Alpha filed a motion for miscellaneous relief on March 7, and Blankenship’s attorneys filed a memorandum opposing the relief on the same day.
Alpha is seeking for Blankenship to pay the nearly $28 million for the company’s legal fees, investigative expenses and fines.
“This is an unprecedented attempt to add draconian penalties to an offense that Congress has classified as a misdemeanor, and Alpha has no right to recover any of these expenditures from Mr. Blankenship as restitution,” the defendant’s memorandum states.
Alpha asked District Judge Irene Berger to order Blankenship to compensate the company for the millions of dollars it spent on the government investigation following the Upper Big Branch Mine disaster, for legal fees Alpha paid for at least seven former Massey employees and for more than $10 million in fines that Alpha agreed to pay in a settlement reached after it bought Massey following the deadly explosion.
The defendant’s memorandum states that the court should grant Blankenship an evidentiary hearing so that the defense may rebut the government’s claims with cross-examination, other documentation and testimony.
“A hearing is particularly important here given the number of issues in dispute, which the defense could not hope to effectively refute in the absence of a hearing,” the memorandum states.
The court should also ensure that the evidentiary hearing is governed by adequate procedural protections, including a heightened burden of proof, the right to cross-examination and application of the Federal Rules of Evidence.
The facts here are hotly contested and involve difficult issues of proof, causation and responsibility, according to the memorandum.
“It is very likely, moreover, that there will be contradictory witness testimony and perhaps even contradictory documentary evidence,” it states. “The only way to ensure Mr. Blankenship’s right to due process in this $28 million dollar dispute, therefore, is to provide him the same procedural protections that he would be afforded for a criminal trial.”
The Alpha request for compensation from Blankenship is outlined in a letter from Assistant U.S. Attorney Steve Ruby to federal Probation Officer Jeff Gwinn, which was made public by Blankenship’s defense team as an exhibit to its legal motion and brief arguing that Berger should throw out the company restitution request.
Alpha would not comment on the matter.
Blankenship is scheduled to be sentenced by Berger on April 6.
The trial lasted two months and a federal jury convicted Blankenship on Dec. 3 of conspiracy to violate federal mine safety and health standards at the Upper Big Branch Mine. The mine disaster occurred in April 2010, and 29 workers died in the explosion.
U.S. District Court for the Southern District of West Virginia case number: 5:14-cv-00244