**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

Office of the Chief AdministrativeLaw Judge

721 19th Street, Suite443

Denver, CO 80202-2536

303-844-3577 FAX303-844-5268

 

 

**ORDER GRANTING THESECRETARY’S MOTION TO LIMIT DISCOVERY**

 

Thesecases are before me upon a notice of contest filed by Grimes Rock, Inc.(“Grimes Rock”) and petitions for assessment of civil penalty filed by theSecretary of Labor (the “Secretary”), acting through the Mine Safety and HealthAdministration (“MSHA”), against Grimes Rock pursuant to sections 105 and 110of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820(the “Mine Act”). 

 

OnNovember 29, 2023, I lifted the stay in these matters and ordered the partiesto confer regarding the possibility of settlement and, if settlement did notappear feasible, a timetable for submitting briefs or motions for summarydecision. In response to that order, the Secretary notified the court that theparties were responding to written discovery and would confer with each otherfollowing that discovery to consider how to proceed in these cases. On December13, I ordered the parties complete discovery as soon as possible and provide astatus update to the court by January 31. On January 25, 2024, the Secretaryfiled a Motion to Limit Discovery. Grimes Rock opposed the motion. For reasonsset forth below, the Secretary’s motion is **GRANTED**.

 

            Thecontest docket and two penalty dockets at issue involve two 104(a) citationsand one 104(b) order that arise from Grimes Rock’s alleged failure to complywith orders issued by former Commission Judge Miller in a temporaryreinstatement proceeding involving Grimes Rock, i.e., WEST 2021-0178-DM. CitationNo. 9619114, issued under section 104(a) on August 15, 2022, alleges aviolation of section 105(c) of the Mine Act because Grimes Rock failed tocomply with Judge Miller’s May 28, 2021 Order of Temporary EconomicReinstatement and June 17, 2022 Order Granting the Secretary’s Motion toEnforce. Order No. 9619115, issued under section 104(b) on August 21, 2022, allegesthat Grimes Rock continued to fail to comply with Judge Miller’s orders by notmaking certain required payments. Finally, Citation No. 9619116, issued onAugust 22, 2022, under section 104(a), alleges that Grimes Rock violatedsection 104(b) when it continued to conduct work activities at the mine sitedespite not complying with Order No. 9619115. With that context in mind, I nowturn my attention to the parties’ arguments on the motion.

 

TheSecretary, in her Motion to Limit Discovery, states that Grimes Rock “hasserved discovery which veers outside of the relevant and imposes an undueburden on the Secretary in litigating this case.” Sec’y Mot. 2. In support ofher motion, the Secretary raises three points. 

 

First,the discovery served on the Secretary on January 23, 2024[1] “seeks facts anddocuments concerning MSHA’s overall enforcement authority to conduct safety andhealth inspections at this mine and all communications between MSHA InspectorRuben Bernal and the agency regarding those activities.” Sec’y Mot. 2. However,the Secretary asserts that MSHA’s authority under the Mine Act to conductmandated inspections is not relevant to Grimes Rock’s obligation to comply withthe orders of an administrative law judge.

 

Second,the Secretary asserts that the discovery seeks information on “inspectionsconducted by and citations issued by MSHA Inspector Ruben Bernal in December2023 and January 2024.” Sec’y Mot. 3. However, that information is not relevantto Grimes Rock’s failure to comply with the judge’s order of June 2022 whichled to the citations and order at issue in these proceedings.

 

Third,and finally, the “discovery seeks information that is deliberative and reflectsthe give and take of the consultative process.” Sec’y Mot. 3 (Internalquotation omitted). 

 

Consequently,given the undue burden created by requiring the Secretary to perform tasks toobtain unrelated, irrelevant and/or privileged information, the Secretaryrequests that the court “enter an order to limit discovery to relevant,non-privileged matter having to do with the citations at issue in thesedockets, the facts that gave rise to the citations of record, and any documentsnot previously provided.” Sec’y Mot. 4. 

 

GrimesRock argues that the Secretary’s motion should be denied because the subjectdiscovery is “directly relevant to Grimes’ affirmative defense ofretaliation/retaliatory motive.” Grimes Rock Opp’n 2.[2] It asserts that thesubject discovery seeks information and documents relating to the reasons why MSHA inspected Grimes Rock’s mine four times betweenDecember 19, 2023 and January 18, 2024, and is directly related to Grimes’affirmative defense that MSHA has engaged in a pattern of retaliation against GrimesRock for exercising its rights. Grimes Rock Opp’n 6. 

 

Further,Grimes Rock argues the Secretary failed to meet her burden of proving that thesubject discovery seeks information and documents protected from disclosure bythe deliberative process privilege. Grimes Rock Opp’n 9. It asserts that theSecretary did not provide an index of documents sought to be withheld so thiscourt could determine whether those documents are subject to the assertedprivilege. Grimes Rock Opp’n 10-11. It further asserts that, even if theSecretary were able to establish that the information and documents sought wereboth “pre-decisional and deliberative, Grimes’ interest in disclosure greatlyoutweighs the Secretary’s interest in non-disclosure.” Grimes Rock Opp’n 11. Assupport, Grimes Rock points to the answers it filed in these matters and the“affirmative defense of retaliation/retaliatory motive, which puts theSecretary’s and MSHA’s policies and decision making in connection with itsrepeated inspections of Grimes’ mine squarely at issue.” Grimes Rock Opp’n 11. 

 

TheCommission’s procedural rules state that “[p]arties may obtain discovery of anyrelevant, non-privileged matter that is admissible evidence or appears likelyto lead to the discovery of admissible evidence.” 29 C.F.R. § 2700.56(b). 

 

I findthat the information and documents sought by Grimes Rock are not relevant tothese proceedings and will not lead to the discovery of admissible evidence. Thetwo 104(a) citations and one 104(b) order in these dockets were issued inAugust of 2022. The discovery sought by Grimes Rock includes information anddocuments relating to reasons why MSHA inspected the mine in December of 2023and January of 2024, i.e., roughly a year and a half after the citations andorder were issued. Although the Commission’s rules on discovery are quiteliberal, the information sought is so far outside the realm of the instant proceedingsthat it is entirely irrelevant. 

 

I recognizethat Grimes Rock is asserting an affirmative defense that MSHA engaged in a patternof retaliation against Grimes Rock for exercising its rights. However, as ageneral matter, MSHA’s motivation for issuing citations and orders is not thesubject of Commission proceedings. *See Basin Resources Inc.*, 18 FMSHRC1125 (June 1996) (ALJ), *Calvin Black Enterprises*, 5 FMSHRC 1440 (Aug.1983) (ALJ). 

 

TheMine Act authorizes MSHA to frequently inspect mines for violations of the Actor safety standards. Section 103(a) of the Mine Act requires MSHA to conductinspections of each surface mine “in its entirety at least two times a year.” 30U.S.C. § 813(a). MSHA is not prohibited from inspecting a surface mine morethan twice a year.[3]

 

Theissue in these cases is whether the Secretary can establish the three allegedviolations by a preponderance of the evidence, not whether MSHA exhibited somesort of retaliatory

motivewhen issuing the citations and order. If the Secretary is unable to establishthe violations by a preponderance of the evidence, the citations and orderswill be vacated. 

 

BecauseI find that the information and documents sought are not relevant to theseproceedings and will not lead to the discovery of admissible evidence, I do notreach the parties’ arguments regarding whether the materials are privileged. 

 

Accordingly,the Secretary’s Motion to Limit Discovery is **GRANTED** and the informationand documents sought by Grimes Rock in its second set of interrogatories andsecond set of requests for production of documents need not be provided by theSecretary. 

 

 

 

 

                                                                        /s/Richard W. Manning

                                                                        RichardW. Manning

                                                                        AdministrativeLaw Judge

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Distribution(Via First Class Mail and email)

 

KennethH. Moss, Esq., Mark R. Pachowicz, Esq., and Tina Amoke, Pachowicz |Goldenring,6050 Seahawk Street, Ventura, CA 93003 (ken@pglaw.lawmark@pglaw.lawtina@pglaw.law) 

 

AlexandraJ. Gilewicz, Esq., and Susannah M. Maltz, Esq., Office of the Solicitor, MSHA,U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington, VA 22202

(gilewicz.alexandra.j@dol.govmaltz.susannah.m@dol.gov)

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[1] The Secretary’smotion concerns a second set of discovery. According to the motion, Grimes Rockserved a first set of discovery on January 12, 2024, to which the Secretary iscurrently preparing responses. Sec’y Mot. 2. n. 2

 

[2] Grimes also arguesthat this court presently lacks jurisdiction in this matter and asserts thatthe cases should be stayed. Those arguments will be addressed by a separateorder. 

[3] A singleinspection of a mine can last more than one day. It appears that Grimes Rock’sassertion that MSHA inspected the mine four times during December of 2023 andJanuary of 2024 was based on it counting each day of multiday inspections as aseparate inspection.