Secretary of Labor obo Kelly Rawley v. J.L. Sherman Excavation Co.

Plain-English summary

The Secretary pursued a Mine Act discrimination complaint for Kelly Rawley while separately seeking an individual civil penalty against him for earlier alleged safety violations. Judge David F. Barbour asked whether the Solicitor's dual role created a conflict that could affect the discrimination case. The parties reported that Rawley had private counsel and that separate Solicitor's Office teams, offices, and supervisors handled the two proceedings without communicating. The Judge found those screening measures sufficient to address the specific professional-conduct concerns and allowed the discrimination case to proceed on schedule. He reserved evidentiary questions for the hearing and warned that the parties should remain alert to any limits on effective advocacy or communication.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The discrimination case remained on schedule, with any evidentiary conflicts reserved for hearing.
• Key point: Separate legal teams and private counsel can mitigate a government lawyer's potentially conflicting roles, but the court may continue monitoring whether those roles impair advocacy.

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:
202-434-9953 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

on
behalf of KELLY RAWLEY,

Complainant,

v.

J.L.
SHERMAN EXCAVATION CO.,

Respondent.

DISCRIMINATION
PROCEEDING:

Docket
No. WEST 2016-545-DM

MSHA
Case No. WE-MD 16-07

Mine:
J.L. Sherman Excavation Co.

Mine
ID: 43-03100

NOTICE OF RESOLUTION
OF CONFLICT ISSUE

The
court has before it a complaint of discrimination filed by the Secretary of
Labor pursuant to section 105(c)(2) of the Mine Act on behalf of Kelly Rawley against
J.L. Sherman Excavation Co. The complaint alleges that on or about April 12,
2016, Mr. Ralwey was fired in violation of section 105(c) of the Act for
engaging in protected activity in October and November of 2015. The complaint
also alleges that J.L. Sherman unlawfully interfered with Mr. Rawley’s exercise
of statutory rights on October 6, 2015, when the owner of the company instructed
Mr. Rawley not to speak to an MSHA inspector about unsafe brakes on a front-end
loader and told him to leave after an argument ensued. Since filing this
discrimination complaint, the Secretary has also filed with the Commission a
petition for assessment of civil penalty against Mr. Rawley pursuant to section
110(c) of the Act for violations of the Secretary’s safety standards for
surface metal and nonmetal mines (30 C.F.R. Part 56) as set forth in a section
104(d)(1) citation and in a section 104(d)(1) order issued on October 15, 2014.
The Respondent in the discrimination proceeding alleges that Mr. Rawley was
terminated “for reasons entirely unassociated with any alleged protected
activity,” and that “[o]ne of those reasons was his ongoing complete disregard
for safety,” of which “[t]he incidents to which the 110(c) [petition] refers
are examples.” Resp’t’s Resp. to Req. for Statement of Position on Conflict
Issue at 1-2.

On
September 14, 2016, the court issued a Request for Statements of Position on
Conflict Issue. The request noted the highly unusual nature of the Solicitor
bringing an action on behalf of a claimant while suing the claimant in another
case and the possible conflict of interest issues that could arise from the
Solicitor’s dual roles in these matters. The court asked the parties to state
their positions on whether the Secretary may permissibly assume both roles
simultaneously, and whether the 110(c) action against Mr. Rawley could remain
extant while the 105(c) case on his behalf goes forward. The court also requested
that the parties state their views as to whether and to what extent Rules of
Professional Conduct are applicable to this situation. Req. for Statements
of Position on Conflict Issue at 2-3. On September 23, 2016, counsels for
the Secretary, Mr. Rawley, and J.L. Sherman filed responses to the Request.

All
parties state that there is no conflict under various Rules of Professional
Conduct, because such rules focus on potential conflicts among multiple
clients, while the Solicitor only has one client in this case – the Secretary –
and there is no attorney client relationship between the Solicitor and Mr.
Rawley. Sec’y’s Position Statement Re: Potential Conflict of Interest at
4; Statement of Position of Miner Kelly Rawley Regarding Conflict Issue
at 2; Resp’t’s Resp. to Req. for Statement of Position on Conflict Issue
at 2. The Solicitor and counsel for Mr. Rawley go on to state that even
disregarding the Rules of Professional Conduct, they do not believe there is a
conflict because the Solicitor has implemented and followed procedures to
address potential conflicts, including informing Mr. Rawley that the
Solicitor’s Office represents the Secretary’s interests and does not represent
him, allowing Mr. Rawley to retain his own private counsel in this matter
(which he has done), and implementing a firewall between the two proceedings
involving separate attorneys, in separate offices, supervised by separate
managers with no communication between those attorneys. Sec’y’s Position
Statement Re: Potential Conflict of Interest at 4-5; Statement of
Position of Miner Kelly Rawley Regarding Conflict Issue at 4. Further, the
Solicitor and counsel for Mr. Rawley state that there is no conflict in these
specific proceedings because the actions that led to the 110(c) action in 2014
are irrelevant to the question of whether Mr. Rawley was retaliated against in
violation of section 105(c) 14 months later. Id. Counsel for J.L. Sherman
disagrees on this latter point and adds that it “would be extremely prejudicial
to J.L. Sherman . . . [i]f it is the Solicitor’s intention to object to the
admissibility of information from the 110(c) action to avoid conflict.” Resp’t’s
Resp. to Req. for Statement of Position on Conflict Issue at 2.

The
court has reviewed the responses to its request and has concluded that the case
will go forward as scheduled. Any potential issues that may arise regarding the
admissibility of evidence related to the 110(c) proceeding will be addressed at
the hearing upon counsels’ motions. Further, while the court does not find the
question of whether the Solicitor and the complainant have any attorney-client
relationship in a section 105(c) discrimination proceeding to be as clear-cut
as the parties represent,[1]
the court is satisfied that the Solicitor’s Office has taken sufficient steps to
address the specific conflict issues raised by the Model Rules of Professional
Conduct.[2]

That
being said, the court remains concerned that the Solicitor’s Office may feel
inhibited from advocating effectively on Mr. Rawley’s behalf and presenting the
strongest arguments and evidence possible in this discrimination proceeding if the
Secretary concludes that any such arguments may undermine his case against Mr. Rawley
in the 110(c) proceeding. The potential for this court’s findings to have
preclusive effect in the 110(c) proceeding further complicates this matter. The
court harbors similar concerns regarding effective communication and disclosure
between Mr. Rawley and the Solicitor in this case, given the potential for such
information to be used by one party against the other in the 110(c) proceeding.
The screening procedures implemented by the Solicitor’s Office and Mr. Rawley’s
retention of his own private counsel may help to mitigate these risks. However,
the court urges all parties to remain mindful of these concerns and encourages Mr.
Rawley’s counsel in particular to alert the court at any point if he believes
that the Secretary’s dual role as Rawley’s prosecutor and advocate is limiting
effective representation or presentation of evidence in this matter.

/s/ David F.
Barbour

David
F. Barbour

Administrative
Law Judge

Distribution: (1st Class
Mail)

Katherine M. Kasameyer, Esq., Bruce L.
Brown, Esq., U.S. Department of Labor, Office of the Solicitor, 300 Fifth
Avenue, Suite 1120, Seattle, Washington   98104

Stephen A. Teller, Esq., Teller &
Associates, PLLC, 1139 34th Avenue, Suite B, Seattle, Washington   98122

Robin R. McCroskey, Attorney at Law, W.
405 Walnut, Suite 4, Newport, Washington   99156

Jeffrey Sherman, J.L. Sherman Excavation
Co., P.O. Box 250, Newport, Washington   99156

Kelly Rawley, P.O. Box 0045, Laclede,
Idaho   83841

/rd

[1]
As the Commission has previously noted,

The first stage
at which attorneys from the Solicitor's Office publicly represent the interests
of such a complainant is in temporary reinstatement proceedings, for which only
the Secretary may apply. If the Secretary subsequently concludes that the
anti-discrimination provisions of the Act have been violated, she must
prosecute a discrimination complaint, “suing on behalf of the complainant.” Eastern
Assoc. Coal v. FMSHRC, 813 F.2d 639, 644 (4th Cir. 1987); 30 U.S.C. §
815(c)(2). The caption in these cases always reads “Secretary of Labor on
behalf of” the miner.” In addition, attorneys in the Solicitor's Office during
the course of litigation of a temporary reinstatement or discrimination claim
perform many of the same tasks that an attorney in such a case would perform on
behalf of a client (such as acting on behalf of the miner in settlement
negotiations, etc.).”

Disciplinary
Proceeding,
24 FMSHRC 28, 34–35 (Jan. 2002) (footnote omitted)

[2] While Rule 1.11(d)
subjects public employees to the Rule 1.7 provisions regarding conflicts among
clients with directly adverse interests or among a client and a third person to
whom the lawyer owes a responsibility, Comment 2 for Rule 1.11 notes that Rule
1.11(d) does not impute the conflicts of an individual government employee to other
associated government employees, although “it will be prudent to screen such
lawyers.”