FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue NW, Suite 520N

Washington, DC 20004

July 26, 2013

ORDER DENYING STAY

            I. Background

            On August 22, 2012, Armstrong Coal Company and/or Armstrong Fabricators (collectively referred to as “Armstrong”) filed a civil tort suit in the Commonwealth of Kentucky’s Muhlenberg Circuit Court seeking compensatory and punitive damages from Reuben Shemwell. The civil action alleges that Shemwell’s discrimination complaint brought before the Commission constitutes a “Wrongful Use of [Commission] Civil Proceedings” under Kentucky state tort law. Circuit Court Complaint at 7, No. 12-CI-00897 (Aug. 22, 2012).

            On January 8, 2013, the Secretary of Labor (“the Secretary”) filed a discrimination complaint on behalf of Shemwell pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the “Act” or “Mine Act”). 30 U.S.C. § 815(c)(2). The Secretary asserted that Armstrong’s civil suit in Kentucky violates section 105(c)(1) of the Act, which provides:

No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights 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) (emphasis added).

            In addition to asserting that the civil suit violates section 105(c)(1), the Secretary asserted the civil suit creates a significant chilling effect that cannot be tolerated, stating:

The Mine Act comprehensively regulates the filing of complaints by miners, and tolerance of state tort actions by employers for “wrongful use” of such proceedings would have a “direct and substantial effect” on the willingness of miners to file complaints . . . .

Sec’y Post-Oral Arg. Br. at 16 (citation omitted).

            An interim Decision on Liability granted the Secretary’s discrimination complaint brought on behalf of Shemwell, and required Armstrong to cease and desist from prosecuting its Muhlenberg suit by filing an appropriate motion to dismiss the suit within 40 days of the interim decision, or by Monday, July 29, 2013. 35 FMSHRC __, slip op. (June 2013) (ALJ). The Cease and Desist Order was predicated on the evident chilling effect of Armstrong’s civil suit that creates a significant disincentive for miners to exercise their statutory right to communicate safety-related complaints to mine operators. Id. at 13.

            On July 25, 2013, Armstrong filed a motion “to temporarily stay, until and including August 15, 2013, the Cease and Desist Order entered in this matter on June 19, 2013[,] pending submission of a Joint Settlement Motion by the Parties hereto.” Armstr. Mot. at 1. In support of its motion, Armstrong reports that the Secretary and Shemwell have verbally agreed upon settlement terms that would resolve this case, “including a term requiring that Respondents voluntarily dismiss the Muhlenberg Suit.” Id. at 2. Armstrong represents that the Secretary does not oppose Armstrong’s motion.

            II. Disposition

            As stated in the interim decision, the considerations for determining the propriety of granting Armstrong’s motion to stay are well settled. 35 FMSHRC __, slip op. at 21. The relevant issues are: (1) whether there is a likelihood of Armstrong prevailing on appeal; (2) whether Armstrong will be irreparably harmed if the Cease and Desist Order is not delayed; (3) whether not delaying the Cease and Desist Order creates an adverse effect on others; and (4) whether not delaying the Cease and Desist Order is in the public interest. See Kevin Baird v. PCS Phosphate Company, Inc., 33 FMSHRC 127, 128-29 (Feb. 2011) (citing Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).

            With respect to the likelihood of prevailing on appeal, the interim decision determined that Armstrong’s civil suit is: contrary to federal law in that it was both preempted, and baseless and retaliatory; contrary to Kentucky state law which requires a final decision on the merits in the proceeding alleged to have been misused; contrary to the plain language of section 105(c)(1) of the Mine Act that prohibits interference with the exercise of a miner’s statutory right; and, contrary to legislative intent that seeks to promote and encourage miner participation in safety-related matters. 35 FMSHRC __, slip op. (June 2013) (ALJ). Suffice it to say that Armstrong’s prospects of prevailing in this matter are not good.

            With respect to whether Armstrong will be irreparably harmed if a stay is not granted, Armstrong relies on Clark v. Cincinnati Ins. Co., Case No. 2005-CA-000356-MR, 2006 WL 1044461, at *5 (Ky. Ct. App. Nov 15, 2006) for the proposition that Kentucky law provides a one year statute of limitation for malicious prosecution actions. Thus Armstrong asserts it may be time barred from refiling its civil tort suit even if it were dismissed without prejudice. Armstr. Mot. at 2. Armstrong’s reliance on Clark is disingenuous, as Kentucky tort law requires a Commission finding in favor of Armstrong as a prerequisite to a state tort action for misuse of civil proceedings. D’Angelo v. Mussler, 290 S.W.3d, 75, 79 (Ky. App. 2009). As stated in Clark, “an injury occurs when the injured party knew or should have known that he was harmed.” Clark, 2006 WL 1044461, at *5. Thus, the statute of limitations has not yet begun to run in the absence of a Commission decision on the merits of Shemwell’s complaint. Consequently, denial of Armstrong’s stay request will not pose any irreparable harm

to Armstrong.

            Although Armstrong will not be irreparably harmed if a stay is not granted, miners similarly situated to Shemwell may indeed be harmed if a stay is granted. In this regard, it is surprising that the Secretary has voiced no opposition to Armstrong’s motion, in view of the Secretary’s stated apprehension about the chilling effect created in this matter. The chilling effect is particularly harmful to mining personnel employed by Armstrong who presumably are aware that they too, like Shemwell, can be exposed to compensatory and punitive liability if they bring unwelcome safety related complaints to Armstrong’s attention. Moreover, the continued prosecution of the civil suit discourages, in general, the active miner participation that the Mine Act seeks to promote. Consequently, granting the stay, even if only until August 15, 2013, during which time Armstrong represents that it would take no additional action in furtherance of the state suit, still has a potential to adversely effect miners - “the most precious resource” protected by the Mine Act. 30 U.S.C. § 801(a); Armstr. Mot. at 2.

            With respect to the question of the public interest, I am cognizant that Armstrong could argue that its request for stay should be granted because, for reasons best known to the Secretary, it is not opposed. However, Congress has delegated to the Commission the responsibility to “assure that the public interest is adequately protected” before any propositions advanced by the

Secretary in furtherance of a settlement are granted by the Commission. S. Rep. No. 181, 95^th Cong., 1^st Sess. 45 (1977), reprinted in Legislative History of the Federal Mine Safety and Health Act of 1977, at 633 (1978); see also 30 U.S.C. § 820(k). Permitting the state civil suit to remain viable is contrary to the public interest because its effect is the harassment and intimidation of miners who may wish to exercise their statutory rights, activities this Commission is committed to encourage and protect.

            As a final matter, Armstrong avers that the terms of the parties’ settlement agreement, which have been verbally agreed upon, require Armstrong to “voluntarily dismiss” its Muhlenberg suit. Armstr. Mot. at 2. The parties miss the point. The circumstances dictating Armstrong’s dismissal of its civil action are no longer negotiable, given the Cease and Desist Order that is in effect in this proceeding. While Armstrong apparently prefers to voluntarily move to dismiss its suit shortly, the Cease and Desist Order requires Armstrong to file an appropriate motion to dismiss by the close of business on Monday, July 29, 2013. The Secretary may take whatever enforcement action he deems appropriate in the event Armstrong fails to abide by the Cease and Desist Order.

            I note parenthetically that Armstrong may assert that the requirement that it move to imminently dismiss its civil suit in Kentucky is a significant hardship. In view of Armstrong’s last-minute request for stay, such an argument is tantamount to the proverbial child defendant charged with murdering his parents who seeks the sympathy of the court because he is an orphan. Moreover, any hardship experienced by Armstrong pales in comparison to the hardship it has thrust upon Shemwell. I am unmoved.

            I realize the expedient thing to do would be to grant the requested stay. However, I believe to do so would be shamefully wrong.

ORDER

            In view of the above, IT IS ORDERED that Armstrong’s motion to stay the implementation of the Cease and Desist Order IS DENIED.

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

Distribution:

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

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

/tmw