Pocahontas Coal Company, Inc. v. Secretary of Labor

Plain-English summary

Pocahontas Coal contested nine citations and orders connected to MSHA's notice that its Affinity Mine had a pattern of significant and substantial violations. The operator sought to question two MSHA officials about the facts behind the mine-specific pattern determination, while the Secretary asked to limit discovery and protect both officials from depositions. Judge Margaret A. Miller allowed relevant factual discovery concerning the notice and the cited violations, but protected MSHA's internal deliberations, opinions, and weighing of the pattern criteria. She allowed the deposition of District Manager David Mandeville because he could have relevant mine-specific information, while protecting Coal Administrator Kevin Stricklin as a high-ranking official. She also struck two dismissed written-notice dockets from the deposition notices because the Commission lacked jurisdiction over them. The consolidated proceeding later reached Commission review.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.56(b); 30 U.S.C. §§ 814(e), 815(d)
• Outcome: Mine-specific factual discovery was allowed with limits, Mandeville could be deposed, Stricklin was protected, and two dismissed dockets were removed from the deposition notices.
• Subsequent review: The Commission later reviewed the consolidated case in weva-2014-395-r-commission.
• Key point: Facts underlying a mine-specific pattern notice may be discovered, but MSHA's internal deliberations remain privileged.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

721
19th STREET, SUITE 443

DENVER,
CO 80202-2500

303-844-5267/FAX
303-844-5268

August 7, 2014

POCAHONTAS
COAL COMPANY, INC.,

��������������
Contestant,

���������������
v.

SECRETARY
OF LABOR

��MINE
SAFETY AND HEALTH���

��ADMINISTRATION
(MSHA),

����������������������� ��
Respondent.

CONTEST
PROCEEDINGS

Docket
No. WEVA 2014-390-R

Order
No. 9002712; 12/09/2013

Docket
No. WEVA 2014-391-R

Order
No. 9002713; 12/09/2013

Docket
No. WEVA 2014-392-R

Order
No. 9002714; 12/09/2013

Docket
No. WEVA 2014-393-R

Order
No. 9002715; 12/09/2013

Docket
No. WEVA 2014-394-R

Order
No. 9002716; 12/10/2013

Docket
No. WEVA 2014-395-R

Order
No. 3576153; 12/19/2013

Docket
No. WEVA 2014-396-R

Order
No. 9002720; 12/22/2013

Docket
No. WEVA 2014-397-R

Order
No. 9002721; 12/22/2013

Docket
No. WEVA 2014-398-R

Order
No. 9002725; 12/30/2013

Mine
ID: 46-08878

Mine:
Affinity Mine

�����������

ORDER GRANTING
IN PART AND DENYING IN PART SECRETARY�S MOTION TO LIMIT DISCOVERY

Before:�����������
Judge Miller

����������� This
case is before me upon notices of contest under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 815(d). On July 17, 2014, the
Secretary filed a motion to limit discovery as a result of receiving a list of
11 potential areas of inquiry for the depositions of Kevin Stricklin and David
Mandeville from Contestant.[1]
In his motion, the Secretary argues that Contestant�s proposed depositions
exceed the scope of discovery and seek irrelevant information, that Contestant
improperly seeks to discover privileged information, and that Stricklin and
Mandeville should be protected from depositions due to their status as
high-ranking government officials. Contestant has filed a response in
opposition. For the reasons set forth below, I GRANT IN PART and DENY IN PART
the Secretary�s motion.

Scope
of Discovery

����������� The
Secretary argues that the issue to be decided by the Commission in these cases
is whether the citations and orders listed in the Notice of Pattern of
Violations (NPOV) establish a pattern and argues that the scope of discovery
should be limited to matters pertaining to the specific facts and circumstances
of the citations and orders listed in the NPOV. Sec�y Mot. at 13. The Secretary
also maintains that the 28 violations identified in the NPOV that are final
fall outside the scope of discovery. Id. n.6. However, the Secretary also
states that �factual issues relevant to the validity of the NPOV are clearly
within the scope of discovery.� Sec�y Mot. at 2. Finally, the Secretary argues
that the factual inquiries submitted by Contestant sought through the
depositions of Strickland and Mandeville seeks information about MSHA�s
internal deliberations and decision-making process as to the NPOV issued to the
mine.

����������� Pocahontas
agrees that the issue in these cases is whether the underlying NPOV was
properly issued to Pocahontas and argues that discovery in this matter should
be broader than the Secretary asserts and should include inquiries into each of
the 11 subject areas listed in its response to the Secretary. The mine states
that the list of inquiries is not exhaustive and frames the list in general
terms. Contestant particularly argues that it should be able to inquire into
the mitigating factors that were or were not considered by the Secretary to determine
that this mine should be placed on the pattern of violations.

����������� 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.� A judge may �limit discovery
to prevent undue delay or to protect a party or person from oppression or undue
burden or expense.� 29 C.F.R. � 2700.56(c).

����������� The
citations that Pocahontas contested were issued pursuant to sections 104(e)(1)
and (2) of the Mine Act. Under section 104(e)(1), [i]f an operator has a
pattern of violations of mandatory health or safety standards . . . which are
of such nature as could have significantly and substantially contributed to the
cause and effect of coal or other mine safety and health hazards, he shall be
given written notice that such pattern exists.� 30 C.F.R. � 104(e)(1). MSHA
posted screening criteria that it uses to perform the pattern of violation
review. 30 C.F.R. � 104.2(b). Once a mine meets the requirements of the initial
screening criteria, MSHA uses eight different pattern criteria in order to
determine if the mine actually has a pattern of S&S violations.[2]
� 104.2(a).

The Secretary issued a NPOV to
Contestant based on a number of S&S citations, some of which are still
pending before the Commission. On May 20, 2014, I dismissed Pocahontas� contest
of the written notice, WEVA 2014-202, finding that the Commission did not have
jurisdiction to adjudicate a contest of a written notice without an
accompanying 104(e) citation. Pocahontas contests the above listed citations
and orders issued under sections 104(e)(1) and (2) in addition to the validity
of the NPOV and these two areas are now subject of discovery here. Both parties
assert and I agree that the inquiry here is into the N POV that was issued to
Pocahontas; the inquiry, therefore, is not a broad, general inquiry, but is
limited to the cases related to this specific POV that have been filed and
remain active.

As the Secretary stated, the facts
related to the pending citations and orders listed in the NPOV are relevant and
discoverable. However, facts relating to the 28 citations and orders listed in
the NPOV that are final, for the purposes of discovery, are only relevant and
discoverable insofar as they relate to MSHA�s determination that they are part
of a pattern of violations.

Contestant provided a list of the 11
potential areas of inquiry for depositions which are set forth in the
Secretary�s motion and Contestant�s response; I find that facts related to the
majority of these areas as they pertain directly to Pocahontas, are relevant
and within the scope of discovery. In most instances, however, the factual
inquiries must be made in the context of these cases and not general inquiries,
particularly about other mines that may or may not have been considered for the
NPOV. I do not know what Pocahontas seeks with number 8 on the list of
inquiries, which is �factual inquiry into the use of other enforcement options
for POV determinations.� �To the extent MSHA engaged in some other enforcement
option for this mine, the facts may be relevant, but I see no other inquiry
that would relate to this request that is relevant to these cases. In addition,
a number of the inquiries, while couched in terms of �factual� don�t appear to
be designed for inquiry into facts. For example, the economic analysis used by
MSHA is a matter of public record and was provided to Contestant. Factual
inquiry into the economic impact on this mine made when the NPOV was issued is
relevant, but any other inquiry is not. �

Two of the arguments Contestant made are
that MSHA�s issuance of the NPOV to this mine was arbitrary and capricious and
that it did not follow its own rules during its decision-making process. In
order to determine this, the Court must know which facts MSHA considered when
making its decision and the listed areas will provide this information.[3]
Facts related to these areas may also prove useful if the court must determine de
novo whether a pattern of violations exists.

The Secretary also brought to the
Court�s attention that notices of deposition served by the Contestant included
WEVA 2014-202-R, which was previously dismissed and WEVA 2014-569-R, which is
similarly situated to WEVA 2014-202-R because it is also a written notice. I find
that the Commission does not have jurisdiction to adjudicate these types of
cases. Therefore, these docket numbers shall be stricken from the notices of
deposition served on the Secretary as they are outside the scope of discovery.

�����������

Privileged
Information

����������� The
Secretary maintains, based on the list of potential areas of inquiry it
submitted to him on May 19, 2014, that Pocahontas seeks information about the
internal thoughts, processes, and opinions of those who participated in the POV
review process. While the Secretary cites deliberative process cases related to
the production of documents and the Freedom of Information Act�s (FOIA)
Exemption 5,[4]
the case law can easily be applied to producing deliberative process
information orally. To qualify under Exemption 5,

a document must
satisfy two conditions: its source must be a government agency, and it must
fall within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds the document. This Court's prior Exemption 5 cases have addressed the
second condition, and have dealt with the incorporation of civil discovery
privileges. So far as they matter here, those privileges include the privilege
for attorney work product and the so-called �deliberative process� privilege,
which covers documents reflecting advisory opinions, recommendations, and deliberations
that are part of a process by which Government decisions and policies are
formulated.

Dep�t of Interior v. Klamath Water Users Protective Assn,
532 U.S. 1, 2 (2001) (citing NLRB v. Sears Roebuck & Co., 421 U.S.
132, 150 (1975)); In Re: Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC 987 (June 1992). The purpose of the privilege is to
�prevent injury to the quality of agency decisions� and to protect �open and
frank discussion among those who make [decisions] within the government.� Sears,
421 U.S. at 150; Klamath, 532 U.S
at 2-3.

�����������

����������� As
is evident from the list provided by Pocahontas and its response in opposition,
it appears to seek only factual information related to the 11 areas. Cont.
Resp. at 22. The Secretary has provided no evidence that suggests Pocahontas
intends to ask questions related to the deliberation process. �The fact that
objections may be raised to specific questions in a deposition does not provide
a sufficient basis to bar the deposition[s] altogether.� Rail Link, Inc.,
20 FMSHRC 181, 182 (Jan. 1998) (ALJ). The Secretary concedes that the facts
available to him regarding the citations and orders stated in the NPOV are not
privileged. Sec�y Mot. at 18. I also find that other facts related to
the above listed areas of inquiry are not privileged. However, I agree with the
Secretary that internal deliberations leading up to the decision to issue the
NPOV, including the weight given to the different pattern criteria, and
thoughts and opinions of the agency�s employees are privileged.[5]
I further agree that many of Pocahontas� arguments in challenging the NPOV are
legal arguments that relate to the promulgation of the POV rule and therefore
any inquiry into the rule in general that relates to agency policy, rule-making,
or constitutional challenges would not be factual and would be subject to
privilege. I assume, given the status of the POV cases pending before the
Commission and the Sixth Circuit, that these issues have been discovered,
argued, and briefed and that any arguments made in this case would follow those
made in the earlier cases. Therefore, as the parties agree, the issues here
focus on the application of the rule to Pocahontas and not the promulgation of
the rule itself.

Protection
from Depositions��

����������� The
Secretary argues that Kevin Stricklin, the Administrator of Coal Mine Safety
and Health, and David Mandeville, MSHA�s District 4 Manager, should be
protected from participating in depositions due to their status as high-ranking
government officials.[6]
He states that the time required �preparing for and defending� Stricklin and
Mandeville would lead to a �significant withdrawal of much-needed attention to
their administrative and supervisory functions.� Sec�y Mot. at 20.

����������� The
Commission has held that �high-level executive department officials may not be
required to give oral testimony by deposition or at trial except in
extraordinary circumstances.� Respirable Dust, 14 FMSHRC at 241; Simplex
Time Recorder Co., 766 F.2d 575, 586 (D.C. Cir. 1985). �Extraordinary
circumstances may be established where the executive sought to be deposed has
relevant information not available from any other source[,]� but �where the
agency has or is willing to respond by . . . making lower-level officials
available for deposition, there is no justification for requiring the testimony
of an agency head or high level agency official. Respirable Dust, 14
FMSHRC at 241, 242; Sweeny v. Bond, 669 F.2d 542, 546 (8th Cir.), cert.
denied, 459 U.S. 878 (1982).

����������� The
Secretary states that Stricklin and Mandeville were not the issuing inspectors
for the citations and orders identified in the NPOV and have no first-hand
knowledge of the conditions cited. He offered to provide the issuing inspectors
of the eight remaining NPOV S&S violations for depositions. Sec�y Mot. at

21. Given that the issues in this case go beyond the fact of the citations and
    the information provided by the issuing inspectors, I find this argument is
    without merit. Someone with MSHA who has knowledge of the facts that caused
    this mine to receive an NPOV should be available to the mine for discovery
    purposes.

����������� With
regard to the request to depose Stricklin, Commission precedent has alluded to
the fact that the Administrator of Coal Mine Safety and Health is a high-level
government official and requiring his attendance at a deposition would disrupt
the government�s function. Respirable Dust, 14 FMSHRC at 243 (denying a
motion for a protective order of the former Administrator of Coal Mine Safety
and Health because he was retired at the time of the motion and no disruption
of government functions would occur). Stricklin is responsible for the
oversight of thousands of underground and surface coal mines across the
country. Allowing his deposition to be taken would remove him from important
official tasks. In addition, the Secretary states that he has no first-hand
knowledge of the NPOV citations and orders and the Secretary provided a number
of documents related to the POV review process for this mine. While the
Secretary did not specifically address Stricklin�s knowledge of the decision to
issue the NPOV to Pocahontas, the Contestant did not provide any information
that suggests he is the only one with this knowledge.[7]
Therefore, I find that Stricklin is a high-ranking agency official and should
be protected from depositions in these cases.

����������� Mandeville,
the MSHA district manager for the district in which the Pocahontas mines are
located, is not in a position to be considered a high-ranking official
privileged to protection from a deposition.[8]
See Rail Link, Inc., 20 FMSHRC 181, 182 (denying the Secretary�s motion
for a protective order for depositions of an MSHA District Manager and an Assistant
District Manager because �they are not the type of high level officials that
require such protection�); Jim Walter Resources, 26 FMSHRC 317 (2004)
(ALJ) (denying the Secretary�s motion for a protective order from depositions
for the Assistant Administrator of Coal Mine Safety and Health and the MSHA
District 11 Manager, stating, �they are not the type of �top government
officials� to whom the protection is usually extended�). Moreover, as the mine
is in Mandeville�s District and Mandeville supervises the inspectors that wrote
the citations that remain for adjudication, he may have relevant information
pertaining to the citations and orders. He could also have information related
to the decision to issue an NPOV to Pocahontas as the Secretary states that
�the Administrator directed district 4 to obtain any mitigating circumstances
from Pocahontas.� Sec�y Mot. at 22; Cont. Resp. at 19; See, e.g., Buck
Creek Coal, 17 FMSHRC 845 (1995) (ALJ) (allowing the depositions of 19
people, including managers from district offices, and stating that the �fact
that these individuals are managers does not mean that they do not have
knowledge of the facts underlying these cases or information that might lead to
the discovery of admissible evidence�). In addition, the Secretary did not
provide any persuasive arguments that the proposed deposition would be
oppressive or subject Mandeville or MSHA to undue burden or expense.

����������� WHEREFORE,
the Secretary�s motion to limit discovery is GRANTED IN PART and DENIED
IN PART.

����������� It
is ORDERED that the 28 final citations and orders listed in the NPOV are
only relevant and discoverable insofar as they relate to MSHA�s determination
that they are part of a pattern of violations.

It is ORDERED that WEVA
2014-202-R and WEVA 2014-569-R be stricken from the notices of deposition that
the Contestant provided to the Secretary.

It is ORDERED that the factual
information sought in the May 19, 2014 list of possible areas of inquiry, if
relevant, is discoverable with the limitations listed above, but that any
information related to the internal deliberative process of deciding to issue
the NPOV is not.

����������� The
Secretary�s request to protect David Mandeville from depositions in the above
cases is DENIED.

It is ORDERED that Kevin
Stricklin be protected from deposition in the above cases.

����������� ����������� ����������� ����������� ����������� ����������� /s/
Margaret A. Miller

����������������������������������������������������������������������� Margaret
A. Miller

����������������������������������������������������������������������� Administrative
Law Judge

Distribution:

�����������������������

Benjamin
D. Chaykin, Anthony Jones, R. Alan Kelly, Anh LyJordan, Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor
West, Arlington, VA 22209

Robert
Beatty, Jr., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite
600, Charleston, WV 25339

[1] The list of
potential areas given to the Secretary on May 19, 2014 are as follows:

1. Factual inquiry relating to
   screening criteria data and POV Written Notices.

2. Factual inquiry relating to
   identifying enforcement actions in POV Written Notices.

3. Factual inquiry relating to
   mitigating circumstances.

4. Factual inquiry relating to
   development and approval of Corrective Action Plans.

5. Factual inquiry relating to
   citations/orders in a POV Written Notice and Corrective

� Action Plans.

6. Factual inquiry into MSHA�s POV
   Mitigating Circumstances Determination Form.

7. Factual inquiry into identifying a
   Pattern of Violations.

8. Factual inquiry into the use of
   other enforcement options for POV determinations.

9. Factual inquiry regarding pre
   March 25, 2013 citations/orders and POV screening

� criteria data.

���� �10. Factual inquiry relating to POV Panels.

����
�11. Factual inquiry into MSHA�s regulatory economic analysis.

[2] The pattern
criteria includes:

� (1)
Citations for S&S violations; 

� (2) Orders under section 104(b) of the Mine
Act for not abating S&S

���� violations; 

� (3) Citations and withdrawal orders under
section 104(d) of the Mine Act,

���� resulting
from the mine operator's unwarrantable failure to comply; 

� (4) Imminent danger orders under section
107(a) of the Mine Act; 

� (5) Orders under section 104(g) of the Mine
Act requiring withdrawal of miners

��� �who
have not received training and who MSHA declares to be a hazard to

��� �themselves
and others; 

� (6) Enforcement measures, other than section
104(e) of the Mine Act, that have

���� been
applied at the mine; 

� (7) Other information that demonstrates a
serious safety or health management

���� problem
at the mine, such as accident, injury, and illness records; and 

� (8) Mitigating circumstances. 

30 C.F.R. � 104.2(a).

�

[3] Pocahontas�
assertion in its response that the POV panel only discussed three potential
mitigating circumstances when it provided numerous mitigating circumstances is
precisely the reason why the information it intends to seek in depositions is
relevant and discoverable. Cont. Resp. at 23-24.

[4] Exemption 5 of
FOIA states, �[t]his section does not apply to matters that are-- . . . (5) inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency
in litigation with the agency.� 5 U.S.C. � 552(b)(5) (2000).

[5] I decline to
develop a system for dealing with the assertion of the deliberative process
privilege during depositions as Contestant suggests. Cont. Resp. 27-28. I
presume that Counsel for Pocahontas is aware of the case law regarding
inquiries related to the deliberative process and expect them to consider that
during the depositions.

[6]
The
Secretary also raised objections to notices of depositions for Douglas Parker,
Stephen Weatherford, Jay Mattos, and David Morris for the same reasons. Sec�y
Mot. at 2. However, the Secretary noted that the earlier deposition notices
have become moot and therefore I will not rule on them until it becomes a
relevant matter.

[7] Pocahontas
states, �both Stricklin and Mandeville have knowledge of the relevant facts
regarding the issuance of the POV notice.� Cont. Resp. at 19. It later asserts
that it is �entitled to ask the only parties with first-hand knowledge of the
facts that permitted MSHA to issue this enforcement action.� Cont. Resp. at 25.
This assertion indicates that Stricklin is not the only one with first-hand
knowledge � that Mandeville has first-hand knowledge also. In addition, the POV
panel was the entity that was responsible for submitting the recommendation to
Stricklin and may therefore be more appropriate parties with knowledge of what
was and was not considered. Id.

[8] The court in Simplex
identified several �top government officials� that other courts refused to
allow examination of, including the Governor of Missouri, an Administrator of a
government agency, parole board members, and the Comptroller of the Currency. Simplex
Time Recorder Co., 766 F.2d at 586-87. An MSHA District Manager, though
having an important position within the agency, falls short in magnitude to the
examples above.