In examining the merits of Nagel’s motion, an overview of the language of section 105(c)(2) and 105(c)(3) and of the facts and analysis in Phillips v. A&S Construction Co. may prove helpful. I then analyze Commission precedent concerning voluntary dispute resolution and settlement of discrimination claims.

            At the outset, it is important to note that Section 105(c)(2) expressly provides for temporary reinstatement. It provides that any miner may file a discrimination complaint with the Secretary, and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint. Section 105(c)(3) contains no provision or language concerning temporary reinstatement.

            In Phillips v. A&S Construction Co., 31 FMSHRC 975, (Dec. 2009), the Commission addressed the issue of whether an order of temporary reinstatement remains in effect after the Secretary of Labor has made a determination that facts revealed from an investigation by MSHA regarding a miner's discrimination complaint do not constitute a violation of section 105© of the Act. The judge concluded that such an order does not remain in effect after MSHA's determination that no discrimination occurred and the judge dissolved his earlier order of temporary reinstatement and dismissed the temporary reinstatement proceeding. 30 FMSHRC 1119, 1123 (Nov. 2008) (ALJ Barbour).

            Thereafter, Mr. Phillips filed a petition for discretionary review challenging the judge’s order with the Commission, and Phillips concomitantly filed an action on his own behalf under section 105(c)(3). The Commission granted the petition for discretionary review and stayed the judge’s order dissolving the temporary economic reinstatement, pending the Commission’s decision. The Commission then split 2-2 regarding whether the judge correctly determined that a temporary reinstatement order no longer remains in effect after the Secretary has made a determination of no discrimination. The effect of the split decision allowed the judge’s order dissolving the temporary reinstatement proceeding to stand, as if affirmed. 31 FMSHRC at 979, citing Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992). Accordingly, the Commission lifted the stay, dissolved the order of temporary reinstatement and dismissed the temporary reinstatement proceeding. 31 FMSHRC at 979, n.1.          

            On the merits, Commissioners Duffy and Young affirmed the judge’s dissolution of the order of temporary reinstatement and his dismissal of the temporary reinstatement proceeding. In their view, based on the plain language of sections 105(c)(2) and (c)(3) and the legislative history and statutory structure, a temporary reinstatement order remains in effect pending final order on the miner's complaint as advanced by the Secretary under section 105(c)(2), but does not extend to the pendency of an action under section 105(c)(3). 31 FMSHRC 981.

            On the other hand, Chairman Jordan and Commissioner Cohen reversed the judge’s order, but each by way of different analysis. In Chairman Jordan’s view, the statute clearly states that a temporary reinstatement order remains in effect pending a final Commission order on the same underlying complaint filed with MSHA and prosecuted by either the Secretary under 105(c)(2), or by the complainant under 105(c)(3). 31 FMSHRC at 997. That is, the statute requires a final order from the Commission on the complaint, not a determination from the Secretary, in order to dissolve a grant of temporary reinstatement. Id. at 992. In her view, there is no “final order on the complaint” until the Commission issues an order affirming, modifying, or vacating the Secretary's proposed order in accordance with section 105(c)(2), or dismisses or sustains the complainant's charges in accordance with section 105(c)(3), and in either case, the final order must be based on the Commission's findings of fact and determination of whether discriminatory conduct in violation of section 105(c)(1) has occurred. Id. at 991.

            In Commissioner Cohen’s view, given his colleagues’ and the Secretary’s different and contrary interpretations of the statute’s text, structure, legislative history and purpose, all set forth as having “plain meaning” and all having some plausibility, the statute must be ambiguous in terms of the Chevron I analysis. Id. at 1002. Therefore, applying a Chevron II analysis, Member Cohen would accord deference to the Secretary’s reasonable and permissible interpretation of the statute, as amicus curiae, to require that a temporary reinstatement order remain in effect until there is a final Commission order on the miner’s underlying discrimination complaint, whether it is litigated by the Secretary pursuant to section 105(c)(2) or by the miner under section 105(c)(3). 31 FMSHRC at 1002, citing Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003).

Nagel’s Temporary Reinstatement Rights Pending

 Litigation of his Discrimination Complaint Under Section 105(c)(3)

Were Voluntarily Settled and Clearly and Unmistakably Waived

               Nagel’s temporary reinstatement case is clearly distinguishable from the dissolution of the temporary reinstatement order in Phillips v. A&S Construction Co. because it involves a voluntary settlement of the temporary reinstatement application by all parties. In such circumstances, I find that the principles of voluntary dispute resolution must prevail over granting Nagel a second bite at the apple by allowing his motion for temporary reinstatement under section 105(c)(3). Otherwise the Secretary and Commission, already struggling to reduce a vast and growing backlog, would be endlessly negotiating for settlement of multiple applications or motions for temporary reinstatement, and re-adjudicating issues of temporary reinstatement that they thought were settled under section 105(c)(2), time and again under section 105(c)(3). Such a result would gut the principles of voluntary dispute resolution and the confidence that the parties must have in the finality of their settlement agreements.

             Knowing and voluntary settlement is an essential aspect of dispute resolution under the Act. In this regard, the Commission recently vacated a settlement in the context of a Section 105(c)(2) discrimination complaint because the miner, who filed the complaint with MSHA, was not a party to the agreement. See Pendley, Lawrence v. Highland Mining Co., LLC, 29 FMSHRC 164, 164, (Apr. 2007). The Commission emphasized the importance of the miner’s participation in agreeing to the settlement terms. Specifically, the Commission emphasized the following:  The Commission has made clear that “[s]ettlement of contested issues is an integral part of dispute resolution under the Mine Act.” Tarmann v. Int'l Salt Co., 12 FMSHRC 1, 2 (Jan. 1990) (quoting Pontiki Coal Corp., 8 FMSHRC 668, 674 (May 1986)). In this respect, the Commission has observed that “the record must reflect and the Commission must be assured that a motion for settlement [approval], in fact, represents a genuine agreement between the parties, a true meeting of the minds as to its provisions.” Tarmann, 12 FMSHRC at 2 (quoting Peabody Coal Co., 8 FMSHRC 1265, 1266 (Sept. 1986)). See also Wake Stone, 27 FMSHRC at 290 (decision approving settlement vacated where it was “unclear whether the parties achieved a true meeting of the minds”).

The Commission concluded that because Pendley had objected to and had not come to an agreed disposition of the matter, the judge’s decision approving the settlement and dismissing the proceeding should be vacated.

            In this case, miner Nagel, who has filed a complaint with the Commission under section 105(c)(3), is a party under Commission Procedural Rule 4(a). Unlike Pendley, however, Nagel has voluntarily relinquished his right to temporary reinstatement under the terms of the Settlement Agreement that he executed. That is, once the Secretary made a finding of no discrimination on December 1, 2009, Nagel’s economic reinstatement terminated on that date pursuant to the clear and unmistakable terms of the Settlement Agreement that he signed.

            In this regard, the Settlement Agreement, specifically provides that “[i]f the Secretary makes a finding of no discrimination at any time after Mr. Nagel’s temporary reinstatement, the temporary reinstatement will terminate on the date on which a negative decision is made....” As a consequence, Nagel’s period of economic reinstatement terminated by agreement of the parties, including Nagel, on December 1, 2009, the date of the Secretary’s determination of no discrimination. Thus, the record reflects a clear meeting of the minds on the issue of temporary reinstatement, as required by Commission precedent. In these circumstances, I conclude that Nagel clearly and unmistakably waived his right to temporary reinstatement once the Secretary made a determination of no discrimination under the express terms of the parties Settlement Agreement resolving the temporary reinstatement issue under section 105(c)(2).

             Perhaps more importantly, Commission case law also establishes that a temporary reinstatement order may be vacated by voluntary settlement where the alleged discriminatee is party to the agreement. See Koerner, John v. Arch Mineral Coal Co. 1 MSHC 2078 (judge’s decision vacating temporary reinstatement order after settlement of discrimination proceeding affirmed upon receipt of assurance that settlement and vacation of reinstatement order were agreed to by miner). In Koerner, a discrimination proceeding under Section 105(c)(2), the Secretary moved to vacate a temporary reinstatement order on the ground that the parties had negotiated a settlement of the discrimination proceeding. The judge granted the motion, but the Commission remanded because the record did not indicate whether the alleged discriminatee agreed with the motion to vacate. The Commission’s primary concern in directing review was to assure that the alleged discriminatee voluntarily agreed to vacation of the reinstatement order. The Commission emphasized that “[i]t is the miner’s rights that are being settled, and we must, therefore, insure that the settlement and vacation of the reinstatement order were agreed to by the miner, not just the Secretary and the operator.” Id. The Secretary’s submissions on remand indicated that discriminatee Koerner was a party to the settlement and authorized the Secretary to move for vacation of the temporary reinstatement order. In these circumstances, since the record established that alleged discriminatee Koerner was a voluntary party to the agreement, the Commission’s concerns were satisfied and the judge’s vacation of the temporary reinstatement order was affirmed.

            The same logic applies to the instant matter even though it involves settlement of the temporary reinstatement issue under Section 105(c)(2), not the entire discrimination proceeding under 105(c)(3). Complainant Nagel, like alleged discriminatee Koerner, was a knowing and voluntary party to the Settlement Agreement and the terms under which his economic reinstatement order would be terminated, as evidenced by his signature on the Settlement Agreement. In these circumstances, I find the terms of the Settlement Agreement controlling. Accordingly, I conclude that the temporary reinstatement order was properly terminated on December 1, 2009 - the date the Secretary issued a finding of no discrimination - pursuant to the express terms of the parties’ Settlement Agreement.

            Accordingly, IT IS ORDERED that Docket No. WEST 2010-18-DM and Docket No. WEST 2010-464-DM are consolidated. IT IS FURTHER ORDERED that the Complainant’s motion for temporary reinstatement has been voluntarily waived and is therefore DENIED. Consequently, IT IS FURTHER ORDERED that the temporary reinstatement proceeding IS DISMISSED. Respondent’s Motion to strike Complainant’s Motion is moot and Respondent’s motion for attorney fees is DENIED.

_______________________________

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Justin Nagel, P.O. Box 182, Rathdrum, ID 83858

Richard Tucker, Newmont Mining, 1655 Mountain City Hwy., Elko, NV 89801

Donna Vetrano Pryor, Esq., Patton Boggs LLP, 1801 California Street, Suite 4900, Denver, CO 80202

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