Spiro Mining, LLC

Plain-English summary

Spiro Mining asked Judge Alan G. Paez to reconsider an earlier refusal to dismiss MSHA's penalty case, recuse himself for alleged bias, or certify the issues for immediate Commission review. The judge held that Spiro had not supported its interstate-commerce and failure-to-state-a-claim arguments with evidence or legal authority sufficient for summary decision. He found that adverse rulings and admonitions to counsel did not demonstrate the deep-seated favoritism or antagonism required for recusal. He also denied interlocutory certification because Spiro had not shown that immediate review would materially advance the case.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 803 and 815; 29 C.F.R. §§ 2700.67 and 2700.76
• Outcome: Reconsideration, recusal, and certification for interlocutory Commission review were denied.
• Key point: Unsupported assertions do not justify summary disposition, recusal, or immediate appellate review of an interlocutory ruling.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

February 29, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner,

v.

SPIRO MINING, LLC,

Respondent.

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CIVIL PENALTY PROCEEDING

Docket No. CENT 2011-1193

A.C. No. 34-02105-262625

Mine: Calder Mine

ORDER DENYING RECONSIDERATION

ORDER DENYING RESPONDENT’S MOTION FOR CERTIFICATION OF 12/21/2011
INTERLOCUTORY RULING

This case is before me upon the Secretary’s Petition for the Assessment of Civil Penalty
(“Petition”) pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine
Act”), 30 U.S.C. § 815 (2010), whereby Spiro contests the proposed civil penalty and underlying
violation issued to it at its Calder Mine. On December 22, 2011, I issued my Order Denying
Respondent’s Motions to Dismiss (“Denial Order”), and I subsequently issued my Prehearing
Order on December 23, 2011.

After the issuance of these orders, Spiro filed its Motion for Consideration with attached
Letter-Motion Seeking Reassurance or Recusal in MSHA v. Spiro Mining, LLC, CENT 2011-1193 (collectively, “Motion for Consideration”).

Spiro seeks my recusal from this matter, or
alternatively, reconsideration of the Denial Order and reassurance of my impartiality. (Mot.
Cons. 3.) The Secretary responded to Spiro’s Motion for Consideration, and Spiro filed a reply
to the Secretary’s response.

Additionally, Spiro filed a Motion for Certification of 12/22/2011 Interlocutory Ruling
(“Motion for Certification”) seeking my certification for interlocutory review by the Commission
of several issues related to the Denial Order. The Secretary responded to Spiro’s Motion for
Certification, and Spiro filed a reply to the Secretary’s response.

As set forth below, both of Spiro’s motions are hereby DENIED.

I. Respondent’s Motion for Consideration

Spiro seeks reconsideration of my Denial Order, contending that I improperly dismissed
its arguments (1) that the Secretary lacks subject matter jurisdiction in this case and (2) that the
Secretary has failed to state a claim. (Mot. Cons. 2–3.) My Denial Order construed Spiro’s
requests as a motion for summary decision under Commission Rule 67, as the Commission’s
Rules do not provide a procedure analogous to Federal Rule of Civil Procedure 12. Spiro
Mining, LLC, 34 FMSHRC __, slip op. at 1–3, No. CENT 2011-1193 (Dec. 22, 2011) (ALJ).

The Commission “‘has long recognized that [] ‘summary decision is an extraordinary
procedure,’’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under
which ‘the Supreme Court has indicated that summary judgment is authorized only ‘upon proper
showings of the lack of a genuine, triable issue of material fact.’’” Hanson Aggregates New
York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414,
1419 (July 1994)). In reviewing the record on summary judgment, the Court must evaluate the
evidence in “‘the light most favorable to . . . the party opposing the motion.’” Hanson
Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473
(1962)). Any inferences “‘drawn from the underlying facts contained in [the] materials
[supporting the motion] must be viewed in the light most favorable to the party opposing the
motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)).

A.        Jurisdiction

My Denial Order interpreted Spiro’s argument that “FMSHRC/MSHA and Mine Act
jurisdiction lacks in cases, such as this, where at the citation’s issuance Calder Mine’s initial
‘operations’ had not ever yet ‘produced products’ or ‘affected MSHA/interstate commerce’”
(Mots. Dismiss 1) as contesting whether the Calder Mine is a “mine” under the Mine Act, Spiro,
34 FMSHRC __, slip op. at 2–3. In its Motion for Consideration, Spiro now clarifies that it
“never argued its business should not be considered . . . a ‘coal or other mine’ per Section 3 of
the Mine Act.” (Mot. Cons. 2.) Rather, Spiro argues that the Secretary lacks jurisdiction because
its Calder Mine has not affected interstate commerce. (Id.)

Section 4 of the Mine Act states: “Each coal or other mine, the products of which enter
commerce, or the operations or products of which affect commerce, and each operator of such
mine, and every miner in such mine shall be subject to the provisions of this chapter.” 30 U.S.C.
§ 803. It is well-established that the language of Section 4 demonstrates Congress’s intent to
exercise its full authority under the Commerce Clause to regulate the mining industry. D.A.S.
Sand & Gravel, Inc. v. Chao, 386 F.3d 460, 462–63 (2d Cir. 2004), cert. denied, 544 U.S. 1048
(2005); United States v. Lake, 985 F.2d 265, 267–68 (6th Cir. 1993); Marshall v. Kraynak, 604
F.2d 231, 232 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980). Accordingly, the Mine Act has
been held to apply to operations that sell their products even on a purely intrastate basis. D.A.S.
Sand & Gravel, 386 F.3d at 463–64. Such operations may engage in activity affecting interstate
commerce through purchasing mining supplies from a local dealer or consuming commercially
produced electricity. Lake, 985 F.2d at 269.

Spiro’s Motion for Consideration contends that “a good faith argument may still exist to
be made and heard in these regards for an extension, modification, or reversal of existing law.”
(Mot. Cons. 2.) Spiro has yet to reveal the details of its good faith argument. Other than
referencing the Mine Act, Spiro does not offer any legal citations or concrete factual support for
its position, such as affidavits or other documentation. Consequently, Spiro has failed to
demonstrate the absence of a genuine issue of material fact on the question of jurisdiction.
Nonetheless, Spiro is welcome to introduce any legal arguments or evidence supporting its
position at a hearing on this matter.

B.        Secretary’s Statement of a Claim

Spiro also contends that my Denial Order improperly concludes that the Secretary has
stated a proper claim. (Mot. Cons. 2–3.) As noted above, Spiro’s motion to dismiss for failure to
state a claim was treated as a motion for summary decision. The Secretary’s citation narrative
states verbatim:

While I was issuing a citation to the Contractor for working men in the face of an
order, Jon Marusich, drove up in his pickup and bumped me in the hip with his
left front headlight. This was witnessed by two Spiro Mining, LLC, employees.
Also another MSHA Inspector witnessed this act. This incident happened at the
north end of the mining area on the north side of the sediment pond.

(Petition, Ex. A.) My Denial Order summarized the content of MSHA’s Program Policy Manual,
as well as related Commission precedent, which unambiguously emphasizes the seriousness and
illegality of interfering with an MSHA inspector. Spiro, 34 FMSHRC __, slip op. at 3–4. The
Order concluded that based on the record of this case, the Secretary had alleged interference with
her duty to inspect the Nation’s mines. Id. at 4. Because Spiro failed to demonstrate the absence
of a justiciable issue of fact, Spiro’s request for dismissal was denied. Id.

As with its jurisdictional argument, Spiro’s Motion for Consideration does not cite legal
authorities or offer factual information supporting its request for reconsideration.

Rather, Spiro
explains that “the way the Order infers and determines that an allegation of potential interference
exists when that was not, but perhaps should have been, pled is of most concern to my client.”
(Mot. Cons. 2 (emphasis in original).) Spiro argues that “a four corners reading of MSHA’s
pleading and citation can support many diverse scenarios” and creatively suggests a few non-violative conclusions that could be drawn from the citation narrative. (Id.)

Here, Spiro overlooks the fundamental rule that in deciding any motion for summary
decision this Court must evaluate the evidence, and any inferences that may be drawn from that
evidence, in the light most favorable to the non-moving party. Unfortunately, Spiro offers only
mere assertions in support of its position. Therefore, in evaluating the record of this case in the
light most favorable to the Secretary, I must conclude that Spiro has not demonstrated an absence
of a genuine issue of fact with regard to this citation. Of course, my conclusion does not deny
Spiro the opportunity to prove its side of this case. Spiro may certainly introduce any legal
arguments or evidence supporting its position at a hearing on this matter.

C.        Recusal

The final issue raised by Spiro’s Motion for Consideration is my impartiality. Spiro takes
issue with the Denial Order’s rejection of its arguments as “meritless” and my citation to
Commission Rule 80 governing the standards of conduct in Commission proceedings.

(Mot.
Cons. 1–3.) Spiro also objects to my Denial Order’s citation to the procedural history of three
dockets pending before Judge Andrews. (Id. at 1.) Spiro further suggests that the Denial Order’s
analysis of the Secretary’s claim reveals judicial bias: “[T]he way the Order infers and
determines that an allegation of potential interference exists . . . may indicate potential judicial
bias existing in this case to predispose the tribunal’s rulings towards the government’s
perspectives and away from fair considerations of Respondent’s positions that deserve equal,
even-handed treatment.” (Mot. Cons. 2.)

As for the role of the Administrative Law Judge, the Commission has stated:

[A] judge is an active participant in the adjudicatory process and has a duty to
conduct proceedings in an orderly manner so as to elicit the truth and obtain a just
result. Among a judge’s specific obligations in this regard is a duty to admonish
counsel, when necessary, during the course of proceedings . . . .

Sec’y of Labor ex rel. Clarke v. T.P. Mining, Inc., 7 FMSHRC 989, 993 (July 1985) (citations
omitted). The Commission has reviewed the question of whether an Administrative Law Judge
properly decided not to recuse himself from a case in the face of accusations of bias for rebuking
the Respondent’s counsel during the trial in a prior, unrelated proceeding. Medusa Cement Co.,
20 FMSHRC 144 (Feb. 1998). In Medusa Cement, the Commission found guidance in the
Supreme Court’s decision Liteky v. United States, 510 U.S. 540 (1994). 20 FMSHRC at 148–49.
In Liteky, the Court stated:

First, judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. . . . Almost invariably, they are proper grounds for appeal, not
for recusal. Second, opinions formed by the judge on the basis of facts introduced
or events occurring in the course of . . . current proceedings . . . do not constitute a
basis for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make a fair judgment impossible. . . . Not establishing bias
or partiality, however, are expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect men and women,
even after having been confirmed as federal judges, sometimes display.

510 U.S. at 555–56 (citation omitted). 

As noted above, my Denial Order summarized and applied the law pertaining to Spiro’s
arguments. Noting the dearth of legal or factual support in Spiro’s pleadings, the Denial Order
concluded that Spiro’s arguments lacked merit. Spiro may certainly ask the Commission to
review this decision. However, a run-of-the-mill denial of a request for summary decision is not
a proper ground for recusal.

My Denial Order also noted the Secretary’s citation to Judge Andrews’s Order Denying
Respondent’s Motions to Dismiss for Failure to State a Claim, for Default Order and Dismissal
Order, to Dismiss Multi-Defaulted Civil Penalty Petition and for “Judicial” Notice of Chronic
Pattern of Lateness and Request for Dismissal (“Multi-Denial Order”) in CENT 2011-554,
CENT 2011-563, and CENT 2011-610. Spiro, 34 FMSHRC __, slip op. at 4 n.1. My Denial
Order further noted the Secretary’s citations to Judge Andrews’s denial of Spiro’s request for
certification of interlocutory review and the Commission’s denials of Spiro’s Petition for
Interlocutory Review and Petition for Reconsideration. Id. In the Motion for Consideration
before me, Spiro explains that the decisions in Judge Andrews’s case following the Multi-Denial
Order involved an issue different from the ones in this case. (Mot. Cons. 1.)

With over 15,000 cases pending in the Commission’s Office of Administrative Law
Judges and approximately 500 cases on my docket alone, my Denial Order sought to encourage
Spiro to conserve the limited sources of this Commission by substantiating its positions with
factual submissions and the discussion of relevant legal authorities. Unfortunately, the six
pleadings submitted by the parties since the issuance of my Denial Order continue to raise a lot
of sound and fury signifying nothing.

Indeed, Spiro fails to advance its cause by not producing
any evidence that would support the actions it wants this Court to take. Rather, Spiro attempts to
cast doubt on the Court’s impartiality instead of accepting that it failed to meet its burden to
prevail in its pretrial motions. This Court will not shirk from its responsibility to follow the law
or to educate counsel on the law. Moreover, admonishing counsel not to waste this Court’s time
with hollow arguments is a proper function of the Administrative Law Judge and not a reason for
recusal.

WHEREFORE, based on the foregoing, Spiro’s Motion for Consideration is DENIED.

II. Respondent’s Motion for Certification

Spiro seeks certification for interlocutory review of the denial of its Motions to Dismiss,
as well as the Commission’s review of its concerns of judicial bias. (Mot. for Certification.)
Commission Rule 76 permits the Commission’s discretionary review of interlocutory
Administrative Law Judge decisions. 29 C.F.R. § 2700.76. Review may be granted where “[t]he
Judge has certified, upon his own motion or the motion of a party, that his interlocutory ruling
involves a controlling question of law and that in his opinion immediate review will materially
advance the final disposition of the proceeding.” Id. § 2700.76(a)(1)(i).

The issues raised by Spiro involve controlling questions of law, as a decision in its favor
may result in the dismissal of this case. However, other than general citations to the Mine Act
and the Supreme Court decision United States v. Lopez, 514 U.S. 549 (1995), which did not
concern the Mine Act, Spiro offers no concrete factual or legal support revealing the substance of
its arguments. Indeed, as noted supra p. 2, the Supreme Court has twice denied certiorari in
appeals from circuit court decisions passing upon the breadth of the Secretary’s subject matter
jurisdiction under the Mine Act and the Commerce Clause. With no cognizable evidence
demonstrating that the Commission would reach a different decision than the Denial Order, Spiro
has failed to show that immediate review by the Commission would advance the final disposition
of this proceeding.

WHEREFORE, based on the foregoing, Spiro’s Motion for Certification is DENIED.

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution:

Matthew P. Sallusti, Esq., U.S. Department of Labor, Office of the Solicitor, 525 South Griffin
Street, Suite 501, Dallas, TX 75202

Tony Joe Huffman, Esq., T.J. Huffman, Attorney at Law, P.O. Box 453, Spiro, OK 74959

/jts