North Fork Coal Corp. v. Federal Mine Safety & Health Review Commission

735 рrejudice from den to show that resulted allegation

an error.7 A mere that addi- might

tional evidence have been beneficial

gathered error not is had the occurred meet But

insufficient burden.8 only

Jones asserts that “the records and Young bal- findings might tip favor,” plaintiffs

ance in has not so she any

met her burden show that error

was harmful.9 judgment AFFIRMED. FORK

NORTH COAL

CORPORATION,

Petitioner,

v. AND

FEDERAL MINE SAFETY COMMISSION;

HEALTH REVIEW Labor; Gray, Re- Mark

spondents. 11-3398,

Nos. 11-3684.

United Court of Appeals, States Circuit.

Sixth 19, July

Argued: 2012. 14,

Decided Filed: Aug. 2012. (5th Barnhart, (5th Carey Apfel, 7. 230 v. F.3d Cir. v. Castillo 2000); Sanders, Cir.2003) (“[The Shinseki v. points see also claimant] no evi- 173 L.Ed.2d dence that would have been adduced and that (2009) (“[T]he showing changed burden had could have the result been [she] normally party upon represented by error is harmful attorney, falls and therefore has determination.”). attacking agency’s prejudiced not demonstrated that she was due hearing.” to the absence of counsel at (“This Carey, at 142 will not F.3d Court (internal quotations omitted)). and citatiоn reverse the of an decision ALJ for failure to fully fairly develop Hyde, U.S.App. the record unless the 9.See LEXIS prejudiced (“Something speculative claimant that he or she shows was *11 more then a as- preju- might .... To ALJ’s failure establish sertion that medical records exist and dice, might clarify must he necessary, claimant demonstrate that earlier records perhaps she could and would have adduced evidence such as a statement from the doctor (internal might have altered the do result.” that such records exist and confirm an omitted)); quotations diagnosis.”). and citations also see earlier Penn, M. Stephen Hodges,

ARGUED: Eskridge, Abingdon, Stuart & Virginia, fоr Rosenbluth, Petitioner. Robin United Labor, States Department Arlington, Virginia, Respondents. ON BRIEF: Stephen Hodges, Timothy M. W. Gres- ham, Penn, Eskridge, Stuart & Abingdon, Virginia, for Petitioner. Robin Rosen- bluth, Labor, United States Department Arlington, Tony Virginia, Oppegard, Lex- ington, Kentucky, Addington, Appala- Wes Center, Inc., chian Citizens Law Whites- burg, Kentucky, Respondents. GRIFFIN, Before: SUTTON and HOOD, Judges; Circuit District Judge.* GRIFFIN, J., opinion delivered court, SUTTON, in which J. and HOOD, D.J., SUTTON, joined. (pp. J. 744-47), concurring delivered a separate opinion.

OPINION GRIFFIN, Judge. Circuit This case involves a of em- filed ployment discrimination Mark * Hood, Kentucky, by designation. Joseph sitting M. Senior trict of Honorable Unit- Judge ed States District for the Eastern Dis- (“Secre- request Federal brought,” must Secretary of Labor she

Gray with Federal Mine Safe- to the and Health Review Commis- tary”) pursuant Safety (the “Mine Act” “Commission”) Act of 1977 ty (the and Health to order sion amended, “Act”), §§ 801- miner’s “pend- a determination Following complaint.” ing final order on “frivolously Gray’s complaint was Thereafter, an in- conducts Gray temporary re- brought,” granted was vestigation whether she will to determine U.S.C. instatement. on discrimination Thereafter, following miner. Id. If the behalf of the Secretary deter- Gray’s allegations, the occurred, Act finds that no Mine violation a the Mine Act had mined that violation of may bring the an action on his or miner Secretary Accordingly, the not occurred. § her own behalf. Id. Under Gray’s concluding that a complaint, denied circumstance, the the either merits of Gray’s action on behalf was discrimination is re- complaint miner’s discrimination instant case presents not warranted. The judge law solved an administrative impression the issue of first whether (“ALJ”), discretionary re- ‍‌‌‌​​​​‌‌‌‌​‌​‌‌​​​​‌​​​​​‌​​‌‌​‌​‌​​‌​​‌​‌​‌‌​‌‍with further that an employee’s Mine Act mandates provided by view the Commission. after temporary reinstatement continue 2700.69, ag- §§ Parties C.F.R. 2700.70. that determines his com- grieved by the Commission’s final order lacks merit. hold the Mine plaint We may review in the federal seek additional Act not such continued tem- require does § appeals. courts 30 U.S.C. 816. porary reinstatement. II. I. May On North Fork Coal Cor- Act was to the Mine enacted Fork”) (“North Gray, provide poration need to more fired Mark “urgent

address improv- measures for effective means and 4 mine. employed a roof its No. bolter ing practices working conditions Gray com- thereafter filed discrimination the Nation’s other in or- [and] coal mines Secretary, plaint alleging he was with prevent physical der to death and serious com- making safety-related terminated for 801(c). § impor- One harm[.]” U.S.C. plaints. Finding Gray’s complaint prohibits provision employ- tant of the “frivolously brought,” the Secre- reprisal ment discrimination as a for mak- tary application temporary for his filed safety-related complaints. ing reinstatement, granted and an ALJ § was prohibition This intended request. parties jointly requested encourage play to miners to an “active economic, Gray’s reinstatement be part in the of the Act” and enforcement return to the mine. foregoing his any possible them protect “against dis- Gray’s into Following her they might crimination which suffer as termination, informed the their participation.” S.Rep. result оf No. pursuing ALJ that she would not be 95-181, reprinted in 1977 thereafter, complaint. discrimination Soon U.S.C.C.A.N. dissolving Gray’s an order ALJ issued Act, a miner believing Under temporary reinstatement. On December subjected prohibited that he was em- 30, 2009, Gray filed a discrimination action may ployment discrimination file a com- on his own behalf. Secretary. plaint with the 815(e)(2). January On If the “frivolously granted discretionary review of the ALJ’s (1984). However, Gray’s temporary reinstate- L.Ed.2d 694 “if the dissolution of stat- decision, Thereafter, split in a ment. is silent or ambiguous respect ute with reversed the ALJ’s Commission issue, specific question holding temporary reinstatement was agеncy’s court is whether the answer is Gray’s until required to continue individual permissible based on a construction of the by final order. Two action was resolved 843,104 statute.” Id. at S.Ct. 2778. holding on the commissioners rv. 815(c), language of while a concur-

plain 815(c) ring third found commissioner part: Section states in relevant ambiguous, requiring deference to the be ... Any miner who that he believes has Secretary. The two with, discharged, been interfered or oth- dissenting commissioners asserted that the against by any erwise discriminated 815(c) plain language required person violation of this subsection dissolution of may, days within 60 after such violation when the deсided not to occurs, file a with the Secre- complaint. the miner’s North Fork there- tary alleging such Upon discrimination. petition after filed for review before this receipt of such complaint, the court. shall forward a copy of the III. the respondent and shall cause such in- vestigation “The to be made as he ap- standard under which deems [we gov propriate. the Commission’s order is review] Such shall general erned the Mine Act and admin commence within days 15 of the Secre- principles[.]” Pendley istrative law v. Fed. tary’s receipt of the complaint, and if Comm’n, Safety & Health Review finds that such (6th Cir.2010). 601 F.3d 422 “[We frivоlously brought, the Com- review] Commission’s decision and not mission, expedited on an upon ap- basis underlying decision of ALJ[.]” plication Secretary, of the shall order Questions of law are reviewed de novo. the immediate reinstatement of the min- conflict, Id. at 423. When the Secre pending er order on the com- final tary’s super- reasonable If plaint. upon investigation, such cedes that of the Commission. Id. at 423 provi- determines that (citing Sec’y n. 2 Labor ex rel. Bushnell of sions of this subsection have been vio- Indus., v. Cannelton 1435 lated, immediately he shall file a com- (D.C.Cir.1989)). Commission, plaint with the with service upon alleged miner, violator and the reviewing agency’s

When an in applicant employment, represen- for or of terpretation language, we are tative of miners alleging such discrimi- “First, with presented questions. two al nation or interference and propose an ways, question is the Congress whether granting appropriate order relief. The directly spoken precise question has to the opportunity Commission shall afford an clear, If Congress at issue. the intent of (in hearing for a accordance with sec- matter; is the end of the for the regard tion 554 Title 5 but without court, agency, give as well as the must (a)(3) section) subsеction of such in unambiguously expressed effect to the order, Chevron, U.S.A., thereafter shall issue Congress.” tent of Inc. Council, Inc., upon findings affirming, modify- v. Natural Res. 467 Def. 837, 842-43, ing, vacating pro- U.S. or 2006, the of Federal From 1978 to Code directing appro- or other posed “If, following an or- priate Regulations provided: relief. reinstatement, the Secre- der of added). § (emphasis 30 U.S.C. tary provisions that the sec- 815(c)(3), petition relevant to Also 815(c)(1), 105(c)(1), have tion provides: which violated, Judge shall be so not been days receipt of a com- Within dissolving enter an order the Sec- notified and shall paragraph filed under plaint miner, notify, writing, retary shall reinstatement.” 29 C.F.R. the order of represen- employment, (1999). applicant any serious 2700.45(g) Without tative of miners of his determination controversy, practice was followed If has occurred. whether a violation 2006, however, years. In the Commis- Secretary, upon investigation, deter- regulation. portion sion deleted this that the of this subsec- mines explaining change, In violated, not been the com- tion have believed noted within 30 plainant right, shall have the interpreted should be to re- days of notice of the deter- temporary reinstatement “even when quire mination, to file an aсtion his own Secretary determines that there was Commission, charging behalf before the 105(c) no violation of section of the Mine or interference viola- discrimination 44,198 44,190, Reg. (Aug. Act.” Fed. (1). paragraph The Commission tion of 2006). response, de- Commission hearing for a opportunity shall afford regulatory to delete the reference to cided (in with section 554 of Title 5 accordance reinstatement, temporary leaving the mat- (a)(3) regard but to subsection without litigation.” ter to “be resolved in Id. at section), of such and thereafter shall is- then, 44,199. appeals no court of Since upon findings of sue an has аddressed this issue. sustaining the com- dismissing and, charges charges if the plainant’s sustained, relief it V. granting

are such as appropriate.... Proceedings deems un- First, phrase we conclude the expedited by section shall be der this complaint” final “pending order on the Secretary the and the Commission. plain meaning not have a because it is does Any by order issued Commission subject to more than one reasonable inter paragraph subject shall be to under Indeed, fact is pretation. demonstrat judicial review in accordance with sec- by split ed decision of the Commission tion 816 of this title. competing interpreta and the reasonable 815(c)(3). § on the Id. This case turns by Pugliese parties. tions offered See proper interpretation phrase “pend- of the' Dev., Inc., v. Pukka final contained ing complaint” order on the (11th Cir.2008) (“Although parties both ar 815(c)(2). § Secretary in The reads the gue plain is un- “complaint” term to mean the miner’s that the unambiguous, argue and both also complaint, derlying discrimination whether plain meaning supports interpreta their by Secretary it litigated under ambiguity. tion. This indicates Further 815(c)(2) § or the miner under more, divergent court the existence North Fork asserts that the term “com- ambiguity.” (citing opinions suggests also plaint” by Secretary refers to that filed (South Dakota), N.A., Smiley v. Citibank Commission, and not to the before U.S. separate “action” filed the miner under n (1996))). L.Ed.2d 25 phrase temporary reference reinstatement. at operative The words of (“[WJhere “complaint.” and Congress issue are “order” 104 S.Ct. 296 in- term “order” refers parties agree that the particular language in one section cludes final order of the Commission. to the in a statute but omits it another section of However, decides not when Act, generally presumed the same it is a miner’s claim before the Com- pursue intentionally Congress pur- acts 815(c)(3) mission, § to that decision refers posely disparate inclusion or exclu- ‍‌‌‌​​​​‌‌‌‌​‌​‌‌​​​​‌​​​​​‌​​‌‌​‌​‌​​‌​​‌​‌​‌‌​‌‍“determination,” an Ac- “order.” (internal omitted, quotation marks sion.” that a cordingly, when the finds However, original)). alteration there occurred, violation of the Mine Act has not §in clearly are triggering no “final order” there is 815(c)(2), §to apply indicating interre- reinstatement. dissolution lationship between these subsections. For however, is not interpretation,

This example, dispute North Fork does not As North Fork problems. without its em- expedited-proceedings requirement, that the phasizes, the event 815(c)(3), only §in applies mentioned that no Mine Act violation has (3). actions pursued under occurred, and the miner decides not to applies right The same for the to obtain pursue individual action under from appeals. review the federal courts of 815(c)(3), nothing in the there is sum, phrase “pending In final order providing Act for a “final order.” While complaint” plain, on the does not have a operator asserts that a mine unambiguous meaning under the circum- final request could order from the Com- presented stances in this case. According- mission, no such provides proce- ly, analysis necessary. further dure. subject “complaint” The word is also VI. interрretations two reasonable this con- plain meaning, the absence of a hand, ability On the one text. must determine the most reasonable inter- miner to a civil action on his or her pretation statutory of language at is- 815(c)(3). §in In own behalf is set forth sue, giving interpretation deference to the subsection, this the miner is referred to as presented by Secretary. Pendley, 601 “action,” filing “complaint.” not a See case, In parties F.3d at 423. States, 16, 23, Russello v. United 464 U.S. dispute required, the level of deference (1983) (“We 78 L.Ed.2d 17 asserting with North Fork that no defer- concluding refrain from here that the dif- Secretary advocating ence is due and the fering the two subsections has for Chevron deference. each.”). meaning the same On the oth- ‘split-enforcement’ arrange “Under hand, is referred to in er miner Act, by ment envisioned [Mine] signifying as the “complainant,” perform and the Commission a relationship “complaint” between the ref- 815(c)(2), regulatory responsibilities.” Sec’y erenced in and the miner’s “ac- distinct Inc., §in Mining, tion” referenced Labor v. Mutual of (4th Cir.1996). 110, 113 statutory structure, regard With charges Act The with the action fact that the miner’s individual is set development and enforcement of health forth in a different subsection than that safety protection “for the and standards providing injuries in prevention of life and coal supports interpretation by advanced 811(a). Indeed, § North Fork. does not or other mines.” 30 U.S.C. when are entitled to deference positions these standards Secretary develops id., them “post and enforces not hoc by rulemaking, they are rationalization^” issuing cita- Martin, by conducting inspections, actions. 499 U.S. previous agency penalties civil proposing tions and case, 156-57, at S.Ct. 813, 814(a), violations, §§ justifying previous her Secretary is not 820(a). 815(a), If a contests the party Rather, her ex- applying she is actions. actions, ad- Secretary’s inter- advocating particular for a pertise an or- claims and judicates “issue[s] of the Mine Act. pretation der, affirming, findings on vacating the modifying, or Next, North Fork asserts that the citation, penalty, or proposed be Secretary is not entitled to deference appropriate relief.” directing other directly involved in the cause she is not “[Developing rules and at 113-14. under pursued “action” miner’s Secretary with endow the enforcing them easily is re argument This familiarity policymaking ... ‘historical jected. Enforcement of the Mine ” Martin v. expertise^]’ (quoting Id. at Secretary. Mutu responsibility Safety & Health Review Occupational And, the Mining, 80 F.3d at 113. Sec al Comm’n, 499 U.S. S.Ct. ensuring retary strong has a interest (1991)). Accordingly, L.Ed.2d 117 interpret all of the Act are “ of the law interpretations ‘the safety. correctly protect miner Be ed given weight be regulations shall pursuing herself is cause ” Id. the Commission and the courts.’ both a miner does not an action on behalf of 95-181, S.Rep. No. at 49 (quoting ... admin “charged mean she is not with 3401); see also Chev- 1977 U.S.C.C.A.N. Chevron, Act. istering” the Mine (“We ron, 467 U.S. at 104 S.Ct. 2778 865, 104 S.Ct. 2778.1 recognized that considerable long have to an executive weight .should be accorded due, prece While deference is our construction of department’s full precludes application Chev dent administerf.]”). scheme it is entrusted in this case. In Chao v. ron deference Primarily, North Fork asserts Health Review Occupational Safety & to no deference is entitled (6th Commission, Cir.2008), 540 F.3d 519 interpretation in this case is a because her deference “is not we stated Chevron “litigation position.” disagree. We mere of required where the with the D.C. regard, agree In this as an fered via an informal medium—such Appeals that “the Secre Circuit Court letter, manual, policy state opinion agency tary’s litigating position [the before Com ment, guideline—that or enforcement lacks delegat is as much an exercise of mission] (citing of law.” Id. at 527 Chris the force lawmaking powеrs ed as is the 576, 587, Cnty., v. Harris 529 U.S. tensen safety of a ... health and promulgation (2000)). 1655, 146 L.Ed.2d 621 120 S.Ct. Sec’y Labor v. Excel Min standard.” Secretary’s interpretation Because the (D.C.Cir.2003) LLC, 1, ing, 334 F.3d 6 that litigation position, a we held Chao was (internal citation quotation marks and deference, omitted). Indeed, context, it was ‍‌‌‌​​​​‌‌‌‌​‌​‌‌​​​​‌​​​​​‌​​‌‌​‌​‌​​‌​​‌​‌​‌‌​‌‍entitled Skidmore a similar (citing Skidmore v. litigating only. that 526-27 Supreme Court has held Indeed, Phillips "parse agency's derlying doctrine[.]” the deference v. did not 1. Chevron Co., 975, 1003 statutory authority provision by provision A & S Constr. 31 FMSHRC (2009). articulating general principles un- when

743 815(c)(3), however, Co., does not refer a & Swift (1944)). 161, Rather, § “complaint.” miner’s 89 L.Ed. “charges” allows a miner to his case, Similarly, present in the because presume “action.” individual We interpretation has been of- Congress’s language pur- choice of was it no more litigation, is afforded fered Russello, poseful. See 464 U.S. at deference. Chao than Skidmore While S.Ct. Occupa- in the context of the was decided Act Safety and Health tional The miner’s individual “action” is (“OSH Act”), Act is we note that OSH set forth in a different subsection than the Mine Act with “nearly identical” to describing “complaint” the one investi judicial and re- regard to administrative pursued by gated Secretary. Sturm, Ruger & procedures.

view See Moreover, § does not address Chao, Co., 867, 872-73 Inc. v. 300 F.3d temporary again, reinstatement. Once we (D.C.Cir.2002) (internal quotation marks presume statutory this choice in omitted). intentional, indicating structure was temporary appropri reinstatement is not VII. pursues ate when miner an individual Skidmore, the Secre Under id.; “action” under See see tary’s position is afforded deference to the Graham, also v. United States 608 F.3d “power persuade.” it extent has (4th Cir.2010) (“[W]e 164, 176 cannot con Skidmore, 323 U.S. at 65 S.Ct. 161. strue to add [statutes] Con judgment par in a weight “The of such omitted.”); Burns, gress In re 322 F.3d depend upon case will the thor ticular (6th Cir.2003) (affording interpre consideration, evident in its oughness significance tive to the fact that different reasоning, consistency validity of its its separate forms of relief are set forth in pronouncements, and later with earlier code). bankruptcy sections of the Id. In this relevant] factors[.]” all [other addition, history legislative favors case, position we conclude that ad the dissolution of persuasive. vanced is not when the determines that no Indeed, position her is inconsistent with violation of occurred. See years accepted practice over 27 under Parrett, States v. United an unaltered statute. When all relevant (6th Cir.2008) (“If considered, statutory language hold that the factors are we clear, mаy most reasonable of the Mine is not examine the relevant of temporary Act is that the order rein legislative history.”). The House Confer- statement dissolves when the Report provides: ence that no violation has occurred. To from the adverse and protect miners chilling employment effect of loss of First, while the lan being investigat- while such matters are plain guage at issue does not have a ed, if provided the Senate bill meaning, several of our traditional rules of any determined that such statutory strongly construction favor the frivolously brought, temporary reinstatement dissolution temporary seek reinstate- no upon Secretary’s determination of complaining pending ment of the miner located operative phrase, violation. The investigation outcome and 815(c)(2),provides temporary §in re final order such rein- [shall] “pending final instatement shall continue statement, expedited complaint.” proceedings. on the Section after order 744 (“An (1987) 95-655, (1977), agency interpretation of a

H.R.Rep. No. 52 1977 rel- (Conf. (em- 3485, Rep.) 3500 provision U.S.C.C.A.N. which conflicts evant with the added). language This phases indicates agency’s earlier is entitled appropri- temporary reinstatement considerаbly to less deference than a con- only during Secretary’s investiga- ate (internal sistently agency quo- held view.” §in tion as set forth While the omitted)). From tation marks the enact- Report temporary indicates that Senate 1977, 2006, ment of the Mine Act in until “pend- reinstatement remain effect Secretary accepted the Commission’s ing final outcome of the practice challenge require- and did not 95-181, complaint,” S.Rep. No. at 37 temporary ment that reinstatement cease (em- 3401, 1977 U.S.C.C.A.N. upon her determination of no Mine Act added), phasis this does not Energy Mining violation. W. Co. v. Cf. upon touch the miner’s individual “action” Safety Fed. Mine & Health Review as set forth in Comm’n, (D.C.Cir.1994) 457, support holding. Other factors also our (finding Secretary’s “consistently that the First, Congress we assume that was aware interpretation” maintained of a Mine Act 27-year accepted of the Commission’s deference). regulation was entitled practice dissolving temporary reinstate- reasons, For these we conclude that the Secretary’s ment following the determina- Secretary’s interpretation tempo- of the tion of no Mine Act violation. Neverthe- rary provision reinstatement does not have less, during 27-year this period, we note Rather, “рower persuade.” nothing was done to extend reinstate- structure, statutory language legisla- past stage. ment v. See Barnhart history, tive and other relevant factors Walton, 1265, Congress’s demonstrate judgment (2002) (noting 152 L.Ed.2d 330 that inac- once the no vio- by Congress statutory tion to alter provi- occurred, lation of the Mine Act has sions indicated that the current public mandating interest in continued re- permissible). construction was substantially instatement is lessened. Ac- legislation proposed by both chambers cordingly, upon we hold that the Secre- provided temporary 2011 would ‍‌‌‌​​​​‌‌‌‌​‌​‌‌​​​​‌​​​​​‌​​‌‌​‌​‌​​‌​​‌​‌​‌‌​‌‍have tary’s determination that discrimination in during pendency occurred, violation of the Mine has not 153, miner’s individual “action.” See S. longer a miner is no to entitled (2011); Cong. 112th H.R. reinstatement.2 (2011). However, 112th Cong. proposed legislation has not been enacted. VIII. Finally, in view of the Commission’s reasons, For foregoing grant

long-standing practice dissolving tempo petition for review and reverse the order rary reinstatement when the of the Commission. decides not to the miner’s discrimi nation complaint, current SUTTON, Judge, concurring. Circuit position is entitled to less deference. See Cardoza-Fonseca, join v. I Judge thorough opinion INS Griffin’s U.S. 446 n. 107 S.Ct. 94 L.Ed.2d 434 and write separately point: to make one ready 2. North Fork also asserts that continued rein- determined that the Commission’s or- statement, past reversed, determination der must be we need not address violation, procedural of no Mine Act violates this issue. However, process. due because we have al- days receipt of the of a com- of review—whether Within proper standard no or Chevron—makes under plaint paragraph Skidmore filed the Sec- under difference, the language the of miner, relevant retary notify, writing, in the shall argument Secretary’s defeats the statute employment, represen- or applicant wаy. either of his tative of miners determination If whether a violation has occurred. appears two The relevant Secretary, upon investigation, deter- says part: relevant subsections. One provisions mines that the of this subsec- he has ... who believes that Any miner violated, tion have not been the com- with, or oth- discharged, interfered been plainant right, shall have the within 30 against by any per- discriminated erwise days Secretary’s of notice of the deter- may, this subsection son violation of mination, to file an action in his own days after such violation oc- within 60 Commission, curs, charging behalf before the Secretary with the complaint file a Upon re- discrimination or interference in viola- alleging such discrimination. (1). ceipt complaint, paragraph of such tion of The Commission copy complaint of the shall forward an opportunity hearing shall afford for a cause such in- respondent (in and shall accordance with section 554 of Title 5 ap- to made as he deems vestigation be (a)(3) regard but without to subsection investigation shall com- propriate. Such section), of such and thereafter shall is- days Secretary’s of the mence within 15 order, upon an findings sue based receipt complaint, of the and if the Sec- fact, dismissing sustaining or the com- retary complaint finds that such and, charges if the plainant’s charges Commission, frivolously on brought, sustained, granting are such relief itas expedited upon application an basis appropriate.... un- Proceedings deems Secretary, shall order the immediate expedited by der this section shall be final pending reinstatement of the miner and the Commission. complaint. upon order on the If such Any order issued investigation, determines subject paragraph under this shall be of this subsection judicial review accordance with sec- violated, immediately have beеn he shall tion of this title. Commission, file a with the 815(c)(3). §Id. alleged upon with service violator miner, that, applicant employ- and the idea if a miner The basic files ment, alleg- representative or of miners complaint against whistle-blower his em- ing such discrimination or interference ployer and if the an propose granting appropri- order “frivolously is not shall afford ate relief. The Commission Commission, brought,” application on (in opportunity hearing for a accor- Secretary, of the shall “order the immedi- 554 of Title 5 but dance with section pending ate reinstatement of the miner (a)(3) regard without to subsection final complaint.” order on the section) such and thereafter shall issue agree All that the reinstate- order, upon findings through lasts at least ment affirming, modifying, vacating or subsequent investigation complaint. Secretary’s proposed directing that, if agree And all inves- appropriate other relief. Act, tigation reveals a violation of the through lasts Commis- Secretary’s com- sion’s resolution of the says part: The other in relevant Congress that sion.” thus described the two hearing concerning any plaint ways (complaint in complaint. proceedings different action), versus directed the miner to filе however, Secretary if happens, What (the Secretary places them in different that of this “determines Commission), explained that versus the not been violated”? Id. subsection have (for they purposes for were filed different next accounts subsection Secretary’s investigation versus on the the miner possibility permits for that own for the miner’s behalf Commission’s an action in his own behalf before “to file resolution) the miner’s and mentioned reinstatement in the Commission.” Id. Should through immediate reinstatement continue in place one but not the other. Different separate action? I think not—for at in mean different places words different three least reasons. things.

First, per- subsection that distinct Third, these differences make sense action with mits the miner to file his own against background when measured says nothing about rein- principles granting for interim relief. The during proceeding. Ample statement a filing complaint norm is the mere silence, a reason exists for that failure employer, against government or carry over the immediate-reinstatement anyone else does not itself revert requirement proceeding from to the one parties’ legal relationship. Unless why other. It is difficult to understand plaintiff preliminary injunction seeks а Congress would favor reinstatement after something require- similar—and meets the com- has found miner’s so, doing including showing ments for plaint thing to lack merit. It is one probability of norm is to success—the require a company coal to continue to em- things they during leave as are the resolu- ploy a miner after the deter- tion of complaint. Congress altered complaint mines the discrimination by permitting custom here a reversion frivolously It quite was not filed. anoth- merely frivolously if the er to after do so brought. That makes sense the context has no merit. It of this whistle-blower statute. does What indeed, quite possible, that the nоt make Congress’s sense is to construe just will uncover not that the type silence the second of action as complaint is meritless but that it is frivo- altering background norm and as do- boot, making exceedingly lous to it odd to ing so even after the finds no preserve the reinstatement even after the complaint. merit to the I could see con- body authority given over this threshold 815(c)(3) struing pre- this silence in longer determination finds that it no ex- serving background norm—that ists. employee could seek continued reinstate- Second, types proceedings the two grounds ment based on the traditional only appear in distinct subsections (likelihood success, doing irreparable so they statute but language. also use distinct on). harm But I and so cannot see it as proceeding The initial —the carrying unique pro- over reinstatement permits one that if not “friv- to a unique vision action. olously brought” “complaint” to a —refers If accept ap- new Secretary.” filed “with the The second statute, moreover, proach to the what proceeding one that —the miner says nothing about would not file action with the reinstatement —refers to an lawyer “action” filed “before the Commis- Commission? And what would not thing? The mere very recommend BALSLEY, Cаtherine Catherine action, non- a/k/a matter how no

filing of Brown, Bosley; Plaintiffs- Richard point at that even frivolous meritorious Appellees, reinstate time, ensure continued would proceeding. through the end of ment v. proceedings no small matter That LFP, INC., Defendant-Appellant. this one has— long last as as that can No. 11-3445. counting since the months and thirty-five say, counting,” I not “And reinstatement. Appeals, Court of United States because, if the flourish but for rhetorical Sixth Circuit. con right, 17, Argued: July 2012. appeals all Sec through tinues —from decision, decision, retary’s the ALJ’s Aug. and Filed: Decided decision, Ap the Court Commission’s decision, way to a certiorari all the peals’ Supreme States to the United

petition provide any does the statute Nor

Court. if any of these costs recovering

basis for ultimately rejects im system only would

claim. Such concerns, might it but process due

plicate settings. See them some

well violate 319, 333, Eldridge, v.

Mathews (1976); Cleve 47 L.Ed.2d 18

96 S.Ct. Loudermill, 470 U.S. Bd. Educ. v.

land 84 L.Ed.2d Bd.,

(1985); v. R.R. Ret. Kelly Cir.1980). (3d better, ‍‌‌‌​​​​‌‌‌‌​‌​‌‌​​​​‌​​​​​‌​​‌‌​‌​‌​​‌​​‌​‌​‌‌​‌‍Far it me, peril by treat to avoid this

seems as dis types proceedings

ing the two

tinct, in the the distinct just as just subsections indicates

two for the the statute

Secretary construed years of its existence. twenty-seven

first

Case Details

Case Name: North Fork Coal Corp. v. Federal Mine Safety & Health Review Commission

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 14, 2012

Citation: 691 F.3d 735

Docket Number: 11-3398, 11-3684

Court Abbreviation: 6th Cir.