Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/908212
28 AGGREGATES MANAGER / December 2017 How the split Commission thwarts the expeditious, fair, and legally sound adjudication of mine safety cases. Patrick W. Dennison is an attorney in Jackson Kelly PLLC's Pittsburgh, office, where he practices in the Occupational Safety and Health and Coal and Oil and Gas Industry Groups. He can be reached at 412- 434-8815 or pwdennison@ jacksonkelly.com. Judicial Stalemate I n the May 2017 edition of Aggregates Mana- ger, Jackson Kelly attorney Arthur Wolfson discussed the Trump Administration's need to appoint a fifth commissioner to the Federal Mine Safety and Health Review Commission (Review Commission) who "will restore a sense of independence to the Review Commission so that it may fulfill its responsibility to the regulated community." The Review Commission's vacancy, which began on Sept. 1, 2016, at the end of former-Commissioner Patrick K. Nakamura's term, has resulted in a judicial stalemate duly reflected by Commission decisions since May 2017. The Review Commission is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Federal Mine Safety and Health Act of 1977 (Mine Act). The Review Commission consists of its administrative law judges (ALJs), who hear and decide cases, and the Commission itself, which consists of five presidential appointees who hear appeals of the ALJs' decisions. Three of the five Commissioners are selected by the Administration of the party in power with two se- lected by the party out of power. Because of the vacancy, however, only four Commissioners have decided cases since August 2016, many of which have resulted in 2-2 decisions. Despite the fact that half of the Commissioners may disagree with an ALJ's decision, the effect of an even split is to allow the ALJ's decision to stand as if affirmed. Moreover, even more impor- tantly, such split decisions are non-precedential. See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (August 1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir. 1992). For instance, in Bussen Quarries, Inc., 39 FMSHRC 970 (Review Commission May 2017), the Commissioners evenly divided on the issue of whether to affirm the ALJ's decision in its entirety, which was in favor of MSHA, or to reverse the finding of a violation. The split decision resulted in the affirmance of the ALJ. Two Commissioners in Peabody Twentymile Mining, 39 FMSHRC 1323 (Review Commission July 2017), voted to affirm the ALJ's decision, which found in favor of MSHA, and two voted to reverse the decision. The two Commissioners voting to reverse the ALJ joined in one opinion and found that MSHA did not offer any convincing argument for reversal of a longstanding interpretation for a method of const- ruction of ventilation stoppings in underground coal mines. The same two Commissioners also found that the litigation prompted sacrifice of MSHA's integrity as "unwarranted" and "shameful." Meanwhile, the two Commissioners who voted to affirm the ALJ wrote separate opinions, each affirming the ALJ's decision on separate grounds. As a result, the ALJ's decision stands as issued. In Canyon Fuel Co., LLC, 39 FMSHRC 1578 (Review Commission August 2017), the Com- mission unanimously upheld the ALJ's decision ROCKLAW by Patrick W. Dennison