Ezel / Agency Decisions / penn-92-31-alj
FMSHRC ALJ decision Docket PENN 92-31 Decided August 20, 1992 Procedural Judge James A. Broderick

Bethenergy Mines, Incorporated

Bethenergy Mines, Incorporated (FMSHRC PENN 92-31): Discovery motion denied as untimely

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This order from 1992 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1992
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Interlocutory ALJ order, not Commission precedent
This order denied a motion to compel written discovery. It did not dispose of the case or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). It is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Contestants in the respirable-dust sample alteration citation proceedings asked Judge James A. Broderick to compel the Secretary of Labor to answer discovery requests. The judge found that the motion was filed after the deadlines in the Commission-approved discovery plan and its later amendments. He denied the motion as untimely.

Decision snapshot

  • Cited standards: None
  • Outcome: The motion to compel answers to interrogatories and requests for production was denied as untimely.
  • Key point: A discovery motion filed after the controlling schedule’s deadline may be denied even when the underlying discovery was previously served.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

IN RE: CONTESTS OF RESPIRABLE MASTER DOCKET NO. 91-1
DUST SAMPLE ALTERATION
CITATIONS

                    ORDER DENYING MOTION TO COMPEL
                           WRITTEN DISCOVERY

 On January 7, 1992, Contestants represented by Street,

Street, Street, Scott and Bowman (Contestants), filed a motion to
compel answers to interrogatories and requests for production of
documents served upon the Secretary of Labor (Secretary). The
Secretary filed a response in opposition to the motion on January
17, 1992.

 On July 26, 1991, Contestants served a First Set of

Interrogatories and a Request for Production of Documents on
counsel for the Secretary. According to the motion, the Secretary
served her answers on counsel for the Contestants "on or around
September 10, 1991."

 On June 28, 1991, I issued an Amended Prehearing Order

Adopting Plan and Schedule of Discovery as an order of the Review
Commission. This was based on a plan and schedule of discovery
submitted by counsel for the Secretary which was negotiated with
counsel for some of the operators, and was revised following
discussion at a Prehearing Conference on June 19, 1991. This
discovery plan provided in part in II. D.1 that "(e)xcept for
good cause shown, responses to requests for admissions, answers
to interrogatories, . . . and responses to requests for
production of documents shall be completed by August 30, 1991.
Motions to compel shall be filed by September 16, 1991." The Plan
and Schedule of Discovery was amended, upon motion of Jackson &
Kelly, by order issued September 10, 1991. Article II. D.1 was
changed to provide that answers to interrogatories and requests
for production of documents should be completed by September 11,
1991 and motions to compel should be filed by October 4, 1991.
The discovery plan was further amended by orders issued October
4, 1991 and December 3, 1991. Each of these orders provided that
answers to interrogatories and requests for production of
documents should be completed by September 13, 1991 and motions
to compel should be filed by October 4, 1991.

 Contestants' motion to compel is clearly filed out of time

under the provisions of the Plan and Schedule of Discovery. For
this reason, the motion is DENIED.

                               James A. Broderick
                               Administrative Law Judge

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