Cobra Natural Resources, LLC v. Federal Mine Safety & Health Review Commission

742 F.3d 82, 37 I.E.R. Cas. (BNA) 1023, 2014 WL 279841, 2014 U.S. App. LEXIS 1579
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 27, 2014
Docket13-1406
StatusPublished
Cited by22 cases

This text of 742 F.3d 82 (Cobra Natural Resources, LLC v. Federal Mine Safety & Health Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobra Natural Resources, LLC v. Federal Mine Safety & Health Review Commission, 742 F.3d 82, 37 I.E.R. Cas. (BNA) 1023, 2014 WL 279841, 2014 U.S. App. LEXIS 1579 (4th Cir. 2014).

Opinions

Petition for review dismissed by published opinion. Judge KING wrote the majority opinion, in which Judge GREGORY joined. Judge AGEE wrote a dissenting opinion.

KING, Circuit Judge:

Petitioner Cobra Natural Resources, LLC (“Cobra”), seeks appellate relief from a decision of the Federal Mine Safety and Health Review Commission (the “Commission”), temporarily reinstating a coal miner. In October 2012, Russell Ratliff filed a discrimination complaint with the Secretary of Labor, alleging that Cobra had unlawfully retaliated against him under the Mine Safety and Health Act of 1977 (the “Mine Act”), by discharging him on the basis of safety concerns he had articulated with respect to Cobra’s mining operations. After an Administrative Law Judge (the “ALJ”) determined that Ratliff was entitled to temporary reinstatement pending a final order on his complaint, the Commission affirmed the reinstatement order. Asserting appellate jurisdiction under the collateral order doctrine, Cobra seeks judicial review of the Commission’s interlocutory decision. As explained below, we dismiss the petition for lack of jurisdiction.

I.

A.

In response to what was characterized as the “notorious history of serious accidents and unhealthful working conditions” in the coal mining industry, the Mine Act was enacted in 1977 to establish a compre[84]*84hensive regulatory scheme concerning mine safety and health in this country. See Donovan v. Dewey, 452 U.S. 594, 603, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). The Act contains a whistleblower provision that prohibits mine operators from discriminating against coal miners for making complaints “under or related to” the Act, including any complaint notifying an operator of “an alleged danger or safety or health violation” in a coal mine. See 30 U.S.C. § 815(c)(1).1

Because a complaining coal miner “may not be in the financial position to suffer even a short period of unemployment or reduced income pending resolution of the discrimination complaint,” the Mine Act established the temporary reinstatement procedure underlying this proceeding. See S.Rep. No. 95-181, at 37 (1977), reprinted in 1977 U.S.C.C.A.N. 3401 (1977); see also 30 U.S.C. § 815(c)(2). Pursuant to the Mine Act, the Secretary receives a miner’s discrimination complaint and conducts an appropriate investigation; if it is determined that the complaint was not “frivolously brought,” the Secretary applies to the Commission for an order temporarily reinstating the miner’s employment, “pending final order on the complaint.” See 30 U.S.C. § 815(c)(2). If the coal operator disagrees with the Secretary’s determination, it may request a hearing before an ALJ.

A reinstatement order does not require that a coal miner remain employed under any circumstance, but is subject to “changes that occur at the mine after [the order’s] issuance.” See Sec’y on behalf of Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (2009). Thus, a coal operator’s temporary reinstatement obligation can be “tolled” by the occurrence of certain events, such as a subsequent reduction-in-force that would have included the miner. See id. An ALJ’s ruling on a temporary reinstatement issue, including whether the reinstatement should be tolled, is subject to discretionary review by the Commission.

Regardless of whether the terminated coal miner is temporarily reinstated, the Secretary must complete the discrimination investigation within ninety days of the filing of the complaint. If it is decided that a violation of the whistleblower provision has occurred, the Secretary must file a complaint with the Commission, which conducts a hearing and issues a final order. If the Secretary instead determines that a violation has not occurred, the temporary reinstatement ends. See N. Fork Coal Co. v. FMSHRC, 691 F.3d 735, 744 (6th Cir.2012).

B.

Russell Ratliff, a southern West Virginia coal miner, was an equipment operator at Cobra’s Mountaineer Mine in Mingo County until, on October 17, 2012, he was abruptly discharged by Cobra. Promptly thereafter, Ratliff filed a discrimination complaint alleging that he had been terminated in retaliation for engaging in protected activity. The Secretary concluded that Ratliff’s claim was not frivolous and applied to the Commission for his temporary reinstatement. Cobra requested a hearing on the application, contending that Ratliffs complaint was frivolous and also asserting a tolling defense.2

[85]*85The hearing was conducted before an ALJ on January 7, 2013. In his January 14, 2013 Decision and Order (the “Reinstatement Order”), the ALJ agreed with the Secretary that Ratliffs discrimination complaint was not frivolously brought.3 The ALJ also rejected Cobra’s tolling contention, concluding that Cobra had failed to show that “work [was] not available to [Ratliff]” because of an asserted multi-employee layoff. See Reinstatement Order 18-19 (citing Gatlin, 31 FMSHRC at 1054-55). The ALJ directed Cobra to immediately reinstate Ratliff, with the same hours of work, rate of pay, and benefits received.

Cobra next sought Commission review of the Reinstatement Order, specifically challenging the ALJ’s analysis of the tolling issue. By its February 28, 2013 Decision (the “Commission Decision”), the Commission granted review but affirmed the Reinstatement Order.4 On March 27, 2013, Cobra timely filed the underlying petition for review, summarily asserting jurisdiction under the collateral order doctrine and contending that the Commission erroneously denied Cobra’s tolling defense.

II.

Although Rule 28(a)(4) of the Federal Rules of Appellate Procedure requires that an opening appellate brief contain a detailed jurisdictional statement, both parties gave short shrift to the asserted basis for appellate jurisdiction in this matter.5 As a result, prior to oral argument, we obtained supplemental briefing on the jurisdiction question. Therein, both parties once again summarily urged us to accept jurisdiction under the collateral order doctrine.6 Nevertheless, “we are obliged to satisfy ourselves of subject-matter jurisdiction, even where the parties concede it.” United States v. Urutyan, 564 F.3d 679, 684 (4th Cir.2009) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Mindful of our obligation with respect to jurisdiction, we must assess whether the Commission Decision is reviewable.

a:

Section 106(a)(1) of the Mine Act authorizes “any person adversely affected or aggrieved by an order of the Commission” to seek review in the court of appeals for the circuit in which the underlying statutory violation is alleged to have occurred. See 30 U.S.C. § 816(a)(1).

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742 F.3d 82, 37 I.E.R. Cas. (BNA) 1023, 2014 WL 279841, 2014 U.S. App. LEXIS 1579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobra-natural-resources-llc-v-federal-mine-safety-health-review-ca4-2014.