“Who will guard the guardians?” is the question an  administrative law judge (ALJ) raised in a May 13 order  denying a Labor Department motion to gain approval of a settlement that had been reached with an Illinois  coal producer.

ALJ William Moran rejected the settlement when it was  brought to him months before, because it included no  justification for a proposed 30 percent across-the-board  reduction of 32 citations issued to American Coal Co.’s  New Era Mine.  The latest motion asked the judge to  reconsider that decision.  

In the reconsideration motion, however, the Labor  Department did not abide by Moran’s earlier instruction  that the reductions be explained.  Instead, the  Department’s attorney argued the Federal Mine Safety  and Health Review Commission had limited authority in  such matters. She contended the Commission’s role in  approving settlements was “‘simply a procedural  mechanism to ensure that [ ] settlement agreements  negotiated by the Secretary are clear, transparent to the  public, and in accordance with any otherwise applicable  law. The Labor Department sought to justify the  settlement as an exercise of its attorneys’ professional  judgment and, as quoted by Judge Moran,  one that  “‘considered the value of the proposed compromise; the  prospects of coming out better, or worse, after a full  trial; and the resources that the Secretary would need to  expend in going through a trial.

Judge Moran, however, described the motion as “seriously misguided” and “pure gobbledygook,”  charging that it “crosses an ethical line for the limits of  proper advocacy.”  He repeatedly invoked Section 110(k) of the Mine Act, which gives the Commission  authority to approve contested penalties, such as those  in this case.  

“The plain language [of Section 110(k)] is enough to  eviscerate the Secretary’s entire argument in its  motion,” he said.

Moran noted that the Labor Department’s rationale was  flawed because it ignored the health and safety of  miners, which he said was why Commission judges must  “guard the guardians.”  He pointed out the legislative  history of the Mine Act shows Congress intended  penalties to promote miner health and safety.  His  withering criticism continued:

“With no mention of the best interests of miners, nor  reference to its client, the Mine Safety and Health  Administration, nor any mention of Congress’ concern  about the deterrent effects of penalties, the Secretary,  in what is little more than a power play, has  demonstrated a disregard for any of these voices and  by so doing underscored the wisdom of Congress’  command that the Commission must approve such  matters.”   

Moran ordered the Labor Department counsel either to submit a supported motion within 30 days or  prepare for trial.