UMWA o/b/o Rowe v. Peabody Coal Company

Plain-English summary

The Commission had previously found that Administrative Law Judge Joseph B. Kennedy engaged in a prohibited ex parte communication, verbally abused attorneys, and commented publicly on a pending proceeding. Judge Kennedy moved for reconsideration, arguing that the Commission denied him due process and lacked authority to discipline him. The Commission held that it could investigate possible misconduct through sworn statements and did not have to conduct a trial-type evidentiary hearing when the material facts were undisputed. It denied reconsideration, while explaining that it had not imposed discipline and that any designated adverse action against an ALJ would be handled by the Merit Systems Protection Board.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.80 and 2700.82; 30 U.S.C. § 823(c); 5 U.S.C. § 7521
• Outcome: The Commission denied Judge Kennedy's motion for reconsideration of its prior misconduct findings.
• Key point: The Commission may investigate alleged ex parte communications and judicial misconduct through sworn statements without an evidentiary hearing when the material facts are undisputed.

Full text (FMSHRC public release)

CCASE:
UMWA V. PEABODY COAL
DDATE:
19860527
TTEXT:
FMSHRC-WDC
May 27, 1986
UNITED MINE WORKERS OF AMERICA
(UMWA)
on behalf of JAMES ROWE, et al., Docket Nos. KENT 82-103-D
JERRY D. MOORE, LARRY D. KENT 82-105-D
KESSINGER KENT 82-106-D

v.

PEABODY COAL COMPANY

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of THOMAS L. WILLIAMS Docket No. LAKE 83-69-D

v.

PEABODY COAL COMPANY

BEFORE: Backley, Lastowka and Nelson, Commissioners

ORDER

BY THE COMMISSION:

The Commission concluded previously that Commission
Administrative Law Judge Joseph B. Kennedy, while presiding in
the above-captioned matter, acted improperly by: (1) engaging in
a prohibited ex parte communication; (2) verbally abusing attorneys
appearing before him; and (3) commenting publicly on a pending
proceeding. United Mine Workers on behalf of Rowe v. Peabody Coal
Co., 7 FMSHRC 1136 (August 1985). The Commission's decision was the
result of an inquiry into allegations contained in a letter to the
Commission from Francis X. Lilly, then the Solicitor of the Department
of Labor. 1/ Judge Kennedy has moved for reconsideration of the
decision. For the reasons that follow the motion is denied.

1/ The Commission is an independent adjudicatory agency established
by Congress to resolve legal disputes under the Federal Mine Safety
and Health Act of 1977 ("the Mine Act"), 30 U.S.C. $ 823 (1982).
The Commission is not a part of and is in no way connected with the
Department of Labor. Rather, the Department of Labor appears before
the Commission as a party to litigation under the Mine Act.

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Although the factual background and procedural history of
this matter are fully described in the Commission's previous
decision, we will briefly set forth those facts pertinent to an

Page 2

understanding of the present order. The Solicitor asserted that
Judge Kennedy had initiated a prohibited ex parte telephone
conversation with a Department of Labor attorney, Linda Leasure,
in which they discussed the merits of the above-captioned
discrimination proceeding. The Solicitor also asserted that the
judge exhibited abusive conduct toward the Secretary's trial counsel,
Frederick W. Moncrief, and toward counsel for the United Mine Workers
of America and Peabody Coal Company at an oral argument on the merits
of the captioned proceeding. Finally, the Solicitor asserted that
Judge Kennedy had threatened Moncrief during a confrontation between
the two, occurring at the judge's office subsequent to the oral
argument. The Solicitor's letter was accompanied by affidavits from
Leasure and Moncrief and by portions of the transcript of the oral
argument.

The Commission deemed the Solicitor's letter and the accompanying
materials to be, in part, a notification of a prohibited ex parte
communication and a request for appropriate action under Commission
Procedural Rule 82. 29 C.F.R. $ 2700.82. 2/ The Commission served the
judge and the parties with copies of the letter and attachments. The
Commission also severed the allegations of judicial misconduct from
the merits of the discrimination proceedings, reassigned the merits to
the Chief Administrative Law Judge, and retained jurisdiction over the
misconduct allegations.

2/ Rule 82 states:

(a) Generally. There shall be no ex parte
communication with respect to the merits of any case
not concluded, between the Commission, including any
member, Judge, officer, or agent of the Commission who
is employed in the decisional process, and any of the
parties or intervenors, representatives, or other
interested persons.

(b) Procedure in case of violation.

(1) In the event an ex parte communication in
violation of this section occurs, the Commission or
the Judge may make such orders or take such action as
fairness requires. Upon notice and hearing, the
Commission may take disciplinary action against any
person who knowingly and willfully makes or causes to be
made a prohibited ex parte communication.

(2) All ex parte communications in violation of this
section shall be placed on the public record of the
proceeding.

(c) Inquiries. Any inquiries concerning filing
requirements, the status of cases before the Commissioners,

Page 3

or docket information shall be directed to the Office of the
Executive Director of the Commission.... 29 C.F.R. $ 2700.82.

~683

In order to determine whether any improper conduct occurred,
an inquiry was initiated by the Commission. The Commission ordered
the judge to file a complete and detailed affidavit concerning the
reported matters. The Commission also noted that the judge had been
quoted in the Lexington [Kentucky] Herald-Leader as characterizing
the telephone conversation with Ms. Leasure as a trivial incident and
making critical comments regarding Mr. Moncrief. The Commission
therefore directed the judge also to disclose in his sworn statement
the substance of his conversation with the author of the article and
to state whether he had been quoted accurately.

In response to the Commission's order, the judge moved that the
inquiry be dismissed and that the order directing the filing of his
sworn statement be stayed. The judge asserted that the inquiry was
disciplinary in nature and that the Commission had no jurisdiction to
discipline a judge. The Commission denied the judge's motion stating:

Before this Commission undertakes to discipline, or
seek discipline of, an administrative law judge it needs
first to determine whether any disciplinary action is
required. The Commission has followed, and will continue
to follow, appropriate procedures in seeking to examine
the allegations of misconduct that have been raised in
this matter. If the Commission later determines that
grounds exist for forwarding this matter to the Merit
Systems Protection Board, it will do so. [3/]

The judge subsequently filed a sworn statement and the
Commission thereafter accepted for filing affidavits from Mr. Moncrief
and Cynthia A. Attwood, the Department of Labor's Associate Solicitor
for Mine Safety and Health. These affidavits responded to points
raised in the judge's affidavit. No further affidavits or other
submissions were filed and our decision followed.

The judge now asserts that in reaching our decision on the basis
of affidavits and without a confrontational hearing the Commission
denied him due process. He also asserts that, in any event, the
Commission lacks authority to issue a decision disciplining him and
that our decision improperly did so. We find these assertions to be
without merit.

3/ Under the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 and
Stat. 1111 (1978), the Merit Systems Protection Board ("MSPB") hears
decides an employing agency's complaint proposing certain designated
types of adverse action against an administrative law judge. 5 U.S.C.
$ 7521 (1982); see also 5 C.F.R. $ 1201.133 (1986).

Page 4

~684

The judge's argument that he was entitled to, and was denied,
an evidentiary hearing affording him the rights of confrontation and
cross-examination discloses confusion and misunderstanding over the
nature of the inquiry in this matter. When a possible ex parte
communication is brought to the Commission's attention, the Commission
has a legal and ethical responsibility under its rules to investigate
the matter. Secretary of Labor on behalf of Ronnie D. Beavers v.
Kitt Energy Corp. and United Mine Workers of America, 8 FMSHRC 15
(January 1986). The Commission also has the responsibility to
investigate reported possible instances of unethical or unprofessional
conduct in connection with Commission proceedings. When reports of
such conduct are made to the Commission an appropriate means to
commence our task is to solicit sworn statements from those who have
knowledge of the alleged prohibited conduct. Such statements can
establish facts bearing upon whether the actions occurred and were
in violation of the Commission's rules and applicable standards of
conduct. See 29 C.F.R. $ 2700.80(a), (b), and (c).

Through this procedure and through the submission of motions
and argument, an individual involved in such an inquiry has the right
and the opportunity to be heard. There is, however, no requirement
that the right to be heard necessarily incorporates an evidentiary
hearing. When the record and the sworn statements received are
corroborative or unrebutted as to the material issues, and establish
a violation of the Commission's rules or applicable standards of
conduct, it is proper for the Commission to enter an appropriate
finding on the basis of undisputed materiaL facts. As we have stated
this same date in Secretary of Labor on behalf of James M. Clarke v.
T.P. Mining, Inc., LAKE 83-97-D, slip op. at 4: "Summary decision
based on undisputed or unrebutted factual allegations is a procedural
course well known to the law. Due process is process that is due
under particular circumstances, and does not invariably mandate
trial-type proceedings. See, e.g., Hannah v. Larche, 363 U.S. 420,
442-43 (1960)." Conversely, when materially conflicting allegations
exist, an evidentiary hearing may be necessary in order to resolve
the conflicts. See T.P. Mining, supra, slip op. at 2.

Our actions here are in accord with these principles. The
judge was given full opportunity to be heard, as were the other
individuals involved. The Commission solicited the judge's sworn
statement. The Commission entertained the judge's various motions
and supporting arguments. In concluding that the subject
communication was ex parte and prohibited; that the judge abused
the attorneys appearing before him; and that the judge's comments
as reported in the Lexington [Kentucky] Herald-Leader represented
improper judicial conduct, the Commission relied on the public record

Page 5

and the non-conflicting portions of the sworn statements of the judge
and other parties. 4/ 7 FMSHRC at 1140-44, 1144-46, 1147-48. On the
other hand, because the sworn statements

4/ Indeed, the Commission found that the ex parte communication was
prohibited even as described by the judge alone. 7 FMSHRC at 1143.

~685

of the respondents were conflicting and thus failed to reveal the
precise content of the out-of-court incident involving the judge and
Mr. Moncrief, the Commission declined to conclude that standards of
professional conduct were violated. 7 FMSHRC 1146-47.

The Commission was not required by either Commission Procedural
Rule 80 or Rule 82 to provide the judge with an evidentiary hearing.
Rule 80 sets forth standards of conduct for "individuals practicing
before the Commission" and provides procedures for determining whether
discipline is warranted for violations of those standards. A
Commission administrative law judge is not an "individual practicing
before the Commission" and, hence, Rule 80 is totally inapplicable to
the conduct herein involved. Further, Rule 82(b)(1) provides that in
the event of a prohibited ex parte communication that the Commission
"may make such orders or take such action as fairness requires" and
that "[u]pon notice and hearing, the Commission may take disciplinary
action against any person who knowingly and willfully makes or causes
to be made a prohibited ex parte communication." As the judge is
aware the Commission has not imposed any discipline on him. ("The
Commission did not impose any discipline in its August 5 decision...."
Motion for Reconsideration at 2 n. 1.) As we have noted, it is the
MSPB that by statute and regulation hears and decides designated types
of adverse action against an administrative law judge. All that we
have done is "to engage in an appropriate process to determine whether
discipline is warranted." 7 FMSHRC at 1139 n. 2.

Therefore, the judge's motion for reconsideration is denied. 5/

Richard V. Backley, Commissioner
James A. Lastowka, Commissioner
L. Clair Nelson, Commissioner

5/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. $ 823(c),
we have been designated a panel of three members to exercise the
powers of the Commission in this matter.

~686

Distribution

Philip G. Sunderland, Esq.
Terris & Sunderland
1121 12th St., N.W.
Washington, D.C. 20005

Cynthia Attwood, Esq.
Associate Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Michael McKown, Esq.
Peabody Coal Company
P.0. Box 373
St. Louis, Missouri 63166

Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005

Dennis Clark, Esq.
1100 17th St., N.W.
Suite 800
Washington, D.C. 20036

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