**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

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

 

 
| SECRETARY OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

             Petitioner,

 

 

 

             v.

 

 

 

GENEVA ROCK PRODUCTS, INC.,

              Respondent.                                            |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. WEST 2022-0097

A.C. No. 42-02107-545346

 

 

 

 

 

 

 

 

Mine: Hansen Pit |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**ORDER GRANTINGMOTION TO LIFT STAY**

 

Before:              Judge Simonton 

 

            This case is before me upon the Secretary’spetition for the assessment of civil penalty under Section 105(d) of theFederal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.**(“MineAct”). It involves four violations issued on April 14, 2021, following MSHA’sinvestigation of a fatal accident that occurred on January 19, 2021. Thismatter has been stayed for over seven months, and the Secretary has moved tolift the stay. For the reasons set forth below, the Secretary’s motion isgranted.

 

**I.                  ****Procedural Background**

 

This matter was assigned to me on January10, 2022. On February 9, 2022, Respondent, Geneva Rock Products, Inc. (“GenevaRock”), moved to stay this proceeding until the conclusion of any specialinvestigations conducted by the Secretary pursuant to Sections 110(c) or 110(d)of the Mine Act, or until the Secretary confirmed there would be no individualcivil penalties or criminal referrals related to this matter. On February 10,2022, I stayed this matter pending the completion of any possible Section 110(c)or 110(d) investigations and directed the parties to provide an update in March2022 confirming whether any such investigations were being conducted. 

 

            In March, April, and June 2022, the Secretaryfiled “status reports” with the court. In each of these reports, the Secretaryconveyed that he had “no update” on the status of any investigations againstGeneva Rock or its agents.

 

            The Secretary filed a more substantive update inAugust 2022. In this status report, counsel for the Secretary stated that shehas no information regarding potentially related investigations involving otheragencies and has no access to such information. The Secretary proposed that thestay in these proceedings should be lifted, over Geneva Rock’s anticipated objection.

 

            For the first time, in August 2022, Geneva Rocksubmitted its own status report. In it, Geneva Rock asserted that a criminalreferral had been made, and that the matter had been assigned to an attorneyfrom the U.S. Department of Justice, Environmental Crimes Section, and anattorney from the U.S. Attorney’s Office for the District of Utah. Geneva Rockstated that an investigation was ongoing, but no formal action had been taken. Accordingly,Geneva Rock suggested that it would be prejudiced absent a stay and stated itwould oppose a motion to lift the stay.

 

            On August 22, 2022, the Secretary filed a Motionto Lift Stay of Proceedings (“Sec’y Mot.”). Geneva Rock filed its Opposition toSecretary’s Motion to Lift Stay of Proceedings on September 2, 2022 (“GenevaRock Opp.”).

 

**II.               ****Discussion**

** **

The Commission has held that judgesshould consider the following factors when determining whether a stay isappropriate in a case like this one, where there is a possibility of a relatedcriminal prosecution: (1) the commonality of evidence in the civil and criminalmatters; (2) the timing of the stay request; (3) prejudice to the litigants;(4) the efficient use of agency resources; and (5) the public interest. *BuckCreek Coal Inc.*, 17 FMSHRC 500, 503 (Apr. 1995). Consideration of thesefactors “involves a balancing test in which the factors are weighed againsteach other in order to determine whether the balance favors a stay.” *PerformanceCoal Co.*, 32 FMSHRC 1212, 1215 n.2 (Oct. 2010). No single factor isdispositive, and the factors must be “weighed against a background ofcoordinated and consistent government action between agencies.” *Id*.

** **

**a.     ****TheCommonality of Evidence in the Criminal and Civil Matters**

** **

The Secretary asserts that thefirst *Buck Creek*factor supports lifting the stay. Sec’y Mot. at 4-7. Tosupport this position, the Secretary points to numerous prior cases in which theSecretary**moved for a stay in cases where parallel criminal matters werepending. *Id.*at 4-5. In those cases, the Department of Justice providedinformation to the Secretary and requested that the civil matters be stayedbecause they were likely to interfere with the criminal investigations orproceedings. *Id*. at 4-5. In contrast with those instances, the Secretaryargues, the Department of Justice has not provided him with any information tosupport that there is commonality of evidence between this case and a criminalinvestigation. *Id*. at 6. Accordingly, given the lack of informationsupporting this factor, the Secretary argues this it weighs in favor of liftingthe stay. *Id.*

 

Geneva Rock, on the other hand,asserts that the first factor strongly weighs in favor of a stay. Geneva RockOpp. at 8. Geneva Rock states that the evidence in this civil proceeding and anypotential criminal proceeding “would likely be identical (or at least havesubstantial overlap) because those proceedings likely would arise out of thesame underlying, allegedly violative conduct at issue in this matter, or atleast closely related conduct.” *Id.* Geneva Rock asserts that on April 1,2022, an attorney at the Department of Justice confirmed that it received a“referral package of this matter containing a large number of documents fromthe Mine Safety and Health Administration.” *Id.*at 5. According toGeneva Rock, the Department of Justice confirmed in August that it is stillworking through the documents, that the investigation of the referral isactive, and that no decisions have been made regarding potential criminalcharges or the targets of any potential charges. *Id.* at 5-6. Accordingly,Geneva Rock argues that the stay of this matter is appropriate and should becontinued, and that the Secretary’s motion should be denied.

 

I find that the first factorsupports lifting the stay in this matter. Geneva Rock has failed to establish anexus between the possible criminal prosecution and this case. Without any concreteinformation showing a commonality of evidence and only the recounting ofcommunications between Geneva Rock and the Department of Justice, Geneva Rock’sassertion that a potential criminal investigation involves “identical” evidenceis merely an assumption at this juncture. This is an assumption the court isunwilling to adopt. However, Geneva Rock remains free to move for a renewedstay if and when any criminal proceeding actually interferes with or is impededby this civil penalty proceeding. 

** **

**b.     ****TheTiming of the Stay Request**

** **

The Secretary further argues thatthe second *Buck Creek* factor also supports lifting the stay. Sec’y Mot.at 7. Since this case was originally stayed in February, the Secretary decidednot to open any related special investigations and has confirmed he is notpursuing any individual civil penalties under Sections 110(c) or 110(d) of theMine Act. *Id.*at 3. He further asserts that “the imminence of anindictment would weigh in favor of limiting discovery or staying proceedings,”but given the five-year statute of limitations and Geneva Rock’s report that noformal action has been taken by the Department of Justice, this case should notbe kept on hold based on the possibility of related criminal proceedings. *Id.*at 7.

 

Geneva Rock counters that thetiming of the stay request supports a continuance of the stay. Geneva Rock Opp.at 9. It asserts that clarity regarding potential criminal charges and thetargets of those charges “should emerge” in the coming weeks. *Id.*

 

            I agree with the Secretary and find that thesecond factor of the *Buck Creek*test supports lifting the stay. Thismatter was stayed over seven months ago, and the Secretary has confirmedindividual civil penalties under Sections 110(c) or 110(d) will not be assessedfor conduct related to the accident at issue in this case. At this time, thetiming factor weighs in favor of lifting the stay; nearly two years have passedsince the accident at issue and indictments are not imminent. 

 

**c.      ****Prejudiceto the Litigants**

** **

The Secretary argues that his“civil penalty case is at risk of substantial prejudice if the stay continues. Sec’yMot. at 10. To support this assertion, the Secretary points to the fact thatthe lead accident investigator has left his employment with MSHA and relocatedout of state, and that a continued stay makes his availability more difficult. *Id.*Additionally, the Secretary notes that 14 Geneva Rock employees are listed inthe Fatal Accident Report as participants in the investigation, and that, astime passes, the likelihood increases that some witnesses may becomeunavailable. *Id.* at 10-11. The Secretary also argues that Geneva Rockmay dispose of discoverable documents, according to its retention policy orotherwise. *Id.*at 11. The Secretary argues that because the risk ofprejudice to his case is “concrete and substantial,” rather than speculative,the stay should be lifted. *Id.*

 

Geneva Rock asserts that it will beprejudiced in three ways if the stay is not continued. Geneva Rock Opp. at 9. First,it argues that allowing this case to proceed will force Geneva Rock to address“overlapping witnesses and evidence against two powerful government opponentsat the same time, potentially placing great financial hardship” on Geneva Rock.*Id.*at 9-10. Second, it expects that many necessary witnesses mightassert their Fifth Amendment privileges at depositions or at hearing topreserve their own interests during the pendency of criminal investigations orproceedings, which would deprive Geneva Rock of testimony crucial to itsdefenses and possibly expose it to adverse inferences in the Secretary’s favor.*Id.* at 10. Third, Geneva Rock argues that allowing this case to proceedwill prejudice it by requiring it to “expose the bases of its defenses” to theprosecution before a criminal trial. *Id.*at 11. Accordingly, Geneva Rockconcludes that this third factor weighs in favor of extending the stay. 

 

I find that the third *Buck Creek*factor favors lifting the stay. While I acknowledge Geneva Rock’s concerns,its assertion that it will be prejudiced if this case moves forward is littlemore than speculation at this point. Geneva Rock assumes that a criminalproceeding will move forward during the pendency of this case, and that someunidentified witnesses may refuse to be deposed or to testify at a hearing inthis case for fear that they may be charged in a separate criminal action. However,Geneva Rock is apparently unable to show that the Department of Justice will bemoving forward with any criminal indictments, let alone criminal indictmentsfor the conduct at issue in this docket. On the other hand, the Secretary’sconcerns about the continuing passage of time are well taken and shared by thecourt. Unlike any potential criminal case, this civil penalty case is currentlypending, and resolving it in accordance with the Commission’s aim to “securethe just, speedy, and inexpensive determination of all proceedings” is ofutmost importance at this juncture. As the Commission has stated, “a completestay of the civil proceedings is by no means the only method by which to avoidprejudice to a related criminal prosecution.” *Buck Creek*, 17 FMSHRC at504. Either party may petition the court for limitations imposed on discovery, oras stated above, may move for a renewed stay if a criminal proceeding beginsand is impeded by this civil proceeding.

 

**d.     ****TheEfficient Use of Agency Resources**

** **

The Secretary attests that thefourth *Buck Creek*factor favors lifting the stay. Sec’y Mot. at 11-12. Heargues that he should not be required to wait to enforce civil penalties untilthe criminal statute of limitations has run, and that efficient use of agencyresources requires that the Secretary be permitted to pursue a prompt civilpenalty. *Id.*at 12.

 

Geneva Rock counters that acontinuation of the stay would promote judicial economy and the efficient useof agency resources. Geneva Rock Opp. at 11. It speculates that if theDepartment of Justice declines to bring criminal charges, the Secretary maychange course and seek individual civil penalties under Sections 110(c) or110(d) after all, and this scenario would support consolidation of the casesfor discovery, settlement negotiations, and hearing. *Id.*at 11-12. Additionally,Geneva Rock posits that allowing the criminal investigation to conclude beforeproceeding with this case may present an opportunity for a “‘global settlement’addressing any criminal charges and agency claims at once, thus avoiding wastedgovernment efforts in both proceedings. *Id.*at 12 (citation omitted). 

 

I find this factor favors liftingthe stay. At this time, it is unclear whether there will be a criminalproceeding and, if so, the extent to which the criminal and civil proceedingswill involve the same witnesses and evidence. It is possible that this factor laterweighs in favor of a stay if either party provides concrete information to supportsuch a finding. Now, however, the Secretary asserts that moving forward withthis proceeding is the most efficient use of his agency’s resources. Withoutany contrary information from the Department of Justice, I find that movingthis proceeding along is the most efficient use of Commission resources aswell. 

** **

**e.      ****ThePublic Interest**

 

The Secretary asserts that thisfifth factor further supports lifting the stay. Sec’y Mot. at 12-14. He pointsto the Secretary’s and the Commission’s responsibilities under the Mine Act,stressing that it was Congress’ intent to protect the health and safety ofminers through prompt enforcement and swift adjudication of civil penalties. *Id.*Waiting for the completion of a criminal investigation and any proceedingsfrustrates the public interest in the swift adjudication of civil penalties,according to the Secretary. *Id.*at 13-14.

 

Geneva Rock argues that the publicinterest favors continuing the stay until any criminal investigations arecomplete. Geneva Rock Opp. at 12. It notes that the Secretary has taken thisposition in many other cases, and that courts have found staying civilproceedings pending parallel criminal proceedings protects the defendant’sconstitutional rights, which is more important than avoiding delay andinconvenience in the civil case. *See id.* at 12-13. Geneva Rock assertsthat the public interest in the money damages arising from the civil proceedingis outweighed by the public interest in the criminal proceeding and theprotection of the defendant’s constitutional rights. *Id.*

 

I find that the public interestsupports lifting the stay at this juncture. The Commission has long observedthat “there is a substantial public interest in the expeditious determinationof whether penalties are warranted.” *Scotia Coal Mining Co.*, 2 FMSHRC633, 635 (Mar. 1980). This case has been stayed since February, and there isstill no parallel criminal proceeding pending. Accordingly, given theinformation available now, I find that the public interest favors lifting thestay. Again, Geneva Rock may move for a stay at a later date if thesecircumstances change.

** **

**III.            ****Order**

 

Having considered the five *BuckCreek*factors, I find that the Secretary’s request to lift the stay inthese proceedings is appropriate, despite the possibility of a related criminalprosecution. Though I appreciate Geneva Rock’s concerns, its vague, largely assumptivearguments are insufficient to support continuing this already lengthy stay. Accordingly,the Secretary’s Motion to Lift Stay of Proceedings is **GRANTED** and thestay of WEST 2022-0097 is hereby **LIFTED**. The parties are directed tosubmit their prehearing reports on or before **November 7, 2022**.

 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

Distribution: (Electronic and Certified Mail)

 

Emily O. Roberts, U.S. Department of Labor, Office of theSolicitor, 201 12th Street South, Suite 401, Arlington, VA 22202, roberts.emily.o@dol.gov

 

Jason W. Hardin, Fabian VanCott, 215 S. State Street, Suite1200, Salt Lake City, UT 84111, jhardin@fabianvancott.com

 

Artemis Vamianakis, 215 S. State Street, Suite 1200, SaltLake City, UT 84111, avamianakis@fabianvancott.com