Jonathan Bethel Woodward v. Carmeuse Lime and Stone (ALJ decision, February 24, 2016)

Plain-English summary

Jonathan Woodward brought his own Mine Act discrimination case against Carmeuse Lime and Stone after an MSHA investigation. Carmeuse requested a subpoena for MSHA's investigative file, while an earlier Freedom of Information Act request faced a delay that would make production too late for the litigation. Judge Priscilla M. Rae ordered MSHA to send the entire file directly to the court within 30 days. The judge would review it privately before releasing appropriate documents to the parties.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.60(a); 30 U.S.C. § 815(c)(3)
• Outcome: MSHA was ordered to produce its investigative file for in camera review within 30 days.
• Key point: An ALJ may compel timely production of an MSHA investigative file for private review when ordinary disclosure would arrive too late for the case.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9956 / FAX: 202-434-9949

February 24,
2016

JONATHAN
BETHEL WOODWARD,

Complainant

v.

CARMEUSE
LIME AND STONE,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. SE 2016-59-DM

SE-MD-15-23

Mine:
Filled Products – North Mill

Mine
ID: 09-01094

ORDER

This proceeding is before me upon a
complaint of discrimination under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3).

The Respondent in this 105(c)(3) action
has requested a subpoena to compel the Mine Safety and Health Administration (MSHA) to produce its investigative file. In order to protect the rights of both parties to this litigation,[1] under Rule 60(a) of the Commission’s procedural rules, 29 C.F.R. § 2700.60(a), I am ordering sua sponte the compulsory production of documents, namely MSHA’s investigative file in the matter of Woodward v. Carmeuse Lime & Stone, MSHA Case No. SE-MD-15-23. The file will be submitted to the Court for in camera review before distribution of properly releasable documents to the parties.[2]

MSHA is hereby ORDERED to submit
the investigative file directly to me by mail marked “Private, Judge’s Eyes Only” within 30 days of the date of this order.

/s/ Priscilla M.
Rae

Priscilla M. Rae

Administrative Law Judge

Enclosure:
Subpoena to Thomas W. Charboneau, Acting Director, MSHA Office of

Assessments, Accountability, Special
Enforcement & Investigations

Distribution:

Thomas
W. Charboneau, Acting Director, MSHA Office of Assessments, Accountability, Special Enforcement & Investigations, U.S. Department of Labor, 201 12th Street South, Arlington, VA 22202-5452

Jason
Grover, Esq., Office of the Solicitor, U.S Department of Labor, 201 12th Street South, Arlington, VA 22202-5452

Arthur
M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222

Jonathan
B. Woodward, 201 South 4th Street, Chatsworth, GA 30705

[1] I note that the
Complainant is proceeding pro se in this matter.

[2] The Respondent
previously filed a FOIA (Freedom of Information Act) request for the investigative file which was answered by a letter from MSHA stating that the statutory time limits for processing the request could not be met due to “unusual circumstances.” This explanation is vague and broad and will result in effective denial of the FOIA request, as production will be untimely for litigation purposes. I find this denial suspect and contrary to the public’s right to information and to the opinion expressed in Justice Marshall v. MSHA, Civil Action No. 2:14-14438 (S.D.W. Va. July 31, 2015) (memorandum opinion and order compelling MSHA to produce documents for in camera review).