Justice v. Mine Safety and Health Administration

Filing 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)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARSHALL JUSTICE,
Plaintiff,
v.

Civil Action No. 2:14-14438

MINE SAFETY AND HEALTH
ADMINISTRATION,
Defendant.

MEMORANDUM OPINION & ORDER

Pending is a motion to dismiss Count II of the
complaint, filed by the Mine Safety and Health Administration
(“MSHA”) on July 31, 2014.

I. Background
The plaintiff, Marshall Justice, is a coal miner who
lives in Madison, West Virginia, Compl. ¶ 3, and was at one time
employed by the Gateway Eagle Coal Company, see Defendant’s
Reply to Plaintiff’s Response in Opposition to Defendant’s
Motion to Dismiss Count II (“Def.’s Reply”), Ex. A at 1. 1

1

In

Courts generally “do not consider extrinsic evidence when
evaluating the sufficiency of a complaint” pursuant to a motion
under Rule 12(b)(6) or Rule (12)(c). See Anand v. Ocwen Loan
Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); Occupy
Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). But
certain categories of documents, including matters that are part

November 2013, Marshall filed a complaint with MSHA (the “MSHA
complaint”), alleging that he had been discriminated or
retaliated against in violation of the Mine Safety and Health
Act, 30 U.S.C. §§ 801-966 (2012) (the “Mine Act”).

See Compl. ¶

11 (stating that plaintiff was discriminated against under
§ 815(c)(1) of the Mine Act, which provides, among other things,
that no person shall discharge or in any manner discriminate
against any miner because such miner has filed or made a
complaint under the Mine Act concerning an alleged danger or
safety or health violation).

On December 5, 2013, Justice asked

MSHA, under the Freedom of Information Act, 5 U.S.C. § 552 (the
“FOIA”), for a copy of all non-privileged portions of the
completed investigative file relating to his complaint,
presumably against his employer.

Compl. ¶ 12.

On December 30, 2013, MSHA wrote to Justice, and
explained that it had investigated his allegations, but decided
not to “issue a violation.” 2

Compl. ¶ 13.

The complaint in this

action does not say so, but it appears that Justice thereafter
invoked his right, under 30 U.S.C. § 815(c)(3), to pursue the

of the public record, may be considered without the need to
convert the motion into one for summary judgment. See Philips
v. Pitt Cnty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
2

Presumably, the letter constituted the Secretary of Labor’s
final determination that no violation of the Mine Act had
occurred. See 30 U.S.C. § 815(c)(2), (3).
2

MSHA complaint on his own behalf before the Federal Mine Safety
and Health Review Commission.

See Compl. ¶ 10 (citing §

815(c)(3) (“If the Secretary, upon investigation determines that
the provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of
the Secretary’s determination, to file an action in his own
behalf before the Commission[.]”)); see also Def.’s Reply, Ex. A
at 1 (containing an order from the Commission’s Office of
Administrative Law Judges, dated August 22, 2014, in Justice v.
Gateway Eagle Coal Co., WEVA 2014-559).

By letter dated January 24, 2014, MSHA acknowledged
Justice’s FOIA request for the investigative file relating to
his MSHA complaint.

Compl. ¶ 14.

According to the letter,

there were “unusual circumstances surrounding the records
[Justice was] seeking,” and “a need to search for and collect
records from separate offices.”

Id.

As a result, the defendant

stated that the twenty-day “statutory time limits for processing
[the] request [could not] be met,” and estimated that it would
take ninety working days to provide a response.

Id.

By the

time this action was initiated on April 10, 2014, the plaintiff
asserts that the defendant had still not produced the requested
materials.

Compl. ¶ 16.

3

Justice claims that MSHA has “developed a pattern and
practice of unreasonably delaying the production of the
administrative record in response to requests by antiretaliation complainants who make time-sensitive requests for
these records during the pendency of complaints filed under [§
815(c)(3)] of the Mine Act, thus systemically depriving miners
of their right to pursue these claims.”

Compl. ¶ 17.

In Count

I, he charges MSHA with violating the FOIA by “failing to
respond substantively, and by failing to release the requested
records, within twenty working days of [his] request for
records.”

He seeks “the release of the records which [MSHA] is

now withholding.”

Compl. ¶¶ 19-21.

In Count II, Justice

requests an order, pursuant to the Declaratory Judgment Act, 28
U.S.C. §§ 2201-2202, declaring that MSHA
is in violation of FOIA and frustrates miners’ rights
to pursue health and safety related complaints under
[the Mine Act], and that consequently [MSHA] is
required [to] provide all documents and materials
relevant to a miner’s complaint promptly upon the
miner’s request, and at most within the statutory
period of 20 working days, to enable miners to
meaningfully
pursue
their
complaints
concerning
unlawful retaliatory violations of the Mine Act.
Compl. ¶ 25(a).

MSHA answered the complaint in this action on July 10,
2014, denying most, though not all, of the factual allegations
as stated in the complaint.

Of greatest significance, the

4

defendant denied failing to respond to Justice’s FOIA request,
instead asserting that it “responded fully . . . and provided
all records required to be disclosed,” on May 2, 2014.
Answer ¶¶ 16, 21.

See

Three weeks later, on July 31, 2014, MSHA

filed the pending motion to dismiss Count II of the plaintiff’s
complaint.

The defendant asserts that Count II should be

dismissed under Rule 12(b)(1) because the court lacks subject
matter jurisdiction, under Rule 12(b)(3) in that venue in this
district is improper, and under Rule 12(b)(6) because Count II
fails to state a claim upon which relief can be granted. 3

3

MSHA filed the motion to dismiss after its answer, and so it is
technically a motion for judgment on the pleadings. See Fed. R.
Civ. P. 12(c) (“After the pleadings are closed -- but early
enough not to delay trial -- a party may move for judgment on
the pleadings.”); Edwards v. City of Goldsboro, 178 F.3d 231,
243 (4th Cir. 1999). The distinction is largely, though not
completely, immaterial. The Rule 12(b)(3) argument alleging
improper venue is waived, because it was not asserted in a preanswer motion under Rule 12, or in the answer itself. See Fed.
R. Civ. P. 12(h)(1)(B).
The remaining arguments remain viable, and are
assessed as though raised in a motion brought under Rule 12(b).
See Fed. R. Civ. P. 12(h)(2)(B) (“Failure to state a claim upon
which relief can be granted . . . may be raised[] by a motion
under Rule 12(c)”) and 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”); see also Edwards, 178 F.3d at 243
(construing a post-answer 12(b)(6) motion as “a Rule 12(c)
motion for judgment on the pleadings raising the defense of
failure to state a claim upon which relief can be granted.”); 5C
Charles Alan Wright, Arthur R. Miller, et al., Federal Practice
and Procedure § 1367 (3d ed.) (“[I]f any of these procedural
defects are asserted upon a Rule 12(c) motion, presumably the
district court will apply the same standards for granting the
appropriate relief or denying the motion as it would have
5

Defendant’s Memorandum in Support of Motion to Dismiss Count II
(“Def.’s Mem.”) at 1.
II. Discussion

The defendant primarily objects to the scope of Count
II as it is framed in the plaintiff’s complaint, noting that the
requested declaration appears so broadly worded as to implicate
MSHA’s FOIA practices with respect to “miners” generally, rather
than Justice, specifically.

See, e.g., Def.’s Mem. at 1-2

(“Count II is an unsolicited request on behalf of other miners
for documents[.] . . . To the extent [Justice] disagrees with
MSHA’s disclosure practices with respect to other miners, the
other miners’ [sic] can pursue relief via the discovery process
before administrative judicial officers.”).

MSHA argues that

Justice has no constitutional, prudential, or statutory standing
to pursue a declaration of the rights of other miners, or to
challenge the legality of MSHA’s handling of FOIA requests by
other miners.

See Def.’s Mem. at 6-9 (requesting dismissal

under Rule 12(b)(1) because the speculative nature of the relief
requested precludes constitutional and prudential standing), 910 (requesting dismissal under Rule 12(b)(6) because the

employed had the motion been brought prior to the defendant’s
answer under Rules 12(b)(1), (6), or (7) or under Rule 12(f).”).
6

plaintiff lacks statutory standing to request relief on behalf
of other miners).

Although the wording of Count II is broad, see Compl.
¶ 25(a) (requesting a declaration that MSHA “is in violation of
FOIA and frustrates miners’ rights to pursue health and safety
related complaints under [the Mine Act]” (emphasis added)), the
plaintiff’s response to the motion to dismiss effectively
narrows the scope of the relief requested.

Specifically, the

plaintiff states that he is only seeking a “declaration of his
own rights as a miner complainant under the Mine Act.”
Plaintiff’s Memorandum of Law in Opposition to Motion to Dismiss
Count II (“Pl.’s Opp’n”) at 6.

Applying the plaintiff’s

limitation, the court construes Count II, quoted at page 4,
supra, to request a declaration that MSHA:
violat[ed] . . . FOIA and frustrate[d] [Justice’s]
rights to pursue [a] health and safety related
complaint[] under [the Mine Act], and that . . .[MSHA]
[wa]s
required
[to]
provide
all
documents
and
materials relevant to [Justice’s] complaint promptly
upon [his] request, and at most within the statutory
period of 20 working days, to enable [Justice] to
meaningfully
pursue
[his]
complaint[]
concerning
unlawful retaliatory violations of the Mine Act.
Or, in the plaintiff’s words, “Count II seeks a declaratory
judgment that . . . [p]laintiff has a right under the [FOIA] . .
. to access certain records of the government’s investigation

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into the discrimination complaint that [p]laintiff filed with
[MSHA.]”

See Pl.’s Opp’n at 1.

So understood, the relief requested in Count II
essentially mirrors Count I -- that is, Count I alleges that
MSHA violated the FOIA by failing to respond to Justice’s
request and seeks the release of the requested documents, and
Count II simply seeks a declaration confirming those allegations
and directing that result.

Cf. Laroche v. U.S. Securities &

Exchange Comm’n, No. 05-4760, 2006 WL 2868972, at *5 (N.D. Cal.
Oct. 6, 2006) (“The [c]ourt finds that LaRoche has failed to
establish that he is entitled to relief [under the FOIA] on any
of the underlying claims, and therefore he cannot be entitled to
relief under the [Declaratory Judgment Act].”); Detroit Free
Press, Inc. v. U.S. Dept. of Justice, 16 F. Supp. 3d 798, 811
(E.D. Mich. 2014).

Justice argues that he has standing to pursue his
declaratory judgment claim on that limited basis.

See Pl.’s

Opp’n at 4 (arguing that “the existence of a factual controversy
establishing [Justice’s] standing to seek declaratory judgment
is not even disputed insofar as [MSHA] has not moved to dismiss
Count I”), 5 (“There is no dispute about the justifiability of
the case or controversy between these parties in this matter
insofar as [MSHA] has not moved to dismiss Count I of the
8

[c]omplaint.”).

The court agrees.

Justice has a definite and

concrete interest in the dispute over his own FOIA request, and
the resolution of that dispute will yield specific and
conclusive relief.

See White v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa., 913 F.2d 165, 167-68 (4th Cir. 1990) (To
satisfy the case or controversy requirement in Declaratory
Judgment Act cases there must be “a real and substantial
controversy admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts.”
(quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41
(1937)).

In its reply, MSHA argues that Count II should
nevertheless be dismissed because “declaratory relief is
generally unavailable under FOIA[.]”

The defendant asserts that

“FOIA remedies authorize a district court to (1) enjoin the
improper withholding of records, and (2) order production of the
subject records,” but “[‘][a] declaration that an agency’s
initial refusal to disclose requested information was unlawful,
after the agency made that information available, would
constitute an advisory opinion in contravention of Article III
of the Constitution.[’]”

Def.’s Reply at 1-2 (quoting Payne

Enters. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)).

9

In other words, once a FOIA request has been satisfied, the
parties’ interests are no longer adverse and the concrete
dispute between them has been resolved, therefore the need for
any further declaration of their respective rights is obviated. 4
That’s sensible, and comports with our own court of appeals’
4

An exception to that rule may arise where a plaintiff alleges
that an “agency policy or practice will impair [his] lawful
access to information in the future,” and the plaintiff pleads
facts showing he will continue to be harmed, with respect to
future requests, by the application of an agency’s improper FOIA
policy. Payne Enters., 837 F.2d at 491 & n.8 (permitting
request for declaratory relief regarding an agency’s FOIA policy
to go forward where plaintiff alleged he made several FOIA
requests, all were improperly denied, and the nature of the
plaintiff’s business made it likely he would continue to be
harmed by the improper denial of future requests). Some aspects
of the complaint suggest that Justice takes issue with MSHA’s
FOIA policy in general, rather than its response to his request,
specifically. See, e.g., Compl. ¶ 17 (asserting that MSHA has
“developed a pattern and practice of unreasonably delaying the
production of the administrative record in response to requests
by anti-retaliation complainants”). And, in his response to the
motion to dismiss, Justice for the first time asserts that he
has “requested safety-related information under FOIA at other
times,” that he “continues to work in the mining industry,” that
“he maintains an acute and ongoing interest in exercising his
whistleblower rights,” and that he “therefore seeks declaratory
judgment to clarify his right to receive timely, adequate
responses to his FOIA requests relating to his whistleblower
complaints under the Mine Act.” Id. at 3 (emphases added). But
those allegations are not found in the complaint, and “the
complaint may not be amended by the briefs in opposition to a
motion to dismiss.” View Point Med. Sys., LLC v. Athena Health,
Inc., 9 F. Supp. 3d 588, 604 n.12 (D. Md. 2014) (citation
omitted). Accordingly, for purposes of analyzing MSHA’s motion
to dismiss, the court construes Count II to seek a declaration
regarding only MSHA’s handling of the plaintiff’s December 5,
2013 FOIA request. See Pl.’s Opp’n at 1 (“Count II seeks a
declaratory judgment that . . . [p]laintiff has a right under
the [FOIA] . . . to access certain records of the government’s
investigation into the discrimination complaint that [p]laintiff
filed with [MSHA.]”).
10

pronouncements on the nature and limitations of declaratory
judgments.

Cf. White, 913 F.2d at 167-68 (“The question is

‘whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.’” (quoting Md.
Cas. Co. v. P. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

But assuming that a declaration concerning the
propriety of an agency’s response to a FOIA request would be
improper once the requested documents have been disclosed does
not require the dismissal of Count II because, as noted, Justice
alleges that MSHA has not yet disclosed the documents pertinent
to his FOIA request.

Compl. ¶¶ 16, 21.

MSHA clearly disagrees,

see Answer ¶¶ 16, 21, 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.

See Butler v. United

States, 702 F.3d 749, 751-52 (4th Cir. 2012) (“We review de novo
the district court’s ruling on a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c), and
in doing so, apply the standard for a Rule 12(b)(6) motion.”).
Moreover, even if MSHA has responded in some manner to the
plaintiff’s request (as subsequent filings in this case
suggest), Count I charges the agency with “failing to respond

11

substantively” and Count II references MSHA’s “overly broad
denials of requests for information,” indicating that a live
controversy over the content of that response may yet remain.

III. Conclusion

As it stands, then, Count II as defined and limited by
the plaintiff in his opposition to the motion to dismiss is
largely duplicative of Count I.

It need not be dismissed

because, accepting the facts in the complaint as true, a live
controversy over the plaintiff’s FOIA request (and MSHA’s
response) remains unresolved.

Accordingly, MSHA’s motion to

dismiss Count II is denied as premature.

The Clerk is directed to transmit a copy of this order
to all counsel of record and any unrepresented parties.

ENTER: January 23, 2015

John T. Copenhaver, Jr.
United States District Judge

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