FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949
July 25, 2020
SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR on behalf of WILLIAM R. WHITMORE,
YAGER MATERIALS CORP.,
Docket No. KENT 2020-0116-DM
Mine: Riverside Stone Mine
Mine ID: 15-00081
Docket No. KENT 2020-0117-DM
Mine: Riverside Stone Mine
Mine ID: 15-18549
ORDER ON RESPONDENT’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
Respondent, Yager Materials Corp., through Counsel, filed, on July 21, 2020, a Motion to Compel Production of Documents. (“Motion”). The Court held a conference call with the parties on July 23, 2020 to discuss the Motion. During that call the also Court issued its rulings on the subjects identified in the Motion. This Order memorializes the Court’s rulings.
The Motion requested the following documents: Copies of the statement or memorandum of interview of any interview of Mr. Whitmore; Copies of the statements or memoranda of interviews of any management witness; Copies of all exhibits the Secretary intends to introduce at hearing on the Secretary’s Application for Temporary Reinstatement in this matter; Copies of any documents Mr. Fugate relied upon in preparing his Declaration. Motion at 2-3.
The Secretary responded to the Motion via an email, objecting to it on the basis that it ran afoul of several of the Commission’s Procedural Rules, including claims that the response to the Motion would not be due until the day of the temporary reinstatement hearing or later and that discovery was not expressly contemplated for a hearing on a temporary reinstatement application. The full text of the Secretary’s email response is footnoted here.
At the outset of the July 23, 2020 conference call with the parties to discuss the Motion, the Court informed that it considered the Secretary’s Counsel’s procedural objections to have been waived by virtue of his email response.
The Court’s rulings on the Motion were also informed by the Commission’s procedural rules on the subject of Temporary reinstatement Proceedings at 29 CFR 2700.45. It is noted that subsection (d) of that section provides that “[t]he scope of a hearing on an application for temporary reinstatement is limited to a determination as to whether the miner's complaint was frivolously brought. The burden of proof shall be upon the Secretary to establish that the complaint was not frivolously brought. In support of his application for temporary reinstatement, the Secretary may limit his presentation to the testimony of the complainant. The respondent shall have an opportunity to cross-examine any witnesses called by the Secretary and may present testimony and documentary evidence in support of its position that the complaint was frivolously brought.” Id. (emphasis added). In that regard, the Court notes that there is no reference to the MSHA investigator’s declaration. Rather, the focus is upon the testimony of the complainant and that the Secretary’s presentation can rely solely upon that.
1. The Respondent’s request for copies of the statement or memorandum of interview of any interview of Mr. Whitmore
Apart from the Court’s ruling that the Secretary had waived issues regarding the due date for a response to the motion, the Court informed the parties that it did not view the Respondent’s request for copies of the statement or memorandum of interview of any interview of Mr. Whitmore to be properly denominated as “discovery,” at least in the classic sense of that term. The Court explained its reasoning for this determination, noting that all the Respondent had, and all that the Court had as well, was the Complainant’s signed, but unfairly uninformative May 18, 2020, “Discrimination Report.” That document contained a typed “Summary of Discriminatory Action,” which stated in its entirety the following:
I was suspended on April 23, 2020, then discharged on April 29, 2020, from my job as the Maintenance Manager at Riverside Stone underground and surface mines because of numerous protected safety activities that I engaged in.
Discrimination Report, May 18, 2020.
The “Discrimination Complaint” document itself was no more enlightening. At its heart, it informed of the Complainant’s name, rate of pay, job title and the address of the Respondent’s mine and the names of four individuals employed by the Respondent alleged to be responsible for the discriminatory action. Discrimination Complaint, May 19, 2020.
Importantly, the Discrimination Complaint added nothing, that is to say it provided no additional information whatsoever regarding any particulars about the alleged protective activity.
It was only through the vehicle of the Secretary’s “Declaration of Freddie Fugate,” identified as a “senior special investigator” employed by MSHA, that some particulars about the nature of the Complainant’s discrimination complaint were first revealed. Of course, Mr. Fugate has no more first-hand knowledge about the Complainant’s allegations than the Court.
Accordingly, the Fugate Declaration serves as a mere conduit, recounting the allegations made by the Complainant and nothing more than that. Thus, the Court does not consider it far-fetched to analogize the Fugate Declaration as akin to an individual relating a story over a fence to a neighbor. And it is that serious shortcoming that formed the basis of the Court’s problem with the inadequacy of the declaration. The story may be an accurate retelling, or it may not, but for purposes of defending a discrimination complaint under due process, a respondent has a right to more. The Respondent is entitled to the Complainant’s first-hand accounting of the basis for his discrimination complaint. Fundamental fairness demands this. See, e.g., Sec. v. Cumberland Coal Resources, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the “concepts of fundamental fairness [ ] require that every litigant receive adequate notice of charges made against it.” Id. at 449.
Accordingly, during the conference call, the Court ordered that copies of the statement or memorandum of interview of any interview of Mr. Whitmore be provided.
2. Copies of the statements or memoranda of interviews of any management witness
The Court ruled during the conference call that this request was denied. The basis for that ruling was that such statements, if they exist, are not necessary in the context of the Secretary’s burden in an application for temporary reinstatement. If the Secretary did intend to introduce such documents, the Court’s order for the parties’ prehearing exchange would cover those. As an aside, the Court opined that it would be highly unusual for any management witness to have made a statement without receiving a copy of it.
3. Copies of all exhibits the Secretary intends to introduce at hearing on the Secretary’s Application for Temporary Reinstatement in this matter
This request, as alluded to above, was covered by the Court’s prehearing exchange order.
4. Copies of any documents Mr. Fugate relied upon in preparing his Declaration.
As the Court ruled that Mr. Fugate’s declaration could not serve as a substitute for copies of the statement or memorandum of interview of any interview of Mr. Whitmore, this request was denied. The Court considered that such other documents, if they exist, would more appropriately be the subject for possible discovery in a full hearing on the merits in the complainant’s discrimination complaint, but not in the context of a temporary reinstatement application. It is noted that such a request could run afoul of attorney-client or deliberative process claims.
Accordingly, having ruled on the four aspects of the Respondent’s Motion, this matter has been disposed of and will now proceed to the hearing on the application for temporary reinstatement set to commence on Wednesday, July 29, 2020 at 9:00 a.m. EDT.
/s/ William B. Moran
William B. Moran
Administrative Law Judge
Thomas J. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Department of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219 firstname.lastname@example.org
Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 email@example.com
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Arthur M. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222
 The Secretary’s Attorney stated in his email that he “request[ed] oral argument on this matter [asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder: As the parties are aware, by Rule, a response to the Respondent’s Motion is not due for eight days from service, which would be July 29, 2020, the day of the hearing. 29 C.F.R. 2700.10(d). Any discovery served under the Rules would not be due for 25 days from service. 29 C.F.R. 2700.57(c). If we call what [Respondent’s Attorney] served on July 17, 2020 “Document Requests,” the responses from the Secretary would not be due until August 11, 2020. The Rules also clearly state that discovery must be completed at least 20 days before a hearing. 29 C.F.R. 2700.56(e). We are within 20 days of hearing and were when the requests were served. Even [the Respondent’s attorney’s] arbitrary deadline of this Friday [July 24, 2020] (after he conceded his initial arbitrary deadline of tomorrow) has not passed for the Secretary’s responses. So, to have any discussion of what the Rules permit, we must ignore the plain language of the foregoing rules, and the deadline that the Respondent, itself, set. The Respondent and the Secretary agree on one thing: the Commission Rules do not expressly contemplate discovery commencing after a request for a hearing on an Application for Temporary Reinstatement: (d) Initiation of discovery. Discovery may be initiated after an answer to a notice of contest, an answer to a petition for assessment of penalty, or an answer to a complaint under section 105(c) or 111 of the Act has been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R. 2700.56(d). Absent from this list is the request for a Temporary Reinstatement hearing. This absence is intentional in light of the unique scope of such a hearing and the speed at which it must be completed. If the rules contemplated discovery prior to a Temporary Reinstatement hearing, they would necessarily have set forth things like the scope of such discovery in light of the limited scope of the hearing, alternate time frames for service of requests and responses, and a blanket exemption from Rule 2700.56(e). Initial disclosures, rather than discovery, would be more appropriate given the tight deadlines between the request for a hearing and the hearing itself, but the Rules contain no such provisions. As I explained to [the Respondent’s Attorney]: he wants discovery, the complainant (I am sure) wants discovery, and the Secretary wants discovery. Why does the Respondent get discovery and not the Secretary or the Complainant? The time frame for a Temporary Reinstatement hearing does not allow the parties the opportunity to serve discovery and to lodge good-faith objections to such requests. As we have here, we are essentially preparing for the hearing at the same time we are having a discovery dispute. If all of the parties, as the Respondent argues, are allow[ed] to serve discovery, the week before the hearing will be filled with constant expedited discovery battles for which the Rules set forth no time frames. This current issue only came to a head because the Secretary’s counsel affirmatively stated that discovery was not permitted. Had the undersigned waited until this Friday to do so, the issue would not be before the Tribunal until three days before the hearing. Had the Secretary served discovery responses with objections, the same problem would have arisen. Finally, since the Rules set forth no limit on discovery for [a]Temporary Reinstatement proceeding, who is to decide the scope of what is permissible for such requests and how many requests can be served? There is simply no guidance available on what the permissible scope of discovery is in light of the ‘not frivolously brought’ standard. It is inconsistent that a party would be burdened with a broader scope of discovery than its burden of proof at an expedited hearing. The Rules contain no guidance on these issues because discovery was not completed, and was specifically excluded, for Temporary Reinstatement hearings.” July 21, 2020 email from the Secretary to the Court.
 As explained infra with regard to the Respondent’s request for copies of the statement or memorandum of interview of any interview of Mr. Whitmore, the Court considered the Respondent’s discovery request to actually be a request for a complete statement of the Complaint from the Complainant Whitmore.
 Four individuals are named in Complaint itself as those responsible for the discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman, but there is no information tying those individuals to Whitmore’s Discrimination Report.
 The Court had previously ordered that the parties conduct their prehearing exchange by Friday, July 24, 2020. The parties submitted those exchanges pursuant to that order.