Wagner v. Martin
| Citation | 947 F.2d 943 |
| Decision Date | 05 November 1991 |
| Docket Number | No. 91-2025,91-2025 |
| Parties | 1992 O.S.H.D. (CCH) P 29,605 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Dennis Lee WAGNER, Petitioner, v. Lynn MARTIN, Secretary of Labor, United States Department of Labor; Gerald Sloce; Kenneth Howard; Federal Mine Safety & Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Argued: Jerry Oscar Talton, Jr., Front Royal, Va., for petitioner; Ellen Leslie Beard, United States Department of Labor, Washington, D.C., for respondents.
On Brief: Robert P. Davis, Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, Kerry L. Adams, Counsel for Appellate Litigation, United States Department of Labor, L. Joseph Ferrara, Federal Mine Safety and Health Review Commission, Washington, D.C., for respondents.
Before DONALD RUSSELL and NIEMEYER, Circuit Judges, and HENRY M. HERLONG, Jr., United States District Judge for the District of South Carolina, sitting by designation.
Dennis Wagner petitions this court for review of a June 6, 1990 order of the Federal Mine Safety and Health Review Commission determining that individual employees of the Labor Department's Mine Safety and Health Administration are not within the definition of "persons" who may be liable for discrimination against miners in violation of section 105(c) of the Federal Mine Safety and Health Act (Mine Act), 30 U.S.C. § 815(c). Finding that employees of the Mine Safety and Health Administration acting within the scope of their employment are not "persons" who may be liable under section 105(c), we affirm the Commission's order.
In June of 1987, Petitioner Dennis Wagner was employed as a miner at the Clinchfield Coal Company mine near McLure, Virginia, where Wagner also served as an elected safety committeeman of the United Mine Workers of America. As safety committeeman, Wagner was a representative of miners authorized under the Mine Act, 30 U.S.C. § 813(f), to accompany federal officials on their physical inspections of the coal mine's facilities. During an inspection of the Clinchfield Coal mine on June 23, 1987, Wagner pointed out a safety violation to the Mine Safety and Health Administration's mine inspector, Gerald Sloce. Inspector Sloce in turn informed Clinchfield Coal's safety inspector, Wayne Fields, that Wagner had reported the safety violation. Clinchfield Coal subsequently notified Wagner of his suspension from employment and Clinchfield Coal's intention to discharge Wagner due, in part, to Wagner's violation of a Clinchfield Coal policy requiring miners to first report safety violations to Clinchfield Coal before communicating them to the Labor Department's Mine Safety and Health Administration (MSHA).
Petitioner Wagner filed a discrimination complaint with MSHA against Clinchfield Coal Company, its owner Pittston Coal Group, three of their employees, the Mine Safety and Health Administration (MSHA), and MSHA employees Gerald Sloce and Kenneth Howard, the District Manager for MSHA in the area including McLure, Virginia. Dissatisfied with the scope of a complaint which MSHA filed with the Federal Mine Safety and Health Review Commission (the Commission) on his behalf, Wagner filed his own complaint with the Commission, alleging, inter alia, that MSHA's Inspector Sloce caused Wagner's discharge by informing Wayne Fields and Clinchfield Coal of Wagner's identity after Wagner reported the safety violation to Sloce during the June 23, 1987 mine inspection, and that MSHA conspired with mine owners such as the Pittston Coal Group to discriminate against miners who reported safety violations to MSHA.
Clinchfield Coal reinstated Wagner with back pay pursuant to a union arbitration hearing, and the parties ultimately settled MSHA's discrimination complaint against Clinchfield Coal, the Pittston Coal Group, and their employees pursuant to approval of the settlement agreement by an Administrative Law Judge (ALJ). Consequently, only the federal respondents remained in Wagner's cause of action.
On interlocutory review by the full Federal Mine Safety and Health Review Commission on June 6, 1990, the Commission dismissed all claims against the federal respondents. A majority of the Commission held that neither MSHA nor its employees can be sued under section 105(c) of the Mine Act. However, two commissioners dissented in part, concluding that, while MSHA and its agents cannot be liable under the Mine Act, individual employees of MSHA could be liable for discrimination in violation of section 105(c) if they exceeded the scope of their statutory authority. The dissenting commissioners expressed no opinion as to whether the conduct detailed in Wagner's complaint exceeded the MSHA employees' statutory authority, but would have remanded the case to the ALJ for further analysis.
Wagner filed a petition for review with the Fourth Circuit Court of Appeals on February 2, 1991. Wagner argues that the MSHA employees named in his complaint may be individually liable for violating section 105(c).
Section 105(c) provides...
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Meredith v. Federal Mine Safety and Health Review Com'n
...of action. Relying on Wagner v. Pittston Coal Group, 12 F.M.S.H.R.C. 1178 (1990), aff'd sub nom. Wagner v. Martin, 947 F.2d 943 (table), 1991 WL 224257 (unpublished opinion) (4th Cir.1991), wherein the full Commission found section 105(c) inapplicable to the MSHA and its employees because t......