Aggregates Manager Digital Magazine
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biguous, and one problem with the latter interpretation is that there will never be a final order if neither the Secretary nor the complainant decides to pursue the complaint. In addition, the section of the Mine Act dealing with independent miner ac- tions does not discuss temporary reinstatement and also refers to a miner's "action" as opposed to "complaint," suggesting that the two are not meant to be treated as equivalent. After considering the statute's construction and history, the Sixth Circuit was not persuaded by the Secretary's argument. The court found that Congress' construction and choice of language was purposeful, indicating that temporary reinstate- ment is inappropriate when a miner pursues an individual "action" under section 105(c)(3) of the Mine Act. The Court also relied upon language from the original House Conference Report indicating that temporary reinstatement should be or- dered "pending final outcome of the investigation." In reversing the Commission's decision, the court also noted that one factor supporting its holding was 27 years of prior practice consistent with its decision. From 1978 to 2006, the Code of Federal Regulations provided for dissolution of tem- porary reinstatement by the ALJ once the Secretary abandons the claim, and this practice was followed "without any serious controversy." In 2006, however, the Commission abruptly changed course, deleting that portion of the regulation and leaving the matter to be resolved through litigation. The Sixth Circuit noted that Congress had taken no steps to extend temporary reinstatement since 1977 and had even declined to enact proposed legislation in 2011 that would have provided for temporary reinstatement during the pendency of a miner's action. The Sixth Circuit's decision is an important curb on abuses of the temporary reinstatement provision of the Mine Act. Writing in a separate concurrence, Judge Sutton observed: If we accept the Secretary's new approach to the statute, moreover, what miner would not file an action with the Commission? And what lawyer would not recommend that very thing? The mere filing of an action, no matter how non-meritorious or even frivolous at that point in time, would ensure continued reinstatement through the end of the proceeding. That is no small matter in proceedings that can last as long as this one has — 35 months and counting since the reinstatement. Concluding that this has the potential to violate due process concerns, Sutton opines it is "far better" to treat the proceed- ings as distinct, "just as the Secretary construed the statute for the first 27 years of its existence." Experience: Retired November 2011 following 41 years with the U.S. Geological Survey USGS Aggregate Resource Geologist 1977-2011 Past President and Distinguished Service Award recipient, Society for Mining, Metallurgy, and Exploration, Industrial Minerals and Aggregates Division Author of ASBPE award-winning columns - Carved In Stone, Aggregates Manager, 1998-Present Services Off ered: Applied geology and geological research for construction rocks and minerals, with an emphasis on aggregates. Resource evaluation Expert testimony Technical writing and review Non-technical writing Confl ict assessment Lecturer Bill_Langer@hotmail.com Contact me at: Write 181on Reader Service Card or visit www.AggMan.com/info AGGREGATES MANAGER October 2012 31 If a miner must be reinstated until there is a final decision by the FMSHRC on the merits of a discrimination claim, it effectively holds mine operators hostage to weak or frivolous claims. The Sixth Circuit has effectively halted the trend of allowing temporary reinstatement claims to proceed unchecked. The Secretary's investigation of the merits of a miner's claim serves an important gatekeeping function that has now been restored. If the Secretary sees no merit in pursuing a miner's complaint, then the courts have no reason to assume the complaint has merit, and a miner is no longer entitled to temporary reinstate- ment. A discrimination claim may still proceed, but a mine op- erator is not forced to reinstate a miner whose claim has failed to persuade the Secretary in the first instance. AM