Second Settlement Rejected; ALJ demands information from Solicitor’s Office
Posted by Ellen Smith on October 18, 2012
For the second time in one week, a Review Commission judge has rejected a settlement motion submitted by the Solicitor’s Office due to lack of specificity.
Rejection of settlement motions has been an on-going problem for years, but more judges are calling the Solicitor’s to task for motions lacking factual information.
The latest case is before ALJ Priscilla Rae and involves a citation issued to Dominion Coal Corp.’s Mine No. 44. The settlement motion filed by the Solicitor’s Office would modify the citation so that the language reflects that an injury would be “permanently disabling,” and reduce the penalty from $1,111 to $777.
In rejecting the motion, ALJ Rae said the motion “fails to predicate the modifications upon any factual support. … The Arlington Solicitor’s Office has been on notice of the Commission’s clear instructions to provide a factual basis for each and every settlement. … The Secretary may not continue to act in blatant disregard of the Mine Act, Commission rules unless an appeals court overturns the well-established principles set forth in the Commission’s Black Beauty decision.”
Rae said that the Solicitor’s Office filed documents on Oct. 3, and “immediately thereafter the solicitor was sent an email informing him that a revised Motion and Order were needed including a factual basis for the modifications. No revision has been received. The Secretary is acting in a direct contravention of my Order as well as recently issued Commission decisions and obstructing the judge’s authority and responsibility to enforce the intent and purpose of the Mine Act.
In a footnote, Judge Raw added that “It is clear from this course of conduct that the solicitors involved in these matters have no intention following the rulings of the Commission, [or] the orders of its Administrative Law Judges.”
The attorneys listed on the case are Assistant Regional Solicitor Douglas White, and Solicitor Pollyanna Hampton.
On Oct. 15, Mine Safety and Health News reported that Review Commission Judge Thomas McCarthy issued a stern warning to the Solicitor’s Office, and threatened disciplinary proceedings where DOL attorney Robert Wilson did not provide any facts to support overturning an MSHA inspector’s S&S finding, and a reduction in the penalty for a violation of a Emergency Response Plan at Dickenson-Russell Coal Co’s Cherokee Mine.