FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

January 29, 2013

ORDER SCHEDULING ORAL ARGUMENT

Before:            Judge Feldman

            I. Statement of the Case

            Reuben Shemwell’s employment as a welder was terminated on September 14, 2011. On January 23, 2012, Shemwell filed his initial complaint with the Mine Safety and Health Administration (“MSHA”), based on the allegation that his termination was motivated, at least in part, by safety related activities protected under section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 (the “Act”). 30 U.S.C. § 815(c)(1). After an MSHA investigation, the Secretary of Labor (the “Secretary”) declined to bring a discrimination complaint on his behalf. Following the Secretary’s decision not to pursue the discrimination case, on August 22, 2012, Armstrong Coal Company and Armstrong Fabricators (collectively referred to as “Armstrong”) filed suit in the Commonwealth of Kentucky’s Muhlenberg Circuit Court, in the 45^th Judicial District (Case No. 12-CI-00397), alleging Shemwell’s January 23, 2012, discrimination complaint warranted a state action for “Wrongful Use of Civil Proceedings.” Complaint,

Case No. 12-CI-00397, at 7.

            Currently before me is a January 8, 2013, discrimination complaint filed by the Secretary on behalf of Shemwell pursuant to section 105(c)(2) of Act. 30 U.S.C. § 815(c)(2). The Secretary asserts that Armstrong’s civil suit constitutes a violation of section 105(c)(1). Section 105(c)(1) provides in pertinent part:

No person shall . . . in any manner discriminate against or otherwise interfere with the exercise of the statutory right of any miner . . . because such miner . . . has instituted or caused to be instituted any proceeding under or related to this Act . . . or because of the exercise by such miner . . . of any statutory right afforded by this Act.

30 U.S.C. § 815(c)(1).

            II. Background

            Prior to MSHA’s completion of its investigation of Shemwell’s January 23, 2012, complaint, on March 9, 2012, the Secretary elected to file an application for Shemwell’s temporary reinstatement under section 105(c)(2) of the Act. Armstrong was ordered to temporarily reinstate Shemwell following an evidentiary hearing based on a finding that Shemwell’s complaint was not frivolously brought. 34 FMSHRC 1464 (June 2012) (ALJ). The reinstatement decision below was affirmed by the Commission. Sec’y of Labor o/b/o Shemwell v. Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc. 34 FMSRHC 1580, 1582-83 (July 2012) (holding that the finding that Shemwell’s complaint was not frivolously brought is supported by substantial evidence and consistent with applicable law).

            On July 27, 2012, MSHA advised Shemwell that its investigation failed to reveal that a violation of section 105(c)(1) had occurred. At that time, Shemwell was advised that:

if [he did] not concur with the determination, [he had] the right under Section 105(c) of the Mine Act to file an action on [his] own behalf within 30 days after receipt of this letter . . .

Letter from Carolyn T. James, Assistant Director, Technical Compliance and Investigation Office, to Reuben Shemwell (July 27, 2012).

            Consequently, Shemwell elected to pursue his underlying January 23, 2012, discrimination complaint by timely filing a discrimination complaint on his own behalf on August 25, 2012, pursuant to section 105(c)(3) of the Act. 30 U.S.C. § 815(c)(3). Shemwell’s private discrimination proceeding has been docketed as KENT 2012-1497. The hearing in Docket No. KENT 2012-1497 is scheduled for June 18, 2013, in Owensboro, Kentucky.

            During a conference call on January 24, 2013, the parties were advised that disposition of the Secretary’s complaint with regard to the civil action would be through oral argument and subsequent briefing. The parties were further advised that the oral argument would be conducted at 10:00 a.m. on February 27, 2013, at the Commission’s headquarters in Washington, D.C., at the following address:

Federal Mine Safety and Health Review Commission

                                    Richard V. Backley Hearing Room

                                    Fifth Floor, Room 511N

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

                        III. Framework

            The issue to be addressed is whether the filing of Shemwell’s January 23, 2012, discrimination complaint is protected activity under section 105(c)(1) of the Act. In resolving this issue, the parties should be prepared to address, with any relevant case law to support their positions, the following matters:

1. Whether Armstrong’s filing of the civil action against Shemwell in the state proceeding is a per se violation of the provisions of section 105(c)(1) of the Act.

2. Assuming the civil proceeding brought by Armstrong in the State of Kentucky is not a per se violation of the Act, whether the allegation that Shemwell’s complaint constitutes a “wrongful use of civil proceeding” is the substantive equivalent of an assertion that Shemwell’s complaint was frivolously brought.

3. Whether the doctrines of res judicata and/or collateral estoppel preclude Armstrong from re-litigating in this proceeding whether Shemwell’s

January 23, 2013, discrimination complaint regarding his termination was frivolously brought, given the Commission’s final decision affirming

            Shemwell’s temporary reinstatement. See 34 FMSHRC at 1582-83.

4. The relief sought by Armstrong in its civil action against Shemwell includes “compensatory and punitive damages in an amount in excess of the jurisdictional limitations of [the State] Court” in addition to “a reasonable attorney’s fee and all costs expended.” Complaint, Case No. 12-CI-00397, at 9. At oral argument, Armstrong should provide the amount of monetary damages it is seeking to recover from Shemwell.

5. If it is determined that Armstrong’s civil suit constitutes a violation of section 105(c)(1) of the Act, in addition to any recovery sought for monetary damages incurred by Shemwell, the Secretary should propose the amount of the civil penalty that is sought in this matter. With respect to the question of the propriety of the amount of the proposed civil penalty, the parties should address whether Armstrong’s civil action has a chilling effect on the exercise of statutory rights conferred to miners by the Act. In this regard, the Commission has concluded that determining whether there is objective evidence of a chilling effect depends on whether the adverse action “reasonably tended to discourage miners from engaging in protected activities.” Sec’y of Labor o/b/o Poddey, v Tanglewood Energy, Inc., 18 FMSRHC 1315, 1321 (Aug. 1996) (quoting Sec’y of Labor o/b/o Johnson v. JWR, Inc. 18 FMSHRC 552, 558 (April 1996)) (citing by analogy authority relating to the enforcement of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)).

            In addition to the above matters, the parties may present any other arguments deemed appropriate in support of their respective positions. A post-oral argument briefing schedule will be established at the oral argument.

/s/ Jerold Feldman

Jerold Feldman                                                                                                                                                                                         

Administrative Law Judge 

Distribution (by regular mail and electronic mail):

Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

Adam K. Spease, Esq., Miller Wells, 710 W. Main Street, 4^th Floor, Louisville, KY 40202

Mason L. Miller, Esq., 300 E. Main Street, Suite 360, Lexington, KY 40507

Daniel Z. Zaluski, Esq., 407 Brown Road, Madisonville, KY 42431

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 41858