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 makapushion@jacksonkelly.com.