For clients and friends of Jackson Kelly PLLC
Volume 9, Number 18
©2013 Jackson Kelly PLLC
On June 19, 2013, the Secretary of Labor moved to dismiss the appeal challenging MSHA’s new Pattern of Violations (“POV”) final rule. The National Mining Association, Murray Energy Corporation, and other members of the mining industry are seeking review of the final rule in the Court of Appeals for the Sixth Circuit. Industry is challenging the rule change which, among other things, allows MSHA to consider any issued citation or order in the POV review process, regardless of whether the operator contests the validity of the enforcement action. The previous rule limited MSHA to considering only final orders in its POV reviews.
The Secretary moved to dismiss the suits, arguing that the federal court of appeals lacks jurisdiction to review any pre-enforcement challenges to a “regulation.” Section 101(d) of the Mine Act vests the courts of appeals with jurisdiction to review a “mandatory health or safety standard.” The Secretary argues that the final rule is a “regulation,” not a “standard,” and that pre-enforcement challenges may only be brought in federal district courts, if at all. Otherwise, operators must wait to challenge the validity of the new rule until they find themselves contesting enforcement actions as a result of POV.
This motion to dismiss came before any of the petitioners have filed their opening briefs and before the Secretary knows precisely which appeal issues it asserts the court of appeals lacks jurisdiction to hear. Additionally, the Secretary filed a motion to stay any briefing on the appeal until the court rules on its motion to dismiss. Both motions send a clear signal that the Secretary does not intend to back away from the January POV rule without a fight.
This article was authored by Kristin R.B. White, Jackson Kelly PLLC. For more information on the author, click here.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
kwhite@jacksonkelly.com
For more information, contact:
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Laura E. Beverage (303) 390-0003 |
Karen L. Johnston (303) 390-0008
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R. Henry Moore (412) 434-8801 |
Michael T. Cimino (304) 340-1000
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The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.
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