Southern Ohio Coal Co. v. Donovan

• Decision Date: 07 September 1984
• Docket Number: No. C-2-78-1041.,C-2-78-1041.
• Parties: SOUTHERN OHIO COAL COMPANY, Plaintiff, v. Ray DONOVAN, Secretary of Labor, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

593 F. Supp. 1014

SOUTHERN OHIO COAL COMPANY, Plaintiff, v. Ray DONOVAN, Secretary of Labor, et al., Defendants.

No. C-2-78-1041.

United States District Court, S.D. Ohio, E.D.

September 7, 1984.

COPYRIGHT MATERIAL OMITTED

Alvin J. McKenna, D. Michael Miller, Alexander, Ebinger, Fisher, McAlister & Lawrence, Columbus, Ohio, for plaintiff.

Page Jackson, U.S. Dept. of Labor, Arlington, Va., Albert R. Ritcher, Asst. U.S. Atty., Columbus, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, District Judge.

This matter is before the Court upon plaintiff's motion for summary judgment and defendants' motion to dismiss. Plaintiff's motion presents a single, narrow issue: is a coal mine operator unconstitutionally deprived of procedural due process when the Federal Mine Safety and Health Review Commission, without a prior hearing, issues an ex parte order reinstating a discharged coal miner who alleges that he was discharged in violation of federal mine safety laws? Defendants seek dismissal on the grounds that this action is moot and that this Court lacks jurisdiction over the subject matter. For the reasons set forth below, the Court determines that defendants' motion to dismiss is without merit, and grants summary judgment in favor of plaintiff.

I.

The Mine Safety and Health Act of 1977, P.L. 95-164, was enacted by Congress to improve federal standards and enforcement procedures relating to safety in the coal mining industry. To encourage participation by coal miners in monitoring compliance with safety standards, the Act granted certain rights to miners, including the right to have a representative accompany inspectors during regular mine inspections and the right to request an immediate inspection whenever a miner has reasonable grounds to believe a condition violating safety standards exists. 30 U.S.C. § 813(f) and (g). In order to protect individual miners from possible retaliation for exercising their rights, Congress included the following anti-discrimination provision: "No person shall discharge or in any manner discriminate against ... any miner ... because such miner ... has filed or made a complaint under or related to this chapter...." 30 U.S.C. § 815(c)(1).

As a means to remedy violations of the anti-discrimination clause, the Act further provides a mechanism whereby a miner alleging wrongful discharge can seek temporary, and eventually permanent, reinstatement:

Any miner ... who believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this subdivision may, within 60 days after such violation occurs, file a complaint with the Secretary of Labor or his delegate 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.... If the Secretary finds that such complaint was not frivolously brought, the Federal Mine Safety and Health Review Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint.

30 U.S.C. § 815(c)(2). Thereafter, if the Secretary makes a determination that the miner's complaint is meritorious, he must file a formal complaint and a proposed order granting relief with the Commission. The Commission is directed to hold a hearing on the matter and issue a final order, based on findings of fact, which may affirm, modify, or reject the Secretary's proposed order, and may require permanent reinstatement of the miner to his former position with back pay and interest. 30 U.S.C. § 815(c)(2).

The facts giving rise to this lawsuit as found by the Court from the evidence adduced at the hearing on plaintiff's motion for a preliminary injunction are not disputed by the parties. Plaintiff, Southern Ohio Coal Company, owns and operates Meigs Mine No. 1 located in Meigs County, Ohio. Defendant Terry Hill was employed at plaintiff's mine as a section foreman until June 7, 1978. On that date Hill was fired for the stated reason of excessive absenteeism. It is undisputed that Hill failed to appear for work or report off on June 2, 1978, and that he had previously been given at least one written warning about unexcused absences.

On June 19, 1978, Hill filed a complaint with the Secretary of Labor alleging that he had been discharged because of his concerns over safety conditions at the mine. At about the same time, he also filed a claim for unemployment compensation with the State of Ohio. During the course of a hearing on his unemployment claim, Hill testified that he was suffering from a hernia condition that rendered him unable to perform his duties in the mine. After filing his discrimination complaint, Hill met approximately three times with an investigator of the Federal Mine Safety Administration, but never disclosed his claimed medical disability to the Administration. On September 12, 1978, defendant James A. Broderick, an administrative law judge for the Federal Mine Safety and Health Review Commission, issued an ex parte order requiring the plaintiff to reinstate Hill to his former position as a section foreman based on the Secretary's finding that Hill's complaint of discrimination was not "frivolously brought." After being informed of Hill's claimed hernia condition, the Secretary agreed to a modification of the order permitting "economic reinstatement," meaning that Hill was to be paid his full salary as a section foreman but was not required to work.

Plaintiff filed this action on October 10, 1978, seeking declaratory and injunctive relief. Based on the evidence and arguments of counsel produced at the preliminary hearing, the Court concluded that plaintiff had demonstrated a substantial likelihood of succeeding on the merits of its claim for deprivation of procedural due process.¹ In reaching that conclusion, the Court considered the three factors outlined by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Those three factors are:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335, 96 S.Ct. at 903.

With respect to the first factor, the Court found that plaintiff had a "compelling" interest in being able to discharge for cause a person who, like Terry Hill, was employed in the sensitive supervisory position of foreman in a coal mine. Southern Ohio Coal Co. v. Marshall, 464 F.Supp. 450, 456 (S.D.Ohio 1978). Second, the Court found that the ex parte temporary reinstatement procedure used by the defendant government agencies to determine whether the miner's complaint was "frivolously brought" was inherently unreliable. The Court further found that the potential value of an evidentiary hearing prior to this determination is great. Id. Finally, the Court concluded that to require an evidentiary hearing prior to the initial reinstatement decision would place little, if any, additional burden upon the government agencies involved, considering that the Secretary is required in any event to make a factual investigation of the complaint before recommending reinstatement. The Court was also unpersuaded that such a hearing would cause any harmful delay over and above the delay already found to exist in the procedures used. Id.

Finding that plaintiff had established all the other requirements for a preliminary injunction, the Court accordingly issued an order barring enforcement of the Commission's order temporarily reinstating Terry Hill, and ordered defendants to give plaintiff "notice and the opportunity to be heard prior to the issuance of any future order requiring the immediate reinstatement of Terry L. Hill pending final order on Hill's complaint." Id., 464 F.Supp. at 457-58.

Shortly after the issuance of that order, defendant Hill found other employment and withdrew his request for reinstatement at plaintiff's mine, which prompted the defendants to move for dismissal on grounds of mootness. The Court denied defendants' motion, finding it probable that the same ex parte reinstatement procedure could be used against the plaintiff on future occasions and concluding that the complaint, insofar as it sought declaratory relief, continued to present a justiciable issue "capable of repetition, yet evading review." Opinion and Order of March 31, 1980.

On July 30, 1979, final rules of procedure for the Federal Mine Safety and Health Review Commission became effective. 44 Fed.Reg. 38226 et seq., codified at 29 C.F.R. §§ 2700 et. seq. The procedures governing temporary reinstatement of miners who allege that they were fired in retaliation for expressing concern about mine safety were changed in several respects. The regulations now provide:

An application for temporary reinstatement shall state the Secretary's finding that the miner's complaint of discrimination, discharge or interference was not frivolously brought and shall be accompanied by a copy of the miner's complaint, an affidavit setting forth the Secretary's reasons for his finding, and proof of service upon the operator. The application and accompanying documents shall be examined upon an expedited basis, 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. The order shall be effective upon receipt or actual notice. If the person against whom relief is sought requests a hearing on the order, a Judge shall, within 5 days after the request is filed, hold a hearing to

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