United Mine Workers of America on Behalf of Dan Nelson,

Plain-English summary

The United Mine Workers of America filed two discrimination proceedings on behalf of miners against MSHA and individual MSHA employees. The complaints alleged violations of section 105(c) of the Mine Act. Judge Avram Weisberger concluded that MSHA and its employees were not persons subject to section 105(c) on the facts and precedent before him. He ordered both cases dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The two discrimination proceedings were dismissed.
• Key point: The judge applied Commission precedent holding that MSHA and its employees could not be sued under section 105(c) in these circumstances.

Full text (FMSHRC public release)

CCASE:
UMWA v. SOL (MSHA), AND ROBERT KIYKENDALL
UMWA v. SOL (MSHA) AND J. WEEKLY AND WILLARD QUERRY
DDATE:
19920214
TTEXT:

Page 2

~337
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

UNITED MINE WORKERS OF DISCRIMINATION PROCEEDING
AMERICA ON BEHALF OF
DAN NELSON, Docket No. SE 88-92-D
COMPLAINANT
v. Jim Walter Resources

SECRETARY OF LABOR, No. 7 Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
AND ROBERT KIYKENDALL,
RESPONDENTS

UNITED MINE WORKERS OF DISCRIMINATION PROCEEDING
AMERICA ON BEHALF OF
DAN NELSON, RONALD SONEFF, Docket No. SE 88-93-D
TOMMY BOYD, STAN ODOM AND
CARROLL JOHNSON, Jim Walter Resources
COMPLAINANTS
v. No. 7 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
AND JOHN WEEKLY AND,
WILLARD (GENE) QUERRY,
RESPONDENTS

                           ORDER OF DISMISSAL

Before: Judge Weisberger

 In this action commenced pursuant to Section 105(c) of the

Federal Mine Safety and Health Act of 1977 ("the Act"),
Complainants seek to hold MSHA and three of its employees liable
for alleged violations of Section 105(c) of the Act. On November
20, 1991, the Secretary filed a Motion to Dismiss arguing that, in
essence, the instant proceeding should be dismissed on the
basis of the decision of the Court of Appeals, D.C. Circuit, in
Wagner v. Pittston Coal Group, et al. (Case No. 90-1335,
unpublished decision, November 5, 1991). On December 13, 1991,
Complainants filed a Response to this Motion. On December 30,
1991 an Order was issued denying the Motion to Dismiss.

Page 3

~338
On January 23, 1992, the Secretary filed a Motion to Dismiss
the proceeding against both MSHA and the individual employees of
MSHA based on the decision of the Court of Appeals in Wagner,
supra, and the Commission decision in Wagner, 12 FMSHRC 1178,
(June 1990). UMWA filed its response on July 7, 1992.

                      I. Proceedings against MSHA

 The Commission in Wagner, 12 FMSHRC at 1185 supra held that

". . . MSHA is not a "person' subject to the provisions of
Section 105(c)", and dismissed the complaint that had been
brought against MSHA. It is true, as argued by complainants, that
this holding of the Commission, 12 FMSHRC supra was not affirmed
by the Court of Appeals in Wagner supra, as that issue was not
before the Court. However, it is just as clear, for the same
reasons, that the Court of Appeals did not reverse the Commission
with regard to its decision on this issue. Accordingly, I am
bound to follow the decision of the Commission as it is
applicable law. Hence, based on the decision of the Commission,
12 FMSHRC supra, I conclude that MSHA is not a "person" subject
to Section 105(c) of the Act, and that the portion of the
Complaints herein seeking relief against MSHA for alleged
violations of Section 105(c) of the Act should be dismissed.

         II. Proceedings against individual employees of MSHA

 The Commission, 12 FMSHRC supra at 1185 held that " . . .

MSHA employees are not "persons' subject to Section 105(c) and
thus. . . can not be sued individually under Section 105(c)".
Complainants argue that the Court of Appeals in Wagner, supra
reversed this holding of the Commission, as it held that an
individual MSHA employee can be held liable under Section 105(c)
of the Act. I do not agree with this interpretation of the
Wagner, decision. The Court in Wagner, supra, slip op. at 4,
concluded that " . . . MSHA employees acting within the scope of
their authority are agents of the sovereign, and therefore can
not be liable under Section 105(c)" The Court then examined
whether the employees therein acted so far beyond the scope of
their authority as to become "persons" who may be liable under
Section 105(c). The Court, in this connection held as follows:
"In the absence of a statutory prohibition against such
disclosure, there is no sound basis for the court to conclude
that Inspector Sloce exceeded the bounds of his statutory
authority by communicating Wagner's identity to Wayne Fields and
Clinchfield Coal." (Wagner, supra, slip op. at 5)

 In light of this conclusion, it may be seen, as argued by

the Secretary, that the Court on Wagner, supra, did not reach the
question as to whether individuals who act beyond the scope of
their authority are liable under Section 105(c). Further, the
Court in Wagner, supra, explicitly affirmed the decision of the
Commission which held that MSHA employees can not be sued

Page 4

~339
individually under Section 105(c). Hence, as correctly argued by
the Secretary, the applicable law as set forth in the
Commission's decision, 12 FMSHRC, supra and not reversed by the
Court of Appeals, requires a finding that the complaints herein
against employees of MSHA alleging liability under Section 105(c)
be dismissed.

 It is ORDERED these cases be DISMISSED.

                                Avram Weisberger
                                Administrative Law Judge