.
GTI CAPITAL HOLDINGS LLC dba ROCKLAND MATERIALS
May 2, 2001
WEST 2000-638-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 2, 2001
GTI CAPITAL HOLDINGS LLC dba : CONTEST PROCEEDINGS
ROCKLAND MATERIALS, :
Contestant : Docket No. WEST 2000-638-RM
: Citation No. 7945881;
: 7/26/2000
:
v. : Docket No. WEST 2000-639-RM
: Citation No. 7945882;
: 7/26/2000
:
SECRETARY OF LABOR, : Docket No. WEST 2000-640-RM
MINE SAFETY AND HEALTH : Order No. 7945883; 7/26/2000
ADMINISTRATION, (MSHA), :
Respondent : Rockland Materials Pit 1
: Mine Id 02-02867
ORDER DENYING ROCKLAND'S MOTION FOR SUMMARY DECISION
ORDER DENYING THE SECRETARY'S
CROSS-MOTION FOR SUMMARY DECISION
ORDER DENYING ROCKLAND'S MOTION TO COMPEL PRODUCTION
These proceedings are before me on notices of contest filed
by GTI Capital Holdings, LLC, doing business as Rockland
Materials ("Rockland") against the Secretary of Labor pursuant
to section 105 of the Federal Mine Safety and Health Act ff 1977,
30 U.S.C. � 801 et seq. (the "Mine Act"). The Department of
Labor's Mine Safety and Health Administration ("MSHA") issued
two citations and one order of withdrawal (the "citations")
against Rockland following its investigation of a fatal accident
that occurred at its facility in Phoenix, Arizona. This facility
includes a sand and gravel quarry and a concrete batch plant.
Rockland filed a motion for summary decision asserting that
MSHA lacked the requisite jurisdiction to issue the citations.
Rockland argues that, because the citations were issued at
stockpiles for its concrete batch plant, the citations are
invalid and should be vacated. It relies upon the language of
the Mine Act, the agreement entered into between MSHA and the
Department of Labor's Occupational Safety and Health
Administration, and case law. The Secretary opposed Rockland's
motion for summary decision and also filed a cross-motion for
summary decision asserting that the undisputed facts make clear
that MSHA had jurisdiction to issue the citations.
The Commission's Procedural Rule at 29 C.F.R. � 2700.67(b)
sets forth the grounds for granting summary decision, as follows:
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.
The Commission has long recognized that summary decision is an
"extraordinary procedure." Missouri Gravel Co., 3 FMSHRC 2470,
2471 (Nov. 1981). The Commission adopted the Supreme Court's
holding that summary judgement is authorized only "upon proper
showings of the lack of a genuine, triable issue of material
fact." Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)
(quoting Celotex Corp v. Catrett, 477 U.S. 317, 327 (1986)). I
believe summary decision is especially inappropriate where the
motion raises jurisdictional issues and the parties do not even
agree on what facts are correctly before the court.
In these cases, the parties are at odds as to what facts I
should consider in analyzing the motions for summary decision.
Indeed, Rockland filed a motion to strike the Secretary's
opposition to its motion for summary decision on the basis that
she relies on facts that, according to Rockland, have not been
disclosed by the Secretary in her discovery responses. In
response to Rockland's motion to strike, the Secretary states
that she relied on facts supplied by Rockland's managers during
MSHA's accident investigation. Thus, it has not been shown that
there "is no dispute as to any material fact." Neither party
established that there is a "lack of a genuine, triable issue of
material fact." The parties are not in agreement as to what
facts are properly before the court and they also dispute the
material facts relied upon in the other party's motion for
summary decision. Consequently, summary decision cannot be
granted at this time.
Rockland's motion that its reply to the Secretary's
opposition to its motion to strike be accepted for filing is
GRANTED. Rockland's motion to strike the Secretary's opposition
to its motion for summary decision is DENIED. Rockland's motion
for summary decision is DENIED. The Secretary's cross-motion
for summary decision sustaining MSHA jurisdiction is DENIED.
Rockland requests that, in the alternative, I grant its
motion to compel the Secretary to respond to its discovery
requests. Rockland filed its first set of interrogatories and
requests for production on or about October 27, 2000. According
to Rockland, the Secretary's responses to this discovery were
"entirely non-responsive." (R. Motion to Strike 3).
In her discovery responses, the Secretary invoked the
informant's privilege, the deliberative process privilege, the
attorney-client privilege, and the work product doctrine. In
addition the Secretary attempted to rely on Fed. R. Civ. P. 33.
That rule provides that a party may serve no more than 25
interrogatories without leave of the court. The rule further
provides that a party may seek leave of the court to serve more
than 25 interrogatories, which leave shall be granted to the
extent that it is consistent with Rule 26(b)(2). Rockland served
37 interrogatories in these cases. The parties made attempts to
resolve their discovery disputes.
Federal Rule 33 does not apply to Commission proceedings.
The Commission's procedural rule provides that parties "may
obtain discovery of any relevant, non-privileged matter that is
admissible evidence or appears likely to lead to the discovery
of admissible evidence." 29 C.F.R. � 2700.56(b). Commission
Rule 56(c) provides that, for good cause shown, a judge may
"limit discovery to prevent undue delay or to protect a party
... from oppression or undue burden or expense." Consequently,
I reject the Secretary's argument that it is not obligated to
answer Rockland's interrogatories on the basis that Rockland
did not seek leave of the court to file 37 interrogatories.
If the Secretary believes that a party's discovery should be
limited, she must file a motion under Commission Rule 56(c).
In correspondence dated April 23, 2001, counsel for
Rockland states that the Secretary is taking the position that
because Rockland's motion for summary decision is pending, she
"should not be required to answer interrogatories that go
beyond the scope of [Rockland's] motion for summary decision."
If that statement correctly states the Secretary's position,
it is rejected. The Secretary is obligated to answer all
discovery requests including those that go beyond the scope of
Rockland's motion for summary decision. In addition, I have
denied Rockland's motion for summary decision so the issue is
now moot.
Rockland's motion to compel is, in large measure, based
on its request to be permitted to file a more detailed
response to the Secretary's opposition to its motion for
summary decision after it receives complete answers to its
discovery. Rockland's motions are intertwined to the extent
that Rockland seeks information to respond to the Secretary's
opposition to its motions. I have denied both motions for
summary decision. For this and other reasons, Rockland's
motion to compel discovery response is DENIED.
Notwithstanding the above, the Secretary is hereby ORDERED,
on or before May 28, 2001, to supplement its answers to
Rockland's first set of interrogatories and requests for
production, taking into consideration the court's rulings in
this order. The Secretary shall answer each request based on
information presently available to her. If the Secretary
objects to any request or raises any privileges, she shall
clearly state the basis for such objection or privilege. The
parties shall make every effort to resolve all discovery
disputes without involving the court. Future discovery disputes
shall be brought to the attention of this court only if the
parties are unable to resolve their differences after making
a considered effort to do so. Any pending motions that are
not discussed in this order are hereby DENIED.
Richard W. Manning
Administrative Law Judge
Distribution:
Mark M. Savit, Esq., Patton Boggs, 2550 M Street, NW,
Washington, DC 20037-1350 (Fax and First Class Mail)
Christopher B. Wilkinson, Esq., Office of the Solicitor,
U.S. Department of Labor, 71 Stevenson St., Suite 1110,
San Francisco, CA 94105-2999 (Fax and First Class Mail)
RWM