839 F.3d 1153
D.C. Cir.2016Background
- Jeffrey Pappas had worked as a miner at the Oro Grande cement plant for Martin Marietta; he filed a §105(c) whistleblower complaint after reporting safety concerns and was later reinstated by settlement with Martin Marietta.
- Martin Marietta sold the Oro Grande plant to CalPortland effective October 1, 2015; the asset purchase excluded Martin Marietta’s existing labor force and CalPortland did not agree to hire those employees as part of the sale.
- Prior to the acquisition, CalPortland invited the plant’s employees to apply for positions with the new operator; Pappas applied but was not offered employment by CalPortland.
- The Secretary sought immediate temporary reinstatement for Pappas under 30 U.S.C. § 815(c)(2); an ALJ granted the application and the FMSHRC (4–1) affirmed, ordering CalPortland to hire Pappas pending the merits of his discrimination complaint.
- CalPortland petitioned for review, arguing Pappas was an "applicant for employment" (not a "miner" for purposes of §105(c)(2)) and therefore ineligible for the statute’s temporary reinstatement remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission’s temporary-reinstatement order is immediately appealable | Collateral-order doctrine applies; operator should be able to appeal now (CalPortland) | Secretary/Commission argued review could be delayed | Court: order is immediately appealable under collateral-order doctrine (meets three-part test) |
| Whether §105(c)(2)’s temporary reinstatement applies to a complainant who worked at the same mine but never worked for the defendant employer | Pappas/Secretary: he was both a miner at the mine and an applicant to the new operator; statute ambiguous and allows reinstatement to maintain status quo | CalPortland: plaintiff was an applicant for employment with CalPortland, never an employee, so cannot be "reinstated" by that employer | Court: plaintiff was an applicant for employment vis-à-vis CalPortland and not eligible for temporary reinstatement; “reinstate” implies restoring to a former position with that employer |
| Proper scope of the term "reinstate" in §105(c)(2) | Secretary: reinstatement can serve Congress’s protective purpose and preserve status quo at the mine | CalPortland: "reinstatement" means restore to a former position; cannot reinstate to an employer where claimant never worked | Court: statutory text and ordinary meaning of "reinstate" show it applies to restore to a former position with that employer; thus inapplicable here |
| Whether factual circumstances (e.g., HR involvement, joint decision-making) convert an applicant into a eligible "miner" | Secretary/Commission: involvement of former Martin Marietta HR and joint decisionmaking made Pappas effectively a miner for purposes of the hire | CalPortland: those facts do not change that Pappas never had prior employment relationship with CalPortland | Court: such facts may be evidence of discrimination but do not change legal status—Pappas remained an applicant for CalPortland |
Key Cases Cited
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (statutory scheme and agency roles under the Mine Act)
- Cobra Nat. Res., LLC v. FMSHRC, 742 F.3d 82 (4th Cir.) (discussion of temporary-reinstatement finality and interests at stake)
- Meredith v. FMSHRC, 177 F.3d 1042 (D.C. Cir.) (administrative finality and collateral-order doctrine under Mine Act)
- Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738 (11th Cir.) (treating temporary-reinstatement order as final/collateral)
- Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 297 (7th Cir.) (collateral-order review of temporary reinstatement)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (collateral-order doctrine limits)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (origin of collateral-order doctrine)
- Abney v. United States, 431 U.S. 651 (finality/conclusiveness in collateral-order analysis)
- Bennett v. Spear, 520 U.S. 154 (definition of final agency action)