**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 5th 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 5th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 5th 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 8th 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 21st, 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 21st 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 8th, 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 5th 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 5th Motion were numerous. Of lessimportance, but still noteworthy, the June 5th 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 8th 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 24th**that****the partieshad until May 8th 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 8th 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 5th 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 24th, 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

polianites.james@dol.gov

 

GeneFadrigon, III

GorhamSand & Gravel, Inc.

939Parker Farm Road

Buxton,Maine 04093

gene@gsgravel.com

 

JasonGrover, Counsel for Trial Litigation

MineSafety and Health Division

U.S.Department of Labor

20112th Street South

Arlington,VA 22202-5450

grover.jason@dol.gov 

----

[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).