FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

July 18, 2013

 ORDER DENYING MOTION TO AMEND CITATION AND PETITION

AND TO PLEAD IN THE ALTERNATIVE

ORDER EXTENDING TIME FOR DISCOVERY AND DENYING MOTION TO QUASH

ORDER SETTING DATES AND TIMES FOR RESPONSES

Before: Judge Barbour  

            In these consolidated contest and civil penalty proceedings, the Secretary, inter alia, petitions for the assessment of a civil penalty of $70,000 for an alleged violation of30 C.F.R. § 56.15005 as set forth in Citation No. 8605605 (Docket No. WEST 2012-891). The citation, which is dated October 25, 2011, was issued pursuant to section 104(d)(1) of the Mine Act. 30 U.S.C. § 814(d)(1). It charges that a foreman was observed working on top of the bed of a truck without wearing fall protection. Section 56.15005 in pertinent part states that, “Safety belts and lines shall be worn when persons work where there is danger of falling[.]” In answering the Secretary’s petition the Respondent denies it violated the standard. Answer 2. It further asserts that the findings the inspector made when issuing the citation (findings related to the gravity of the alleged violation, the negligence of the company, the unwarrantable failure of the company and the S&S nature of the alleged violation) are “incorrect as a matter of law and fact.” Id. In addition, the company argues that the proposed penalty is “not substantially justified.” Id.

 I.

MOTION TO AMEND CITATION AND PETITION IN THE ALTERNATIVE

            The Secretary moves to amend the citation and the civil penalty petition to assert that the company also violated 30 C.F.R. § 56.11027, a standard requiring, “Scaffolds and working platforms [to] be of substantial construction and provided with handrails and maintained in good condition.” The Secretary states that, “Respondent will not be prejudiced by the granting of this motion insofar as the facts and circumstances giving rise to either violation are related, and the evidence the Secretary will present in this matter will be, for the most part, ‘equally relevant to both safety standards.’ ” Motion 2 (citing Gilbert Development Corp., 32 FMSHRC 185, 199-200 (Feb. 2010) (ALJ Manning)). The Respondent counters with numerous objections to the motion, including among other things, that it will indeed be prejudiced and that in any event, the motion is untimely. Company’s Response to Motion to Amend 2-4.

            The court finds no need to resolve all of the Respondent’s objections. It agrees with the Respondent that granting the motion will be prejudicial. This alone dooms the Secretary’s request. While there is no doubt, as both parties recognize, that Commission judges have the authority to grant motions to plead in the alternative in appropriate circumstances (Gilbert Development, 32 FMSHRC at 200.), such circumstances do not here exist. As an initial matter, there is a problem with the Secretary’s terminology. While the motion is titled to allow pleading in the alternative, it reads as though the Secretary is asking the court to find that the company violated both standards. “[T]he Secretary moves to amend Citation No. 8605605 and the Petition for Assessment of Penalty in Docket No. WEST 2012-891-M to allege, in the alternative, that the Respondent violated . . . [section] 56.11027 in addition to . . . [section] 56.15005.” Motion 1 (emphasis supplied). Pleading in the alternative means one or the other, not both.

            Although this semantical problem can be circumvented by reading the language of the motion as expressing the Secretary’s intent to ask the court to find a violation of section 56.11027 or a violation of section 56.15005, reading it in this way and granting the motion would prejudice the company. Unlike the case before Judge Manning, the two safety standards here at issue are not virtually identical and, despite what the Secretary asserts, evidence presented regarding both would not necessarily be equally applicable. The citation at issue describes the condition the company allegedly violated.

                                    The foreman was observed working on top of

                                    the bed of truck #2268. The foreman was not

                                    wearing fall protective gear. The foreman

                                    was about 5 feet above ground level . . . The

                                    foreman was standing at the edge of the bed of

                                    the truck. The bed was covered in pipe,

                                    tools, a garbage can, dirt, loose pipe, and

                                    debris. Sharp blasted rock and debris were

                                    on the ground under the miner’s work area.

                                    Should the miner fall it would likely expose

                                    him to serious or fatal injuries. An oral

                                    imminent danger order . . . was issued to the

                                    foreman working on the bed of the truck[.]

                                    Doug Tucker, [the] foreman[,] engaged in

                                    aggravated conduct constituting more than

                                    ordinary negligence in that he conducted an

                                    unsafe act violating a mandatory standard.

                                    Doug stated he had been trained in the use of

                                    fall protection but actively chose not to use it.

Citation No. 8605605.

            The citation clearly pertains to the foreman’s failure to use fall protection while working and in danger of falling, a charge the company has been preparing to defend. Section 56.11027, however, concerns the construction and maintenance of work platforms, including a requirement to provide such platforms with handrails. There is not one word in the citation referencing the construction, substantial or otherwise, of a work platform or the provisioning of a platform with handrails. While the truck bed conceivably could be viewed as a work platform and the alleged debris on the bed could be viewed as impairing the platform’s good condition, there has been no notice to the company to prepare against such an interpretation. If the Secretary wishes to charge the company with a violation of Section 56.11027, he should do it in the “old fashioned” way by issuing a citation and proposing a civil penalty, so that the issues are raised in a subsequent case that provides sufficient notice to the Respondent. The court will not allow the Secretary to “back door” the charge through an ill advised amendment to the existing citation and pleadings. The Secretary’s motion is DENIED. 

II.

MOTION FOR EXTENSION OF TIME FOR COMPLETION OF DISCOVERY

MOTION TO QUASH

DATES AND TIMES FOR RESPONSES

            The Secretary also moves for an extension of time to complete discovery. The motion was filed on July 9, 2013. The Secretary requests an effective extension to July 19. Motion for Extension of Time 3 n.1. Along with the motion the Secretary filed interrogatories, requests for admissions and requests for production of documents. Counsel for the Respondent advised counsel for the Secretary that she opposes the motion.

            In a July 11, 2013, electronic message to the parties the court, mindful that the cases are scheduled to be tried beginning on July 30, 2013, expressed its exasperation with this last minute, “down to the wire” discovery dispute. However, the court stated that unless counsel for the Respondent raised something unanticipated when she filed her written objections to the motion, the court would “in all likelihood . . . grant [the motion] in part and order the company to respond to the Secretary’s First Interrogatories and First Requests for Admissions by 5:00 p.m. EST, July 19, 2013.” E-mail from David Barbour, Administrative Law Judge, to counsels (July 11, 2013, 5:40 PM EST) (in lead file). On July 16, 2013, counsel for the Respondent filed her written objections to allowing discovery and she moved to quash the Secretary’s interrogatories, requests for admissions and requests for production of documents. The court has reviewed the Respondent’s objections, many of which center on the Respondent’s contention that the Secretary’s request is untimely. In the court’s view the objections do not represent “good cause” justifying a need to forego discovery. The court takes counsel for the Secretary at his word that his first discovery requests were sent to counsel for the Respondent on June 17, 2013. The court also takes counsel for the Secretary at his word that after he served the discovery requests on counsel for the Respondent, he heard nothing from counsel for the Respondent until he, counsel for the Secretary, contacted counsel for the Respondent on July 10 and she advised him on July 11 that the she would not respond because she viewed the discovery requests as untimely.

            A purpose of discovery is to allow counsels access to all relevant information prior to trial to minimize surprise at trial and to allow counsels to advise their clients as to the strengths and weaknesses of their cases. In addition, full knowledge of one another’s cases facilitates settlement. These are among the reasons why discovery is encouraged and judges are given leeway to regulate its implementation and practice. If, in a judge’s opinion, engaging in discovery is likely to facilitate revelation of the truth of the matters at issue, the judge has the authority and the duty to facilitate it. Here, while counsel for the Secretary’s discovery requests came late in the overall time line of the cases, they were not so late as to prevent counsel for the Respondent from coming forward with good faith responses. She did not do so. Rather, she waited approximately 23 days before advising counsel she viewed the requests as untimely.

            The court believes that the interest of the parties in producing a complete record, the interests of the public and the Commission in ascertaining the truth of the matters at issue and the Commission’s overall interest in encouraging full disclosure in litigated cases must prevail. Therefore, the court GRANTS the Secretary’s motion to extend the time to complete discovery and it DENIES the Respondent’s motion to quash. The court views the Secretary’s First Interrogatories and First Requests for Admissions as acceptable and necessary for full disclosure. It therefore ORDERS the company to respond to the interrogatories and requests for admissions by 5:00 p.m., EST, Monday, July 22. Any documents identified in the responses shall be delivered to counsel for the Secretary by fax or by electronic transmission at that time. Finally, as stated in the July 11 e-mail, the court views paragraph 1 of the Secretary’s Request for Production of Documents as too broad and it RULES the company need not respond to the request in paragraph 1. If, after receiving the Respondent’s responses to the Secretary’s interrogatories and requests for admissions, counsel for the Secretary identifies particular relevant documents he wishes produced, he will have until 5:00 p.m., EST, Wednesday, July 24 to request their production, and counsel for the Respondent will have until 5:00 p.m., Friday, July 26 to deliver the documents by fax or electronic transmission.      

            The parties’ prehearing reports were due on July 16, 2013, and both the Secretary’s and Respondent’s reports have been received. In view of the holdings regarding discovery, the Secretary may file an amended report by 5:00 p.m. July 26, 2013 and the Respondent may file one by that time and date as well. 

                                                            David Barbour

                                                            Administrative Law Judge

Distribution (1^st Class U.S. Mail):

Bryan Kaufman, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, Colorado 80202

Dana Svendsen, Esq.; Liane D. Hunt, Paralegal, Jackson Kelly, PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202

/sa