; Circuit Court Complaint, FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004
March 14, 2013
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of REUBEN SHEMWELL, Complainant, v. ARMSTRONG COAL CO., INC. & ARMSTRONG FABRICATORS, INC., Respondents |
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DISCRIMINATION PROCEEDING Docket No. KENT 2013-362-D MADI CD 2013-01 Parkway Mine Surface Facilities Mine ID 15-19356 |
ORDER ON POST-ORAL ARGUMENT BRIEFS
Before: Judge Feldman
By way of background, Reuben Shemwell’s employment as a welder was terminated on September 14, 2011, by the Respondents, Armstrong Coal Company and Armstrong Fabricators (collectively referred to as “Armstrong”). On January 23, 2012, Shemwell exercised his statutory right under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the “Act”), by filing a complaint with the Secretary of Labor (the “Secretary”), based on his allegation that his termination was motivated, at least in part, by safety related activities protected under section 105(c)(1) of the Act. 30 U.S.C. §815(c). Although not in issue in this case, Shemwell’s January 23, 2012, discrimination complaint is the basis for a 105(c)(3) discrimination proceeding in Docket No. KENT 2012-1497-D that is currently before this Commission, in which Shemwell is seeking to recover back-pay and the reinstatement of his employment.
Currently before me in captioned Docket No. KENT 2013-362-D is a discrimination
complaint filed by the Secretary on behalf of Shemwell pursuant to section 105(c)(2) of the Act.
The Secretary’s complaint concerns a civil tort action filed by Armstrong in the Commonwealth
of Kentucky’s Muhlenberg Circuit Court. In the Kentucky civil action, Armstrong seeks to collect compensatory and punitive damages from Shemwell based on Armstrong’s complaint that Shemwell’s section 105(c) discrimination action before this Commission is a “Wrongful Use of Civil Proceedings.” (Tr. 139, 163-64)
; Circuit Court Complaint,
Case No. 12-CI-00397, at 7.
Despite a final decision by the Commission that Shemwell’s January 23, 2012, complaint has not been frivolously brought, Armstrong’s tort action is based on Armstrong’s assertion that Shemwell did not believe he was the victim of discrimination when he filed his discrimination complaint with the Secretary. (Tr. 14, 32); 34 FMSHRC 1580 (July 2012) (ordering Shemwell’s temporary reinstatement), aff’g 34 FMSHRC 1464 (June 2012) (ALJ); see also Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (citing S. Rep. No. 95-181, 95th Cong., 1st Sess. 13 (1977)) (holding that a discrimination complaint is not frivolously brought when it appears to have merit).
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).
Oral Argument was heard at the Commission’s headquarters on February 27, 2013. At that time, Armstrong maintained that, if its civil suit is protected by the First Amendment, the civil suit cannot constitute a violation of section 105(c)(1) of the Mine Act. (Tr. 122). Specifically, Armstrong asserts a First Amendment right to bring a state court action, despite the Commission’s holding that Shemwell’s complaint was not frivolously brought, and regardless of the ultimate determination on the merits of the related section 105(c)(3) proceeding, unless it is determined that the state action is preempted, or that it is both baseless and retaliatory. (Tr. 13, 19, 133, 157). The parties should address the following matters in their briefs:
1. The parties should address whether Armstrong’s civil suit is preempted by the Act. See, e.g., English v. General Electric Co., 496 U.S. 72, 78-79 (1990) (holding that state laws which obstruct Congressional objectives and purposes are preempted).
2. Assuming that Armstrong’s civil action is not preempted by federal law, the parties should address whether the civil suit is baseless and retaliatory. BE&K Construction Co. v. NLRB, 536 U.S. 516 (June 2002) (holding that a state civil suit not otherwise preempted contravenes a federal statute where the civil suit is both objectively baseless and retaliatory).
3. During Oral Argument, Armstrong opined that “even a losing [state] lawsuit
that is retaliatory in nature and violates a [federal] statute is protected under
the First Amendment,” and that protection applies “even if [the state suit is]
maliciously targeted to interfere with miners’ rights.” (Tr. 133, 153-54).
Also at Oral Argument, reference was made to the fact that the civil suit was,
in essence, a strategic lawsuit against public participation, commonly known
as a SLAPP suit. (Tr. 176-177, 178-181).
Generally speaking, a SLAPP suit is an invalid, abusive action based
on spurious allegations, brought by a disproportionately well-financed plaintiff
seeking to intimidate and dissuade citizens or classes of individuals from
exercising their First Amendment or statutory rights to seek redress by petitioning
federal agencies or by initiating court proceedings. A SLAPP suit seeks to burden
defendants by the cost of a legal defense and the fear of civil liability, until they
abandon their claims or cease to bring such claims.
The parties should address in
their briefs whether Armstrong’s Kentucky civil tort action constitutes a SLAPP
lawsuit, and if so, whether that determination gives rise to enhanced penalties,
as discussed in point four below.
4. The Secretary initially proposed a $70,000.00 civil penalty, the maximum available under section 110(a)(1) of the Act, for Armstrong’s alleged violation of section 105(c). At Oral Argument, the Secretary raised the question of whether the Commission has the authority to impose a civil penalty in excess of the $70,000.00 maximum. (Tr. 177).
The only source of authority for exceeding the $70,000.00 maximum is the enhanced civil penalty provision for flagrant violations in section 110(b)(2). Section 110(b)(2) defines a flagrant violation, in pertinent part, as “a reckless or repeated failure to make reasonable efforts to eliminate a known violation that . . . reasonably could have been expected to cause, death or serious bodily injury.” 30 U.S.C. § 820(b)(2). Accordingly, the parties’ briefs should address whether Armstrong’s prosecution of its civil suit, despite the Commission’s “not frivolously brought” determination, constitutes a reckless and repeated failure to eliminate a known violation of section 105(c). In addition, the parties should address whether the civil suit causes a chilling effect on the willingness of miners to report hazardous conditions, and, whether such reluctance can reasonably be expected to cause death or serious bodily injury.
In addition to the above matters, the parties may present any other arguments deemed appropriate in support of their respective positions. As decided at Oral Argument, the parties shall file simultaneous briefs, not to exceed thirty pages, by April 30, 2013. Reply briefs, not to exceed eighteen pages, shall be filed by May 14, 2013.
/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, 4th 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