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
There is no official playbook an operator can turn to for direction when MSHA abuses its authority. Operators can and should discuss unreasonable enforcement first with MSHA leadership, from the local level all the way through Arlington if necessary. Moreover, operators can and should consider contests for invalid enforcement before the Federal Mine Safety and Health Review Commission, seek assistance from friendly congressional representatives, or even report abuses to the DOL Inspector General when dispute resolution fails. However, all of these routes may be fruitless, slow, time consuming and frustrating. In the meantime, a mine site might be improperly shut down or subject to clearly improper enforcement actions and penalties.

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
The EAJA permits small businesses to recover attorneys’ fees and expenses (including expert fees) from MSHA when the agency improperly brings an enforcement action, a business prevails, and MSHA’s position was not “substantially justified” in law or fact. See 5 U.S.C. § 504(a)(1). The statute is designed to curtail agency hubris and power through its resource advantage. However, the statute and the Commission’s rules limit the scope of EAJA to small businesses that employ less than 500 people and have net assets of less than $7 million. Further, the operator must “prevail” against MSHA during the course of an enforcement action.

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
Moving outside of the traditional enforcement process, the FTCA represents a limited waiver of the U.S. government’s sovereign immunity, and allows operators to hold MSHA and MSHA inspectors liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674; Olson v. United States, 546 U.S. 43, 45-47 (2005). The FTCA waiver of sovereign immunity is narrow, and certain “discretionary” acts or omissions by government officials may not be subject to the Act’s scope. However, several courts have held that private parties may sue federal government agents under the FTCA’s law enforcement provision, which authorizes a claim for relief against “law enforcement officers of the U.S. government” for certain enumerated intentional torts. 28 U.S.C. § 2680(h). Under this provision, operators could potentially hold MSHA and MSHA inspectors liable for enforcement actions that are based on unjustifiable legal positions, or enforcement actions that appear improperly motivated out of retribution.

Pattern and Practice Suits Against MSHA
While actions under the FTCA or EAJA apply under narrow circumstances in specific enforcement-related contexts, operators may consider a third option to sue MSHA in federal district court when the agency has engaged in a “pattern and practice” of enforcement abuse. A federal pattern and practice action arises under the Fifth Amendment Due Process clause of the U.S. Constitution, and must allege that MSHA or another government agency has taken action or a series of actions that violate due process rights. At least three operators have invoked this cause of action to challenge MSHA in recent years, including a recent case where a sand mine operator challenged MSHA’s pattern of abusing authority vested in the agency under Section 103(k) of the Mine Act.

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.

Louer is an associate in Patton Boggs LLP and may be reached at Chajet is a partner with Patton Boggs LLP and may be reached at