Stone & Webster Construction, Inc., Bartlett Nuclear, Inc.

Plain-English summary

Stone & Webster Construction and Bartlett Nuclear sought draft OSHA citation worksheets for use in a jurisdictional defense involving the Nuclear Regulatory Commission. The judge rejected the Secretary's deliberative-process privilege claim, ordered disclosure, and issued a show-cause order that raised possible dismissal for noncompliance. The Commission held that the judge read the privilege too narrowly because predecisional recommendations about whether and how to cite an employer can be protected deliberative material. It also rejected the judge's waiver analysis because disclosure to another federal agency is not a waiver and disclosure of some information does not automatically waive related draft material. The Commission found no contumacious conduct because the Secretary had a substantial legal basis for resisting disclosure and used the reconsideration process. It vacated the discovery and show-cause orders and remanded for an in-camera privilege review and further proceedings.

Decision snapshot

• Cited standard(s): No substantive OSHA standard is at issue in this interlocutory decision.
• Outcome: The discovery and show-cause orders were vacated, the stay was lifted, and the consolidated cases were remanded.
• Key point: Draft citation analyses may be protected by the deliberative-process privilege, and a judge should review them in camera before ordering disclosure.

Full text (OSHRC public release)

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MicrosoftInternetExplorer4

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC Docket No. 10-0130

STONE
& WEBSTER CONSTRUCTION, INC., and its Successors,

Respondent.

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC Docket No. 10-0169

BARTLETT
NUCLEAR, INC., and its Successors,

Respondent.

ON BRIEFS:

Elizabeth Kruse, Trial Attorney; Michael D. Schoen,
Senior Trial Attorney; Madeleine T. Le, Counsel for Safety and Health; James E.
Culp, Regional Solicitor; M. Patricia Smith, Solicitor of Labor; U.S.
Department of Labor, Dallas, TX

For
the Complainant

Kenneth D. Kleinman, Esq.; Stevens & Lee, PC,
Philadelphia, PA

����������� For Respondent Bartlett Nuclear, Inc.

McCord
Wilson, Esq.; Rader & Campbell, PC, Dallas, TX

For
Respondent Stone & Webster Construction, Inc.

DECISION
AND ORDER

Before: � ROGERS, Chairman; and ATTWOOD, Commissioner.

BY
THE COMMISSION:

At
issue before the Commission is the Secretary�s petition for interlocutory
review (�PIR�) challenging multiple orders issued by Administrative Law Judge
Patrick B. Augustine relating to the Secretary�s assertion of the deliberative
process privilege. � In several discovery
orders, the judge rejected the Secretary�s privilege claim as the basis for
withholding specific documents, and required the Secretary to disclose these documents
to the respondents, Stone & Webster Construction, Inc. (�Stone�) and
Bartlett Nuclear, Inc. (�Bartlett�). � The
judge also issued a show cause order demanding that the Secretary show why her
failure to comply with his discovery orders should not result in dismissal of
the citations issued to the respondents by the Occupational Safety and Health
Administration (�OSHA�). � After
thoroughly considering the matter, we vacate all of the judge�s discovery and
show cause orders issued between March 5 and 9, 2012, and on March 21, 2012,
and remand these consolidated cases to the judge for further proceedings
consistent with this decision.

BACKGROUND

O n December 22, 2010, the Secretary
submitted a privilege log to the respondents indicating that �Draft OSHA 1Bs�
were being withheld from discovery under the deliberative process privilege. [1] � More than a year later, in
February 2012, counsel for the Secretary and respondents exchanged various emails
concerning whether the Secretary would be willing to disclose these particular
documents. � According to the respondents,
the Draft OSHA 1Bs could be relevant to their preemption defense that the
Nuclear Regulatory Commission (�NRC�), rather than OSHA, has jurisdiction over
the conditions alleged in the citation items. �
The respondents had intended to use these documents during depositions
of NRC officials scheduled for March 7, 2012. �
The Secretary informed the respondents that the documents were privileged
and would not be disclosed, but agreed to participate in a conference call with
the respondents and the judge to discuss this issue. �

During
the conference call on March 2, 2012, the respondents orally moved to compel
disclosure of the Draft OSHA 1Bs. � The
judge gave the parties until the end of the day to offer case law, via email,
for his consideration before ruling on the respondents� motion. � The parties complied and two days later, on
Sunday, March 4, the judge issued an order granting the respondents� motion and
ordering the Secretary to disclose the documents to the respondents by the
close of business on Tuesday, March 6�that is, within one business day of his
order. � The next day, the judge issued
another nearly identical order that superseded his March 4 order.

On
March 6, 2012, the parties participated in a second conference call with the
judge, during which
the Secretary�s counsel informed the judge of her intent to file a motion for
reconsideration, explaining that she believed compliance with the judge�s order
would result in waiver of the deliberative process privilege. � The judge gave the Secretary�s counsel until
the close of business that day to file the motion. � Also during the conference call, the
respondents� counsel raised grievances concerning certain alleged conduct by
the Secretary�s counsel. � These
grievances were further discussed in a March 6 email that Bartlett�s counsel
sent to the Secretary�s counsel and the judge. �
Later that day, the Secretary filed her motion for reconsideration and
also requested a six-day stay of the case in the event the motion was denied.

O n March 7, 2012,
the depositions of NRC officials occurred as scheduled. � That same day, the judge issued two more
orders. � In the first order, the judge
(1) chastised the Secretary for failing to comply with his discovery orders
and, based on this conduct, invited the respondents to file a motion for
sanctions within seven days; (2) instructed the Secretary to respond to that
yet-to-be-filed sanctions motion by March 24; (3) noted that his March 5
discovery order remained in effect; and (4) gave the respondents seven days to
respond to the Secretary�s motion for reconsideration. � In the second order, the judge explicitly accused
the Secretary�s counsel of engaging in contumacious conduct, and ordered the
parties to appear for a show cause hearing on March 28, during which the
Secretary�s counsel would be given an opportunity to show why the contested
citations should not be dismissed. ��

On
March 9, 2012, the judge issued an order granting the Secretary�s request to
withdraw her motion for reconsideration and vacating the portion of his March 7
order pertaining to that motion. � Having
been informed by the Secretary of her intent to consider seeking interlocutory
review, the judge also granted the Secretary�s request for an immediate stay,
though he excluded the March 7 show cause order from the stay. � Three days later, on March 12, the Secretary
filed her PIR with the Commission, and the respondents filed a motion for
sanctions with the judge. �

On
March 21, 2012, the judge issued an order vacating the date of the show cause
hearing, but not the show cause order itself. �
The Commission stayed the consolidated cases in their entirety later that
same day and, on April 2, granted the Secretary�s PIR.

DISCUSSION

Deliberative
Process Privilege

The deliberative process privilege, which originated at
common law, �allows the government to withhold documents and other materials
that would reveal �advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.� � � In re Sealed Case , 121 F.3d 729, 737
(D.C. Cir. 1997) (citation omitted). �
This privilege, however, �does not shield documents that simply state or
explain a decision the government has already made or protect material that is
purely factual, unless the material is so inextricably intertwined with the
deliberative sections of documents that its disclosure would inevitably reveal
the government�s deliberations.� � Id. ; see
Montrose Chem. Corp. of Cal. v. Train ,
491 F.2d 63, 71 (D.C. Cir. 1974) (noting that when �a summary of factual
material on the public record is prepared by the staff of an agency
administrator, for his use in making a complex decision, such a summary is part
of the deliberative process, and is exempt from
disclosure . . . .�). �
�In deciding whether material is protected under this privilege, [the
courts] consider whether the material is �predecisional� and whether it is
�deliberative.� � � Hinckley v. United States , 140 F.3d 277,
284 (D.C. Cir. 1998). �

In his March 5, 2012 order, the
judge rejected the Secretary�s claim that the Draft OSHA 1Bs are protected
under deliberative process privilege. �
Although recognizing that these documents are predecisional because they
are �part of the file provided to the [Area Director] to consider in approving
the issuance of citations,� the judge concluded that they are not deliberative. � In reaching this conclusion, the judge stated
that the OSHA 1B allows the OSHA compliance officer to reduce to writing �facts
generated from the investigation[,]� and that �[i]ts purpose is not designed to
protect the deliberative process of
OSHA in formulating [] policy[,] as there is no agency process information
contained therein and no new policy being made.� �

We find that the judge applied the
deliberative process privilege too narrowly. �
As noted by the D.C. Circuit, it is not simply �policy� matters that are
protected from disclosure, but rather any � �advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions . . . are formulated.� � �
In re Sealed Case , 121 F.3d at
737 (citation omitted). � Indeed, the
purpose of this privilege � �is to prevent injury to the quality of agency
decisions� by allowing government officials freedom to debate alternative
approaches in private.� � Id. (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 151 (1975)). � The privilege �recognizes �that were agencies
forced to operate in a fishbowl, the frank exchange of ideas and opinions would
cease and the quality of administrative decisions would consequently suffer.�
� � Redland Soccer Club,
Inc. v. Dep�t of Army of U.S. ,
55 F.3d 827, 854 (3d Cir. 1995) (citation omitted). � Therefore, under applicable precedent,
predecisional materials pertaining to the government�s decision to cite, or not to cite , an employer for a
particular alleged violation are within the scope of the privilege. � �

In addition to rejecting the
Secretary�s privilege claim, the judge concluded in the alternative that the
Secretary had waived the privilege by disclosing information contained in the
Draft OSHA 1Bs to both NRC and the respondents. �
The judge based his waiver analysis on the
following findings: � (1) OSHA interacted with the NRC on two
occasions �to discuss the underlying facts of the inspection, the hazards
identified and the intent of OSHA to charge the Respondent�s with violations of
OSHA regulations�; and (2) Stone produced evidence showing that, at its closing
conference, OSHA had disclosed �the type of violation, the classification, the
proposed regulation, measurements, exposure and number of people exposed.� � In her March 2, 2012 email to the judge, the
Secretary argued that information included in the Draft OSHA 1Bs �differ[ed]
substantially� from information provided to the respondents during their
closing conferences, �including such major differences as the characterization
of the violation[s] . . . , dates, and descriptions of the hazards.� � Although the judge did not conduct an in camera review of the Draft OSHA 1Bs,
he nonetheless concluded that �significant facts in [these documents] were
disclosed to NRC and to the Respondents.� �

We find that the judge made several
errors in his waiver analysis. � The
government waives the deliberative process privilege only if an authorized
disclosure of a document is voluntarily made to a �non-federal� party. � See,
e.g, Florida House of Representatives v. U.S. Dep�t of Commerce , 961 F.2d 941, 946 (11th Cir. 1992 )
(discussing waiver in context of Freedom of Information Act, 5 U.S.C. � 552); Sherman Indus., Inc., v. Sec�y of Air Force ,
613 F.2d 1314, 1320 (5th Cir. 1980) (same). �
Thus, any information that
OSHA released to NRC would not constitute a waiver because NRC, a federal
agency, is not a �non-federal� party. � In addition,
the �release of a document only waives [the deliberative
process privilege] for the document or information specifically released, and
not for related materials.� � See, e.g., In re Sealed Case , 121 F.3d
at 741; Mobile Oil Corp. v. EPA , 879
F.2d 698, 701 (9th Cir. 1989). � In the absence of an in camera review, the judge had no way to assess whether the
information included in the Draft OSHA 1Bs was �specifically released� to the respondents during their
closing conferences or, as the Secretary contends, differed in certain respects
from what was released. � Moreover,
accepting arguendo that information
released during the closing conferences was identical to information ultimately
included in the Draft OSHA 1Bs, this would not establish that the Secretary
waived the privilege. � Regardless whether
OSHA revised its original view of the proposed violations between the time it
held the closing conferences and completed the Draft OSHA 1Bs, OSHA�s process
during this predecisional period remained deliberative. � See Mobil Oil Corp. , 879 F.2d at 703
(noting that agency need not show to what extent draft differs from final document because
to do so would �expose what occurred in the deliberative process between the
draft�s creation and the final document�s issuance�); Russell v. Dep�t of
Air Force, 682 F.2d 1045, 1049 (D.C. Cir. 1982) (holding that �a simple
comparison between the pages sought and the official document would reveal�
agency decision maker�s judgment). � We
therefore reject the judge�s conclusion that the Secretary waived the
deliberative process privilege as to the Draft OSHA 1Bs. �

For
these reasons, we vacate the judge�s discovery orders pertaining to the Draft
OSHA 1Bs and remand this matter to the judge. �
On remand, if the judge decides that the Secretary has properly asserted
the deliberative process privilege, [2] we
instruct him to perform an in camera review
of the Draft OSHA 1Bs and assess, in light of our foregoing analysis, whether
these documents in their entirety, or any portion of them, fall within the
privilege and are protected from disclosure. �
If
the judge finds that any portion of the Draft OSHA 1Bs fall outside of the
deliberative process privilege, the Secretary �may obtain as of right an order
sealing from the public those portions of the record containing the allegedly
privileged information pending interlocutory or final review of the ruling, or
final disposition of the case, by the Commission.� � Commission Rule 52(d)(2), 29 C.F.R.
� 2200.52(d)(2). � In addition,
before disclosing any portion of the Draft OSHA 1Bs to the respondents, the
judge must provide the Secretary an opportunity to �review [any] redactions and
respond accordingly� and seek interlocutory review
of his order. � Cranesville Aggregate Cos. , 23 BNA OSHC 1570, 1573, 2011 CCH OSHD �
33,142, p. 55,260 (No. 09-2011, 2011) (consolidated). � If the judge finds that any portion of the
Draft OSHA 1Bs fall
within the privilege, he should provide the respondents an opportunity to
overcome the privilege by making �a sufficient
showing of need.� � In re Sealed Case , 121 F.3d at 737-38. � �

Show
Cause Order

Under Commission Rule 52(f), when a party fails to comply with a
judge�s order compelling discovery, the judge may enter an order �with regard
to the failure as [is] just.� [3] � 29 C.F.R. � 2200.52(f). � Such an order �may issue upon the initiative
of a Judge, after affording an opportunity to show cause why the order should
not be entered, or upon the motion of a party.� �
Id. � The order �may include any sanction stated in
Federal Rule of Civil Procedure 37,
including . . . dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against the disobedient
party.� � Id. � Ordinarily, �dismissal
is too harsh a sanction for failure to comply with certain pre-hearing orders unless the record
shows contumacious conduct by the noncomplying party, prejudice to the opposing
party, or a pattern of disregard for Commission proceedings.� � See
Amsco, Inc. , 19 BNA OSHC 2189, 2191 (No. 02-0220, 2003).

Here,
the judge concluded in his March 7, 2012 show cause order that the Secretary
had engaged in contumacious conduct. � The
conduct described in the judge�s show cause order and his other order from
March 7 pertains exclusively to the Secretary�s refusal to comply with the
judge�s discovery orders compelling disclosure of the Draft OSHA 1Bs. � Although the judge recognized that the
Secretary had filed a motion for reconsideration of his March 5 order and
requested �a six-day stay if the Court overruled her [motion],� he criticized
her procedural approach and explained that a motion for reconsideration does
not automatically stay a case. � According
to the judge, the Secretary �should have followed one, or more, of the
established judicial procedures to address [her] disagreement with the [March
5] Order� including a request for an immediate stay. � The judge stated that he �assumes [the
Secretary] knows the law and the procedures to utilize to address disagreements
with a court order� and, therefore, �can only conclude that [her] decision to
ignore the [March 5] Order was done intentionally, flagrantly and with disrespect
for the . . . judicial process established by the Commission.� � In his subsequent March 9 order, the judge
rejected the Secretary�s explanation that it was her intent to request an
immediate stay in her motion for reconsideration, characterizing her statement
as �a self-serving, weak attempt . . . to justify her intentional disregard of
the [March 5] Order.� �

T he C ommission
has held that �failure to comply with [a
discovery] order is not, by itself, an indication of bad faith or contumacious
conduct when the party�s reason for refusing to comply has a substantial legal
basis and its conduct did not indicate disrespect towards the Commission or the
issuing judge.� � Donald Braasch
Construction Inc. , 17 BNA OSHC 2082, 2086, 1995-97 CCH OSHD � 31,259, p. 43,868
(No. 94-2615, 1997); see Roy�s Constr.,
Inc. , 21 BNA OSHC at 1558-59, 1558 n.2, 2004-09 CCH
OSHD at pp. 52,716-17, 52,717 n.2 (citing cases that comport with
Commission�s decision in Braasch and
limiting its reach to discovery orders). �
Under this precedent and given the circumstances present here, the
judge�s contumacy determination is unfounded. �
As reflected in our discussion above of the deliberative process
privilege, the Secretary�s claim has a �substantial legal basis,� even if it is
ultimately rejected. � Braasch , 17 BNA OSHC at 2086, 1995-97 CCH
OSHD at p. 43,868. � And contrary to the
judge�s characterization of the Secretary�s procedural approach, her formal
request for reconsideration of the judge�s disclosure ruling shows respect for
the adjudicatory process. � Moreover, we
find that her decision to seek a conditional stay instead of an immediate one
does not demonstrate bad faith or contumacy. [4] �

We conclude, therefore, that the judge
erred by finding that the Secretary�s refusal to comply with his discovery
orders was contumacious. � Accordingly, we
vacate the judge�s show cause order. [5] ����������

ORDER

We vacate all of the discovery and
show cause orders issued by the judge in these consolidated cases between March
5 and 9, 2012, and on March 21, 2012. � In
addition, we lift the stay of these cases and direct the judge on remand to
proceed in accordance with this decision.

SO
ORDERED.

������

_/s/______

Thomasina V. Rogers

Chairman

�����������������������������������������������������������

_/s/______

Cynthia L. Attwood

Dated: May 23, 2012 ������������������������������������������������� Commissioner

[1] An �OSHA 1B� is a
worksheet typically prepared by a compliance officer concerning a workplace
inspection.

[2] On April
13, 2012, the Secretary filed with the Commission an affidavit from Assistant
Secretary of Labor David Michaels for the purpose of asserting certain
privileges, including the deliberative process privilege.  See Landry
v. FDIC , 204 F.3d 1125, 1135 (D.C. Cir. 2000) (listing requirements
for asserting deliberative process privilege in proceeding before
administrative law judge); see also Commission Rule 52(d)(1), 29 C.F.R.
� 2200.52(d)(1) (procedure for asserting claims of privilege).  On
April 25, the respondents filed a motion to strike the affidavit.

We need not
address the Secretary�s filing or the respondents� motion because the affidavit
does not concern matters that are necessary to our disposition of the
PIR.  If the Secretary wants the affidavit to be considered on remand, she
must file it with the judge.  We order the judge to allow the Secretary
ten business days from the date she receives this order to file the affidavit
with him because, as the following circumstances show, he failed to provide her
with this opportunity when the matter first arose.  After the respondents
moved to compel disclosure of the Draft OSHA 1Bs during the conference call on
Friday, March 2, 2012, the judge gave the Secretary only until the close of
business that day to file a response, via email, rather than the ten days
required under Commission Rule 40(c), 29 C.F.R. � 2200.40(c).  And
Commission Rule 52(d)(1) expressly states that in response to a motion to
compel, a party claiming a privilege may file an affidavit to support its
claim.  The judge nonetheless issued his order rejecting the Secretary�s
privilege claim on Sunday, March 4, effectively denying the Secretary the time
specified by Rule 40(c) to file the affidavit. 

[3] The judge relied
on Commission Rule 101(a), 29 C.F.R. � 2200.101(a), as the basis for his show
cause order. � But paragraph (c) of Rule
101 states that �[t]his section does not apply to sanctions for failure to
comply with orders compelling discovery, which are governed by
� 2200.52(f).�

[4] We note
that the Secretary�s actions here followed rulings in which the judge
improperly shortened the time periods set by the Commission�s rules for the
Secretary to respond to the various procedural developments regarding her
privilege claim.  As noted, the judge gave the Secretary only a matter of
hours to respond to the respondents� motion to compel, rather than the ten days
required under Commission Rule 40(c), 29 C.F.R. � 2200.40(c).  And in
his March 4 and 5 orders, the judge instructed the Secretary to disclose the
Draft OSHA 1Bs by the close of business on March 6, even though Commission Rule
73(b), 29 C.F.R. � 2200.73(b), permits five days following receipt of the
judge�s ruling for a party to file a petition seeking interlocutory
review.  Indeed, the judge waited only until March 7, two business days after
filing his first discovery order, to conclude that the Secretary�s refusal to
comply with his orders was contumacious. 

We
recognize that the respondents intended to use the Draft OSHA 1Bs during
depositions scheduled on March 7, 2012.  But they were aware of the
Secretary�s privilege claim by December 2010, and waited over a year to ask the
judge to compel discovery.  Under these circumstances, even if the judge
had taken the proper steps to waive the requirements of our procedural rules,
departures from the required response times would not have been justified. � See
Commission Rule 107, 29 C.F.R. � 2200.107 (�In special circumstances . . . and
for good cause shown, the Commission or Judge may, . . . after 3 working days
notice . . . , waive any rule or make such orders as justice or the
administration of the Act requires.�).

[5] The respondents�
March 12, 2012 motion for sanctions, which raises some issues beyond the scope
of our decision, is still pending before the judge.