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- Longwall USA Exhibition & Conference (06-11)
- RMCMI Annual Meeting (06-23)
- Mpumalanga Minex 2013 (07-23)
- 31st International Conference on Ground Control in Mining (07-30)
|Turning the Tables on MSHA|
|Thursday, 28 June 2012 15:33|
How operators can take litigation matters into their own hands when MSHA abuses its authority
By Gregory M. Louer and Henry Chajet
Inspections by the Mine Safety and Health Administration (MSHA) are as inevitable as death and taxes. If you operate a mine in this country, MSHA inspectors will spend a lot of time on your property. While most inspectors are civil and many promote safety, even while undertaking enforcement actions, there are times when MSHA crosses the line from what’s authorized by the Federal Mine Safety and Health Act to an outrageous abuse of authority. This article addresses what can be done if an inspector crosses that line and MSHA management refuses to solve the problem, a situation that seems more common today than ever before.
The Traditional Methods of Addressing Enforcement Abuse
Fortunately, an operator can invoke three non-traditional statutory and constitutional rights of action to address abuse of MSHA authority under the Equal Access to Justice Act (EAJA), the Federal Tort Claims Act (FCTA), and “pattern and practice suits” under the U.S. Constitution’s Due Process clause to the Fifth Amendment. While none are perfect, each action permits an operator to “play offense” rather than defense, increase settlement leverage, and seek a solution in a forum that is likely to be more favorable than traditional MSHA contests.
The Equal Access to Justice Act
Of course, the definition of a “prevailing party” is in the eye of beholder. While the Supreme Court has ruled that a small business need only acquire “some relief from a court,” Buckhannon Bd. & Home Care, Inc. v. West Virginia Dep’t of Human Res., 532 U.S. 598, 603 (2001), ALJ Thomas P. McCarthy ruled in USA Cleaning Services and Building Maintenance v. FMSHRC, that a small business did not “prevail,” for purposes of EAJA, after challenging a withdrawal order and forcing MSHA to vacate it. That case is now pending before the Seventh Circuit Court of Appeals, and could determine if forced settlement “wins” qualify for attorney fee recovery in litigation before the Commission.
The Federal Tort Claims Act
Pattern and Practice Suits Against MSHA
While the standard for establishing jurisdiction on a pattern and practice claim can be tricky, recent case law makes clear that federal district courts have jurisdiction to entertain claims against MSHA when: (1) such claims are wholly collateral to the Mine Act’s review provisions and; (2) an operator proves that it is not challenging a specific enforcement action, but instead a pattern and practice of due process denials. If these two requirements are met, an operator should be able to establish a foundation to sue MSHA in federal courts when constitutional rights are in jeopardy.
Any federal suit against MSHA presents unique challenges and operators considering such actions should be cautious. Suing MSHA can have important political and agency relationship consequences that must be addressed on a case by case basis. MSHA personnel have an ongoing presence at the mines throughout the year and relationships with local officials must be managed appropriately and cooperatively whenever possible. However, it is equally important to protect your rights when MSHA officials abuse their authority, enforce without justification, and refuse to correct abusive enforcement. The EAJA, FTCA and the Constitution provide three tools to help you enforce and protect your rights—and on your terms; not MSHA’s.