed.
In the current proceeding, GMS argued below
that the issue of whether a safeguard may be enforced against GMS in the
absence of written notice from the Secretary had already been addressed and
resolved in the prior matter, therefore the parties are precluded from
relitigating the issue. The Judge rejected
GMS’s argument. She determined that the
prior judgment was neither final nor necessary, because Judges’ decisions are
nonbinding and the case was decided on multiple grounds. 46 FMSHRC at 830. Accordingly, she went on to address whether
the safeguard was enforceable against GMS and ultimately affirmed the
citation.
On appeal of the collateral estoppel
issue, GMS contends that a judgment need not be precedential to be final, and
that most courts have given preclusive effect to alternate holdings. The Secretary asserts that Commission Judges’
nonbinding decisions cannot have preclusive effect and further argues that
public policy precludes estoppel in this case.
B.
Disposition
The issue currently before us was actually decided in a prior decision involving the same
parties. 42 FMSHRC at 140-42 (holding
that a safeguard issued to an owner-operator could not be enforced against GMS
in the absence of written notice from the Secretary). Although the earlier decision was decided on
multiple grounds, courts generally consider “necessary” any finding that was
independently sufficient to support the judgment. E.g., Intell.
Ventures I LLC
v. Cap. One Fin. Corp., 937 F.3d 1359, 1375-76 (Fed. Cir. 2019). The Judge’s decision had
also attained finality, as it was not appealed to the Commission. See Hitchens v. Cnty.
of Montgomery, 98 Fed. App. 106, 112 (3d Cir. 2004).
However, that does not end our
analysis. We find it inappropriate to
grant preclusive effect to the prior Judge’s decision. Congress did not intend for nonbinding Judges’
decisions to have preclusive effect on the Commission. Furthermore, the issue in common is a pure
question of law, and preventing the parties from re-litigating in this instance
would be contrary to the public good.
First, the principles of preclusion
generally apply to final administrative adjudications “except ‘when a
statutory purpose to the contrary is evident.’”
Astoria, 501 U.S. at 107 (emphasis added) (citation omitted); also Duvall v. Atty Gen. of U.S., 436
F.3d 382, 387 (3d Cir. 2006) (noting that preclusion should not “frustrate
congressional intent”). The Mine Act
envisions the appellate level as the body tasked with formulating
precedent. See 30 U.S.C. §
823(d)(1) (Judges’ decisions become final if not taken up for review); 30
U.S.C. § 823(d)(2)(B) (cases may be taken up for review “upon the ground that
the decision may be contrary to law or Commission policy, or that a novel
question of policy has been presented”).
Congress clearly did not intend for the Commission to be bound by the
decision of an Administrative Law Judge.
Consistent with this intent, Commission
Procedural Rule 69(d) states that a Judge’s decision “is not a precedent
binding upon the Commission.” 29 C.F.R. § 2700.69(d). Addressing comments on this rule prior to final
publication, the Commission explicitly stated that a “judge’s decision not
reviewed by the Commission does not have such preclusive effect” because the
Commission “is not bound by the unreviewed decisions of its judges.” Procedural Rules, 58 Fed. Reg. 12158-02,
12163 (Mar. 3, 1993) (discussing Rule 72, incorporated as Rule 69(d) at 71 Fed.
Reg. 44190 (Aug. 4, 2006)). Here, GMS seeks to grant preclusive effect to
a Judge’s decision that was not appealed to the Commission. Furthermore, as discussed below,
the common issue here is one of legal interpretation. Granting preclusive effect to the earlier
decision would effectively make a Judge’s legal analysis binding on the
Commission, contrary to Congressional intent.
We clarify that Commission decisions
may have preclusive effect. See, e.g.,
BethEnergy Mines, Inc., 14 FMSHRC 17,
26 (Jan. 1992). We only find it
inappropriate to grant preclusive effect to decisions by an Administrative
Law Judge. Additionally, we reject
the Judge’s determination that the prior decision was “not a valid and final
judgment.” 46 FMSHRC at 830. A judgment by an Administrative Law Judge
that is not taken up for review becomes a “final decision of the
Commission.” 30 U.S.C. § 823(d)(1). Preclusion is inappropriate here because the
earlier decision was nonbinding on the Commission, not because it is
nonfinal. Cf. Hitchens, 98 Fed.
App. at 112.
Second, preclusion is inappropriate here because
the common issue between the two proceedings is a pure question of law. The Supreme Court has recognized that
preclusion does “not apply to unmixed questions of law.” Moser, 266 U.S. at 242. Here,
the cases do share a basic framework: GMS was cited for failing to comply with a
safeguard issued to the owner-operator of the mine where it was providing
services and did not directly receive written notice from the Secretary. However, the two cases involve different
safeguards issued at different mines.
More significantly, no knowledge of the specific facts of the case(s) is
required to resolve the determinative question: does section 75.1403-1(b)
entitle contractors to written notice of a safeguard prior to the issuance of a
citation? The only issue shared by the
two proceedings is a legal question of regulatory interpretation. Significantly, this case was decided by the
ALJ on cross-motions for summary judgment, indicating that the parties were
aware that this concerned a purely legal issue.
See KenAmerican Resources, Inc., 38
FMSHRC 1943, 1946 (Aug. 2016) (“the party moving for summary judgment bears the
initial burden of showing that there are no genuine disputes as to material
fact.”). As a result, preclusion is not
appropriate.
This exception for unmixed questions of
law is particularly relevant given the unusual characteristics of the regulated
community. As the Supreme Court
explained, a party should not be prevented from challenging a previously
enunciated rule of law simply because the parties are the same. Moser, 266 U.S. at 242;
Montana, 440 U.S. at 162. As the
Secretary noted at oral argument, the community regulated by the Mine Act is
relatively small. The same parties
routinely come before the Commission, and it is not unusual for the same
parties to litigate the same legal issue more than once, under different facts
arising at different mines. Oral Arg.
Tr. 49. Indeed, this is what occurred
here. If the Commission were to grant a
decision preclusive effect over future proceedings involving different mines
and different safeguards, simply because they involved the same question of
regulatory interpretation, it “would substantially thwart the development of
important questions of law by freezing the first final decision rendered on a
particular legal issue.” Env’t Def.,
369 F.3d at 203 (citing United States v. Mendoza, 464 U.S. 154, 160 (1984)).
Finally, granting preclusive effect to the prior decision would be contrary to a Congressionally
intended public good. As noted above,
issue preclusion is not appropriate where it would be contrary to Congressional
intent. Duvall, 436 F.3d
at 391. It is also inappropriate where
it would be contrary to the public good.
E.g., Tipler, 443 F.2d at 128;
Env't Def., 369 F.3d at 203; also The Restatement
(Second) of Judgments § 28(5)(a).
Logically, issue preclusion is doubly inappropriate where it implicates
both these factors. See Fayette Elec.
Co-Op., 316 NLRB 1118, 1119-20 (1995) (finding a “compelling need to permit
re-litigation” where the prior finding could deter protected activity contrary
to the statute’s purpose and the public interest).
Here, preclusion would be contrary to the
safety-promoting purposes of the Mine Act. See 30 U.S.C. § 801(g) (The
purpose of the Act is to protect the health and safety of miners); e.g.,
Nally & Hamilton, 38 FMSHRC 1644, 1651 (July 2016). Allowing the prior decision to function as a
contractor-specific precedent increases the danger to miners in locations where
GMS provides services. As the Judge
noted, production operators are in the best position to know the composition of
their workforce. 46 FMSHRC at 833. The Secretary only learns that a contractor
has begun providing services at a mine through reports or inspections. Sec’y Br. at 11. If GMS cannot be cited for violating an
existing safeguard until it receives written notice from the Secretary, there will
necessarily be a period of time—after GMS enters a service contract but before
the Secretary learns the contractor is onsite and provides notice—when GMS has
no legal obligation to comply with the safeguard, and miners are not protected
from the hazard.
Additionally, if GMS cannot be cited
unless it receives written notice from the Secretary, GMS may have reduced
incentive to comply with known safeguards for which it lacks formal
notice. E.g., Elmer W. Davis,
2024 WL 4713188 (OSHRC ALJ Sept. 30, 2024) (granting preclusive effect would
“offend public policy” by reducing an employer’s incentive to maintain a safety
program). Preventing re-litigation of
this issue endangers miners, contrary to the safety-promoting purpose of the Mine
Act. Granting preclusive effect
to the prior decision is contrary to a Congressionally mandated public good and
therefore inappropriate.
In sum, the parties are not
precluded from relitigating the issue of safeguard enforceability arising in
this proceeding. Accordingly, the issue
is addressed below.
II.
Enforceability of
the Safeguard
Our conclusion that the legal issue before
us is not precluded from our review does not end our analysis. We must still determine whether this
safeguard is enforceable against GMS in the absence of actual written notice by
the Secretary to GMS. For the reasons
set forth below, we find in the affirmative.
Congress has authorized the Secretary to
provide safeguards to minimize the hazards associated with the transportation
of men and materials in underground coal mines.
30 U.S.C.
§ 874(b). The Secretary’s regulatory
provisions implementing this authority set out the criteria by which she may
require safeguards “on a mine-by-mine basis.”
30 C.F.R. § 75.1403-1(a). Procedurally,
an authorized representative of the Secretary must “in writing advise the
operator of a specific safeguard which is required . . . [and] fix a time in
which the operator shall provide and thereafter maintain such safeguard.” 30 C.F.R. § 75.1403-1(b). If the condition prompting the safeguard is
not fixed and maintained thereafter, the operator shall be issued a
citation. Id. Effectively, therefore, safeguards are
mine-specific mandatory standards. Wolf
Run Mining Co., 659 F.3d 1197, 1201-02 (D.C. Cir. 2011), aff’g 32 FMSHRC 1228 (Oct. 2010).
GMS asserts that independent contractors
providing services at a mine fall within the Mine Act’s general definition of
an “operator” (30 U.S.C. § 802(d)) and therefore, consistent with the text of section
75.1403-1(b), the Secretary must advise a contractor of a safeguard in writing
prior to enforcement. GMS Br. at 7. Conversely, the Secretary asserts that
safeguards are mine-specific rather than operator-specific and suggests that
once a valid safeguard notice has been issued to any on-site operator, it
becomes effective and enforceable for all on-site operators. Sec’y Br. at 7; Oral Arg. Tr. 31-32, 35. The Judge concluded that it is sufficient for
the Secretary to provide written notice to the “mine operator.” 46 FMSHRC at 833.
The legal question before us, then, is one
of regulatory interpretation: does the requirement that the Secretary “in
writing advise the operator” prior to enforcement require her to provide
written notice to each and every on-site operator, to any
on-site operator, or to the mine’s production-operator? In practical and specific terms, the question
before us is whether an independent contractor providing services at a mine may
violate with impunity an otherwise valid safeguard that was issued to the mine’s
production-operator, simply because the Secretary did not separately provide
that contractor with written notice of the safeguard. For the reasons below, we find that it may
not.
A.
Factual and Procedural Background
This matter was decided below on
cross-motions for summary decision.[3] Accordingly, the material facts are
uncontested. Buchanan Mine #1 is an
underground coal mine with a rail haulage system. Traffic is controlled by “block lights”—red
and green lights that indicate right of way and coordinate track usage to
prevent collisions. 46 FMSHRC at 825-26; Jt. Ex. 3.
On February 5, 2013, in response to a
vehicle collision, MSHA issued Safeguard No. 8202805 requiring “all rail
mounted equipment at this mine site to follow the block light system” and “plac[ing] the operator on notice
that failure to follow the block light system will result in more stringent
enforcement.” The safeguard notice was
issued to Consolidation Coal Company, the mine’s production-operator at the
time. Jt. Stips.
10-12; Jt. Ex. 3.
Buchanan Minerals, LLC (“Buchanan”) subsequently
became the production-operator at the mine and entered into a labor services
agreement with GMS. As an independent
contractor performing services at the mine, GMS is an “operator” as defined in
section 3(d) of the Mine Act. Under the
terms of the labor service agreement, GMS is required to adhere to mandatory
safety standards and provide training to GMS personnel working at the mine. The training GMS provided to its employees
(based on materials provided by Buchanan) included block light system training
but did not specifically mention safeguards.
Jt. Stips. 1, 3-4, 13-16.
In August 2022, two personnel carriers at
the mine collided when a GMS employee improperly changed a block light from red
to green (indicating that the trackway was clear when it was not). An MSHA inspector subsequently issued
Citation No. 8312039 to GMS alleging a failure to comply with Safeguard No.
8202805. The citation was evaluated as
significant and substantial and the result of moderate negligence. Jt. Stips. 8, 17-22;
Jt. Ex. 1.
GMS concedes that, if Safeguard No.
8202805 is valid and enforceable against GMS, a violation occurred. Jt. Stip. 23.
The parties also stipulate that prior to the issuance of Citation No.
8312039, no authorized representative of the Secretary had provided GMS with
written, electronic or verbal notice of Safeguard No. 8202805. Jt. Stip. 24.
The parties filed cross-motions for
summary decision. In relevant part, GMS asserted that the safeguard is not
enforceable against GMS pursuant to the plain text of section 75.1403-1(b),
which requires written notice to operators.
The Secretary countered that safeguards are mine-specific mandatory
standards that must be uniformly enforced against all operators at the mine,
including contractors.
The Judge denied GMS’s motion and granted
the Secretary’s motion. In relevant
part,
she explained that production-operators have both the autonomy to control
operations and the responsibility of ensuring compliance, and
are therefore in the best position to know the composition of their workforce
and ensure that contractors are adequately informed. She concluded that the “only reasonable
reading” of section 75.1403-1(b) is that MSHA must advise the mine operator
in writing. She also determined that GMS had constructive notice of the safeguard,
because Buchanan had properly ensured that contract employees were adequately
trained on the safeguard’s requirements. 46 FMSHRC at 833. In
light of these findings and the parties’ stipulations, the Judge
affirmed Citation No. 8312039 as issued.
B.
Disposition
For the reasons below, we agree with the
Secretary’s interpretation. The
structure and purpose of section 75.1403-1(b) plainly demonstrate an intent
that safeguards be enforceable against all operators at a mine once properly
issued in writing to any operator at that mine.
Accordingly, an otherwise valid safeguard issued to a mine’s
production-operator may later be enforced against another operator at the mine
(including an independent contractor), even if that other operator did not directly
receive written notice of the safeguard from the Secretary, so long as the
operator had sufficient constructive notice of the safeguard’s requirements to
satisfy due process. Here, the safeguard
was validly issued to the mine’s production-operator and GMS received
constructive notice, so the safeguard is enforceable against GMS.
In
finding the “right answer” to questions of regulatory interpretation, courts
must carefully consider the regulation’s structure and purpose.[4] Kisor v. Wilkie, 588 U.S. 558, 575
(2019); also, e.g., Rock of Ages Corp. v. Sec’y of Labor, 170
F.3d 148, 155 (2d Cir. 1999) (regulations should be read as a whole and
interpreted consistently with their protective purpose). The Secretary is statutorily authorized to
provide safeguards to minimize hazards associated with the transportation of
men and materials. 30 U.S.C. §
874(b). The regulation implementing this
authority permits the Secretary to issue safeguards on a “mine-by-mine basis,” via
written notice to the operator, and to thereafter issue citations for failure
to comply. 30 C.F.R. §§ 75.1403-1(a), (b).
In other words, the structure and purpose
of the safeguard provision is to allow the Secretary to promulgate
mine-specific mandatory standards to minimize transportation hazards. E.g., Wolf Run, 659 F.3d at
1201-02.
In
turn, the Mine Act declares that operators are primarily responsible for
ensuring miner safety and requires “each operator”—defined to include
independent contractors—to comply with mandatory standards promulgated by the
Secretary. 30 U.S.C. §§ 801(a), (e), (g);
802(d). In simple terms: each operator
must ensure miner safety and comply with mandatory standards, independent
contractors are operators, and safeguards are mandatory standards. Accordingly, independent contractors must ensure
miner safety and comply with any safeguards in effect at the mine where they
are providing services. Like any other mandatory
standard, a safeguard must be enforceable against each operator at the
mine where it is in effect.[5]
Interpreting
section 75.1403-1(b) to require separate written notice to each onsite contractor
prior to enforcement would allow contractors to violate mandatory standards that
already exist at a mine, without consequence, simply because they had not
received written notice from the Secretary.
This puts miners at risk of injury or death, as indeed occurred here. Conversely, interpreting section 75.1403-1(b)
to require an initial written notice to an on-site operator (at which point the
safeguard goes into effect as a mine-specific mandatory standard enforceable
against any other operators working at the mine) is consistent with both the
basic rule that all operators must comply with mandatory standards in effect at
a mine, and the broader safety-promoting principles of the Mine Act. See Rock of Ages, 170 F.3d at 155 (choosing
the regulatory interpretation that would encourage greater vigilance where a contrary
ruling would endanger miners).
The
safety concerns raised by GMS’ interpretation could be resolved if every
on-site contractor were to receive direct written notice of every relevant
safeguard prior to beginning work.
However, we agree that requiring the Secretary to timely reissue every
safeguard to every contractor would be “impossible” (Sec’y Br. at 11) or at
least “highly impractical” (46 FMSHRC at 833). As noted previously, MSHA only learns that a
contractor has begun providing services at a mine when it receives a report or
conducts an inspection. 46 FMSHRC at 832;
Sec’y Br.
at 11. There is no legal requirement
that an operator inform MSHA that it has hired new contractors. This raises timeliness concerns. A contractor could be onsite for weeks, or even
complete a project, before MSHA learns of its presence and reissues the
relevant safeguards. The Secretary
testified that, given the “significant” numbers of both safeguards and
contractors in underground coal mines, implementing a system to collect the
required information in a sufficiently timely fashion to ensure miner safety would
be a “substantial burden.” Oral Arg.
Tr. 43-44. We further note that placing
the practical burden of ensuring contractor compliance on MSHA rather than the
production-operator is contrary to Congress’ explicit intent. 30 U.S.C. § 801(e).
Of
course, courts must also carefully consider the plain text of the relevant provision. Kisor, 588 U.S. at 575. However, we reject GMS’ assertion that the
plain language of section 75.1403-1(b) requires separate written notice to every
operator.[6] First, that is arguably not a “plain text”
argument. The relevant provision
requires written notice to “the” operator, not “each” or “every” operator. 30 C.F.R. 75.1403-1(b). Whether the provision is read as GMS’ “every
operator” or the Secretary’s “any operator,” some degree of interpretation is
required. Accordingly, the provision
should be interpreted consistent with its structure
and intent. Kisor, 558 U.S. at 575.
Second,
even apparently clear language should not be enforced as written if the
resulting meaning would be contrary to the regulator’s intent or would lead to
absurd results. E.g., United States v. Ryan, 284 U.S.
167, 175 (1931); Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.
1987); Wolf Run, 32 FMSHRC at 1678-79.
Even if the text of the provision supported GMS’ interpretation on its
face, for the reasons outlined above, we find that requiring the Secretary to
provide separate written notice of every safeguard to every independent
contractor working at every mine cannot comport with
the intent of the safeguard provisions or the safety-promoting purposes of the
Act. See Central Sand & Gravel
Co., 23 FMSHRC 250, 254 (Mar. 2001) (rejecting as absurd an interpretation
that would “negate much of [the standard’s] protective intent”).
Safeguards are mine-specific mandatory
standards enforceable against all operators at the mine where the standard is
in effect. The only interpretation of
the notice requirement in section 75.1403-1(b) that comports with this purpose,
as well as with the broader safety-promoting purposes of the Act, is to require
the Secretary to in writing advise an on-site operator of the
safeguard. Once an otherwise valid
safeguard has been issued to an operator at the mine, it is in effect at the
mine and may be enforced against all on-site operators, including independent
contractors providing services at the mine.
Any other reading would endanger miners and lead to absurd results.
As a final matter, we have long recognized
that operators are entitled to due process in the safeguard context. Like any other mandatory standard, a safeguard
may not be enforced against a party that lacks fair notice of the safeguard’s
requirements. E.g., Am. Coal
Co., 34 FMSHRC 1963, 1967 (Aug. 2012); Southern Ohio Coal Co., 7
FMSHRC 509, 512 (Apr. 1985) (“SOCCO”); also, e.g., Mainline
Rock and Ballast, Inc. v. Sec’y of Labor, 693 F.3d 1181, 1187 (10th Cir.
2012); Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).
However, we emphasize that due process
turns on the objective comprehensibility of the standard’s requirements,
i.e., whether a reasonably prudent operator would understand what conduct is prohibited
or required by the standard. E.g.,
Ideal Cement, 12 FMSHRC at 2416; SOCCO, 7 FMSHRC at 512 (holding
that safeguards must identify the relevant hazard and remedy with specificity). It does not turn on the method of
notification, for example, whether a specific operator was notified in writing
by the Secretary.[7] If an operator understands or should
understand what conduct is prohibited or required by a standard, due process
has been met. Fair notice may be achieved
through constructive notice of a safeguard’s requirements. Further, it is significant in this case that
GMS received actual notice of the contents of the safeguard from mine-specific
training materials.
Applying the uncontested facts in this
matter to the foregoing analysis, the citation must be affirmed. The parties have stipulated that if Safeguard
No. 8202805 is valid and enforceable against GMS, Citation No. 8312039 can be
affirmed as written. Jt. Stip. 23. The safeguard is valid, since the safeguard notice
was issued in writing to the production-operator of Buchanan Mine #1, identifies
the hazard and remedy, and fixed a time for the production-operator to comply. Jt. Stip. 10-11; Jt. Ex. 3. The safeguard is enforceable against GMS,
since GMS was
an independent contractor performing services at Buchanan Mine #1 and therefore
an “operator” subject to any mandatory standards in effect at the mine when the
citation was issued. Jt. Stips. 3, 13, 18-20.
Finally, GMS had constructive notice of the safeguard, because Buchanan
provided GMS with training materials that included the practice covered by the
safeguard. Jt. Stips
15-16; 46 FMSHRC at 833.
III.
Conclusion
For the reasons above, we find that the
prior Judge’s nonbinding decision in GMS Mine Repair & Maintenance, Inc.,
42 FMSHRC 135 (Feb. 2020) (ALJ), does not have preclusive effect on the
proceeding before us. We further hold
that the Secretary was not required under section 75.1403-1(b) to provide
separate written notice to GMS prior to enforcement, as the safeguard was
properly issued in writing to the mine’s prior production operator and GMS had
constructive notice of the safeguard’s requirements. Accordingly, Safeguard No. 8202805 is
enforceable against GMS, and Citation No. 8312039 is affirmed as written.
%20VA%202023-0021a_files/image002.png)
________________________________
Mary Lu Jordan, Commissioner
%20VA%202023-0021a_files/image004.png)
_________________________________
Timothy J. Baker, Commissioner
Chair
Rajkovich, concurring:
I write separately solely with respect to
the majority’s holding in Section I.B that Judges’ decisions cannot have
preclusive effect. I otherwise fully
concur with the majority.
The fundamental precept of issue
preclusion is that “once an issue is actually and necessarily decided by a
court of competent jurisdiction, that determination is conclusive” in
any subsequent suits involving the same parties. Montana v. U.S., 440 U.S. 147, 153
(1979) (quotation omitted). Preclusion
“fosters reliance on judicial action by minimizing the possibility of
inconsistent decisions.” Id. at
154. Once a final decision has been
rendered on an issue, the parties should be able to trust that, for those
parties, that issue is conclusively decided.
While Judges’ decisions do not have
precedential effect, as GMS notes, precedent and preclusion are
“conceptually distinct.” GMS Reply Br.
at 2. A precedential judgment
establishes a legal principle applicable to all future cases, while a
preclusive judgment conclusively answers a specific question for specific
parties. Multiple courts and agencies
have found it appropriate to grant preclusive effect to nonprecedential
decisions. See, e.g., Pena v.
Meissner, 232 F.3d 896, n.1 (9th Cir. 2000) (citing CTA9 Rule 36-3); Van
Houten v. Sansone, 152 Fed. Appx. 742, n.* (10th Cir. 2005) (citing 10th
Cir. R. 36.3); Hitchens v. Cnty. of Montgomery,
98 Fed. App. 106, 112 (3d Cir. 2004); The Permanente Med. Grp., Inc. & Nat’l Union of Healthcare Workers, 372 NLRB No. 51
(Feb. 9, 2023).
Granting preclusive effect to a Judge’s
decision would not force the Commission to broadly adopt that Judge’s holding
as law, it would simply allow the prior decision to stand
as to those parties, thus ensuring judicial consistency. Conversely, denying preclusive effect
to Judges’ decisions could lead to an unworkable degree of inconsistency. Notably, Judges’ decisions are nonbinding on other
Judges as well as on the Commission.
If nonbinding decisions cannot have preclusive effect, then a party
could “shop” the same question to multiple Judges, potentially resulting in two
conclusive but contrary findings for the same parties on the same issue. While decisions by Commission Judges are nonbinding,
they are unquestionably final unless appealed to the Commission. 30 C.F.R. § 823(d)(1).
I would find that a Judge’s decision that
actually and necessarily decides an issue between two parties may have
preclusive effect, subject to any of the usual exclusions or exceptions. As explained by the majority (slip op. at
4-5), some exclusions do apply here, therefore I concur with the majority in
finding that the prior Judge’s decision does not have preclusive effect in this instance. I also
fully concur with the majority’s analysis in Section II.
%20VA%202023-0021a_files/image006.png)
________________________________
Marco M.
Rajkovich, Jr., Chair
Distribution:
Carl
W. Shaffer
Hissam
Forman Donovan Ritchie, PLLC
P.O.
Box 3983
Charleston,
WV 25339
cshaffer@hfdrlaw.com
Susannah
M. Maltz, Esq.
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave., NW, Suite N-4420
Washington, DC 20210
Maltz.susannah.m@dol.gov
Thomas Paige, Esq.
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave., NW, Suite N-4420-N4430
Washington, DC 20210
Paige.thomas.a@dol.gov
Melanie
Garris
US
Department of Labor/MSHA
Office
of Assessments, Room N3454
200
Constitution Ave NW
Washington,
DC 20210
Garris.Melanie@DOL.GOV
Acting
Chief Judge David P. Simonton
Federal
Mine Safety Health Review Commission
1331
Pennsylvania Avenue, NW Suite 520N
Washington,
DC 20004-1710
dsimonton@fmshrc.gov