SECRETARY OF LABOR :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket Nos. SE 2003-160
v. : SE 2003-161
:
JIM WALTER RESOURCES, INC. :
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000). On August 26, 2004, pursuant to Commission Rule 76, 29 C.F.R. § 2700.76, Jim Walter Resources, Inc. ("JWR") filed with the Commission a petition for interlocutory review of an order issued by Administrative Law Judge David F. Barbour denying JWR's motion for summary decision. 26 FMSHRC 623 (July 2004) (ALJ). Judge Barbour had also denied JWR's motion for reconsideration of his decision, and its request, in the alternative, that he certify his earlier ruling to the Commission for interlocutory review. 26 FMSHRC 734 (Aug. 2004) (ALJ). On August 30, 2004, the Secretary of Labor filed an opposition to JWR's petition for interlocutory review, and JWR subsequently filed a reply to the Secretary's opposition.
Upon consideration of the pleadings filed by JWR and the Secretary, we have determined that JWR has failed to establish both that the order denying its motion for summary decision involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding. See 29 C.F.R. § 2700.76(a)(2). We therefore deny the petition.
____________________________________
Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Stanley C. Suboleski, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution:
Timothy C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
Edward H. Fitch, Esq.
Keith E. Bell, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021