Abuse of Discretion: MSHA’s Impermissible Use of 103(k) Orders

The propriety of the issuance
order reviewed under an “abus

• Some dispute about th
Pattison Sand Company

• Pinnacle Mining – AL
standard.

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and continuance of a 103(k)
se of discretion” standard.

his standard of review. See
y LLC.

LJ rejected “reasonableness”

• This standard of review
handed approach to s
and termination

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w fosters MSHA’s heavy-
such orders, their scope

What the Standard of R

The “abuse of discretion” stan
examine the relevant data a
explanation for its action inc
between the facts found an
“agency must cogently exp
discretion in a given manner,”
sufficient for a court “to concl
was the product of reasoned d

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Review Means - Legally

ndard requires an agency “to
and articulate a satisfactory
cluding a ‘rational connection
nd the choice made.’” The
plain why it has exercised
and that explanation must be
lude that the agency’s action
decision making.”

What the Standard of Rev

You L
• Heavy

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eview Means - Practically

Lose!
Burden

What an Operator M

• In Southern Ohio Coal Co.,
discretion afforded an inspec
remarked on the context in whic
If an inspector believes that a
in hand, and that the safety o
issue any orders at all. On the
in doubt, or has insufficien
make a judgment as to the
hazard exposure to miners, I
latitude to act according to th
experience. . . . If the orde
regard to the safety or heal
should be vacated.

13 FMSHRC at 1799

• Ignorance or lack of knowledge

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Must Contend With

Judge Koutras, describing the
ctor to issue a 103(k) order,
ch such orders can be issued:
an operator has the situation well
of miners is insured, he need not
e other hand, if the inspector is
nt information to enable him to
severity of the situation, or the
believe he must be afforded the
he wisdom of his discretion and
er was routinely issued without
lth of miners, then I believe it

can justify the Order

Other I

• Violations of 103(k)
• Section 111 implicat

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Issues

tions