Pocahontas Coal Company, Inc. v. Secretary of Labor and Secretary of Labor v. Pocahontas Coal Company, Inc.

Plain-English summary

Five withdrawal orders against Pocahontas Coal involved alleged violations of roof-control or ventilation plans at the Affinity Mine. Before hearing, Judge Margaret A. Miller asked the Secretary to provide the relevant plan provisions and invited Pocahontas to identify any disagreement, while explaining that the material would enter the record only through stipulation or evidence at hearing. Pocahontas sought the Judge's recusal, arguing that reviewing material outside the record made her both investigator and adjudicator and created an appearance of bias. Judge Miller held that the request was ordinary case preparation intended to identify the governing plan language, narrow issues, and estimate hearing time. She found no bias or interference with either party's ability to present evidence, and denied the recusal request.

Decision snapshot

• Governing authority: 29 C.F.R. §§ 2700.55 and 2700.81(b)
• Outcome: Pocahontas Coal's request for the presiding Judge to withdraw was denied.
• Key point: A judge may request potentially governing mine-plan provisions before hearing for case preparation when both parties receive notice and the materials do not become evidence without proper admission.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, COLORADO
80202-2536

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

December 5, 2014

POCAHONTAS
COAL COMPANY, INC.,

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, INC.,

Respondent.

CONTEST
PROCEEDINGS

Docket
No. WEVA 2014-395-R

Order
No. 3576153; 12/19/2013

Docket
No. WEVA 2014-711-R

Order
No. 7169717; 2/10/2014

Mine:
Affinity Mine

Mine
ID: 46-08878

CIVIL
PENALTY PROCEEDINGS

Docket
No. WEVA 2014-1112

A.C.
No. 46-08878-353252

Docket
No. WEVA 2014-1160

A.C.
No. 46-08878-354868

Mine:
Affinity Mine

ORDER DENYING
POCAHONTAS’ REQUEST TO WITHDRAW

Before:           
Judge Miller

These cases are
before me upon notices of contest filed by Pocahontas Coal Company and petitions
for assessment of a civil penalty under section 105(d) of the Federal Mine
Safety and Health Act of 1977. On November 17, 2014 Pocahontas filed a request
to withdraw. The Secretary opposed the request, but opted to not file a formal written
response. For reasons that follow, I DENY Pocahontas’ motion.

On September 30,
2014 the court requested that the Secretary provide the roof control and
ventilation plans in place when five 104(e) orders[1]
that are contained in these dockets were issued, and identify the plan
provisions that had allegedly been violated. Counsel for Pocahontas was copied
on the email. Pocahontas objected to the Secretary’s submission of the
requested materials and argued that the materials should only be presented to
the court in the context of a hearing. On October 15, 2014 the court clarified,
by email, that only the plan cover pages and the plan provisions which were
alleged to have been violated were being sought from the

Secretary. The
court explained that requesting the materials is a practice that allows the
court to prepare for hearing and help the parties narrow the issues. Further,
if Pocahontas did not agree that the proper plans were submitted, it could
advise the court and submit the plans that it believes were in place at the
time the orders were issued.  Finally, the court made clear that the
submissions would not become part of the record at the time of submission, and
that the parties would need to enter the plans into evidence at the hearing. On
October 23, 2014 the Secretary, via email, submitted the requested materials to
the court, with a copy sent to Pocahontas’ counsel. On November 3, 2014,
Pocahontas submitted a response in which expressed its concern with the
Secretary’s submission. Subsequently, on November 17, 2014, Pocahontas filed
this request to withdraw in which it seeks to have the ALJ recused.

Pocahontas
requests that the undersigned judge withdraw as the presiding judge in these
cases and argues that the judge improperly requested, and viewed, documents
from the Secretary which are not part of the record, thereby placing herself in
the “dual role as both an investigator and adjudicator.” Mot. 7. Rather, the judge
should have reviewed the requested documents only in the context of a
stipulation by the parties or a hearing where the documents could be properly
introduced into evidence. In failing to do so, the presiding judge’s conduct evidenced
bias, or at least the appearance of bias, and deprived Pocahontas of a fair and
impartial hearing. In other words, Pocahontas filed this motion, seeking to have
the ALJ withdraw, based upon a request, made to both parties, for a copy of the
roof control plan that was alleged as the basis for a number of citations. Because
that plan was sought, Respondent argues that it cannot now receive a fair and
impartial hearing on the many citations included in these dockets. I disagree.

Commission
Procedural Rule 81, states that “[a] party may request a . . . Judge to
withdraw on grounds of personal bias or other disqualification. A party shall
make such a request by promptly filing an affidavit setting forth in detail the
matters alleged to constitute personal bias or other grounds for
disqualification.” 29 C.F.R. §
2700.81(b). In Medusa Cement Co., the Commission, in affirming a
judge’s decision to not recuse himself, explained that, while the role of its
judges’ is to adjudicate, and not litigate cases, the judges are active
participants in the proceeding with a duty to conduct those proceedings in a
manner that yields a just and true result. 20 FMSHRC 144, 148 (Feb. 1998)
(citing Secretary of Labor on behalf of Clarke v. T.P. Mining, Inc., 7
FMSHRC 989, 993 (July 1985), and Lonnie Jones v. D&R Contractors, 8
FMSHRC 1045, 1053 (July 1986)). The Commission further explained, citing its
decision in Canterbury Coal Co., 1 FMSHRC 1311 (Sept. 1979), that while
its judges are afforded “considerable leeway” in conducting proceedings and
developing a record, the judge must not intervene so much that the parties are
unable to develop their case. Id.

The court has
not displayed any personal bias or other grounds which would justify withdrawal,
nor has there been any intervention that would hinder the parties in developing
their case. Here, the only action taken by the court was to request that the
Secretary provide the roof control and ventilation plans that he believed were
in force at the time the 104(e) orders were issued, and identify the plan
provisions alleged to have been violated. The request was made with the
knowledge of Pocahontas. The court advised the parties that, should Pocahontas
dispute what was submitted, it would be given ample time to submit the plans it
believed were in place when the orders were issued. Further, the court
clarified that the material would not become part of the record until it was either
stipulated to, or introduced at hearing. The court has not engaged, and will
not engage, in any decision making on the issue of what plans were in effect
and which provisions were allegedly violated prior to a stipulation by the
parties or a hearing where the plans are submitted into evidence. However, it
is incumbent upon the court to utilize the powers afforded it to promote
judicial economy by preparing for hearing and narrowing the issues. See
29 C.F.R. § 2700.55. The request for the plans relates to matters alleged in
the orders issued by MSHA. By submitting the plans, the parties and the court
are better able to understand what disputes may arise with regard to those
plans, and how much time will be needed to hear arguments regarding the plans.  I
find that the arguments made by Pocahontas regarding the nature of the roof
control plan and its use by the court are not only over-reaching but are
histrionic. This is not a case of drama, but a case of fact, and each party has
and will continue to have, the opportunity to present the facts so that the law
may be applied as appropriate.

A proceeding
involving an alleged violation of a mine plan presents a unique situation with
regard to what legal standard will be applicable when deciding whether a
violation exists. Unlike a typical proceeding where a citation or order alleges
a violation of a mandatory standard promulgated by the Secretary or statutory
provision constructed by Congress, citations and orders involving mine plans
allege violations of the actual provisions in the plan. The language of those
provisions is proposed by the mine operator, and approved by MSHA. The
Commission has explained that plan provisions are enforceable as mandatory
standards. Martin County Coal Corp., 28 FMSHRC 247, 254 (Mar. 2011)
(ALJ) (citing UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); Zeigler
Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Energy West
Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995); Jim Walter Res., Inc.,
9 FMSHRC 903, 907 (May 1987). In order to properly prepare for this hearing,
the court should know what legal standard the parties believe is at issue. While
Pocahontas argues that the Commission judges should do no research or prepare
for hearing, the court disagrees. Rather, it is in both the court’s and
parties’ best interests for there to be some clarity as to what the legal
standard is, or could be, prior to hearing and what issues might be litigated. The
court need not, and has not, reached any conclusion regarding what standard
will be applied. However, the court has conducted, and will continue to conduct,
research into the provisions advanced by the parties.

Judges listen
closely, read carefully and research thoroughly, before issuing a reasoned,
well-thought-out and impartial decision. Throughout the stacks of motions filed
in these, as well as related cases, I have always listened, read and researched
and intend to do so as the case proceeds. The fact that the Secretary was asked
to produce, and the Respondent asked to comment on, a roof control plan, does
not change that practice. Nor does it offer anything to the case except to
narrow the issues and to present an opportunity for the court and the parties
to understand what will be litigated and how much time that will take. Neither
in intent or appearance has the Respondent been slighted or somehow been put at
a disadvantage. If anything, it now has the advantage of having a better
understanding of the allegations against it and can better prepare for those
allegations.

Here, the
Secretary has provided what he alleges are the proper plans and cited provisions.
Pocahontas, has not provided plans or provisions and, rather, has only raised concerns
that some of the 104(e) orders did not specify which plan provisions were
allegedly violated, that it needs to depose the issuing inspector to determine
whether the Secretary’s submissions are accurate, and that the court should
only review the plans and plan provisions on the record in the context of
direct and cross examination testimony. While Pocahontas’ concerns are noted by
the court, the court’s request was harmless. The materials submitted are being
used only for purpose of preparing for hearing and initial prehearing research
of the issues in this matter. The court is aware of fact that, in order for the
Secretary to prove a violation of a mine plan, he must identify a mine plan
provision that has allegedly been violated, establish that the provision
allegedly violated is part of the approved and adopted plan, and demonstrate that
the condition cited actually did violate the plan provision. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1281 (Dec. 1998) (citing Jim Walter
Resources, Inc., 9 FMSHRC 903, 907 (May 1987). Nothing that the court has
done relieves the Secretary of the burden that he will be required to satisfy
at hearing, nor does it preclude Pocahontas from exercising its right to
dispute the Secretary’s case and put on evidence to the contrary. Accordingly,
Pocahontas’s motion to withdraw is DENIED.

/s/
Margaret Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution:

Benjamin
Chaykin, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, Virginia 22209-2247

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

Robert
Huston Beatty, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501

[1] The orders at
issue are Order No. 9002712, 9002713, 9002715, 7169717 and 3576153. The
Secretary’s submission explained that Order Nos. 9002712 and 9002713 had been
modified post-issuance to reflect violations of other standards, and were no
longer alleged to be violations of the mine’s roof control plan.