September 4, 2012
On Aug. 14, 2012, the U.S. Court of Appeals for the Sixth Circuit issued its long-awaited ruling on the issue of whether a miner whose complaint was dismissed by the Mine Safety and Health Administration (MSHA) — but who availed himself of the right to proceed with his complaint as a private right of action — was entitled to continued temporary reinstatement benefits during the pending litigation.
The majority opinion by two judges, with a third judge issuing a concurring decision, reversed the Federal Mine Safety and Health Review Commission (FMSHRC) and held that temporary reinstatement benefits can be continued pending merits hearings only in cases where the Secretary pursues the complaint on behalf of the miner.
This was a case of first impression (meaning that no other circuit has ruled on the matter) and technically only is binding precedent on the states covered by the Sixth Circuit: Michigan, Ohio, Kentucky, and Tennessee — but is likely to be influential in rulings by other circuits, where similar cases are now pending. At press time, it was not known if MSHA would appeal to the United States Supreme Court.
The case, North Fork Coal Corporation v. FMSHRC, has been in litigation for nearly three years. It involved coal mine roof bolter Mark Gray, who was terminated by the mine and alleged that he was discharged for making safety complaints. Initially, MSHA found that Gray’s complaint was “not frivolously brought,” and so the agency sought temporary reinstatement (TR) on his behalf; by agreement of all parties, Gray received economic reinstatement (wages and benefits) rather than actual reinstatement.
Following the TR proceedings, however, MSHA concluded its investigation of the complaint and concluded that it was without merit. Therefore, the agency declined to pursue any penalties against the mine operator and also determined that it would not represent the miner in proceedings. At that point, North Fork requested that the TR benefits be terminated and the Administrative Law Judge agreed, issuing an order that dissolved the TR relief. The FMSHRC then granted review and, in a split decision, reversed and held that TR was required to continue until Gray’s individual action was finally adjudicated on the merits. This appeal followed.
To understand the issues in the case, a bit of background on discrimination cases brought under Section 105(c) of the Mine Act is in order. The 1977 Mine Act contains provisions prohibiting employment discrimination in reprisal for protected activity: this can take the form of safety-related complaints to MSHA or to the employer (as in North Fork) or can involve invoking other miners’ rights, such as the right to speak in private with MSHA during inspections or investigations, the right to testify against the mine operator in MSHA litigation, and the right to refuse to work in hazardous conditions. Section 105(c) of the Mine Act (codified at 30 USC § 815) spells out the protections and procedures for filing a complaint with the Secretary of Labor, MSHA. It also specifies in § 815(c)(2) that, where the Secretary determines that the complaint is not “frivolously brought,” the agency must request the FMSHRC to order TR “pending final order on the complaint.”
After TR, the agency continues its investigation and determines whether to file a complaint on behalf of the miner. If the Secretary declines to do so, the miner can bring an action on his own behalf, either representing himself or using outside counsel. If the miner prevails and has used an attorney, the Commission can award attorney fees in addition to other relief (e.g., permanent reinstatement, back pay, other costs, restoration of seniority and benefits, etc.). The cases that a miner pursues on his own fall under § 813(c)(3) of the Mine Act, whereas the ones brought by the Secretary are governed by § 813(c)(2). The underlying issue in the North Fork case was whether the TR relief, contained in § 813(c)(2) only, was also applicable to miners’ private actions and what constitutes a “final order on the complaint.”
An award of TR is significant because, even if the mine operator wins in the end, the pay given to the miner who receives economic reinstatement is not refunded to the mining company. In a press release issued on August 30, 2012, MSHA reported that the number of requests for TR by MSHA, on behalf of miners who filed discrimination complaints, more than tripled from the period of fiscal years 2007-2009 to the period of FY 2010-2012 (through July 31, 2012), increasing from 22 to 71.
Additionally, the department filed 70 complaints alleging mine safety discrimination during the period of FY 2010-2012 (through July 31, 2012), up from 39 from FY 2007-2009. Enforcement of miners’ rights has been a top goal for MSHA Chief Joe Main, and the agency has been aggressive in pursuing these cases, especially in light of issues relating to fears of discrimination and retaliation reported during congressional hearings held in the wake of the Upper Big Branch Mine disaster.
In North Fork, the Court of Appeals reviewed the Commission’s decision (not the ALJ ruling) to determine whether errors of law had been made. Normally, on questions of law, the Secretary’s “reasonable interpretation” will supercede that of the Commission (although here the agency and FMSHRC were on the same side). The court had to examine whether the statutory language of the Mine Act relevant to TR was clear or ambiguous, and — if ambiguous — whether the agency’s view of the Act was a permissible construction of the statute.
Because the statute provides that TR continues “pending final order on the complaint,” the court had to determine what constituted such a final order. The Secretary argued that it meant the underlying discrimination complaint and, therefore, only a merits ruling would be a final order, while the mine operator responded that “complaint” refers to one filed by the Secretary on the miner’s behalf under § 815(c)(2) and not a separate pro se “action” filed by the miner himself under § 815(c)(3).
Significantly, from 1978 until 2006, the Commission’s own rules specified that, if the Secretary determined that Section 105(c) had not been violated, then the TR order should be dissolved by the ALJ. In 2006, however, the Commission changed its rule and deleted this portion, because the Secretary advised that TR should be required even when the Secretary found no violation. The FMSHRC deleted the regulatory reference to TR and decided to leave the matter to be resolved through litigation.
In analyzing the statutory language, the appeals court found that “pending final order on the complaint” did not have a plain meaning but, ultimately, held that the inclusion of a miner’s private right to proceed under a different section than the one containing rules for the Secretary’s filing of a complaint and the TR provisions supported North Fork’s interpretation.
The court considered the degree of deference to be accorded to the Secretary’s statutory interpretation and concluded that because the agency position was offered in litigation — rather than being intertwined with regulatory enforcement of the act — something less than “Chevron deference” was required. They looked at whether the MSHA position had the “power to persuade” and concluded it did not, especially because it conflicted with 27 years of accepted practice under the old Commission rule (never challenged by MSHA historically), and because Congress had never stepped in after the Commission rule changed to modify the Mine Act in order to extend TR rights to pro se litigants. In fact, the language in the legislative history concerning TR included the congressional explanation that TR was intended “[t]o protect miners from the adverse and chilling effect of loss of employment while such matters are being investigated . . . .”
In North Fork, once the Secretary completed her investigation and determined that she would not file a complaint on behalf of the miner, there was no longer a basis to continue the reinstatement benefits.
So, is this the end of the story? Not quite. As noted, there are other challenges to TR benefits afforded to pro se miners still pending (because those cases arose after the FMSHRC North Fork ruling), and there is always the potential that other circuit courts of appeal could hold differently than the Sixth Circuit. Moreover, several pieces of legislation proposed in the current Congress (HR 1579, S. 153, HR 3697, and S. 3443) would add provisions to the Mine Act clarifying that miners who pursue their own complaints would have a right to continue TR benefits, even after MSHA finds no evidence of discrimination.
Although those bills have little chance of passage during an election year, depending upon the outcome in November (or, if other high-profile mining tragedies occur in coming months or years), the legislation could be resurrected in 2013.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at email@example.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.