Secretary of Labor on behalf of James M. Clarke v. T. P. Mining, Inc. (Commission decision, June 14, 1984)

Plain-English summary

During a pending petition for review in James Clarke's discrimination case, an ALJ sent the Commission a letter responding to the Secretary's petition. The Commission ruled that the letter improperly bypassed its procedural rules and would not enter the official case record or inform its decision on the petition. Because the letter described a telephone conversation between the judge and the operator's lawyer without the Secretary's lawyer present, the Commission retained it for inquiry. It ordered the judge and operator's lawyer to submit sworn statements describing the conversation. The underlying review petition remained unresolved by this order.

Decision snapshot

• Governing provision: Commission Rule 82, cited for inquiry into the possible private communication.
• Outcome: Judge's letter excluded from the case record; sworn statements ordered by June 22, 1984.
• Key point: The Commission sought facts about a possible prohibited private communication before resolving the pending review issues.

Full text (FMSHRC public release)

CCASE:
JAMES CLARKE (MSHA) V. T.P. MINING
DDATE:
19840614
TTEXT:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION WASHINGTON, D.C. 20006
JUNE 14, 1984

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

on behalf of JAMES M. CLARKE

v. Docket No. L 83-97-D

T. P. MINING, INC.

ORDER

Administrative Law Judge Joseph B. Kennedy's letter of May 31, 1984, "responding" to the Secretary of Labor's petition for discretionary review in this matter is an improper circumvention of the Commission's Rules of Procedure. Accord, Belcher Mine, Inc., Docket No. SE 84-4-M (Order, June 1, 1984). Therefore, it will not be placed in the official record in this case nor will it be considered by the Commission in ruling on the issues presented by the Secretary's petition for discretionary review.

Unlike the action we took in Belcher, however, we do not at this time return the letter to the judge. Rather, because the letter, on its face, indicates that the judge engaged in a prohibited ex parte telephone conversation with counsel for the operator, 1/ we will retain the letter in a separate file pending appropriate inquiry pursuant to Commission Rule 82. See also Inverness Mining Co., 5 FMSHRC 1384, 1388 n. 3 (August 1983); Knox County Stone Co., 3 FMSHRC 2478 (November 1981).
___
1/ At page 3 of his letter the judge states:

It is worth noting that at no time did counsel for the operator join the Solicitor in asserting that an "important ingredient" of the money settlement to Mr. Clarke was "the Secretary's determination to forsake the civil penalty." This was because the basis for the settlement was fully disclosed in a discussion between counsel for the operator and the trial judge to which
[counsel for the Secretary] was not a party. [Emphasis added].
~1402
Accordingly, the administrative law judge and counsel for the operator are hereby ordered to submit sworn statements providing full disclosure of the details and substance of their telephone conversation of March 28, 1984. It is further ordered that these statements be received by the Commission. and served on counsel for the Secretary, no later than Friday, June 22, 1984.
~1403
Distribution
Michael A. McCord, Esq.
Frederick W. Moncrief, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

John J. Malik, Jr., Esq.
Malik, Knapp, Kigerl & Frizzi
3381 Belmont Street
Bellaire, Ohio 43906

Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health Review Commission 5203 Leesburg Pike, lOth Floor Falls Church, Virginia 22041