VULCAN CONSTRUCTION MATERIALS, L.P., Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents.
No. 11-2860
United States Court of Appeals, Seventh Circuit
Decided Oct. 25, 2012
700 F.3d 297
Before RIPPLE and ROVNER, Circuit Judges, and COLEMAN, District Judge.
Argued Feb. 10, 2012.
E. Conspiracy to Violate Constitutional Rights
Finally, plaintiffs argue that defendants conspired to violate their equal protection rights under the
(1) the existence of a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an injury to person or property or a deprivation of a right or privilege granted to U.S. citizens.
Brokaw, 235 F.3d at 1024. To establish “purpose” under prong two, a plaintiff must demonstrate racial, ethnic, or other class-based “invidiously discriminatory animus behind the conspirators’ actions.” Id. As discussed, plaintiffs have not made a showing sufficient to establish the existence of racial animus on the part of defendants. Accordingly, plaintiffs’ conspiracy claim falls with their equal protection claim, and summary judgment in defendants’ favor is appropriate.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment for the defendants on all counts.
Margaret S. Lopez (argued), Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC, Tracey L. Truesdale, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL, for Petitioner.
RIPPLE, Circuit Judge.
On December 2, 2010, Peter L. Dunne filed a discrimination complaint pursuant to
I
BACKGROUND
The facts are not in dispute. Mr. Dunne filed a discrimination complaint with the MSHA, alleging that his former employer, Vulcan, had discharged him for engaging in safety-related activity protected under
After conducting her investigation, the Secretary concluded that no discrimination had occurred and notified Mr. Dunne of this determination. Mr. Dunne subsequently filed his own discrimination action before the Commission pursuant to
On July 7, 2011, Vulcan filed with the Commission a petition for discretionary review of the ALJ‘s denial of its motion. On July 14, 2011, the Commission granted the petition, and a divided Commission affirmed the ALJ‘s denial of the motion to dissolve the temporary reinstatement order. Each of the Commissioners adopted the same position that he or she had taken in Secretary of Labor ex rel. Gray v. North Fork Coal Corp., 33 FMSHRC 27 (Jan. 2011): Commissioners Jordan and Nakamura believed that the plain language of
Vulcan timely sought review of the Commission‘s decision in this court.*
DISCUSSION
A. Jurisdiction
The Commission had jurisdiction over this matter pursuant to
To come within this narrow exception, [an] order must, at a minimum, meet three conditions. First, it must conclusively determine the disputed question; second, it must resolve an important issue completely separate from the merits of the action; third, it must be effectively unreviewable on appeal from a final judgment.
Flanagan v. United States, 465 U.S. 259, 265 (1984) (internal quotation marks omitted) (citations omitted). These criteria are met here. The Commission conclusively determined that Mr. Dunne‘s temporary reinstatement should not be dissolved during the pendency of his proceeding under
B. Statutory Language and History
1.
In this case, the parties dispute the unambiguous meaning of
(c) Discrimination or interference prohibited; complaint; investigation; determination; hearing
(1) No person shall discharge or in any manner discriminate against or ... otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine ... because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this chapter....
(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the respondent and 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. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall immediately
(3) Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall notify, in writing, the miner[] of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have the right, within 30 days of notice of the Secretary‘s determination, to file an action in his own behalf before the Commission, charging discrimination or interference in violation of paragraph (1). The Commission shall afford an opportunity for a hearing ..., and thereafter shall 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, including, but not limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back pay and interest or such remedy as may be appropriate. Such order shall become final 30 days after its issuance. Whenever an order is issued sustaining the complainant‘s charges under this subsection, a sum equal to the aggregate amount of all costs and expenses (including attorney‘s fees) as determined by the Commission to have been reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against the person committing such violation.
Although the parties disagree with respect to how this section, specifically the phrase “final order on the complaint” in subsection (c)(2), should be interpreted, they rely on much of the same statutory and interpretive history in making their arguments. An understanding of the statute‘s purpose and history, therefore, is helpful in analyzing the parties’ positions.
2.
Following a number of “tragic mining disasters” in the 1970s, Congress conducted a comprehensive examination of the then-existing laws governing our nation‘s mines and the miners who worked in them. S.Rep. No. 95-181 at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3404. That examination revealed a number of shortcomings that Congress sought to remedy with new legislation. For example, existing law (1) “d[id] not provide effective protection for miners from health and safety hazards and enforcement sanctions under [that law] [we]re insufficient to encourage compliance
To remedy these shortcomings, Congress transferred to the Secretary of Labor “[a]ll functions and responsibilities ... in the area of mine safety and health.” Id. at 11, reprinted in 1977 U.S.C.C.A.N. at 3411. The Secretary was authorized to establish safety standards, and the newly created, “independent Mine Safety and Health Review Commission [wa]s established to review orders, citations, and penalties” issued by the Secretary. Id. The Commission was not imbued with rulemaking authority, but instead was to “serve[] as the ultimate administrative review body for disputed cases arising under the new mine safety act.” Id. at 13, reprinted in 1977 U.S.C.C.A.N. at 3413.
With respect to the complaint procedure at issue here, legislators noted that,
[i]f our national mine safety and health program is to be truly effective, miners will have to play an active part in the enforcement of the Act. The Committee is cognizant that if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation. The Committee is also aware that mining often takes place in remote sections of the country, and in places where work in the mines offers the only real employment opportunity. ... [T]he bill prohibits any discrimination against a miner for exercising any right under the Act. It should also be noted that the class protected is expanded from the current Coal Act. ... The Committee intends that the scope of the protected activities be broadly interpreted by the Secretary, and intends it to include not only the filing of complaints seeking inspection ... or the participation in mine inspections ..., but also the refusal to work in conditions which are believed to be unsafe or unhealthful and the refusal to comply with orders which are violative of the Act or any standard promulgated thereunder, or the participation by a miner or his representative in any administrative and judicial proceeding under the Act.
Id. at 35, reprinted in 1977 U.S.C.C.A.N. at 3435. The complaint procedure, therefore, serves an important function in accomplishing the legislation‘s broader goals of improving mine safety and protecting miners.
The legislative history does not speak directly to the issue raised by the parties—how long a temporary reinstatement order should remain in effect. Nevertheless, it does note the importance of temporary reinstatement in the overall remedial scheme:
Upon determining that the complaint appears to have merit, the Secretary shall seek an order of the Commission temporarily reinstating the complaining miner pending final outcome of the investigation and complaint. 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 resolution of the discrimination complaint. To further expedite the handling of these cases, the section requires that upon completion of the investigation and determination that the provisions of this section have been violated, the Secretary must immediately petition the Commission for appropriate relief.
3.
Although the FMSHA was enacted in 1977, the issue of when a temporary reinstatement order expires did not arise until recently. Shortly after the passage of the Act, the Commission adopted “Rules of Procedure,” which included the following: “If, following an order of reinstatement, the Secretary determines that the provisions of section 105(c)(1)1 have not been violated, the Judge shall be so notified and shall enter an order dissolving the order of reinstatement.”
In October 2004, the Commission solicited comments on changes that should be made to its procedural rules. In response,
[t]he Secretary ... suggested that Commission Procedural Rule 45(g) be amended to provide that once temporary reinstatement is ordered, absent agreement of the parties, the order of temporary reinstatement shall remain in effect until there is a final decision on the merits of the miner‘s complaint of discrimination even when the Secretary determines that there was no violation of section 105(c) of the Mine Act.
Rules and Regulations, Federal Mine Safety and Health Review Comm‘n, 71 Fed.Reg. 44,190, 44,198 (Aug. 4, 2006) (to be codified at 29 C.F.R. pts. 2700, 2704, 2705). According to the Secretary, the practice of dissolving the order was “at odds with the meaning of section 105(c)(2).” Id. She believed that
The Commission subsequently received comments requesting further revision to Procedural Rule 45(g), including a comment that reiterated the suggestion previously made by the Secretary. The Secretary, however, no longer urged the Commission to adopt her original proposal, but “agreed with the Commission‘s conclusion ... that the issue of whether a temporary reinstatement order remains in effect during a miner‘s pursuit of his or her discrimination complaint under section 105(c)(3) would best be resolved in the context of litigation.” Id. at 44,198-99 (emphasis added). Nevertheless, the Secretary made the point that the “current Procedural Rule 45(g) appear[ed] to address the issue and resolve it in the negative: That is, that a Judge‘s reinstatement order should not remain in effect pending a miner‘s discrimination complaint under section 105(c)(3).” Id. at 44,199. The Secretary therefore requested that the Commission delete the language in Procedural Rule 45(g), requiring the dissolution of the temporary reinstatement order when the Secretary de-
(g) Dissolution of order. If, following an order of temporary reinstatement, the Secretary determines that the provisions of section 105(c)(1),
4.
After the Commission adopted the current version of Rule 45(g), the Secretary began advocating, in the course of administrative proceedings, the preservation of reinstatement orders pending the resolution of a miner‘s action under
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).
....
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.
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
Id. at 980-81 (plurality opinion) (footnote omitted) (additional citations omitted). The commissioners also believed that Congress‘s use of the term “final order” led to the conclusion that temporary reinstatement should end once the Secretary had determined not to go forward with the complaint. Id. at 982. They observed that “the term ‘order’ is used in section 105(c) to refer to action by the Commission.” Id. at 981. Consequently, they concluded:
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.
Id. at 982 (footnote omitted).
Because they believed that the language of the statute was unambiguous, Commissioners Duffy and Young did not need to consider what level of deference was owed to the Secretary‘s position. Nevertheless, they noted that they “fail[ed] 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.... The Secretary, by declining to pursue a miner‘s claim of discrimination, essentially remove[d] herself from the case.” Id. at 987.
Commissioner Jordan disagreed with the plurality‘s analysis. She believed that, “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” under
The final member of the Commission,2 Commissioner Cohen, took yet another view. He voted to reverse the ruling of the ALJ with respect to temporary reinstatement, but on the ground that the statute was ambiguous, and the Commission should defer to the Secretary‘s position. He observed that the Commission itself had recognized that Congress had not spoken to the issue and thus had adopted Rule 45(g) as a gap-filling measure:
[F]ormer Commission Procedural Rule 45(g),
Id. at 1002 (Cohen, Comm‘r, dissenting). He believed that his fellow commissioners’ refusal to defer to the Secretary was based on 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).... 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.
Id. at 1003.
Less than two years after Phillips, the Commission revisited the issue in Secretary of Labor ex rel. Gray v. North Fork Coal Corp., 33 FMSHRC 27 (Jan. 2011). By this time, the open seat on the Commission had been filled. Newly appointed Commissioner Nakamura joined in Commissioner Jordan‘s view that the plain language of
C. The Parties’ Plain Meaning Arguments
Both Vulcan and the Secretary are of the view that, looking only at the unambiguous language of the statute, their respective interpretations should carry the day. We turn first to Vulcan‘s arguments.
1.
Vulcan believes that the term “complaint” in the phrase “final order on the complaint,” refers only to the complaint brought by the Secretary after she determines that
Turning to Vulcan‘s structural argument, it observes that, in subsections (c)(2) and (c)(3) of
Vulcan argues that, in contrast,
Vulcan correctly notes that Congress placed the temporary reinstatement provision in
2.
The Secretary, on behalf of Mr. Dunne, takes the position that the “final order on the complaint” is the Commission‘s final ruling on the merits of the miner‘s safety complaint, whether it has been pursued by the Secretary or whether the miner has pursued his own action. Turning first to the phrase “final order,” the Secretary observes that, throughout
The Secretary also maintains that Congress‘s use of the term “the complaint,” when read in context, must refer to the miner‘s complaint. Prior to the reinstatement provision, the only “complaint” mentioned in the statutory text is that filed by the miner with the Secretary.
Additionally, the Secretary notes, every sentence of
Finally, the Secretary points out that, when speaking about the duration of the reinstatement order, Congress uses the definite article “the” with “complaint.”
3.
“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Evaluating the language of the temporary reinstatement provision, not in isolation, but in the broader context of
Turning first to the language employed by Congress, we believe that it is significant that Congress chose the same term—“complaint“—to describe both the miner‘s means of redress before the Secretary and the Secretary‘s means of redress (on the miner‘s behalf) before the Commission. Congress, however, chose a different term—“action“—to describe a miner‘s means of redress before the Commission on his own behalf. We presume that Congress‘s choice of language was deliberate. See Russello v. United States, 464 U.S. 16, 23 (1983).
Additionally, Congress tied the temporary reinstatement provision to the Secretary‘s investigation and preliminary findings. The temporary reinstatement provision states:
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.
[i]t is difficult to understand why Congress would favor reinstatement after the Secretary has found the miner‘s complaint to lack merit. It is one thing to require a coal company to continue to employ a miner after the Secretary determines that the discrimination complaint was not frivolously filed. It is quite another to do so after the Secretary determines that the complaint has no merit. It is quite possible, indeed, that the Secretary‘s investigation will uncover not just that the complaint is meritless but that it is frivolous to boot, making it exceedingly odd to preserve the reinstatement even after the body given authority over this threshold determination finds that it no longer exists.
N. Fork Coal Co. v. Fed. Mine Safety & Health Review Comm‘n, 691 F.3d 735, 746 (6th Cir. 2012) (Sutton, J., concurring).
Moreover, Congress placed the temporary reinstatement provision in
In short, Congress
described the two proceedings in different ways (complaint versus action), directed the miner to file them in different places (the Secretary versus the Commission), explained that they were filed for different purposes (for the Secretary‘s investigation versus on the miner‘s own behalf for the Commission‘s resolution) and mentioned reinstatement in one place but not in the other. Different words in different places mean different things.
Id. at 746 (Sutton, J., concurring). We conclude, therefore, that, based on the language Congress employed, the connection Congress drew between the Secretary‘s investigation and temporary reinstatement, and Congress‘s placement of the temporary reinstatement provision in
4.
We find unpersuasive the Secretary‘s arguments that the plain meaning of the statute renders a contrary result. The Secretary first relies on Congress‘s use of the definite article—“the“—when describing the complaint in the temporary reinstatement provision compared with its use of the indefinite article—“a“—when describing a complaint by the Secretary before the Commission. According to the Secretary, the choice of different articles evidences that, with respect to the first phrase, Congress was referring to resolution of the miner‘s complaint, as opposed to final resolution of the Secretary‘s complaint under subsection (c)(2). We believe it of far greater import, however, that Congress employs the same term—“complaint“—throughout
The Secretary next maintains that “[t]he only ‘complaint’ referred to in Section 105(c)(2) preceding the phrase ‘pending final order on the complaint’ is the miner‘s underlying complaint. ... Thus, the term ‘the complaint’ in the phrase ‘pending final order on the complaint’ plainly refers to the miner‘s underlying complaint.” Appellee‘s Br. 21. Read in isolation, the Secretary‘s interpretation is plausible, but ignores the remainder of
The Secretary argues as well that Congress‘s use of the term “complainant” in
Finally, the Secretary maintains that Vulcan‘s interpretation conflates the temporary reinstatement with a merits decision, disregards the Commission‘s important fact-finding role, and ignores Congress‘s “recognition that even if the Secretary decides not to proceed under Section 105(c)(2), there is still a realistic possibility that discrimination occurred.” Appellee‘s Br. 28. Again, we do not perceive the same infirmities in Vulcan‘s plain meaning analysis.
The approach we have outlined does not conflate the “not frivolously brought” and “not been violated” standards.
We also disagree that, if a temporary reinstatement order is dissolved at the time of the Secretary‘s “no-merit” finding, the Commission is deprived of its fact-finding role. The duration of temporary reinstatement is a separate and distinct issue from the merits of the miner‘s underlying claim. Congress did not give the Commission any discretion with respect to whether temporary reinstatement is ordered, see
Finally, the mere existence of a miner‘s “independent avenue of adjudication” under
D. Deference to the Secretary
Because we have determined that the plain meaning of
1.
The Secretary‘s claim to Chevron-type deference rests in large part on Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C.Cir.2003).4 In Excel Mining, the court reviewed the Chevron analysis and observed that,
in the statutory scheme of the Mine Act, “the Secretary‘s litigating position before [the Commission] is as much an exercise of delegated lawmaking powers as is the Secretary‘s promulgation of a ... health and safety standard,” and is therefore deserving of deference. RAG Cumberland [Res., LP v. Fed. Mine Safety & Health Review Comm‘n], 272 F.3d 590, 596 n. 9 (D.C.Cir.2001) (quoting Martin [v. Occupational Safety & Health Review Comm‘n], 499 U.S. 144, 157 (1991)).
Id. at 6 (parallel citations omitted). Be-
In Martin, the court “consider[ed] the question to whom should a reviewing court defer when the Secretary of Labor and the Occupational Safety and Health Review Commission furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the Occupational Safety and Health Act of 1970.” 499 U.S. at 146. At issue in Martin was the Secretary‘s effort to enforce compliance with OSH Act standards relating to coke-oven emissions. Promulgated pursuant to the Secretary‘s rulemaking powers, these standards establish maximum permissible emissions levels and require the use of employee respirators in certain circumstances. See
Nevertheless, the Court discussed the question of the degree of deference owed to the Secretary‘s interpretation in response to certain arguments made by the employer in favor of deferring to the Commission‘s interpretation. The Court stated:
We are likewise unpersuaded by the contention that the Secretary‘s interpretations of regulations will necessarily appear in forms undeserving of judicial deference. Our decisions indicate that agency “litigating positions” are not entitled to deference when they are merely appellate counsel‘s “post hoc rationalizations” for agency action, advanced for the first time in the reviewing court. See Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). Because statutory and regulatory interpretations furnished in this setting occur after agency proceedings have
Id. at 156-57 (fifth emphasis added).
There are several reasons why this discussion in Martin cannot support the general proposition that the Secretary‘s litigating position concerning the meaning of the Federal Mine Safety and Health Act must be afforded Chevron deference here. First, the Court itself “emphasize[d] the narrowness of [its] holding.” Martin, 499 U.S. at 157. It stated:
We deal in this case only with the division of powers between the Secretary and the Commission under the OSH Act. We conclude from the available indicia of legislative intent that Congress did not intend to sever the power authoritatively to interpret OSH Act regulations from the Secretary‘s power to promulgate and enforce them.... In addition, although we hold that a reviewing court may not prefer the reasonable interpretations of the Commission to the reasonable interpretations of the Secretary, we emphasize that the reviewing court should defer to the Secretary only if the Secretary‘s interpretation is reasonable. The Secretary‘s interpretation of an ambiguous regulation is subject to the same standard of substantive review as any other exercise of delegated lawmaking power. As we have indicated, the Secretary‘s interpretation is not undeserving of deference merely because the Secretary advances it for the first time in an administrative adjudication. But as the Secretary‘s counsel conceded in oral argument, the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties, on the quality of the Secretary‘s elaboration of pertinent policy considerations, and on other factors relevant to the reasonableness of the Secretary‘s exercise of delegated lawmaking powers.
Id. at 157-58 (last emphasis added) (citations omitted).
Additionally, the Court‘s discussion of deference speaks to an administrative adjudication—the Secretary‘s effort to enforce, administratively and judicially, a safety citation—different in kind from what is at issue here. The Court observed:
The Secretary‘s interpretation of OSH Act regulations in an administrative adjudication, however, is agency action, not a post hoc rationalization of it. Moreover, when embodied in a citation, the Secretary‘s interpretation assumes a form expressly provided for by Congress. See
Martin, 499 U.S. at 157 (third and fourth emphases added).
The situation at bar, however, does not involve the Secretary‘s determination or enforcement of a safety citation issued pursuant to
Granting Chevron-type deference to an agency‘s general policy or interpretive statements, regardless of how and in what form they are communicated, runs afoul of the Supreme Court‘s guidance in Christensen v. Harris County, 529 U.S. 576, 587 (2000). In Christensen, the Court held that less-formal agency interpretations, “not one[s] arrived at after, for example, a formal adjudication or notice-and-comment rulemaking,” “do not warrant Chevron-style deference.” Id. More recently, in Gonzales v. Oregon, 546 U.S. 243 (2006), the Court reiterated that the lynchpins of Chevron deference are whether there is a Congressional delegation of authority and whether the promulgation is made pursuant to that delegation:
Executive actors often must interpret the enactments Congress has charged them with enforcing and implementing.... Although balancing the necessary respect for an agency‘s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter, familiar principles guide us. An administrative rule may receive substantial deference if it interprets the issuing agency‘s own ambiguous regulation. Auer v. Robbins, 519 U.S. 452, 461-463 (1997). An interpretation of an ambiguous statute may also receive substantial deference. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984). Deference in accordance with Chevron, however, is warranted only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-227 (2001). Otherwise, the interpretation is “entitled to respect” only to the extent it has the “power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
Gonzales, 546 U.S. at 255-56 (emphasis added). Our own case law has reiterated these important criteria for invoking Chevron deference.5
The Secretary‘s pronouncement was not issued pursuant to rulemaking authority. Nor is her position “embodied in a citation“—a form of administrative interpretation “expressly provided for by Congress.” Martin, 499 U.S. at 157. Instead, the Secretary has articulated her position in litigation before the Commission and before the Courts of Appeals. Thus, even if
2.
Under Skidmore, a court will respect an agency‘s interpretation of the statute it administers, but only to the extent that the agency‘s interpretation possesses the “power to persuade.” Skidmore, 323 U.S. at 140; see also, e.g., Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir.2011). In assessing the persuasive power of an agency‘s interpretation, “we examine ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.‘” Arobelidze, 653 F.3d at 520 (quoting Skidmore, 323 U.S. at 140). We believe that these factors militate strongly against adopting the Secretary‘s position.
For nearly thirty years, the Secretary deferred not only to the Commission‘s interpretation of the temporary reinstatement provision, but also to the Commission‘s authority to interpret that provision. At no time during those three decades did the Secretary suggest that the Commission‘s interpretation of the provision was wrong or that the Commission had overstepped its authority in issuing rules on temporary reinstatement. This silence substantially undermines the Secretary‘s current claim that she possesses “historical familiarity and expertise,” Appellee‘s Br. 12 (internal quotation marks omitted), with respect to the administration of the temporary reinstatement provision such that we should defer to her position. See N. Fork Coal, 691 F.3d at 744.
Moreover, when the Secretary recently decided to speak on the issue, she did so in a series of briefs before the Commission and the Courts of Appeals. Her position was not subject to an outside vetting process such as public commentary. See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S.Ct. 2156, 2169, 183 L.Ed.2d 153 (2012) (observing that the Department of Labor‘s interpretation of a regulation articulated in a series of amicus briefs “plainly lack[ed] the hallmarks of thorough consideration” because “there was no opportunity for public comment“). Moreover, she does not explain her recent assertions of authority or interpretation of the statute in a manner that suggests that the position now being advocated was given thoughtful consideration within the agency. See Kentucky Ret. Sys. v. EEOC, 554 U.S. 135, 150 (2008) (noting that policy statements that the agency “ma[de] little effort to justify lack[] the necessary ‘power to persuade‘” (quoting Skidmore, 323 U.S. at 140)).
Because we adopt Vulcan‘s interpretation of the temporary reinstatement provision, we need not address its argument that the Secretary‘s proposed interpretation raises constitutional concerns. Specifically, we do not reach the question whether the guarantee of temporary reinstatement beyond the Secretary‘s no-merit determination, without any provision for the mine owners’ recoupment of the sums paid over the course of several months or years, deprives mine owners of their right to due process of law. See Brock v. Roadway Express, Inc., 481 U.S. 252, 260-61 (1987) (holding that the “right to discharge an employee for cause constitutes a property interest protected by the
Conclusion
For the reasons set forth in this opinion, we do not believe the Commission‘s denial of Vulcan‘s motion to dissolve the temporary reinstatement order can be squared with the plain language of
PETITION GRANTED; JUDGMENT REVERSED.
UNITED STATES of America, Plaintiff-Appellee v. John Anthony SPENCER, Defendant-Appellant.
No. 11-3463
United States Court of Appeals, Eighth Circuit.
Filed: Nov. 7, 2012.
Rehearing and Rehearing En Banc Denied Dec. 13, 2012.
Submitted: June 15, 2012.