The Mine Safety and Health Administration (MSHA) grouped those citations into four categories: ventilation and/or methane hazards; emergency preparedness and escape way hazards; roof and rib hazards; and inadequate examinations. After Brody Mining received several Section 104(e) withdrawal orders and, following a few rounds before Administrative Law Judges for multiple reasons at various junctures in the case, the contest proceeding found its way to administrative law judge Moran for purposes of the civil penalty proceeding. After hearing the case in its entirety, on November 3, 2014 Judge Moran issued an order dismissing the POV notice, finding that it violated procedural due process and that the Secretary of Labor did not adequately define what constitutes a POV, and thus could not establish that the citations in the notice constituted such a pattern.

The decision goes to the heart of what actually constitutes a POV. Yet today, this decision is now before the Federal Mine Safety and Health Review Commission for review. On April 16, 2015 an open meeting was held for the commission to discuss just that. On this day, Commissioners Cohen, Althen, Young, Nakamura and Chairman Jordan came together to discuss their thoughts on the case. Seem like a big deal? Well, it is. The commission’s discussion and ultimate decision could potentially shape the way that all POV cases are litigated for years to come.

Although several additional points and significant clarifications were made during the meeting, the primary issue before the commission was whether the judge had jurisdiction to adjudicate the validity of the POV notice and if so, whether he erred in dismissing that notice. When it came to the jurisdictional issue, everyone was on the same page. It was undisputed that the judge possessed the ability to both hear and decide the issues surrounding the POV notice. Yet, in terms of whether dismissal was appropriate, the answer was not as clear.

It was undoubtedly a tough call to be made for any one person. Each of the commissioners voted to remand the case to Judge Moran citing the idea of Brody Mining’s procedural due process rights, notice, developing an applicable definition for a POV and the actual dismissal of the notice as major points to be examined. Yet, their rationale for the remand was not particularly synchronous. Each commissioner agreed that the case should be sent back to the judge, but whereas Commissioner Nakamura argued that a “do-over” was necessary, Commissioner Althen emphatically disagreed — noting that the judge got it right in choosing dismissal where the secretary had several opportunities to get this right and did not, and thus should be taught a lesson. Chairman Jordan appeared even less inclined to automatically remand, stating that she would vacate the judge’s decision, but that she did not understand the desire to remand based upon the legal premise that vacating a judge’s decision suggests that he legally erred. Still, in the end, all agreed that although their pending decision was of utmost importance, there were many variables which needed to be sorted out — more so than could even be addressed in this one meeting alone. The end result: a decision which will soon be drafted surrounding much of Commissioner Nakamura’s argument — based on the agreement that his approach appeared to be the most middle of the road — with adjustments to be made accordingly based on the opinions of everyone else.

Commissioner Cohen held the initial brunt of the discussion, beginning deliberations in this meeting by highlighting that this is the most difficult and important case to come before the commission during his tenure. He took the position that Section 104(e), the POV provision, although an integral part of the Mine Act, had never been adequately enforced until recently. As a result, Brody Mining, LLC has become a test case of sorts where the commission would and should create basic definitions and procedures that will determine how these cases will proceed going forward.

Commissioner Cohen argued, and everyone seemingly agreed, that although the Secretary of Labor has not definitively provided a definition which can be applied in POV cases, the regulation already contains the definition if you look closely enough. This means that a POV is “a mode of behavior or series of acts that demonstrates the operators’ generally inadequate attention to, indifference towards, or disregard of the safety and health of its miners.”

Although hesitant to provide an actual framework to be used going forward, Chairman Jordan’s comments and the discussion as a whole indicated that this was a likely definition for a POV, should the commission adopt one. The idea of an operator’s indifference toward the safety and health of miners seemed to be one that the commission, particularly Commissioner Young, was willing to hang its hat on as a starting point for analysis, if nothing more. In the end, Commissioner Cohen’s vote was to remand the case with hopes that the commission would create a framework for POV cases which fully protects due process rights. Commissioner Young echoed much of what Commissioner Cohen relayed and, as noted previously, Commissioners Nakamura and Althen agreed that remand was necessary.

As a result, this case and the potential for a future explanation regarding POV analysis will be back in the hands of Judge Moran in only a matter of time, and thus one step closer. How will the remand of this case to Judge Moran affect the outcome of this case and all future POV cases? Given the potential impact of this decision, the only thing that seems certain is that it will be appealed.


Breyana A. Penn is an associate in the Denver office of Jackson Lewis PC. Penn is a member of the Workplace Safety and Health practice group representing clients on an array of administrative, regulatory and public policy issues, including clients in MSHA, OSHA and other safety agency investigations and enforcement actions.