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COURT THROWS OUT POV APPEAL ON JURISDICTIONAL GROUND, SKIPS MERITS

Last week, the Sixth Circuit of the U.S. Court of Appeals dismissed the challenge to the U.S. Mine and Safety Administration’s Pattern of Violations rule filed by NSSGA and other associations. The three-judge panel dismissed the case saying that the court lacked jurisdiction. They claimed that the federal appeals court can decide matters related to mandatory health and safety standards under the 1977 federal mine act, but the pattern of violations rule is not one of those forcing them to dismiss the case. Unlike standards that impose obligations on mine operators, the pattern of violations provision is directed by the Secretary of Labor and provides a tool to measure operators’ compliance with mandatory standards.

The industry argued that MHSA adopted the rule improperly; that it is wrong to use pending citations under the provision because many are later dismissed or overturned; and that the rule stripped companies of the right to contest citations before facing sanctions. The industry also said that under the old rule, MSHA notified companies when they had a potential pattern of violations – giving them a chance to fix problems – but that the new rule eliminated that step. MSHA asked the appeals panel to dismiss the industry’s challenge, arguing that the court did not have jurisdiction to decide the case.

NSSGA is disappointed by this outcome because the court failed to issue a decision on the merits of NSSGA’s case concerning operator rights of Due Process accorded by the Fifth Amendment of the Constitution. NSSGA is reviewing the decision with counsel and is considering possible next steps.