Secretary of Labor obo Ronald Bowersox v. The Marshall County Coal Co., et al.

Plain-English summary

These five consolidated cases are interference complaints under section 105(c) of the Mine Act against mines operated by Murray Energy. The complaints allege the companies interfered with miners' rights by filing a federal lawsuit in retaliation for miners taking safety complaints to MSHA rather than to the operator first. The same judge, Margaret A. Miller, had earlier decided the related "Awareness Meeting" cases, where she found that mandatory meetings led by Murray Energy's CEO violated the interference provision, and where she referred to the federal lawsuit when setting penalties. The companies moved for her recusal, arguing those prior remarks had already decided the central issue here, and separately that assigning her the cases broke the Commission's rotation rule. Judge Miller denied the motion. She applied the Supreme Court's standard from Liteky v. United States, as adopted by the Commission, under which rulings and opinions formed during earlier proceedings support recusal only if they show deep-seated favoritism or antagonism making fair judgment impossible. She found her prior handling showed no such bias, noted the Commission had already vacated the penalties that relied on the lawsuit and ordered them reassessed without it, and held that the rotation rule gives the Chief Judge broad discretion and no party has a right to a particular judge.

Decision snapshot

• Cited standard(s): None; the order rests on section 105(c) of the Mine Act, 30 U.S.C. § 815(c), and the Commission's Procedural Rule 50, 29 C.F.R. § 2700.50.
• Outcome: The motion for withdrawal or recusal of the administrative law judge was denied, and the interference cases continued before her.
• Key point: Opinions a judge forms from evidence in an earlier related case are not grounds for recusal unless they show deep-seated antagonism making fair judgment impossible, and a party has no right to a particular judge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
STREET, SUITE 443

DENVER, COLORADO
80202-2500

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

September 19, 2016

SECRETARY OF LABOR,                               
:    DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH                    
:

ADMINISTRATION, (MSHA),                     
:   

on behalf of RONALD
BOWERSOX ,            :    Docket No. WEVA 2016-398

Complainant,                    
:    MSHA No. MORG-CD-2016-04      

:

v.                                                  
:   

:   

THE MARSHALL COUNTY COAL CO.,       
:

MCELROY COAL COMPANY,
MURRAY :   

AMERICAN ENERGY, INC., and                
:

MURRAY ENERGY CORPORATION,       
:               

Respondents,                   
:

UNITED MINE WORKERS OF
AMERICA    :

INTERNATIONAL UNION,                         
:    Mine: Marshall County Mine

Intervenor.                       
:    Mine ID: 46-01437

:

:

SECRETARY OF LABOR,                               
:    DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH                    
:

ADMINISTRATION, (MSHA),                     
:   

on behalf of RONALD
BOWERSOX ,            :    Docket No. WEVA 2016-399

Complainant,                    
:    MSHA No. MORG-CD-2016-05      

:

v.                                                  
:   

:   

OHIO COUNTY COAL CO.,                            
:

CONSOLIDATION COAL CO.,
MURRAY :   

ENERGY, INC., and MURRAY
ENERGY    :

CORPORATION,              
                              :               

Respondents,                   
:

UNITED MINE WORKERS OF
AMERICA    :

INTERNATIONAL UNION,                         
:    Mine: Ohio County Mine

Intervenor.                       
:    Mine ID: 46-01436

:

:

:

SECRETARY OF LABOR,                               
:    DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH                    
:

ADMINISTRATION, (MSHA),                     
:   

on behalf of RONALD
BOWERSOX ,            :    Docket No. WEVA 2016-400

Complainant,                    
:    MSHA No. MORG-CD-2016-06      

:

v.                                                  
:   

:   

HARRISON COUNTY COAL CO.,                 
:

CONSOLIDATION COAL CO.,
MURRAY  :  

AMERICAN ENERGY, INC., and                
:   

MURRAY ENERGY CORPORATION,       
:   

Respondents,                   
:   

UNITED MINE WORKERS OF
AMERICA    :

INTERNATIONAL UNION,                         
:    Mine: Harrison County Mine 

Intervenor.                       
:    Mine ID: 46-01318

:

:

SECRETARY OF LABOR,                               
:    DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH                    
:

ADMINISTRATION, (MSHA),                     
:   

on behalf of RONALD
BOWERSOX ,            :    Docket No. WEVA 2016-401

Complainant,                    
:    MSHA No. MORG-CD-2016-06      

:

v.                                                  
:   

:   

MARION COUNTY COAL CO.,                     
:

CONSOLIDATION COAL CO.,
MURRAY :   

AMERICAN ENERGY, INC., and                
:   

MURRAY ENERGY CORPORATION,       
:               

Respondents,                   
:   

UNITED MINE WORKERS OF
AMERICA    :

INTERNATIONAL UNION,                         
:    Mine: Marion County Mine   

Intervenor.                       
:    Mine ID: 46-01433                                                                            
                                                :

:

SECRETARY OF LABOR,                               
:    DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH                    
:

ADMINISTRATION, (MSHA),                     
:   

on behalf of RONALD
BOWERSOX ,            :    Docket No. WEVA 2016-402

Complainant,                    
:    MSHA No. MORG-CD-2016-07      

:

v.                                                  
:   

:   

MONONGALIA COUNTY COAL CO.,          
:

CONSOLIDATION COAL CO.,
MURRAY  :

AMERICAN ENERGY, INC., and                
:   

MURRAY ENERGY CORPORATION,       
:               

Respondents,                   
:   

UNITED MINE WORKERS OF
AMERICA    :

INTERNATIONAL UNION,                         
:    Mine: Monongalia County Mine

Intervenor.                       
:    Mine ID: 46-01968

ORDER DENYING RESPONDENT’S MOTION FOR THE

WITHDRAWAL OR RECUSAL OF THE ADMINISTRATIVE LAW JUDGE

Before:            Judge
Miller

These cases are
before me based upon complaints of interference brought by Ronald Bowersox
against five mines owned and operated by Murray Energy Corporation.  The cases
were brought pursuant to the interference provisions of section 105(c) of the
Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C.
§ 815(c).  On July 13, 2016, the Respondents filed a Motion for the
Withdrawal or Recusal of the Administrative Law Judge.  The Secretary filed a
Response in opposition to the Respondents’ motion on July 20, 2016.  For the
reasons set forth below, I DENY the Respondents’ motion.

On November 15,
2015, I issued a decision disposing of complaints of interference brought by a
number of employees at five mines owned and operated by Murray Energy Corporation. 
Secretary of Labor on behalf of Thomas McGary, et al. v. The Marshall County
Coal Co., et. al. , 37 FMSHRC 2597 (Nov. 2015) (deciding the “Awareness
Meeting Cases”), aff’d in part, rev. in part , 38 FMSHRC ___ (Aug. 26,
2016).  At issue in those cases was a mandatory “awareness meeting” held at
each of the Respondent mines in which the CEO of Murray Energy, Robert Murray,
discussed complaints that had been made by miners to the Mine Safety and Health
Administration (“MSHA”).  I concluded that the awareness meetings violated the
interference provision of section 105(c)(1) of the Mine Act, 30 U.S.C.
§ 815(c)(1).  37 FMSHRC at 2607.  Just before the hearing on the awareness
meetings case, which took place on September 22, 2015, a complaint was filed by
several of the Respondents in a U.S. District Court alleging a breach of the
collective bargaining agreement when miners had complained to MSHA without
taking those complaints first to the mine operator.  The Respondents’ federal
lawsuit was dismissed without prejudice on June 10, 2016, and has not been
appealed.  See Consolidation Coal Co. v. United Mine Workers of America ,
Civ. Action No. 1:15CV167, 2016 WL 3248427 (N.D.W.Va. June 10, 2016).

The instant cases
arise from the now dismissed federal lawsuit.  The complaint alleges that
“Respondents . . . interfered with the exercise of statutory rights
by miners and their representatives by filing a federal lawsuit in retaliation
against and in an attempt to intimidate miners filing Section 103(g) and 105(c)
complaints.”  Sec’y Complaint at 15.  The Respondents have moved for my
recusal on the following grounds:

In a
prior Mine Act proceeding [the Awareness Meeting Cases], the Administrative Law
Judge considered and issued rulings regarding the legality of the Federal Court
Lawsuit – the very issue in dispute in this case – going so far as to refer to
it as a[n] “extension of intimidation,” holding that it was an “attempt to
intimidate witnesses,” and then issuing enhanced civil penalties based at least
in part on its filings.  These rulings prejudice and decide the issues in
dispute in the instant matters.  Accordingly, fair judgment for the Respondents
is impossible and the Administrative Law Judge should recuse herself from any
further proceedings.

Resp. Mot. at 3. 

The Commission
has set forth the standard to be applied when it decides whether a judge should
be recused from a Mine Act proceeding.  Quoting the U.S. Supreme Court decision
in Liteky v. United States , 510 U.S. 540 (1994), in Medusa Cement Co. ,
the Commission noted as follows: 

First,
judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. . . . [T]hey cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest circumstances evidence
the degree of favoritism or antagonism required … when no extrajudicial source
is involved. Almost invariably, they are proper grounds for appeal, not for
recusal.  Second, opinions formed by the judge on the basis of facts introduced
or events occurring in the course of … current … or … prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make a fair judgment
impossible.  Thus, judicial remarks during the course of trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.

20 FMSHRC 144, 149 (Feb.
1998), quoting Liteky , 510 U.S. at 555 (citations omitted).  The
Commission further held that “appearance of bias is an insufficient ground upon
which to order recusal when the allegation of bias is based on prior judicial
proceedings (as opposed to extrajudicial conduct).”  20 FMSHRC at 150 ( citing
Liteky , 510 U.S. at 552-53 & n.2, 556, and other cases). 

The question here
is thus whether the record in the prior judicial proceedings on which the
Respondents rely “display a deep-seated favoritism or antagonism that would
make a fair judgment impossible,” 20 FMSHRC at 149, in the instant proceedings.
 In the Awareness Meeting proceedings, I was presented with evidence of
potential intimidation of witnesses that caused me legitimate concern.  Given
the seriousness of such an allegation, it was incumbent upon me to ensure that
the record was complete on that issue.  My efforts to do so exhibited no
favoritism or antagonism towards the Respondents.  To the contrary, I
discharged my duty to ensure the integrity of the proceedings.  Moreover, to
the extent I relied upon the bringing of a federal lawsuit in my Awareness
Meeting decision, I limited my reliance to what I found to be an appropriate
penalty.  37 FMSHRC at 2609-10.  Notably, on appeal by the Respondents, the
Commission vacated my penalty assessments and remanded the cases to me to
reassess the penalties “without considering Respondents’ filing of the federal
court suit,” this “[i]n light of the federal court’s recent dismissal of the
suit.”  38 FMSHRC ___, slip op. at 20. 

The Respondents
also argue as grounds for recusal that assignment of the instant proceedings to
me violated Commission Procedural Rule 50.  Resp. Mem. at 10-12.  Rule 50
states that “Judges shall be assigned cases in rotation as far as
practicable.”  29 C.F.R. § 2700.50.  Under this rule, the Chief
Administrative Law Judge has a great degree of discretion to assign cases so as
to preserve Commission resources and ensure judicial efficiency.  Here, in
assigning interrelated cases to me, even the Respondents do not suggest that
the Chief Judge abused his discretion in assigning the instant cases to me.  I
find their argument, which rests upon a single non-precedential decision by an
Administrative Law Judge, unconvincing.  In fact, the Commission has held that
“Section 113(d)(1) of the Mine Act, 30 U.S.C. § 823(d), gives an operator
the right to a hearing before an administrative law judge but it does not
confer the right to a hearing before a particular judge.  See also 29
C.F.R. § 2700.50.”  Big Horn Calcium Co. , 12 FMSHRC 1493, 1496
(Aug. 1990). 

Having considered
of the Respondents’ motion, affidavit, and supporting memorandum of law, as
well as the Secretary’s response, I find the Respondents’ position without
merit.  If the Respondents wish to file a request for interlocutory review they
must file a separate motion.  I do not rule on that issue here.  Accordingly,
the Motion for the Withdrawal or Recusal of the Administrative Law Judge is DENIED .

/s/ Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution: (U.S. First
Class Mail)

Winfield J. Wilson, U.S.
Department of Labor, Office of the Solicitor, 201 12 th Street South,
Suite 401, Arlington, VA 22202-5450

Philip K. Kontul, Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., One PPG Place, Suite 1900, Pittsburgh,
PA 15222

Laura Karr, United Mine
Workers of America, 18354 Quantico Gateway Drive, Suite 200, Triangle, VA
22172-1779