Secretary of Labor v. Original Sixteen to One Mine, Inc.

Plain-English summary

Original Sixteen to One Mine asked to subpoena two MSHA Western District managers and an inspector, or alternatively the Metal and Nonmetal Administrator, for a hearing involving eleven citations and two orders. The operator wanted to question them about the training and qualifications of the two inspectors who issued the enforcement actions. Judge William Moran found that the requested witnesses lacked personal knowledge of the cited conditions and that the issuing inspectors would testify, allowing the operator to question them directly about their experience and training. He also found that testimony from the inspector who had previously trained one issuing inspector would be cumulative and unrelated to the inspections at issue. The judge granted the Secretary's motion to deny the subpoenas, and the citation cases continued toward hearing.

Decision snapshot

• Discussed standards: 30 C.F.R. § 57.18025 and § 57.11058
• Outcome: The operator's requested subpoenas for MSHA managers, an inspector, and the agency administrator were denied.
• Key point: Agency officials without personal knowledge need not testify when the issuing inspectors are available for direct questioning about their qualifications and the cited conditions.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.:
202-434-9949

July 18, 2017

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

ORIGINAL
SIXTEEN TO ONE MINE, INC.,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket No.
WEST 2017-119

A.C. No.
04-01299-423919

Docket
No. WEST 2017-173-M

A.C.
No. 04-01299-425970

Sixteen
To One Mine

ORDER GRANTING
THE SECRETARY OF LABOR’S MOTION TO DENY RESPONDENT’S REQUEST FOR ISSUANCE OF SUBPOENAS

Before the Court is the Secretary of
Labor’s Motion to deny the Respondent, Original Sixteen to One Mine’s request
for the issuance of subpoenas (“Motion”). The Respondent has requested subpoenas
for the appearance of three MSHA employees at the upcoming hearing in Truckee,
California, commencing on August 9, 2017.

The hearing, for the two dockets listed
in the caption, involves 11 citations and 2 orders. Two MSHA-authorized
inspectors issued the citations; in September 2016 Inspector Julie Hooker issued
the two 104(a) citations involved in WEST 2017-0119 and, in November 2016, Inspector
Bryan Chaix issued the nine 104(a) citations and two 104(b) orders involved in
WEST 2017-173.  The Motion identifies the three individuals for whom subpoenas
are sought: Wyatt Andrews, who is the Mine Safety and Health Administration’s
(“MSHA’s”) Western District Manager, John Pereza, who is an Assistant District
Manager in MSHA’s Western District, and Steven Hagedorn, who is an inspector in
MSHA’s Vacaville, CA field office.  For the reasons which follow, the
Secretary’s Motion is GRANTED.

Respondent’s
Request for Subpoenas

In its July 4,
2017 email, Respondent informed of the grounds in support of the subpoenas it
seeks for the three above-named individuals. Respondent asserts that

AR [Authorized
Representative] Hooker and AR Chaix are required (must) demonstrate through
their words and actions that they are knowledgeable and professional regarding
the specific site they inspect. They must rely on their training and experience
‘to reach fact-based, impartial decisions in safety and health matters
involving miners.’ (Chapter TWO A -Procedures Handbook) They are required to
utilize their time efficiently and effectively. Neither AR Hooker nor AR Chaix
carried out these activities.

Respondent’s
July 4, 2017 email to the Court and the Secretary of Labor’s Counsel, Attorney
Pearson.

In the same email, the Respondent elaborated on the reasons supporting the
subpoenas as follows,

Wyatt Andrews
and John Perez are key witnesses in the defense of alleged violations of
citations issued by AR Hooker and AR Chaix. Both have knowledge regarding the
qualifications of AR Hooker and AR Chaix. Wyatt Andrews and John Perez have intimate
background, training and experiences with MSHA and its operation in the Western
District. No others are qualified to address the questions Respondents will
raise in this administration hearing except the Administrator. [Respondent
also notes that] [t]he district and assistant district managers share
responsibility with the Administer for Metal and Nonmetal Mine Safety and
Health (Administrator) ‘for enforcing and implementing provisions of the Mine
Act’ (Chapter ONE D - Procedures Handbook) [and that] Wyatt Andrews and John
Perez hold the two district responsibilities. [Respondent then adds that] [i]f the
SOL objects to issue Subpoenas [ sic ] for these federal employees,
Respondent requests a subpoena for the Administrator.

Id.

As
for the third individual for which a subpoena is sought, AR Steve Hagedorn, [1]
Respondent states that inspector Hagedorn

was the
designated inspector of then trainee, Right of Entry (ROE) Hooker on her first
underground inspection, which was at Sixteen to One mine. This placed him
directly responsible over ROE Hooker. MSHA has an ‘Instruction Guide Series,
instructor training Course. Its intent is to ‘teach how to teach.’ An
instructor/teacher should be well versed in the subjects they intend to teach
by past training and experiences. ‘If not, further study and/or experience will
be required.’ Respondent will prove that Hooker did not receive required
instructions during the mandatory training period. Respondent will also prove
that AR Chaix failed to conduct his activities during the inspection, as
required with another ROE federal employee during his training.  This establishes
a pattern of behavior that only Messrs. Andrews, Perez or the Administrator [ ]can
address. [2]

Id. (emphasis in
original)

The
Secretary’s Motion to deny the Respondent’s request for issuance of the
subpoenas.

The Secretary contends that neither Wyatt
Andrews nor John Pereza possess relevant information as neither was “directly
involved in the issuance of the citations at issue in this case.” Motion at 3. The
Secretary states that neither individual was “present at the Mine at the time
of either inspection and have no personal knowledge of the conditions described
in the citations and orders at issue.” Id. The Court notes that the
Respondent does not claim otherwise.

Given that, the Secretary argues that “their
testimony would not assist the finder of fact in determining the truth and is
not relevant.” As neither can offer any “relevant evidence they should not be
compelled to testify.” Id.  

The Secretary also notes, correctly,
that Respondent’s request for the subpoenas is to allow it to question
Andrews and Pereza about the qualifications of inspectors Chaix and Hooker.
However, the Secretary responds that, as he intends to call both inspectors as
witnesses in the upcoming hearing, Mr. Miller will be able to question both
Chaix and Hooker directly about their qualifications. [3]  

With those principles in mind, the
Secretary argues that “Mr. Chaix’s character is not an essential element of
whether Respondent violated the cited standards. Whether Mr. Chaix was
unpleasant is completely irrelevant to that question. . . . such questioning
would be irrelevant to assisting the trier of fact in determining whether the
citations should be upheld.” Id.

Turning to the requested subpoena for
Inspector Steven Hagedorn, the Secretary argues that Hagedorn does not possess
relevant information, noting Hagedorn “was not present for the September 2016
inspection of the Mine and has no personal knowledge of the citations issued by
Ms. Hooker at that inspection. In fact, Mr. Miller admits as much and states
that his intent in calling Mr. Hagedorn to testify is to question him on his
training of Ms. Hooker.” Id . at 5.

While the Secretary acknowledges that Ms.
Hooker accompanied Mr. Hagedorn as a trainee on his inspection of the Mine in
November, 2015, the matters in dispute in the present docket have nothing to do
with that November 2015 inspection and therefore have no relevance to this
matter.

The Secretary points out that “Mr.
Miller may question Ms. Hooker about her background and training at the hearing
on this matter. Any testimony by Mr. Hagedorn would be unduly repetitious,
needlessly cumulative, and would serve to waste time during the upcoming
hearing,” and the Hagedorn subpoena should be denied. Id.

Last,
the Secretary contends that the Administrator for metal/nonmetal should not be
compelled to testify because he is a high ranking government official. [4]
  Id. A second, but important, reason to preclude the Administrator’s
testimony is that he is “without personal knowledge of the facts of this case
and [therefore] should be protected from compulsory testimony.” Motion at 5,
citing Pocahontas Coal Co ., 36 FMSHRC 2326, 2327 (ALJ Miller, August 7,
2014).

Discussion

This is not a
hard, nor close, matter to resolve. While, as the Respondent states, MSHA
inspectors must “demonstrate through their words and actions that they are
knowledgeable and professional regarding the specific site they inspect [and
that] [t]hey must rely on their training and experience ‘to reach fact-based,
impartial decisions in safety and health matters involving miners,’” the
Respondent will have a full opportunity to challenge both the inspectors’
knowledge about the alleged violations and the adequacy of their underlying training
and experience. Respondent’s July 4, 2017 email.

In this regard, in order to assist in
cross-examining those inspectors, the Respondent may elect to bring individuals
to the hearing who have specialized knowledge about the subjects addressed in
the various safety standards cited by the inspectors, in order to attempt to
show deficiencies in the inspectors’ grasp of those standards and/or alleged educational
shortcomings in their knowledge of the subjects upon which those standards are
based.

As an illustrative example, in the
instance where the Respondent was cited for an alleged violation of 30 C.F.R. §
57.18025, and that standard’s requirement, in part, that one is not to work
alone “in any area where hazardous conditions exist that would endanger his
safety,” the Respondent may delve into the basis for the inspector’s
conclusions that the standard was violated. 30 C.F.R. § 57.18025. This could
include questioning about the inspector’s underground hard rock mining
experience. As a second illustration, the same approach could be used for the
citation asserting that the mine’s check-in and check-out system did not
provide an accurate record of the persons in the mine, per 30 C.F.R. §57.11058.

These examples are only intended to show
how, potentially, one could cross-examine an inspector and neither party should
construe them as suggesting that the alleged violations are suspect, nor do
they infer that the Secretary may not prevail in those or the other contested
citations. The facts adduced at the hearing and the legal determinations about
the standards involved will determine the outcomes of the challenged citations.

For now, the more important point is
that there is neither a need nor a justification for Respondent’s requested
subpoenas of MSHA’s Andrews or Perez, much less for the appearance of the Metal
and Nonmetal Administrator at the upcoming hearing. Thus, the Court does not
agree at all with the Respondent’s claim that “[n]o others are qualified to
address the questions Respondents will raise in this administration hearing . .
.” Respondent’s July 4, 2017 email.  The same observation applies with equal
force to the subpoena sought for MSHA’s Hagedorn.

SO
ORDERED.

/s/
William B. Moran

William
B. Moran

Administrative
Law Judge

Distribution

Laura
Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar
E. Chavez Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80202

Mr.
Michael Miller, President, Original Sixteen to One Mine, P.O. Box 909,
Alleghany, CA 95910

[1] Respondent
identifies the inspector as “Steve Haggerdorn.” However, it appears that the
correct spelling of the inspector’s name is “Steven Hagedorn.”

[2] It is noted
that, on June 29, 2017, Respondent initially advised the Court via email that
subpoenas for John Perez “and/or Wyatt Andrews testimony is critical for
judging these citations issued by AR Brian Chaix. There is no acceptable reason
for one or both not to appear in your courtroom.”  June 29, 2017 email from
Michael Miller to the Court and the Secretary of Labor’s Counsel, Attorney
Pearson.

[3] A side issue has
apparently arisen, as the Secretary also informs of Mr. Miller’s expressed
intention “to question Mr. Andrews and Mr. Pereza about internal personnel
matters relating   to Mr. Chaix, and about Mr. Chaix’s demeanor and
interactions . . . [and that Mr. Miller has] opined that Mr. Chaix has unstated
‘mental issues’ that he wishes to explore.” Id. at 3.       As the
Secretary observes, delving into such issues are intended to attack the
inspector’s character. Challenging that purpose, the Secretary notes that “Federal
Rule of Evidence 404 prohibits the introduction of evidence of a person’s
character or previous actions to prove that a person acted in accordance with
that character trait on a particular occasion.” Id. at 3-4.  Further,
the Secretary points out that “‘[c]haracter evidence does not constitute an
‘essential element of a claim or charge unless it alters the rights and
liabilities of the parties under the substantive law.’” Id. at 4, citing
Gibson v. Mayor & Council of Wilmington , 355 F.3d 215, 232 (3d Cir.
2004) (citing Schafer v. Time, Inc ., 142 F.3d 1361, 1371 (11th
Cir.1998). The Court agrees with the Secretary’s observations. Particular
questions which may be posed along these lines will be addressed as they arise during
the course of the hearing.

[4] As the
Secretary correctly observes, “Courts have routinely held that ‘top executive
department officials should not, absent extraordinary circumstances, be called
to testify regarding their reasons for taking official actions.’ Simplex
Time Recorder Co. v. Sec’y of Labor , 766 F.2d 575, 586 (D.C. Cir. 1985)
(citing United States v. Morgan , 313 U.S. 409 (1941)). The rule
disallowing compulsory testimony of government officials applies not only to
cabinet members and heads of executive agencies; it applies as well to lower
level but relatively important decision makers within an agency. Simplex
766 F.2d at 586-7 (barring depositions of the Solicitor of Labor, the Secretary
of Labor’s Chief of Staff, an OSHA Regional Administrator, and an OSHA Area
Director). The reasons for this rule are particularly apparent in the instant
case. ‘Considering the volume of litigation to which the government is a party,
a failure to place reasonable limits upon private litigants' access to
responsible government officials as sources of routine pre-trial discovery
would result in a severe disruption of the government's primary function.’ Cmy.
Fed. Sav. & Loan Ass’n v. Fed. Home Loan Bank Bd ., 96 F.R.D. 619, 621
(D.D.C. 1983), citing Capitol Vending Co. v. Baker , 36 F.R.D. 45 (D.D.C.
1964).” Motion at  4-5. The Court agrees with the Secretary’s observations; the
Respondent’s alternative request to subpoena the Administrator is DENIED.