Secretary of Labor on behalf of Lawrence Pendley v. Highland Mining Company, LLC (ALJ decision, August 12, 2010)

Plain-English summary

The Commission revived Lawrence Pendley's temporary reinstatement and made it retroactive to May 28, 2010, the date of the court of appeals mandate. Highland Mining asked the ALJ to apply reinstatement only from July 2, when the Commission issued its order, because the company said it lacked notice that reinstatement would be retroactive. The Secretary and Pendley opposed the request and argued that the ALJ could not alter the Commission's chosen effective date. Judge David F. Barbour denied Highland's motion because the Commission had already decided that question, while leaving other reinstatement matters within the Judge's jurisdiction.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Highland's motion to make revived temporary reinstatement prospective only was denied.
• Key point: An ALJ could not change the retroactive effective date set by the Commission when it revived temporary reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, SUITE 9500
WASHINGTON, DC 20001

                                     August 12, 2010

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT MINE SAFETY AND HEALTH : PROCEEDING ADMINISTRATION (MISHA), on behalf : of LAWRENCE PENDLEY, : Docket No. KENT 2007-265-D
Complainant, : MISHA Case No. MADI CD 2007-05
:
v. :
: Mine ID: 15-02709
HIGHLAND MINING COMPANY, LLC, : Mine: Highland No. 9 Mine
Respondent :

       ORDER DENYING MOTION FOR PROSPECTIVE APPLICATION
                             OF
              REVIVED TEMPORARY REINSTATEMENT

     On July 2, 2010, a Commission majority agreed with the Secretary that Lawrence

Pendley’s right to temporary reinstatement was revived because the 6th Circuit Court of Appeals in Pendley v. FMSRHC, 601 F.3d 417, 429 (6th Cir. 2010), had divested the Commission’s decision in Mr. Pendley’s discrimination case of its “final” nature and had remanded the case to the Commission. The Commission stated: “While the court remanded the discrimination proceeding to the Commission for specific purposes, it also reversed the Commission’s decision upholding the judge. Prior to issuance of the Commission’s discrimination decision, Pendley had a right to temporary reinstatement. Because the discrimination proceeding is back before the Commission, the right is revived.” 32 FMSHRC, KENT 2007-265-D (June 2, 2010) (Order On Temporary Reinstatement) at 3. The Commission then ordered that Mr. Pendley “be reinstated immediately, with back pay retroactive to May 28, 2010, the date of the court’s mandate, and until such time as the Commission issues a final order upon remand in the discrimination proceeding. Jurisdiction over his reinstatement will otherwise rest with the judge.” Id. at 4 (n. omitted).

    Counsel for Highland has moved that I order the revived temporary reinstatement to be

effective as of the date the Commission issued its order – July 2, 2010. Counsel argues revival of the temporary reinstatement was a matter of first impression before the Commission and because it was not dealt with by the Court in its opinion, the first notice Highland had of the Commission’s interpretation of the law on the issue was on July 2, 2010, when the Commission issued its Order on Temporary Reinstatement. Because Highland had no notice of the retroactive nature of the reinstatement, the reinstatement should be effective as of the date of the Commission’s order. Respondent’s Mot. at 2. Highland’s motion is opposed by the Secretary and by Mr. Pendley, both of whom argue that because the Commission has reinstated Mr.

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Page 2

Pendley “retroactive to May 28, 2010,” I do not have authority to modify that part of the reinstatement. Secretary’s Opposition at 2 (quoting Commission’s July 2 Order at 4); Letter of Wes Addington to David Barbour (August 3, 2010). In addition, the Secretary asserts that even if I have jurisdiction, the concept of fair notice is inapplicable here, because the remedy of back pay has a “make whole” purpose, not a civil penalty or civil sanction purpose. Secretary’s Opposition at 3-4.

     Highland’s motion IS DENIED. As both counsel for the Secretary and Mr. Pendley

correctly note, the Commission ordered Mr. Pendley’s reinstated “immediately, with back pay retroactive to May 28, 2010, the date of the court’s mandate.” Order at 4. It is true that the Commission has returned jurisdiction over the reinstatement to me, but not as to the effective date of the reinstatement. That issue has been decided by the Commission. Other than that, I may rule on matters concerning Mr. Pendley’s revived reinstatement. Or, as the Commission put it, “Jurisdiction over [Mr. Pendley’s] reinstatement will otherwise rest with the judge.” Id.

                                          David F. Barbour
                                          Administrative Law Judge

Distribution:

Matthew N. Babington, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd, 22nd Floor, Arlington, VA 22209

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517

Wes Addington, Appalacian Citizens Law Center, 317 Main Street, Whitesburg, KY 41858

Mr. Lawrence Pendley, P.O. Box 84, Browder, KY 42326

/sa

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