<DOC>
[DOCID: f:l94-72.wais]
BUCK CREEK COAL INC.
May 31, 1995
LAKE 94-72
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 31, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket Nos. LAKE 94-72, etc.
Petitioner :
:
v. : Buck Creek Mine
:
BUCK CREEK COAL INC., :
Respondent :
ORDER DENYING MOTION FOR STAY
ORDER GRANTING IN PART AND DENYING IN PART
OBJECTION TO NOTICE OF DEPOSITIONS
AND MOTION FOR PROTECTIVE ORDER
PREHEARING ORDER
On April 25, 1995, the Commission issued a decision
vacating the February 15, 1995, order continuing the stay
of all Buck Creek cases. Buck Creek Coal Inc., 17 FMSHRC
500 (April 1995). As a consequence, the Secretary, by
counsel, has filed a Motion for Stay of Civil Proceedings
and an Objection to Notice of Depositions and Motion for
Protective Order. Buck Creek opposes the Secretary's motions.
Motion for Stay
The Secretary requests the "entry of an order which stays
for sixty days all citations which have been designated by the
United States Attorney as areas involving conduct under criminal
investigation." Motion for Stay at 3.[1] For the reasons set
forth below, the request is denied.
The motion states that the Secretary has referred numerous
alleged violations of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 801 et seq., to the U.S. Attorney, who, in
turn, has initiated a review of all violations issued at the Buck
Creek Mine from April 1993 through April 1995. The Secretary
asserts that: "Any criminal prosecution resulting from said
referral would arise out of the same facts and circumstances
present in the instant proceedings. The factual and legal
issues arising in any criminal prosecution would be similar
or identical to many of the citations involved in the above
cases."
In its Buck Creek decision, the Commission set out
five factors that should be considered in determining whether
a stay should be granted: (1) the commonality of evidence
in the civil and criminal matters; (2) the timing of the stay
request; (3) prejudice to the litigants; (4) the efficient use
of agency resources; and (5) the public interest. Id. at 503.
The Commission stressed that "[w]e conclude that the first
element listed above, commonality of evidence, is a key
threshold factor" that must be established in the record. Id.
This clearly places the burden on the party seeking the
stay to satisfy this threshold showing or have the stay
denied before any of the other factors are considered. In
spite of this guidance, the Secretary has not presented in
his new request anything other than the same type of
unsupported assertions which the Commission has already
found insufficient for the granting of a stay.
In none of the pleadings does the Secretary state what
the criminal investigation involves. The closest that the
Secretary comes to providing this information is in his
memorandum in support of the motion where it states: "Those
areas of conduct involve roof control plan at the face;
failure to follow the ventilation plan, failures to report
accidents including face ignitions and failures and to
properly record hazardous conditions required to be written
in the record books." Memorandum at 2. However, it is not
clear from the context of the paragraph whether this refers
to the citations for which the Secretary is seeking a stay
or those for which he is not.
Furthermore, even if the quoted language does refer
to the citations which the Secretary seeks to have stayed,
it advises only what conduct the citations concern, not
what the investigation involves. Therefore, there is nothing
to compare the citations or orders which the Secretary seeks
to have stayed with in order to determine whether there
is a commonality of evidence and issues.[2]
The failure of the Secretary to establish a commonality
of issues and evidence between the instant cases and the
criminal matters, leaves no alternative but to deny the
request for stay. Accordingly, it is ORDERED that the Motion
for a Stay of Civil Proceedings is DENIED.
Objection to Depositions and Motion for Protective Order
With respect to the Buck Creek's notices of deposition[3]
the Secretary requests: (1) that the Respondent be only
permitted to depose the inspectors who issued the citations
or orders and that questions be limited to matters contained
in the citations or orders; (2) that inquiry concerning
the criminal investigation on any stayed citation be
prohibited; (3) that seeking the identity or testimony of
any cooperating witnesses in the criminal proceeding be
prohibited; and (4) that the taking of depositions of
Rex Music, David Whitcomb, Mark Eslinger, Mike Conley,
Woodrow Hale, Richard Oney, Mike Finnie, Edward Ritchie or
April Bryan be prohibited because they are either managers
without first hand knowledge of the facts underlying the
case, are special investigators who did not conduct the
inspections or issue the citations or orders, or are a
secretary in the Madisonville, Kentucky, field office.
Commission Rule 56(b), 29 C.F.R. � 2700.56(b), states
that "[p]arties may obtain discovery of any relevant,
non-privileged matter that is admissible evidence or appears
likely to lead to the discovery of admissible evidence."
Rule 56(c), 29 C.F.R. � 2700.56(c), provides that "[u]pon
motion by a party or by the person from whom discovery is
sought or upon his own motion, a Judge may, for good
cause shown, limit discovery to prevent undue delay or
to protect a party or person from oppression or undue
burden or expense."
The Secretary's motion contains almost nothing in the
way of good cause for its requests. With regard to its
request that the depositions of specific individuals be
prohibited, the motion simply states, in addition to
the fact that the individuals are managers, special
investigators or a secretary, that "[t]he depositions
of the above individuals are not relevant to the civil
citations/orders and Buck Creek should not be allowed
to conduct discovery in these proceedings relating
to the criminal investigation of Buck Creek Coal
Company and its officers." Secretary's Motion at 3.
No argument or evidence of any type is presented for
the remaining requests.
In its decision vacating the stay, the Commission
pointed out that "[t]he judge has the power to impose
limitations on the time and subject matter of
discovery, which would permit the civil matter to
proceed without harming the criminal case." Id.
at 504. The Commission further stated that in
doing this, "[t]he judge should also consider [the
commonality of issues and evidence between the
civil and criminal matters] when determining the
limits of discovery in order to permit civil
proceedings to advance without prejudice to
criminal matters." Id. at 505. On the other
hand, as the Commission also stated, "courts do
not permit criminal defendants to employ liberal
civil discovery procedures to obtain evidence that
would ordinarily be unavailable to them in the
parallel criminal case." Id. at 504.
The difficulty with this motion, as with the
motion for stay, is that the Secretary has not provided
any information concerning the parallel criminal case
on which I can make a consideration of the commonality
between the civil and criminal matters. The instant
motion provides even less information than the stay
motion concerning what the criminal investigation
involves.
Accordingly, taking into consideration the wide
scope of discovery set forth in Rule 56(b) and the
Secretary's almost total failure to set forth good
cause, let alone provide evidence to support it,
the Secretary's motion is GRANTED IN PART and DENIED
IN PART as follows:
(1) The Secretary's request that the depositions of
Rex Music, David Whitcomb, Richard Oney, Mike Finnie
and Mark Eslinger be prohibited is DENIED. The fact
that these individuals are managers does not mean that
they do not have knowledge of the facts underlying
these cases or information that might lead to the
discovery of admissible evidence.
(2) The Secretary's request that the depositions of
Edward Ritchie, Mike Conley and Woodrow Hale be
prohibited is DENIED. The fact that these individuals
"did not conduct inspections which resulted in the
issuing of the citations/orders or write the
citations/orders" does not mean that they do not have
knowledge of facts underlying the cases or information
that might lead to the discovery of admissible
evidence.
(3) The Secretary's request that the deposition of
April Bryan be prohibited is GRANTED. It appears
obvious from her position that she is not likely to
have knowledge of the facts underlying these cases or
information that might lead to the discovery of
admissible evidence.
(4) The Secretary's request that the Respondent be
prohibited from inquiring concerning the criminal
investigation on any citation or order for which the
Secretary has requested a stay is GRANTED. Although by
this order no citations or orders have been stayed,
inquiries concerning the criminal investigation would
not have any relevance to the cases in this proceeding.
(5) The Secretary's request that the Respondent be
prohibited from seeking the identity or the testimony
of any cooperating witness in the criminal proceeding
is premature. The informant's privilege is already
available to the Secretary. If the Respondent attempts
to elicit such information from a witness, the
Secretary asserts the privilege and the Respondent
seeks to compel a response, I will rule on the matter
in accordance with Commission Rule 61, 29 C.F.R.
� 2700.61. Thunder Basin Coal Co., 15 FMSHRC 2228
(November 1993); Bright Coal Co., 6 FMSHRC 2520
(November 1984).
(6) The Secretary's request that the Respondent be
allowed to depose only those inspectors who issued the
citations or orders is DENIED.
This order permits the taking of depositions 19
individuals, including managers, from district offices in
and around Indiana. I expect the parties to cooperate in
scheduling the depositions so that they are not unduly
burdensome or oppressive either to the individual
witnesses or their respective offices in carrying out
their day-to-day activities.
Prehearing Order
In accordance with the provisions of Section 105(d) of the
Act, 30 U.S.C. � 815(d), these cases will be set for hearings on
the merits at times and places to be designated in subsequent
orders. Prior to setting the cases for hearing, the parties are
directed to confer for the purpose of discussing settlements and
stipulating as to matters not in dispute. These discussions, as
well as discovery, should be completed by August 3, 1995.
A prehearing conference will be held on August 3, 1995, in
Sullivan, Indiana, beginning at 9:00 AM. The purpose of the
conference will be to go through the cases docket by docket to
take settlements and schedule hearings. Any discovery issues
that have not been resolved, along with any unusual procedural or
evidentiary issues will be taken up at that time. The parties
should make sure that any witnesses necessary for completing the
above matters are present at the hearing room.
T. Todd Hodgdon
Administrative Law Judge
(703) 756-4570
Distribution:
Henry Chajet, Esq., Fiti A. Sunia, Esq., Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, DC 20037-1350 (Certified Mail)
Rafael Alvarez, Esq., Office of the Solcitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail)
Thomas A. Mascolino, Esq., Deputy Associate Solicitor, Office
of the Solicitor, Mine Safety and Health, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
FOOTNOTES**
[1]: Somewhat inconsistently, the first paragraph of the
motion states that the Secretary:
moves to stay proceedings involving citations issued on
or before September 1, 1994 and which have been
designated as involving areas of conduct under criminal
investigation by the Federal Mine Safety and Health
Administration and the United States Attorney for the
Southern District of Indiana. The Secretary further
requests that certain citations issued after September
1, 1994 be stayed for sixty days or until such time as
the United States Attorney . . . makes a determination
regarding prosecution of Buck Creek Coal Company and
any of its officers for criminal violations of the
Federal Mine and Health Act of 1977.
[2]: The Secretary has attached to his motion a 27
page list of citations. This apparently shows which specific
citations or orders he seeks to have stayed, although
that is not entirely clear since there is no explanation as
to what some of the notations on the list, specifically the
"Y" and "N," mean. This list is not useful; the cases
before me are in dockets, but the list makes no reference
to dockets. In view of my decision, the unhelpfulness of
the list makes no difference. However, in the future, the
parties would be well advised to discuss citations or orders
by docket as well as citation or order number, rather than
expecting the judge to go through each of the over 500
dockets attempting to find the citation or order number
mentioned.
[3]: Buck Creek's notices of depositions were filed
with the Secretary in July 1994. The Secretary's
objection to them was not ruled on at that time because
of the granting of the stay. The Secretary now renews
his objection.