COMMISSION CLARIFIES STANDARDS FOR JUDICIAL REVIEW OF PROPOSED SETTLEMENT AGREEMENTS
November 19, 2019
By: Karl F. Kumli
For clients and friends of Jackson Kelly PLLC
Volume 15, Number 7
©2019 Jackson Kelly PLLC
The Federal Mine Safety and Health Review Commission (“Commission”) handed down a decision on September 30, 2019, which served to clarify earlier rulings regarding how much independence the Secretary of Labor’s (“Secretary”) Solicitors have in crafting and offering settlement agreements for Mine Safety and Health Administration (“MSHA”) enforcement actions. The Commission also better defined the authority of Administrative Law Judges (“ALJ”) to request additional facts or documentation supporting the Secretary’s decision.
The case in question, Sec’y of Labor v. Solar Sources Mining, LLC, dealt with a proposed settlement agreement that turned on reducing the penalty for one violation from a special assessment to a regular assessment. When the Secretary, with the support of the operator, sought to have the settlement approved by the ALJ, the ALJ requested that the Secretary provide specific documents and alleged that the Secretary had presented “no facts” supporting the settlement position. The Secretary objected to the request for specific documentation and the accusation that there were no facts presented in support of the settlement and filed an appeal with the Commission.
In reviewing the case, the Commission focused on two previous cases which both address aspects of the Secretary’s authority in making settlement agreements with operators. Both of these earlier cases dealt with The American Coal Co. and are discussed as AmCoal Settlement I and AmCoal Settlement II. AmCoal Settlement I determined that the Commission, and the Judges appointed by the Commission, have a duty to review settlement agreements to ensure that a proposed penalty is “fair, reasonable, appropriate under the facts and protects the public interest.” Clarifying that position in AmCoal Settlement II, the Commission stated that the Commission and its Judges “must have sufficient information to fulfill their duty.” In the interests of providing the Commission or Judges with that information, the Commission allowed that Judges may require the parties to submit for review facts supporting the settlement.
The decision by the Commission in Solar Sources limits this fact-finding power. In the current case, the Commission found that the ALJ had abused his discretion by demanding specific documents rather than requesting additional facts to support the settlement and allowing the parties to provide relevant information. The Commission took issue with the ALJ’s failure to address the guidance the Commission provided in the AmCoal Settlement cases. The Commission also rejected the ALJ’s decision to refuse the settlement based solely on the Secretary’s unwillingness to provide specific documentation the ALJ requested.
So, what does this mean for the future of settlement negotiations between operators and MSHA? The Secretary’s office still drives the settlement process, and settlement discussions with the Secretary on behalf of MSHA should remain the focus of operators who are trying to mitigate the impact of MSHA enforcement actions. Once an operator and the Secretary agree on a settlement position, the Commission and ALJs have a chance to review the agreement prior to approval and can request additional information. What this decision means is that ALJs are not allowed to seek specific documents, only documents supporting specific facts. If the parties provide documentation, the ALJ is not allowed to deny the agreement because the ALJ would have preferred different documents. If the Secretary and the operator agree on a settlement, and can support the agreement with solid facts, this decision encourages ALJs to approve the settlement agreements. At the end of the day, this decision supports settlements and penalty reductions for operators as a vital part of the MSHA process.
Jackson Kelly PLLC’s Occupational Safety and Health team is available to assist clients in developing customized strategies for responding to, and complying with, changes in regulation that impact operations and employee safety.
WORKPLACE SAFETY AND HEALTH PRACTICE GROUP
Karen L. Johnston
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