Guide to Commission Proceedings
The following summary of Commission procedure is provided for informational purposes only and is not binding legal authority. A more comprehensive explanation of procedural matters is provided in the Commission’s Procedural Rules (29 C.F.R. Part 2700). In the event of discrepancies between the summary provided here and either the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 801 et seq.) (“Mine Act”) or published regulations, the Act and regulations are controlling. The Commission’s rules and other information about its procedures are available on the Commission’s website, which is located at www.fmshrc.gov. A booklet, entitled “How a Case Proceeds Before the Commission” is also available in hard copy or on the Commission’s website.
TABLE OF CONTENTS
I. The Commission’s Function
II. Types of Commission Proceedings
D. Temporary Reinstatement Proceedings
E. Emergency Response Plan Dispute Proceedings
III. Appeals of Judges’ Decisions or Orders to the Review Commission
A. Contest, Civil Penalty Discrimination and Compensation Proceedings
1. Petitions for Discretionary Review
2. Petitions for Interlocutory Review
B. Temporary Reinstatement Proceedings and Emergency Response Plan Dispute Proceedings
IV. Appeals of Decisions to the U.S. Court of Appeals
A. Review Commission Declines to Grant Petition for Discretionary Review
B. Review Commission Grants Petition for Discretionary Review and Issues Decision
V. Contact Information
I. The Commission’s Function
The Federal Mine Safety and Health Review Commission (the “Commission”) is an independent adjudicative agency that provides administrative trials and appellate review of legal disputes arising under the Mine Act. The Commission’s Administrative Law Judges decide cases at the trial level. The five-member Review Commission provides appellate review of Judges’ decisions. Commissioners are appointed by the President and confirmed by the Senate. Review of a Judge’s decision by the Review Commission is not as a matter of right but requires the affirmative vote of at least two Commissioners. Most of the cases accepted for review are generated from petitions filed by parties adversely affected by a Judge’s decision. However, the Review Commission can also direct a case for review on its own motion. A Judge’s decision that is not accepted for review becomes a final, non-precedential order of the Commission. Appeals from final Commission decisions are to the United States Courts of Appeals.
The Secretary of Labor, through the U.S. Department of Labor’s Mine Safety and Health Administration (“MSHA”), represents the federal government’s interest in Mine Act proceedings before the Commission. The terms “MSHA” and the “Secretary” may be used interchangeably in this summary. The Commission is not a part of, nor affiliated in any way with, the Department of Labor or MSHA. While MSHA enforces the Mine Act by publishing regulations covering the health and safety of miners, inspecting mines, and issuing citations and orders, the Commission decides disputes arising under the Mine Act by providing trials and appellate review.
II. Types of Commission Proceedings
A. Contest Proceedings (29 C.F.R. Part 2700 Subpart B; Mine Act Sec. 105(d) (30 U.S.C. § 815(d))
A contest proceeding is a case that an operator may file with the Commission in order to challenge a citation or order within 30 days after it has received that citation or order. The operator may file its notice of contest with the Commission even though it has not yet received a proposed penalty assessment for the violation. The notice of contest should include the reasons that the operator is challenging the citation or order, including all issues of law and fact that are relevant, and the relief or remedy that it is seeking. The operator should also attach to the notice of contest a copy of the citation or order that it is challenging.
The operator files its contest by sending two copies of its notice of contest and the attached citation or order in the following manner: (1) one copy should be sent to either the appropriate Regional Solicitor’s Office or the Solicitor’s Office in Arlington, Virginia; and (2) the second copy should be sent to the Commission.
After MSHA has received a copy of the contest, it will file a response called an “answer” with the Commission and the operator. Eventually, the case will be assigned to a Commission Administrative Law Judge, who will preside up until the time that he or she has issued a decision on the contest.
It is important for the operator to know that even if it has filed a contest of a citation or order in the manner described above, it still must respond to any proposed penalty assessment for the violation that MSHA sends the operator. The operator must respond to the proposed penalty assessment even if it is negotiating a settlement with MSHA. For more information regarding how to respond to a proposed penalty assessment, see the section entitled, “Civil Penalty Proceedings.”
B. Civil Penalty Proceedings (29 C.F.R. Part 2700 Subpart C; Mine Act Sec. 105(a) (30 U.S.C. § 815(a))
A civil penalty proceeding is a case that an operator may file with the Commission in order to contest a civil penalty MSHA has proposed for a violation described in a citation or order. The civil penalty is called a “proposed penalty assessment.” If an operator refuses to accept certified mail containing a proposed penalty assessment, the operator is considered to have received it. After the operator receives a proposed penalty assessment from MSHA, it has 30 days to file a contest of that penalty. The operator files a contest of the proposed penalty assessment by following the instructions on the form that lists the penalty. Generally, the operator should indicate which penalty it wishes to contest and mail the form to the address provided.
After MSHA receives a form from an operator indicating that the operator wishes to contest a proposed penalty assessment, MSHA notifies the Commission. In addition, 45 days after MSHA has received the form from the operator indicating that it wishes to contest a proposed penalty assessment, the Secretary must send to the Commission and the operator a document called a “petition for assessment of penalty.” The petition for assessment of penalty lists the alleged violation and proposed penalty, and the supporting information about how the Secretary arrived at the amount of the proposed penalty.
After the operator receives the petition for assessment of penalty from MSHA, it has 30 days to file a document called an “answer” with the Commission. An answer is a document in which the operator responds to each statement in the petition for assessment of penalty. The operator must also send a copy of the answer to MSHA. Sending a document to a party in a case is called “service.” The 30-day period for filing the answer with the Commission starts to run from the date of service of the petition for assessment of penalty. The date of service can usually be found on the “certificate of service,” which is one of the last pages of the petition.
It is important for the operator to know that even though it has filed a contest of a citation or order in the manner described in the section entitled, “Contest Proceedings,” it still must respond to any proposed penalty assessment that MSHA sends the operator. The operator must also respond to the proposed penalty assessment even if it is negotiating a settlement with MSHA. Similarly, the operator must file an answer to the petition for assessment of penalty even if it is negotiating a settlement with MSHA.
If an operator fails to contest a proposed penalty assessment within 30 days after receiving it, the proposed penalty assessment becomes a final Commission order. However, under certain circumstances the Commission has the power to reopen uncontested assessments that have become final orders, thus permitting an operator to challenge the penalty. For example, in some instances the Commission may reopen an order if it has become final due to a mistake. For the Commission to reopen an order, an operator must show that good cause existed for its failure to timely respond to the proposed penalty assessment.
Information regarding filing a request to reopen may be obtained from the Commission’s website at www.fmshrc.gov under the link for “Frequently Asked Questions,” and under the subheading in that link for “Problems in Contesting Penalties.”
C. Discrimination Proceedings (29 C.F.R. Part 2700 Subpart E; Mine Act Sec. 105(c) (30 U.S.C. § 815(c))
A discrimination proceeding involves a miner’s allegation that he or she has suffered adverse employment action because he or she engaged in activity protected under the Mine Act, such as making a safety complaint. A miner who believes that discrimination has occurred has 60 days after the allegedly discriminatory act by the operator to file a complaint with MSHA.
Within 15 days of receiving the complaint, MSHA must begin an investigation into the matter. Within 90 days of receiving the complaint, the Secretary must inform the miner in writing whether the government believes discrimination has occurred. If MSHA believes that discrimination has occurred, the Secretary must file a written complaint with the Commission within 30 days of that written determination. The Secretary then proceeds with the case on behalf of the miner.
Within 30 days, the operator must file an answer responding to the statements in the complaint filed by the Secretary on behalf of the miner. The 30-day period starts to run from the date of service of the complaint. The date of service can usually be found on the “certificate of service,” which is one of the last pages of the complaint. The operator’s answer must be sent to the Secretary at the address provided on the complaint and to the Commission.
If the Secretary issues to the miner a written determination that no discrimination has occurred, the miner may file a complaint on his or her own behalf with the Commission within 30 days after receipt of the Secretary’s determination. The complaint shall include a summary of the facts, including the alleged discrimination, and the relief requested. The miner shall also serve a copy on the operator.
The operator must file an answer responding to the statements in the complaint filed by the miner within 30 days. The 30-day period starts to run from the date of service of the complaint. The date of service can usually be found on the “certificate of service,” which is one of the last pages of the complaint. The operator’s answer must be sent to the miner at the address provided on the complaint and to the Commission.
D. Temporary Reinstatement Proceedings (29 C.F.R. § 2700.45; Mine Act Sec. 105(c)(2) (30 U.S.C. § 815(c)(2))
Temporary reinstatement proceedings involve cases in which a miner has filed a complaint with MSHA stating that he or she has suffered discrimination and the miner has lost his or her position. See the section above entitled, “Discrimination Proceedings,” for further discussion regarding such proceedings. If the Secretary determines that the discrimination complaint filed by the miner was not frivolously brought, the Secretary may file an application with the Commission for the temporary reinstatement of the miner. The operator charged with engaging in discrimination may request a hearing within 10 days after it has received the Secretary’s application for temporary reinstatement. The scope of the hearing is limited to whether the miner’s complaint was frivolously brought. Within 7 days after the close of a hearing, the Judge issues an order either granting or denying the miner temporary reinstatement. If a party wishes to challenge the Judge’s order, it may file a document called a “Petition for Review of Temporary Reinstatement Order” with the Review Commission. The petition must be received by the Review Commission within 5 business days after the party has received the Judge’s Order.
E. Emergency Response Plan Dispute Proceedings(29 C.F.R. § 2700.24; MINER Act Sec. 2 amending Mine Act Sec. 316(b)(2)(G) (30 U.S.C. § 876(b)(2)(G))
Amendments to the Mine Act require operators of underground coal mines to develop and adopt written emergency response plans (“ERPs”) that will provide for the evacuation of all miners endangered by an emergency and maintain those miners who are not able to evacuate. The Secretary is required to review and approve an operator’s plan. In the event of a dispute between the Secretary and an operator over the content of a plan, the Secretary will issue a citation to the operator. Thereafter, within 2 business days after the Secretary has issued the citation to the operator, the Secretary must send to the Commission and operator a document called a “referral.” A referral must include a summary of the plan dispute, a copy of the citation, a statement of the Secretary’s position with respect to the disputed plan provision, and a copy of the disputed plan provision.
Within 5 days after the filing of the referral, the operator must file with the Commission and the Secretary a statement of its position. The operator and the Secretary must submit all relevant materials about the dispute to the Commission Administrative Law Judge assigned to the case within 15 calendar days after the referral was filed. If a Judge orders a hearing on the matter, the hearing must be held within 15 calendar days after the referral was filed. The Judge must issue a decision within 15 calendar days after the materials and testimony have been submitted.
Within 2 business days after a Judge’s decision holding that a disputed provision must be included in a plan, the operator may file with the Judge a motion requesting a stay of the inclusion of that provision. The 2 days begins to run from service of the Judge’s decision. The Secretary may file a response to the operator’s request for a stay within 2 business days following service of the operator’s request. The Judge must issue an order granting or denying the stay within 2 business days after the filing of the Secretary’s response.
If a party wishes to challenge the Judge’s order in an ERP dispute proceeding, including the Judge’s order granting or denying a stay, it may file a petition for review with the Review Commission within 30 days after issuance of the decision or order.
F. Compensation Proceedings (29 C.F.R. Part 2700 Subpart D; Mine Act Sec. 111 (30 U.S.C. § 821)
A compensation proceeding is a case that may be filed with the Commission by miners entitled to compensation who are idled by a closure order issued by MSHA. The type of document that the miners file is called a “complaint.” The complaint must be filed within 90 days after the beginning of the period during which the miners are idled. The complaint must include a summary of the facts giving rise to the claim, the period for which compensation is claimed, the total amount of compensation claimed, and a copy of the order closing the mine. The complaint must be mailed to the operator of the mine and the Commission.
Within 30 days, the operator must file an answer responding to the statements in the complaint filed by the miners. The 30-day period starts to run from the date of service of the complaint. The date of service can usually be found on the “certificate of service,” which is one of the last pages of the complaint. The operator’s answer must be sent to the address provided by the miners filing the complaint and to the Commission.
III. Appeals of Judges’ Decisions or Orders to the Review Commission
A. Contest, Civil Penalty, Discrimination and Compensation Proceedings
1. Petitions for Discretionary Review (29 C.F.R. § 2700.70; Mine Act Sec. 113(d) (30 U.S.C. § 823(d))
Any person adversely affected by a Judge’s decision or order may file with the Review Commission a document called a “petition for discretionary review” within 30 days after the decision or order has been issued. A petition for discretionary review may be filed on several grounds, including that a Judge’s factual finding is not supported by substantial evidence; a Judge’s legal conclusion is erroneous; the decision is contrary to law; a substantial question of law, policy, or discretion is involved; or the Judge committed a prejudicial procedural error. Issues raised in the PDR shall be supported by detailed citations to the record, when assignments of error are based on the record, and by statutes, regulations, or other principal authorities relied upon. The petition must be received by the Commission during that 30-day period. The Review Commission cannot extend the time for filing a petition. If at least two Commissioners vote to do so, a petition will be granted within 40 days after issuance of the Judge’s decision. A petition not granted within 40 days after the issuance of the Judge’s decision is considered denied, and the Commission’s Docket Office will send a notice informing the petitioner that the petition has been denied.
2. Petitions for Interlocutory Review (29 C.F.R. § 2700.76)
The Review Commission has discretion to grant “interlocutory review,” which involves the review of a Judge’s ruling made before the Judge has issued a final decision. It may grant interlocutory review only if it finds that the Judge’s ruling involves a controlling question of law and that immediate review may materially advance the final disposition of a proceeding. The process for interlocutory review by the Review Commission is initiated when: (1) the Judge has certified to the Review Commission that the ruling meets this standard; or (2) the Judge has denied a party’s motion for certification, in which case the party seeking review must file a document called a “petition for interlocutory review” with the Review Commission. The petition must be filed within 30 days of the Judge’s order denying certification.
B. Temporary Reinstatement and Emergency Response Plan Dispute Proceedings (29 C.F.R. § 2700.45(f), 2700.24(g))
The procedures for filing an appeal with the Review Commission in temporary reinstatement proceedings and in emergency response plan dispute proceedings are referred to in the sections set forth above entitled “Temporary Reinstatement Proceedings” and “Emergency Response Plan Dispute Proceedings,” respectively.
IV. Appeals of Decisions to the U.S. Court of Appeals (Mine Act Sec. 106 (30 U.S.C. § 816); Mine Act Sec. 113 (30 U.S.C. § 823)
A. Review Commission Declines To Grant Petition for Discretionary Review
If the Review Commission does not grant a party’s petition for discretionary review challenging a Judge’s decision within 40 days after issuance of the Judge’s decision, the Judge’s decision becomes a final order of the Commission. A party may file an appeal of the Judge’s decision in either the U.S. Court of Appeals for the area where the alleged violation occurred or for the District of Columbia. The time for filing is within 30 days after the Judge’s decision has become a final Commission order.
B. Review Commission Grants Petition for Discretionary Review and Issues Decision
If the Review Commission grants a party’s petition for discretionary review and issues a decision that a party wishes to challenge, the party may file an appeal of the Review Commission’s decision in either the U.S. Court of Appeals for the area where the alleged violation occurred or for the District of Columbia. The time for filing is within 30 days after the issuance of the Review Commission’s decision.
V. Contact Information
A. The Commission
1. Electronic filing: You may file any document with an Administrative Law Judge or the Review Commission through the Commission’s electronic Case Management System (“e-CMS”). (See Commission Procedural Rule 5). In order to use e-CMS, you must first register at https://fmshrc-ecms.entellitrak.com or use the link to e-CMS on the Commission’s website (www.fmshrc.gov). Instructions for electronic filing may be found on the Commission’s website (www.fmshrc.gov/guides). If you need assistance filing electronically, you may email e-CMS.Support@fmshrc.gov.
2. Filing paper documents:
a. Before a Judge has been assigned to a case, you may file paper documents by mailing or faxing them to:
Executive Director
Federal Mine Safety and Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, D.C. 20004-1710
FAX: (202) 434-9954
b. After a Judge has been assigned to a case, you may file paper documents with the Judge by mailing them to the address set forth on the notice of assignment.
c. You may file paper documents with the Review Commission by mailing or faxing them to:
Executive Director
Federal Mine Safety and Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, D.C. 20004-1710
FAX: (202) 434-9954
B. MSHA
1. Regional Solicitor’s Office
For the address of the appropriate Regional Solicitor’s Office, visit:
http://www.dol.gov/sol/organizations/regions/main.htm
2. Solicitor’s Office in Arlington, Virginia
Office of the Solicitor
U.S. Department of Labor
Mine Safety & Health Division
201 12th Street, South
Suite 401
Arlington, Virginia 22202-5450