October 4, 2012
Sixth Circuit overrides Secretary of Labor on temporary reinstatement of terminated miners.
by Meredith A. Kapushion
Mine operators and miners familiar with the procedures for temporary reinstatement under the Mine Act may be aware of the shift in the Mine Safety and Health Administration’s (MSHA) approach in recent years. When a miner files a discrimination complaint with MSHA under section 105(c) of the Mine Act, MSHA conducts an investigation to assess the merits of the complaint. Where the complaining miner has been terminated, MSHA has the authority to seek temporary reinstatement once it concludes that the miner’s complaint is “not frivolously brought.” This conclusion is reached prior to the conclusion of MSHA’s investigation of the merits of the complaint. Typically, the reinstatement agreed upon is “economic,” but the complaining miner can seek an actual return to work. Once the investigation is concluded, the Secretary of Labor decides whether to pursue the claim on the miner’s behalf or abandon it.
Until recently, it was the practice to dissolve the temporary reinstatement following a determination by the Secretary of Labor that she will not pursue the discrimination complaint on behalf of the miner. However, within the past few years, the Secretary has taken the position that a miner must continue to be temporarily reinstated, even once the Secretary has determined no discrimination occurred, if the miner chooses to pursue a claim on his own. Until there is a final decision by the Federal Mine Safety and Health Review Commission. on the merits of the claim, the miner must be reinstated. This has the effect of holding mine operators hostage to weak or frivolous claims, and costing them wages and legal fees until the claims can be finally adjudicated, which may take several years.
The question of whether the Mine Act requires this ongoing temporary reinstatement was the main issue in dispute in a recent Sixth Circuit decision. The case arose after North Fork Coal Corp. fired Mark Gray on May 15, 2009. Gray subsequently filed a discrimination complaint with MSHA pursuant to section 105(c) of the Mine Act, alleging he was terminated for making safety-related complaints. The Secretary found that the complaint was not frivolously brought and filed an application for temporary reinstatement. The parties jointly agreed to economic reinstatement for Gray. Once her investigation was completed, however, the Secretary informed the Administrative Law Judge that she would not be pursuing the discrimination complaint. The ALJ dissolved the economic reinstatement, and Gray then filed his own discrimination action pursuant to section 105(c)(3) of the Mine Act.
The ALJ’s decision to dissolve the economic reinstatement went before the Federal Mine Safety and Health Commission. In a 3-2 split decision, the Commission reversed the decision of the ALJ and held that temporary reinstatement was required until Gray’s individual action was resolved by a final order. North Fork appealed the Commission’s decision to the Sixth Circuit Court of Appeals. In North Fork Coal Corp. v. Gray, Docket Nos. 11-3398/3684 (6th Circuit, Aug. 14, 2012), the Sixth Circuit determined that the Mine Act does not require such continued temporary reinstatement after the Secretary determines that the miner’s complaint lacks merit, reversing the Commission decision.
In reaching its decision, the Sixth Circuit relied on the language of the Mine Act. The question was whether the statutory reference to a “final order on the complaint” referred to a decision by the Secretary as to whether to pursue the complaint or whether it referred to a final decision by the Commission. The court noted that the term is ambiguous, and one problem with the latter interpretation is that there will never be a final order if neither the Secretary nor the complainant decides to pursue the complaint. In addition, the section of the Mine Act dealing with independent miner actions does not discuss temporary reinstatement and also refers to a miner’s “action” as opposed to “complaint,” suggesting that the two are not meant to be treated as equivalent.
After considering the statute’s construction and history, the Sixth Circuit was not persuaded by the Secretary’s argument. The court found that Congress’ construction and choice of language was purposeful, indicating that temporary reinstatement is inappropriate when a miner pursues an individual “action” under section 105(c)(3) of the Mine Act. The Court also relied upon language from the original House Conference Report indicating that temporary reinstatement should be ordered “pending final outcome of the investigation.”
In reversing the Commission’s decision, the court also noted that one factor supporting its holding was 27 years of prior practice consistent with its decision. From 1978 to 2006, the Code of Federal Regulations provided for dissolution of temporary reinstatement by the ALJ once the Secretary abandons the claim, and this practice was followed “without any serious controversy.” In 2006, however, the Commission abruptly changed course, deleting that portion of the regulation and leaving the matter to be resolved through litigation. The Sixth Circuit noted that Congress had taken no steps to extend temporary reinstatement since 1977 and had even declined to enact proposed legislation in 2011 that would have provided for temporary reinstatement during the pendency of a miner’s action.
The Sixth Circuit’s decision is an important curb on abuses of the temporary reinstatement provision of the Mine Act. Writing in a separate concurrence, Judge Sutton observed:
If we accept the Secretary’s new approach to the statute, moreover, what miner would not file an action with the Commission? And what lawyer would not recommend that very thing? The mere filing of an action, no matter how non-meritorious or even frivolous at that point in time, would ensure continued reinstatement through the end of the proceeding. That is no small matter in proceedings that can last as long as this one has — 35 months and counting since the reinstatement.
Concluding that this has the potential to violate due process concerns, Sutton opines it is “far better” to treat the proceedings as distinct, “just as the Secretary construed the statute for the first 27 years of its existence.”
If a miner must be reinstated until there is a final decision by the FMSHRC on the merits of a discrimination claim, it effectively holds mine operators hostage to weak or frivolous claims.
The Sixth Circuit has effectively halted the trend of allowing temporary reinstatement claims to proceed unchecked. The Secretary’s investigation of the merits of a miner’s claim serves an important gatekeeping function that has now been restored. If the Secretary sees no merit in pursuing a miner’s complaint, then the courts have no reason to assume the complaint has merit, and a miner is no longer entitled to temporary reinstatement. A discrimination claim may still proceed, but a mine operator is not forced to reinstate a miner whose claim has failed to persuade the Secretary in the first instance.
Meredith A. Kapushion practices in Jackson Kelly PLLC’s Denver office as part of its Occupational Safety and Health Practice Group. She can be reached at 303-390-0520 or firstname.lastname@example.org.