Secretary of Labor v. Gorham Sand & Gravel, Inc.

Plain-English summary

The parties wanted two quarterly-reporting citation cases decided without a hearing. Judge William Moran repeatedly instructed them to file a summary-decision motion containing supported material facts and legal authority as required by the procedural rule. The Labor Department attorney instead missed a deadline and submitted several requests to use the process without filing a compliant merits motion. The Judge held that those requests presented nothing he could decide. He set the matters for a prompt remote hearing while leaving open the possibility of considering a proper summary-decision motion filed at least 25 days before the hearing.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.67
• Outcome: The defective request for summary resolution was rejected, and the cases were set for a hearing.
• Key point: Parties must actually submit supported undisputed facts and legal grounds, not merely ask permission to use summary-decision procedure.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA  AVENUE
N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.:
202-434-9949

June 12, 2020

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner

v.

GORHAM SAND & GRAVEL INC,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. YORK 2020-0027

A.C.
No. 17-00661-503641

Mine:
Unit #63 Portec 1047J

Docket
No. YORK 2020-0031

A.C.
No. 17-00663-503642

Mine:
Unit #65 Komatsu BR550 JG CRSHR

ORDER REGARDING THE JUNE 5, 2020 “JOINT
MOTION OF THE PARTIES TO UTILIZE THE SUMMARY DECISION PROCESS

PURSUANT TO 29
C.F.R. § 2700.67.”

Before
the Court is a most unusual submission from a trial attorney with the Department
of Labor’s Office of the Regional Solicitor, out of Boston, Massachusetts. Framed
as the “JOINT MOTION OF THE PARTIES TO UTILIZE THE SUMMARY DECISION PROCESS

PURSUANT
TO 29 C.F.R. § 2700.67,” hereinafter “June 5 th Motion,” it
represents yet another misunderstanding on the part of the Solicitor’s trial
attorney (“DOL Attorney”) regarding motions and the purpose of a motion. [1]
This latest misunderstanding comes after the Court has now, twice , previously
explained to the government attorney the requirements for filing a motion for
summary decision of the judge, pursuant to the Commission’s procedural rule,
found at 29 C.F.R. §2700.67. In a nutshell, on this occasion the June 5 th
Motion is a request for the Court “to employ the Summary Decision
process as the most expeditious way of resolving the two dockets here.” Jt.
Mot. at 3 (June 5, 2020). Translated, the June 5 th Motion is nothing
more than a request to file a motion for summary judgment, as distinct
from actually filing a proper motion for summary decision. The distinction is
significant, though apparently unrecognized by the DOL Attorney.

One doesn’t file a motion to request
employing the summary decision process; one files a motion for summary
decision.

Accordingly, the motion, utterly failing
to comply with 29 C.F.R. §2700.67, presents nothing for the Court to rule upon. [2]

Background

Before
addressing the vaporific request to file a motion for summary judgment,
some history is in order. Regrettably, as set forth infra , the
submissions from the DOL Attorney have been error-filled.

Both dockets were assigned to this Court
on March 25, 2020. On April 24th, the Court emailed the parties, in response to
an email on that same day from the DOL Attorney seeking resolution of these
dockets through summary decision.

After the Court inquired about its
inability to locate one of the dockets through e-CMS, the DOL Attorney advised
that one docket number was incorrectly listed. [3]

With that problem solved, the Court
advised on the same date, April 24, 2020, that:

In a motion for
summary judgment the parties will need to state what the salient agreed-upon
facts are, all of them, and on that basis that there are NO factual disputes,
leaving only a legal ruling on the applicability of the cited standard(s) for
[the Court] to resolve and if the Secretary prevails [the Court] will then
issue a penalty or penalties, as appropriate, following [its] ruling(s). [The
Court] will give the parties 2 weeks to both determine and agree that there
are no factual disputes and to submit the motion no later than May 8th . 
Please be sure that the motion complies with 29 CFR 2700.67.  

Email
from the Court to the parties (Apr. 24, 2020) (emphasis added).

May 8 th came and went, all
without any compliance to the Court’s email. Noticing this failure, the Court,
on May 20, 2020 emailed the parties the following message:

Re: Gorham Sand
& Gravel Inc YORK 2020-2007 and YORK 2020-0031 (YORK 2020-2007 erroneously
listed docket by the Secretary). The parties are directed to respond to this
Court … by tomorrow, May 21, 2020, why they have not responded to the Court,
nor filed through e-CMS per the Court’s directive to them on Friday April 24,
2020, [which earlier directive was then repeated in the email].

Email from the
Court to the parties (May 20, 2020).           

The following day, May 21, 2020, the
Court received and responded to the Respondent’s non-attorney representative,
who advised:

Good Morning, I
have had correspondence with the lawyer [meaning the DOL Attorney, as the
Respondent, a non-attorney, is proceeding pro se] and done everything
they requested. Please let me know what I need to do. Respectfully, Gene S.
Fadrigon III, Gorham Sand & Gravel.

Email from
Resp’t to the Court and DOL Attorney (May 21, 2020).

The
Court responded to Mr. Fadrigon on May 21 st , as follows:

Dear Mr. Fadrigon:  I am in receipt of
your reply. Thank you for responding.   I have yet to hear from [the DOL
Attorney] or the Secretary of Labor generally. Your lawyer [4] ,
seeing my message below, should know what to do. There was to be a motion
filed, now quite late, for summary decision, per 29 CFR 2700.67.    I have
already made this clear in earlier emails. I may have no choice but to issue an
Order to Show Cause.  Regards, Judge William Moran

Email from the
Court to the parties (May 21, 2020).

Later
that same day, the DOL Attorney emailed the Court, stating:

Dear Judge
Moran, I write to apologize to the Court regarding the delay in filing the
parties [sic] joint motion for Summary Affirmance. [5]
These motions were drafted and sent to the Respondent on May 7, 2020, with a
request that the Respondent review the text and make any changes necessary. I
had understood that my office would file the motions the next day, May 8, per
this Court’s Order. I have learned today, to my mortification, that the Motions
were not in fact filed. I deeply regret this oversight. They will be filed
today.

It is of course
my responsibility to ensure that these documents are filed in a timely matter.
I regret this oversight and pledge to exercise greater vigilance in the future.
As embarrassed as I am about my lapse, I do want the Court to understand that I
did not disregard the filing deadline, but failed to follow-up as I should. Since
I was acting for both parties as it were I should have double checked. Again,
my apologies!

Email from DOL
Attorney to the Court and Resp’t (May 21, 2020).

The
Court responded to the DOL Attorney the same day, stating, “Received your
response. Mistakes happen. Apology accepted. I will look for the filing on
e-CMS today. Regards, Judge William Moran” Email from the Court to the parties
(May 21, 2020).

Later
that same day, May 21, 2020, a “JOINT MOTION OF THE PARTIES TO REQUEST
THAT RESOLUTION OF THIS MATTER BE MADE BY SUMMARY DECISION” was filed by the
DOL Attorney. (emphasis added). The full text of the May 21 st Joint
Motion [6]
provided:

The undersigned
counsel, after telephonic discussion, jointly request [sic] that this matter be
resolved by means of the Commission’s Summary Decision mode of resolution in
lieu of a hearing. The parties share the view that the citations at issue are
straightforward and well documented and accordingly are well-suited to the
Summary Decision process. Further the parties assert that it would be more
economical to proceed on the papers in this matter, as well as more practical,
since the Regional Solicitor’s Office in Boston, Massachusetts has been
directed to work remotely until further notice during the current national
health crisis. The Solicitor’s Office suggests that the date for filing of the
cross motions for summary decision be set not sooner than (30) thirty days from
the date of the filing of the instant motion. For these reasons, the parties
jointly urge the Court to grant this request as an efficient and time-saving
alternative to a live hearing.

Jt.
Mot. of the Parties to Request that Resolution of this Matter be Made by Summ.
Decision, at 1-2 (May 21, 2020).

On May 26, 2020,
the Court issued its “ ORDER REGARDING JOINT MOTION FOR SUMMARY DECISION , which is repeated in relevant part here:

Before the Court
is a Joint Motion (“Motion”) requesting that these matters be addressed by
summary decision. The Motion was filed by an attorney for the Solicitor of
Labor. The Respondent is not an attorney. Though not cited in the motion,
summary decision is addressed under the Commission’s procedural rules pursuant
to 29 C.F.R. §2700.67, which is titled “Summary decision of the Judge.” The
Motion advises that the “parties share the view that the citations at issue are
straightforward and well-documented and accordingly are well-suited to the
Summary Decision process. Further the parties assert that it would be more
economical to proceed on the papers in this matter, as well as more practical,
since the Regional Solicitor’s Office in Boston, Massachusetts has been
directed to work remotely until further notice during the current national
health crisis.” Motion at 1.

The
Motion also seeks to have the “the date for filing of the cross motions for
summary decision be set not sooner than (30) thirty days from the date of the
filing of the instant motion.” Id.   For the reasons which follow, the
Court grants the request but only to the extent of allowing the parties to file
an appropriate, 29 C.F.R. §2700.67 compliant, motion for summary decision. For
the reasons set forth below, the submission of an appropriate, properly
supported filing will be due by Friday, June 5, 2020 . …

The motions were
filed but were woefully inadequate, in small and large aspects. Docket No. YORK
2020-0027-M erroneously lists another judge as presiding and also gives the
wrong assessment control number in the caption.

Of more concern,
both Motions utterly failed to meet the requirements of       § 2700.67, which
as noted, speaks to the Summary decision by the Judge. That rule provides, in
relevant part, that “[a] motion for summary decision shall be granted only if
the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no
genuine issue as to any material fact; and (2) [t]hat the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b),
“Grounds.”

Of particular
importance here, 29 C.F.R. § 2700.67, subsection (c) details the “Form of
motion,” providing that “[ a ] motion shall be accompanied by a
memorandum of points and authorities specifying the grounds upon which the
party seeks summary decision and a statement of material facts specifying each
material fact as to which the party contends there is no genuine issue. Each
material fact set forth in the statement shall be supported by a reference to accompanying
affidavits or other verified documents. ” (emphasis in original).

Neither
motion complies with the procedural rule, subsection (c). The Court made it
clear back on April 24, 2020 that it gave “the parties 2 weeks to both
determine and agree that there are no factual disputes and to submit the motion
no later than May 8th.” It also expressly reminded the parties to “[p]lease be
sure that the motion complies with 29 CFR 2700.67 .” April 24, 2020 email to
the parties (emphasis added).

The Solicitor’s
attorney is a seasoned employee in that office, but even if the individual were
not experienced, the Commission’s procedural rules make the requirements for
submission of a motion for summary judgment quite plain. At this point, despite
being informed that a motion fully compliant with 29 CFR 2700.67 was to be
filed by May 8 th , and in the face of failing to file the motion by
that date, now the DOL Attorney would like at least another 30 days to
file the motion.  Further dawdling is entirely unwarranted.

Accordingly, the
parties are directed to file an appropriate, 29 C.F.R. §2700.67 compliant,
motion for summary decision by Friday, June 5, 2020. SO ORDERED.

Order
(May 26, 2020). [7]

The history recounted above brings us to
the June 5, 2020, Joint Motion filed by the DOL Attorney, which presented
another disappointing submission. The entirety of the June 5 th Motion,
titled as “JOINT MOTION OF THE PARTIES TO UTILIZE THE SUMMARY DECISION PROCESS
PURSUANT TO 29 C.F.R. § 2700.67, stated:

The Parties,
having discussed the merits of this matter, and pursuant to this Court’s
direction, now jointly request that in lieu of a hearing, that the dockets,
YORK 2020-0027 and YORK 2020-0031, in issue be decided by means of the Summary
Decision provision of 29 C.F.R. §2700.67. The Parties share the view that the
use of Summary Decision here will be economical and efficient, and that each
party will have a full opportunity to present its case using this process.

A.     The Use of
Summary Decision Is Appropriate here.

The Parties have
discussed the merits of this matter thoroughly and believe that there is no
genuine issue of material fact that is in dispute. To ensure transparency
regarding the Secretary’s case, counsel for the Secretary has provided the complete
investigative file in each of the two dockets for review. The parties spoke
this week about whether either party is aware of any fact that is in dispute in
this matter. The Parties assert that in their joint view there is not any factual
impediment to proceeding with Summary Decision here. Counsel for the Secretary
has explained to Respondent that the Secretary will, by means of affidavit,
introduce the core facts, and investigative documents which support the
violations. Both parties understand that each party must also file a Memorandum
in support of their respective position. Having reached their preliminary
understandings, the Parties believe that the Summary Decision process will
serve the ends of justice here.

B.     The Core Legal/
Factual Issue.

The Respondent
asserts that MSHA acted improperly in issuing two separate citations for late
filing of one quarterly report. The operator has 6 mines covered on one
quarterly report and paid the original fins e for late filing. MSHA also sited [sic]
the operator 2 more times for the same singular reporting violation
operated by the Respondent. The operator had data loss when switching computer
networks that effected [sic] the calendar reminders for quarterly
reporting. This was immediately addressed, and the fine was paid for this
reporting violation. The Respondent asserts that MSHA’s issuance of two
additional citations for the one singular reporting violation is improper. The
Secretary asserts that the issuance of two citations was a proper action by the
MSHA inspector.

The Parties,
after discussion, both believe that no complicated issues of law are presented
by this case and that consequently that their respective memoranda will be
succinct. Accordingly, the parties move that the Court grant their joint
request to employ the Summary Decision process as the most expeditious way of
resolving the two dockets here.

Jt. Mot. (June
5, 2020)

As noted at the outset of this Order,
the shortcomings of the June 5 th Motion were numerous. Of less
importance, but still noteworthy, the June 5 th Motion continued to
incorrectly cite the wrong judge assigned to these dockets, referring to the
Court’s colleague, Judge Jacqueline Bulluck, who has not been assigned to
either docket. Further, embarrassing himself, the DOL Attorney, in the section
titled “The Core Legal/Factual Issue,” states that “MSHA also sited the
operator 2 more times for the same singular reporting violation operated by the
Respondent.” (emphasis added). MSHA inspectors cite, not site, violations. The
next sentence, added “[t]he operator had data loss when switching computer
networks that effected the calendar reminders for quarterly reporting.”
(emphasis added). Affected, not “effected,” is the correct word.

While these three
errors are not of a grand scale, they do reflect an overall sloppy approach to
the DOL Attorney’s actions in this matter, which, to recap, included originally
citing an incorrect docket number, incorrectly listing the judge assigned to
these dockets, notable grammatical errors, and failing to respond to the Court’s
May 8 th submission deadline.

Were it not for
the profound deficiencies in the latest submission from the DOL Attorney, the
Court likely would have noted the errors just described, but moved on to the
substantive issue. It is in this latter respect that the more grievous
shortcomings must be discussed.

Despite the DOL Attorney being alerted
and warned as far back as April 24 th that the parties
had until May 8 th to both determine and agree that there are no
factual disputes and directed to be sure that the motion complies with
29 CFR 2700.67, the May 8 th deadline was missed and not addressed
until the Court brought the failure to the attention of the DOL Attorney. There
is some notable irony at work here, what with the Respondent being cited for
untimely quarterly reporting, while the DOL Attorney himself practiced untimely
responses.

These shortcomings became magnified with
the latest submission from the DOL Attorney in the June 5 th Motion. That
Motion, as noted above, is a “request to employ the Summary Decision process.” Jt.
Mot. at 3 (June 5, 2020). It must be emphasized again that one does not file a
motion requesting “to employ the Summary Decision process,” instead one
files a motion for summary decision of the judge. But such a motion, as
the Court has now explained more than once to the DOL Attorney, must comply
with 29 C.F.R. § 2700.67.

Despite two attempts, the DOL Attorney
has not met the requirements of the procedural rule for summary decision. The
relevant subparts of this provision give clear instructions on the contents of
such a motion. [8]
They are set forth here:

(b) Grounds. A
motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows:

(1) That there
is no genuine issue as to any material fact; and

(2) That the
moving party is entitled to summary decision as a matter of law.

(c) Form of
motion. A motion shall be accompanied by a memorandum of points and authorities
specifying the grounds upon which the party seeks summary decision and a
statement of material facts specifying each material fact as to which the party
contends there is no genuine issue. Each material fact set forth in the
statement shall be supported by a reference to accompanying affidavits or other
verified documents.

(d) Form of
opposition. An opposition to a motion for summary decision shall include a
memorandum of points and authorities specifying why the moving party is not
entitled to summary decision and may be supported by affidavits or other
verified documents. The opposition shall also include a separate concise
statement of each genuine issue of material fact necessary to be litigated,
supported by a reference to any accompanying affidavits or other verified
documents. Material facts identified as not in issue by the moving party shall
be deemed admitted for purposes of the motion unless controverted by the
statement in opposition. If a party does not respond in opposition, summary
decision, if appropriate, shall be entered in favor of the moving party.

29 C.F.R. §
2700.67.

Summary:

Whether the DOL Attorney was
dilatory or simply confused about the requirements for filing a motion for
summary decision, the Court does not know. What the Court does know is that more
than six weeks ago, on April 24, 2020, it clearly noted and explained the
requirements for filing such a motion. With more than six weeks having elapsed,
and following the apology for missing the first deadline, the DOL Attorney has
twice filed pointless, ineffective motions which do not meet the requirements for
seeking summary decision.

Of course, the DOL Attorney
does not have to utilize the summary decision motion process, though he has
expressed several times that he wishes to do so. However, if opted, the process,
per 29 C.F.R. § 2700.67, must be followed.  It was back on April 24, 2020, that
the DOL Attorney asked that “a deadline for the filing of Cross Motions and
Memoranda be set at least 30 days from today.” DOL Attorney E-mail, April 24,
2020. The Court, as recounted above, rejected the request that such motion be
submitted “at least 30 days” from April 24 th , requiring instead that
it be submitted by May 8, 2020. Now, even 18 days after the date the DOL
Attorney requested, no 29 C.F.R. § 2700.67 compliant motion has been filed.

With no 29 C.F.R. § 2700.67
compliant motion presented, the Court will set this matter for a hearing. A
conference call to establish a hearing date will be held during the week of
June 15, 2020. The hearing will be held without delay. Though many hearings are
unsuitable for an electronic hearing, the Court believes this matter can be
conducted through that method. Of course, the Court will consider a proper
motion for summary decision should one ever be submitted, but again, per the
applicable procedural rule, any such motion must be filed “ no later than 25
days before the date fixed for the hearing on the merits .” [9]
29 C.F.R. § 2700.67(a) (emphasis added).

SO ORDERED.

/s/ William B.
Moran

William B. Moran

Administrative
Law Judge

Distribution:

Attorney
James L. Polianites

U.S.
Department of Labor Regional Solicitor

Office
of the Regional Solicitor

JFK
Federal Building Room E-375

Boston,
Massachusetts 02203

[email protected]

Gene
Fadrigon, III

Gorham
Sand & Gravel, Inc.

939
Parker Farm Road

Buxton,
Maine 04093

[email protected]

Jason
Grover, Counsel for Trial Litigation

Mine
Safety and Health Division

U.S.
Department of Labor

201
12th Street South

Arlington,
VA 22202-5450

[email protected]  

[1] As stated by
the Supreme Court, “the term ‘motion’ generally means ‘[a]n application made to
a court or judge for purpose of obtaining a rule or order directing some act to
be done in favor of the applicant.’” Melendez v. United States , 116 S.
Ct. 2057, 2061 (1996) (citing Black's Law Dictionary 1013 (6th ed.1990), and
Random House Dictionary of the English Language 1254 (2d ed.1987)).

[2] Though the
Court has already made note of it, in a previous order, it expressed awareness
and appreciation that the Respondent, who is not an attorney, is simply
challenging whether too many citations invoking a reporting requirement were
issued. Here, the Court again reassures the Respondent, and the Labor
Department Attorney as well, that none of the attorney’s missteps will operate
to influence the Court’s eventual resolution of this matter, whether that comes
about through a hearing or by way of a motion for summary judgment, that is to
say, for the latter, once an appropriate, 29 C.F.R. §2700.67 compliant, motion
is ever filed. Simply put, the Court, whether by a hearing or by a summary
decision ruling, will determine the issue impartially, ignoring all the
missteps.  

[3] On April 24,
2020, in response to the Court’s inquiry that it could not locate one of the
listed docket numbers, the DOL Attorney informed that his listing one of the
dockets as YORK 2020-2007 was erroneous.

[4] At that time,
the Court mistook the Respondent’s reference to “the lawyer” to mean that the
Respondent had an attorney. The Court later corrected that misunderstanding.

[5] The term
“summary affirmance,” seems to be the DOL Attorney’s coinage. The Court is
unaware of that term’s presence in the Commission’s procedural rules. It found
only one Commission level case employed the term, and in a distinct context,
referring to a judge citing the Board’s [meaning the predecessor appeal board,
the Interior Board of Mining Appeals] summary affirmance of a judge’s decision.
Sec. v. Old Ben Coal Co. 2 FMSHRC 2806 (Oct. 1980). Further, the Court
located only a single administrative law judge decision employing the words,
“summary affirmance.” Sec. v. Windsor Power House Coal, 6 FMSHRC 2773,
(Dec. 1974). In that instance as well, the term
appears in the context of affirming a judge’s decision.

[6] The entirety of
both motions was identical, differentiated only by the separate docket numbers.

[7] While this
Order explained, more than once, why a request for resolution of this
matter by summary decision cannot be honored, it is plain why the request makes
no sense. The Court cannot act on a request for resolution by summary decision
until a proper motion is first filed and only then can it review the submission
to determine if that method is appropriate.

[8] Substantively,
the Commission’s procedural rule for summary decision is in line with the Rule 56
of the Federal Rules of Civil Procedure.

[9] 29 C.F.R. §
2700.67(a), titled, “Filing of motion for summary decision,” provides that “[a]t
any time after commencement of a proceeding and no later than 25 days before
the date fixed for the hearing on the merits, a party may move the Judge to
render summary decision disposing of all or part of the proceeding. Filing of a
summary decision motion and an opposition thereto shall be effective upon receipt.”
(emphasis added).