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POV Process Violates Due Process, ALJ Rules

By Ellen Smith

ALJ William Moran has dismissed a Pattern of Violations (POV) charge against Patriot Coal’s Brody Mining, stating that the POV charge is a violation of due process with a system that is “patently unfair, almost rigged,” and the company does not know what evidence to present for its defense.


The case and decision, involved 103 orders that were contest proceedings, and nine dockets that were part of a civil penalty proceeding stemming from violations at the company’s Black Stallion Mine in West Virginia – the site of a recent double-fatality. The final outcome of this decision, however, would affect the 12 coal and metal/nonmetal mines that currently meet POV criteria as determined under the current formula available on MSHA’s Data Retrieval System, and the mines that have already been placed on POV status.

Of the current cases in this docket, 54 citations and orders were specifically related to the issue of whether or not Brody met POV criteria, depending on the outcome of the judge’s decision.

Brody had challenged MSHA’s POV regulations soon after it was notified of POV status. Chief ALJ Robert Lesnick upheld the regulations, and Lesnick’s decision was affirmed in an interlocutory ruling by the Commission on Aug. 28, 2014 (21 MSHN 558).

Judge Moran said the difference between the case before the Commission, and what was before him in this decision was “comparable to the indictment phase and a trial phase, with the Commission having concluded that the pattern regulation passed facial validity but that at the trial phase it was now time for the Secretary to establish that a pattern of violations existed.”


The questions that had been before the Commission were (1) whether the POV rule is valid; (2) whether MSHA’s screening criteria are invalid because notice-and-comment rulemaking was required; and (3) whether MSHA impermissibly applied the POV rule retroactively to this particular mine.

To determine whether a pattern existed, Judge Moran said MSHA would need to identify the basis for its claim that the 54 citations/orders formed a pattern of violations, establish that those citations and orders were in fact violations, and that each one was S&S. The problem, Moran said, is that the Secretary failed “to identify what constitutes a pattern, even after the pattern notice was issued and the litigation challenging that notice instituted, the Secretary still did not identify, beyond general and vague statements, the basis for his pattern claim.”

Judge Moran compared the case to a board game or card game in which “the rules were announced only after the game had been played, after the hand had been played, and that one party announced the basis for the winning hand.”

The Secretary was unable to identify the basis for a POV claim before the hearing commenced, and the judge clearly did not agree with waiting until after the trial for the Secretary to announce the basis for his POV claim, based on the outcome of which citations and orders had the S&S findings upheld by the judge.

Failed to Prove Basis

Simply put, “the Secretary failed to set forth the basis for his charge,” Judge Moran said, noting in a footnote that the Secretary admitted that the determination of a pattern could not be made until the Review Commission ALJ determined which citations were properly designated S&S and upon such determinations, it would then be up to the Commission ALJ to determine whether those constituted a pattern.

The judge said, “the government made a fatal flaw in proceeding without informing Brody of the basis for its pattern charge and that such an approach is fundamentally unfair on due process grounds. This failure was compounded by not only failing to announce its basis prehearing but also by asserting that, even post-hearing, it would not express the grounds. Instead the Secretary asserted that it would wait until after the Court ruled on which violations were proven and were S&S.”

While Judge Moran noted the importance of a POV rule, he said it is “important that the process be fair, and consistent with the principles of procedural due process.”

Brody Mining LLC, Nov. 1, 2014, Docket Nos. WEVA 2014-82-R et al.