Sharp v. Big Elk Coal Company

Plain-English summary

Arnold Sharp brought a Mine Act discrimination complaint after his discharge from Big Elk Coal Company. The ALJ had stayed the case while criminal perjury proceedings involving a key company witness were pending. The Commission found the record too vague to support the stay and emphasized Sharp's right to an expeditious hearing. It vacated the stay and remanded for further proceedings and a more informed evaluation of the witness's claimed Fifth Amendment privilege.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: The existing stay was vacated, and the case was remanded for further proceedings.
• Key point: A stay based on a witness's possible Fifth Amendment claim requires a developed factual record showing how the criminal case affects the discrimination proceeding.

Full text (FMSHRC public release)

CCASE:
ARNOLD SHARP V. BIG ELK COAL
DDATE:
19900502
TTEXT:

             FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                            WASHINGTON, D.C.
                                May 2, 1990

ARNOLD SHARP

v. Docket No. KENT 89-147-D

BIG ELK COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, Nelson,
Commissioners

                  DECISION

BY THE COMMISSION:

In this section 105(c)(3) discrimination proceeding arising under

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. section 801
et seq. (1982), the Commission granted Arnold Sharp's petition seeking
interlocutory review of an order of Administrative Law Judge Gary Melick
issued February 16, 1990.

The subject order was issued in response to a letter, dated

February 5, 1990, from Sharp to the judge. Sharp, who is appearing
pro se, had requested the judge remove himself from the case because
he had issued orders staying the proceedings over Sharp's objections.
In the letter, Sharp expressed concern for a fair hearing and sought
dissolution of the existing stay order, renewing his demand for a
prompt hearing.

In his order denying Sharp's request that the stay be dissolved the
judge stated:

    ... This case has indeed twice been stayed pending
    final disposition of criminal perjury charges against
    an alleged essentiall witness in this proceeding,
    Jim Meese. The Complainant himself has indeed

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  maintained and pursued those charged. The outcome
  of such perjury charged could have a critical impact
  on the instant case, and, of course, if such charges
  could indeed very well benefit the Complainant's
  position in this case.

February 16, 1990 Order at 2.

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Thereafter Sharp filed the petition for interlocutory review
which was granted.

The record developed to date indicates that, subsequent to his

February 28, 1989 discharge, Sharp appeared and testified before a
Commonwealth of Kentucky Department of Employment Services referr
in an effort to secure unemployment compensation. Respondent's
Administrative Director, Jim Meese, also testified at this hearing.
Because Sharp believed Meese's testimony at that hearing to be false,
he caused a criminal complaint and arrest warrant to be issued against
Meese. Accordingly, on Septmber 13, 1989, Respondent moved for a
postponement of the instant action, asserting that Meese, the principal
and likely only witness for respondent in the Mine Act discrimination
proceeding pending before the administrative law judge, intended to
assert his Fifth Amendment privilege against self-recrimination
"prevent[ing] him from testifying further as to the matters surrounding
the criminal case and any collateral civil matter." Motion for
Postponement at 2.

Sharp filed his opposition to the motion for postponement arguing
that the criminal matter has no bearing upon the discrimination matter.
Sharp requested tht the then scheduled hearing before the administrative
law judge go forward.

The respondent filed a reply asserting:

  ... The subject matter of the unemployment hearing
  factually mirrors the instant proceeding. Should
  Mr. Meese testify in the hearing scheduled in this
  discrimination proceeding before the Federal Mine
  Safety and Health Review Commission relative to
  the facts surrounding Complainant's discharge, he
  would waive his Fifth Amendment privilege against
  self-recrimination. In Re: Atterbury, 316 F.2d 106,
  109 (6th Cir. 1963); Anderson v. Commonwealth, Ky.
  App., 554 S.W. 2d 882, 884 (1977).

On September 20, 1989, the judge issued an Order of Continuance
and Stay Order:

  I find upon consideration of the circumstances that
  the Motion for Continuance is well-founded and that
  it would be in the best interests of this litigation
  to grant a brief continuance and stay in these
  proceedings pending disposition of the noted criminal

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  proceedings. This is particularly true in this case
  since the criminal charges involve a claim that a
  witness apparently essential to this case gave a false
  statement in a related proceeding and that criminal
  case is already scheduled for trial in the near future.

Order at 3.

Thereafter, on January 5, 1990, the criminal charge against Meese

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was dismissed. However, on January 22, 1990, the dismissal was appealed
and the criminal action remains pending. Noting these occurrences and
over the objections of Sharp, the administrative law judge issued a
second stay oder on February 2, 1990, pending "... final disposition of
the noted criminal proceedings." Order at 1.

In determining whether a Fifth Amendment privilege is validly
invoked, the judge has wide but not unlimited discretion. In exercising
that discretion, however, the judge must be informed. United States v.
Metz, 608 F.2d 147, 156 (5th Cir. (1979)), cert denied, 449 U.S. 821,
101 S.Ct. 80, 66 L.Ed. 2d 24 (1980); United States v. Van Deveer, 577 F.2d
1016, 1017 (5th Cir. 1978); United States v. Hart, 729 F.2d 662, 670
(10th Cir. 1984); cert denied, 469 U.S. 1161, 105 S. Ct. 914, 83 L.Ed
2d 927. The mere assertion of the Fifth Amendment privilege, without more
does not exonerate a witness from testifying. The judge must make an
informed determination of the validity of the claim. United States v.
Sheikh, 654 F.2 1057 (5th Cir. 1981), cert denied, 455 U.S. 991, 102 S.Ct.
1617, 71 L.Ed. 2d 852.

We have thoroughly reviewed the present record and find an inadequate

basis for the existing stay. The record contains only a vague indication
of the exact nature of the criminal charges pending against respondent's
witness Meese. More importantly, there is no clear indication as to how
those charges impact upon the issues presented by Sharp's complaint of
unlawful discharge in violation of section 105(c) of the Mine Act. As
such, the record contains an inadequate foundation for the present
acceptance of respondent's bald claim that Meese's testimony in the instant
case necessarily would result in a waiver of his Fifth Amendment privilege.
Further demonstration by respondent and further inquiry by the jude are
required, especially in light of Sharp's right under the Mine Act to an
expeditious hearing on his discrimination complaint.

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Accordingly, we vacate the existing stay and remand to the judge
for further proceedings consistent with this order.

Distribution

Mr. Arnold Sharp
General Delivery
Bulan, Kentucky 41722

Edwin S. Hopson, Esq.
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202

Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041