FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

February 29, 2012

ORDER DENYING RECONSIDERATION

ORDER DENYING RESPONDENT’S MOTION FOR CERTIFICATION OF 12/21/2011 INTERLOCUTORY RULING

            This case is before me upon the Secretary’s Petition for the Assessment of Civil Penalty (“Petition”) pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815 (2010), whereby Spiro contests the proposed civil penalty and underlying violation issued to it at its Calder Mine. On December 22, 2011, I issued my Order Denying Respondent’s Motions to Dismiss (“Denial Order”), and I subsequently issued my Prehearing Order on December 23, 2011.

            After the issuance of these orders, Spiro filed its Motion for Consideration with attached Letter-Motion Seeking Reassurance or Recusal in MSHA v. Spiro Mining, LLC, CENT 2011-1193 (collectively, “Motion for Consideration”). Spiro seeks my recusal from this matter, or alternatively, reconsideration of the Denial Order and reassurance of my impartiality. (Mot. Cons. 3.) The Secretary responded to Spiro’s Motion for Consideration, and Spiro filed a reply to the Secretary’s response.

            Additionally, Spiro filed a Motion for Certification of 12/22/2011 Interlocutory Ruling (“Motion for Certification”) seeking my certification for interlocutory review by the Commission of several issues related to the Denial Order. The Secretary responded to Spiro’s Motion for Certification, and Spiro filed a reply to the Secretary’s response.

            As set forth below, both of Spiro’s motions are hereby DENIED.

I. Respondent’s Motion for Consideration

            Spiro seeks reconsideration of my Denial Order, contending that I improperly dismissed its arguments (1) that the Secretary lacks subject matter jurisdiction in this case and (2) that the Secretary has failed to state a claim. (Mot. Cons. 2–3.) My Denial Order construed Spiro’s requests as a motion for summary decision under Commission Rule 67, as the Commission’s Rules do not provide a procedure analogous to Federal Rule of Civil Procedure 12. Spiro Mining, LLC, 34 FMSHRC __, slip op. at 1–3, No. CENT 2011-1193 (Dec. 22, 2011) (ALJ).

            The Commission “‘has long recognized that [] ‘summary decision is an extraordinary procedure,’’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which ‘the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’’” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)). In reviewing the record on summary judgment, the Court must evaluate the evidence in “‘the light most favorable to . . . the party opposing the motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “‘drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

A.        Jurisdiction

            My Denial Order interpreted Spiro’s argument that “FMSHRC/MSHA and Mine Act jurisdiction lacks in cases, such as this, where at the citation’s issuance Calder Mine’s initial ‘operations’ had not ever yet ‘produced products’ or ‘affected MSHA/interstate commerce’” (Mots. Dismiss 1) as contesting whether the Calder Mine is a “mine” under the Mine Act, Spiro, 34 FMSHRC __, slip op. at 2–3. In its Motion for Consideration, Spiro now clarifies that it “never argued its business should not be considered . . . a ‘coal or other mine’ per Section 3 of the Mine Act.” (Mot. Cons. 2.) Rather, Spiro argues that the Secretary lacks jurisdiction because its Calder Mine has not affected interstate commerce. (Id.)

            Section 4 of the Mine Act states: “Each coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator of such mine, and every miner in such mine shall be subject to the provisions of this chapter.” 30 U.S.C. § 803. It is well-established that the language of Section 4 demonstrates Congress’s intent to exercise its full authority under the Commerce Clause to regulate the mining industry. D.A.S. Sand & Gravel, Inc. v. Chao, 386 F.3d 460, 462–63 (2d Cir. 2004), cert. denied, 544 U.S. 1048 (2005); United States v. Lake, 985 F.2d 265, 267–68 (6th Cir. 1993); Marshall v. Kraynak, 604 F.2d 231, 232 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980). Accordingly, the Mine Act has been held to apply to operations that sell their products even on a purely intrastate basis. D.A.S. Sand & Gravel, 386 F.3d at 463–64. Such operations may engage in activity affecting interstate commerce through purchasing mining supplies from a local dealer or consuming commercially produced electricity. Lake, 985 F.2d at 269.

            Spiro’s Motion for Consideration contends that “a good faith argument may still exist to be made and heard in these regards for an extension, modification, or reversal of existing law.” (Mot. Cons. 2.) Spiro has yet to reveal the details of its good faith argument. Other than referencing the Mine Act, Spiro does not offer any legal citations or concrete factual support for its position, such as affidavits or other documentation. Consequently, Spiro has failed to demonstrate the absence of a genuine issue of material fact on the question of jurisdiction. Nonetheless, Spiro is welcome to introduce any legal arguments or evidence supporting its position at a hearing on this matter.

B.        Secretary’s Statement of a Claim

            Spiro also contends that my Denial Order improperly concludes that the Secretary has stated a proper claim. (Mot. Cons. 2–3.) As noted above, Spiro’s motion to dismiss for failure to state a claim was treated as a motion for summary decision. The Secretary’s citation narrative states verbatim:

While I was issuing a citation to the Contractor for working men in the face of an order, Jon Marusich, drove up in his pickup and bumped me in the hip with his left front headlight. This was witnessed by two Spiro Mining, LLC, employees. Also another MSHA Inspector witnessed this act. This incident happened at the north end of the mining area on the north side of the sediment pond.

(Petition, Ex. A.) My Denial Order summarized the content of MSHA’s Program Policy Manual, as well as related Commission precedent, which unambiguously emphasizes the seriousness and illegality of interfering with an MSHA inspector. Spiro, 34 FMSHRC __, slip op. at 3–4. The Order concluded that based on the record of this case, the Secretary had alleged interference with her duty to inspect the Nation’s mines. Id. at 4. Because Spiro failed to demonstrate the absence of a justiciable issue of fact, Spiro’s request for dismissal was denied. Id.

            As with its jurisdictional argument, Spiro’s Motion for Consideration does not cite legal authorities or offer factual information supporting its request for reconsideration. Rather, Spiro explains that “the way the Order infers and determines that an allegation of potential interference exists when that was not, but perhaps should have been, pled is of most concern to my client.” (Mot. Cons. 2 (emphasis in original).) Spiro argues that “a four corners reading of MSHA’s pleading and citation can support many diverse scenarios” and creatively suggests a few non-violative conclusions that could be drawn from the citation narrative. (Id.)

            Here, Spiro overlooks the fundamental rule that in deciding any motion for summary decision this Court must evaluate the evidence, and any inferences that may be drawn from that evidence, in the light most favorable to the non-moving party. Unfortunately, Spiro offers only mere assertions in support of its position. Therefore, in evaluating the record of this case in the light most favorable to the Secretary, I must conclude that Spiro has not demonstrated an absence of a genuine issue of fact with regard to this citation. Of course, my conclusion does not deny Spiro the opportunity to prove its side of this case. Spiro may certainly introduce any legal arguments or evidence supporting its position at a hearing on this matter.

C.        Recusal

            The final issue raised by Spiro’s Motion for Consideration is my impartiality. Spiro takes issue with the Denial Order’s rejection of its arguments as “meritless” and my citation to Commission Rule 80 governing the standards of conduct in Commission proceedings. (Mot. Cons. 1–3.) Spiro also objects to my Denial Order’s citation to the procedural history of three dockets pending before Judge Andrews. (Id. at 1.) Spiro further suggests that the Denial Order’s analysis of the Secretary’s claim reveals judicial bias: “[T]he way the Order infers and determines that an allegation of potential interference exists . . . may indicate potential judicial bias existing in this case to predispose the tribunal’s rulings towards the government’s perspectives and away from fair considerations of Respondent’s positions that deserve equal, even-handed treatment.” (Mot. Cons. 2.)

            As for the role of the Administrative Law Judge, the Commission has stated:

[A] judge is an active participant in the adjudicatory process and has a duty to conduct proceedings in an orderly manner so as to elicit the truth and obtain a just result. Among a judge’s specific obligations in this regard is a duty to admonish counsel, when necessary, during the course of proceedings . . . .

Sec’y of Labor ex rel. Clarke v. T.P. Mining, Inc., 7 FMSHRC 989, 993 (July 1985) (citations omitted). The Commission has reviewed the question of whether an Administrative Law Judge properly decided not to recuse himself from a case in the face of accusations of bias for rebuking the Respondent’s counsel during the trial in a prior, unrelated proceeding. Medusa Cement Co., 20 FMSHRC 144 (Feb. 1998). In Medusa Cement, the Commission found guidance in the Supreme Court’s decision Liteky v. United States, 510 U.S. 540 (1994). 20 FMSHRC at 148–49. In Liteky, the Court stated:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make a fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.

510 U.S. at 555–56 (citation omitted). 

             As noted above, my Denial Order summarized and applied the law pertaining to Spiro’s arguments. Noting the dearth of legal or factual support in Spiro’s pleadings, the Denial Order concluded that Spiro’s arguments lacked merit. Spiro may certainly ask the Commission to review this decision. However, a run-of-the-mill denial of a request for summary decision is not a proper ground for recusal.

            My Denial Order also noted the Secretary’s citation to Judge Andrews’s Order Denying Respondent’s Motions to Dismiss for Failure to State a Claim, for Default Order and Dismissal Order, to Dismiss Multi-Defaulted Civil Penalty Petition and for “Judicial” Notice of Chronic Pattern of Lateness and Request for Dismissal (“Multi-Denial Order”) in CENT 2011-554, CENT 2011-563, and CENT 2011-610. Spiro, 34 FMSHRC __, slip op. at 4 n.1. My Denial Order further noted the Secretary’s citations to Judge Andrews’s denial of Spiro’s request for certification of interlocutory review and the Commission’s denials of Spiro’s Petition for Interlocutory Review and Petition for Reconsideration. Id. In the Motion for Consideration before me, Spiro explains that the decisions in Judge Andrews’s case following the Multi-Denial Order involved an issue different from the ones in this case. (Mot. Cons. 1.)

            With over 15,000 cases pending in the Commission’s Office of Administrative Law Judges and approximately 500 cases on my docket alone, my Denial Order sought to encourage Spiro to conserve the limited sources of this Commission by substantiating its positions with factual submissions and the discussion of relevant legal authorities. Unfortunately, the six pleadings submitted by the parties since the issuance of my Denial Order continue to raise a lot of sound and fury signifying nothing. Indeed, Spiro fails to advance its cause by not producing any evidence that would support the actions it wants this Court to take. Rather, Spiro attempts to cast doubt on the Court’s impartiality instead of accepting that it failed to meet its burden to prevail in its pretrial motions. This Court will not shirk from its responsibility to follow the law or to educate counsel on the law. Moreover, admonishing counsel not to waste this Court’s time with hollow arguments is a proper function of the Administrative Law Judge and not a reason for recusal.

            WHEREFORE, based on the foregoing, Spiro’s Motion for Consideration is DENIED.

II. Respondent’s Motion for Certification

            Spiro seeks certification for interlocutory review of the denial of its Motions to Dismiss, as well as the Commission’s review of its concerns of judicial bias. (Mot. for Certification.) Commission Rule 76 permits the Commission’s discretionary review of interlocutory Administrative Law Judge decisions. 29 C.F.R. § 2700.76. Review may be granted where “[t]he Judge has certified, upon his own motion or the motion of a party, that his interlocutory ruling involves a controlling question of law and that in his opinion immediate review will materially advance the final disposition of the proceeding.” Id. § 2700.76(a)(1)(i).

            The issues raised by Spiro involve controlling questions of law, as a decision in its favor may result in the dismissal of this case. However, other than general citations to the Mine Act and the Supreme Court decision United States v. Lopez, 514 U.S. 549 (1995), which did not concern the Mine Act, Spiro offers no concrete factual or legal support revealing the substance of its arguments. Indeed, as noted supra p. 2, the Supreme Court has twice denied certiorari in appeals from circuit court decisions passing upon the breadth of the Secretary’s subject matter jurisdiction under the Mine Act and the Commerce Clause. With no cognizable evidence demonstrating that the Commission would reach a different decision than the Denial Order, Spiro has failed to show that immediate review by the Commission would advance the final disposition of this proceeding.

            WHEREFORE, based on the foregoing, Spiro’s Motion for Certification is DENIED.

                                                                        /s/ Alan G. Paez

                                                                        Alan G. Paez

                                                                        Administrative Law Judge

Distribution:

Matthew P. Sallusti, Esq., U.S. Department of Labor, Office of the Solicitor, 525 South Griffin Street, Suite 501, Dallas, TX 75202

Tony Joe Huffman, Esq., T.J. Huffman, Attorney at Law, P.O. Box 453, Spiro, OK 74959

/jts