United States of America


1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457








OSHRC Docket No. 10-0130










OSHRC Docket No. 10-0169

BARTLETT NUCLEAR, INC., and its Successors,






Elizabeth Kruse, Trial Attorney; Michael D. Schoen, Senior Trial Attorney; Madeleine T. Le, Counsel for Safety and Health; James E. Culp, Regional Solicitor; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Dallas, TX

                          For the Complainant

Kenneth D. Kleinman, Esq.; Stevens & Lee, PC, Philadelphia, PA

            For Respondent Bartlett Nuclear, Inc.

McCord Wilson, Esq.; Rader & Campbell, PC, Dallas, TX

              For Respondent Stone & Webster Construction, Inc.



Before:  ROGERS, Chairman; and ATTWOOD, Commissioner.


At issue before the Commission is the Secretary’s petition for interlocutory review (“PIR”) challenging multiple orders issued by Administrative Law Judge Patrick B. Augustine relating to the Secretary’s assertion of the deliberative process privilege.  In several discovery orders, the judge rejected the Secretary’s privilege claim as the basis for withholding specific documents, and required the Secretary to disclose these documents to the respondents, Stone & Webster Construction, Inc. (“Stone”) and Bartlett Nuclear, Inc. (“Bartlett”).  The judge also issued a show cause order demanding that the Secretary show why her failure to comply with his discovery orders should not result in dismissal of the citations issued to the respondents by the Occupational Safety and Health Administration (“OSHA”).  After thoroughly considering the matter, we vacate all of the judge’s discovery and show cause orders issued between March 5 and 9, 2012, and on March 21, 2012, and remand these consolidated cases to the judge for further proceedings consistent with this decision.


On December 22, 2010, the Secretary submitted a privilege log to the respondents indicating that “Draft OSHA 1Bs” were being withheld from discovery under the deliberative process privilege.[1]  More than a year later, in February 2012, counsel for the Secretary and respondents exchanged various emails concerning whether the Secretary would be willing to disclose these particular documents.  According to the respondents, the Draft OSHA 1Bs could be relevant to their preemption defense that the Nuclear Regulatory Commission (“NRC”), rather than OSHA, has jurisdiction over the conditions alleged in the citation items.  The respondents had intended to use these documents during depositions of NRC officials scheduled for March 7, 2012.  The Secretary informed the respondents that the documents were privileged and would not be disclosed, but agreed to participate in a conference call with the respondents and the judge to discuss this issue. 

During the conference call on March 2, 2012, the respondents orally moved to compel disclosure of the Draft OSHA 1Bs.  The judge gave the parties until the end of the day to offer case law, via email, for his consideration before ruling on the respondents’ motion.  The parties complied and two days later, on Sunday, March 4, the judge issued an order granting the respondents’ motion and ordering the Secretary to disclose the documents to the respondents by the close of business on Tuesday, March 6—that is, within one business day of his order.  The next day, the judge issued another nearly identical order that superseded his March 4 order.

On March 6, 2012, the parties participated in a second conference call with the judge, during which the Secretary’s counsel informed the judge of her intent to file a motion for reconsideration, explaining that she believed compliance with the judge’s order would result in waiver of the deliberative process privilege.  The judge gave the Secretary’s counsel until the close of business that day to file the motion.  Also during the conference call, the respondents’ counsel raised grievances concerning certain alleged conduct by the Secretary’s counsel.  These grievances were further discussed in a March 6 email that Bartlett’s counsel sent to the Secretary’s counsel and the judge.  Later that day, the Secretary filed her motion for reconsideration and also requested a six-day stay of the case in the event the motion was denied.

On March 7, 2012, the depositions of NRC officials occurred as scheduled.  That same day, the judge issued two more orders.  In the first order, the judge (1) chastised the Secretary for failing to comply with his discovery orders and, based on this conduct, invited the respondents to file a motion for sanctions within seven days; (2) instructed the Secretary to respond to that yet-to-be-filed sanctions motion by March 24; (3) noted that his March 5 discovery order remained in effect; and (4) gave the respondents seven days to respond to the Secretary’s motion for reconsideration.  In the second order, the judge explicitly accused the Secretary’s counsel of engaging in contumacious conduct, and ordered the parties to appear for a show cause hearing on March 28, during which the Secretary’s counsel would be given an opportunity to show why the contested citations should not be dismissed.  

On March 9, 2012, the judge issued an order granting the Secretary’s request to withdraw her motion for reconsideration and vacating the portion of his March 7 order pertaining to that motion.  Having been informed by the Secretary of her intent to consider seeking interlocutory review, the judge also granted the Secretary’s request for an immediate stay, though he excluded the March 7 show cause order from the stay.  Three days later, on March 12, the Secretary filed her PIR with the Commission, and the respondents filed a motion for sanctions with the judge. 

On March 21, 2012, the judge issued an order vacating the date of the show cause hearing, but not the show cause order itself.  The Commission stayed the consolidated cases in their entirety later that same day and, on April 2, granted the Secretary’s PIR.


Deliberative Process Privilege

The deliberative process privilege, which originated at common law, “allows the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ”  In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citation omitted).  This privilege, however, “does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.”  Id.; see Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974) (noting that when “a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure . . . .”).  “In deciding whether material is protected under this privilege, [the courts] consider whether the material is ‘predecisional’ and whether it is ‘deliberative.’ ”  Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998). 

In his March 5, 2012 order, the judge rejected the Secretary’s claim that the Draft OSHA 1Bs are protected under deliberative process privilege.  Although recognizing that these documents are predecisional because they are “part of the file provided to the [Area Director] to consider in approving the issuance of citations,” the judge concluded that they are not deliberative.  In reaching this conclusion, the judge stated that the OSHA 1B allows the OSHA compliance officer to reduce to writing “facts generated from the investigation[,]” and that “[i]ts purpose is not designed to protect the deliberative process of OSHA in formulating [] policy[,] as there is no agency process information contained therein and no new policy being made.” 

We find that the judge applied the deliberative process privilege too narrowly.  As noted by the D.C. Circuit, it is not simply “policy” matters that are protected from disclosure, but rather any “ ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions . . . are formulated.’ ”  In re Sealed Case, 121 F.3d at 737 (citation omitted).  Indeed, the purpose of this privilege “ ‘is to prevent injury to the quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.”  Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).  The privilege “recognizes ‘that were agencies forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.’ ”  Redland Soccer Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 827, 854 (3d Cir. 1995) (citation omitted).  Therefore, under applicable precedent, predecisional materials pertaining to the government’s decision to cite, or not to cite, an employer for a particular alleged violation are within the scope of the privilege.   

In addition to rejecting the Secretary’s privilege claim, the judge concluded in the alternative that the Secretary had waived the privilege by disclosing information contained in the Draft OSHA 1Bs to both NRC and the respondents.  The judge based his waiver analysis on the following findings:  (1) OSHA interacted with the NRC on two occasions “to discuss the underlying facts of the inspection, the hazards identified and the intent of OSHA to charge the Respondent’s with violations of OSHA regulations”; and (2) Stone produced evidence showing that, at its closing conference, OSHA had disclosed “the type of violation, the classification, the proposed regulation, measurements, exposure and number of people exposed.”  In her March 2, 2012 email to the judge, the Secretary argued that information included in the Draft OSHA 1Bs “differ[ed] substantially” from information provided to the respondents during their closing conferences, “including such major differences as the characterization of the violation[s] . . . , dates, and descriptions of the hazards.”  Although the judge did not conduct an in camera review of the Draft OSHA 1Bs, he nonetheless concluded that “significant facts in [these documents] were disclosed to NRC and to the Respondents.” 

We find that the judge made several errors in his waiver analysis.  The government waives the deliberative process privilege only if an authorized disclosure of a document is voluntarily made to a “non-federal” party.  See, e.g, Florida House of Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 946 (11th Cir. 1992) (discussing waiver in context of Freedom of Information Act, 5 U.S.C. § 552); Sherman Indus., Inc., v. Sec’y of Air Force, 613 F.2d 1314, 1320 (5th Cir. 1980) (same).  Thus, any information that OSHA released to NRC would not constitute a waiver because NRC, a federal agency, is not a “non-federal” party.  In addition, the “release of a document only waives [the deliberative process privilege] for the document or information specifically released, and not for related materials.”  See, e.g., In re Sealed Case, 121 F.3d at 741; Mobile Oil Corp. v. EPA, 879 F.2d 698, 701 (9th Cir. 1989).  In the absence of an in camera review, the judge had no way to assess whether the information included in the Draft OSHA 1Bs was “specifically released” to the respondents during their closing conferences or, as the Secretary contends, differed in certain respects from what was released.  Moreover, accepting arguendo that information released during the closing conferences was identical to information ultimately included in the Draft OSHA 1Bs, this would not establish that the Secretary waived the privilege.  Regardless whether OSHA revised its original view of the proposed violations between the time it held the closing conferences and completed the Draft OSHA 1Bs, OSHA’s process during this predecisional period remained deliberative.  See Mobil Oil Corp., 879 F.2d at 703 (noting that agency need not show to what extent draft differs from final document because to do so would “expose what occurred in the deliberative process between the draft’s creation and the final document’s issuance”); Russell v. Dep’t of Air Force, 682 F.2d 1045, 1049 (D.C. Cir. 1982) (holding that “a simple comparison between the pages sought and the official document would reveal” agency decision maker’s judgment).  We therefore reject the judge’s conclusion that the Secretary waived the deliberative process privilege as to the Draft OSHA 1Bs. 

For these reasons, we vacate the judge’s discovery orders pertaining to the Draft OSHA 1Bs and remand this matter to the judge.  On remand, if the judge decides that the Secretary has properly asserted the deliberative process privilege,[2] we instruct him to perform an in camera review of the Draft OSHA 1Bs and assess, in light of our foregoing analysis, whether these documents in their entirety, or any portion of them, fall within the privilege and are protected from disclosure.  If the judge finds that any portion of the Draft OSHA 1Bs fall outside of the deliberative process privilege, the Secretary “may obtain as of right an order sealing from the public those portions of the record containing the allegedly privileged information pending interlocutory or final review of the ruling, or final disposition of the case, by the Commission.”  Commission Rule 52(d)(2), 29 C.F.R. § 2200.52(d)(2).  In addition, before disclosing any portion of the Draft OSHA 1Bs to the respondents, the judge must provide the Secretary an opportunity to “review [any] redactions and respond accordingly” and seek interlocutory review of his order.  Cranesville Aggregate Cos., 23 BNA OSHC 1570, 1573, 2011 CCH OSHD ¶ 33,142, p. 55,260 (No. 09-2011, 2011) (consolidated).  If the judge finds that any portion of the Draft OSHA 1Bs fall within the privilege, he should provide the respondents an opportunity to overcome the privilege by making “a sufficient showing of need.”  In re Sealed Case, 121 F.3d at 737-38.   

Show Cause Order

Under Commission Rule 52(f), when a party fails to comply with a judge’s order compelling discovery, the judge may enter an order “with regard to the failure as [is] just.”[3]  29 C.F.R. § 2200.52(f).  Such an order “may issue upon the initiative of a Judge, after affording an opportunity to show cause why the order should not be entered, or upon the motion of a party.”  Id.  The order “may include any sanction stated in Federal Rule of Civil Procedure 37, including . . . dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”  Id.  Ordinarily, “dismissal is too harsh a sanction for failure to comply with certain pre-hearing orders unless the record shows contumacious conduct by the noncomplying party, prejudice to the opposing party, or a pattern of disregard for Commission proceedings.”  See Amsco, Inc., 19 BNA OSHC 2189, 2191 (No. 02-0220, 2003).

Here, the judge concluded in his March 7, 2012 show cause order that the Secretary had engaged in contumacious conduct.  The conduct described in the judge’s show cause order and his other order from March 7 pertains exclusively to the Secretary’s refusal to comply with the judge’s discovery orders compelling disclosure of the Draft OSHA 1Bs.  Although the judge recognized that the Secretary had filed a motion for reconsideration of his March 5 order and requested “a six-day stay if the Court overruled her [motion],” he criticized her procedural approach and explained that a motion for reconsideration does not automatically stay a case.  According to the judge, the Secretary “should have followed one, or more, of the established judicial procedures to address [her] disagreement with the [March 5] Order” including a request for an immediate stay.  The judge stated that he “assumes [the Secretary] knows the law and the procedures to utilize to address disagreements with a court order” and, therefore, “can only conclude that [her] decision to ignore the [March 5] Order was done intentionally, flagrantly and with disrespect for the . . . judicial process established by the Commission.”  In his subsequent March 9 order, the judge rejected the Secretary’s explanation that it was her intent to request an immediate stay in her motion for reconsideration, characterizing her statement as “a self-serving, weak attempt . . . to justify her intentional disregard of the [March 5] Order.” 

The Commission has held that “failure to comply with [a discovery] order is not, by itself, an indication of bad faith or contumacious conduct when the party’s reason for refusing to comply has a substantial legal basis and its conduct did not indicate disrespect towards the Commission or the issuing judge.”  Donald Braasch Construction Inc., 17 BNA OSHC 2082, 2086, 1995-97 CCH OSHD ¶ 31,259, p. 43,868 (No. 94-2615, 1997); see Roy’s Constr., Inc., 21 BNA OSHC at 1558-59, 1558 n.2, 2004-09 CCH OSHD at pp. 52,716-17, 52,717 n.2 (citing cases that comport with Commission’s decision in Braasch and limiting its reach to discovery orders).  Under this precedent and given the circumstances present here, the judge’s contumacy determination is unfounded.  As reflected in our discussion above of the deliberative process privilege, the Secretary’s claim has a “substantial legal basis,” even if it is ultimately rejected.  Braasch, 17 BNA OSHC at 2086, 1995-97 CCH OSHD at p. 43,868.  And contrary to the judge’s characterization of the Secretary’s procedural approach, her formal request for reconsideration of the judge’s disclosure ruling shows respect for the adjudicatory process.  Moreover, we find that her decision to seek a conditional stay instead of an immediate one does not demonstrate bad faith or contumacy.[4] 

We conclude, therefore, that the judge erred by finding that the Secretary’s refusal to comply with his discovery orders was contumacious.  Accordingly, we vacate the judge’s show cause order.[5]          



We vacate all of the discovery and show cause orders issued by the judge in these consolidated cases between March 5 and 9, 2012, and on March 21, 2012.  In addition, we lift the stay of these cases and direct the judge on remand to proceed in accordance with this decision.





Thomasina V. Rogers






Cynthia L. Attwood

Dated: May 23, 2012                                                  Commissioner

[1] An “OSHA 1B” is a worksheet typically prepared by a compliance officer concerning a workplace inspection.

[2] On April 13, 2012, the Secretary filed with the Commission an affidavit from Assistant Secretary of Labor David Michaels for the purpose of asserting certain privileges, including the deliberative process privilege.  See Landry v. FDIC, 204 F.3d 1125, 1135 (D.C. Cir. 2000) (listing requirements for asserting deliberative process privilege in proceeding before administrative law judge); see also Commission Rule 52(d)(1), 29 C.F.R. § 2200.52(d)(1) (procedure for asserting claims of privilege).  On April 25, the respondents filed a motion to strike the affidavit.

We need not address the Secretary’s filing or the respondents’ motion because the affidavit does not concern matters that are necessary to our disposition of the PIR.  If the Secretary wants the affidavit to be considered on remand, she must file it with the judge.  We order the judge to allow the Secretary ten business days from the date she receives this order to file the affidavit with him because, as the following circumstances show, he failed to provide her with this opportunity when the matter first arose.  After the respondents moved to compel disclosure of the Draft OSHA 1Bs during the conference call on Friday, March 2, 2012, the judge gave the Secretary only until the close of business that day to file a response, via email, rather than the ten days required under Commission Rule 40(c), 29 C.F.R. § 2200.40(c).  And Commission Rule 52(d)(1) expressly states that in response to a motion to compel, a party claiming a privilege may file an affidavit to support its claim.  The judge nonetheless issued his order rejecting the Secretary’s privilege claim on Sunday, March 4, effectively denying the Secretary the time specified by Rule 40(c) to file the affidavit. 

[3] The judge relied on Commission Rule 101(a), 29 C.F.R. § 2200.101(a), as the basis for his show cause order.  But paragraph (c) of Rule 101 states that “[t]his section does not apply to sanctions for failure to comply with orders compelling discovery, which are governed by § 2200.52(f).”

[4] We note that the Secretary’s actions here followed rulings in which the judge improperly shortened the time periods set by the Commission’s rules for the Secretary to respond to the various procedural developments regarding her privilege claim.  As noted, the judge gave the Secretary only a matter of hours to respond to the respondents’ motion to compel, rather than the ten days required under Commission Rule 40(c), 29 C.F.R. § 2200.40(c).  And in his March 4 and 5 orders, the judge instructed the Secretary to disclose the Draft OSHA 1Bs by the close of business on March 6, even though Commission Rule 73(b), 29 C.F.R. § 2200.73(b), permits five days following receipt of the judge’s ruling for a party to file a petition seeking interlocutory review.  Indeed, the judge waited only until March 7, two business days after filing his first discovery order, to conclude that the Secretary’s refusal to comply with his orders was contumacious. 

We recognize that the respondents intended to use the Draft OSHA 1Bs during depositions scheduled on March 7, 2012.  But they were aware of the Secretary’s privilege claim by December 2010, and waited over a year to ask the judge to compel discovery.  Under these circumstances, even if the judge had taken the proper steps to waive the requirements of our procedural rules, departures from the required response times would not have been justified.  See Commission Rule 107, 29 C.F.R. § 2200.107 (“In special circumstances . . . and for good cause shown, the Commission or Judge may, . . . after 3 working days notice . . . , waive any rule or make such orders as justice or the administration of the Act requires.”).

[5] The respondents’ March 12, 2012 motion for sanctions, which raises some issues beyond the scope of our decision, is still pending before the judge.