Big Ridge, Inc. v. Secretary of Labor

Plain-English summary

Big Ridge sought MSHA's Special Assessment Review forms for the citations and orders in these cases, or alternatively asked the judge to strike the specially assessed penalties. Judge Thomas P. McCarthy held that the recommendation and review sections of the forms were part of MSHA's pre-decisional deliberative process. Although the privilege could yield if disclosure were essential to a fair decision, Big Ridge did not make that showing. The remaining form fields contained basic facts the company already had, so the judge denied both the discovery motion and the request to strike the penalties.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(d)
• Outcome: The motion to compel Special Assessment Review forms and the request to strike specially assessed penalties were denied.
• Key point: Internal recommendations supporting a special assessment are protected by deliberative-process privilege unless the requesting party shows disclosure is essential to a fair determination.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 9, 2012

BIG RIDGE, INC.,

Contestant

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

BIG RIDGE, INC.,

Respondent

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

CONTEST PROCEEDINGS

Docket No. LAKE 2012-453-R

Citation No. 8431667; 03/06/2012

Docket No. LAKE 2012-454-R

Citation No. 8431668; 03/06/2012

Docket No. LAKE 2012-455-R

Citation No. 8431669; 03/06/2012

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2012-263

A.C. No. 11-03054-273420-03

Docket No. LAKE 2012-262

A.C. No. 11-03054-273420-02

Docket No. LAKE 2012-174

A.C. No. 11-03054-270696-02

Docket No. LAKE 2012-175

A.C. No. 11-03054-270696-03

Docket No. LAKE 2011-349

A.C. No. 11-03054-242336-02

Mine: Willow Lake Portal

ORDER DENYING RESPONDENT’S MOTION TO COMPEL

These cases are before me upon three Notices of Contest and related Petitions for
Assessment of Civil Penalties, under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). Respondent filed a Motion to Compel Discovery and a Motion for
Extension of Time to File Prehearing Reports.

In its Motion to Compel Discovery, Respondent
asks that the Secretary be required to produce, where applicable, all Special Assessment Review
(SAR) forms for the citations and orders at issue in these matters.

Absent such production,
Respondent asks that the Secretary’s request for specially-assessed penalties be stricken.

During discovery, the Secretary provided Respondent with a privilege log, withholding,
inter alia, the SAR forms and claiming deliberative process privilege. The sufficiency of that
privilege log is not at issue. In response to the motion to compel, the Secretary filed an
Opposition arguing that the SAR forms are not relevant discoverable matter, are fully protected
by the deliberative process privilege, and are not essential to a fair determination in this
proceeding.

The Commission has not decided whether SAR forms are discoverable. This is likely
because discovery issues are not subject to interlocutory review under Commission precedent and
may become moot after a case is settled or litigated. See Asarco, Inc., 14 FMSHRC 1323, 1328
(Aug. 1992) (“[U]nless there is a ‘manifest abuse of discretion’ on the part of a judge, discovery
orders are not ordinarily subject to interlocutory appellate review”).

Commission judges are split on whether the SAR forms are discoverable. Pocahontas
Coal Co., LLC, 34 FMSHRC 903 (Apr. 2012) (ALJ Feldman) (motion to compel SAR forms
denied because Secretary’s special assessment criteria is not relevant given de novo authority of
Commission to assess civil penalties, however, personal observations of issuing inspector which
may have served as basis for special assessment is discoverable through depositions); Hidden
Splendor Resources, Inc., 33 FMSHRC 2345 (Sept. 2011) (ALJ Rae) (motion to compel denied
as SAR forms protected from disclosure by work product and deliberative process privileges and
irrelevant to de novo determination of assessed penalty); Humphrey Enterprises, Inc., 2011 WL
7463292 (Dec. 2010) (ALJ Paez) (motion to compel denied as entire form protected by
deliberative process and not essential to a fair determination); but see Consolidation Coal Co., 34
FMSHRC ___, slip op., No. WEVA 2011-940 (July 6, 2012) (ALJ Barber) (motion to compel
granted since court must explain significant departures from penalties proposed; operator has
right to know why special assessments were made; forms explain inspector’s recommendation
by reciting facts and whether supervisor, assistant district manager and district manager agree
with inspector’s factual assessment; and forms contain facts already known, with no meaningful
discussion of pros and cons for special assessments, and no exegesis of policy reasons behind
Secretary’s choices); Big Ridge Inc., Unpublished Order, No. LAKE 2011-716 (Mar. 16, 2012)
(ALJ Zielinski) (motion to compel SAR forms granted as to all factual portion of forms in boxes
1-10, including inspector’s recommendation for special assessment in box 10, but allowing
Secretary to redact comments of reviewing supervisor, assistant district manager, and district
manager in boxes 11-13, respectively); American Coal Company, 33 FMSHRC 2352 (Sept.
2011) (ALJ Melick) (motion to compel denied as to SAR forms; deliberative process privilege
found to be inapplicable because positions taken in the documents were adopted as the agency’s
position regarding the “charging documents” at issue; forms contain inspector’s factual basis for
recommendations, and “upon the Secretary’s acceptance by issuing citations, the inspector’s
recommendations and those of his supervisors become the agency’s position and any claim to
deliberative process is thereby lost,” citing CDK Contracting Co., 25 FMSHRC 88, 90 (Feb.
2003) (ALJ Manning) (motion to compel SAR forms granted, even though forms were found
irrelevant and inadmissible for penalty assessment purposes, and not protected by deliberative
process privilege on which Secretary had taken inconsistent position in past cases, because forms
had marginal relevance to high negligence and unwarrantable failure determinations); Aggregate
Industries, West Central Region, Inc., 25 FMSHRC 88, 89 (Feb. 2003) (ALJ Manning) (same).

Having reviewed my colleagues’ various opinions and the sampling of SAR forms turned
over by the Secretary in camera, I find myself guided by Judge Paez’s well-reasoned and
thoroughly researched decision in Humphrey Enterprises, Inc., supra, 2011 WL 7463292 (Dec.
2010) (ALJ Paez). I need not repeat that scholarly analysis here. In short, I conclude that boxes
10-13 of the SARs forms are protected by the deliberative process privilege because they contain
the inspector’s recommendation and his supervisor’s, assistant district manager’s, and district
manager’s review as to whether a violation is flagrant and/or warrants a special assessment
during the pendency of an open case that may be settled or litigated. The documents are part of a
pre-decisional process that leads to a final agency decision as to whether a violation should be
deemed flagrant and/or be specially assessed. The SAR forms travel from a subordinate issuing
inspector, who makes a factual or strategic advice-giving recommendation, through superior
officials, who engage, at times rather perfunctorily, in the give-and-take of the deliberative
process, and either agree or disagree with the recommendation for the same or independent
reasons. This is the essence of the deliberative process, a well-established privilege, imbedded in
American jurisprudence. See generally Coastal States Gas Corp. v. Dep’t of Energy, 617 F. 2d
854, 866-870 (D.C. Cir. 1980).

Respondent cites Coastal States for the proposition that “even if the document is pre-decisional at the time it is prepared, it can lose that status if it is adopted formally or informally,
as the agency position.” R. Mot. at 6, citing 617 F.2d at 866. The Court, however, cited no
authority for this dicta. Moreover, the Commission has rejected the conclusion that documents
concerning completed matters automatically fall outside the privilege. See In re: Contests of
Respirable Dust Sample Alteration Citations (Dust Cases), 14 FMSHRC 987, 994 (June 1992).
Here, the litigation is not completed, and the Narrative Findings for a Special Assessment
attached to the Petitions do not contain the same deliberative material that is set forth in boxes
10-13 of the SAR forms. That material reflects advisory opinions, recommendations, and
deliberations comprising the process by which MSHA’s special assessment and/or flagrant
decisions are formulated. Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).

Accordingly, I conclude that boxes 10-13 of the SAR forms are protected by the
deliberative process privilege, a qualified privilege that is subject to the balancing test set forth in
Bright Coal Company, 6 FMSHRC 2520 (Nov. 1984), governing the informant's privilege. Dust
Cases, 14 FMSHRC at 994. In other words, if “disclosure is essential to the fair determination of
a case, the privilege must yield.” Bright Coal Co., 6 FMSHRC at 2523 (citing Roviaro v. United
States, 353 U.S. 53, 60-61 (1957)). This analysis turns on the particular circumstances of each
case, including whether the Secretary is in sole control of the information, the nature of the
violation, possible defenses, and the impact of the information. Dust Cases, 14 FMSHRC at
988; Bright Coal Co., 6 FMSHRC at 2526. The party seeking disclosure, Respondent here, has
the burden of proving the facts necessary to establish that the information sought is essential to a
fair determination of the case. Bright Coal Co., 6 FMSHRC at 2526. Respondent has not met its
burden as the Motion to Compel is silent on the appropriate analysis.

Concededly, boxes 1-9 of the SAR forms contain basic facts about the case. These boxes
set forth the following: “MSHA District Office, Field Office, Mine ID/Contractor ID, Mine
Name, Operator Name, Citation/Order Number, Citation/Order Issue Date, and Yes or No boxes
to be checked in response to queries, “Accident Related Violation?” and “Operator Notified of
Special Assessment?”. Normally, Respondent is entitled to such factual information that does
not expose an agency’s decision making process and does not come within the ambit of the
privilege. Dust Cases, supra, 14 FMSHRC at 993 (citing Exxon v. Doe, 585 F. Supp. 690, 698
(D.D.C. 1983)). Respondent already has this basic factual information, however, and it would be
unduly burdensome and wasteful to require the Secretary to turn over this information after
redacting boxes 1-9. Although the inspector’s recommendation for special assessment in box 10
may, at times, contain a significant amount of factual information, that information directly
relates to the task of determining and recommending whether a special assessment or flagrant
assessment is warranted. Consequently, because this information guides the Secretary's
deliberative decision-making process, it must be privileged as well. Cf. Consolidation Coal, 19
FMSHRC 1239, 1249-50 (July 1997) (determining that factual material was not privileged
because it did not play a role in agency's decision-making process).

For the reasons set forth above, Respondent’s Motion to Compel Discovery is DENIED.
Respondent’s request that the specially-assessed penalties be stricken is also DENIED.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Letha A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202-5710

Arthur Wolfson, Esq., Jackson Kelly, PLLC, 3 Gateway Center, Suite 1500, 401 Liberty Ave.,
Pittsburgh, PA 15222