Case Detail

FOIA Project Annotation: A federal court in West Virginia has ruled that the Mine Safety and Health Administration has not shown that it has completely responded to Marshall Justice's FOIA request for records concerning his discrimination complaint to the MSHA against his former employer, Gateway Eagle Coal Company, although it found that Justice has not shown that discovery is warranted. Justice claimed the agency had a pattern and practice of delaying its response to requests for investigative files of complaints made under the Mine Safety and Health Act. The agency argued that Justice's request for a declaratory judgment was not available under FOIA. The court, however, noted that "assuming that a declaration concerning the impropriety of an agency's response to a FOIA request would be improper once the requested documents had been disclosed does not require the dismissal of [Justice's declaratory judgment claim] because Justice alleges that MSHA has not yet disclosed the documents pertinent to his FOIA request. MSHA clearly disagrees, but it has not moved to dismiss the case as moot, and, at this stage, the court is constrained to accept the facts pled in the complaint as true." Justice had also requested discovery into the adequacy of the agency's response and the agency countered that "any discovery relating to the agency's search would be premature." The court agreed, pointing out that "any factual disputes involving the issues identified by the plaintiff�"such as whether the agency engaged in a good-faith search for all materials�"are likely to arise only after the defendant has submitted its affidavits." The court added that "this is not to say that some limited discovery may not ultimately prove necessary. . . Should MSHA's submissions fail to meet [the standard for Vaughn indexes], the plaintiff may renew his request to conduct limited discovery at that time."
Issues: Litigation - Discovery, Litigation - Jurisdiction - Moot

FOIA Project Annotation: A federal court in West Virginia has ruled that Marshall Justice failed to show that the Mine Safety and Health Administration is required to respond to FOIA requests within 20 days. The court also found that the agency has not substantiated redactions made under Exemption 5 (privileges). Marshall Justice, a coal miner and miner's representative at Gateway Eagle Coal Company, filed an administrative complaint with the MSHA alleging that Gateway officials insulted him, disparaged his religion, and prevented him from speaking to two MSHA inspectors who were conducting on site safety checks. The agency investigated Justice's complaint and found Gateway had not violated the Mine Act. Justice then appealed to the Federal Mine Safety and Health Review Commission. In preparation for his case, Justice made a FOIA request to MSHA for non-privileged portions of the completed investigation. After the agency failed to respond within 20 days, Justice filed suit. Besides claiming the agency had failed to disclose responsive records he also requested a declaratory judgment to force the agency to respond to such requests within the statutory time limit. Of the 112-page investigative file, the agency released 45 pages in full, 26 pages with redactions, and withheld 41 pages. The agency subsequently disclosed another six pages in full and five pages with redactions. The agency moved to dismiss Justice's claim for declaratory judgment as being too broad and Justice filed a motion to amend the count to request the court to order MSHA to respond to miners' requests within 20 days. The court rejected Justice's motion, noting that "agencies are still obligated under FOIA to produce the requested documents 'promptly' after making a determination about the appropriate scope of the response. But nothing in FOIA absolutely requires an agency to 'provide all documents and materials relevant to a' request 'at most within' 20 days, and there is, as a result, no basis in that statute to declare that MSHA is required to do so." Only four pages containing memoranda of interviews of MSHA inspectors remained in dispute under Exemption 5. The agency claimed they included the inspectors' opinions, but Justice argued that such memoranda of interviews often contained nothing but factual material. Justice pointed to interviews of several Gateway officials the agency had disclosed as an indication of the factual narrative content of such records. The court agreed, but noted that "of course, it's possible that the MOIs of the MSHA inspectors are different�"but apart from the vague suggestion that inspector testimony 'often includes personal opinions,' the agency's index and declaration do not assert that these MOIs contain opinion testimony about MSHA's investigation." Acknowledging that the interviews might still qualify as deliberative even if they were largely factual if the presentation of facts revealed the inspectors' deliberations, the court observed that "to reach that conclusion here, the index would need to permit the court to conclude that the MOIs of the MSHA inspectors contain something other than an objective recitation of the factual matter contained in the interviewees' statements about the argument between Justice and Gateway officials on October 24, 2013. As it stands, the agency's materials do not permit that conclusion." The agency had withheld personal information under Exemption 7(C) (invasion of privacy concerning law enforcement records). Rejecting the agency's contention that the individuals' privacy interests outweighed any public interest in disclosure, the court indicated that "personal information concerning the identities of the inspectors falls within the ambit of Exemption 7(C) and may be redacted, but MSHA has not shown that it is entitled to categorically withhold the MOIs of the MSHA inspectors under that Exemption." The court order the agency to provide further substantiation of its exemption claims and noted that it would consider reviewing the records in camera if it still was not satisfied with the agency's further explanation.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(C) - Invasion of privacy concerning law enforcement records

FOIA Project Annotation: A federal court in West Virginia has ruled that the Mine Safety and Health Administration properly redacted records concerning its investigation of a complaint filed by Marshall Justice under Exemption 5 (privileges) and Exemption 7(C) (invasion of privacy concerning law enforcement records). The agency claimed that specific portions of the inspector memoranda of interviews were deliberative and if disclosed risked revealing "what is important for special investigation purposes" and "could impair the quality of inspectors' investigations." The court agreed the agency had shown that the records wee deliberative. The court also approved redacting the names of investigators under Exemption 7(C). The court pointed out that "Justice has provided no explanation as to how the names or titles of low-level MSHA inspectors would reveal information about the government's operations. The 'negligible,' 'non-existent' public interest in disclosure of the agents' names or titles would be outweighed even by 'a very slight privacy interest.' It is heavily outweighed by the 'not insubstantial' interest the MHSA inspectors have in the non-disclosure of their names and titles."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

FOIA Project Annotation: A federal court in West Virginia has ruled that while Marshall Justice is eligible for attorney's fees as a result of his FOIA litigation against the Mine Safety and Health Administration he is not entitled to them. Justice, a union representative under the Mine Act, requested records about a complaint he had filed with the agency. He ultimately received 51 pages in full and 31 pages in part. Some records were disclosed in redacted form after the court ordered the agency to consider whether they could be disclosed with redactions. The court found Justice had prevailed as to two of the three disclosures made by the agency. Pointing to a letter from the Assistant U.S. Attorney to Justice's counsel explaining the agency's decision to provide more information originally withheld on privacy grounds about conversations that took place before third parties, the court observed that "it can be inferred that Justice's claims helped in part to catalyze the policy change." Finding that the agency had changed its position on some disclosures because of a court order, the court noted that "MSHA patently and 'voluntarily' changed its position on the two MOIs at issue in [the court order]. This court directed MSHA to consider partial disclosure, MSHA did so, and MSHA subsequently volunteered disclosure. Furthermore, the MOIs clearly bore some relevance to plaintiff's case, making them not insubstantial." But the court concluded that Justice was not entitled to fees. The court pointed out that "plaintiff simply neglects to provide any reasons for entitlement to fees, seeming to assume that if he is eligible for fees, he is also entitled to them." Although the court's order had resulted in the agency disclosing more information from the MOIs, the court observed that "without showing a public or even some significant private benefit, plaintiff cannot demonstrate that he is entitled to attorney's fees by virtue of his litigation over the two inspector MOIs."
Issues: Litigation - Attorney's fees - Eligibility, Litigation - Attorney's fees - Entitlement - Personal interest

Date Filed	Doc #	Docket Text
2014-04-10	1	COMPLAINT. Filing Fee $400.00. Receipt # 0425-3143666. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Civil Cover Sheet) (tmh) (Entered: 04/11/2014)
2014-04-10		CASE assigned to Judge John T. Copenhaver, Jr. (ras) (Entered: 04/15/2014)
2014-04-11	2	ELECTRONIC SUMMONS ISSUED as to Mine Safety and Health Administration, re: 1 Complaint. Summons returnable 60 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (tmh)
2014-04-11	3	STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED FEBRUARY 7, 2014. Discovery referred to Magistrate Judge Tinsley. (cc:attys; any unrepresented party) (tmh)
2014-04-21	4	SUMMONS ACCEPTED FOR SERVICE BY SECRETARY OF STATE re: 1 Complaint. Accepted by Secretary of State on 4/17/2014 as to Mine Safety and Health Administration; answer due 5/8/2014. (tmh) (Entered: 04/22/2014)
2014-04-24	5	NOTICE OF ATTORNEY APPEARANCE by Samuel Brown Petsonk on behalf of Marshall Justice. (Petsonk, Samuel)
2014-06-13	6	WAIVER OF SERVICE EXECUTED. Waiver signed by J. Christopher Krivonyak on June 10, 2014. Mine Safety and Health Administration waiver mailed on 6/10/2014, answer due 8/11/2014. (Krivonyak, J.)
2014-07-10	7	ANSWER TO 1 Complaint by Mine Safety and Health Administration. (Attachment: # 1 Exhibits 1-7)(Krivonyak, J.)
2014-07-11	8	ORDER AND NOTICE: Rule 12(b) Motions 7/31/2014. Rule 26(f) Meeting 8/11/2014. Last day to file report of Rule 26(f) Meeting 8/18/2014. Scheduling Conference at 04:30 PM on 8/29/2014 in Charleston. Entry of Scheduling Order 9/1/2014. Last Day to make Rule 26(a)(1) disclosures 9/9/2014. Signed by Judge John T. Copenhaver, Jr. on 7/11/2014. (cc: attys; any unrepresented party) (taq)
2014-07-31	9	MOTION by Mine Safety and Health Administration to Dismiss Count Two of Plaintiff's 1 Complaint (Krivonyak, J.)
2014-07-31	10	MEMORANDUM by Mine Safety and Health Administration in support of 9 MOTION by Mine Safety and Health Administration to Dismiss Count Two of Plaintiff's 1 Complaint (Krivonyak, J.)
2014-08-14	11	RESPONSE by Marshall Justice in opposition to 9 MOTION by Mine Safety and Health Administration to Dismiss Count Two of Plaintiff's 1 Complaint (Petsonk, Samuel)
2014-08-22	12	RULE 26(f) REPORT OF PLANNING MEETING by Marshall Justice, Mine Safety and Health Administration. (Petsonk, Samuel) (Modified on 8/22/2014 to add party filer)(skh).
2014-08-22	13	RULE 26(f) REPORT OF PLANNING MEETING by Marshall Justice, Mine Safety and Health Administration. (Petsonk, Samuel) (Modified on 8/22/2014 to add party filer)(skh).
2014-08-25	14	REPLY by Mine Safety and Health Administration to 11 Response In Opposition. (Attachment: # 1 Exhibit A)(Krivonyak, J.) (Modified on 8/25/2014 to remove link to #9 motion) (skh).
2014-08-25	15	MOTION by Mine Safety and Health Administration to Enlarge Time to File Reply to 11 Response In Opposition to Aug. 25, 2014 (Krivonyak, J.) (Modified on 8/25/2014 to correct link to #11 response) (skh).
2014-08-25	16	VACATED PURSUANT TO THE COURT'S 38 ORDER ENTERED 4/30/2015: ORDER: the scheduling conference is cancelled; directing that this case shall proceed as follows: Joinder of Parties, amended pleadings due by 10/10/2014; Discovery requests to be completed by 12/16/2014; Expert Witness List by parties bearing the burden of proof due by 12/1/2014, by party not bearing burden of proof due by 12/31/2014, and to solely contradict or rebut evidence due by 1/16/2015; Discovery completion date 1/30/2015; Dispositive Motions except those filed under Rule 12(b) due by 2/19/2015, Responses due by 3/5/2015, Replies due by 3/12/2015; Settlement Meeting to be held by 4/22/2015; Motions in Limine to be filed by 4/29/2015, with responses due by 5/6/2015; Plaintiffs portion of proposed Pretrial Order to defendants due by 4/27/2015, Proposed Integrated Pretrial Order due by 5/4/2015; Pretrial Conference set for 5/15/2015 at 10:30 AM in Charleston; Proposed Jury Charge due by 6/3/2015; Final Settlement Conference at 10:30 AM on 6/8/2015 in Charleston; Trial set for 6/9/2015 at 09:30 AM in Charleston before Judge John T. Copenhaver, Jr. Signed by Judge John T. Copenhaver, Jr. on 8/25/2014. (cc:attys; any unrepresented parties) (tmh) (Modified on 4/30/2015 to note order is vacated) (taq).
2014-08-26	17	ORDER granting the Mine Safety and Health Administration's 15 MOTION to Enlarge Time to File Reply to 11 Response In Opposition to Aug. 25, 2014; Mine Safety and Health Administration's 14 REPLY to 11 Response In Opposition is deemed timely filed. Signed by Judge John T. Copenhaver, Jr. on 8/26/2014. (cc: attys; any unrepresented parties) (tmh)
2014-10-16	18	CERTIFICATE OF SERVICE by Marshall Justice for Rule 26(a)(1) Initial Disclosures. (Petsonk, Samuel)
2014-10-22	19	CERTIFICATE OF SERVICE by Mine Safety and Health Administration for Rule 26(a)(1) Initial Disclosures. (Krivonyak, J.)
2014-10-22	20	CERTIFICATE OF SERVICE filed by Marshall Justice for Marshall Justice's First Interrogatories, Requests for Production of Documents, and Requests for Admission (Petsonk, Samuel)
2014-11-21	21	MOTION by Mine Safety and Health Administration to Stay Discovery and Amend 16 Scheduling Order (Attachment: # 1 Exhibit A)(Krivonyak, J.) (Modified on 11/23/2014 to add link to #16 scheduling order) (skh).
2014-11-21	22	MEMORANDUM by Mine Safety and Health Administration in support of 21 MOTION by Mine Safety and Health Administration to Stay Discovery and Amend 16 Scheduling Order (Krivonyak, J.)
2014-11-28	23	NOTICE OF CHANGE OF ATTORNEY INFORMATION by Gary L. Call substituting for J. Christopher Krivonyak on behalf of Mine Safety and Health Administration. (Call, Gary)
2014-12-05	24	MEMORANDUM by Marshall Justice in opposition to 21 MOTION by Mine Safety and Health Administration to Stay Discovery and Amend 16 Scheduling Order (Attachment: # 1 Exhibit)(Petsonk, Samuel)
2014-12-12	25	REPLY by Mine Safety and Health Administration to 24 Memorandum In Opposition. (Attachment: # 1 Exhibit 1)(Call, Gary)
2015-01-23	26	MEMORANDUM OPINION & ORDER granting the defendant's 21 MOTION to stay discovery and to modify the scheduling order; discovery in this case is stayed; directing that this case shall proceed as follows: Defendant's Vaughn index due 02/16/2015; defendant's motion for summary judgment due 03/02/2015; plaintiff's response due 03/16/2015; and defendant's reply due 03/23/2015. Signed by Judge John T. Copenhaver, Jr. on 1/23/2015. (cc: attys; any unrepresented parties) (taq)
2015-01-23	27	MEMORANDUM OPINION & ORDER denying as premature the Mine Safety and Health Administration's 9 MOTION to dismiss Count II of the complaint. Signed by Judge John T. Copenhaver, Jr. on 1/23/2015. (cc: attys; any unrepresented parties) (taq)
2015-02-13	28	DECLARATION of Jay P. Mattos, Director, Office of Accountability, MSHA, dated February 13, 2015, filed on behalf of Mine Safety and Health Administration re: 26 Memorandum Opinion & Order (Attachments: # 1 Exhibits 1-5, # 2 Exhibit 6 - Part 1, # 3 Exhibit 6 - Part 2, # 4 Exhibit 6 - Part 3, # 5 Exhibit 6 - Part 4, # 6 Exhibits 7-9, # 7 Exhibit 10 - Part 1, # 8 Exhibit 10 - Part 2, # 9 Exhibit 10 - Part 3, # 10 Exhibit 10 - Part 4, # 11 Exhibits 11-12)(Call, Gary)
2015-02-13	29	CERTIFICATE OF SERVICE filed by Mine Safety and Health Administration for Declaration of Jay P. Mattos, Director, Office of Accountability, MSHA, with Exhibits 1 - 11 (Call, Gary) (Modified text on 2/18/2015 for clarity) (taq).
2015-03-02	30	MOTION by Mine Safety and Health Administration for Summary Judgment (Attachment: # 1 Exhibit 13)(Call, Gary)
2015-03-02	31	MEMORANDUM OF LAW by Mine Safety and Health Administration in support of 30 MOTION by Mine Safety and Health Administration for Summary Judgment (Call, Gary)
2015-03-02	32	CERTIFICATE OF SERVICE filed by Mine Safety and Health Administration for Defendant's 30 Motion for Summary Judgment and 31 Memorandum of Law in Support (Call, Gary)
2015-03-12	33	MOTION by Marshall Justice to Amend 1 Complaint (Attachments: # 1 Exhibit 1, # 2 Amended Complaint)(Petsonk, Samuel) (Modified on 3/13/2015 to add link to #1 complaint) (skh).
2015-03-16	34	MOTION by Marshall Justice for Partial Summary Judgment (Petsonk, Samuel) (Modified on 3/17/2015 to convert event to motion for partial summary judgment) (skh).
2015-03-16	35	MEMORANDUM OF LAW by Marshall Justice in support of 34 MOTION by Marshall Justice for Partial Summary Judgment & RESPONSE by Marshall Justice in opposition to 30 MOTION by Mine Safety and Health Administration for Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Certificate of Service)(Petsonk, Samuel) (Modified on 3/17/2015 to add response in opposition and link to #30 motion) (skh).
2015-03-23	36	REPLY by Mine Safety and Health Administration to 35 Response In Opposition and In Opposition to 34 MOTION by Marshall Justice for Partial Summary Judgment (Attachment: # 1 Exhibit 14)(Call, Gary) (Modified on 3/23/2015 to add link to #34 motion) (skh).
2015-03-25	37	RESPONSE by Mine Safety and Health Administration in opposition to 33 MOTION by Marshall Justice to Amend 1 Complaint (Call, Gary)
2015-04-30	38	ORDER for reasons appearing to the court, vacating the court's 16 Scheduling Order. Signed by Judge John T. Copenhaver, Jr. on 4/30/2015. (cc: counsel of record; any unrepresented parties) (taq)
2015-07-31	39	MEMORANDUM OPINION & ORDER denying the plaintiff's 33 MOTION to amend the complaint; holding in abeyance the plaintiff's 34 MOTION for summary judgment with respect to the Memorandums of Interviews of the MSHA inspectors, but otherwise denying said motion; granting the defendant's 30 MOTION for Summary Judgment with respect to those documents already disclosed and those withheld documents that are not subject to dispute, but held in abeyance as to the MOIs of the MSHA inspectors; MSHA is directed to review, in light of the foregoing discussion, the MOIs of the MSHA inspectors to determine whether any portions of those records are segregable and disclosable; and MSHA is directed to confer with Justice within 20 days of the entry of this order respecting the MOIs of the MSHA inspectors; to the extent there remains disagreement as to the disclosure of those documents, MSHA is directed to submit the MOIs of the MSHA inspectors to the court by 8/31/2015 for in camera review. Signed by Judge John T. Copenhaver, Jr. on 7/31/2015. (cc: counsel of record; any unrepresented parties) (taq)
2015-08-18	40	NOTICE of Disclosure by Mine Safety and Health Administration re: 39 Memorandum Opinion & Order (Call, Gary)
2015-08-31	41	NOTICE OF SUBMISSION FOR IN CAMERA REVIEW by Mine Safety and Health Administration (Call, Gary)
2016-03-29	42	MEMORANDUM OPINION & ORDER granting Mine Safety and Health Administration's 30 motion for summary judgment insofar as Justice seeks disclosure of information in the inspector MOIs withheld under Exemption 5, as described more fully herein, and denying plaintiff Marshall Justice's 34 motion for summary judgment to the same extent; MSHA's motion for summary judgment is granted insofar as Justice seeks disclosure of information in the inspector MOIs withheld by MSHA under Exemption 7(C), as discussed more fully herein, and Justice's motion for summary judgment is denied to the same extent. Signed by Judge John T. Copenhaver, Jr. on 3/29/2016. (cc: counsel of record; any unrepresented parties) (taq)
2016-08-17	43	JUDGMENT ORDER the court having entered an 42 order resolving the remaining issues in this civil action on 3/29/2016; directing that judgment is entered in favor of plaintiff Marshall Justice, and against the defendant Mine Safety and Health Administration, only with respect to Count I of the complaint insofar as it seeks disclosure of certain documents voluntarily released by MSHA on 5/2/2014, 12/16/2014, and 8/18/2015, but that judgment otherwise be entered in favor of MSHA and against plaintiff Justice with respect to Count I insofar as it seeks disclosure of the documents labelled as MSHA000090, 000091, 000092, and 000093 in MSHA Vaughn index; further, that judgment be entered in favor of MSHA and against plaintiff Justice with respect to Count II of the complaint; and that this action is stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 8/17/2016. (cc: counsel of record; any unrepresented parties) (taq)
2016-08-17	44	TRANSMITTED CERTIFIED COPY of 43 Judgment Order entered 8/17/2016 to counsel of record. (taq)
2016-08-17	45	PETITION by Marshall Justice for Attorney's Fees and Costs (Attachments: # 1 Ex. 1, # 2 Ex. 2, # 3 Ex. 3, # 4 Ex. 4, # 5 Ex. 5, # 6 Ex. 6, # 7 Certificate of Service Certificate of Service)(Petsonk, Samuel)
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