Secretary of Labor v. Blanchard Machinery Company (ALJ decision, November 22, 2017)

Plain-English summary

The Chief Judge assigned Blanchard Machinery's two-citation case to the Commission's streamlined Simplified Proceedings process. Blanchard asked to leave that process because it wanted written discovery, an inspector deposition, possible expert testimony, and a potential summary-decision motion. The Secretary argued that the small $232 case lacked injuries, complex issues, or special assessments and should remain simplified. Judge Alan G. Paez found that effective presentation required broader discovery and that forcing an unwilling party to remain in the streamlined process would hinder rather than speed resolution. He denied reconsideration, left the case in conventional proceedings, and set an April 3, 2018 prehearing deadline.

Decision snapshot

• Cited authority: Commission Procedural Rules for conventional and Simplified Proceedings
• Outcome: The Secretary's reconsideration motion was denied, and the case remained in conventional proceedings with full discovery.
• Key point: Simplified Proceedings depend on willing participation and should be discontinued when reasonable discovery needs exceed the streamlined process.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

November 22, 2017

SECRETARY OF LABOR,

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Docket No. SE 2017-236-M

Petitioner,

:     A.C. No. 38-00600-443931 (1BU)

v.

:

:

BLANCHARD

MACHINERY COMPANY,

:

Respondent.

:     Mine:  Haile Gold Mine

ORDER DENYING SECRETARY’S MOTION FOR

RECONSIDERATION

OF ORDER

DISCONTINUING SIMPLIFIED PROCEEDINGS

This case is before me upon the Petition for the Assessment of Civil

Penalty filed by the Secretary of Labor (“Secretary”) pursuant to section 105

of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),

30 U.S.C. § 815.  On November 1, 2017, Chief Administrative Law

Judge Robert J. Lesnick notified the parties that Docket No. SE 2017-236-M had

been designated for Simplified Proceedings and assigned the docket to me. 

On November 13, 2017, Respondent filed a Motion

to Discontinue Simplified Proceedings, stating its reasons why this case is

inappropriate for Simplified Proceedings.  On November 14, 2017, I issued my Order

Granting Motion to Discontinue Simplified Proceedings pursuant to 29 C.F.R. §

2700.104(a) based on Respondent’s expressed need to conduct discovery in this matter.

On November 14, 2017, the Secretary filed a Motion for Reconsideration stating

his opposition to discontinuing Simplified Proceedings.  On November 16, 2017,

Respondent filed a memorandum in opposition to the Secretary’s motion for

reconsideration.

The Secretary asserts that this case was

properly designated for Simplified Proceedings because it does not involve

fatalities, injuries, or illnesses; complex issues of law or fact; or expert

witnesses.  (Sec’y Mot. at 2.)  In addition, this case involves two section

104(a) citations, and the proposed penalty of $232.00 is not specially

assessed.  ( Id. )  The Secretary also notes that the hearing in this case

would be of limited duration.  ( Id. )  The Secretary states that he made

the disclosures required by 29 C.F.R. § 2700.15(a) on September 5, 2017, but

did not receive Respondent’s disclosures, and also denied responding to further

discovery requests from Respondent.  ( Id. at 2–3.)  The Secretary claims

that “the parties must give the Simplified Proceedings process [time] to work

before discontinuing the process” in order to reduce time and expense, and that

“[n]o party should be allowed to circumvent this process.”  ( Id. at 3.)

In contrast, Respondent asserts that the

violations at issue require Respondent to conduct written discovery and

depositions in order to effectively present the company’s case.  (Resp’t Mot.

at 2.)  Specifically, Respondent states that issues of law and fact must be

explored through the deposition of the MSHA inspector involved.  ( Id. ; Resp’t

Mem. at 1–2.)  Respondent alleges that the inspector did not base the

violations on a thorough investigation or on the language of the standards.  (Resp’t

Mem. at 2.)  Respondent asserts that the deficiencies in the Secretary’s

allegations compel Respondent to pursue discovery to determine what basis, if

any, the Secretary has for the alleged citations.  ( Id. )  Respondent also

notes that it may retain and present an expert witness and anticipates filing a

motion for summary decision in this matter.  (Resp’t Mot. at 2–3.)  Respondent

claims the Secretary attempts to avoid his obligation to support his

allegations through normal discovery and to deny Respondent its right to due

process.  (Resp’t Mem. at 1.)

The Commission’s rules governing

conventional proceedings permit broad discovery of any relevant, non-privileged

matter, which may only be limited for good cause shown to prevent undue delay,

oppression, burden, or expense.  29 C.F.R. § 2700.56(a)–(c).  Similarly, the

Federal Rules of Civil Procedure allow a party to discover “any

non[-]privileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case[.]”  Fed. R. Civ. P. 26(b)(1). [1]  

Discovery serves as a key tool “to narrow and clarify the basic issues between

the parties” and “for ascertaining the facts, or information as to the

existence or whereabouts of facts, relative to those issues.”  Hickman v.

Taylor, 329 U.S. 495, 501 (1947).  Therefore, the scope of discovery under

the Federal Rules is “construed broadly to encompass any matter that bears on,

or that reasonably could lead to other matter that could bear on, any issue

that is or may be in the case.”  Oppenheimer Fund, Inc. v. Sanders , 437

U.S. 340, 351 (1978).

The Commission’s Procedural Rules

for Simplified Proceedings recognize a basic purpose—to provide a mechanism “so

that parties before the Commission may reduce the time and expense of

litigation while being assured of due process and a hearing that

meets the requirements of the Administrative Procedure Act.”  29 C.F.R. § 2700.100(a)

(citations omitted).  Such rules were promulgated primarily to assist the

Commission in handling a temporary caseload increase beginning in 2006.  75

Fed. Reg. 28,223 (May 10, 2010).  Cases designated for Simplified Proceedings

cannot involve fatalities, injuries, or illnesses, and will generally have

certain characteristics, such as involving “only citations issued under section

104(a) of the Mine Act” and not involving “complex issues of law or fact.”  Id.

§ 2700.101.  Yet discretion exists.

Although the Commission’s

Procedural Rules for Simplified Proceedings limit discovery, the Commission did

not intend to deny parties access to information but rather to expedite the

means for exchange through mandatory disclosure.  See  75 Fed. Reg.

81,459, 81,461 (Dec. 28, 2010) (“Rather than requiring . . . discovery, the

Commission proposed a more expeditious means for disclosure through the

mandatory exchange of documents and materials . . . .”); 29 C.F.R. §

2700.105.  For Simplified Proceedings to achieve its goal of streamlining

litigation, “the parties must be willing participants in the process.”  Cactus

Canyon Quarries of Texas, Inc. , 35 FMSHRC 715, 717 (Mar. 2013) (ALJ). [2]  

Hence, Commission Judges may discontinue Simplified Proceedings upon motion by

any party explaining why the case is inappropriate for simplified treatment. [3]

29 C.F.R. § 2700.104(a)–(b). 

Here, Respondent sought to engage in discovery beyond

the procedures permitted by Simplified Proceedings.  Specifically, Respondent

asserts that deposing MSHA’s inspector is essential to the presentation of its case. 

Preventing a party from gathering information needed to present an effective case

would not serve the purposes of Simplified Proceedings and would run counter to

the goal of streamlining the issues in this matter.  Indeed, when one party

objects and requires more discovery than allowed under Simplified Proceedings,

“the likelihood of a speedy resolution of the case is diminished to the point

where adherence to the rules becomes a hindrance rather than a benefit.”  Cactus

Canyon , 35 FMSHRC at 717.  Furthermore, despite the Secretary’s arguments,

even cases that meet most of the criteria found in Procedural Rule 101 may

still be deemed inappropriate for Simplified Proceedings.  See, e.g. ,

Grand Eagle Mining, Inc. , 33 FMSHRC 2355, 2356 (Sept. 2011) (ALJ) (denying

motion to designate case for Simplified Proceedings although most of the

general criteria were met).  I have determined that Respondent demonstrated a

reasonable need for the discovery sought.  Given that the Secretary has failed

to establish that such discovery would cause undue delay, oppression, burden,

or expense, I see no justification to limit the operator’s access to information

and its right to due process.  Therefore, I conclude that Simplified

Proceedings are inappropriate for this case.

Based on the above, it is hereby

ORDERED that the Secretary’s Motion for Reconsideration be DENIED .  Furthermore,

my Prehearing Order issued on November 14, 2017, shall control the prehearing

procedures in this proceeding.  Thus, the parties’ deadline for compliance with

my Prehearing Order shall be Tuesday, April 3, 2018 .

/s/

Alan G. Paez

Alan

G. Paez

Administrative

Law Judge

Distribution: (Via Electronic Mail & U.S. Mail)

Brandon E. Russell, Conference & Litigation

Representative, U.S. Department of Labor, MSHA, 1030 London Drive, Suite 400, Birmingham,

AL  35211-4542

([email protected])

Uche Egemonye, Esq., U.S. Department of Labor, Office of the

Solicitor, 61 Forsyth Street S.W., Room 7T10, Atlanta, GA  30303-8816

([email protected])

Travis W. Vance, Esq., Fisher & Phillips LLP, 227 West

Trade Street, Suite 2020, Charlotte, NC  28202-1688

([email protected])

/ivn

[1]

Commission Judges may look to the Federal Rules of Civil Procedure for guidance

on any procedural question not governed by the Mine Act, the Commission’s

Procedural Rules, or the Administrative Procedure Act.  29

C.F.R. § 2700.1(b).  

[2] Although the Commission

Judges’

decision s I cite herein are not

binding

precedent, see 29 C.F.R. § 2700.69(d) , I find their

reasoning

persuasive .

[3] A Judge may

discontinue Simplified Proceedings sua sponte .  29 C.F.R. §

2700.104(a).