Secretary of Labor obo Stacey Wayne Puckett v. Panther Creek Mining, LLC (ALJ decision, October 24, 2017)

Plain-English summary

Panther Creek Mining had been providing Stacey Wayne Puckett temporary economic reinstatement while MSHA investigated his discrimination complaint. MSHA later told Puckett that its investigation had not found sufficient evidence of a Mine Act violation and that the Secretary would not bring a complaint on his behalf. Judge Jerold Feldman held that temporary reinstatement could not continue after the Secretary declined to prosecute the underlying claim. He granted Panther Creek's motion and dissolved reinstatement effective October 24, 2017, without preventing Puckett from filing his own discrimination complaint.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)-(3)
• Outcome: Panther Creek's motion was granted, and the temporary-reinstatement order was dissolved.
• Key point: Temporary reinstatement ends when the Secretary declines to pursue the miner's discrimination complaint, although the miner may still file independently.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW

COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA

AVE., N.W., SUITE 520N

WASHINGTON, DC

20004-1710

October 24, 2017

SECRETARY OF LABOR,

U.S. DEPARTMENT OF LABOR on behalf of STACEY

WAYNE PUCKETT,

Complainant

v.

PANTHER CREEK MINING, LLC,

Respondent

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. WEVA 2017-426

Mine: American Eagle Mine

Mine ID: 46-05437

ORDER

DISSOLVING

GRANT OF

TEMPORARY REINSTATEMENT

Before:            Judge Feldman

This temporary reinstatement proceeding is

based on an application for temporary reinstatement filed on June 7, 2017,

pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 815(c)(2) (“Act” or “Mine Act”), by the Secretary of Labor

(“Secretary”) on behalf of Stacey Wayne Puckett against Panther Creek Mining,

LLC (“Panther Creek”). Under section 105(c)(2), “if the Secretary finds that

[the underlying discrimination] complaint was not frivolously brought, the

Commission, on an expedited basis upon application of the Secretary, shall

order the reinstatement of the miner pending final order on the complaint.” 30

U.S.C. § 815(c)(2).   

The Secretary’s temporary reinstatement application

was supported by a sworn affidavit by a Mine Safety and Health Administration (“MSHA”)

Special Investigator that Puckett was terminated shortly after he was

questioned regarding a section 110(c) investigation at the American Eagle Mine.

Panther Creek did not deny that the subject interaction with the Special

Investigator had occurred, arguing instead that it was unaware of any

communication between Puckett and the MSHA investigator. The Secretary’s

reinstatement application was summarily granted on July 12, 2017. Sec’y of

Labor on behalf of Puckett v. Panther Creek Mining, LLC ,   39 FMSHRC 1406

(July 2017). The Order of Temporary Reinstatement was subsequently modified by

the grant of economic reinstatement as agreed upon by the parties. Amendment of

Order of Temporary Reinstatement, 39 FMSHRC ___  (Aug. 22, 2017). The modified

order noted that continued economic reinstatement was contingent on the

Secretary’s prosecution, pursuant to section 105(c)(2) of the Mine Act, of

Puckett’s discrimination complaint. Id.

Panther Creek has now filed an October 19, 2017,

motion to vacate Puckett’s economic reinstatement based on correspondence dated

October 12, 2017, in which MSHA advised Puckett that MSHA’s investigation

failed to reveal “sufficient evidence to establish, by a preponderance of the

evidence[,] that a violation of Section 105(c) occurred.” Panther Creek Mot. to

Vacate Order of Temporary Reinstatement, Ex. A at 1. Consequently, Puckett was

advised that the Secretary had declined to bring a discrimination complaint on

Puckett’s behalf. Id.

An order temporarily reinstating a miner cannot

survive the Secretary of Labor’s decision not to proceed with the miner’s

discrimination complaint under section 105(c)(2). Sec’y of Labor on behalf

of Dunne v. Vulcan Constr. Materials, L.P. , 34 FMSHRC 3070 (Dec. 2012)          (citing

700 F.3d 297 (7th Cir. 2012)); see also North Fork Coal Corp. v. FMSHRC ,

691 F.3d 735, 744 (6th Cir. 2012). Consequently, the grant of the Secretary’s

application for temporary reinstatement that awarded economic reinstatement

shall be dissolved.

ORDER

In view of the above, IT IS ORDERED that

Panther Creek’s October 19, 2017, Motion to Vacate Order of Temporary

Reinstatement IS GRANTED . Consequently, IT IS FURTHER ORDERED

that the underlying July 12, 2017, Order Granting Temporary Reinstatement IS

DISSOLVED effective as of the date of this Order. [1] Nothing

herein shall bar the filing by Puckett of a discrimination complaint on his own

behalf pursuant to section 105(c)(3) of the Mine Act. 30 U.S.C. § 815(c)(3).

/s/

Jerold Feldman

Jerold

Feldman

Administrative

Law Judge

Distribution:

Stacy Wayne Puckett, 1016 Hopkins Road, Danville, WV 25053 (Certified

Mail)

Kathleen F. Borschow, Esq., Robert S. Wilson, Esq., Office of the

Regional Solicitor, U.S. Department of Labor, 201 12 th Street South,

Arlington, VA 22202-5450 (Electronic and Certified Mail)

Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True,

PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513 (Electronic

and Certified Mail)

[1] This Order dissolving Puckett’s temporary

reinstatement has been served on the parties by electronic and certified mail.