Patton Boggs Insights - December 2012: Litigation/Courts: Appeals Court Rules On MSHA Temporary Reinstatement


A miner’s temporary reinstatement benefits stop once the Federal Mine Safety and Health Review Commission orders an end to a discrimination proceeding. The ruling last month by the US Seventh Circuit Court of Appeals is a defeat for MSHA, which had argued that reinstatement continues even after its legal proceeding ends, if the miner brings the case on his own. Temporary reinstatement usually is economic and allows the miner to receive pay and benefits while his or her claim of safety discrimination is investigated and prosecuted by MSHA.

Sec. 105(c) of the Mine Act is designed to protect miners who allege they have been illegally fired or otherwise discriminated against for making safety complaints. Under the provision, a fired miner claiming safety discrimination may request temporary reinstatement while the claim is being reviewed. If MSHA determines the miner’s complaint is not frivolous, and the Commission concurs, temporary reinstatement is granted while the agency conducts a more in-depth investigation of the miner’s allegation. The agency can then prosecute the complaint before the Commission if it concludes a Sec. 105(c) violation may have occurred. Temporary reinstatement continues throughout this proceeding.

However, if MSHA decides not to prosecute the claim and the Commission dissolves the proceeding, the matter may not end there. That is because the miner still has recourse under Mine Act Sec. 105(c)(3) to revive the complaint by taking it directly to the Commission. However, the circuit court decision means that the miner will not have the benefit of temporary reinstatement during his direct prosecution of the claim.