Pocahontas Coal Company, LLC v. Secretary of Labor

Plain-English summary

Pocahontas Coal sought facts showing how MSHA selected and grouped 42 enforcement actions in a pattern-of-violations notice. The Secretary asked the Judge to reconsider and stay an earlier discovery order, arguing that internal deliberations were privileged and that the pattern decision received only narrow review. Judge Margaret A. Miller again distinguished protected opinions and legal theories from discoverable facts about who selected the actions, what information they considered, and what was presented to the final decision-maker. She denied reconsideration and the stay, authorized a deposition of the field-office supervisor, and allowed follow-up sworn interrogatories to a knowledgeable person if needed. The parties were ordered to complete that limited discovery on an expedited schedule.

Decision snapshot

• Governing provision: 30 C.F.R. § 104.2(a)
• Outcome: Reconsideration and a stay were denied, and a deposition plus possible sworn interrogatories were ordered to complete factual discovery.
• Subsequent review: The Commission later reviewed the consolidated case in weva-2014-395-r-commission.
• Key point: Privilege protects agency deliberations and legal theories, but not the underlying facts used to select and group enforcement actions for a pattern notice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

June 18, 2015

POCAHONTAS
COAL COMPANY, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA),

Respondent.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA),

Petitioner,

v.

POCAHONTAS
COAL COMPANY, LLC,

Respondent.

CONTEST
PROCEEDING

Docket
No. WEVA 2014-395-R

Order
No. 3576153; 12/19/2013

Mine:
Affinity Mine

Mine
ID: 46-08878

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2014-1028

A.C.
No. 46-08878-350475

Mine:
Affinity Mine

ORDER DENYING
THE SECRETARY’S MOTION TO RECONSIDER &

ORDER DENYING
MOTION TO STAY THE COURT’S MAY 22nd ORDER

These
cases are before me on a contest filed by Pocahontas Coal Company and a
petition for assessment of a civil penalty filed by the Secretary pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977. On June 5,
2015 the Secretary filed a Motion to Reconsider the court’s May 22, 2015 Order
Granting in Part & Denying in Part the Secretary’s Motion for a Protective
Order. On June 10, 2015 Pocahontas filed a Response in Opposition to the
Secretary’s motion. For reasons that follow, the Secretary’s Motion to
Reconsider is DENIED. The Secretary also filed a Motion to Stay the
court’s May 22, 2015 order in light of the Motion to Reconsider. The Motion to
Stay is DENIED. However, the parties are ORDERED to comply with
the court’s new discovery timeline set forth below.

On
April 13, 2015 the Secretary filed a Motion for Protective Order in which he
moved the court to issue a protective order preventing the depositions of
attorneys from the Office of the Solicitor. On May 22, 2015 this court issued
an Order Granting in Part and Denying in Part the Secretary’s Motion for a
Protective Order (the “May 22, 2015 order”) and found that factual information
considered by MSHA and the attorneys when selecting and grouping the 42
enforcement actions included in the NPOV, as well as facts involving who, what,
where and when the selections were made, may be relevant, were discoverable,
and were not privileged.    On June 5, 2015 the Secretary filed the instant
motion to reconsider the court’s order.

The Secretary argues that the court
should reconsider its May 22, 2015 order because certain statements made by the
court regarding the Secretary’s decision about what to include and how to group
the 42 enforcement documents listed in the NPOV are not supported by the
record. Further, he argues that the deposition testimony of Kevin Stricklin,
the Administrator for Coal Mine Safety and Health, makes clear that Stricklin
made the ultimate decision whether to issue the NPOV, as well as what citations
and orders were included in the NPOV, and that the attorneys from Office of the
Solicitor only provided advice in the form of a recommendation to the
Administrator.

The Secretary also argues that the court
improperly rejected the Secretary’s privileges argument. Specifically, the
Secretary argues that the order does not adequately comprehend the nature of a
NPOV, and that, because the document was issued in anticipation of litigation,
the internal deliberations that led to the issuance of the NPOV are privileged.
Moreover, the decision to issue the NPOV was an exercise of prosecutorial
discretion and is subject to only narrow judicial review of whether MSHA
considered the eight factors listed in 30 C.F.R. § 104.2(a) and notified Pocahontas
of the basis for the NPOV. The Secretary argues that his submission of the
NPOV, district manager’s memo, POV panel memo, and the depositions of Jay
Mattos and Kevin Stricklin meet this burden, and further review “would cross
the line into the Secretary’s decision-making process and the exercise of his
prosecutorial discretion.” Mot. to Reconsider 10.

Finally, the Secretary states that,
while he does not concede that he must produce for deposition the field office
supervisor involved in the POV process, he has provided a declaration from Sabian
Scott VanDyke, the field office supervisor, that “addresses when, where and
other factual logistics surrounding the selection of the 42 actions and who was
involved in the review of . . . [S&S] violations issued during the POV
screening period and what facts were relied upon.” Mot. to Reconsider 10-11. As
a result, the Secretary argues that he has provided the factual information
required by the order.

Pocahontas, in response, argues that the
order does not include factual inaccuracies and that the motion for
reconsideration should be denied. Specifically, Pocahontas argues that the
record, as recognized by the court, clearly demonstrates that Stricklin merely
authorized the issuance of the NPOV and was not involved in the selection of
the enforcement actions or the patterns. Further, Pocahontas argues that the
record shows, as the court stated, that the attorneys from the Solicitor’s
office played a role in selecting the two categories and the 42 enforcement
actions in the NPOV that were recommended to Stricklin. Furthermore, the
declaration of Sabian Scott VanDyke confirms that Stricklin did not select the
pattern categories or 42 enforcement actions and that, instead, the attorneys
from the Solicitor’s office were involved.

Pocahontas also argues that the court
correctly found that the privileges asserted by the Secretary do not extend to
factual information considered by MSHA and the attorneys when selecting and
grouping the 42 enforcement action in the NPOV. Further, The Secretary’s
argument that the decision to issue the NPOV is subject to only narrow judicial
review ignores the issue in this case of whether the action was arbitrary and
capricious. Here, the evidence indicates that, even if the court applies the
narrow review advocated by the Secretary, the Secretary has not established
that MSHA considered the eight factors set forth in 30 C.F.R. § 104.2(a) before
issuing the NPOV. Moreover, the failure to consider the factors goes directly
to the issue of whether the Secretary has acted in an arbitrary and capricious
manner.

Finally, Pocahontas argues that the
Secretary failed to comply with an order of the court and, as a result,
Pocahontas was precluded from complying with other parts of the order and has been
forced to spend unnecessary time and resources to resolve this discovery
dispute. Specifically, Pocahontas argues that the Secretary refused to
communicate with Pocahontas and, in direct contravention of the court’s order, did
not provide an individual for deposition. As a result, and based on the
information learned from the VanDyke’s declaration, Pocahontas argues that it
is entitled to depose both VanDyke and Ben Chaykin, the attorney in the Solicitor’s
office who VanDyke indicated he worked with during their review of the
citations and orders included in the NPOV.

I find, just as I have previously found,
that, while the internal deliberations involving opinions, thoughts,
conclusions and legal theories leading up to the decision to issue the NPOV are
privileged, facts related to what information was considered by MSHA and the
Secretary’s attorneys when selecting and grouping the 42 enforcement actions in
the NPOV may be relevant, are discoverable, and are not privileged. The
deposition of Kevin Stricklin does show that he made the final decision to
issue the NPOV to Pocahontas, but that does not negate the need on the part of
the operator to learn the facts he relied upon in making that decision. A
number of matters were reviewed by MSHA personnel and a recommendation was made
to Stricklin. As a result, while Stricklin made the ultimate decision, the
facts that others relied upon in making recommendations to him are relevant and
discoverable.

Nothing that the Secretary raises in his
motion changes the court’s opinion regarding what is discoverable and not privileged
in this matter. The Secretary’s argument regarding factual inaccuracies relied
upon by the court in issuing the May 22, 2015 order amounts to a semantic
distinction that detracts from the court’s essential finding; that is, the
information provided by the Secretary to date demonstrates that the Secretary’s
attorneys may have played a role in the selection of the two pattern categories
and 42 enforcement actions listed in the NPOV. That role would go beyond simply
advising MSHA regarding the pattern and its legal requirements. I note that the
Secretary’s attorneys have not been particularly forthcoming regarding the
entire process. While Stricklin may have been the individual who made the
ultimate decision to issue the NPOV, the Secretary continues to be opaque about
how he reached that decision. If indeed the attorneys for the Secretary merely
had an advisory role, then the mine operator is entitled to learn that as well
and focus on the facts relied upon by MSHA.

As Pocahontas argues, and the court has
repeatedly pointed out, one of the major issues in this proceeding is whether
the Secretary acted in an arbitrary and capricious manner when he issued the
NPOV. The court has made clear that, in order for it to decide this issue, it
must know what facts MSHA considered when making its determination to issue the
NPOV. Again, that means what facts were used and what facts were presented to
Stricklin so that he could make the final determination. Moreover, facts
regarding who selected and grouped the enforcement actions, what facts those
individuals considered, when they considered those facts, and where they
considered those facts may be relevant, are discoverable, and are not
privileged despite the Secretary’s arguments to the contrary. The same is true
even if the court accepts the Secretary’s argument that the decision to issue
the NPOV is subject only to the narrow judicial review.

I find that VanDyke’s declaration
provides some relevant facts that Pocahontas seeks to discover. However, the
court is not in a position to decide if it answers all of Pocahontas’s
questions. As a result, I find that Pocahontas should be afforded an
opportunity to discover additional facts which VanDyke may be able to
contribute and, therefore, Pocahontas may take the deposition of Van Dyke. The
parties, prior to the status conference set for June 25, 2015, shall contact
each other and agree to a date and place for the deposition. If the parties are
unable to agree to a date and time, the court, at the status conference, will
set the date and time for the deposition.

VanDyke’s declaration also identifies
Ben Chaykin as the attorney from the Office of the Solicitor whom VanDyke worked
with to review citations and orders issued to the mine as part of the process
to determine whether the NPOV would be issued. It is not clear how much
involvement Chaykin had in putting together the list that was included in the
body of the NPOV, or if other attorneys were also involved. Chaykin is no longer
employed by the Department of Labor and, therefore, there is no danger that the
Secretary will be deprived of its attorney by involving him in the discovery
process.

In the May 22, 2015 order the court indicated
that, if Pocahontas was unable to learn the facts it needs from the CLR or
field office supervisor, it could submit interrogatories to be answered by an
attorney in the Solicitor’s office who had direct knowledge of those facts. Given
the present circumstances, I find that Pocahontas should be afforded an
opportunity to discover facts from an attorney in the Solicitor’s office if it
cannot discover all of the facts it needs from VanDyke. VanDyke’s declaration
indicates that his involvement was mostly administrative, including gathering
and copying materials for the Secretary’s attorneys, primarily Chaykin. Since it
appears that VanDyke did not select or categorize the citations and orders that
were recommended for inclusion in the NPOV, it stands to reason that the
Secretary’s attorneys are in the best position to provide at least some of the
facts that Pocahontas seeks to discover on that issue. Therefore, Pocahontas
should be prepared to submit written interrogatories to the Secretary following
the deposition of VanDyke. A date for submission of those interrogatories will
be set at the June 25, 2015 status conference.

While the court understands the
importance of a case that deals with a new regulation and process, there is
nothing about the process that should be hidden and the Secretary should be
willing to provide facts about how the process works. This case has dragged on for
an inordinate amount of time.    The Secretary has been unwilling to provide
information in a timely manner so that discovery can be completed and the
parties and the Court can understand what went into preparing the NPOV. Therefore,
at the status conference, the Secretary must be prepared to address all issues
remaining and come up with a reasonable schedule to get all the facts
associated with the NPOV before the Court.    Similarly, the operator has been
overreaching in its demands and arguments, and would be better served to focus
on the real issues in the case and what it needs to have a full understanding
of the facts. These are important matters, but they are not matters that are
subject to drama or secrecy.   

Given these findings, the parties are ORDERED
to talk and set a date for the deposition of Mr. VanDyke to be held on or
before July 3, 2015. If the parties cannot agree on a date, the court will
provide one at the status conference. If the mine operator is not able to
discover all facts it requires from the deposition of VanDyke, it shall, within
7 days of the date of the deposition, submit written interrogatories to the
Secretary to be answered under oath by a person with knowledge of the facts
sought by the questions. The Secretary may chose an attorney with knowledge of
the facts, including Mr. Chaykin if appropriate, to respond to the questions.   
The Secretary may assert that attorneys merely rendered advice, but they must
provide facts to back up that position.    The Secretary will have one week in
which to respond. No extensions of time will be granted.

The deposition of VanDyke and the follow
up questions to the Solicitor shall address the factual issues outlined above
and in the earlier order, and should not address matters that VanDyke has
already addressed in his declaration.    Both parties are ORDERED to
provide a written status report following the completion of this discovery,
detailing the information, if any, the operator has yet to discover and the
status of the motions for summary decision.

The parties, as set forth in the June
12, 2015 Notice of Status Conference, are ORDERED to attend a status
conference on June 25, 2015. The conference will commence at 2:00 pm and each
party should be prepared to discuss the status of discovery, dates for
depositions and a clear schedule for moving forward in this case. The status
conference will be recorded and each party must have a non-attorney client,
either in person or by telephone.

/s/ Margaret A.
Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution:

Jason
Grover, Francine Serafin, Office of the Solicitor, U.S. Department of Labor,
1100 Wilson

Blvd.,
22nd Floor West, Arlington, Virginia 22209

Jason
Nutzman, Dinsmore & Shohl, LLP, 900 Lee St. Suite 600, Charleston, WV 25301

Robert
Huston Beatty, Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown,

WV
26501