Secretary of Labor o/b/o Clarke v. T.P. Mining, Inc.

Plain-English summary

The Commission had previously found that Administrative Law Judge Joseph B. Kennedy and counsel for T.P. Mining engaged in a prohibited ex parte communication during a discrimination proceeding. Judge Kennedy moved for reconsideration, arguing that he lacked notice of the specific allegations and had been denied an evidentiary hearing. The Commission held that its preliminary inquiry and use of sworn statements were proper because the material facts were undisputed and Judge Kennedy had an opportunity to respond. It denied the motion and emphasized that it had not disciplined the judge.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.82
• Outcome: The Commission denied the motion for reconsideration of its finding that a prohibited ex parte communication occurred.
• Key point: A Commission inquiry may end in a summary decision when sworn statements and the record establish a rule violation without material factual disputes.

Full text (FMSHRC public release)

CCASE:
MSHA V. T.P. MINING
DDATE:
19860527
TTEXT:

             FMSHRC-WDC
             MAY 27, 1986

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

on behalf of JAMES M. CLARKE

 v.               Docket No. LAKE 83-97-D

T.P. MINING, INC.

BEFORE: Backley, Lastowka and Nelson, Commissioners

             ORDER

BY THE COMMISSION:

The Commission concluded previously in this matter that
Commission Administrative Law Judge Joseph B. Kennedy and counsel
for respondent T.P. Mining, Inc. ("T.P. Mining"), engaged in a
prohibited ex parte communication in violation of Commission
Procedural Rule 82, 29 C.F.R. $ 2700.82. 7 FMSHRC 1010 (July
1985). 1/ That conclusion resulted from

1/ Rule 82, entitled "Ex parte communications," provides:

(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

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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, or docket
information shall be directed to the Office of the Executive
Director of the Commission....

29 C.F.R. $ 2700.82.

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~688
an inquiry conducted to determine whether Rule 82 had been
violated during the course of pre-trial proceedings in this case.
Through counsel, Judge Kennedy has moved for reconsideration of
the Commission decision. For the reasons that follow, the motion
for reconsideration is denied.

The thrust of the motion for reconsideration is that the judge
was entitled to, and was denied, notice of the specific charges
against him and an evidentiary hearing. This assertion evidences a
misunderstanding of the nature of this proceeding and the meaning of
Rule 82. As shown below, the judge not only had full notice of the
concerns at issue in this matter and not only received such process
as was due under the circumstances, but in addition he, through his
counsel, demanded termination of the inquiry short of an evidentiary
hearing.

The factual background and procedural history of this matter

are fully described in the Commission's previous decision (7 FMSHRC
at 1011-14), and will not be repeated in detail here. In view of the
tone of the present motion for reconsideration, however, it bears
reemphasis that the challenged inquiry was triggered by the judge
sending an unsolicited letter to the Commission baldly announcing
that "the basis for the settlement [of the underlying discrimination
case] 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." Because the judge's statement indicated on its face
that an ex parte communication had occurred, the participants to the
conversation, namely, the judge and the operator's counsel, were
ordered to submit affidavits "providing full disclosure of the details
and substance" of their conversation.

When an alleged ex parte communication is brought to the
Commission's attention, the Commission has a legal and ethical
responsibility to pursue the matter. See e.g , Secretary of Labor
on behalf of Ronnie D. Beavers et al. v. Kitt Energy Corp., 8 FMSHRC
15 (January 1986). An appropriate means of commencing that task is
for the Commission to examine the record of the relevant proceeding
and to solicit statements from those who may have engaged in such a
communication or have knowledge of the events at issue, in order to
examine facts bearing on the question of whether a violation of
Commission rules occurred. If the results of such a preliminary
inquiry plainly disclose that no impropriety transpired, the whole
matter can then be terminated. See e.g , Beavers supra, 8 FMSHRC at
17-21. Conversely, when the record and the statements received are
corroborative or unrebutted as to the pertinent issues and establish

Page 4

a violation, a summary conclusion that a violation occurred may be
wholly proper under Rule 82 and settled norms of due process. If
materially conflicting allegations surface, however, a hearing may
be necessary. Against this background, we turn to the judge's
allegations that the procedures followed by the Commission in this
specific inquiry were improper.

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~689
After the Commission received Judge Kennedy's unsolicited
letter disclosing that he had engaged in an off-the-record
conversation with counsel for one of the parties before him, the
Commission solicited affidavits from the participants to the
conversation. The initial statements received from Judge Kennedy
and the operator's counsel were extremely summary in nature. Their
statements averred that on March 28, 1984, they had engaged in a brief
telephone conversation pertaining to the status of the settlement,
including whether a settlement check had been mailed to the claimant.
7 FMSHRC at 1012-13. After the submission of these statements, the
Commission received and accepted from Michael McCord, the Secretary of
Labor's appellate counsel, a sworn statement containing further
information relevant to the March 28 telephone conversation. In his
statement, the Secretary's appellate counsel asserted that he had
reason to believe, because of conversations with the operator's
counsel, that %he initial statements filed with the Commission did
not disclose fully the substance and the details of the March 28
telephone conversation. The Secretary's appellate counsel alleged
that the operator's counsel had told him that the March 28
conversation included complaints by Judge Kennedy regarding alleged
misconduct by the Secretary's trial counsel and an inquiry by Judge
Kennedy as to whether the operator's counsel intended to seek a
particular document from the Secretary. 7 FMSHRC at 1013.

Because the Secretary's appellate counsel's statement suggested

a much more extensive telephone conversation than was described
initially by Judge Kennedy and the operator's counsel, and because
the description of the Secretary's appellate counsel was based on his
conversation with the operator's counsel, the Commission ordered the
operator's counsel to submit a further affidavit. In his second
affidavit, received on September 20, 1984, the operator's counsel
stated that during the conversation in question, Judge Kennedy
repeatedly had complained to him about the conduct of the Secretary's
trial counsel and had asked him whether he intended to request the
Secretary's investigative file -- suggesting that such a course of
action might be helpful. 7 FMSHRC at 1014. Judge Kennedy filed no
response to the affidavits of the Secretary's appellate counsel or to
the second affidavit of the operator's counsel. 2/

On October 10, 1984, after both of the now-challenged statements

had been received by the Commission, counsel for the judge requested
that the Commission close the record in this inquiry. Counsel stated:

2/ The operator's counsel apparently did not serve his second
statement upon the judge. This defect was cured when the judge

Page 6

obtained a copy shortly after the statement was received by the
Commission.

Page 7

~690
The record, which now consists of affidavits from
Judge Kennedy, [the operator's counsel] and [the
Secretary's appellate counsel], as well as a number
of letters from myself on behalf of the Judge, is
unquestionably sufficient to enable the Commission
to bring the inquiry to an end. 1/

   1/ I therefore request that the Commission
   formally close the record in this ... inquiry.

 In my August 24 letter to you, I indicated that I
 intended to depose [the Secretary's appellate counsel]
 and [the operator's counsel]. I have now concluded that
 these depositions are not necessary.

Acting upon this request and because there existed no material
factual disputes, the Commission closed the record and proceeded
to consider all details and substance of the March 28 telephone
conversation. On July 10, 1985, we issued our decision stating our
findings and conclusions. Only after entry of findings adverse to
him did the judge belatedly assert that he was not afforded sufficient
opportunity to deny or rebut the opposing accounts of the
conversation. This argument is without merit.

The assertion by the judge that he was not afforded sufficient

opportunity to respond is belied by his counsel's statement, which
establishes that the judge had full knowledge of the contents of the
affidavits, believed that the documents in the record were sufficient
and requested that the inquiry be closed. Furthermore, nothing had
prevented the judge from responding to the affidavits prior to making
his request that the record be closed. The judge's contention that he
lacked notice of the allegations of the ex parte communication in this
matter strains credulity and is rejected. The judge's additional
claim that he was denied an evidentiary hearing fails for the same
reasons. It was he who failed to avail himself of the opportunity to
rebut the assertions of the operator's counsel and the Secretary's
appellate counsel, and it was he who sought to close this inquiry
short of a trial.

The Commission issued its decision on the basis of the record,

the judge's own statement and the unchallenged and consistent
statements of other involved individuals. Summary decision based on
undisputed or unrebutted factual allegations is a procedural course
well known to the law. Due process is the process that is due under
particular circumstances, and does not invariably mandate trial-type

Page 8

proceedings. See e.g., Hannah v. Larche 363 U.S. 420, 442-43 (1960).
Moreover, Commission Rule 82 does not require a trial in all cases,
but rather states that if a violation occurs, the "Commission ... may
make such orders or take such action as fairness requires." 29 C.F.R.
$ 2700.82(b). A hearing is required only if the Commission
contemplates the taking of disciplinary action. Id The Commission has
not disciplined the judge. As the

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~691
judge's own submission states: "The Commission did not impose any
discipline in its July 10 decision, but instead retained 'for
further consideration, the question of appropriate discipline.'" The
Commission only has concluded that a prohibited ex parte communication
occurred. 3/

We conclude that the process afforded in this matter falls well
within the substantial discretion given an administrative agency in
adopting, interpreting, and applying procedural rules. See e.g.,
American Farm Lines v. Black Ball Freight Service, 397 U.S. 537, 539
(1980); Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 451
(lOth Cir. 1983). Because the judge failed to offer a rebuttal at a
time appropriate and available under our procedure, and because the
matter was closed at his counsel's clear and specific request, the
judge's submission of a belated "declaration" denying the account of
the ex parte conversation sworn to by the other participants was
untimely and is.rejected.

Accordingly, the administrative law judge's motion for
reconsideration of the Commission's decision of July 10, 1985 is
denied. 4/

              Richard V. Backley, Commissioner


              James A. Lastowka, Commissioner


               L. Clair Nelson, Commissioner

3/ The judge's extended reliance on the procedure set forth in
Commission Rule 80 is seriously misplaced. Rule 80 expressly sets
standards of conduct, and procedures for addressing breaches thereof,
for "individuals practicing before the Commission." A Commission
administrative law judge is not such an individual.

4/ 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.

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~692
Distribution

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

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

Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

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