Secretary of Labor v. Traylor Mining, LLC

Plain-English summary

The Secretary proposed a specially assessed $52,500 penalty after an injury at Traylor Mining's Bulldog Mine. Traylor moved to compel production of MSHA's special-assessment review form, while the Secretary claimed deliberative-process privilege and said all factual information had already been disclosed. Judge Richard W. Manning denied the motion because the form was unlikely to add useful information, but he barred the Secretary from introducing it and required that it be available for possible private review if undisclosed facts arose at hearing. He warned that evidence could be struck if the form showed relevant facts had been withheld during discovery. The Secretary also had to state what the penalty would have been under the regular assessment formula.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 100.3 and 100.5; 29 C.F.R. § 2700.56(b)
• Outcome: The motion to compel was denied, the review form was excluded from the Secretary's case, and safeguards were imposed against use of undisclosed assessment facts.
• Key point: The Secretary must justify a special assessment with disclosed facts at hearing even when an internal recommendation form is not produced in discovery.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

Office of
Administrative Law Judges

United States Custom
House

721 19th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

June 22, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

TRAYLOR
MINING, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket No.
WEST 2014-351-M

A.C. No. 05-00413-341975
X940

Bulldog Mine

ORDER DENYING MOTION TO COMPEL

This case is set for hearing in Denver on June 30, 2015. The
Secretary is proposing a penalty of $52,500 for a citation issued under section
104(d)(1) of the Mine Act under his special assessment regulation at 30 C.F.R.
§ 100.5. The citation was issued as a result of an injury-accident at the
Bulldog Mine. On or about June 15, Traylor Mining filed a motion to compel
asking that I order the Secretary to produce his special assessment review (“SAR”)
form for the citation as it requested during discovery. On June 18, the
Secretary filed a response in opposition to the motion claiming that the SAR
form is protected by the deliberative process privilege.

Traylor Mining is seeking the SAR form, in part, with respect to its
allegation that the Secretary abused his discretion in proposing a special
assessment. This issue has been brought before the Commission’s administrative
law judges many times in the past. E.g. CDC Contracting Co., 25
FMSHRC 289, 290 (May 2003) (ALJ Manning); Aggregate Indus. 25 FMSHRC 88,
89-90 (Feb. 2003) (ALJ Manning); American Coal Co., 36 FMSHRC 1311 (May
2014) (ALJ Zielinski); Hidden Splendor Resources, Inc., 33 FMSHRC 2345
(Sept. 2011) (ALJ Rae); Pocahontas Coal Co., 34 FMSHRC 903 (April 2012)
(ALJ Feldman). The SAR forms that I have seen do not contain any information
that is useful or that is at all deliberative. Typically, the MSHA inspector
writes down a few of the facts set forth in his citation or in his inspection
notes as justification for his special assessment recommendation and then his
supervisor indicates on the form that he agrees with the recommendation. MSHA
officials further up the chain of command may provide their initials signifying
their agreement. The SAR form typically repeats facts written elsewhere that the
inspector would like MSHA to consider when reviewing his recommendation that
the penalty be specially assessed. The comments by MSHA supervisors are brief
and simply agree with the inspector’s recommendation.

In many cases before me in which the Secretary has proposed a
penalty that was specially assessed, the Secretary has attached the SAR form to
the petition for assessment of civil penalty, making the form available to the
mine operator. The Secretary’s belief that the information in the SAR form
should be protected by the deliberative process privilege is applied inconsistently
at best and seems to suggest that the Secretary is not particularly concerned
about any “deliberations” contained therein.

As noted by the Secretary in his opposition, facts are not protected
by the deliberative process privilege. The Secretary alleges that he has
provided Traylor Mining with the all the factual information that is contained
within the SAR form. Moreover, the Secretary maintains that the privilege
applies to “disclosures of factual information when such disclosures ‘would
expose the agency’s decision-making process in such a way as to discourage
candid discussion with the agency and thereby undermine the agency’s ability to
perform its functions.’” Sec’y Opposition at 4 quoting Consolidation Coal
Co., 19 FMSHRC 1239, 1247 (July 1997) (internal citations omitted). The
Secretary has not demonstrated that providing the SAR form to Traylor Mining
would in any way undermine MSHA’s ability to perform its functions in this case
or in future cases.

Commission Procedural Rule 56(b) states that “[p]arties may obtain
discovery of any relevant, non-privileged matter that is admissible evidence or
appears likely to lead to the discovery of admissible evidence.” 29 C.F.R §
2700.56(b). Facts that are related to the information the Secretary considered
in proposing a special assessment may be relevant and are not privileged. See
generally, Pocahontas Coal Co., 37 FMSHRC ____, slip op. at 6-8, WEVA
2014-1028, 2015 WL 3443490 (May 22, 2015) (ALJ Miller) (reconsideration denied
June 18, 2015). As a general matter, the Secretary cannot withhold purely factual
portions of the SAR form simply on the basis of his representation that Traylor
Mining already received the same information in a different format.[1]

Given the nature of the SAR form, it is difficult to understand why
either party believes it is important to the resolution of the issues in this
case. If I were to require the Secretary to provide a copy of the SAR form to
Traylor Mining, it is unlikely that Traylor would gain any information that it
does not already have and the Secretary’s deliberations would not be exposed in
any meaningful way. These disputes over the discoverability of the SAR form can
be characterized as much ado about nothing.

In several orders discussing this same issue I have stated that
because the Commission assesses penalties de novo, the Secretary’s assessment
process is “totally irrelevant.” CDC Contracting Co., 25 FMSHRC 289, 290
(May 2003). I was wrong in reaching this conclusion. Clearly, section
110(i) of the Mine Act grants the Commission the authority to assess all civil penalties
provided under the Act. 30 U.S.C. § 820(i). The Commission has consistently
held, however, that the Secretary’s penalty proposal must be considered by the
judge. The Commission recently summarized this obligation, as follows:

While there is no
presumption of validity given to the Secretary’s proposed assessments, we have
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria. E.g.,
Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612
(May 2000); Cantera Green, 22 FMSHRC at 620-21

(citations omitted).
A judge need not make exhaustive findings but must provide an adequate explanation
of how the findings contributed to his or her penalty assessments. Cantera
Green, 22 FMSHRC at 622.

Mize Granite Quarries Inc.,
34 FMSHRC 1760, 1763 (Aug. 2012). Thus, if I decide that the Secretary is
unable to justify the $52,500 proposed penalty, I must explain
the basis for any significant deviation from that penalty.

If the Secretary would like me to consider his specially assessed
penalty proposal, the Secretary must justify his decision to propose the penalty
at the hearing. The Secretary bears the burden of establishing facts to justify
the higher than normal penalty in this case. Special assessments are reserved
for ''particularly serious or egregious violations.”  Coal Employment
Project v. Dole, 889 F2d. 1127, 1129-30 (DC Cir. 1989).

In
light of the above, especially the Secretary’s representation that he has provided
Traylor Mining with the all the factual information contained in the SAR form, I
enter the following ORDER:

1. Traylor
Mining’s motion to compel is DENIED; the Secretary is not required to
provide a copy of the SAR form to counsel for Traylor Mining. The Secretary
will not be permitted to introduce the SAR form at the hearing, but shall bring
a copy of the SAR form to the hearing. If the Secretary presents facts at the
hearing related to the proposed special assessment and Traylor Mining contends
that these facts were not disclosed during discovery, I may ask the Secretary
to provide me with a copy of the SAR form for my in camera review. If
the disputed facts are contained in the SAR form and I am convinced that the
information was not otherwise provided by the Secretary during discovery, I may
strike from the record the evidence presented by the Secretary concerning the proposed
penalty on the basis that the Secretary failed to provide Traylor Mining with these
facts during discovery. In the alternative, the Secretary may provide counsel
with a PDF copy of the SAR form by no later than 3:00 p.m. Mountain Time on
Tuesday, June 23.

2. At
the hearing, the Secretary SHALL advise me what the penalty would have
been if it had been calculated using the Secretary’s regular assessment formula
at section 100.3.

/s/ Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Beau Ellis, Esq., Office of the Solicitor, U.S. Department
of Labor, 1244 Speer Blvd., Suite 515, Denver, CO 80204-3516 (First Class Mail
and email)

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South
State Street, Suite 1200, Salt Lake City, UT 84111-2323 (First Class Mail and
email)

RWM

[1]
The Secretary also states that deposing the
inspector “would have provided Respondent the ability to obtain factual
information sought from the privileged SAR form through non-privileged means.” Sec’y
Objection at 6. While conducting a deposition of the issuing inspector might
sometimes be advisable, the Secretary cannot force a mine operator to bear the
expense of a deposition to obtain facts that are available by simpler, less
expensive means. If these facts may be obtained through the deposition of the
inspector, then the Secretary should be able to produce the facts in the SAR
and redact any alleged nonfactual portion, if necessary.