.
EUGENE RUSSELL
May 10, 1995
WEST 94-623-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 10, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 94-623-M
Petitioner : A.C. No. 45-03184-05528-A
:
v. :
: Docket No. WEST 94-624-M
EUGENE RUSSELL, : A.C. No. 45-03184-05529-A
ERVIN E. NICHOLS, :
JAMES M. DODD, : Docket No. WEST 94-625-M
REYNOLD E. CHANNER, and : A.C. No. 45-03184-05530-A
SCOTT FURMAN, employed by :
ECHO BAY MINERALS COMPANY, : Docket No. WEST 94-626-M
Respondents : A.C. No. 45-03184-05531-A
:
: Docket No. WEST 94-627-M
: A.C. No. 45-03184-05532-A
:
: Overlook Mine
ORDER DENYING RESPONDENTS' MOTION TO CONDUCT
DISCOVERY WITH REGARD TO THE TIMELINESS OF THE ISSUANCE
OF THE CIVIL PENALTY NOTICES; ORDER DENYING RESPONDENTS'
MOTION FOR CERTIFICATION OF INTERLOCUTORY REVIEW
Respondents' have filed a motion requesting entry of an
order allowing them to conduct discovery with regard to the
reasons for the 24 to 27 month interval between the citation
and order issued to their employer and their notification by
MSHA that they were being assessed civil penalties pursuant
to section 110(c) of the Act. In the alternative, Respondents
have moved that I certify interlocutory review of my March
24, 1995, order denying Respondents' motion to dismiss/motion
for summary decision on this issue. I deny both motions.
In my March 24, 1995, order I concluded that there is no
basis for dismissing the instant penalties due to such a time
lag without a showing by Respondents that they have been
materially prejudiced by the delay in proposing the civil
penalties. If a Respondent in a civil penalty proceeding
establishes such prejudice, then the Commission will balance
the prejudice to the Respondent and the reasons for the delay,
and may, in some cases, vacate the penalty, Salt Lake County
Road Department, 3 FMSHRC 1714 (July 1981).
In these cases, Respondents have not even alleged facts
which would establish material prejudice. In my March 24,
1995, order, however, I offered Respondents an opportunity to
establish material prejudice at the hearing on the merits of
these proposed penalties. If the Respondents succeed in
doing so, I am prepared to weigh this prejudice against the
reasons for the delay set forth in the affidavits submitted
by the Secretary in response to Respondents' motion to
dismiss.
I will not, however, allow Respondents, either in discovery
or at hearing, to inquire further as to the reasons for the
delay. For example, I believe it would be entirely inappropriate
to allow Respondents to depose attorneys in the Office of the
Solicitor as to why the civil penalties in these cases were
issued 14-1/2 months after receipt of the MSHA reports and
files.
If Respondents could establish that the Solicitor had these
files longer than Mr. White of that office states in his
affidavit, it would not materially influence the outcome of
this case. If Respondents could establish that the Solicitor's
attorneys could have worked longer hours or devoted more time
to this matter, rather than others, it would be similarly
immaterial. Further, I view Commission review of such
internal procedures of the Secretary to be inappropriate as
a general matter.
Commission Rule 56(b) limits the scope of discovery to
relevant, non-privileged matter that is admissible evidence
or appears likely to lead to the discovery of admissible
evidence. Respondents have not made a showing that its
requested discovery of Labor Department personnel with
regard to the delay in assessing the instant penalties
meets this standard.
In so concluding, I note Rule 403 of the Federal
Rules of Evidence allows exclusion of relevant evidence
if its probative value is substantially outweighed by
considerations of confusion of the issues, delay, or
waste of time. Without a showing as to what Respondents
hope to learn in the requested discovery, I suspect that
the evidence they seek may well fit the description of
excludable evidence in Rule 403.
RESPONDENT'S HAVE NOT SATISFIED THE CRITERIA
FOR INTERLOCUTORY REVIEW
Commission Rule 76 states that interlocutory review
cannot be granted unless the judge has certified that his
ruling involves a controlling question of law and that
immediate review will materially advance the final
disposition of the proceeding. In this case, granting of
interlocutory review will likely delay final disposition of
these proceedings. These matters should be disposed of on
the merits at the hearing now scheduled to begin on July 11,
1995. Consideration of evidence of internal procedures of
the Secretary will likely delay resolution of the merits,
and is, to my mind, totally irrelevant--
particularly in view of the facts
that Respondents have not even
made a facial showing of material
prejudice.
For the reasons stated herein, Respondents' motion to
conduct discovery with regard to the timeliness issue is
DENIED. Similarly, Respondents' motion to certify my March
24, 1995, order for interlocutory review is DENIED.
Arthur J. Amchan
Administrative Law Judge
703-756-6210
Distribution:
Stephen D. Turow, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington,
VA 22203 (Certified Mail)
Matthew L. Vadnal, Esq., Office of the Solicitor, U.S.
Department of Labor, 1111 Third Avenue, Suite 945, Seattle,
WA 98101 (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street,
Suite 2710, Denver, CO 80264 (Certified Mail)
Felicity Hannay, Esq., Davis, Graham & Stubbs, Suite 4700,
370 Seventeenth St., P. O. Box 185, Denver, CO 80201-0185
(Certified Mail)
/lh