Left Fork Mining Co. v. Hooker

Decision Date31 December 2014
Docket NumberNo. 14–5450.,14–5450.
CourtU.S. Court of Appeals — Sixth Circuit
PartiesLEFT FORK MINING COMPANY, INC.; Bennett Resources, LLC; Cumberland River Energies, LLC; Blackstar Land & Mining Company, Ltd.; Manalapan Land Company, Ltd., Plaintiffs–Appellants, v. Irving T. HOOKER, et al., Defendants–Appellees.

775 F.3d 768

LEFT FORK MINING COMPANY, INC.; Bennett Resources, LLC; Cumberland River Energies, LLC; Blackstar Land & Mining Company, Ltd.; Manalapan Land Company, Ltd., Plaintiffs–Appellants,
v.
Irving T. HOOKER, et al., Defendants–Appellees.

No. 14–5450.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 18, 2014
Decided and Filed: Dec. 31, 2014


Affirmed.


[775 F.3d 770]

ARGUED: John M. Williams, Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, Kentucky, for Appellant. Cheryl D. Morgan, United States Attorney's Office, Lexington, Kentucky, for Appellees. ON BRIEF:

John M. Williams, Todd C. Myers, Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, Kentucky, for Appellant. Cheryl D. Morgan, Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellees.

Before: MERRITT, WHITE, and DONALD, Circuit Judges.
OPINION

BERNICE BOUIE DONALD, Circuit Judge.

This is an appeal from the district court's dismissal of a claim for money damages brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court found that the existence of an alternate remedial scheme created by statute precluded a judicially-created damages remedy in this case. For the reasons stated herein, we AFFIRM.

I.

Plaintiffs–Appellants are the owners, operators, and other parties 1 with a financial interest in the Straight Creek underground coal mine in Bell County, Kentucky, and include the Left Fork Mining Company (“Left Fork”), which leases and operates the mine.2 Straight Creek is an underground slope mine containing two separate seams of coal: the upper seam is the Rim Seam and the lower seam is the Straight Creek Seam. Until its flooding, Left Creek mined in three sections of the Rim Seam, while working to rehabilitate the Straight Creek Seam. Mines like Straight Creek are subject to regular safety inspections pursuant to the Federal Mine Health and Safety Act of 1977 (“Mine Act”) ( 30 U.S.C. § 801 et seq.). The Mine Act authorizes the Secretary of Labor to promulgate mandatory health and safety regulations for all mines ( 30 C.F.R. § 75.370 et seq.). The Federal Mine Safety and Health Administration (“MSHA”), a division of the Department of Labor (“DOL”), acts on behalf of the Secretary of Labor and enforces the Mine Act. The Mine Act generally requires at least four annual inspections and, in some instances, more frequent, “spot,” inspections,

[775 F.3d 771]

such as in the event of excessive methane liberation. 30 U.S.C. § 813(i). Defendants–Appellees Irvin Hooker,3 Clayton “Eddie” Sparks, Dannie Lewis, Dennis Cotton, Charles Maggard, and Sam Creasy are mine inspectors or supervisors employed by the MSHA (collectively, “MSHA employees”). The Mine Act mandates that an inspector must issue a citation to a mine operator for any conditions the inspector observes that are in violation of the Mine Act or its attendant regulations. 30 U.S.C. § 814(a).

During a routine inspection on March 22, 2011, MSHA inspector Tom Middleton noted elevated methane gas readings from behind a seal meant to confine methane and other dangerous gases and prevent entry to the Straight Creek mine's ventilation system. Given the high likelihood of a significant and substantial safety threat, Middleton issued an order (“Imminent Danger Order”) under section 107(a) of the Mine Act, 30 U.S.C. § 817(a) and a citation under section 104(a) of the Mine Act, 30 U.S.C. § 814(a). In the event of an accident, which includes an unplanned inundation of a mine by a gas, section 103(k) of the Mine Act, 30 U.S.C. § 817(a), authorizes MSHA agents to issue orders they deem appropriate to ensure safety of any persons in the mine. Acting pursuant to this authorization, Middleton issued a second order (“No Access Order” or “K Order”) proscribing Left Fork's access to the mine. The No Access Order closed the mine for all activity, but was modified by Middleton multiple times that day to allow for ventilation, conducting of required examinations, re-energizing of power, monitoring of the seals, and de-watering of the mine. Middleton also issued a second citation pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a) for maintenance issues related to a crack above mine seals that was allegedly leaking.4

Left Fork advised Middleton that the elevated methane readings were likely the result of a faulty ventilation curtain and proposed investigating the situation. But because the No Access Order was already in place, Middleton did not permit access to the mine and Left Fork was required to submit an abatement plan to repair the seals.

The next day, Left Fork complied and submitted an abatement plan seeking approval to repair the crack in the strata above the seal. MSHA did not respond in writing to the submitted abatement plan. Instead, a few days later, on March 29, 2011, Middleton issued an order pursuant to section 104(b) of the Mine Act, 30 U.S.C. § 814(b) (“Abatement Order” or “Original B Order”) alleging that Left Fork failed to submit a plan to repair affected seals in accordance with the second

[775 F.3d 772]

citation issued on March 22, 2011.5 Left Fork counters that it could not abate the condition because the MSHA would not allow Left Fork access to the mine. On April 8, 2011, Left Fork submitted a second plan for abatement which was denied in writing on April 11, 2011.

Between May 2011 and January 2012, the No Access Order was modified to remove electrical power and stop all work at the mine. This period was also characterized by a series of back-and-forth negotiations between the parties. Left Fork would submit a plan, the MSHA would request changes, Left Fork would comply, and the MSHA would request more changes. On January 11, 2012, MSHA employee Dannie Lewis inspected the mine and noted numerous hazards. The same day, Lewis modified the Abatement Order (“Modified Abatement Order” or “Modified B Order”) to require that Left Fork de-energize all power and withdraw all miners. When the mine was de-energized, underground electric water pumps shut down and the mine began to flood.6

On January 17, 2012, Left Fork filed a Notice of Contest before the Federal Mine Safety and Health Review Commission (“Commission”) challenging the issuance of the Modified Abatement Order pursuant to section 100.6 of the Mine Act.7 The Commission, which bears singular responsibility for adjudicating disputes under the Mine Act (such as challenges to orders issued by the MSHA), is an independent adjudicative agency created by Congress to provide impartial review of legal disputes arising under the Mine Act. See 30 U.S.C. §§ 823(a) and (d). The Commission's Administrative Law Judges (“ALJs”) decide cases at the trial level and the five-member Commission provides appellate review. Id. Further appeals of the Commission's decisions are to the appropriate United States court of appeals. 30 U.S.C.A. § 816(a)(1). The Commission is authorized to grant hearings, including on an expedited basis, and to grant temporary relief as requested by mine operators. Id.

Left Fork requested an expedited hearing, which was held on January 30–31, 2012, almost three weeks after the mine began to flood. Notably, Left Fork did not request temporary relief in the interim. On April 3, 2012, an ALJ invalidated the Abatement Order and Modified Abatement Order against Left Fork and held that (1) although the excessive methane levels “did meet the criteria for the application of the safety standard for excessive methane,” the MSHA erred in modifying the Abatement Order (which was erroneously issued in the first place), and (2) the MSHA should have either issued a new citation or modified the Imminent Danger Order to achieve the same result...

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