Marshall J. Justice v. Gateway Eagle Coal Co.

Plain-English summary

Marshall Justice pursued his own Mine Act discrimination case after MSHA declined to file for him and subpoenaed the agency's investigative file. The Secretary refused to produce the file or an MSHA official, citing Department of Labor approval rules and several privileges, although Justice narrowed his request to interview memoranda from two inspectors who allegedly witnessed relevant events. Judge David F. Barbour held that the memoranda were relevant and likely discoverable, and that the government could not decide for itself whether its privilege claims controlled. He ordered the Secretary to submit the complete memoranda and related documents for private judicial review within five days, with specific privilege claims for any proposed redactions. The judge deferred ruling on subpoena enforcement and kept the scheduled hearing in place.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(3); 29 C.F.R. § 2700.56(b)
• Outcome: The Secretary was ordered to produce two inspectors' interview memoranda for in camera review, and the subpoena-enforcement ruling was deferred.
• Key point: Relevant MSHA investigative material in a miner-filed discrimination case is subject to judicial privilege review rather than unilateral withholding by the agency.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

WASHINGTON, DC 20004

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

MARSHALL J. JUSTICE,                            DISCRIMINATION
PROCEEDING:

Complainant,                 

Docket No.  WEVA 2014-559

MSHA
Case No.  PINE-CD 2014-01

v.

GATEWAY EAGLE COAL CO.,                Mine:
Farley Eagle Mine

Respondent.                   Mine ID: 46-01537

CORRECTED ORDER REQUIRING THE SECRETARY

TO PRODUCE DOCUMENTS FOR

In Camera  REVIEW

AND

CORRECTED ORDER DEFERRING RULING ON

COMPLAINANT’S MOTION TO

ENFORCE SUBPOENA

In
this proceeding, the Complainant, Marshall Justice (“Justice”), contends that
he was

discriminated against by
Gateway Eagle Coal Co. (“Gateway”) in violation of section 105(c) of the
Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §815(c) (“Mine
Act” or “Act”).  Justice claims that he engaged in numerous instances of protected
activity and that Gateway’s officials responded in hostile ways, ones that
would dissuade a reasonable worker from exercising his or her rights under the
Mine Act, including changing his shift to less desirable hours.1

Justice filed his
initial discrimination complaint with the Department of Labor’s Mine Safety and
Health Administration (“MSHA”), and MSHA investigated.  When MSHA declined to
proceed before the Commission on Justice’s behalf (30 U.S.C. §815(c)(2)),
Justice filed his own complaint with the Commission under section 105(c)(3). 
30 U.S.C. §815(c)(3).  Gateway

answered.  It denied
discrimination occurred, and the matter was assigned to the undersigned.2  The parties initiated
extensive discovery, and as part of his discovery efforts, Justice subpoenaed
Carolyn James, the Assistant Director of MSHA’s Technical Compliance and
Investigation Office.  The subpoena directed Ms. James to appear to testify at
the September 3 hearing and prior to that to be deposed at a place and time, “[t]o
be determined for the convenience of the parties and deponent.” Subpoena, Marshall
Justice v. Gateway Eagle Coal Co., WEVA 2014-559 (July 11, 2014).  Ms.
James also was directed to bring with her the complete MSHA file of the
Secretary’s investigation of Justice’s initial complaint.

On July 21, the
subpoena was served on Ms. James by Justice’s counsel via the U.S. Postal
Service. Id.  The Secretary responded to the subpoena by denying the
requests.  He explained his position by stating that he was not a party to the
case and that the Secretary’s policy prevented Ms. James from testifying or
being deposed and prevented the investigation file from being turned over
without the approval of the Deputy Solicitor of Labor.  See Sec’s Op. 
To Complainant’s Mot. To Enforce Subpoena, Exh. B. (Letter of Katherine E. 
Bissell, Deputy Solicitor for Regional Operations, U.S. Department of Labor,
Esq. (August 12, 2014)).  The Secretary noted that Justice earlier had obtained
a redacted copy of the investigation file via a Freedom of Information Act (“FOIA”)
request.3 Id. 1. 
In declining to produce the file, the Secretary raised numerous objections,
including the Privacy Act, 5 U.S.C. § 552(a), the deliberative process
privilege, the attorney work-product privilege, and the informant privilege. Id.
3-4.  The Secretary concluded: “[I]n light of the above circumstances, and in accordance
with DOL’s authority to regulate the provision of records and testimony under
29 C.F.R. § 2.21 et seq. . . . DOL does not authorize the release of an
unredacted copy of the MSHA investigation file.” Id. 4. 

After receiving
the Secretary’s response, Counsel for Justice filed a motion to enforce the
subpoena.  Counsel for the Secretary opposes the motion, again stating that the
Secretary is unable to comply due to the decision of the Deputy Solicitor that
Ms. James not be deposed or testify and that the investigative file not be
produced.  Counsel notes that pursuant to his FOIA request, counsel for Justice
already has in his possession a copy, albeit redacted, of the file.  Counsel
states that the Secretary’s reason for non-compliance is that:

Under
DOL regulations at 29 C.F.R. §2.20 - 2.25,

the
production of MSHA personnel and documents

in
response to third-party subpoenas is prohibited

unless
approved by the Deputy Solicitor of Labor.

On
August 12, 2014, [the] Deputy Solicitor for

Regional
Operations . . . responded to the

Complainant’s
subpoena, denying such approval.

(Exhibit
B.)

WHEREFORE,
for the reasons stated above and

as
set forth in Exhibit B, the Secretary lacks

authority
to produce the requested . . . witness and

documents
and requests this Court to deny

Complainant’s
Motion to Enforce Subpoena and

to
not issue a directive to enforce the subpoena

in
federal district court.

Sec.
Of Labor’s Opposition to Complainant’s Mot. To Enforce Subpoena 2.

In an attempt to
informally resolve the dispute and find a way forward, on August 15, the
undersigned convened a conference telephone call with counsels.4  In the call, counsel for Justice
stated that he no longer requests that Ms. James be deposed or testify, but his
request that the investigation file be produced remained extant.  Counsel for
the Secretary responded that without authorization of the Deputy Assistant
Secretary of Labor, the file can not be produced. Counsel noted, as he had in
his response to the motion to enforce the subpoena, that the Deputy Solicitor
forbade its transmittal.  Counsel also noted that in her letter denying
authority to produce the investigation file, the Deputy Solicitor invoked
several privileges that in her view prohibited revelation of the file’s
contents. 

The undersigned
then suggested to counsels that if the proceeding had been one under section
105(c)(2) of the Act and the Secretary therefore had been a party, the matter
most likely would have been resolved by submitting the disputed document for in
camera review by the judge to weigh the information it contained against
the relevance of the information and the Secretary’s assertions of privilege. 
The undersigned asked counsels if they would agree to such a procedure to
resolve the present dispute.  Counsel for Justice stated he would.  Counsel for
the Secretary stated he would not, that given the determination of the Deputy
Solicitor, he had no authority to do so.  Moreover, he stated his belief that
much of the information was privileged. 

Having failed to
informally resolve the matter, the undersigned advised counsels that he would
consider the merits of Justice’s motion to enforce the subpoena.  The
undersigned further stated that he would not continue the September 3 hearing
because the matter was continued once before and because however he ruled, the
discovery dispute might well take on a protracted life of its own.  Rather,
than close the record at the conclusion of the hearing, the undersigned stated
he would likely leave it open until the dispute was finally decided.  At that
point, the undersigned, with the assistance of the parties, would determine
what further action, if any, was needed. 

RULING

The undersigned concludes that a ruling on Justice’s
motion to enforce the subpoena is premature, and it is deferred.  Instead, and
within one week of the date of this order, the undersigned will direct the
Secretary to produce the investigative file as it pertains to the Memoranda of
Interview of two MSHA inspectors, Steve Hall and Robert Puckett for the
undersigned’s in camera inspection.  In conjunction with production of
these parts of the file, the undersigned will request the Secretary to identify
with specificity each privileged portion of the materials, state the privilege
and explain why the privilege is applicable.  The undersigned will determine
whether the privilege is applicable and hence whether the identified part is “redactable”
and will order the Secretary to send a redacted or partially redacted copy to
counsel for Justice, or to send counsel a non-redacted copy if no privileges
apply.  The undersigned is sympathetic to the interests and concerns of both
Justice and the Secretary and believes that this balanced approach to
production as it pertains to what the undersigned perceives to be the present
limited scope of the subpoena, is best suited to protect their interests and
meet their concerns.5

It is important
to realize that this is not a situation in which the complainant is asking the
Secretary to produce “everything but the kitchen sink.”  The undersigned deems
Justice to have considerably narrowed the scope of what he is seeking.  As
noted, when discussing the matter with counsels and the undersigned, counsel
for Justice stated that he has dropped his request that Ms. James be deposed
and testify.  In addition, counsel pointed out that his primary interest in the
investigative file is to obtain the Memoranda of Interview of Hall and Puckett.6  This effectual
limitation of the subpoena request suggests to the undersigned that had the
Secretary been at all receptive, the dispute might well have been resolved to
the satisfaction of Justice with little inconvenience to the Secretary. 
However, the Secretary was not receptive.  Rather than explore whether an
accommodation could be reached, counsel cited his lack of authority to produce
the documents, effectively closing off discussions.7

The first
question before the undersigned is whether the investigative file, as it
pertains to the MOIs of Hall and Puckett is discoverable?  Surely, the answer
is, “yes.”  Under the Commission’s rules, discoverable material is “any
relevant . . . matter that is admissible evidence or appears likely to lead to
the discovery of admissible evidence.” 29 C.F.R. §2700.56(b).  The MOIs of Hall
and Puckett, who allegedly were present when Justice engaged in protected
activity and when Gateway management officials allegedly responded to that
activity, are relevant to Justice’s allegations of discrimination and/or are
likely to lead to the discovery of material that is admissible evidence.            

Commission Rule
56(b) excludes privileged matter from discovery. 29 C.,F.R. § 2700.56(b). 
Therefore, the second question is whether the requested material is protected
from disclosure by one or more privileges?  The undersigned cannot answer the
question because rather than submit the materials for in camera review
and then identify the privileges to which specific parts of the materials
allegedly apply, the Secretary has chosen to respond with what is, in effect, a
“my way or the highway” approach.  Counsel for the Secretary maintains that he
has no authority to produce the requested materials because the Deputy
Solicitor has determined they may not be released.  Without consciously trying
to put too grand a gloss on it, it must be stated that the logical conclusion
to draw from the Secretary’s position is no more and no less than that the
government is the arbiter of its own actions.  This is, to say the least, a concept
that is antithetical to the very spirit of American jurisprudence.  It also
must be stated that it is untenable for a Commission judge to accept the
position.  To do so may leave a section 105(c)(3) complaint without effective
recourse to information and evidence necessary to ensure a fair trial, and the
primary duty of a Commission judge is to provide fairness to the fullest extent
possible.  Moreover, it is not only the Complainant who has a concern; so does
the public.  In camera review furthers the public’s interest in
preventing the unwarranted retention of information by the government.8 

The undersigned
finds instructive and persuasive the observations of Commission Judge Richard
Manning when confronted with a similar situation.  Noting that the Secretary is
“inexorably tied to the events leading up to . . . [the section 105(c)(3)] case”
and that the documents sought were a “portion of the information gathered by
the Secretary during [his] investigation of . . . [the] complaint,” Judge Manning
observed, “The secretary is not a stranger to [the section 105(c)(3)]
proceeding and [he] is not disinterested in the outcome of [the] case.” Hazel
Olson v. Triton Coal Company, 25 FMSHRC 649, 654 (Oct. 2003).  Judge
Manning went on, “It is clear that Congress intended the Secretary to
rigorously enforce section 105(c) of the Mine Act. . . . It is also clear that
the Secretary, like all human institutions is not infallible.  Although the
Secretary has determined that [the operator] did not violate the anti-discrimination
provisions of section 105(c), the Secretary should want to see justice done and
should not deliberately obstruct [the complainant’s] ability to pursue [his]
case on [his] own behalf. ” Id. 

Like the
complainant in the case before Judge Manning, Justice “believes that the
information [he] has requested is crucial to [his] case.” 25 FMSHRC at 654. 
Like Judge Manning, the undersigned concludes that “it is not clear whether
[the complainant] will be able to establish [his] case without the requested
information.” Id.9 
And like Judge Manning, the undersigned concludes in camera review is
necessary and proper.

ORDER

Within 5 calendar
days of the date of this order, the Secretary is ORDERED TO PRODUCE for
the undersigned’s in camera review copies of the complete MOIs of
Inspectors Hall and Puckett and all related documents.  The Secretary shall
also submit a statement as to which privileges, if any, apply to the documents
and shall specifically identify the parts of the documents to which the
asserted privileges apply. A ruling on Justice’s Motion To Enforce Subpoena is
deferred until after the Secretary responds to this order.              

The parties are
advised that the hearing in this matter will go forward as previously scheduled
on September 3, 2014 in Madison, West Virginia.

/s/ David F. Barbour

David F. Barbour

Administrative
Law Judge

Distribution (1st
Class U.S. Mail):

Thomas S. Kleeh, Esq.,
Steptoe & Johnson, PLLC, Chase Tower, Eighth Floor, P.O. Box 1588,
Charleston, West Virginia    25326-1588

Marshall J. Justice, 255 3rd
Street W, Madison, West Virginia    25130

Samuel B. Petsonk, 1031
Quarries Street, Suite 200, Charleston, West Virginia    25301

1  The outlines of Justice’s case are discernable, but
the exact nature of Justice’s asserted protected activities and the adverse
actions he allegedly suffered are not clear to the undersigned.  In a separate
order issued today, Justice is directed to submit a chronological list of his
asserted protected activities and of the adverse actions he suffered as a
result of the activities.

2  Once assigned, case was scheduled to be heard on
July 29, 2014, but at the request of the parties, the case was continued to
September 3, 2014.

3  A facsimile of the redacted copy is in the official
case file.  By the undersigned’s count, it consists of 113 pages, 50 of which
are significantly or totally redacted.

4  Although not involved in the discovery dispute,
counsel for Gateway was a party to the conversation.

5 The undersigned again observes that this is an
approach that has worked well in section 105(c)(2) cases.

6  In
a July 21, 2014 e-mail to Ms James, which counsel states accompanied the
subpoena,  counsel explained:

I
am especially interested in obtaining copies of

the
Memoranda of Interview . . . that were taken

of
MSHA Inspectors Steve Hall and Robert

Puckett. 
These two inspectors were the only

individuals,
other than mine management, to

observe
certain acts of discrimination that are

central
to Mr. Justice’s claims under

Sec.
105(c)(3) of the Mine Act.  As you may

surmise,
the factual information contained in the

MOIs
. . .  taken shortly following the date of

the
discrimination . . . is unique and [of]

central
importance to Mr. Justice’s case.

There
is no meaningful substitute for these

MOIs,
because even if Inspectors Hall and

Puckett
were to testify at the hearing in this

matter,
their recollections could scarcely be

expected
to be as fresh as they were shortly

following
this event that occurred nearly a year

ago.

E-mail,
Samuel B. Petsonk, Esq. to Carolyn James (July 21, 2014).    

7  This is not to say anything prevents counsels from
resuming discussions to informally settle the dispute.  Indeed, the undersigned
encourages them to do so.  

8  As Commission Judge William Moran recently observed,
“[T]he trend that began in the late twentieth century [is] that more, not less,
public information from government is the preferred practice.” Bristol Coal
Corp., 36 FMSHRC ___ (Aug. 15, 2014), slip op.1.

9  The undersigned also notes that in addition to
rejecting the Secretary’s arguments against in camera inspection, Judge
Manning persuasively rejected the adequacy of a FOIA request as a substitute
for production under the Mine Act.  Hazel Olson v. Triton Coal Co., 25
FMSHRC 649, 655 (Oct. 2003).