Vulcan Constr. Materials, L.P. v. Fed. Mine Safety & Health Review Comm'n

Decision Date25 October 2012
Docket NumberNo. 11–2860.,11–2860.
Citation700 F.3d 297
PartiesVULCAN CONSTRUCTION MATERIALS, L.P., Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

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.

John T. Sullivan, Attorney, Federal Mine Safety and Health Review Commission, Office of General Counsel, Washington, DC, Ruben R. Chapa, Attorney, Department of Labor, Office of the Solicitor, Chicago, IL, Michael M. McCord, Attorney, Federal Mine Safety and Health Review Commission, Office of General Counsel, Washington, DC, Robin A. Rosenbluth

(argued), Attorney, Department of Labor, Arlington, VA, for Respondent.

Peter L. Dunne, Hanover Park, IL, pro se.

Before RIPPLE and ROVNER, Circuit Judges, and COLEMAN, District Judge.*

RIPPLE, Circuit Judge.

On December 2, 2010, Peter L. Dunne filed a discrimination complaint pursuant to 30 U.S.C. § 815(c)(2), with the Mine Safety and Health Administration (“MSHA”), a division of the Department of Labor. He alleged that Vulcan Industries, L.P. (Vulcan) had terminated his employment for engaging in safety-related activity protected under 30 U.S.C. § 815(c)(1). The Secretary of Labor determined that Mr. Dunne's complaint was not frivolously brought, and Vulcan agreed to a temporary (economic) reinstatement of Mr. Dunne pending a determination on the merits of Mr. Dunne's complaint. The Secretary later determined not to prosecute Mr. Dunne's complaint before the Federal Mine Safety and Health Review Commission (“FMSHRC” or “Commission”), and Vulcan moved to dissolve the reinstatement order. The Commission denied Vulcan's motion, and Vulcan sought review in this court. For the reasons set forth in the following opinion, we grant Vulcan's petition and reverse the judgment of the Commission.

IBACKGROUND

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 30 U.S.C. § 815(c)(1). The Secretary initially determined that Mr. Dunne's complaint was not frivolously brought; she sought, and Vulcan agreed to, a temporary economic reinstatement of Mr. Dunne.

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 30 U.S.C. § 815(c)(3). Vulcan then moved to dissolve the reinstatement order. The Secretary filed an opposition, and the administrative law judge (“ALJ”) assigned to the case denied the motion.

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 30 U.S.C. § 815(c) required the reinstatement order to remain in place; Commissioner Cohen believed that the language of the statute was ambiguous, but that the Secretary's position on the issue—that the reinstatement order should remain in place—deserved deference; and Commissioners Duffy and Young believed that the plain language of § 815(c) required that the reinstatement order be dissolved.

Vulcan timely sought review of the Commission's decision in this court.

IIDISCUSSION
A. Jurisdiction

The Commission had jurisdiction over this matter pursuant to 30 U.S.C. § 823(d). Although we have jurisdiction over final orders of the Commission, see30 U.S.C. § 816, the order with respect to temporary reinstatement is not a final order. The parties maintain, however, that we have jurisdiction over Vulcan's appeal under the collateral order doctrine.

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, 104 S.Ct. 1051, 79 L.Ed.2d 288 (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 § 815(c)(3). Whether the temporary reinstatement order should be dissolved is a matter of statutory interpretation, completely separate from the merits of Mr. Dunne's discrimination claim. Finally, any appeal on the merits of Mr. Dunne's complaint would not need to reach this issue, effectively depriving Vulcan of “any opportunity for a judicial hearing” on the temporary reinstatement issue. Jim Walter Res., Inc. v. Fed. Mine Safety & Health Review Comm'n ex rel. Price, 920 F.2d 738, 745 (11th Cir.1990). Consequently, we proceed to the substance of Vulcan's arguments with respect to the temporary reinstatement issue.

B. Statutory Language and History
1.

In this case, the parties dispute the unambiguous meaning of Section 815(c) of Title 30, a provision of the Federal Mine Safety and Health Act of 1977 (“FMSHA” or Act), which provides in relevant part:

(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 file a complaint with the Commission, with service upon the alleged violator and the miner, applicant for employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an opportunity for a hearing ... and thereafter shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing other appropriate relief. Such order shall become final 30 days after its issuance. The Commission shall have authority in such proceedings to require a person committing a violation of this subsection to take such affirmative action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and interest. The complaining miner, applicant, or representative of miners may present additional evidence on his own behalf during any hearing held pursuant to this paragraph.

(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.

30 U.S.C. § 815(c) (emphasis added) (footnote omitted).

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....

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