Secretary of Labor v. Keystone Coal Mining Corp. ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 1998 Decided August 21, 1998
No. 95-1619
Secretary of Labor,
Petitioner
v.
Keystone Coal Mining Corporation and
Federal Mine Safety and Health Review Commission,
Respondents
Southern Ohio Coal Company, et al.,
Intervenors
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Edward D. Sieger, Senior Appellate Attorney, United
States Department of Labor, argued the cause for petitioner,
with whom J. Davitt McAteer, Acting Solicitor, and Nathani-
el I. Spiller, Deputy Associate Solicitor, were on the briefs.
R. Henry Moore argued the cause for respondent Keystone
Coal Mining Corporation, with whom Heather A. Wyman was
on the brief. Norman M. Gleichman, General Counsel, Mine
Safety and Health Review Commission, and Elizabeth Ebner,
Attorney Advisor, entered appearances.
Timothy M. Biddle, R. Timothy McCrum, H. Thomas
Wells, J. Alan Truitt, Laura E. Beverage, L. Anthony
George, R. Henry Moore and Heather A. Wyman were on the
brief for intervenors Southern Ohio Coal Company, et al.
Gail L. Simmons entered an appearance.
Before: Williams*, Sentelle and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: The Secretary of Labor ("Secre-
tary"), on behalf of the Mining Safety and Health Administra-
tion ("MSHA"), asks us to reverse a November 1996 decision
of the Mine Safety and Health Review Commission ("Com-
mission"), affirming rulings by an Administrative Law Judge
("ALJ") in a case involving citations for alleged tampering
with coal dust samples. The ALJ and Commission agreed
that the Secretary failed to prove (1) in general, that an
"abnormal white center" ("AWC") on a coal dust sample filter
warrants an inference of intentional tampering; and (2) in a
specific test case, that defendant Keystone Coal Mining Corp.
("Keystone") intentionally tampered with its samples. The
Secretary argues that the ALJ and Commission held it to an
improperly high burden of proof in the first, common-issues
proceeding, and that Keystone's exoneration in the second,
case-specific proceeding was not supported by substantial
evidence. We affirm the Commission's ruling.
I
The case involves over 5000 citations, issued to over 500
coal mines, alleging tampering with air filter samples. These
citations arose from a nationwide investigation by the Secre-
tary which began in August 1989. The citations issued
between April 4 and June 7, 1991, and included 75 citations to
_____________
*Circuit Judge Williams did not participate in this
decision. He found it necessary to become recused after
hearing oral argument.
Keystone's Urling No. 1 mine ("Urling"). Under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. s 801 et seq.
(the "Act"), coal mine operators must periodically sample the
concentration of respirable coal dust in the mine atmosphere.
The tests employ sampling devices and methods prescribed
by the Secretary. The devices are all manufactured by the
Mine Safety Appliance Company ("MSA"), and involve basi-
cally a pump and a filter cassette. The pump pulls air at a
defined rate through the filter, where respirable coal dust is
deposited. The filters are then sent to MSHA, within 24
hours of collection. In February 1989, MSHA noticed that
some filters had unusual light areas in their centers which
generally corresponded to the 6mm opening in the cassette.
MSHA concluded that these abnormal white centers were
likely caused by reverse air flow--specifically, by a person
blowing through the cassette opening in order to dislodge
dust from the filter and thereby decrease the sample weight.
MSHA expanded the investigation to all mine operators in
August 1989, thereafter examining all dust samples for
AWCs. Hundreds of mines had no AWCs, but 3900 AWC
samples (about 6.5% of all samples received) were discovered
by March 19, 1990. On March 20, 1990, MSHA introduced
the "AWC void code" which officially notified operators that
AWC samples would no longer be accepted as sufficient to
fulfill the operator's sampling obligations under the Act.
Fewer than 1% of the samples submitted after that date
exhibited AWCs.
In August 1992, the ALJ consolidated the citations in order
to try common issues (the "common issues" proceeding). The
relevant issue in this proceeding was whether deliberate
conduct was the "only reasonable explanation" for the cited
AWCs. After a 47-day hearing, the ALJ decided against the
Secretary, finding that case-by-case inquiry into dust sam-
pling and handling procedures was required to determine
whether intentional tampering caused AWCs on samples re-
ceived from each mine. The ALJ selected Keystone's Urling
No. 1 mine for a case-specific trial regarding dust sampling
and handling practices. After an 18-day hearing, the ALJ
vacated the Urling citations, holding that the Secretary had
failed to prove that Keystone intentionally altered the weight
of the 75 cited filters.
The Secretary sought review of both the common issues
and Keystone decisions before the Commission. A divided
Commission affirmed on November 29, 1995. In re: Contests
of Respirable Dust Sample Alteration Citations, Keystone
Coal Mining Corp. v. Secretary of Labor, 17 F.M.S.H.R.C.
1819 (1995). Dissenting Commissioner Marks argued that
the ALJ had improperly interpreted MSHA regulations to
require proof of intentional alteration (an interpretation not
challenged here), and further contended that the ALJ had
improperly "required the Government to prove that the only
cause of the AWCs was intentional conduct, to the exclusion
of all other causes! " (emphasis in original). Commissioner
Marks would have held that the Secretary had presented
sufficient evidence to prevail in both the common-issues and
the Keystone proceedings, and that the ALJ's conclusions to
the contrary were not supported by substantial evidence. We
review the Commission's legal conclusions de novo, Donovan
ex rel. Anderson v. Stafford Constr. Co., 732 F.2d 954, 958
(D.C. Cir. 1984), and its findings of fact for substantial
evidence, 30 U.S.C. ss 816(a)(1), (b).
II
The Secretary argues that in the common issues proceed-
ing, the Commission and the ALJ erred as a matter of law by
requiring a standard of proof higher than a preponderance of
the evidence for the proposition that the presence of an AWC
allowed an inference of intentional tampering. With respect
to the Keystone mine-specific proceeding, the Secretary as-
serts that the Commission and the ALJ applied an improper-
ly strict burden of proof and that the findings were not
supported by substantial evidence.
A
In the common issues proceeding, the Secretary attempted
to prove via statistical evidence that the presence of an AWC,
without more, established intentional tampering with the
sampling device. Such a finding would have led to a pre-
sumption that illegal tampering occurred whenever an AWC
was found, perhaps subject to rebuttal by an individual
operator who could show that other factors (for example, its
handling of filters) caused the AWC in a specific case.
The ALJ held that to prevail the Secretary must prove by a
preponderance of the evidence that (1) the AWC definition
had a coherent meaning and was consistently applied; (2) the
cited AWCs could only result from intentional acts; and (3)
the AWCs resulted in weight losses in the cited filters.
Although concluding that any inconsistencies in applying the
AWC definition were insignificant and that an AWC did
result in weight loss, the ALJ found several potential causes
of AWCs and received a wide range of expert opinion on the
likelihood of each possibility. For example, AWCs could be
caused by tampering, by impact to the cassette, by impact to
the air hose, or by snapping together the cassette. The ALJ
also found that the likelihood of generating an AWC by non-
intentional causes depended upon filter manufacturing char-
acteristics (filter-to-foil distance and filter floppiness), hose
pliability, mine and dust characteristics (including type of
coal, humidity, weight of dust on the filter, size and shape of
particles, and quantity of rock dust or diesel dust on the
filter), and cassette population (certain batches of cassettes
manufactured by MSA had a greater likelihood of experienc-
ing AWCs, as did all cassettes manufactured before Jan. 1,
1990). Thus, the non-random distribution of AWCs across
the mining industry could have been related to tampering at
certain mines, but also could have been related to characteris-
tics of certain mine environments or operators' handling
techniques.
Therefore, even though the Secretary's statistical evidence
demonstrated that AWCs did not occur randomly, the ALJ
held that the Secretary had failed to prove that those AWCs
were indeed caused by intentional tampering. The Secre-
tary's analysis failed to account for potential accidental
causes, manufacturing variables, and mine environment varia-
bles. Further, even though the Secretary introduced evi-
dence showing a sharp decline in the number of cited AWCs
in late March, 1990, a date which correlated with the an-
nouncement of the "AWC Void Code," the ALJ held that the
Secretary had failed to prove that the decline was caused by
mine operators responding to that announcement. Thus, the
ALJ concluded that the Secretary had "failed to carry [her]
burden of proving by a preponderance of the evidence that an
AWC on a cited filter establishes that the mine operator
intentionally altered the weight of the filter."
The Secretary first contends, as she did before the Com-
mission, that the ALJ imposed an improper burden of proof
in this ruling, despite the "preponderance of the evidence"
language in both opinions. The Secretary argues that the
ALJ erred by requiring proof that "the cited AWCs can only
have resulted from intentional acts," Brief for the Secretary
of Labor ("Petitioner's Brief") at 41 (emphasis added), or that
deliberate conduct "is the only reasonable explanation for the
cited AWCs," id. (emphasis added). Instead, she contends
that she "should have prevailed by establishing on the weight
of the evidence that intentional alteration was the more likely
explanation for AWCs than other possible explanations." Id.(emphasis added). We reject this argument.
In effect, the Secretary sought to establish in the common
issues proceeding an evidentiary presumption: that the exis-
tence of an AWC, without more, compels (or, at least, allows)
an inference that the mine submitting the filter with the AWC
intentionally tampered with it in violation of the Mine Act.
Such a presumption is only permissible if there is "a sound
and rational connection between the proved and inferred
facts," and when "proof of one fact renders the existence of
another fact so probable that it is sensible and timesaving to
assume the truth of [the inferred] fact ... until the adversary
disproves it." Chemical Mfrs. Ass'n v. Department of
Transp., 105 F.3d 702, 705 (D.C. Cir. 1997) (quoting NLRB v.
Curtin Matheson Scientific, Inc., 494 U.S. 775, 788-89 (1990))
(internal citation and quotation marks removed). If there is
an alternate explanation for the evidence that is also reason-
ably likely, then the presumption is irrational.
In making her argument that the evidence presented to the
ALJ, and reviewed by the Commission, compelled the imposi-
tion of the presumption that every AWC resulted from tam-
pering, the Secretary ignores such cases as Curtin Matheson
and Chemical Mfrs. She instead relies on Concrete Pipe &
Products of California, Inc. v. Construction Laborers Pen-
sion Trust, 508 U.S. 602, 622 (1993), for the proposition that
the preponderance of evidence standard governing the pro-
ceedings "simply requires the trier of fact to believe that the
existence of a fact is more probable than its nonexistence."
It is most evident that the Concrete Pipe holding relied on by
the Secretary is inapposite. The question before the ALJ,
the Commission, and now us, was not whether the Secretary
had established by the preponderance of the evidence a
simple evidentiary fact--e.g., whether a particular AWC re-
sulted from tampering--but rather whether the Secretary
had established that all AWCs result from tampering by
some standard sufficiently compelling to require the Commis-
sion to adopt it as a presumption. By way of comparison, a
plaintiff establishing that a defendant assaulted her is not the
same as a litigant convincing a trier of fact that persons
similarly situated to the defendant were so likely to have
committed assault that liability could be presumed against
them.
Unsurprisingly, none of the authorities offered by the
Secretary, and none that we have located, hold that a litigant
can, even by powerful evidence, compel an adjudicating com-
mission to adopt a presumption favoring the litigant in an
entire universe of cases. Generally, the authorities offered
by the Secretary and discussed by us concern either the
validity or the application of presumptions created either by
an administrative body or by statute.
For example, in Chemical Mfrs., we upheld a presumption
established by regulation of the Department of Transporta-
tion which allowed an inference of inadequate pre-trip inspec-
tion from the presence of loose closures on railroad tank cars.
105 F.3d at 703-04. We held that the agency had articulated
its reasons for establishing the presumption, and noted that
the presumption only shifted the burden of producing evi-
dence. We concluded that the Department had articulated a
reasonable evidentiary basis even though it did not consider
"every possible intervening event" that could cause a loose
closure. Id. at 706. Further, we held that such "administra-
tive presumptions" could be sustained without an evidentiary
showing to support the rule, so long as the agency articulates
a rational basis. Id. The presumption did no more than
"eliminate[ ] the need to call an expert witness in each
enforcement proceeding to establish that properly tightened
closures generally do not loosen of their own accord in normal
transportation, and that loose closures often reflect inade-
quate pre-trip inspections." Id. Those facts had been ade-
quately established in the record. We also recognized that
because closures were designed "so that, once properly tight-
ened, they will not loosen as a result of vibrations or other
conditions normally incident to rail transportation," it was
reasonable to presume failure to inspect properly, absent
evidence of some intervening event. Id.The present record does not remotely parallel Chemical
Mfrs. If an appropriate government agency charged with
mine safety regulation had held a rulemaking, established a
proper foundation for the presumption advanced by the Sec-
retary, and adopted it, we might well uphold the presumption.
At the very least, Chemical Mfrs. would be appropriate
support for the Secretary's argument. But that is not what
happened. A trier of fact took evidence and weighed it. This
case turns not on the construction of regulations or on
statutory interpretation, but on the weighing of evidence and
reasonable inferences made therefrom. Thus, our deference
runs not to the policymaking body, MSHA and the Secretary,
but to the ALJ, the factfinder who oversees the adjudicatory
proceedings.
Curtin Matheson and Concrete Pipe are even less appro-
priate precedents for this controversy than Chemical Mfrs.
In Curtin Matheson, the Supreme Court reversed the at-
tempt of a circuit court to impose upon an administrative
agency the duty of adopting a presumption. 494 U.S. at 781.
In no sense did it attempt to set forth terms under which the
courts could impose upon an adjudicating commission the
duty to adopt a presumption based upon a certain level of
proof offered by a litigant, as the Secretary asks us to do
here. Concrete Pipe involved the application of a particular
set of presumptions created by statute to a particular sort of
factual dispute, 508 U.S. at 630-31, and again offers no
support for the Secretary's attempt to impose upon the
adjudicators before whom it appeared the duty of presuming.
In another important respect, the presumption sought by
the Secretary in this case is far more troubling than the one
at issue in Chemical Mfrs. In that case, the Department of
Transportation established a rational connection between two
concrete facts: the fact of a loose connection allowed inferring
the fact that the connection had not been inspected. Absent
evidence of an intervening event, such a presumption seems
ironclad, especially since a shipper was strictly liable for
failure to inspect, without need to prove negligence or intent.
But in this case, the Secretary seeks to establish a connection
between a fact and an intentional act, namely, to infer from
the presence of a light area in a filter's center that the mine
operator intentionally and illegally tampered with the sam-
pling device. Distinctions between accidental, negligent,
reckless, and intentional conduct, not relevant in Chemical
Mfrs., make all the difference between an innocent act and a
citable offense in cases involving the Secretary's proposed
presumption.
In considering the evidence presented in the common is-
sues proceeding, we cannot say that the ALJ reached an
unreasonable conclusion in holding that the Secretary had
failed to prove by a preponderance of the evidence that the
existence of an AWC established the deliberate conduct re-
quired to sustain a citation under the Mine Act and associated
regulations. The ALJ certainly did not require that the
Secretary prove impossible all other potential causes of
AWCs at the hearing. But because AWCs could result from
a variety of non-intentional causes, the ALJ found more than
a mere "element of doubt" that the Secretary had carried her
burden of proof.
To sum up, the Secretary is mistaken in her assertion that
under a "preponderance of the evidence" burden, the Com-
mission is required to adopt her presumption when she
proves that intentional alteration is merely the "more likely
explanation for AWCs than other possible explanations." We
therefore affirm the judgment in the common issues proceed-
ing.
B
In the Urling mine-specific proceeding, the Secretary
sought to establish by a preponderance of the evidence that
Keystone had unlawfully tampered with sampling devices.
Both parties introduced a volume of statistical evidence along
with the testimony of several experts and witnesses regarding
mine conditions and the handling of the filters.
Rochester and Pittsburgh Coal Co. ("R&P") operates 13
mines, including Urling, through several subsidiaries, includ-
ing Keystone. For all these mines, the independent R&P
Environmental Safety Department ("ESD") conducted a coal
dust sampling program. From 1970 until 1991, Donald Eget
supervised ESD, and Shawn Houck and Douglas Snyder
worked with him as laboratory technicians. Normal operat-
ing procedures at ESD between 1989 and 1991 had the dust
technicians picking up pumps and sampling assemblies in the
morning and delivering them to R&P's mines for use that
day. Each morning, Eget drove to all 13 R&P mines to
retrieve pumps and samples from the previous afternoon and
midnight shifts; and each afternoon, the dust technicians
returned to ESD with pumps used during the day shift that
day. While Eget collected pumps, Houck processed those
from the previous day by removing the sampling head and
hose, filling out data cards, cleaning the sampled units, recal-
ibrating and reassembling the units, and inserting a new filter
cassette. When Eget returned, he inspected the used cas-
settes, checked the data cards, looked into the inlets and
recorded the filter appearances in a logbook for each mine.
The cassettes were then packaged and mailed to MSHA.
Robert Thaxton, the MSHA supervisory industrial hygien-
ist responsible for analyzing, monitoring and classifying
AWCs, testified that, in his opinion, AWC patterns on Key-
stone's 75 cited and 3 "no-call" filters resulted from deliberate
acts. The Secretary's scientific expert Marple examined and
classified the 78 filters, opining that none could result from
impact to the cassettes, but that 71 or 72 resulted from
reverse air flow, 2 or 3 from a vacuum source introduced to
the cassette inlet, and 1 from water introduced into the filter.
The Secretary's statistical expert Miller testified that Urling
had an AWC citation rate of 43% before the void code notice
issued on March 26, 1990 (compared to 6% for other mines),
and that the rate dropped to 0.18% after March 26.
Keystone's scientific expert Lee concluded that most of the
cited filters indicated lesser forces than would have occurred
with deliberate reverse air flow, that the AWC patterns were
consistent with a mixed mechanical pulse/reverse air pulse,
that humidity reduced the susceptibility to dislodgement, and
that water sprays and scrubbers introduced at Urling in 1989
and 1990 contributed to the decline in AWCs. Keystone's
statistical expert Roth examined the citation rates of Urling
and of all R&P mines combined on a bimonthly basis and
concluded (1) that the data showed a gradual decline in AWCs
from August 1989 through March 1992, with no significant
change in March 1990; (2) that manufacturing variables may
have been a factor in AWC formation; and (3) that high
incidence rates may be attributable to cassettes manufactured
by MSA on four consecutive dates in mid-1989 (for all R&P
mines, cassettes manufactured on those four dates were cited
at a rate of 50% as opposed to 6% for all other dates of
manufacture). Thirty-three R&P employees testified, includ-
ing ESD personnel Eget, Houck, and Snyder, who described
their role in the dust sampling program and uniformly denied
tampering or observing anyone else tampering with cassettes.
The Secretary's first argument, much like that advanced
and rejected with respect to the common issues proceeding, is
that the ALJ improperly held any doubt as to the cause of an
AWC sufficient to vacate the citation. Applying such a
burden of persuasion, higher than a "preponderance of the
evidence," would constitute reversible error. The Secretary
argues that she did prove that tampering was the most likely
cause of Keystone's AWCs, even though competing causal
theories had not been completely ruled out. In her view, the
ALJ should have explicitly determined the probability that
rough handling or other non-intentional conduct caused Key-
stone's AWCs. Without such a determination, according to
the Secretary, the ALJ could not have adequately addressed
the question of whether the cited filters were more likely than
not caused by tampering. We disagree.
The ALJ recognized and the Commission affirmed that the
Secretary bore the burden of proving by a preponderance of
the evidence that tampering actually occurred, and both
agreed that the Secretary had not met that burden. In the
process of weighing the vast amount of sometimes conflicting
evidence, including the often divergent interpretations by
experts, it is simply unreasonable to require that a factfinder
determine the mathematical probability of the various differ-
ent explanations of that evidence. We know of no case in
which a reviewing court has required that sort of mathemati-
cally nice analysis, nor has the Secretary cited any. Rather,
the factfinder must assess whether, on the whole, he is
convinced that greater weight of the evidence supports the
plaintiff's account. See, e.g., Steadman v. SEC, 450 U.S. 91,
101 (1981). So long as that determination is properly made,
no further precision or subdivision in specification of probabil-
ities is required. The record indicates such a finding.
The Secretary's second argument reveals the heart of her
position: that her evidence showed that tampering was in
fact the most likely cause of Keystone's AWCs, despite the
ruling of the ALJ and Commission to the contrary. In
essence, the Secretary seeks to have this Court review the
entire trial record, reweigh the evidence, and decide the case
differently. But this Court's duty is to determine whether
the findings below were supported by substantial evidence.
This sensibly deferential standard of review does not allow us
to reverse reasonable findings and conclusions, even if we
would have weighed the evidence differently. We must
therefore examine the Secretary's allegations regarding spe-
cific inconsistencies between the evidence presented and the
conclusions of the factfinder, and determine whether a theo-
retical "reasonable factfinder" could have reached the conclu-
sions actually reached by the Commission and the ALJ.
United Steelworkers of America v. NLRB, 983 F.2d 240, 244
(D.C. Cir. 1993).
AWCs Not Random Events
The Secretary presented statistical evidence showing that
AWCs were not randomly distributed across all coal mines.
Out of samples from 2677 coal mines, about 1300 mines had
no AWCs between August 1989 and March 1991. Other
mines, like Keystone, had AWCs on more than 40% of their
samples submitted during this period. The Secretary insists
that this evidence forces the "inescapable conclusion" that
"random events do not cause AWCs and AWCs are not
inherent in coal mine respirable dust sampling." From this,
she concludes that random events (like accidentally dropping
a toolbox on an airhose) cannot explain the occurrence of any
AWC at any mine, and that the ALJ could not reasonably
have relied on random events to explain Urling's high fre-
quency of AWCs.
But the Secretary overstates the record evidence and mis-
understands the implications to be drawn from the fact of
non-random distribution across mines. Before the ALJ, the
Secretary's experts Marple and Thaxton conceded that the
Urling AWCs could have been accidentally caused, and that
the evidence could not establish whether the pattern on any
particular filter resulted from tampering. Miller, the Secre-
tary's statistical expert, did not conclude that intentional
misconduct caused the Urling AWCs, but testified only that
his conclusions were not inconsistent with tampering.
At best, this evidence demonstrates nothing more than that
the likelihood of finding an AWC on a randomly selected filter
sample is affected by the mine from which the filter is drawn.
In the universe of possible AWC causes, intentional tamper-
ing by certain operators is only one of many possibilities that
could explain why AWCs occur more frequently at certain
mines. Even if all AWCs resulted from purely accidental
causes which were randomly distributed across all mines, the
fact that AWC likelihood is affected by environmental condi-
tions like humidity would lead one to expect a non-random
distribution of AWCs across mines.
The AWC Rate Decline in Late March, 1990
The Secretary argues that the drop in AWC rates in late
March 1990 was statistically significant and interprets it as an
indicator of intentional tampering. Because of the correlation
between the drop and the date of issue of the AWC void code,
the Secretary speculates that Keystone had been tampering
but stopped once it learned of the void code. It is undisput-
ed, the Secretary asserts, that Keystone learned of the new
void code on March 26, 1990. Miller, the Secretary's statisti-
cian, testified that between August 1989 and March 26, 1990,
Keystone's weekly AWC rate fluctuated between 40% and
45%, but after March 26, the rate dropped to near zero and
stayed there. According to the Secretary, the "obvious infer-
ence" from this is that Eget and Houck, who had sometime
earlier learned that MSHA was investigating Keystone's sam-
pling, discovered on that date that MSHA would no longer
accept AWCs on dust samples.
The Secretary claims that the ALJ reached his conclusions
based solely on Keystone's proffered methodology which ana-
lyzed AWC rates on the basis of a bimonthly average. The
Secretary argues that there was no good reason for analyzing
AWC rates over such a long period, where samples were
collected continuously. Of course, such a bimonthly sample
interval could make the reduction in AWC rates appear much
more gradual, washing out evidence of a sudden change. But
the ALJ did not simply adopt Keystone's statistics, as the
Secretary argues. Rather, the ALJ weighed all of the statis-
tical evidence, and found that on balance no conclusion could
be drawn that there was a dramatic change in AWC rates on
or around March 26 that was caused by the issuance of the
AWC void code.
On this point, the Secretary advances one reasonable inter-
pretation of the March 26 data. Were we reviewing the
evidence de novo, we might (or might not) favor her interpre-
tation. But she falls far short of establishing that the ALJ
lacked substantial evidence to reject her interpretation.
There is strong evidence that well before March 26, ESD
personnel were aware of the MSHA investigation. The ALJ
could have reasonably agreed with Keystone that, if truly
motivated to stop tampering because of fear of discovery, it
would have more naturally done so well before March 26--in
fact, 89 citations had already issued by that date. The
Secretary responds that Keystone must not have stopped
tampering until the date the void code issued, because "[t]he
statistical evidence points unequivocally to March 26." This
sort of circular argument, assuming the conclusion, is typical
of the analysis the Secretary has advanced in this case and
does not present an adequate basis to reverse the judgment
below.
Even if the March 26 date is ascribed the statistical signifi-
cance urged by the Secretary, it is a stretch, given the other
record evidence, to conclude on that basis that the change in
AWC rate is explained by cessation of intentional tampering.
The ALJ found that there were other changes around that
time, not adequately ruled out by the Secretary's analysis,
which also could have lowered the AWC rate. For example,
in the relevant period, the ALJ found that there were
changes in filter-to-foil distances and other manufacturing
variables, increasingly stringent AWC selection criteria,
changes in sample handling at Urling, changes in sample
handling by ESD personnel, changes in continuous mining
machines at Urling, changes in mining conditions, and
changes in sampler hose softness. The ALJ evaluated and
balanced all these factors to conclude that the Secretary had
not demonstrated that any abrupt change occurred on March
26 or that changes in AWC rate justified an inference of prior
tampering. The evidence demonstrated that Keystone in-
creased its use of scrubber miners; that the U.S. Attorney's
investigation and obvious scrutiny itself might have caused
more care in the handling of samples; that R&P heightened
its own internal scrutiny and reported actual instances of
tampering during this period; that Eget, the roughest han-
dler of pumps at Urling 1, did not transport samples between
April 9 and May 10 because of a bad back; and that after
Eget's return, R&P had used up its stock of cassettes with
shorter filter-to-foil distances and began using new transport
boxes. Thus, substantial evidence supported the ALJ's rejec-
tion of the Secretary's interpretation of the declining AWC
rate in late March of 1990.
Cassette Manufacture Date
The Secretary rejects as "speculation" the ALJ's conclusion
that cassettes manufactured on four consecutive "key dates"
in 1989 were responsible for significantly more AWCs. The
Secretary contends that when used at mines other than
Keystone, cassettes manufactured on those dates actually had
a lower than average (2.5%) AWC rate. The Secretary
argues that this data suggests nothing more than mere
correlation: cassettes manufactured on those dates were used
in large numbers when AWCs were occurring at high rates
for other reasons. For cassettes manufactured on September
26, 1989 (one of the four dates), 29 of 81 had AWCs before
March 26, but 0 of 175 had AWCs after March 26.
The Secretary's expert Miller conceded that the fact that
R&P mines had different citation rates with the cassettes
from these dates shows only that something is different in
the way ESD samples. The Secretary, of course, attributes
this difference to intentional tampering by ESD. That is
perhaps one reasonable interpretation of the evidence. On
the other hand, it is not the only one, and we are obligated
not to compel adoption of the Secretary's proffered explana-
tion if the ALJ reached a different conclusion based on
substantial evidence.
The ALJ found that Keystone was different from other
operators in the way samples were handled and processed.
Further, evidence supports the finding that cassettes manu-
factured on the four key dates in 1989 were responsible for a
disproportionate number, over half, of R&P and Urling
AWCs. The Secretary's data showed that cassettes from
those dates had shorter filter-to-foil distances than later
filters, a factor that the ALJ found contributed to the likeli-
hood of a non-intentional AWC. Overall, there is substantial
evidence in the record to support the ALJ's conclusion that
the Secretary did not prove by a preponderance of the
evidence that intentional tampering, rather than some combi-
nation of the filter manufacturing, handling by ESD, and
Urling mine characteristics, caused the Keystone AWCs.
Quartz Sampling Data
The Secretary finds error in the ALJ's decision to disre-
gard MSHA data on sampling of quartz between August 1989
and March 1991. Quartz samples were collected in the same
fashion and with the same equipment as the coal dust sam-
ples, and were transported and processed by ESD in the
same fashion. The Secretary claimed that while 44% of the
dust samples had AWCs, none of the quartz samples had that
appearance. The Secretary's explanation was simple: with
quartz samples, it is not to the operator's advantage to reduce
the weight of the dust collected by the device. The ALJ and
Commission refused to give any weight to this evidence
because the filters at issue were not in evidence, having been
destroyed in the normal process of MSHA's quartz analysis;
because the filter's appearance had not been preserved
through photographs or other records; and because the
Secretary had failed to call as witnesses any of the personnel
who actually analyzed the quartz filters.
In another attempt to shift the burden of proof, the Secre-
tary notes that one of the actual testers was on Keystone's
witness list, but was never called. She forgets that it is the
government's burden to prove the existence of a violation.
Here, the Secretary introduced no direct evidence--not even
photographs or descriptions of the examined filters--to back
up these claims. The ALJ and the Commission did not err in
refusing to draw any conclusion from this evidence.
ESD Employee Conduct and Witness Testimony
The Secretary introduced direct testimony regarding ESD
employees looking into dust filters and talking about what
might happen if they blew into them, arguing that this
evidence justified the conclusion that they were in fact blow-
ing into them. Keystone offered the testimony of the em-
ployees who handled the cassettes to the effect that they did
not tamper with them. The Secretary asserts that the ALJ
should not have credited ESD employees' denials of tamper-
ing. The Secretary describes as "insupportable" the ALJ's
stated reasons for crediting Eget and Houck: the absence of
motive for tampering and the strong disincentive from their
knowledge of possible sanctions. The Secretary also argues
that these witnesses contradicted themselves and each other.
The Secretary asserts that it was error for the ALJ to have
believed those witnesses, arguing that "[b]ecause denials of
tampering by ESD witnesses are inconsistent with the other
evidence, the ALJ's credibility findings would not stand even
if they had been based on demeanor." For this remarkable
proposition, the Secretary cites two cases, Bishopp v. District
of Columbia, 788 F.2d 781, 785-86 (D.C. Cir. 1986); and
Millar v. FCC, 707 F.2d 1530, 1539 (D.C. Cir. 1983). Unsur-
prisingly, neither of these cases goes anywhere nearly so far
as to say that a trier of fact commits error by believing a
witness whose evidence is inconsistent with other evidence.
Logically, of course, the Secretary's proposition could not
stand. If evidence could not be credited when it was contra-
dictory to other evidence, then presumably neither could the
other evidence be credited since it is contradictory to that
rejected in the first instance. As one might expect, neither
the Bishopp nor the Millar case stands for the proposition
which the Secretary asserts.
What we actually held in Bishopp was that "we must be
particularly careful to defer to the district court's credibility
findings...." 788 F.2d at 786. Obviously, that is the very
opposite of what the Secretary asserts. With due charity to
the Secretary, we note that we went on to say that in "the
rare case" we would reverse even "under this very restricted
scope of review," when "the judge below credited a witness
whose testimony was so internally inconsistent or implausible
on its face that a reasonable factfinder could not credit it."
Id. Millar is to the same effect, allowing for a reversal
where a witness's testimony is "so incredible," or is faced by
"contrary evidence ... so overwhelming," that a reasonable
factfinder could not believe the testimony regardless of the
witness's demeanor. 707 F.2d at 1539. Thus, both of the
cases upon which the Secretary relies are little more than
restatements of the "reasonable factfinder" standard of re-
view as applied to credibility determinations. We have allud-
ed to the Secretary's misunderstanding of that standard
above, and will discuss the same further infra. As to this
argument, it is sufficient to say that the Secretary has fallen
far short of that demanding standard.
The record demonstrates that the ALJ specifically and
carefully assessed the credibility of the employee witnesses,
and found that their denials of tampering were not only
believable, but consistent with other evidence. The Secretary
simply has not explained to this Court why we must depart
from the rule that a factfinder's determinations of credibility
are entitled to great deference. Nothing justifies the ex-
traordinary step of overturning these findings. See Chen v.
GAO, 821 F.2d 732, 738 (D.C. Cir. 1987).
Accidents, Rough Handling, Filter Manufacturing, Mine
Environment
The Secretary would have us reject the ALJ's findings that
accidents and rough handling of samples could have contrib-
uted to or explained Keystone's high AWC rate. These
conclusions were based on the testimony and theories of
Keystone's scientific expert Lee, who concluded that handling
could have accounted for many AWCs; that short filter-to-foil
distance increased AWC likelihood; that increased humidity
decreased AWC likelihood; that increased use of scrubbers
made it more difficult to dislodge dust from filters, decreasing
the AWC rate; and that the AWCs on Urling filters resem-
bled dislodgements caused by impact, not reverse air flow.
The Secretary argues every detail of the evidence at length.
In essence, she contends that her scientific evidence was so
overwhelmingly correct and so clearly compelled her conclu-
sion that the ALJ could not lawfully have found against her.
But the record does not support this proposition.
The ALJ found that in many instances the Secretary's
scientific evidence was inconclusive or otherwise could not be
adequately evaluated. All of these issues involve conflicting
expert testimony, and this Court must defer to the reasonable
determination of the trier of fact regarding not only the
relevance but the reliability of expert testimony presented at
trial. See General Electric Co. v. Joiner, 118 S. Ct. 512(1997); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 589 (1993); see also Millar, 707 F.2d at 1539. We
cannot deem unreasonable the conclusion that the Secretary
failed to meet her burden of proof.
The record clearly supports the proposition that accidental
events caused at least some citable AWCs at Urling. Hose
impacts, for example, occurred routinely in the transport of
sampling apparatus. Further, because the cassettes were not
removed and transported separately from the testing appara-
tus, R&P's filters may have had a greater potential for such
impacts than other mines. And, the Secretary conceded that
filter samples collected by MSHA field personnel sometimes
contained AWCs, apparently caused by opening and reclosing
of the filter cassettes at MSHA. Although there was appar-
ently no evidence on this point, it is at least possible that the
Keystone filters might have been opened and reclosed after
delivery to MSHA. The likelihood of these various possible
causes cannot be established with mathematical precision.
The Secretary's burden is to demonstrate, by a preponder-
ance of the evidence, that intentional tampering actually
caused the dust dislodgment on the particular filters at issue
in each citation. The ALJ and Commission reasonably con-
cluded that she had not carried that burden.
III
Ultimately, the Secretary's position is fraught with misun-
derstanding of the nature of her burden of proof and of the
danger of relying on a probabilistic estimate of the correlation
between some observation and a proffered explanation of its
cause. In the first instance, the Secretary never seems to
accept the fact that we review this case under the standard of
the reasonable factfinder. That standard, as we have noted,
renders the Commission's "findings of fact ... 'conclusive'
when supported by substantial evidence on the record consid-
ered as a whole." United Steelworkers, 983 F.2d at 244.
Occasionally, though rarely, we do hold that record evidence
is not sufficient to support a decision in favor of a party with
the burden of proof, even in the face of that deferential
standard. Even less frequently have we held that evidentiary
support for the party with the burden of proof was so
overwhelming that a trier of fact erred by ruling that the
burdened party had not carried its load. The Secretary has
pointed to no such case and our research has uncovered only
one. See Gibson Greetings v. NLRB, 53 F.3d 385, 389 (D.C.
Cir. 1995).
The closest the Secretary comes is Bishopp, supra. There,
the plaintiff had lost in the trial court in an employment
discrimination case. Obviously, the plaintiff ultimately bore
the burden of persuasion. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 507-11 (1993). But in Bishopp, the plaintiffs
had presented a prima facie case under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The issue upon which we
reversed the district court was whether the defendant had
come forward with legitimate nondiscriminatory reasons for
the commission of the allegedly discriminatory acts which
made out the prima facie case. On that issue, the appellees
had borne at least the burden of production, and it was on
that issue that we reversed. Bishopp, 788 F.2d at 789. This
is not to say that we would never find a record so overwhelm-
ing as to require us to "direct a verdict" in favor of the party
with the burden of proof, but it is to say that given the
deferential standard of review such a case would be rare
indeed. This is not such a case.
Although she picks at various items of evidence, the Secre-
tary principally relies on her evidence of probability--that it
was more likely than not that the cause of any given AWC
was intentional tampering. This falls far short of the compel-
ling case in which a reasonable finder of fact must find for the
party with the burden of proof in the face of direct evidence
supporting the other litigant. There is a false sense of
security that comes from the use of numbers, which in this
context can appear much like scientific data. But any useful
scientific measurement must be accompanied by an estimate
of its uncertainty, and when the entire body of evidence has
been considered, the Secretary fails to persuade that she has
established with any certainty that AWCs in general, or
Keystone's AWCs in particular, were in fact caused by inten-
tional tampering.
Over and over, the Secretary insists that she established
that the mathematical probability of tampering was some-
thing greater than 50%. Arguing from precedents involving
employment discrimination, she contends that similar statisti-
cal evidence may be deemed sufficient to establish a prima
facie case of intentional discrimination or to rebut a defen-
dant's explanation as pretextual. See Palmer v. Shultz, 815
F.2d 84, 90 (D.C. Cir. 1987); McDonnell Douglas, 411 U.S. at
792. Statistics alone may suffice to show illegal discrimina-
tion "if they are condemning enough," Berger v. Iron Workers
Reinforced Rodmen Local 201, 843 F.2d 1395, 1413 (D.C. Cir.
1988) (citation omitted), and cannot be dismissed "on mere
conjecture," Palmer, 815 F.2d at 106. The Secretary notes
that in those cases, a result more than two standard devia-
tions from the mean (indicating a 95% probability that the
relationship is not random) suffices in most instances to give
rise to an inference of intentional action. Berger, 843 F.2d at
1412.
These precedents lend little aid to the Secretary's cause.
Statistics may show a correlation between some characteristic
(for example, age) and some unequal treatment (for example,
refusal to hire), yet a finding of discrimination is allowed only
(1) if the employer fails to present a legitimate justification or
(2) if the factfinder concludes that the greater weight of the
evidence, including the statistical data, supports a conclusion
that the particular employee suffered illegal discrimination.
In situations where direct evidence is difficult or impossible to
obtain, a party may meet his burden of proof with statistical
evidence alone. (This may account for its acceptance as such
in some employment discrimination cases. See, e.g., Berger v.
Iron Workers Reinforced Rodmen Local 201, 843 F.2d at
1413; Palmer v. Shultz, 815 F.2d at 90.) Even then, statis-
tics must reasonably control for a variety of factors to proper-
ly define similarly situated employees, and in any event may
be counterbalanced by evidence providing an alternate expla-
nation of the pattern or of the particular action in question.
The weight given to statistical evidence in such cases is not
absolute, but depends on the degree to which it rules out
legitimate explanations and how the statistics factor into the
balance with the other available evidence. See, e.g., Coward
v. ADT Security Systems, 140 F.3d 271, 276-77 (D.C. Cir.
1998) (Sentelle, J., concurring). Here, it is true that AWCs
are not randomly distributed across all mines, and that
something probably explains the higher frequency of AWCs
at Urling. But without direct evidence of tampering, and
given the substantial basis in the record for alternate theo-
ries, there are no statistics "condemning enough" to require
reversal of the judgment below.
The Secretary throughout this case assumes that proving
probability is the same thing as convincing a trier of fact by
the greater weight of the evidence. While the two proposi-
tions may sound superficially similar, they are not the same.
This case well illustrates why. When the Secretary has cited
a responding mine for tampering with a particular filter,
certainly evidence of the probability of the cause of the AWC
on that filter is relevant. This relevant evidence does not
mean that the trier of fact must be convinced to any degree
that the mine operator's employees tampered with that par-
ticular filter. An hypothetical that reverses the facts of this
case demonstrates why. If it were the burden of the mine
operators to prove their innocence, and they came forward
with evidence that 99% of all filters had never been tampered
with, this would not mean that they would be entitled to an
acquittal as to particular filters on which the Secretary could
offer direct evidence of tampering. For example, if the same
witnesses who came forward here to testify that they had
committed no such acts instead came forward and swore that
"we tampered with these filters," we could hardly say that a
reasonable trier of fact would have to disbelieve them because
statistical data proved that such tampering was extremely
unlikely. The same is true here.
Perhaps the Secretary is right that a majority of the AWCs
were caused by tampering. Perhaps she is not. Either way,
it is not unreasonable for the finder of fact to conclude that
the Secretary did not establish that a particular filter in
evidence fell into the majority rather than the minority group.
To offer one further hypothetical illustrative of the Secre-
tary's misconception, we recall the example created by Pro-
fessor L. Jonathan Cohen. He posits a situation in which
uncontroverted evidence establishes that something over half
of 1000 attendees at a rodeo entered without paying the
admission fee. He rightly concludes that even though that
evidence suggests that it would be "more likely than not" the
case that a randomly selected attendee had not paid, that
evidence would be legally insufficient to allow judgment
against a specific selected attendee for the price of admission.
Most likely such evidence without more would not even be
submitted to a jury. See L. Jonathan Cohen, The Probable
and the Provable 75 (1977). In our case, the problem is not
merely that it is difficult to state with precision the probabili-
ty that a randomly selected AWC was caused by intentional
tampering. The problem here, as in the gatecrasher hypo-
thetical, is that the uncertainty arising from all of the infor-
mation not presented to the factfinder (e.g., evidence regard-
ing potential alternative causes for each AWC, its course of
handling, mine conditions, and so forth) is of such degree that
the factfinder cannot confidently say that the weight of the
evidence supports the proposition. In other words, the
weight ascribed to the evidence is affected, in part, by the
factfinder's judgment about the volume and significance of
relevant information that is not available for examination.
See Neil B. Cohen, Conceptualizing Proof and Calculating
Probabilities: A Response to Professor Kaye, 73 Cornell L.
Rev. 78, 86 (1987) ("Convincing the factfinder of such a
probabilistic judgment requires more ... than simply noting
that the best guess of the probability exceeds 0.5; rather, ...
the factfinder also takes into account its judgment as to how
likely the best guess is to 'hold up.' ").
Conclusion
In each of these proceedings, whether we would have
reached the same conclusion as the ALJ is irrelevant. We
might have upheld a ruling in favor of the Secretary on the
basis of this record. But the Secretary has not come close to
proving that the decisions below were unreasonable or not
supported by substantial evidence. Indeed, we find it highly
unlikely that the government would desire a standard of
review that would allow us to reverse such a decision based
on nothing more than our distant and inexpert view of the
record evidence. We therefore affirm the decision of the
Commission and deny the petition for review.