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
MARSHALL J. JUSTICE,
Complainant,
v.
GATEWAY EAGLE COAL CO.,
Respondent.
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DISCRIMINATION PROCEEDING:
Docket No. WEVA 2014-559-D
MSHA Case No. PINE-CD 2014-01
Mine: Farley Eagle Mine
Mine ID: 46-01537
REQUEST FOR ENFORCEMENT OF SUBPOENA
Pursuant to Commission Rule 60(e), 29 C.F.R., 2700.60(e), the undersigned requests the Commission’s General Counsel to undertake proceedings in the appropriate district court of the United States to enforce the subpoena issued by undersigned on July 11, 2014 (Exh. A). The undersigned further requests enforcement be limited to the Memoranda of Interview of Mine Safety and Health Administration Inspectors Steve Hall and Robert Puckett and related documents. The undersigned’s request is made pursuant to the undersigned granting the Contestant’s Renewed Motion to Enforce Subpoena (August 28, 2014) (Exh. C). Order Granting Complainant’s Renewed Motion to Enforce Subpoena (August 29, 2014) (Exh. B). The Contestant’s renewed motion was filed following his receipt of the Secretary’s Response to Corrected Order Requiring the Secretary to Produce Documents for In Camera Review (August 28, 2014) (Exh. D). In the response, the Secretary declined to produce documents as ordered by the undersigned in his Corrected Order Requiring the Secretary to Produce Documents for In Camera Review (August 22, 2014) (Exh. E). The Corrected Order was issued upon consideration of the Complainant’s Motion to Enforce Subpoena (August 11, 2014) (Exh. F). As explained in the Order Granting Complainant’s Renewed Motion to Enforce Subpoena (Exh. B), it is the belief of the undersigned that enforcement of the subpoena is necessary to effectuate the Complainant’s right to a full and fair hearing under Section 105(c)(3) of the Mine Act. 30 U.S.C. §115(c)(3).
/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution (1st Class U.S. Mail):
Thomas S. Kleeh, Esq., Steptoe & Johnson, PLLC, Chase Tower, Eighth Floor, P.O. Box 1588, Charleston, West Virginia 25326-1588
Marshall J. Justice, 255 3rd Street W, Madison, West Virginia 25130
Samuel B. Petsonk, 1031 Quarries Street, Suite 200, Charleston, West Virginia 25301
Jason Grover, Esq.; Derek Baxter, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2247
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
MARSHALL J. JUSTICE,
Complainant,
v.
GATEWAY EAGLE COAL CO.,
Respondent.
:
:
:
:
:
:
:
:
:
:
DISCRIMINATION PROCEEDING:
Docket No. WEVA 2014-559-D
MSHA Case No. PINE-CD 2014-01
Mine: Farley Eagle Mine
Mine ID: 46-01537
ORDER GRANTING RENEWED MOTION TO ENFORCE SUBPOENA
AND
ORDER DENYING MOTION FOR LIMITED CONTINUANCE
On August 22, 2014, the undersigned ordered the Secretary of Labor (Secretary) to
produce for the undersigned’s in camera review unredacted copies of the complete Memoranda
of Interview (MOI) of Mine Safety and Health Administration Inspectors Steve Hall and Robert
Pluckett and all related documents. Corrected Order Requiring the Secretary To Produce
Documents for In Camera Review and Corrected Order Deferring Ruling On Complainant’s
Motion to Enforce Subpoena 6 (August 22, 2104) (“Corrected Order”). The undersigned also
ordered the Secretary to submit a statement detailing the privileges, if any, he asserts apply to the
documents and to specifically identify the parts of the documents to which the privileges apply.
Id. The order is the result of counsel for the Complainant’s Motion to Enforce Subpoena, filed
with the Commission on August 11, 2014, and conferenced telephone discussions with the
parties and counsel for the Secretary during which counsel for the Complainant considerably
narrowed the scope of the subpoena by eliminating a witness and restricting the materials he is
seeking. The undersigned concluded that under the subpoena as narrowed, counsel for the
Complainant is seeking relevant, discoverable material. Corrected Order 5. The undersigned also
concluded that in order to weigh the validity of counsel for the Secretary’s privilege claims, if
any, in camera review by the undersigned is required. Therefore, the undersigned deemed ruling
on counsel for the Complainant’s motion to enforce the subpoena to be premature, and the
undersigned defer ruling on the motion until after the Secretary responded to the undersigned‘s
order of in camera review. Id. 6. On August 27, 2014, the Secretary responded by declining to
comply with the undersigned’s order.
Sec’s Response To Corrected Ord. Requiring the Sec. To
Produce Doc’s. for In Camera Review (“Sec’s Response”). The Secretary maintains the proper
venue for resolving the discovery issue is not the Commission, but rather is the federal district
court where the Complainant must press his claims under FOIA and the Privacy Act. Sec’s Resp.
5.
On August 28, 2014, counsel for the Complainant renewed his motion to enforce the subpoena and asked for a limited continuance while his right to access the requested material is resolved. Complt’s Renewed Mot. 2.
RULING
I. The Subpoena
The undersigned will grant the Complaint’s renewed motion as it pertains to enforcement
of the subpoena. Clearly, the Secretary and the undersigned are at loggerheads. They have
reached a point – albeit respectfully – where their views on the question of the Secretary’s duty to
comply with the subpoena are so fundamentally at odds, the only way they can be resolved is by
the Commission dropping the matter or by it seeking enforcement of the subpoena in federal
district court. As the undersigned stated in his Corrected Order, nothing less than the right of a
section 105(c)(3) complainant to a fair and expeditious hearing on his or her complaint is at
stake. Order 5-6. If the Secretary’s view prevails, such a complainant when seeking relevant,
discoverable material resulting from the Secretary’s investigation will be relegated to the long
and arduous process of obtaining the information via a FOIA request, a request that almost
certainly will be followed, as it has been in this case, by a protracted proceeding in federal district
court. This is not how Congress envisioned section 105(c)(3) to work. Congress intended section
105(c) to provided an expeditions avenue for relief to miners who suffered discrimination, and it
delegated to the Secretary the duty to rigorously and promptly enforce miners’ rights in this
regard. Implicitly recognizing that the Secretary is not infallible, Congress further provided that
when, after investigating the matter, the Secretary concluded discrimination had not occurred, a
miner might proceed on his or her own behalf under section 105(c)(3). While not a party to a
section 105(c)(3) proceeding, the Secretary remains, as Judge Manning put it, “inexorably tied”
to the case. Hazel Olson v. Triton Coal Co., 25 FMSHRC 649, 654 (Oct. 2003) (Order Requiring
The Secretary of Labor to Produce Documents for In Camera Review). This is because the
Secretary’s investigation of the miner’s complaint is a necessary predicate to a section 105(c)(3)
proceeding, and because should the miner prevail on his own, the Secretary must initiate a civil
penalty against the respondent company to deter future discriminatory conduct. Thus, the
Secretary has an interest in, and a duty to effectuate all of, section 105(c), not just conveniently
selected parts. The undersigned regretfully concludes that the Secretary, with his FOIA and
Privacy Act arguments and his refusal to comply with the undersigned’s order, is at best myopic
to both his section 105(c) duties and to the Complaint’s rights under the Mine Act.
To recall the
Secretary to his Mine Act duties and to effectuate the Complt’s Mine Act rights, the undersigned
believes he has no choice but to grant the Complainant’s renewed motion and to request the
Commission’s General Counsel to initiate proceedings in the appropriate district court of the
United States for enforcement of the subject subpoena. 29 C.F.R. § 2700.60(e).
II. The Continuance
Complainant requests a “limited continuance.”
Complt’s Renewed Mot. 2. Complainant
cites a “lack of clarity around the unresolved dispute over the subpoena” and “ongoing, good
faith settlement discussions.” Id. In his Corrected Order the undersigned anticipated such a
request and advised the parties he would not continue the matter. He noted that the proceeding
had been continued once previously and that waiting for the subpoena dispute to be resolved will
likely be akin to Waiting for Godot. Corrected Order 3. The undersigned stated that rather than
close the record at the end of the hearing, he will almost surely leave it open until the dispute is
finally decided or until otherwise advised by the parties, at which point, with the assistance of the
parties, he will determine what other action, if any, is necessary. Id. 3-4.
The undersigned also notes that the parties have been engaged in settlement discussions for several months. The discussions have yet to yield an agreement. It seems unlikely that additional time will produce a different result.
For these reasons, the Complainant’s request for a limited continuance is DENIED. The hearing will convene as scheduled at 8:30 a.m., on Wednesday, September 3, in Madison, West Virginia.
/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution (1st Class U.S. Mail):
Thomas S. Kleeh, Esq., Steptoe & Johnson, PLLC, Chase Tower, Eighth Floor, P.O. Box 1588, Charleston, West Virginia 25326-1588
Marshall J. Justice, 255 3rd Street W, Madison, West Virginia 25130
Samuel B. Petsonk, 1031 Quarries Street, Suite 200, Charleston, West Virginia 25301
Jason Grover, Esq.; Derek Baxter, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2247