by erik dullea and mark savit

In March 2018, this column discussed discrimination and interference under section 105(c), and two important cases that considered alternative tests to prove an interference claim  — Franks v. Emerald Coal and Pepin v. Empire Iron Range Mining.

At the time, the commission had only discussed the Franks and Pepin tests in McGary v. Marshall County Coal, and did not adopt either test. This article compares the ruling in McGary (affirmed by the D.C. Circuit Court of Appeals in May) to the ruling in Greathouse et al v. Monongalia County Coal Co.

McGary and Greathouse are similar because they involve multiple coal mines owned by Murray Energy Corp., were initially heard by the same administrative law judge (ALJ), and the commissioners still could not agree on a legal test to prove interference. An important difference between the two decisions is that the commission’s makeup changed after McGary — dropping from five to four members. The term of Commissioner Nakamura, a proponent of the Franks test, expired before the Greathouse case was argued.

In the McGary case, the secretary filed interference complaints on behalf of six miners, alleging that Murray’s CEO intimidated miners through speeches and PowerPoint presentations delivered at mandatory employee meetings. The commission affirmed the ALJ’s finding that the speeches and presentations interfered with the miners’ rights to file anonymous hazard complaints under section 103(g). However, three of the five commissioners concluded it was not appropriate to choose between the Franks and Pepin tests because the issue had not been fully briefed to the commission, and Murray’s actions violated the Franks and Pepin tests. The D.C. Circuit agreed and declined to choose one test over the other ­— leaving that decision for the commission in a future case.

Greathouse involved a dispute over bonus programs and the ALJ applied the Franks test and concluded the bonuses interfered with the miners’ exercise of protected rights. Two commissioners (Jordan and Cohen) agreed with the ALJ’s use of the Franks test, believing that proof of a motive is not required to show interference. They rejected Murray’s argument that the statute’s inclusion of the word “because” in section 105(c) showed the plain meaning of the law required proof of a motive, and without a plain meaning of the law, deference should be given to the secretary’s interpretations.

The other commissioners (Althen and Young) saw things differently, noting that the D.C. Circuit recently described section 105(c) as “a marvel of Congressional clarity” and that it was difficult to imagine a clearer expression of legislative intent. They identified a multitude of federal decisions that required words be used in their ordinary meaning unless the term is defined in the statute, and concluded that all violations of section 105(c) required the protected activity to motivate (at least in part) the adverse action. Because section 105(c) is clear and unambiguous, they concluded the secretary’s interpretation was not entitled to deference. The tie vote made the ALJ’s ruling the final outcome.

With the commission back at full-strength, tie-votes are unlikely on any future interference cases, but of greater importance may be the Supreme Court’s skepticism of judicial deference to agencies. This deference comes in two forms: agency interpretations of ambiguous laws that Congress directs agencies to administer; and agency interpretations of their own regulations. In Kisor v. Wilkie, the Supreme Court essentially gutted the deference to agency interpretations of regulations. Kisor directed courts to exercise their own independent judgment, in spite of agency interpretations, to glean the meaning of a ambiguous regulatory text.

Legal scholars expect the Supreme Court to issue similar guidance toward ambiguous statutes once the proper case is presented, but Kisor is already affecting cases before the commission. ALJ Gill applied Kisor in Peabody Midwest Mining (July 5) to determine whether MSHA’s interpretation of the words “area” and “removed” in section 75.380(b)(1) were entitled to deference. Based in large part on Kisor, ALJ Gill gave no deference to MSHA’s interpretation and vacated the citations.

Kisor and Peabody are cautious signs of optimism for the industry. If Kisor is overtly adopted by the commission and ALJs, operators may experience fewer instances where a safety standard garners a “new interpretation” to support an enforcement action. Now we wait for the Supreme Court to consider agency interpretations of statutory language like section 105(c).

Erik Dullea is a partner and Mark Savit is a senior counsel at Husch Blackwell. They can be reached at and