FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001

September 17, 2010

ORDER DENYING RESPONDENT’S DISPOSITIVE MOTION ON FINDINGS OF FACT AND CONCLUSIONS OF LAW PREVIOUSLY DECIDED

ORDER DENYING RESPONDENT’S MOTION TO EXCLUDE

WITNESS MICHAEL GAUNA

This proceeding is brought by the Secretary of Labor against Respondent, Blue Diamond Coal Company, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 815(d), and 29 C.F.R. §§ 2700.25–.31. On July 23, 2010, Respondent filed its Dispositive Motion on Findings of Fact and Conclusions of Law Previously Decided (“Motion for Collateral Estoppel”). Respondent filed its prehearing report on August 3. Pursuant to a request by the Secretary, her prehearing report deadline was extended to August 11 due to counsel for the Secretary being out of town for several hearings. Due to a death in my family, I held a teleconference with counsel for all of the parties on August 9, 2010, to reschedule this matter’s hearing date for October 26–29, 2010. Given counsel for the Secretary’s hearing schedule coupled with the new October hearing date, I also permitted the Secretary to file both her prehearing report and response to Respondent’s motion by August 17, 2010. The Secretary filed her response on August 11 and her prehearing report on August 17. Respondent filed the Motion to Exclude Witness Michael Gauna (“Motion to Exclude Witness”) on August 23, 2010. The Secretary responded to the Motion to Exclude Witness on September 2, 2010.

I. MOTION FOR COLLATERAL ESTOPPEL

Respondent argues that collateral estoppel bars relitigation of whether it failed to maintain 9,000 cubic feet per minute (“CFM”) at the last open crosscut (“LOCC”). (Resp’t Mot. for Collateral Estoppel 3–4.) That issue underlies Order No. 4220150, which is in dispute in this case. In making its argument, Respondent relies on Administrative Law Judge Michael E. Zielinski’s opinion in Blue Diamond Coal Co. (Blue Diamond I), 32 FMSHRC 581 (May 2010) (ALJ). Respondent stresses that Blue Diamond I considered whether the violation underlying Order No. 7521769 was highly likely to result in a fatal injury because the absence of the permanent stopping resulted in the failure to maintain 9,000 CFM at the LOCC. (Resp’t Mot. for Collateral Estoppel 2.) Respondent observed that Judge Zielinski made findings of fact and conclusions of law regarding the amount of air at the LOCC. (Id. at 2–3.) Because Order No. 4220150 in this case alleges the failure to maintain 9,000 CFM at the LOCC, Respondent argues it should not have to relitigate this issue. (Id. at 3–4.) Respondent further asserts that the remaining elements of collateral estoppel are satisfied. (Id. at 3.)

The Secretary responds that the issues presented in Blue Diamond I and in the present matter are not the same, as they involve different legal standards. (Sec’y Resp. to Mot. for Collateral Estoppel 4–5.) The Secretary emphasizes that Blue Diamond I evaluated Respondent’s missing and improperly constructed stoppings at several locations in the mine, whereas the underlying violation in this case concerns the ventilation at the face of the mine. (Id. at 5.) The Secretary also argues that Judge Zielinski purposefully chose not to resolve the facts at issue in Order No. 4220150. (Id. at 5–6.)

In assessing an assertion of collateral estoppel, the Commission has stated that the “[i]dentity of issue is a fundamental element that must be satisfied before collateral estoppel may be applied.” Bethenergy Mines, Inc., 14 FMSHRC 17, 26 (Jan. 1992) (citing Continental Can Co., U.S.A. v. Marshall, 603 F.2d 590, 594 (7th Cir. 1979)). In the context of issue preclusion, “‘[i]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits be the same.’” 18 Charles Alan Wright et al., Federal Practice and Procedure § 4417, at 449 (2d ed. 2002) (quoting Peterson v. Clark Leasing Corp., 451 F.2d 1291, 1292 (9th Cir. 1971)).

To apply collateral estoppel, the issues in the previous and the present actions must be identical beyond reasonable doubt. In 2001, the Commission assessed whether collateral estoppel may apply to an order specifically alleging a failure to identify kettle bottoms by location based on a nearly contemporaneous citation for roof defects involving multiple conditions, such as kettle bottoms. Eagle Energy, Inc., 23 FMSHRC 1107, 1110–11, 1115 (Oct. 2001). The Commission reasoned that “it is apparent from comparing the uncontested citation and the contested orders . . . that there is a lack of identity of issues.” Id. at 1115.

Citing only general points of law regarding collateral estoppel, Respondent has not demonstrated the required identity of issues. Here, the previous order charged Respondent with failing to maintain permanent stoppings under 30 C.F.R. § 75.333(b)(2). The present order alleges that Respondent breached its ventilation plan under § 75.370(a)(1). Judge Zielinski discussed the air flow at the LOCC only insofar as it related to whether No. 7521760 constituted an S&S violation resulting from an unwarrantable failure to comply with § 75.333(b)(2). Blue Diamond I, 32 FMSHRC at 583–91. Judge Zielinski did not evaluate the breach of the ventilation plan alleged in the order at issue in this case. Id. at 584. He stated that “[Order No. 4220150] is not at issue in this proceeding.” Id. Instead, he discussed the airflow at the LOCC “in terms of the missing stopping” at issue in Order No. 7521760. Id. at 5. Because these two orders involve incongruent factual allegations and different legal standards, Respondent’s motion must be denied in accordance with Eagle Energy. Indeed, taken to its logical conclusion, to rule to the contrary would suggest that the Secretary has the broad power to invoke collateral estoppel against operators based on past related citations and orders.