FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
September 9, 2009
PETER J. PHILLIPS
v.
A&S CONSTRUCTION COMPANY |
:
:
:
:
:
|
Docket No. WEST 2008-1057-DM |
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This temporary reinstatement proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). The case raises the question
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 the Mine Safety and Health
Administration (“MSHA”) regarding a miner’s discrimination complaint do not constitute a
violation of section 105(c) of the Act.
Administrative Law Judge David Barbour concluded that
such an order does not remain in effect after MSHA’s determination that no discrimination
occurred. Accordingly, he dissolved his earlier order temporarily reinstating Peter J. Phillips, an
employee of A&S Construction Company (“A&S”), and dismissed the temporary reinstatement
proceeding. 30 FMSHRC 1119, 1123 (Nov. 2008) (ALJ). Mr. Phillips filed a petition for
discretionary review, challenging the judge’s determination, which the Commission granted. For
the reasons that follow, the judge’s determination stands as if affirmed.
I.
Factual and Procedural Background
No factual record has been developed in this case. The procedural background of the case
is set forth in the judge’s decision and is briefly summarized here. Mr. Phillips was discharged
by A&S on September 13, 2007. Id. at 1119. On February 11, 2008, Mr. Phillips filed a
complaint with MSHA alleging that his discharge was motivated by protected safety complaints
in violation of section 105(c)(1) of the Mine Act. Id. MSHA conducted a preliminary special
investigation of the complaint and determined that it was not frivolous. Id. The Secretary filed
an application with the Commission seeking the temporary reinstatement of Mr. Phillips. Id.
The parties agreed that a hearing on the Secretary’s application was unnecessary and that Mr.
Phillips should be economically reinstated.
Id. On June 6, 2008, the judge ordered Mr. Phillips’
economic reinstatement. Id.
As part of the economic reinstatement, the judge ordered the Secretary to report on July 2,
and August 1, 2008, regarding the status of her determination as to whether to bring a
discrimination complaint on Mr. Phillips’ behalf. Unpublished Order dated June 6, 2008. On
each of those dates, counsel for the Secretary stated that the determination had not yet been
made. 30 FMSHRC at 1120.
Approximately three months later, on November 10, 2008, the Commission received a
notice that the Secretary did not intend to proceed under section 105(c)(2) of the Mine Act on
Mr. Phillips’ behalf. Id. Counsel for the Secretary stated that it was the Secretary’s position that
the order of temporary economic reinstatement must remain in effect until there is a final order of
the Commission disposing of Mr. Phillips’ case, including if Mr. Phillips decided to proceed on
his own behalf under section 105(c)(3). Id. Attached to the Secretary’s notice was a
November 3, 2008, letter to Mr. Phillips from MSHA stating that MSHA had “determined that
facts disclosed during the investigation do not constitute a violation of Section 105(c)” and that
“[t]herefore, discrimination, within the confines of the Mine Act, did not occur.” Id. (citations
omitted).
On November 10, the Commission also received from A&S a motion to schedule a
hearing to determine whether the order of temporary reinstatement should be rescinded in light of
the Secretary’s determination. Id. The judge scheduled the matter for oral argument.
Following oral argument, the judge determined that an order of temporary reinstatement
is no longer viable after the Secretary has determined that the facts underlying a miner’s
complaint do not constitute a violation of section 105(c). Id. at 1121-23. The judge noted that
the authority to issue an order of reinstatement arises under section 105(c)(2), which provides
that such an order remains in effect “pending final order on the complaint.” Id. at 1121. He
explained that the complaint referred to is the miner’s complaint that is investigated by the
Secretary, and that a final order on the complaint is made when the Secretary determines that the
facts alleged in the miner’s complaint do not constitute a violation of section 105(c). Id. The
judge reasoned that if a miner wishes to proceed under section 105(c)(3), the miner must file a
new complaint, which is separate from the Secretary’s application for temporary reinstatement.
Id. at 1121-22. Accordingly, the judge dissolved the order of temporary reinstatement and
dismissed the temporary reinstatement proceeding. Id. at 1123.
On December 15, 2008, Mr. Phillips filed a petition for discretionary review challenging
the judge’s order with the Commission. In addition, on that same date, Mr. Phillips filed an
action on his own behalf under section 105(c)(3), which has been docketed as WEST
2009-286-DM, and assigned to Administrative Law Judge Richard Manning. On December 23,
2008, the Commission granted Mr. Phillips’ petition and stayed the judge’s order dissolving the
order of temporary economic reinstatement, pending the Commission’s decision. The
Commission granted the Secretary leave to participate as amicus curiae.
A&S argues that the Commission should affirm the judge’s order dissolving the
temporary reinstatement order. A&S Br. at 5. It contends that the plain language of the Mine
Act supports the judge’s determination that “pending final order on the complaint” refers to the
miner’s complaint investigated by the Secretary, and that a final order on the complaint is made
when the Secretary makes a determination of no discrimination. Id. at 9-10. Drawing an analogy
to sections 105(a) and 105(b) of the Mine Act, A&S notes that a “final order” can arise from a
notice issued by the Secretary under section 105 and need not be a final Commission order. A&S
Resp. Br. at 3-5.
In her amicus brief, the Secretary contends that the judge erred in dissolving the
temporary reinstatement order. S. Br. at 8-24. She contends that the plain meaning of section
105(c)(2) requires a temporary reinstatement order to remain in effect until there has been a final
Commission order on the merits of the miner’s underlying discrimination complaint, regardless
of whether the complaint is litigated by the Secretary under section 105(c)(2) or by the miner
under section 105(c)(3). Id. at 10-15, 24. The Secretary asserts that such a reading is also
supported by the structure of the Mine Act, the legislative history, and the purpose of section
105(c)(2). Id. at 15-24. Finally, she states that even if section 105(c)(2) does not have a plain
meaning, the Commission should accept the Secretary’s interpretation because it is reasonable
and furthers the protection to miners contemplated by section 105(c)(2). Id. at 1, 23.
II.
Disposition
A. Analytical Framework
The question presented in this case is whether, under the provisions of section 105(c) of
the Mine Act, a temporary reinstatement order remains in effect after the Secretary has
determined that the allegations made by the miner in his or her discrimination complaint filed
with MSHA do not constitute a violation of section 105(c)(1) of the Mine Act.
In considering this question of statutory construction, we are mindful that our first inquiry
is “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18
FMSHRC 582, 584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its
language. See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 917
F.2d 42, 44 (D.C. Cir. 1990). Deference to an agency’s interpretation of the statute may not be
applied “to alter the clearly expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988) (citations omitted). In ascertaining the meaning of the statute, courts utilize
traditional tools of construction, including an examination of the “particular statutory language at
issue, as well as the language and design of the statute as a whole,” to determine whether
Congress had an intention on the specific question at issue. Id.; Local Union 1261, UMWA v.
FMSHRC, 917 F.2d at 44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir.
1989). The examination to determine whether there is such a clear Congressional intent is
commonly referred to as a “Chevron I” analysis. See Coal Employment Project, 889 F.2d at
1131; Thunder Basin, 18 FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13
(Jan. 1994).
If a statute is ambiguous or silent on a point in question, a second inquiry, commonly
referred to as a “Chevron II” analysis, is required to determine whether an agency’s interpretation
of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC
at 584 n.2; Keystone, 16 FMSHRC at 13. Deference is accorded to “an agency’s interpretation of
the statute it is charged with administering when that interpretation is reasonable.” Energy West
Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844).
Where the statute is silent or ambiguous, the agency’s interpretation is entitled to affirmance as
long as that interpretation is one of the permissible interpretations the agency could have
selected. See Joy Techs., Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996) (citing
Chevron, 467 U.S. at 843), cert. denied, 520 U.S. 1209 (1997); Thunder Basin Coal Co. v.
FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
The Commissioners are evenly divided 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. Commissioners Duffy and Young would affirm in result the
judge’s dissolution of the temporary reinstatement order and dismissal of the temporary
reinstatement proceeding. Chairman Jordan and Commissioner Cohen would reverse the judge’s
order. The effect of a split decision is to allow the judge’s order dissolving the temporary
reinstatement order and dismissing the temporary reinstatement proceeding to stand, as if
affirmed.
See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other
grounds, 969 F.2d 1501 (3d Cir. 1992). The separate opinions of the Commissioners follow.
B. Separate Opinions of the Commissioners
Commissioners Duffy and Young, in favor of affirming in result the judge’s order:
1. Statutory Language
The authority to order temporary reinstatement is found in section 105(c)(2) of the Mine
Act. Under the terms of section 105(c)(2), after the Secretary has filed an application stating that
a miner’s complaint of discrimination filed with MSHA was not frivolously brought, the
Commission must order the “immediate reinstatement of the miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2) (emphasis added). In order to determine how long a
temporary reinstatement order may permissibly remain in effect, we must consider what
Congress meant by “final order” and “complaint.” We first consider what is meant by
“complaint.”
Reading section 105(c)(2) in context, we conclude that the provision that a temporary
reinstatement order remains in effect “pending final order on the complaint” clearly refers to the
“complaints” filed under section 105(c)(2) and does not extend to the miner’s “action” filed
under section 105(c)(3). We base this conclusion on the usage of the term “complaint” in
sections 105(c)(2) and 105(c)(3).
More specifically, section 105(c) refers to two complaints: the miner’s complaint made
to, and investigated by, the Secretary under section 105(c)(2); and the complaint filed by the
Secretary with the Commission under section 105(c)(2) if, upon investigation, the Secretary
determines that section 105(c)(1) has been violated.
The legitimacy of the miner’s complaint is determined by the Secretary in a two-phased
process. First, the Secretary determines whether the miner’s complaint has been “frivolously
brought” through an initial investigation. 30 U.S.C. § 815(c)(2). If the complaint is not
frivolous, the Secretary files an application with the Commission to temporarily reinstate the
miner. Id. The standard of the initial determination, which requires only that a miner’s
complaint must appear to have merit, is set low so that a miner may be reinstated while the
Secretary conducts a more thorough investigation. Sec’y of Labor on behalf of Bussanich v.
Centralia Mining Co., 22 FMSHRC 153, 157 (Feb. 2000) (“The Mine Act’s legislative history
defines the ‘not frivolously brought’ standard as indicating that a miner’s ‘complaint appears to
have merit.’”) (citation omitted). Second, if, after further investigation, the Secretary determines
that a violation of section 105(c) has occurred, the Secretary files a complaint with the
Commission on the miner’s behalf, which validates the initial finding of non-frivolousness and
the miner’s initial complaint of discrimination. In such circumstances, the Secretary is acting on
the miner’s complaint, which has merged with the Secretary’s complaint. Temporary
reinstatement continues until there is a final order on the miner’s complaint as advanced by the
Secretary in the section 105(c)(2) proceeding.
This contrasts with the terms of section 105(c)(3). Under that section, if the Secretary,
upon investigation, determines that section 105(c)(1) has not been violated, the miner has the
right to file a new, separate “action” charging discrimination with the Commission. Section
105(c)(3) also describes the time within which the Secretary must notify the miner of that
negative determination as being within 90 days after the receipt “of a complaint filed under
paragraph (2).” 30 U.S.C. § 815(c)(3). We conclude that Congress’s reference to the documents
filed under section 105(c)(2) as “complaints” and to the filing of an “action” under section
105(c)(3) was intentional.
See Russello v. United States, 464 U.S. 16, 23 (1983) (providing that
where Congress uses a particular phrase in one section but omits it in another, the difference in
language is presumed to be intentional). Therefore, based on the plain language of sections
105(c)(2) and (c)(3), 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).
We next consider what is meant by the term “final order” in section 105(c)(2). The term
“order” is used in section 105(c) to refer to action by the Commission in terms of issuing an
order of temporary reinstatement; issuing an order affirming, modifying, or vacating the proposed
order set forth in the Secretary’s complaint; or issuing an order dismissing or sustaining a miner’s
charges under section 105(c)(3). In contrast, sections 105(c)(2) and 105(c)(3) consistently refer
to the Secretary’s conclusion regarding whether a violation of section 105(c)(1) had occurred as a
“determination.” Thus, the Secretary’s conclusion regarding whether her investigation revealed
discrimination is a “determination,” not an order. In addition, although the Secretary may
include a proposed order for the Commission’s consideration in her complaint filed under section
105(c)(2), only the Commission may issue an “order” under section 105(c).
Furthermore, we find it instructive that section 105(c) describes when a Commission
order becomes “final.” Sections 105(c)(2) and 105(c)(3) explicitly provide that the “order”
issued by the Commission becomes “final 30 days after its issuance.” 30 U.S.C. §§ 815(c)(2) &
(c)(3) (emphasis added). Thus, it is clear from the language of the Act that “final order” in
section 105(c)(2) refers to a final Commission order.
Considering the language discussed above regarding what is meant by “complaint,” with
the language regarding what is meant by “final order,” we conclude that a temporary
reinstatement order remains effective pending the final order of the Commission on a complaint
filed under section 105(c)(2). Therefore, if the Secretary determines that there has been no
discrimination, the temporary reinstatement order would cease to be effective, and the judge
should issue an order dissolving the temporary reinstatement and dismissing the temporary
reinstatement proceeding.
If the Secretary determines that there has been discrimination and
files a complaint on the miner’s behalf, the temporary reinstatement order would remain in effect
until the judge’s decision disposing of the merits of the complaint, or the Commission’s decision
or court’s decision, in the event of appeal, becomes final by the passage of 30 days.
Chairman Jordan argues that the terms of section 105(c)(2) mandate that temporary
reinstatement remains in effect until there has been a final Commission order on the complaint
the miner filed with the Secretary, and that such an order cannot issue in the temporary
reinstatement proceeding. Slip op. at 17-18. We cannot agree with such reasoning as it proves
too much. While the miner is, as Chairman Jordan states, “entitled” to file an action pursuant to
section 105(c)(3) when the Secretary refuses to file a 105(c)(2) discrimination claim on his
behalf, the miner is by no means required to do so, and may chose not to file such an action.
Nevertheless, under Chairman Jordan’s reading of the statute, if temporary reinstatement had
been previously ordered, it could not be dissolved when a miner chooses not to proceed under
section 105(c)(3) because there was and never will be a Commission “final order” on the miner’s
discrimination complaint filed with MSHA. We cannot agree that Congress intended such a
result, and thus we reject that interpretation in favor of an one much more in keeping with how
temporary reinstatement under section 105(c)(2) has worked in practice – it remains in place only
as long as the Secretary is investigating and pursuing the miner’s claim of discrimination.
We are not troubled by concluding that a final order issued by the judge dissolving
temporary reinstatement rests on a determination by the Secretary that there has been no violation
of section 105(c), rather than on the judge’s findings of fact developed from a record during a
hearing. The Secretary was given authority by Congress to determine as an initial matter whether
a violation of section 105(c)(1) has occurred, as is evident by statutory language that (1) requires
the miner to file his or her complaint with the Secretary, and not with the Commission,
(2) requires the Secretary to investigate that complaint “as [she] deems appropriate,”
and (3) requires the Secretary to file with the Commission a complaint on behalf of the complaining
miner, applicant for employment or representative of miners alleging discrimination and
proposing an order “[i]f upon such investigation, the Secretary determines that the provisions of
this subsection have been violated.” 30 U.S.C. § 815(c)(2). If, however, the Secretary
determines that no violation has occurred after administrative investigation and evaluation, the
miner is still entitled to seek a hearing in a section 105(c)(3) proceeding.
In fact, the language of section 105(c)(2) makes clear that the Commission is required to
afford the opportunity for a hearing and issue an order based on findings of fact regarding the
allegations of discrimination only in circumstances in which the Secretary has determined, upon
further investigation, that a violation of section 105(c) has occurred. Under section 105(c)(2), the
Commission must “afford an opportunity for a hearing . . . and thereafter . . . issue an order,
based upon findings of fact, affirming, modifying, or vacating the Secretary’s proposed order, or
directing other appropriate relief.” 30 U.S.C. § 815(c)(2) (emphasis added). The Secretary’s
proposed order is only before the Commission in circumstances in which the Secretary has filed a
complaint after determining that her investigation reveals a violation of section 105(c).
Thus, it is apparent from the language of the statute that Congress intended a two-track
system for discrimination complaints under the Mine Act. Under Section 105(c)(2), the
complaint to the Secretary is merged into, and subsumed by, the Secretary’s own complaint for
redress of the alleged discrimination. A complainant is required to bring the issue to the
Secretary and may not initiate an action with the Commission. In the event the Secretary finds
that the Act may have been violated, it is her obligation to file a complaint with the Commission.
There is clear continuity of action, and the “complaint” upon which the order for temporary
reinstatement is based is the same “complaint” submitted by the Secretary.
The Secretary in that
instance is the advocate for both the miner’s private rights and the public interest.
Conversely, if the Secretary finds that the Act was not violated, she has made a
determination with legal effect and consequences. As the Act makes clear, a person whose
complaint is investigated and found to be unsupported may proceed, but by “fil[ing] an action in
his own behalf before the Commission.” 30 U.S.C. § 815(c)(3) (emphasis added). This is
necessary because once the Secretary has determined that a violation has not occurred, the
original complaint – which was made to the Secretary, and not to the Commission – has no
continuing legal status. A person wishing to bring the issues contained therein before the
Commission must therefore initiate a new action.
In that context, it is notable that section 105(c)(2) expressly provides for temporary
reinstatement, while section 105(c)(3) does not. We agree with the judge’s determination that
the inclusion of this remedy in one subsection and omission in the other is presumptively
intentional. See Russello v. United States, 464 U.S. at 23. While temporary reinstatement may
have been imposed on a finding that the complaint was not frivolously made, it is important to
remember that this early determination is made before the Secretary has conducted the
investigation commanded by the Mine Act. At the conclusion of the investigation, the Secretary
must decide whether or not the Act has been violated. We rightly presume that the Secretary has
faithfully performed her duty and, while that does not preclude the possibility that a violation of
the Act may yet be found, it certainly stands in sharp contrast to the circumstances present when
the initial complaint is filed, before there has been any exposition of the issue.
2. Legislative History and Statutory Structure
The rationale for temporary reinstatement is evident from changes made to the anti-discrimination provisions of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§ 801 et seq. (1976) (amended 1977) (“Coal Act”). Under the Coal Act, a miner was responsible
for pursuing his own discrimination case and filed the case at his own expense with his own
counsel. See 30 U.S.C. § 820(b)(2) (1976) (amended 1977). Temporary reinstatement was not
provided for under the Coal Act. Under section 105(c)(2) of the Mine Act, however, the
Secretary has the exclusive duty to conduct the initial investigation, and retains effective legal
control over the issues when she brings an action on a miner’s behalf. Notwithstanding that the
Secretary is directed in the Mine Act to complete her investigation within 90 days, Congress
feared that a prolonged investigation under section 105(c)(2) of the Mine Act would impose an
economic hardship on the miner since, unlike under the Coal Act, the miner was not in charge of
his or her own case. To rectify the problem, Congress developed the remedy of temporary
reinstatement in order to protect the miner from bureaucratic delay.
Such reasons justifying temporary reinstatement do not apply in a section 105(c)(3)
proceeding under the Mine Act. In a section 105(c)(3) proceeding, the miner brings his own
action at his own expense and is in charge of his case. Miners proceeding under section
105(c)(3) of the Mine Act are in much the same position they were in under the Coal Act. Under
those circumstances, the need to account for harm caused by any bureaucratic delay does not
exist.
This reading of the statutory language is supported by the Conference Report pertaining
to section 105(c) of the Mine Act. The Conference Report provides in part:
To protect miners from the adverse and chilling effect of
loss of employment while such matters are being investigated, the Senate bill provided that if the Secretary determined that any such complaint was not frivolously brought, the Secretary seek temporary reinstatement of the complaining miner pending final outcome of the investigation and the Commission order such reinstatement, after expedited proceedings. The House amendment contained no such provision.
The Senate bill provided that upon completion of the
investigation, if the Secretary found that there had been such
discrimination, he immediately file a complaint with the
Commission, with copies to the complaining party and the violator.
The Commission, after affording the parties an opportunity for a
hearing, could order appropriate relief . . . .
. . . .
Under the Senate bill, a complaining party could, within 30
days of an adverse determination by the Secretary, file an action
with the Commission on his own behalf. . . .
. . . .
The conference substitute conforms to the Senate bill . . . .
S. Conf. Rep. No. 95-461, at 52-53 (1977), reprinted in Legislative History of the Federal Mine
Safety and Health Act of 1977 (“Legis. Hist.”), at 1330-31 (emphases added). Thus, the
Conference Report reveals that temporary reinstatement was a remedy fashioned to protect
miners from the adverse effect of loss of employment during the Secretary’s investigation. In
addition, the Conference Report distinguishes between the initiating documents in section
105(c)(2) as “complaints,” and the initiating document under section 105(c)(3) as an “action.”
As the judge reasoned, the remedial provisions of sections 105(c)(2) and 105(c)(3)
represent a balancing of interests by Congress. 30 FMSHRC at 1122. By providing temporary
reinstatement under section 105(c)(2), Congress determined that operators should bear the greater
economic burden during her investigation, and continuing once the Secretary has concluded that
a miner’s discrimination complaint has merit. However, if the Secretary determines that the
miner’s discrimination complaint does not have merit, i.e., that a violation of the Act has not
occurred, the balance would tip in favor of the operator’s interest in controlling its workforce.
As noted by the judge, the Eleventh Circuit stated that deprivation of an employer’s right to
control the makeup of its workforce is only a “temporary one that can be rectified by the
Secretary’s decision not to bring a formal complaint or a decision on the merits in the employer’s
favor.” Jim Walter Res. v. FMSHRC, 920 F.2d 738, 748 n.11 (11th Cir. 1990) (emphasis in
original).
Our reading of the Mine Act is also consistent with the Commission’s historic reading of
the statute, as embodied in its former procedural rule pertaining to temporary reinstatement.
Rule 45(g) formerly provided that, “If, following an order of temporary reinstatement, the
Secretary determines that the provisions of section 105(c)(1), 30 U.S.C. 815(c)(1), have not been
violated, the Judge shall be so notified and shall enter an order dissolving the order of
reinstatement.” 29 C.F.R. § 2700.45(g) (2005). The sentence requiring the judge to dissolve the
order of reinstatement was in place from the inception of the Commission’s rule implementing
the temporary reinstatement provisions of the Mine Act in 1979 and remained unchanged until
the Commission’s rulemaking in 2006.
In the absence of any compelling contrary argument, we
are reluctant to overturn an interpretation which existed without challenge for almost 30 years.
3. Conclusion
In sum, we conclude that the language of sections 105(c)(2) and 105(c)(3) and relevant
legislative history demonstrate that Congress directly spoke to the issue in this case: a temporary
reinstatement order may not remain in effect after the Secretary has made a determination that no
discrimination has occurred, and a temporary reinstatement order may not remain in effect during
a section 105(c)(3) proceeding.
Even if the Act were silent or ambiguous on the question at issue, however, we would
reach the same conclusion. The Secretary (S. Br. at 23), along with Commissioner Cohen, would
have us defer to the Secretary’s interpretation of the Mine Act, but we fail to see how the
Secretary is owed deference on the question of whether temporary reinstatement should continue
after the Secretary has made a determination of no discrimination. Deference under Chevron II is
owed to an agency’s interpretation when the statutory provision being interpreted is one the
agency is “charged with administering.” Energy West, 40 F.3d at 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844). The Secretary, by declining to pursue a miner’s claim of
discrimination, essentially removes herself from the case.
Once that occurs in future cases,
it will certainly not be the Secretary that is
“administering” the Mine Act. The question of whether the miner was discriminated against can
then only take place in a section 105(c)(3) proceeding, a proceeding that is essentially a private
right of action. If any agency will be said to be “administering” the Mine Act at that point, it
would be this Commission, which, among other things, will be charged with interpreting the
discrimination provisions of section 105(c) to determine whether discrimination occurred, the
Secretary’s determination notwithstanding. Consequently, we look not to the Secretary’s
interpretation of section 105(c) to see whether the temporary reinstatement protections in section
105(c)(2) carry forward into section 105(c)(3) proceedings, but rather our own.
Commissioner Cohen asserts that we have mischaracterized the Secretary’s role in this
case. However, his description of the procedure under section 105(c), slip op. at 29-30, misstates
the process by which the Secretary relinquishes her involvement in the case and simplifies the
problem before us by assuming away the issue. Commissioner Cohen says that “[t]he fact that
the Secretary has determined that a miner has not demonstrated discrimination in a particular
case does not change the Secretary’s interest in ensuring that miners who file section 105(c)(3)
actions are entitled, as a class, to continue temporary reinstatement until a final order of the
Commission.” Id. at 29 (emphasis added). First of all, it is not the miner’s responsibility to
“demonstrate discrimination.” Rather, it is the Secretary’s duty to initiate an appropriate
investigation to determine whether discrimination has occurred. 30 U.S.C. § 815(c)(2). Second,
when the Secretary has made a determination that there has been no discrimination, there is no
basis for her interest in continuing temporary reinstatement. The presumption of discrimination
that underlies temporary reinstatement cannot exist in a section 105(c)(3) proceeding because the
fact of violation is the ultimate issue we are called upon to decide. Third, Commissioner
Cohen’s assumption runs counter to the procedural posture of every section 105(c)(3) case
brought before us. In that regard, we note that the end result of the investigation required by
section 105(c)(2) is a finding by the Secretary either that (1) a violation of the law has occurred,
in which case the procedure and her duty are outlined in the subsection, or (2) a violation has not
occurred, in which case the Secretary, through her own actions and determination, is no longer a
party in the case. Thus, the Secretary must initiate an investigation and must pursue the miner’s
complaint if she believes the anti-discrimination provisions of the Act have been violated and
may only elect, in her sole discretion as the “enforcer of the Act,” not to pursue the Miner’s
complaint when she has determined that the provisions of the Act have not been violated.
In sum, the mere fact that the Secretary appears before us as an amicus does not
determine the weight we afford her view; rather, it is the fact that she attained that status through
what we must presume to be a scrupulous and diligent exercise of her authority, leading to a
finding that the operator did not discriminate against the complainant and that it would therefore
be inappropriate to continue with a public prosecution of the complaint. The cases cited by
Commissioner Cohen, slip op. at 30 n.4, conferring deference or weight to an agency’s
interpretation, even as a nonparty, do not involve the agency’s deliberate, negative determination
on the question at issue and are therefore distinguishable.
Finally, even if we were to consider deferring to the Secretary’s interpretation of sections
105(c)(2) and 105(c)(3), we would conclude that her interpretation is unreasonable because it is
inconsistent with the statutory language, relevant legislative history, and the Commission’s own
experience with section 105(c)(3) cases, as discussed above. See Lancashire Coal Co. v. Sec’y of
Labor, 968 F.2d 388, 393 (3d Cir. 1992) (“[W]e cannot conclude that the Secretary’s
interpretation is reasonable in this case insofar as it conflicts with the language of the statute.”);
cf. Sec’y of Labor v. FMSHRC, 111 F.3d 913, 920 (D.C. Cir. 1997) (finding Secretary’s
interpretation reasonable where it was consistent with the statutory language, legislative history
and legislative purpose).
For the reasons discussed above, we would affirm in result the judge’s dissolution of the
order of temporary economic reinstatement and his dismissal of the temporary reinstatement
proceeding.
____________________________________
Michael F. Duffy, Commissioner
____________________________________
Michael G. Young, Commissioner
Chairman Jordan, in favor of reversing the Judge’s order:
Under the Mine Act, a miner’s temporary reinstatement remains in effect “pending final
order on the complaint.” 30 U.S.C. § 815(c)(2). Because the plain language of the statute
mandates that temporary reinstatement continue until the Commission issues a final order
regarding the merits of the miner’s allegations of discriminatory conduct, I would reverse the
judge’s order dissolving the miner’s temporary reinstatement in this case.
A miner who alleges an illegal discharge may obtain temporary reinstatement in
accordance with section 105(c), which provides in relevant part:
[a]ny miner . . . who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person in
violation of this subsection may . . . file a complaint with the
Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall . . . cause such investigation to be
made as he deems appropriate. Such investigation shall commence
within 15 days of the Secretary’s receipt of the complaint, 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.
30 U.S.C. § 815(c)(2) (emphasis added).
Upon completion of her investigation, the Secretary makes a determination as to whether
discrimination occurred. If the Secretary determines that the Act was violated, she must
“immediately file a complaint with the Commission.” Id. If the Secretary concludes that no
violation occurred, she must notify the miner of that fact and the miner, pursuant to section
105(c)(3), has the right to “file an action in his own behalf before the Commission, charging
discrimination or interference in violation of paragraph (1).” 30 U.S.C. § 815(c)(3). The issue in
this case is whether the temporary reinstatement remains in effect while the miner proceeds on
his own behalf to litigate his or her discrimination claim before the Commission.
As in other cases involving statutory interpretation, we must determine “whether
Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). The Supreme Court emphasized in Chevron
that, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. As
demonstrated below, Congress intended the temporary reinstatement of a miner to continue until
there is a final Commission order on the merits of the miner’s claim that he or she was
discriminated against because of safety activity.
Section 105(c)(2) provides for temporary reinstatement “pending final order on the
complaint.” The Secretary’s decision not to go forward on the miner’s discrimination case is not
a final order on the complaint. On this point I agree with my affirming colleagues, who state that
“only the Commission may issue an ‘order’ under section 105(c).” Slip op. at 7. Pursuant to the
split enforcement scheme envisioned by Congress, it is the Secretary who investigates miners’
complaints of discrimination and issues proposed orders, but it is only the adjudicatory body –
the Commission – that issues final orders pertaining to the litigation. See 30 U.S.C. § 815(c)(2)
and (c)(3). The word “order” appears in section 105(c) nine times, always referring to a
Commission order (either an order granting temporary reinstatement, an order disposing of a
complaint filed by the Secretary on behalf of a miner under section 105(c)(2), or an order
disposing of an action filed by a miner under section 105(c)(3)). As my colleagues correctly
point out, “the Secretary’s conclusion regarding whether her investigation revealed
discrimination is a ‘determination,’ not an order.” Slip op. at 7.
The Mine Act sets forth the method by which the Commission issues a final order in a
discrimination proceeding. If, after conducting her investigation, the Secretary decides that the
Act has been violated, pursuant to section 105(c)(2) she is required to file a complaint with the
Commission and to “propose an order granting appropriate relief.” 30 U.S.C. § 815(c)(2). The
Commission, after affording an opportunity for a hearing, is required to “issue an order, based
upon findings of fact, affirming, modifying, or vacating the Secretary’s proposed order, or
directing other appropriate relief.” Id. The Commission’s order “become[s] final 30 days after
its issuance.” Id.
If the Secretary notifies the miner of her determination that no violation of section
105(c)(1) occurred, “the complainant,” pursuant to section 105(c)(3), is entitled to “file an action
in his own behalf before the Commission.” 30 U.S.C. § 815(c)(3). The Commission is required
to afford an opportunity for a hearing and to “issue an order based upon findings of fact,
dismissing or sustaining the complainant’s charges and, if the charges are sustained, granting
such relief as it deems appropriate. . . .” Id. This Commission order “become[s] final 30 days
after its issuance.” Id.
Thus, in accordance with the plain meaning of the statute, there is no “final order on the
complaint” until the Commission issues an order which either affirms, modifies, or vacates 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). It is clear that a final order in either
case must be based on the Commission’s findings of fact and the Commission’s determination of
whether discriminatory conduct in violation of section 105(c)(1) occurred.
A miner who has been granted temporary reinstatement is entitled to remain in that status
“pending final order on the complaint.” 30 U.S.C. § 815(c)(2). There has been no final
Commission order on Mr. Phillips’ complaint, and, therefore, the statutory prerequisite that
would justify dissolution of Mr. Phillips’ temporary reinstatement order is lacking. Although my
affirming colleagues appear to treat it as such, the judge’s November 26, 2008 order dissolving
Mr. Phillips’ temporary reinstatement cannot constitute the prerequisite “final order on the
complaint.” To consider it in this manner would amount to a ruling that the final order on the
complaint, necessary to dissolve the temporary reinstatement, is the order dissolving the
temporary reinstatement.
The judge did not dissolve Mr. Phillips’ temporary reinstatement because of a final
Commission order. The judge never considered the merits of Mr. Phillips’ claim. The sole basis
of the judge’s decision was the Secretary’s determination that a violation of section 105(c) had
not occurred, and her notification that she would not be filing a complaint on Mr. Phillips’
behalf. According to the judge: “A final order on the miner’s complaint is reached when the
Secretary advises the miner, as she has done in this proceeding, that ‘[y]our complaint of
discrimination under Section 105(c) has been investigated . . . [and] MSHA has determined that
facts disclosed during the investigation . . . do not constitute a violation of section 105(c).’” 30
FMSHRC 1119, 1121 (Nov. 2008) (ALJ).
Having agreed that the Secretary’s determination regarding the results of her investigation
does not constitute a final order under section 105(c), (“the Secretary’s conclusion . . . is a
‘determination’ not an order,” slip op. at 7), my affirming colleagues nevertheless proceed to
make the duration of the temporary reinstatement contingent on just this determination. Ignoring
the statute’s plain language, they conclude: “[I]f the Secretary determines that there has been no
discrimination, the temporary reinstatement order would cease to be effective, and the judge
should issue an order dissolving the temporary reinstatement and dismissing the temporary
reinstatement proceeding.” Slip op. at 8. The statute requires a final order from the
Commission, not a determination from the Secretary, in order to dissolve a grant of temporary
reinstatement. My colleagues fail to realize that the judge lacked the necessary statutory
prerequisite for dissolving the temporary reinstatement because no final order had been issued on
Mr. Phillips’ complaint.
My colleagues have been led astray by their narrow focus on section 105(c)(3)’s reference
to the complainant’s right to file an “action” in his own behalf before the Commission.
They
consider the reference to filing an “action” under section 105(c)(3) as an indication that there no
longer exists a complaint that can be the subject of a Commission order. Since temporary
reinstatement stays in effect pending the Commission’s “final order on the complaint,” initiating
an “action” under section 105(c)(3) must, in their view, extinguish the miner’s temporary
reinstatement. My colleagues’ position is untenable in light of the pertinent statutory language
and the Commission case law.
Much as my colleagues would like to erect an impenetrable analytical barrier between the
miner’s initial filing of a discrimination complaint to the Secretary and the miner’s subsequent
action before the Commission, neither the statutory language nor the Commission case law
permit them to do so. Although section 105(c)(3) refers to an “action” before the Commission,
the person who files this action is referred to as the “complainant.” 30 U.S.C. § 815(c)(3)
(emphasis added). Thereafter, the Commission is instructed to afford an opportunity for a
hearing and to “issue an order based upon findings of fact, dismissing or sustaining “the
complainant’s” charges.” Id. (emphasis added). The reference to “complainant” is an
acknowledgment that the proceeding under section 105(c)(3) involves the same alleged
discriminatory conduct that prompted the miner’s complaint to the Secretary under section
105(c)(2). The statute does not direct the miner to file a complaint under section 105(c)(3)
because the miner has already filed a complaint. That is why the miner is referred to in section
105(c)(3) as the “complainant.”
Commission rulings have made that fact clear. In Hatfield v. Colquest Energy, Inc., 13
FMSHRC 544 (Apr. 1991), the operator argued that the complainant’s amended filing pursuant
to section 105(c)(3) differed too substantially from his complaint filed with the Secretary. The
Commission agreed that the proceeding under section 105(c)(3) must be based on the matter
initially investigated by the Secretary under section 105(c)(2) or else “the statutory prerequisites
for a complaint pursuant to § 105(c)(3) have not been met.” Id. at 546 (emphasis added). Accord
Sec’y of Labor on behalf of Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009 (June 1997). The
Commission’s reference to the section 105(c)(3) proceeding as a “complaint” in Hatfield was not
an isolated occurrence. In Roland v. Sec’y of Labor, 7 FMSHRC 630 (May 1985), the
Commission pointed out that “[s]hould the Secretary determine that no discrimination has
occurred, the miner, pursuant to section 105(c)(3) . . . may file a discrimination complaint on his
own behalf before the Commission.” 7 FMSHRC at 635 (emphasis added).
Resort to the legislative history of the Mine Act merely underscores the strained nature of
my colleagues’ reading of the statute. Citing the Conference Report language that “[u]nder the
Senate bill, a complaining party could, within 30 days of an adverse determination by the
Secretary file an action with the Commission on his own behalf,” slip op. at 11 (emphasis
added), my colleagues omit the sentence that follows, which states that:
The Commission must afford an opportunity for a hearing, and
thereafter, issue an order, based upon findings of fact, dismissing
or sustaining the complaint, and granting such relief as may be
appropriate. If the complainant prevailed in an action which he
brought himself after the Secretary’s determination, the
Commission order would require that the violator pay all expenses
reasonably incurred by the complainant in bringing the action.
S. Conf. Rep. No. 95-461, at 52-53 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1330
(1978) (“Legis. Hist.”) (emphases added).
The Commission’s Procedural Rules also demonstrate that the significance my colleagues
place on the use of the word “action” in section 105(c)(3) (as opposed to the word “complaint” in
section 105(c)(2)) is misplaced. Our rule clearly contemplates that a miner filing a claim under
section 105(c)(3) does so by filing a “complaint.” Procedural Rule 40(b), 29 C.F.R.
§ 2700.40(b), states:
A discrimination complaint under section 105(c)(3) of the Act, 30
U.S.C. 815(c)(3), may be filed by the complaining miner,
representative of miners, or applicant for employment if the
Secretary, after investigation, has determined that the provisions of
section 105(c)(1) of the Act, 30 U.S.C. 815(c)(1), have not been
violated.
Additional language in the Mine Act refutes the contention that Congress considered
claims brought under section 105(c)(2) and (c)(3) to be such entirely separate proceedings, that
they deemed it appropriate to provide temporary reinstatement pursuant to only one of them.
Section 105(c)(3) states that “[p]roceedings under this section shall be expedited by the Secretary
and the Commission.” 30 U.S.C. § 815(c)(3). This mandate, however, undeniably applies to
section 105(c)(2) actions as well (otherwise the reference to the Secretary makes no sense).
Indeed, the Commission has interpreted it in this manner. See Sec’y of Labor on behalf of Noe v.
J & C Mining, LLC, 22 FMSHRC 705, 706 (June 2000) (stating, in a section 105(c)(2) case, that
“the Commission will be expediting these proceedings as it is statutorily required to do”).
Likewise, section 105(c)(3) refers to Commission orders issued “under this paragraph” being
“subject to judicial review in accordance with section 106.” 30 U.S.C. § 815(c)(3). Clearly,
however, a Commission order issued under section 105(c)(2) is also subject to judicial review.
My affirming colleagues contend that temporary reinstatement is designed to protect
miners “from the adverse effect of loss of employment during the Secretary’s investigation.”
Slip op. at 11. Not only is this position contrary to the statutory language (which provides for
temporary reinstatement pending final order on the complaint, not pending the resolution of the
Secretary’s investigation), the literal application of this principle would result in the dissolution
of the temporary reinstatement order upon conclusion of the Secretary’s investigation, even if the
Secretary determines that section 105(c)(1) was violated. That the temporary reinstatement
provision was hardly viewed in the cramped fashion suggested by my colleagues is evidenced by
the Senate Report, wherein the drafters explained that:
The Committee feels that this temporary reinstatement is an
essential protection for complaining miners who may not be in the
financial position to suffer even a short period of unemployment or
reduced income pending the resolution of the discrimination
complaint.
S. Rep. No. 95-181, at 37, Legis. Hist. at 625.
Because, under section 105(c)(3), a miner “brings his own action at his own expense and
is in charge of his case,” slip op. at 10, my affirming colleagues have concluded that the need to
account for harm due to “bureaucratic delay” does not exist. Id. Underlying this statement is the
unsubstantiated notion that somehow a miner in a section 105(c)(3) proceeding will be able to
control how quickly his or her case is resolved. Their own reference to a section 105(c)(3) case
that took four-and-a-half years to decide belies this contention. Slip op. at 11-12 n.7 (citing Price
v. Monterey Coal Co., 12 FMSHRC 1505 (Aug. 1990)). My affirming colleagues are concerned
that, “if a miner remains temporarily reinstated during a section 105(c)(3) proceeding there is
little incentive for the miner to advance the proceeding expeditiously.” Slip op. at 12 n.7. Of
course, the corollary to this concern is that when the complainant miner is not temporarily
reinstated, there is every incentive for the respondent mine operator to delay the section 105(c)(3)
proceeding. While both scenarios are problematic, the appropriate question for us to consider is,
which one caused Congress greater concern?
By making temporary reinstatement dependent on a determination that the miner’s
discrimination claim is “not frivolously brought,” 30 U.S.C. § 815(c)(2), Congress “clearly
intended that employers should bear a disproportionately greater burden of the risk of an
erroneous decision in a temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC,
920 F.2d 738, 748 n.11 (11th Cir. 1990).
While the employer’s loss of its ability to control its
workforce is not to be taken lightly, the legislative history of the Mine Act indicates that section
105(c)’s prohibition against discrimination is to be “construed expansively to assure that miners
will not be inhibited in any way in exercising any rights afforded by the legislation.” S. Rep. No.
95-181, at 36, Legis. Hist. at 624. Recognizing the important role that individual miners play in
ensuring a safe and healthy working environment, Congress was also acutely aware that “mining
often takes place in remote sections of the country where work in the mines offers the only real
employment opportunity.” S. Rep. No. 95-181, at 35, Legis. Hist. at 623. The temporary
reinstatement provision was viewed as “an essential protection” for miners who might not be
able “to suffer even a short period of unemployment.” S. Rep. No. 95-181, at 37, Legis. Hist. at
625. This Congressional balancing of equities applies equally to a section 105(c)(2) case brought
by the Secretary, and to a section 105(c)(3) claim, brought by the miner on his own behalf after
the Secretary declines to go forward.
Temporary reinstatement is imposed pursuant to a Commission order that the miner’s
discrimination claim was not frivolously made. The Secretary’s decision not to proceed with the
discrimination complaint does not transform that complaint into a frivolous action. To hold
otherwise would require us to conclude that Congress implemented a statutory provision (section
105(c)(3) of the Mine Act) devoted to the litigation of frivolous claims. To the contrary, not only
does the Secretary’s negative determination not reduce the complaint to a frivolous claim, the
Commission has explicitly acknowledged that it “may find discrimination where the Secretary
has not” and that “the Secretary’s determination not to prosecute [a] discrimination case . . . is
not probative of whether [the operator] discriminated against the miners.” Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1117 (July 1995). Indeed, there have been numerous cases in
which the Secretary declined to file a complaint and the miner successfully proceeded on his own
behalf. See, e.g., Ross v. Shamrock Coal Co., 15 FMSHRC 972, 974-76 (June 1993); Meek v.
Essroc Corp., 15 FMSHRC 606, 612-13 (Apr. 1993)); Womack v. Graymont Western US, Inc.,
25 FMSHRC 235, 261-63 (May 2003) (ALJ); Adkins v. Ronnie Long Trucking, 21 FMSHRC
171, 176-77 (Feb. 1999) (ALJ); Paul v. Newmont Gold Co., 18 FMSHRC 181, 191 (Feb. 1996)
(ALJ).
Consequently, since the Secretary’s decision not to go forward on Mr. Phillips’ behalf
does not vitiate the previous non-frivolous finding regarding his complaint, the temporary
reinstatement, which is based on that nonfrivolous finding, must remain in effect “pending final
order on the complaint.”
Balancing the equities does not require the opposite conclusion.
Requiring the temporary reinstatement to remain in effect pending the miner’s litigation under
section 105(c)(3) is no more inequitable than the Commission’s determination that a temporary
reinstatement order remains in effect pending appeal to the Commission, notwithstanding the fact
that a Commission judge concluded, subsequent to a hearing on the merits, that no discrimination
occurred. See Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite Co., 21 FMSHRC
947, 949 (Sept. 1999). In Bernardyn, the Commission recognized that the statutory language,
providing for temporary reinstatement “pending final determination on the merits of the
complaint,” required this result. 21 FMSHRC at 950.
In conclusion, in passing the Mine Act, Congress created two different mechanisms for
bringing discrimination complaints, under which either the Secretary or the claimant may
prosecute the case. Under either procedure, the same underlying complaint (filed initially with
MSHA) is at issue. The statute clearly states that a temporary reinstatement order remains in
effect pending a final Commission order on this complaint. Here, there has been no such final
order on the miner’s complaint. Accordingly, I would reverse the judge’s decision.
____________________________________
Mary Lu Jordan, Chairman
Commissioner Cohen, in favor of reversing the Judge’s order:
This case presents the question of whether a temporary reinstatement order remains in
effect after the Secretary determines that the anti-discrimination provisions of the Mine Act, 30
U.S.C. § 815(c), have not been violated. The relevant Mine Act language states that, after a
determination that a discrimination complaint was not “frivolously brought,” the Commission
“shall order the immediate reinstatement of the miner pending final order on the complaint.” 30
U.S.C. § 815(c)(2). The resolution of this issue involves identifying the proper interpretation of
“final order” and “complaint” in this section of the statute. Although I agree with my colleague,
Chairman Jordan, that a temporary reinstatement order stays in effect pending resolution of a
discrimination complaint filed with the Mine Safety and Health Administration (“MSHA”), I
reach this conclusion by way of a different analysis, and therefore write separately, as I find that
the statutory language at issue is ambiguous.
The first inquiry in statutory construction is “whether Congress has directly spoken to the
precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842
(1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43; accord
Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990).
If, however, the
statute is ambiguous or silent on a point in question, a second inquiry, commonly referred to as a
“Chevron II” analysis, is required to determine whether an agency’s interpretation of a statute is a
reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2;
Keystone, 16 FMSHRC at 13. Under Chevron II, deference is accorded to “an agency’s
interpretation of the statute it is charged with administering when that interpretation is
reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844). The agency’s interpretation of the statute is entitled to affirmance as
long as that interpretation is one of the permissible interpretations the agency could have
selected. See Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996),
cert. denied, 520 U.S. 1209 (1997) (citing Chevron, 467 U.S. at 843); Thunder Basin Coal Co. v.
FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
The operator contends that the plain meaning of the Mine Act requires that the temporary
reinstatement order be dissolved if the Secretary does not file a complaint on behalf of the miner.
A & S Br. at 7. My colleagues Commissioners Duffy and Young agree with the operator. On the
other hand, the Secretary asserts that the plain meaning of the statute mandates that a temporary
reinstatement order remain in effect until the Commission issues a final order on the merits of the
miner’s underlying discrimination complaint. S. Br. at 10. My colleague Chairman Jordan
agrees with the Secretary. The parties’ insistence that the statutory language is clear, coupled
with their equally emphatic contentions proposing contradictory interpretations of that language,
suggests that the Mine Act is actually ambiguous on this question.
In order to determine whether Congress’ intention as to the question at issue can be
gleaned from the “plain meaning” of the statutory language, we employ the “traditional tools of
statutory construction.” Natural Res. Def. Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C.
Cir. 1995) (quoting Chevron, 467 U.S. at 843 n.9). These include examination of the statute’s
text, legislative history, and structure, as well as its purpose. See Bell Atlantic Telephone
Companies v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997). As the D.C. Circuit recognized in
Bell Atlantic, a court utilizes the text, history, and purpose of a statute to determine whether they
convey a plain meaning that requires a certain interpretation. Id. at 1049 (emphasis in original).
Statutory language is considered ambiguous if reasonable minds may differ as to its
meaning, and when, as in this case, it is open to two or more constructions. 73 Am. Jur. 2d
Statutes § 114. Consequently, we must determine “whether the language of [the] statute is
susceptible to more than one natural meaning.” Taing v. Napolitano, 567 F.3d 19, 23 (1st Cir.
2009) (citation omitted). Here, the parties differ strenuously as to the “plain meaning” of the
statute’s text, its structure, its legislative history, and its purpose.
As to the text, the parties disagree about the plain meaning of the words “final order” and
“complaint” in the phrase “immediate reinstatement of the miner pending final order on the
complaint” in section 105(c)(2), and offer several competing interpretations. The Secretary
argues that the words refer to the Commission’s final order on the miner’s underlying complaint
of discrimination. S. Br. at 10-15. A&S, echoing the judge, 30 FMSHRC at 1121, contends that
the “final order” occurs when the Secretary’s involvement ends, after the investigatory findings
do not show a violation of section 105(c)(1). In its reply brief, A&S argues that a “final order” of
the Commission can arise out of the Secretary’s investigatory determination, just as a final order
can arise out of an operator’s failure to timely contest a proposed assessment by the Secretary
under sections 105(a) and (b). A&S R. Br. at 3-5. A&S also states that the judge’s order
dismissing the case when the Secretary chose not to proceed constitutes a final order of the
Commission. Id. at 4.
Likewise, my colleagues disagree as to the “plain meaning” of the text. Commissioners
Duffy and Young assert that the textual language means that the temporary reinstatement order
remains effective pending the Commission’s final order on the miner’s discrimination complaint
to the Secretary under section 105(c)(2), and that this final order occurs when the judge, upon
notification by the Secretary of a determination of no discrimination under section 105(c)(1),
issues an order dissolving temporary reinstatement and dismissing the temporary reinstatement
proceeding. Slip. op. at 8. On the other hand, Chairman Jordan agrees with the Secretary that
the textual language refers to the Commission’s final order disposing of the miner’s complaint of
discrimination to MSHA. Chairman Jordan disputes Commissioners Duffy and Young, arguing
that the final order on which the dissolution of temporary reinstatement is predicated cannot be
the order which itself dissolves temporary reinstatement. Slip op. at 18.
This brief summary of the different “plain meanings” which have been advanced in this
case for the statutory text “reinstatement of the miner pending final order on the complaint” –
most of which have at least some justification – illustrates that the text actually does not have a
plain meaning.
Differences also emerge when the parties and my colleagues examine the structure of the
statute. The Secretary argues that a finding that the complaint was not frivolously brought, which
triggers temporary reinstatement under section 105(c)(2), is different from a determination that
the substantive discrimination provisions of section 105(c)(1) were not violated. The
determination that a substantive violation has not occurred must be made by the Commission, not
the Secretary, and case law establishes that a violation may have occurred even though the
Secretary declined to file a complaint. The Secretary further asserts that 105(c)(2) and 105(c)(3)
actions before the Commission have the same relationship to the miner’s underlying
discrimination complaint. S. Br. at 15-21. However, following the reasoning of the judge, 30
FMSHRC at 1121-22, A&S argues that section 105(c)(2) and section 105(c)(3) embody different
kinds of complaints and procedures. Temporary reinstatement only occurs in the context of
section 105(c)(2). Moreover, a miner does not face lengthy delays in a complaint under section
105(c)(3), which the statute requires to be “expedited.” A&S Br. at 7-11. Similarly,
Commissioners Duffy and Young describe a two-track system where the miner’s “complaint” in
section 105(c)(2) is distinctly different from the miner’s “action” in section 105(c)(3).
Temporary reinstatement applies in section 105(c)(2) but not in section 105(c)(3). Their opinion
concludes that if the Secretary makes a determination of no discrimination, the miner’s original
complaint has no legal status, and the miner must initiate a new “action,” distinct from his
original “complaint.” Slip op. at 6-7. However, Chairman Jordan contends that the section
105(c)(3) “action” is not inherently different from the section 105(c)(2) “complaint,” because the
statute describes the party bringing the section 105(c)(3) “action” as the “complainant,”which
refers back to the miner’s complaint under section 105(c)(2). She points out that the
Commission’s Procedural Rule 40(b), 29 C.F.R. § 2700.40(b), refers to the “action” filed by a
miner under section 105(c)(3) as a “discrimination complaint.” Chairman Jordan also cites case
law in which the Commission has held that the requirement in section 105(c)(3) that the
proceedings be “expedited” also applies to cases before the Commission under section 105(c)(2).
Slip op. at 20.
The parties and my colleagues also have different interpretations of the legislative history
of the temporary reinstatement provision. The Secretary cites the Senate Report, which states
that Congress intended that section 105(c) “be construed expansively to assure that miners will
not be inhibited in any way in exercising any rights afforded by the legislation.” S. Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624 (“Legis. Hist.”). The
Secretary quotes the same report to the effect that upon determining that the complaint was not
frivolously brought, she shall seek “an order of the Commission temporarily reinstating the
complaining miner pending final outcome of the investigation and complaint . . . [as] an
essential protection for complaining miners who may not be in the financial position to suffer
even a short period of unemployment or reduced income pending the resolution of the
discrimination complaint.” S. Br. at 21-23 (citing S. Rep. No. 95-181, at 37, Legis. Hist. at 625
(emphasis in Secretary’s brief)). In contrast, Commissioners Duffy and Young cite the
Conference Report, which states that the Conference Committee adopts the Senate version of the
provision, which, according to the Conference Committee, provides that if the complaint was not
frivolously brought, the Secretary shall “seek temporary reinstatement of the complaining miner
pending the final outcome of the investigation.” Slip op. at 11 (citing S. Conf. Rep. No. 95-461,
at 52-53 (1977), reprinted in Legis. Hist. at 1330-31 (emphasis added)). Thus, the Conference
Report referred to temporary reinstatement until completion of the investigation (if the Secretary
did not find discrimination), while the Senate Report spoke of temporary reinstatement until the
resolution of the entire complaint. The legislative history can be interpreted quite differently
depending on which report is quoted.
The parties and my colleagues also interpret the purpose of the temporary reinstatement
provision differently. The Secretary, S. Br. at 21-23, and Chairman Jordan, slip op. at 21-22,
emphasize the need to fully protect the miner who is unemployed because of alleged
discrimination, and conclude that a viable allegation of discrimination continues past an adverse
finding by the Secretary and until the conclusion of proceedings by the Commission. However,
A&S, Br. at 8-9, and Commissioners Duffy and Young, slip op. at 11-12, echoing the decision of
the judge, 30 FMSHRC at 1122-23, emphasize a balancing of the interests of the miner and the
operator, which is best accomplished by limiting temporary reinstatement to the period of the
Secretary’s investigation if the investigation does not result in a finding of discrimination.
In view of these different and contrary interpretations of the statute’s text, its structure, its
legislative history, and its purpose, all set forth as having a “plain meaning” and all containing at
least some plausibility, I have to conclude that in terms of the Chevron I analysis, the statute is
ambiguous.
I also note that former Commission Procedural Rule 45(g), 29 C.F.R. § 2700.45(g)
(1999), permitted the dissolution of a temporary reinstatement order upon the Secretary’s
decision not to proceed on the complaint. The Commission has described this as “a ‘gap filling’
provision designed to deal with a situation not addressed by the statute – the status of a
temporary reinstatement order following a determination by the Secretary that there has been no
violation of section 105(c).” Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite Co.,
21 FMSHRC 947, 949-50 (Sept. 1999) (emphasis added). I fail to see how the statutory
language can be considered plain when we have acknowledged that it pertained to a situation
that Congress did not address.
Since the relevant statutory language is ambiguous, it is necessary under Chevron II to
determine whether the Secretary’s interpretation is reasonable and should be accorded deference.
As demonstrated by the analysis of Chairman Jordan, I find that the Secretary’s interpretation –
that a temporary reinstatement order must 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)) – is reasonable, and
therefore it is entitled to deference. See Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6
(D.C. Cir. 2003).
My other colleagues claim that deference to the Secretary’s policy position is not
appropriate in this case. They base this assertion on their view that the Secretary is not “charged
with administering” section 105(c) after she makes a determination of no discrimination. Slip
op. at 13. According to them, once the Secretary has made such a determination, “there is no
basis for her interest in continuing temporary reinstatement.” Id. at 14. This is due to the
“presumption of discrimination that underlies temporary reinstatement [that] cannot exist in a
section 105(c)(3) proceeding.” Id. This position misapprehends the role of temporary
reinstatement under the Mine Act, and the Secretary’s interest in implementing it.
Commissioners Duffy and Young state that Chevron deference is owed to an agency
interpretation “when the statutory provision being interpreted is one the agency is charged with
administering,” slip op. at 13 (citing Energy West, 40 F.3d at 460) (emphasis added), which in
turn cited to Chevron, 467 U.S. at 844. However, both the D.C. Circuit in Energy West and the
Supreme Court in Chevron, did not parse an agency’s statutory authority provision by provision
when articulating the general principles underlying the deference doctrine, but instead spoke of
“an agency’s interpretation of the statute it is charged with administering,” Energy West, 40 F.3d
at 460 (emphasis added), and “an agency’s construction of the statute which it administers,” and
the weight to be accorded to “an executive department’s construction of a statutory scheme,
Chevron, 467 U.S. 842, 844 (emphases added).
Moreover, my colleagues’ are incorrect in stating that temporary reinstatement is
predicated on a “presumption of discrimination.” The statutory language does not, in any way,
describe a “presumption of discrimination” as the basis for temporary reinstatement. Rather,
temporary reinstatement is based on a finding by the Secretary that the discrimination claim was
not “frivolously brought.” The fact that the Secretary may later find that discrimination did not
occur does not alter or diminish her finding that the complaint was not “frivolously brought.”
Since the Secretary was the entity who made the determination that the complaint was not
frivolously brought, which triggers temporary reinstatement in the first place, it makes no sense
to say that the Secretary is not “charged with administering” the temporary reinstatement
provision of the Act.
Additionally, my colleagues’ basis for refusing to accord deference to the Secretary is an
unnecessarily restrictive view of the Secretary’s role under the Mine Act. The fact that the
Secretary has determined that a miner has not demonstrated discrimination in a particular case
does not change the Secretary’s interest in ensuring that miners who file section 105(c)(3) actions
are entitled, as a class, to continued temporary reinstatement until a final order of the
Commission. Because “enforcement of the [Mine] Act is the sole responsibility of the
Secretary,” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006), she has
an interest in ensuring that section 105(c) is interpreted in an expansive manner, as vigorous
protection for miners who make safety complaints (such as the complaint in this case, regarding
miners operating equipment while under the influence of alcohol, S. Br. at 3). As the Secretary
noted herein, “Congress . . . recognized the important role that individual miners play under the
Mine Act in ensuring a safe and healthy working environment.” S. Br. at 21 (quoting S. Rep.
No. 95-181, at 35, Legis. Hist. at 623). The unfettered right of miners to complain about safety
issues without fear of economic penalty strengthens the Secretary’s ability to effectively enforce
the Act.
The Secretary has recognized Congress’ concern that “temporary reinstatement is an
essential protection for complaining miners who may not be in the financial position to suffer
even a short period of unemployment. . . . .” S. Br. at 22 (quoting S. Rep. No. 95-181, at 37,
Legis. Hist. at 625). Anything that could potentially diminish some miners’ willingness to do
so – including the prospect of being fired in retaliation and not having the right to temporary
reinstatement – thwarts the Secretary’s overarching mission to make our nation’s mines safer.
Thus, the fact that the Secretary has determined that there has been no violation of section
105(c)(1) in a particular case does not decrease her interest in guaranteeing that miners may make
health or safety complaints free of economic coercion. Consequently, the Secretary has real
interest in ensuring that her view of the Mine Act’s temporary reinstatement provision prevails.
Finally, by invoking the Secretary’s “negative determination on the question at issue” to
deny her deference, my colleagues confuse the issue at hand. Although the Secretary indeed
declined to continue to represent Phillips in his discrimination claim, the “question at issue” here
is whether temporary reinstatement should be continued notwithstanding that determination – a
question to which the Secretary has responded with a resounding “yes.”
Accordingly, I would reverse the order of the judge.
___________________________________
Robert F. Cohen, Jr., Commissioner
Distribution:
Jason P. Kane,Esq.
Ranson & Kane, P.C.
34 Briargate Blvd., Suite 201
Colorado Springs, CO 80920
Peter J. Phillips
P.O. Box 41
Florence, CO 81226
John Paul Ary, Owner
A& S Construction Co.
P.O. Box 566
Canon City, CO 80212
Darrell Fisher, Superintendent
A & S Construction Co.
P.O. Box 566
Canon City, CO 80212
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2296
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021