“Who will guard the guardians?” is the question an administrative law judge (ALJ) raised in a May 13 order denying a Labor Department motion to gain approval of a settlement that had been reached with an Illinois coal producer.

ALJ William Moran rejected the settlement when it was brought to him months before, because it included no justification for a proposed 30 percent across-the-board reduction of 32 citations issued to American Coal Co.’s New Era Mine. The latest motion asked the judge to reconsider that decision.

In the reconsideration motion, however, the Labor Department did not abide by Moran’s earlier instruction that the reductions be explained. Instead, the Department’s attorney argued the Federal Mine Safety and Health Review Commission had limited authority in such matters. She contended the Commission’s role in approving settlements was “‘simply a procedural mechanism to ensure that [ ] settlement agreements negotiated by the Secretary are clear, transparent to the public, and in accordance with any otherwise applicable law. The Labor Department sought to justify the settlement as an exercise of its attorneys’ professional judgment and, as quoted by Judge Moran, one that “‘considered the value of the proposed compromise; the prospects of coming out better, or worse, after a full trial; and the resources that the Secretary would need to expend in going through a trial.

Judge Moran, however, described the motion as “seriously misguided” and “pure gobbledygook,” charging that it “crosses an ethical line for the limits of proper advocacy.” He repeatedly invoked Section 110(k) of the Mine Act, which gives the Commission authority to approve contested penalties, such as those in this case.

“The plain language [of Section 110(k)] is enough to eviscerate the Secretary’s entire argument in its motion,” he said.

Moran noted that the Labor Department’s rationale was flawed because it ignored the health and safety of miners, which he said was why Commission judges must “guard the guardians.” He pointed out the legislative history of the Mine Act shows Congress intended penalties to promote miner health and safety. His withering criticism continued:

“With no mention of the best interests of miners, nor reference to its client, the Mine Safety and Health Administration, nor any mention of Congress’ concern about the deterrent effects of penalties, the Secretary, in what is little more than a power play, has demonstrated a disregard for any of these voices and by so doing underscored the wisdom of Congress’ command that the Commission must approve such matters.”

Moran ordered the Labor Department counsel either to submit a supported motion within 30 days or prepare for trial.