A dispute over a proposed settlement agreement in a case  before the Federal Mine Safety and Health Commission  has devolved into a tit-for-tat exchange between a  Commission administrative law judge (ALJ) and the U.S.  Department of Labor’s Office of the Solicitor (SOL) over a  provision of the Mine Act.

The latest move came July 1 when ALJ William Moran  denied two motions that had been submitted by a SOL  attorney representing MSHA. In one motion, SOL asked  that the full five-member Federal Mine Safety and Health  Review Commission hear the dispute over the interpretation  of Section 110(k) of the Act. The provision states, in  pertinent part, that no proposed penalty contested before  the Commission “shall be compromised, mitigated or  settled” except with the Commission’s approval.

Moran determined the language of the provision clearly  vests final authority for settlements with the Commission  and its judges. However, SOL believes otherwise, holding  the Commission’s function in settlement cases is merely to  assure they are clear and transparent to the public.

The tussle erupted in March when Moran denied a  conference and litigation representative’s (CLR) motion to  settle 32 citations written against American Coal Co.’s New  Era Mine by cutting the fine 30 percent across the board.  When the CLR provided no citation-by-citation justification  for the reduction, Moran refused to go along, saying he could  not approve the motion without a supporting rationale. SOL then entered the picture, submitting a motion, also  without specific justification, asking Moran to reconsider  his earlier denial. He refused, arguing the Commission’s  role in approving settlements is supported by the Act, its  legislative history and the Commission. Noting that SOL’s  motion excluded any reference to the deterrent effect of  penalties in promoting the health and safety of miners,  Moran said this is why Commission judges must “guard  the guardians.”

Moran rejected SOL’s motion because he disagreed with  the way SOL framed the dispute. SOL “ask[s] the wrong  questions and attempt[s] to limit the scope of  interlocutory review,” he said. The judge also denied a  second SOL motion for a stay of the settlement  proceeding to allow the Commission to decide the  underlying interpretive question. He expressed concern  that “witnesses may be lost, memories may fade and other  evidentiary infirmities may ensue” if he granted the stay.

SOL has since inserted boilerplate language into proposed  settlements before Moran and other Commission judges  stating, in effect, that SOL has determined the proposed  compromise is in “the public interest and [serves] the  effective enforcement and deterrent purposes of the Mine  Act.” However, ALJs have struck the language, describing  it as “immaterial and impertinent.”

Moran directed SOL and the operator to participate in a  conference call on July 15 to set the date for a hearing  before him on the question of law the case has sparked.  The issue appears headed to the full Commission and  possibly to a court of appeals after that.