Logical Next Step After Secretary’s Argument on Settlements

Today is one of the most important recent cases before the FMSHRC. Oral arguments are being presented in Secretary of Labor v. The American Coal Co., on whether or not the Mine Act grants an ALJ the power to reject and demand additional information when approving a settlement under the Mine Act. Mine Safety and Health News is there, and will report on the case.

Unbeknownst to FMSHRC judges or the mining community, the Secretary issued a secret memo in 2014, written by Heidi Strassler, the Associate Solicitor for Mine Safety and Health, stating that the Solicitor was seeking to overturn 36 years of precedent, and was willing to go to court to change existing settlement procedures. (For the full text of the memo see: 21 MSHN 446).

The Mine Act’s legislative history seems compelling to uphold the role that the ALJs have played since the very first cases before the Commission when the Mine Act and mine disasters were fresh in everyone’s minds. Some of the very first cases were settlement rejections. The Secretary refuses to acknowledge this fact in his briefs filed before the Commission.

The Secretary claims that settlement agreements “cannot be treated as if they were findings of fact and conclusions of law after trial.” If the Secretary is willing to argue this point, is the Secretary also willing to pull every single settled citation off of the DRS? Is the Secretary willing to pull every single citation out of the equation for Pattern of Violations or when determining Violations Per Inspection Day? Afterall, the Secretary is arguing that we should not accept these citations and orders as if they are “findings of fact and conclusions of law.” So therefore, it must be taken to the next step, and remove these thousands up thousands of citations and orders from the DRS — because they don’t count.

The Secretary says so.

For previous stories on the case see: “Solicitor questions congressional intent, past 36 years of case law on settlements” (21 MSHN 319)
“Judge issues scathing rejection of Secretary’s motion to reconsider reduced fines” (21 MSHN 365)
“Labor Dept. refuses to release memo on standard settlement language* (21 MSHN 446) (full text of memo is in this issue)
“Commission upholds settlement where Secretary failed to address ALJ’s orders” (21 MSHN 563)
“Unions, Congressman Miller will weigh-in on ALJ approval of settlements” (21 MSHN 647)