Southern Ohio Coal Co. v. Donovan

• Citation: 774 F.2d 693
• Decision Date: 02 October 1985
• Docket Number: Nos. 84-3910,84-5688,s. 84-3910
• Parties: , 3 Fed.R.Serv.3d 1443, 1984-1985 O.S.H.D. ( 27,384 SOUTHERN OHIO COAL COMPANY, (84-3910), U.S. Coal, Inc., (84-5688), Plaintiffs-Appellees, v. Raymond J. DONOVAN, Secretary of Labor; Federal Mine Safety & Health Administration; Federal Mine Safety & Health Review Commission; James A. Broderick and Paul Merlin, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 693

774 F.2d 693

54 USLW 2214, 3 Fed.R.Serv.3d 1443,

1984-1985 O.S.H.D. ( 27,384

SOUTHERN OHIO COAL COMPANY, (84-3910), U.S. Coal, Inc (84-5688), Plaintiffs-Appellees, v. Raymond J. DONOVAN, Secretary of Labor; Federal Mine Safety & Health Administration; Federal Mine Safety &amp Health Review Commission; James A Broderick and Paul Merlin Defendants-Appellants.

Nos. 84-3910, 84-5688.

United States Court of Appeals, Sixth Circuit.

Argued July 9, 1985.

Decided Oct. 2, 1985.

Barry F. Wisor, U.S. Dept. of Labor, Office of Sol., Michael A. McCord, Arlington, Va., John W. Gill, U.S. Atty., Knoxville, Tenn., Mary-Helen Mautner, Steven J. Mandel (argued), U.S. Dept. of Labor, Office of Sol., Washington, D.C., for Donovan, et al.

R. Louis Crossley, Jr., D. Michael Miller (argued), Knoxville, Tenn., for U.S. Coal, Inc.

Francis X. Lilly, Sol. of Labor, U.S. Dept. of Labor, Karen I. Ward, Steven J. Mandel (argued), L. Joseph Ferrara, Acting Atty. Gen. Counsel, Federal Mine Safety & Health Review Com., Washington, D.C., for Secretary of Labor.

Alvin J. McKenna, Alexander, Ebinger, Fisher, McAlister & Lawrence, D. Michael Miller (argued), Columbus, Ohio, for Southern Ohio Coal Co.

Before KEITH, MERRITT and WELLFORD, Circuit Judges.

WELLFORD, Circuit Judge.

This is a consolidated appeal from two separate district court decisions that held unconstitutional certain procedures of the Federal Mine Safety and Health Review Commission (the "Commission"). The Rule, 29 C.F.R. Sec. 2700.44, permits the Secretary of Labor to require that coal mine operators temporarily reinstate miners who allegedly had been terminated for seeking enforcement of mine safety regulations. The Rule provides for this forced reinstatement without also providing the coal mine operators a prior hearing on the matter. Before turning to the merits of the parties' claims, however, we must address the serious questions concerning the district courts' jurisdiction over the original suits, and therefore this court's jurisdiction to hear the appeals.

The complaint in Southern Ohio Coal Company v. Donovan, No. 84-3910, was filed before the promulgation of the Commission's current Rule 44, but the district court adjudicated the constitutionality of current Rule 44 procedures. The underlying factual setting is fairly complex in this case. U.S. Coal, Inc. v. Donovan, No. 84-5688, concerns the constitutionality of the Commission's present Rule 44, and the factual setting is quite straightforward.

I. The Regulatory Scheme

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. Sec. 801, et seq. ("Mine Act") provides administrative review procedures to parties aggrieved by agency orders; review of the administrative decision may be had in the appropriate court of appeals. ¹ See generally 30 U.S.C. Secs. 814-817, 820, 823; 29 C.F.R. part 2700.

Relevant to the two cases on appeal is the Mine Act's proscription against:

discharg[ing] or in any manner discriminat[ing] against ... or otherwise interfer[ing] with the exercise of the statutory rights of any miner ... because such miner ... has filed or made a complaint under or related to [the Act], including a complaint notifying the operator ... of an alleged danger ... or because of the exercise by such miner ... on behalf of himself or others of any statutory right afforded by [the Act].

30 U.S.C. Sec. 815(c)(1).

Upon a miner's timely complaint of unlawful discrimination, the Secretary must commence an investigation within 15 days of his receipt of the complaint. 30 U.S.C. Sec. 815(c)(2). If the Secretary finds the "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." Id. (emphasis added).

To implement this statutory mandate affording immediate temporary relief to miners, the Commission promulgated Rule 44 on June 29, 1979, setting forth the particular procedures for obtaining a Commission order of temporary reinstatement. ² Under Rule 44, ³ the Secretary's application must state his finding that the discrimination complaint was not "frivolously brought" and must be accompanied by a copy of the miner's complaint, an affidavit setting forth the reasons for the finding, and proof of service upon the operator. The Secretary's application is to be examined on an expedited basis by an administrative law judge ("ALJ"), and "if it appears that the Secretary's finding is supported by the application and accompanying documents, an order of temporary reinstatement shall be immediately issued."

Under Rule 44 if a temporary reinstatement order is issued, an operator may request a hearing before an ALJ, which must be held within five days after the request is filed, to determine whether the complaint was "frivolously brought." An operator may also seek from the Commission interim relief from the temporary reinstatement order. Rules 45, 46, codified at 29 C.F.R. Secs. 2700.45-2700.46 ("Rules 45, 46"). ⁴ The Commission, on its own motion or at the request of an aggrieved party, and in its "sound discretion," may review the ALJ's determination if a "substantial question of law, policy or discretion is involved." 30 U.S.C. Sec. 823(d)(2)(A).

Except for good cause, all arguments made to the Commission must have been presented to the ALJ. 30 U.S.C. Sec. 823(d)(2)(A)(iii) (Supp. II 1978 & Supp. V 1981). The Commission's ultimate determination, or the ALJ's decision in the absence of Commission review, is reviewable exclusively in the courts of appeals. 30 U.S.C. Sec. 816(a)(1). "No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." Id. The courts of appeals are given specific authority to grant temporary relief from Commission orders pending resolution of the proceeding. 30 U.S.C. Sec. 816(a)(2).

In neither of the cases on appeal did the mine operator follow these prescribed procedures. Rather, in each case, the mine operator applied for a district court injunction against the Commission's reinstatement order.

II. Underlying Factual Situation

A. SOUTHERN OHIO COAL COMPANY V. DONOVAN

Southern Ohio Coal Company ("SOCCO") owns and operates an underground coal mine in Meigs County, Ohio. SOCCO clearly is an "operator" under the Mine Act. 30 U.S.C. Sec. 802(d). Terry Hill worked as SOCCO's section foreman until June 7, 1978, when he was terminated allegedly for excessive absenteeism. ⁵

On June 19, 1978, Hill filed a complaint with the Secretary of Labor alleging that his discharge was precipitated by his complaints to the operator concerning safety conditions in the mine. If true, SOCCO's termination of Hill would violate the Mine Act's prohibition against retaliatory discharges, 30 U.S.C. Sec. 815(c). Hill had complained previously to company officials about both unsafe methane levels and roof conditions in the mine. Officials of the Mine Safety and Health Administration ("MSHA"), pursuant to 30 U.S.C. Sec. 815(c)(2), undertook an investigation of the discrimination complaint, which included interviews with Hill as well as with other miners and supervisory personnel at the mine.

On September 12, 1978, upon completion of an initial investigation, the Secretary, pursuant to 30 U.S.C. Sec. 815(c)(2), filed with the Commission an application for the temporary reinstatement of Hill to the position from which he had been terminated. The application, which was served upon SOCCO, contained the Secretary's determination that the Hill complaint was not frivolously brought. A Commission ALJ immediately issued an ex parte order requiring the operator to reinstate Hill to his former position as section foreman. SOCCO then filed the instant action on October 10, 1978. On May 11, 1979, the parties settled the merits of Hill's case. The settlement, in effect, provided that each party waive all claims he or it may have had against the other party.

In a rather detailed opinion and order, the district court, 593 F.Supp. 1014, held that the case was ripe for adjudication notwithstanding the subsequent promulgation of a new Rule 44, that the district court had jurisdiction to review because the agency had overstepped its authority, citing Louisville and Nashville Railroad Co. v. Donovan, 713 F.2d 1243, 1246 (6th Cir.1983), and that Rule 44 was unconstitutional. In an earlier published order, Southern Ohio Coal Co. v. Marshall, 464 F.Supp. 450 (S.D.Ohio 1978), the district court had granted SOCCO's motion for a preliminary injunction. The district court did not consider that the settlement mooted the issues before it.

B. U.S. COAL COMPANY

U.S. Coal operates an underground coal mine near Jacksboro, Tennessee, and is thus an "operator" under the Mine Act. 30 U.S.C. Sec. 802(d). U.S. Coal employed John Campbell as a mine foreman from December 13, 1982 until January 13, 1984, when he was discharged for "inability to perform his assigned tasks." On February 13, 1984, Campbell filed a complaint with the Secretary of Labor alleging that his discharge was precipitated by his refusal to work under unsafe conditions and thus violated the Mine Act's prohibition against retaliatory discharges, 30 U.S.C. Sec. 815(c).

On May 14, 1984, upon completion of an initial investigation, the Secretary, pursuant to 30 U.S.C. Sec. 815(c)(2) and Rule 44, filed with the Commission an application for an order temporarily reinstating Campbell to his former position. On May 16, 1984, the Commission's ALJ ordered that U.S. Coal temporarily reinstate Campbell. U.S. Coal then requested a hearing to determine whether the miner's complaint of discrimination was frivolously brought. After requesting the hearing, but before it was held, U.S. Coal filed the instant suit.

On August 8, 1984, U.S. Coal and Campbell also settled the merits of Campbell's case.

III. Mootness...