SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEVA 2004-36
v. :
:
BAYLOR MINING, INC. :
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (2000) ("Mine Act"). On February 9, 2005, the Secretary of Labor filed with the Commission a petition for interlocutory review challenging Administrative Law Judge T. Todd Hodgdon's order denying her motion to certify for interlocutory review an earlier order by the judge. Unpublished Order dated Jan. 10, 2005 (ALJ). In his earlier order, Judge Hodgdon denied the Secretary's motion for reconsideration of his order granting in part the motion of Baylor Mining, Inc. ("Baylor") to compel the Secretary to disclose certain documents. See 26 FMSHRC 905 (Nov. 2004) (ALJ) (denying reconsideration); 26 FMSHRC 739 (Aug. 2004) (ALJ) (granting in part operator's motion to compel discovery).
Upon consideration of the Secretary's petition for interlocutory review, we grant the petition.
The Secretary shall file her opening brief on or before 20 days from the date of issuance of this order. Baylor shall file its response brief on or before 15 days from service of the Secretary's opening brief. The Secretary may file her reply brief on or before 10 days from service of Baylor's response brief. The Secretary's opening brief and the operator's response brief shall not exceed 25 pages. The Secretary's reply brief shall not exceed 15 pages.
In the briefs, the parties shall address the issues raised in the Secretary's petition, including the historical practice of handling the statements of miner informants who also serve as witnesses in Mine Act proceedings; whether the disclosure of the subject statements at issue would reveal the miner witness' status (or that of any other miner) as informants; the applicability of the Commission's decision in Secretary of Labor on behalf of Logan v. Bright Coal Co., Inc., 6 FMSHRC 2520 (Nov. 1984) and subsequent Commission decisions addressing the informant's privilege to the current proceeding; and the applicability of the principles of the Jencks Act, 18 U.S.C. 3500, to Mine Act proceedings.
____________________________________
Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Stanley C. Suboleski, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution:
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
David J. Hardy, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Boulevard East
P.O. Box 273
Charleston, WV 25321
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021