<DOC>
[DOCID: f:buck.wais]
BUCK CREEK COAL INC.
March 27, 1995
LAKE 94-72
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
March 27, 1995
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. LAKE 94-72, etc.
:
v. :
:
BUCK CREEK COAL INC :
BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
ORDER
BY: Jordan, Chairman; Doyle and Holen, Commissioners
On July 18, 1995, Buck Creek Coal Inc. ("Buck Creek") filed with
the Commission its third petition for interlocutory review of an order
staying proceedings issued by Administrative Law Judge T. Todd Hodgdon
in these consolidated contest and civil penalty proceedings arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
ets eq. (1988) ("Mine Act" or "Act"). For the reasons that follow, we
deny interlocutory review.
At the request of the Secretary of Labor and the Department of
Justice, and over the objections of Buck Creek, the judge issued orders
on September 8, 1994, and February 15, 1995, staying all proceedings
based on an ongoing federal criminal investigation of Buck Creek.
The Commission denied Buck Creek's petition for interlocutory review
of the September 8 order on grounds of mootness. The Commission granted
Buck Creek's petition for interlocutory review of the February 15 order
and, in a decision issued on April 25, 1995, set forth five factors that
should be considered by the judge in determining whether a stay should
be granted. Buck Creek Coal Inc.,17 FMSHRC 500, 503 (April 1995). Because
the judge had not addressed these factors and the record did not show
that the stay criteria had been met, the Commission vacated the
blanket stay "without prejudice to the imposition . . . of a limited
stay covering particular proceedings based on the [five] criteria[,]
. . . including the commonality of issues and evidence between the
civil and criminal matters." Id. at 505. At the time of the Buck
Creek decision, the consolidated dockets contained more than 500
alleged violations. Id. at 503.
On May 12, 1995, the Secretary filed a motion to stay proceedings
covering approximatel 275 of the consolidated citations and orders. The
judge denied this motion on the ground that the Secretary had failed
to establish the "key threshold factor" of commonality of evidence
between the civil and criminal proceedings. Order Denying Mot. for
Stay at 1-4 (May 31, 1995), quoting Buck Creek Coal Inc., 17 FMSHRC
at 503.
On June 19, 1995, the Secretary renewed his motion for a 90-day
stay, but limited the request to proceedings involving approximately
80 citations and orders. In support of his motion, the Secretary
described the broad areas that form the basis of the criminal
investigation, identified the "core violations" that prompted the
Secretary's referral to the Justice Department, and identified
additional violations for which a stay was being sought because of
their similarity to the "core violations. " S. Renewed Mot. for
Limited Stay of Civ. Proceedings at 3-6 & App. In addition, the
Secretary provided the judge with a sealed declaration from the
Assistant United States Attorney purportedly describing the
"parameters" of the criminal investigation. The judge reviewed the
declaration in camera.
Buck Creek opposed the motion. It asserted that the Secretary's
request for stay failed to establish commonality of evidence between
the criminal and civil proceedings and would prejudice Buck Creek's
right to "a fair and expedient determination of its rights."
B.C. Opp. to Renewed Mot. for Ltd. Stay of Civ. Proceedings at 1.
On July 17, 1995, the judge granted the Secretary's motion for
a limited stay. The judge found that the Secretary's motion, as
supplemented by the declaration of the Assistant United States
Attorney, established the threshold factor of commonality between
the civil and criminal proceedings. Order Granting Mot. for Stay of
Proceedings and Denying Mot. to Compel ("Stay Order") at 2-3. The
judge concluded that each of the other criteria also indicated that
a stay was warranted. Stay Order at 4. He noted that litigation of
more than 420 other matters in this docket is unaffected by the
Stay Order. Id.
On July 18, 1995, Buck Creek filed both a motion with the judge
for certification of the Stay Order, and a motion for interlocutory
review with the Commission, asserting that the judge's order is
erroneous as a matter of law and fact and poses legal questions
requiring the Commission's immediate review. Mot. for certif. at
1; mot.for interloc. review at 2. On August 7, 1995, the judge
issued an order certifying the Stay Order for interlocutory review
by the Commission.[1]
Commission Procedural Rule 76(a)(2) provides that "the Commission
. . . may grant interlocutory review upon a determination that the
Judge's interlocutory ruling involves a controlling question of law
and that immediate review may materially advance the final disposition
of the proceeding." 29 C.F.R. � 2700.76(a)(2) (emphasis added). The
granting of interlocutory review is a matter of the Commission's sound
discretion. 29 C.F.R. �2700.76(a). The Commission previously decided
the question of law at issue when it setforth in Buck Creek, 17 FMSHRC
at 503, the determinative factors applicable to requests for stays.
On remand, the judge applied those factors in his Stay Order. Thus,
we disagree with the judge's conclusion that Buck Creek's challenge
to the July 17 Stay Order involves a controlling question of law.
See Order of Certif. for Interloc. Review.[2]
For the foregoing reasons, Buck Creek's petition for interlocutory
review is denied.
________________________________
Mary Lu Jordan, Chairman
________________________________
Joyce A. Doyle, Commissioner
________________________________
Arlene Holen, Commissioner
**FOOTNOTES**
[1]:Commission Procedural Rule 76(b) permits the filing of a
petition for interlocutory review only "[w]here the Judge denies a
party's motion for certification of an interlocutory ruling . . . ."
29 C.F.R. � 2700.76(b). Rule 76(b) also requires the petitioner to
attach to the petition a copy of the order denying certification.
Buck Creek filed its petition for interlocutory review of the
February 15, 1995, stay order before filing a motion for certification
with the judge and filed the instant petition for interlocutory review
before the judge ruled on its motion for certification. Buck Creek
is reminded to comply with the provisions of Rule 76(b).
[2]:We disagree with the view apparently held by our
dissenting colleague, that appeal of an interlocutory order based in
part on the inspection of documents in camera automatically satisfies
the Commission's requirements for interlocutory review. Slip op. at
4, 5. A judge's reliance on documents inspected in camera is not
determinative of whether the judge's stay order "involves a
controlling question of law" the resolution of which may "materially
advance final disposition of the proceeding." 29 C.F.R. � 2700.76(a)(2).
Commissioner Marc Lincoln Marks, dissenting:
I dissent.
I would grant interlocutory review in this case pursuant to Judge
T. Todd Hodgdon's Order of Certification for Interlocutory Review
("Order"). In his Order, Judge Hodgdon concluded that his Order
Granting Stay of Proceedings involves a controlling question of law.
Contrary to my colleagues and for the reasons set forth below, I agree.
In Buck Creek Coal Inc., 17 FMSHRC 500 (April 1995) ("Buck Creek"),
for the first time we set forth the analytical framework that our judges
are to employ in deciding the propriety of granting stays in civil
proceedings when parallel criminal proceedings are under way. Buck
Creek, 17 FMSHRC at 503. That analytical framework requires the
consideration of five factors. Id. In deciding whether to grant the
Secretary's motion for a stay of approximately 80 citations and orders,
Judge Hodgdon recognized that the "commonality" factor is the key
threshold factor that must be established in the record before a stay
may be granted. Order Granting Motion for Stay of Proceedings and
Denying Motion to Compel at 2, citing Buck Creek, 17 FMSHRC at 503.
The judge concluded that the Secretary's motion failed to establish
that there was a commonality of evidence and issues in the civil and
criminal matters. Order Granting Motion for Stay of Proceedings and
Denying Motion to Compel at 3. However, without further comment or
analysis, the judge concluded that certain in camera documents provided
by the Assistant U.S. Attorney were sufficient to satisfy the key
threshold "commonality" factor. I have reviewed the documents
submitted to the judge for in camera review and I am not satisfied
that they establish the key threshold "commonality" factor.
In my view, it is incumbent upon the Commission to review the
judge's determination that the documents submitted to him for in camera
review satisfies the key threshold "commonality" factor set forth by
the Commission for the first time in Buck Creek. The five-factor
analytical framework involves mixed questions of law and fact. I agree
with Judge Hodgdon's assessment that his analysis in this connection
involves a controlling question of law and that the Commission should
review his determination. See Order of Certification for Interlocutory
Review. My colleagues conclude that when the Commission set forth the
analytical framework five months ago in Buck Creek it also "decided the
question of law at issue" in the present case. Slip op. at 3. Their
conclusion is wrong. The question of law here is whether the meager
in camera material provided by the Assistant U.S. Attorney satisfies
the key threshold "commonality" factor in each of the 80 stayed citations
and orders. I find it extraordinary that my colleagues had the foresight
to "decide[] the question of law at issue" here five months ago. I
confess that I have no such prophetic capabilities and, so, I will
confine myself to deciding such questions of law on a case-by-case
basis.
Further, interlocutory review would "materially advance the final
disposition of the proceeding." 29 C.F.R. 2700.76(a)(1)(i). This
"proceeding" includes approximately 560 citations and orders in 448
contest of citations/orders dockets and 66 contest of civil penalty
dockets. These dockets have been assigned to one judge and lumped
into one "proceeding" for administrative convenience. The 80 stayed
citations and orders constitute 35 of the 66 civil penalty dockets.
Buck Creek has expressed a desire to proceed on all the contested
citations and orders. If the stay is allowed to stand, no progress
will be made on the 80 stayed citations and orders constituting 35
of the 66 civil penalty dockets.
Parallel civil and criminal proceedings are unobjectionable under
our jurisprudence and the Constitution does not ordinarily require a
stay of civil proceedings pending the outcome of criminal proceedings.
Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir.
1995). Further, in order for a judge to issue a stay, the petitioning
party must establish that a stay is appropriate. Once a stay is granted
in civil proceedings, the stayed case(s)will not, by definition,
materially advance to a final disposition. Buck Creek has a legitimate
interest in the expeditious resolution of the civil cases. Consequently,
before this Commission sanctions the extraordinary action requested by
the Secretary it should consider whether the judge's action staying the
80 citations and orders passes muster under our newly minted analytical
framework. This is particularly so when, as here, Buck Creek has not
had the opportunity to confront the in camera documentation that the
judge exclusively relied on in making his determination that the key
threshold criterion had been satisfied.
Finally, I note that this case is in the pre-indictment stage. As
a general rule, "stays will . . . not be granted before an indictment
is issued. " Trustees of Plumbers Pen. Fund v. Transworld Mech., Inc.,
886 F.Supp. 1134, 1139 (S.D.N.Y. 1995); see also S.E.C. v. Dresser
Industries, Inc., 628 F.2d 1368, 1376 (D.C. Cir.), cert. denied, 449
U.S. 993 (1980). The Commission has been called upon by both Buck
Creek and Judge Hodgdon to determine whether the judge appropriately
granted the motioned for stay. Because I find that the criteria for
interlocutory review has been met in this case, I would grant such
review.
Marc Lincoln Marks