MSHA Rebuked, Not Deterred

An ALJ Determines That There Are Outer Limits of MSHA’s Relatively Unlimited Enforcement Authority

By R. Brian Hendrix


“Erotica” is not a word one would expect to find in a decision of a Federal Mine Safety and Health Review Commission Administrative Law Judge. Indeed, its appearance in Judge Moran’s Nov. 3, 2014, opinion in Brody Mining, LLC v. Secretary of Labor may be a first, where that word is referenced as having appeared in an MSHA inspector’s field notes.

However, what is truly impressive is the fact that its appearance is hardly the most remarkable aspect of the decision. Rather, what is most remarkable about the decision is the extent to which it marks what appears to be outer limits of MSHA’s relatively unlimited enforcement authority.

In the last few years, MSHA has been pushing those limits hard, working to expand its authority as far and wide as possible, both through enforcement actions and via rulemaking. Many have resisted that push when it conflicted with miner safety and health, common sense and the Rule of Law, albeit with little success. That Brody Mining LLC was successful in this case is a testament to just how far MSHA is willing to go and how far it can go before reaching the limits of its authority.

In Brody, the task before Judge Moran was to determine whether MSHA had established a pattern of violations under Section 103(e) of the Federal Mine Safety and Health Act by the operator, which of citations/orders MSHA relied on to support its pattern allegation were established as violations and which of those also qualified as Significant & Substantial violations. It is important to note that MSHA refused to promulgate a regulatory definition of the phrase “pattern of violations, and it has since taken a “we’ll know it when we see it, and we’ll tell you only after we see it” approach to identifying pattern violators.

At one point in the litigation involving Brody, MSHA claimed that as “few as two citations may constitute a pattern” if they are, in some way, related. MSHA refused to offer anything more, and it was “steadfast in its stance that it did not have to comply with the Court’s instructions” to explain the basis for [its] pattern of violations charges.” In other words, the judge instructed MSHA to explain itself, and MSHA just refused. Telling a judge to pound sand, no matter how delicately or diplomatically you put it, is never smart.

To his credit, Judge Moran recognized that MSHA’s position put Brody at a “great disadvantage to defend itself … Not being forearmed with the knowledge of the theory of the Secretary’s pattern of violations, facing the unknown as it were, Brody could not know how to defend itself.” Mincing not a single word, Jude Moran offered this pointed, very frank description of MSHA’s position:

“Imagine, if you will, a contest of any sort. It could be a board game or a card game or, as in this instance, a contest to determine if a pattern of violations exists. One would expect that, before beginning such a contest, the rules would be announced in advance; a flush in a poker game, for example, being established as all five cards being of the same suit, or in a board game, a requirement of owning all the properties on a given street before installing houses. But what if the rules were announced only after the game had been played, after the hand had been played so to speak, and that one party then announced the basis for a winning hand? Perhaps a two or three, not an Ace, King or Queen, was anointed as the superior card, a determination made by the one then announcing the rules and according to the hand that player then had. For most people, one would hope, such a contest would seem patently unfair, almost rigged.

“In the field of law, one could assert that such an arrangement violates procedural due process, lacking fundamental fairness. Yet, for the reasons which follow, in this Court’s view the Secretary of Labor’s procedure for charging a mine operator with a pattern of violations smacks of such after-the-fact rules. Here, not only does the Secretary’s elaborate and lengthy regulation, involving a pattern notice, fail to identify what constitutes a pattern, even after the pattern notice was issued and the litigation challenging that notice instituted, the Secretary still did not identify, beyond general and vague statements, the basis for his pattern claim. Despite the Court’s requirement that the Secretary identify the basis for this claim before the hearing commenced, it declined to do so. Like the unfair card game, the Secretary advised that he would be announcing the ‘rules,’ not simply after the hearings were concluded, but that he would also wait until after the Court made its determinations as to which of the litigated citations and orders were found to have the significant and substantial finding associated with them. Only then, knowing which violations were identified as ‘significant and substantial’ would the Secretary then announce the basis for his claim of a pattern of violations. Such rules are antithetical to procedural due process.”

When a judge describes your position as “antithetical to due process” in the second paragraph of its decision, rest assured that you haven’t just lost; you have been rebuked. Language like this does not appear in a close decision or a decision that a judge struggles to reach. Indeed, a sportswriter covering a loss like this in football might describe it as a blowout or a thrashing.

Unfortunately, MSHA does not appear to have taken much of anything in Judge Moran’s decision to heart. Never mind common sense, due process or fundamental fairness.

Extending Judge Moran’s card game analogy, MSHA responded by doubling down. After MSHA lost and lost big, MSHA had the gall to turn around and argue that the Court had no jurisdiction to even try the case. MSHA immediately appealed the decision to the Commission and filed an “Emergency Motion to Stay” the effects of Judge Moran’s opinion, arguing that: (1) he had no jurisdiction to dismiss the POV notice; (2) that his “due process analysis is erroneous,” that (3) the “Mine Act does not require the Secretary to define “pattern of violations” and that (4) MSHA did provide the Court with “a definition of “pattern of violations” and provide Brody with “fair notice” of MSHA’s “basis for [its] POV determination.”

Judge Moran easily disposed of MSHA’s arguments and denied MSHA’s motion, but MSHA will no doubt try hard to convince the Commission to accept a position that is, to an objective and reasonable observer, so obviously at odds with the Rule of Law.

Brody’s case before the Commission and a legal challenge to the validity of MSHA’s Pattern of Violations rule are both on-going. Time will tell whether a federal court or the Commission will force MSHA to learn the lesson that it should have learned from Judge Moran.

R. Brian Hendrix is a shareholder in the Washington, D.C., Region office of Jackson Lewis P.C. He advises clients on matters involving environmental, health, and safety law, focusing on litigation, incident investigations, enforcement defense and regulatory compliance counseling. Hendrix has extensive experience with federal and state agencies and has represented a host of clients engaged in a wide variety of manufacturing, production, extraction and service-related industries.

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