United States Court of Appeals, District of Columbia Circuit
May 4, 2017
Petition for Review of an Order of the Federal Mine Safety
and Health Review Commission
Oppegard argued the cause for petitioner. With him on the
briefs were Wes Addington and Evan B. Smith.
M. Faraq, Student Counsel, argued the cause for respondent
Jim Browning. With her on the brief were Erica J. Hashimoto,
Director, and Luke Sullivan, Student Counsel.
Before: Rogers, Millett and Pillard, Circuit Judges.
Rogers, Circuit Judge.
question presented by the petition is whether the Federal
Mine Safety and Health Review Commission, upon declining to
review a decision of an Administrative Law Judge,
see 30 U.S.C. § 823(d)(1), erred in rejecting
Michael Wilson's complaint of unlawful
"interference" with his rights as a miners'
representative under the Federal Mine Safety and Health
Amendments Act of 1977 ("the Mine Act"), 30 U.S.C.
§ 815(c)(1). Wilson's challenge arises in the
context of a Section 105(c) "interference"
allegation by a non-employee representative of miners against
a non-management employee. See 30 U.S.C. §
815(c). He contends that the Administrative Law Judge erred
as a matter of law in assessing whether
"interference" occurred and in applying the
Commission's summary decision standard. For the following
reasons, we deny the petition.
adopted the Mine Act "to protect the health and safety
of the Nation's . . . miners." Thunder Basin
Coal Co. v. Reich, 510 U.S. 200, 202 (1994) (quoting 30
U.S.C. § 801(g)). The Mine Act charges two separate
agencies - the Secretary of Labor and the Federal Mine Safety
and Health Review Commission - with "complementary
policymaking and adjudicative functions." Prairie
State Generating Co. v. Sec'y of Labor, 792 F.3d 82,
85 (D.C. Cir. 2015). The Secretary, acting through the
Department of Labor Mine Safety and Health Administration
("MSHA"), has rulemaking, inspection, and
enforcement authority, and the Secretary's reasonable
interpretation of the Mine Act is "accorded deference by
both the Commission and this Court." CalPortland Co.
v. Fed. Mine Safety & Health Review Comm'n, 839
F.3d 1153, 1162 (D.C. Cir. 2016). The Commission is an
adjudicatory body "independent of the Secretary."
Prairie State, 791 F.3d at 85-86 (citing 30 U.S.C.
§§ 815(d), 823).
105(c)(1) of the Mine Act provides that "[n]o person
shall . . . interfere with the exercise of the statutory
rights of any miner [or] representative of miners . . .
because of the exercise by such miner [or] representative . .
. of any statutory right afforded by [the Mine Act]." 30
U.S.C. § 815(c)(1). Miners' representatives have the
statutory right of access to the company's records for
purposes of examining whether hazardous conditions exist or
violations of mandatory health and safety standards have
occurred. See 30 U.S.C. §§ 813(h),
863(d)(1), (e), (f); 30 C.F.R. §§ 75.360(b), (h),
75.363(b), (d). The Secretary has concluded that
"interference" occurs when:
1.A person's action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with
the exercise of protected rights, and
2. The person fails to justify the action with a legitimate
and substantial reason whose importance outweighs the harm
caused to the exercise of protected rights.
McGary v. Marshall Cnty. Coal Co., 38 FMSHRC 2006,
2011 (Aug. 26, 2016); see also Franks v. Emerald Coal
Res., LP, 36 FMSHRC 2088, 2108 (Aug. 29, 2014) (Chairman
Jordan and Comm'r Nakamura, separate op.) (citing
Sec'y Amicus Br. at 10). The Commission has not settled
upon a test for interference. See McGary, 38 FMSHRC
at 2012 n.11; id. at 2028 n.22 (Chairman Jordan and
Comm'r Cohen, concurring in part and dissenting in part).
In Wilson's case, the Administrative Law Judge
("ALJ") applied the Secretary's test,
Wilson v. Browning, 38 FMSHRC 1161, 1163 (May 18,
2016) ("Dec."), and neither party has challenged
that test. See Pet'r's Br. 27-29;
Resp't's Br. 15 n.6.
Wilson is a former employee of Parkway Mine, which is located
in Muhlenberg County, Kentucky and operated by Armstrong Coal
Company In February 2014, Wilson began to serve as a
representative of miners. Upon his retirement in May 2015, he
continued to serve as a miners' representative. In a
discrimination complaint filed with MSHA, Wilson claimed that
on June 13, 2015 Jim Browning, who worked as a miner for
Armstrong Coal at the underground Parkway Mine, violated
Section 105(c) by interfering with his statutory right as a
miners' representative to inspect the mine's
examination books. Wilson requested that Browning be fined,
required to undergo training, and ordered to cease and desist
from future violations of ...