Justin Nagel v. Newmont USA Limited

Plain-English summary

Justin Nagel filed a Mine Act discrimination complaint against Newmont and disputed orders concerning deposition security and production of recorded conversations. The ALJ dismissed the case as a discovery sanction but attempted to stay the dismissal while the Commission considered a certified discovery issue. The Commission held that the judge lacked authority to stay his own final decision, creating uncertainty about Nagel's deadline to seek review. Acting on its own motion, it vacated the dismissal and remanded the case. It denied Nagel's two interlocutory petitions because discovery orders ordinarily are not reviewed before a final decision, while allowing him to raise those issues in a later petition after final disposition.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(3) and 823(d)(2)(A)(i); 29 C.F.R. §§ 2700.70(a), 2700.71, and 2700.76
• Outcome: The dismissal was vacated and the discrimination case was remanded; both interlocutory petitions were denied.
• Key point: An ALJ cannot stay the effective date of an issued final decision, and ordinary discovery disputes generally must await review after final judgment.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 23, 2010

JUSTIN NAGEL

v.

NEWMONT USA LIMITED

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Docket Nos. WEST 2010-464-DM

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners 

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

On January 5, 2010, Justin Nagel, acting pro se, filed a complaint of discrimination
against Newmont USA Limited (“Newmont”) under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(c)(3) (2006). The case had a complex procedural
history before the Administrative Law Judge (“the judge”), which culminated on October 27,
2010, when the judge issued an order entitled, “Order Certifying Interlocutory Discovery Ruling
to the Commission; Order Granting Respondent’s Motion to Dismiss for Failure to Comply with
Discovery Orders and Repeated Lack of Candor with Tribunal; Order Staying Dismissal Pending
Commission Ruling on Certified Interlocutory Discovery Order.” We will refer to this combined
order as the “October 27 Dismissal Order.” In this Direction for Review and Order, the
Commission will consider whether to address two issues which Mr. Nagel has raised before the
Commission, and will also address the legal implications of the Judge’s attempt to stay the
October 27 Dismissal Order.  

I.

Factual and Procedural Background

On September 24, 2010, the judge orally granted Newmont’s oral request that it be
allowed to hire private security guards for the scheduled September 28, 2010 deposition of Mr.
Nagel, and that all participants in said deposition submit to a reasonable search upon entry. This
oral order was confirmed by a written Order Granting Respondent’s Request for Security on
October 13, 2010. Mr. Nagel filed a document entitled “Petition for discretionary review” with
the Commission on October 26, 2010. In his October 27 Dismissal Order, the judge treated this
submission as a motion to certify this interlocutory ruling

under Commission Procedural Rule
76, 29 C.F.R. § 2700.76. He declined to certify the issue for interlocutory review, stating that the
order did not materially advance the final disposition of the proceeding and was moot because
the deposition had already occurred. Oct. 27 Dismissal Order at 17.

In addition, after a protracted discovery dispute involving recordings Mr. Nagel had made
of conversations with representatives of Newmont management, the judge on October 18, 2010
issued an order partially granting Newmont’s motion to compel production of the recorded
conversations. Although the judge ordered Mr. Nagel to produce copies of the audio tapes of in-person conversations with Newmont management (but not tapes of telephone conversations),
Mr. Nagel did not comply with this order. Oct. 27 Dismissal Order at 5-6. On October 19, 2010,
Newmont filed a motion to dismiss, arguing that Mr. Nagel had demonstrated a pattern of
unwillingness to comply with direct orders from the judge. Oct. 27 Dismissal Order at 6. During
a conference call on October 21, 2010, the judge issued an order to show cause why the case
should not be dismissed due to Mr. Nagel’s failure to comply with the discovery order to produce
the tapes. This was followed by a written show cause order issued on October 22. Id. at 11. Mr.
Nagel responded to the motion to dismiss, stating that he intended to appeal the discovery order
to the Commission. Id. at 10.

On October 25, 2010, Mr. Nagel filed a Petition for Discretionary Review, asking the
Commission to review the judge’s order requiring him to turn over copies of the audio
recordings. As with the petition relating to the hiring of private security guards, the judge treated
this document as a motion for certification of his interlocutory discovery ruling. Unlike the issue
of the private security guards, however, the judge ruled that the order to turn over the tapes
involved a controlling question of law that would materially advance the final disposition of the
proceeding, and certified the question to the Commission for interlocutory review. Id. at 16-17.

In his October 27 Dismissal Order, the judge discussed whether dismissal of the case as a
discovery sanction was appropriate. He held that it was appropriate, due to Mr. Nagel’s
“repeated failure to comply with discovery Orders and lack of candor with the tribunal, which
has interfered substantially with a fair hearing in this matter, unduly burdened the record, and
caused additional work, delay, and expense through refusal to comply with discovery Orders and
Commission rules.” Id. at 18. He dismissed the case but stayed the dismissal pending the
Commission’s ruling on the certified interlocutory discovery ruling. Id. at 23.

II.

Disposition

Before considering Mr. Nagel’s two petitions, we must first consider the legal
implications of the judge staying the October 27 Dismissal Order. In Capitol Aggregates, Inc., 2
FMSHRC 1040, 1041 (May 1980), the Commission held that a judge who had issued a stay of
his decision lacked the authority to issue the stay. See also Sec. of Labor on behalf of Pasula v.
Consolidation Coal Co., 1 FMSHRC 25 (Apr. 1979) (neither the Mine Act nor the
Commission’s Interim Rules of Procedure provide for a stay of the effective date of a judge’s
decision once the decision is issued).

Thus, if the judge in the present case lacked the authority
to issue the stay, the effect is that the October 27 Dismissal Order was a final decision which
commenced the running of the 30-day period in which a party may file a petition for
discretionary review under section 113(d)(2)(A)(i) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(i),
and Commission Procedural Rule 70(a), 29 C.F.R. § 2700.70(a). Because of the stay, Mr. Nagel
is not on notice that his time for filing a petition for discretionary review from the October 27
Dismissal Order is running.

For this reason, the Commission will, on its own motion pursuant to Commission
Procedural Rule 71, 29 C.F.R. § 2700.71, review the October 27 Dismissal Order. Our review is
limited to the issue of whether the judge had the authority to stay the effect of his decision. We
conclude that he did not have this authority. Capitol Aggregates, Inc., supra at 1041. Therefore,
we must vacate the October 27 Dismissal Order.

We have before us Mr. Nagel’s two petitions. Although these are styled as petitions for
discretionary review under Rule 70, they are really – as the judge recognized – petitions for
interlocutory review under Rule 76. Although the judge certified to the Commission, pursuant to
Rule 76(a)(1)(i), the issue involving the partial granting of Newmont’s motion to compel
production of audio tape recordings, which was appealed by Mr. Nagel in one of his petitions, we
conclude that review of these issues is not appropriate at this time. We note that the Commission
usually does not grant interlocutory review of discovery orders. See Asarco, Inc., 14 FMSHRC
1323, 1328 (Aug. 1992) (“unless there is a ‘manifest abuse of discretion’ on the part of a judge,
discovery orders are not ordinarily subject to interlocutory appellate review”) (citations omitted);
In re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1004 (June
1992) (“discovery orders are usually not appealable”). Accordingly, we deny both petitions.

III.

Conclusion

Consequently, we vacate the judge’s Dismissal Order of October 27, 2010, and remand
the case to him for further proceedings consistent with this decision. Once the judge has issued a
final decision, a petition for discretionary review of that decision may be filed within 30 days
after issuance of the decision or order, pursuant to section 113(d)(2)(A)(i) of the Mine Act, 30
U.S.C. § 823(d)(2)(A)(i), and the Commission’s Procedural Rule 70(a), 29 C.F.R. § 2700.70(a).
If Mr. Nagel files a petition for discretionary review, he may include the issues set forth in his
interlocutory petitions on the security and discovery issues.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution

Justin Nagel

P.O. Box 182

Rathdrum, ID 83858

Richard Tucker

Newmont Mining Company

1655 Mountain City Highway

Elko, NV 89801

Donna Vetrano Pryor, Esq.

Patton Boggs, LLP

1801 California Street, Suite 4900

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2247

Administrative Law Judge Thomas McCarthy

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021