.
DISCIPLINARY PROCEEDING
January 31, 2002
D 2000-1


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET N.W., 6TH FLOOR

                    WASHINGTON,  D.C.  20006

                        January 31, 2002


DISCIPLINARY PROCEEDING          :  Docket No. D 2000-1


BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

                              DECISION

BY: Verheggen, Chairman, and Jordan, Commissioner

This disciplinary proceeding arises under Commission Procedural Rule 80, 
29 C.F.R.  2700.80.1 On May 17, 2000, the Commission received a disciplinary 
referral pursuant to Rule 80, concerning circumstances related to a 
discrimination proceeding. In that case, the miner had filed a discrimination 
complaint with the Department of Labors Mine Safety and Health Administration 
("MSHA"), but nineteen months passed before the Solicitor of Labor filed with
the Commission an application for temporary reinstatement on the complaining 
miners behalf.2 For the reasons set forth below, we conclude that disciplinary
proceedings are not warranted.

      Underlying Discrimination Proceedings and Disciplinary Referral

On July 27, 1998, the miner in question filed a discrimination complaint with 
MSHA claiming that the operator terminated him in retaliation for his safety 
complaints. Specifically, the complaint alleged that, on several occasions 
during late June and early July 1998, the miner, who was employed as the mines 
crusher foreman, complained about faulty brakes on a fuel truck, and brought the 
problems to the attention of the mines maintenance supervisor. The complaint 
also alleged that during this period, the trucks faulty brakes were also noted 
in a "required maintenance form" by the driver of the truck. On July 7, after a
coworker told the miner that he heard that the company had no intention of fixing 
the fuel truck brakes, the miner red tagged the truck, taking it out of service.
Eight days later the company terminated the complainant.

Approximately nineteen months after the miner filed his discrimination complaint,
the Solicitor of Labor filed with the Commission an application for temporary
reinstatement on the miners behalf. The judge hearing the Secretarys application 
referred to the miners testimony that his discharge occurred eight days after his
complaint to management about the brake problems on the truck, and found that the 
miners claims, if found to be credible at a merits proceeding, would constitute 
protected activity and evidence of a discriminatory motive for the discharge. The
judge therefore concluded that the miners discrimination complaint had not been 
frivolously brought, and ordered him temporarily reinstated. The company appealed
the judges order to the Commission.

In an interim decision, we concluded that substantial evidence supported the judges 
determination that the miners discrimination claim was not frivolous. We also
expressed concern about the Secretarys delay in applying for the miners temporary 
reinstatement and her failure to explain why this delay occurred. We retained 
jurisdiction over the temporary reinstatement case, and ordered the Secretary to 
explain the circumstances surrounding the protracted delay in applying for the 
miners temporary reinstatement.

In response to our order, a staff attorney in the Solicitor of Labors Arlington, 
Virginia office submitted a letter stating that factors contributing to the delay 
included a lengthy investigation of the miners allegations, requests for additional
information by the district and the Solicitors Office, a delay by MSHA in forwarding 
the case to the Solicitors San Francisco regional office, and a delay in reviewing
and filing the application for temporary reinstatement by the Solicitors Office. 
The attorney also indicated the San Francisco regional office had the case for
approximately seven months before filing the application for temporary reinstatement.
The attorney stated that, while litigation resources in the San Francisco office were
"tight," steps had been taken to ensure that such delays do not occur again.

On May 17, 2000, a disciplinary referral was filed pursuant to Commission Procedural 
Rule 80(c) by Commissioner Beatty,3 based on the nineteen months that had passed 
between the miner filing his discrimination complaint and the Solicitors application 
for temporary reinstatement of the miner. The referral suggested that if the Regional
Solicitor or any attorney in the Regional Solicitors Office contributed in any 
material way to that delay, such conduct would justify bringing disciplinary proceedings 
against such attorney or attorneys. The referral requested that the Commission conduct 
an inquiry to determine whether disciplinary proceedings were warranted.

                                            II.
                                            
                                        Disposition
                                        
Pursuant to Rule 80(c)(2), the Commission conducted an inquiry to determine whether 
disciplinary proceedings are warranted in this matter. This included, among other 
efforts, interviews with the miner, a review of the record in the underlying 
discrimination proceeding, and a meeting with then Solicitor of Labor, Henry Solano.4 
In the course of our inquiry, we uncovered a substantial amount of information 
concerning the factors which contributed to delay in processing the miners complaint.
We conclude that the delay was unacceptable, inexcusable, and wholly avoidable. Based
on our investigation, we have determined that the lengthy delay which occurred in
this case reflects a fundamental misunderstanding of the Mine Act and a systemic 
failure to properly implement the Acts discrimination provisions on the part of 
MSHA and the Solicitors Office.

Complaints of discrimination under section 105(c) of the Mine Act are filed with 
MSHA, which investigates them and forwards those it believes have merit to the 
appropriate Regional Solicitors Office for review, further investigation if 
necessary, and, when appropriate, the filing of an application for temporary 
reinstatement with the Commission. Our investigation and the letter we received 
from a staff attorney in the Solicitors Office in response to our order establish
that approximately twelve months elapsed between the filing of the miners complaint
with MSHA on July 27, 1998 and MSHAs forwarding of the case file to the San 
Francisco Regional Solicitors Office in June or July 1999. An additional seven 
months passed between the San Francisco offices receipt of the miners file and 
that offices application for temporary reinstatement on January 21, 2000.

MSHAs twelve-month delay, we have determined that, at some point in the processing
of the miners discrimination claim, MSHA initiated a section 110(c) investigation
into whether the complainant miner, in his capacity as a crusher foreman, played 
any role in the continued use of the allegedly defective truck. Section 110(c) of 
the Mine Act provides that, whenever a corporate operator violates a mandatory 
health or safety standard, a director, officer, or agent of such operator who 
knowingly authorized, ordered, or carried out the violation shall be subject to an 
individual civil penalty. 30 U.S.C.  820(c). During our investigation, we were 
informed by the Solicitor of Labor that MSHA and the Solicitors Office refuse to
pursue statutorily mandated section 105(c) discrimination actions on behalf of 
miners against whom section 110(c) allegations have been raised, until the section
110(c) investigation is completed, and a determination is made that section 110(c)
charges will not be brought. They have adopted this policy to avoid a conflict of 
interest between the Solicitors prosecutorial role as the Secretary of Labors
counsel, and the Solicitors role in representing miners under the anti-
discrimination provision of the Mine Act. Thus, a very large part of the delay in 
MSHAs investigation of the underlying discrimination complaint here is 
attributable to its investigation of the miner under section 110(c).

While we appreciate the conflict faced by the Solicitors Office in such situations,
we strongly disagree with the way that office has chosen to resolve it. We believe 
that prioritizing section 110(c) investigations over section 105(c) complaints 
represents a fundamental misinterpretation of the Mine Act.

Neither the text nor the legislative history of the Mine Act supports the hierarchy 
of priorities that MSHA and the Solicitor have chosen to follow. Indeed, such an 
approach contravenes both the letter and the spirit of that statute. Section 
105(c)(2) of the Mine Act mandates expeditious time limits governing the processing 
of discrimination cases by the Secretary and the Commission. For instance, under 
section 105(c)(2) the Secretary must initiate an investigation into the allegations 
in a miners discrimination complaint within 15 days of receiving the complaint, 
and if the Secretary finds that such complaint was not frivolously brought, the 
Commission, on an expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending a final order on the complaint. 30 U.S.C.
 815(c)(2). Section 105(c)(2) also provides that "[i]f upon such investigation, the
Secretary determines that the provisions of this [subsection] have been violated, he
shall immediately file a complaint with the Commission . . . alleging such 
discrimination . . . ." Id. Section 105(c)(3) provides that "[w]ithin 90 days of 
the receipt of a complaint . . . , the Secretary shall notify the miner . . . of 
his determination whether a violation has occurred." 30 U.S.C.  815(c)(3). Congress
inclusion of these time limits evidences the importance it has placed on the speedy
processing of discrimination cases.

Moreover, the Mine Acts legislative history clearly reflects Congress considered 
judgment that discrimination complaints must be accorded the utmost priority. S. Rep.
No. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978) 
("Legis. Hist.") ("The bill requires the Secretary to rigorously enforce these rights 
with discrimination complaints receiving high priority."). In enacting the temporary
reinstatement provision in section 105(c), Congress was clearly concerned about miners
who are out of work while their discrimination complaints are being processed. See
S. Rep. No. 95-181, at 37 (1977), reprinted in Legis. Hist., at 625 ("[T]emporary 
reinstatement is an essential protection for complaining miners who may not be in 
the financial position to suffer even a short period of unemployment . . . pending 
the resolution of the discrimination complaint."). Miners are statutorily precluded 
from applying for temporary reinstatement themselves. See 30 U.S.C.  815. Rather, 
they must rely on the Secretary of Labor in her best judgment to do so on their behalf.
Because the policy of subordinating section 105(c) claims to section 110(c) 
investigations thwarts the statutory purpose of expediting relief for victims of 
discrimination, it is unsupportable.

In a practical sense, the policy of MSHA and the Solicitor invites delay of the 
magnitude which occurred in the underlying discrimination matter here. Such delay 
has serious implications for effective enforcement of the Acts protections. Under
this policy, miners whose temporary reinstatement applications are delayed could
conceivably go for months without a paycheck until the section 110(c) matter is 
resolved. In this matter, according to an affidavit submitted by an attorney in 
the Solicitors Office who worked on the miners discrimination case, the miner,
after months without a paycheck, suffered severe economic hardship. The natural 
effect of delaying both a miners vindication of his rights to be free from 
discrimination and to obtain temporary reinstatement is that all miners will be 
discouraged in the future from asserting their rights under the Mine Act. It is
our firm belief that the delays caused by MSHA and the Solicitors Office 
mishandling of this case could discourage miners from asserting rights under the 
Act as much as anything a mine operator could do. Yet miner participation in 
securing the Acts promise of a safe and healthy workplace is a foundation of the 
statutory enforcement scheme. See S. Rep. No. 95-181, at 35, reprinted in Legis. 
Hist., at 623 ("If our national mine safety and health program is to be truly 
effective, miners will have to play an active part in the enforcement of the Act.").

Equally or more troubling than this specter of delay are the consequences in a case 
in which the Solicitors office decides to proceed with a section 110(c) charge 
against a miner. In such a case, it is our understanding that the Solicitor will 
never agree to represent that miner in the temporary reinstatement or discrimination
proceeding, because of the perceived conflict of interest. This policy in effect 
permits section 110(c) allegations to completely trump the miners right to immediate
temporary reinstatement and relief from discrimination. This is troubling because 
under the Mine Act, only the Secretary can apply for temporary reinstatement on a 
miners behalf -- the application cannot be filed by private counsel. Consequently,
the Solicitors policy could have the effect of severely limiting the temporary 
reinstatement provision of the Mine Act.

Because this policy eviscerates the protections of section 105(c) of the Mine Act, 
causing significant hardship to miners bringing discrimination claims, we urge the
Solicitor to review this conflict of interest issue again and attempt to devise 
solutions that will permit the Secretary to carry out her responsibilities under 
both sections 105(c) and 110(c) of the Act.5

In addition to the troubling MSHA policy which clearly impeded progress in the 
initial investigation of the 105(c) case, we are concerned about the subsequent 
delay which occurred after the discrimination complaint finally arrived at the 
Regional Solicitors Office.6 Our investigation revealed that decisional paralysis
on the part of the Solicitors Office contributed substantially to the delay in
processing the miners case. While we are not certain when MSHA decided not to 
pursue section 110(c) charges against the miner, we can nevertheless conclude, 
based on the Solicitors policy of refusing to pursue a miners discrimination 
complaint before MSHA has decided whether to pursue section 110(c) charges against
that miner, that the agency had decided not to pursue section 110(c) charges by 
July 1999 when an attorney from the Regional Solicitors Office finally contacted
the miner. Consequently, by this time, the potential conflict between the Solicitor 
acting in his capacity as the Department of Labors attorney and as an attorney 
acting on behalf of a complaining miner no longer existed, and thus cannot explain 
the complaint processing delay which followed.

While we acknowledge the assertion of the Solicitors Office that additional 
investigatory work was necessary after it received the case materials from MSHA, 
we nevertheless conclude that its 7-month delay in filing an application for 
temporary reinstatement can only be characterized as a "bureaucratic meltdown."
Indeed, the attorney responding to our order for an explanation of the delay 
stated that the filing of an application for temporary reinstatement on the 
miners behalf was unnecessarily delayed in the Regional Solicitors Office, 
essentially admitting that some portion of that offices 7-month delay was 
avoidable. Whether the delay is attributable to a dilatory initial assignment 
of the miners discrimination case to an attorney in the Regional Office or 
inefficient processing of the case by various attorneys at agency headquarters
or in several field offices later assigned to handle the matter, such 
mismanagement is unacceptable, particularly in situations where a miner is out
of work pending action by the Solicitors Office.7

Finally, during the course of our investigation into this matter we have become
aware that the Solicitor of Labor believes that no attorney-client relationship
exists between the Solicitor and a miner on whose behalf the Solicitor brings a 
section 105(c) complaint or temporary reinstatement proceeding. Rather, the 
Solicitor considers the Department of Labor to be its client, with complaining 
miners having only a derivative interest in a discrimination complaint the 
Secretary brings on a miners behalf.

However, we find nothing in the manner in which the Solicitor of Labor handles
section 105(c)(2) discrimination cases that indicates to miners that counsel in 
the Solicitors Office are not their attorneys. Miners file discrimination 
complaints with MSHA. The first stage at which attorneys from the Solicitors 
Office publicly represent the interests of such a complainant is in temporary 
reinstatement proceedings, for which only the Secretary may apply. If the 
Secretary subsequently concludes that the anti-discrimination provisions of the 
Act have been violated, she must prosecute a discrimination complaint, "suing 
on behalf of the complainant." Eastern Assoc. Coal v. FMSHRC, 813 F.2d 639, 
644 (4th Cir. 1987); 30 U.S.C.  815(c)(2).8 The caption in these cases always
reads "Secretary of Labor on behalf of" the miner. In addition, attorneys in 
the Solicitors Office during the course of litigation of a temporary 
reinstatement or discrimination claim perform many of the same tasks that an
attorney in such a case would perform on behalf of a client (such as acting on
behalf of the miner in settlement negotiations, etc.).

In our investigation of this matter we have found nothing that would have led 
the miner to believe that attorneys in the Solicitors Office litigating his 
case were anything other than his attorneys. But as stated above, we have 
learned that the Solicitor does not hold such a view. Insofar as the views of
the Solicitor might tend to confuse complaining miners, the Solicitor of Labor
is, we believe, duty bound to disabuse miners of any notion that attorneys in 
the Solicitors Office handling miners discrimination cases consider themselves
to be those miners attorneys.

In sum, we emphasize that delays of the sort that happened in this matter are 
unacceptable. Such delays are harmful to the very interests of miners that the 
Secretary of Labor is charged under the Mine Act with protecting and have a 
significant chilling effect on miners willingness to lodge safety complaints. 
Here, however, we find no basis for referring this matter to one of our judges 
under Rule 80. Instead, we have discovered a significant misapplication of 
section 105(c), compounded by inexcusable administrative delays in the handling 
of the miners case, all of which reveals not an ethical lapse by any individual 
attorney, but rather a failure of the system.

Accordingly, we do not find it appropriate to sanction individual lawyers for 
what is fundamentally an institutional problem, and thus conclude that assignment
of this matter to an administrative law judge for further proceedings is 
unwarranted. This disciplinary referral is therefore terminated.


                                  Theodore F. Verheggen, Chairman

                                  Mary Lu Jordan, Commissioner
                                  
                                  
Commissioner Beatty, dissenting:

The legislative history of the Mine Act clearly reflects Congress considered 
judgement that discrimination complaints must be accorded the utmost priority. 
S. Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. 
on Human Res., Legislative History of the Federal Mine Safety and Health Act of 
1977, at 624 (1978) ("Legis. Hist."). By the plain terms of the Mine Act, miners
are precluded from applying for temporary reinstatement and therefore must rely 
on the Secretary of Labor to do so on their behalf. 30 U.S.C.  815(c)(2). In 
enacting the temporary reinstatement provision in section 105(c), Congress was 
clearly concerned about miners who are out of work while their discrimination 
complaints are being processed. "[T]emporary reinstatement is an essential 
protection for complaining miners who may not be in the financial position to
suffer even a short period of unemployment pending the resolution of the 
discrimination complaint." S. Rep. No. 95-181 at 37; Legis. Hist. at 625. 
Consequently, the Secretary is required by the Mine Act to commence her 
investigation of a discrimination complaint with 15 days of receiving it, and,
upon the mere determination that the complaint is not frivolous, to seek a 
Commission order temporarily reinstating the complaining miner to his job. 
30 U.S.C.  815(c)(2); S. Rep. No. 95-181 at 36-37; Legis. Hist. at 624-25.

"We conclude that the delay [in processing the complainants case] was 
unacceptable, inexcusable, and wholly avoidable." Slip op. at 4. "[W]e have 
determined that the lengthy delay which occurred in this case reflects . . . 
a systematic failure to properly implement the [Mine] Acts discrimination 
provisions on the part of . . . the Solicitorss Office." Slip op. at 4 
(emphasis added). "Our investigation revealed that decisional paralysis on 
the part of the Solicitors office contributed substantially to the delay in
processing the miners case." Slip op. at 6 (emphasis added). "[W]e . . . 
conclude that [the Solicitors] 7-month delay in filing an application for 
temporary reinstatement can only be characterized as a bureaucratic meltdown."
Slip op. at 7. The Solicitors Office "essentially admitt[ed] that some portion 
of [the] . . . delay was avoidable." Slip op. at 7 (emphasis added). "Whether 
the delay [was] attributable to . . . an attorney in the Regional Office 
or . . . attorneys at agency headquarters . . . , such management is 
unacceptable, particularly . . . where a miner is out of work pending action 
by the Solicitors Office." Slip op. at 7.

The foregoing language has been excerpted from the majoritys opinion. It 
clearly reflects my colleagues understanding of the temporary reinstatement
provision of the Mine Act and its importance to the health and safety of our
nations miners. It further acknowledges the majoritys complete understanding
of the Secretarys statutory duty as the sole enforcer of this important 
provision. The language also lays out my colleagues findings relating to the
failure of the Solicitors Office and MSHA to exercise their statutory 
obligations in this temporary reinstatement case. Given the harshness of these 
excerpts, one would expect the majority to fully investigate the circumstances
surrounding the19-month delay in the filing of the miners temporary 
reinstatement application, a delay which the majority predicts will "have a 
significant chilling effect on miners willingness to lodge safety complaints
[under the Mine Act]." Slip op. at 8 (emphasis added). The majority position, 
however, demonstrates that, at least in matters involving the Secretarys 
obligation to obtain temporary reinstatement orders, the Commissions
enforcement of its disciplinary process is all bark and no bite.

As this opinion will make clear, I believe my colleagues decision to dismiss 
this case without a complete investigation will seriously erode the foundation
upon which the protective purposes of section 105(c) of the Mine Act were 
founded. I can think of no single decision issued by this body, either past or
future, that will cast a darker cloud over the protection of miners health and 
safety then the one issued by the majority today. What makes todays decision 
troubling is that this case is not one in which we must decide between the 
positions espoused by Secretary and an operator, as we do in nearly all our 
decisions. What we are faced with here is not deciding which party is correctly
interpreting a statue or regulation, or the appropriateness of a civil penalty. 
The instant case, instead, removes us from our normal roles and requires us to 
serve as investigators charged with conducting a thorough and impartial inquiry
into facts that resulted in the filing of a disciplinary referral, and to serve 
as impartial evaluators of the evidence gathered. Then, if necessary, to make a
reasoned decision as to whether the case should be referred to an administrative
law judge. In my opinion, the majoritys handling of this case falls far short
of completing these important tasks.

To gain a complete understanding of this case, it is helpful to closely examine
the facts regarding the 19 months that elapsed from the filing of the miners 
section 105(c)(2) complaint with MSHA to the Secretarys filing of a temporary 
reinstatement application. All of these facts are either contained in the public 
record of the temporary reinstatement case or were obtained by Commission personnel
conducting the Commissions limited investigation into this matter. On July 27, 
1998, the miner in question, a supervisor,1 filed a discrimination case against 
his employer alleging he was terminated earlier that month in retaliation for 
"safety" complaints he raised relating to his operation of a 1948 model fuel truck 
(hereinafter "truck 627"). According to the miner, truck 627 had a lengthy history
of numerous safety problems including, but not limited to, faulty brakes. The miner
had raised many maintenance requests concerning truck 627 with the operator, which,
according to the miner, did not want to be bothered about the trucks problems.

In addition to raising complaints about truck 627s maintenance problems, the miner 
also had an argument with the operators safety manager when the miner refused to 
complete MSHA training certificates indicating that he had certified new drivers.
The miners complaints about truck 627, and the operators subsequent failure to 
correct the problems, culminated in the miner "red tagging" the truck and taking 
it out of service. According to the miner, from the day he red tagged truck 627,
he faced a tense and hostile work environment. Following his discharge, MSHA 
inspected truck 627 and issued an unwarrantable failure citation for various defects.

Soon after the miner filed his discrimination complaint with MSHA, he was contacted 
by Steve Cain, an MSHA special investigator assigned to investigate the case. In 
the months that followed the miner attempted on numerous occasions to contact 
Mr. Cain to check on the status of his discrimination case. In November 1998, after 
first being told that his case file had been lost, the miner was informed that his
case file had been transferred to an individual named Ethel Horton in MSHAs
Arlington, Virginia headquarters.

Apparently, the miner had several conversations with Horton and also sent her 
letters. He indicated that during this time period he was in constant contact 
with MSHA, but no one ever called him back. According to our investigation, at 
some point in July 1999, 12 months following the filing of his discrimination 
complaint, the miner was finally contacted by an attorney representing the 
Solicitors Office. The attorney apparently told the miner that one of the "major
hurdles" in his case was MSHAs investigation under section 110(c) of the Mine Act
of the miners alleged responsibility for the violations involving truck 627. Then,
it was not until 7 more months had elapsed that the Solicitors Office saw fit to 
file an application for temporary reinstatement with the Commission in February
2000. The reinstatement case was heard that month by a Commission administrative 
law judge, who within 3 days ordered the miner reinstated to his job at the same 
rate of pay and benefits he was receiving prior to his discharge. The judges 
decision was appealed by the operator and was unanimously affirmed by the 
Commission.

On May 17, 2000, after a lengthy review of the case, I filed a disciplinary 
referral pursuant to Rule 80(c), requesting that the Commission investigate 
whether attorneys subject to the Commissions disciplinary rules were involved 
in, what had been up until that time, an unheard of delay in the filing of the 
miners temporary reinstatement application. The language used by the majority 
today vindicates that referral. Upon receipt of the disciplinary referral, 
Commission Procedural Rule 80(c) mandated that the Commission conduct an inquiry 
into the allegations raised in the referral to determine whether disciplinary 
proceedings were warranted. 29 C.F.R.  2700.80(c).

The majority analyzes the Secretarys delay in filing for temporary reinstatement
of the miner as composed of two separate and distinct delays. That is, a 12-month 
delay from the filing of the discrimination complaint until the time the 
Solicitors Office claims it became involved, and an additional 7-month delay 
after the Solicitors Office took the case. The majority feels that the initial 
delay can be attributed solely to MSHA, with the Solicitors Office only 
responsible for the latter delay. Based on the Solicitors Office own admissions,
I completely disagree with the majoritys conclusion that the Solicitors Office 
was not involved in this case during the first 12 months of the delay. For 
purposes of clarity in discussing the matter, however, I will discuss the delays
separately.

A. The Initial 12-Month Investigatory Delay

According to the majority, further disciplinary proceedings are not warranted here 
because it found

no basis for referring this matter to one of our judges under Rule 80. Instead,
we have discovered a significant misapplication of section 105(c), compounded by 
inexcusable administrative delays in the handling of the miners case, all of 
which reveals not an ethical lapse by any individual attorney, but rather a 
failure of the system.

Slip op. at 8 (emphasis in original). In essence, the majority is arguing that 
the Commissions investigation failed to uncover evidence that the 12-month delay
could be attributed to any individual attorney.2 In so doing, the majority sees 
fit to then place the blame for the delay in bringing the miners case for
reinstatement on the system. Apparently, they believe that placing the blame on
the system adequately explains their decision to dismiss this case without 
conducting a complete inquiry into the roles of the individuals involved. With 
all due respect to the majority, its finding of a "system failure" 3 does not 
withstand even superficial scrutiny once the background of the Commissions 
"investigation" is examined.

Much can be learned about the Commissions inquiry into the matter simply by 
considering the amount of time devoted to the investigation. The Commissions
complete inquiry into the facts surrounding the entire 19-month delay 
encompassed a grand total of about 9 hours. With the exception of six meetings
held by the Commission on this matter, the entire investigation consisted of
an interview with the miner, and a meeting with former Solicitor of Labor
Henry Solano and several representatives from the Solicitors Office. Conversely,
the Secretary claims that MSHA and the Solicitors Office spent a total of 19
months investigating the matter. This gross disparity in investigation time is 
alarming, and in my opinion speaks volumes not only about the inquiry, but also
the majoritys decision to dismiss the case because of a lack of evidence.

In addition, the majoritys conclusion that it could not find an ethical lapse 
by an individual attorney is highly questionable because the Commission never 
even asked the Solicitors Office to account for, on the record, its attorneys
 involvement in the case. At the outset of this proceeding, the Commissions 
Office of General Counsel (OGC) suggested that, because the Commission did not
have sufficient facts to reach a determination whether formal disciplinary 
proceedings were warranted, we could order affidavits from attorneys in the 
Solicitors Office. Such affidavits are contemplated by the Commissions 
disciplinary rules, and the Commission has, in the past, received affidavits 
during an inquiry into an alleged violation of the Commissions rule against 
ex parte communications. See 29 C.F.R.  2700.80(c)(2); Secy of Labor on behalf
of Beavers v. Kitt Energy Corp., 8 FMSHRC 15, 16 (Jan. 1986)); see also UMWA on 
behalf of Rowe v. Peabody Coal Co., 7 FMSHRC 1136, 1140 (Aug. 1985).4

I subsequently urged my colleagues to follow past Commission practice and submit
a series of questions to certain individuals in the Solicitors Office in an 
attempt to gather more information about who was involved in this case and what
their respective roles were during the 19-month delay. The pertinent part of the 
draft order containing the questions that I proposed is Appendix A to this opinion.
Unfortunately, the majority did not agree that such a request of officials in the
Solicitors Office was necessary, even though it may well have exposed the very 
evidence they now claim is lacking that any individual attorney was responsible 
for the delay in processing the miners temporary reinstatement. I continue to 
believe that to even begin to understand how the Secretary could delay filing a
temporary reinstatement application for 19 months, the Commission should have 
submitted via order a series of questions to the Solicitors Office.

As part of our investigation my colleagues did agree to an interview of the miner,
and from that interview we discovered a number of interesting facts. For example, 
we learned that during the 19-month delay the miner had interacted with at least 
eight different individuals employed by either MSHA or the Solicitors Office. 
The miner provided the names of these individuals, along with multiple pages of 
typed notes that he stated were created contemporaneous to the phone conversations.
This information was an excellent opportunity for us to direct particular questions 
to those individuals, particularly with regard to an issue the miner could not help
with, which was whether anyone from the Solicitors Office was involved with the 
case during the 12 months that MSHA was allegedly investigating the case. In spite 
of repeated efforts, however, I was unable to garner the support of the majority 
to submit questions to the Secretarys responsible representatives.

Further adding to the curiousness of the majoritys decision to dismiss this case
was the Solicitors ever-changing explanation of how and why it took 19 months to
investigate the miners complaint and file a temporary reinstatement application. 
In affirming the administrative law judges temporary reinstatement order, we 
requested a full explanation for the delay from the Secretary. In response, we
received a letter from a staff attorney in the Solicitors Office that provided a 
rather lengthy list of reasons for the 19-month delay, including: a lengthy 
investigation of the miners allegations, requests for additional information by
the district and the Solicitors Office, a delay in forwarding the case to the 
Solicitors Office in San Francisco, and a 7-month delay in reviewing and filing 
the temporary reinstatement application by the Solicitorss regional office. A 
majority of the Commission felt at that time that the information provided fell 
woefully short of what was expected, given the gravity of the situation.

The Solicitor then took another stab at curtailing the Commissions inquiry into
the disciplinary referral by submitting to the Commission a letter where he took
the position that, regardless how dilatory his office was in filing a temporary
reinstatement application, it was an exercise of prosecutorial discretion and
therefore not subject to the Commissions disciplinary rules. After that argument,
not surprisingly, failed to persuade us,5 the Solicitor and several representatives
from his office eventually met with the Commission to discuss the disciplinary 
referrals. It was there for the first time that the Solicitor unveiled his latest
explanation for the initial 12-month delay: the conflict of interest that he 
claimed precluded his office from pursuing temporary reinstatement for the miner
during that time. According to the Solicitor, his office made a decision to 
indefinitely forego pursuing temporary reinstatement for the miner because of an 
ongoing investigation by MSHA for possible 110(c) charges against the miner. He
opined that while MSHA was investigating the miner for a potential 110(c) charge,
the case presented a potential "conflict of interest" between the Solicitors 
obligation to represent its client, MSHA, and their statutory obligation to pursue
temporary reinstatement for the miner. Accordingly, the Solicitors Office 
supposedly had a "hands-off" attitude toward the case during those 12 months, at
the end of which it claims a decision was made not to file section 110(c) charges
against the miner.6

When viewed in isolation, the Solicitors latest explanation is more credible than
the previous explanations his office provided for the delay. After all, few people
would take issue with the Labor Departments top attorney ensuring that
representatives of the Secretary do not have conflicts of interest in enforcing
the various provisions of the Mine Act. Unlike my colleagues in the majority I am
not willing to accept the Solicitors newest explanation for the delay because I 
believe an objective review of several key points undermines the Solicitors 
position that his office was not at all involved in the case during the first 12
months of the delay.

First, there is no getting around the fact that the conflict of interest explanation
is simply the latest attempt by the Solicitors Office to provide a reason to the 
Commission for the delay. It is indeed curious that the conflict of interest excuse
was not offered until nearly 10 months had passed from the time the Commission first 
requested the Secretary to explain the delay, 5 months had elapsed after the settlement
of the miners case, and only after it had become apparent that the explanations 
offered in the staff attorney letter, the claim that the Commission was interfering
with prosecutorial discretion, and phone calls to the Commissions headquarters failed
to produce the desired result -- a dismissal of the disciplinary referral.

In addition, the Solicitor did not point to a single document, public or private, 
which set forth the policy he advocated. MSHA makes available thousands of pages 
setting forth its policies under the Mine Act, yet neglects to inform the public 
regarding its "policy" of avoiding "conflicts" between section 110(c) cases and 
section 105(c) discrimination cases? As far as I am aware, the Solicitors Office 
has never to this date alerted miners that even the mere investigation of a 
discrimination complaint by the Solicitors Office must await the resolution of 
any potential section 110(c) charge. Given the circumstances, the Solicitors tardy
oral explanation to the Commission appears to be nothing more than a post hoc cover
story.7

Finally, and most importantly for future cases, to the extent the Solicitors 
position regarding the subject temporary reinstatement application is the actual 
policy of his office, it creates an extremely troubling situation whereby any 
miners right to temporary reinstatement can be trumped by the Solicitors 
obligation to represent MSHA in section 110(c) actions. This hierarchical scheme,
advanced by the Solicitor, creates an absurd result that certainly has no bases in
the law.8 On this important point, I could not agree more with my colleagues in 
the majority who state "the Solicitors policy could have the effect of severely 
limiting the temporary reinstatement provisions from the Mine Act." Slip op. at 6 
(emphasis added).9 The Solicitor could not be more mistaken in his claim that the 
conflict in this case will be rare because it can only arise where an agent of an 
operator is involved. The Solicitors position on this issue is a threat to all 
miners, and not just supervisory personnel who often become targets of MSHAs 
section 110(c) investigations, because the Secretary has repeatedly attempted 
before this Commission to expand the definition of "agency" under the Mine Act.
Therefore, under the Solicitors supposed approach, any miner the Secretary 
believes could be held to be an "agent" of the operator, such as rank and file 
mine examiners,10 is subject to investigation and potential charges under section
110(c). The net effect of the Solicitors position on this issue would be, at
worst, elimination of the miners right to temporary reinstatement, and at best 
a financially crippling delay in the processing of temporary reinstatement cases.

I say "would be" because I hope that once the majoritys decision is issued miners
nationwide, and their representatives, will be alerted to the consequences the 
Solicitors policy will ultimately have on the right to temporary reinstatement.
Hopefully, this will force the Solicitors Office to rethink its position (if 
indeed it spent any time initially thinking about the issue). If that occurs, 
perhaps there will be a limit to the damage inflicted on the temporary 
reinstatement provisions of the Mine Act by the Solicitors imprudent attempt 
to mask in a cloak of ethical conduct his offices failure to properly handle 
a case.11

            B. The Additional 7-Month Delay in Filing the Application

My colleagues in the majority do not feel that the points I have raised concerning
the validity of the Solicitors various explanations are serious enough to warrant
additional inquiry into the individual attorneys real role in this case during 
the first 12 months of the delay. Regardless of the position they take on that 
portion of the delay, they admit that the Solicitors Office was fully engaged in
a representative capacity for the miner during the last 7 months of his ordeal.

In fact, various admissions made by representatives of the Solicitors Office suggest
that it was actively involved in the case at least as early as July 1999.12 For 
example, in the letter from the Solicitors Office staff attorney in response to the
Commissions initial request for information, the agency readily admitted that the
case was in the San Francisco Regional Solicitors Office for 7 months prior to the 
filing of the temporary reinstatement, and that this caused the case to be 
"unnecessarily delayed." Moreover, the Solicitor himself admitted it during his 
January 2001 presentation to the Commission, and Commission staff verified this in 
their interview with the miner.

Of course, the Solicitor had an explanation for the seven month delay also -- that 
his office needed to conduct a further investigation into the miners claim. He
claimed that during those 7 months, his office wrestled with the strength of the
case, as it was a difficult case to determine whether or not to seek temporary 
reinstatement.

I find the majoritys wholesale acceptance of the Solicitors explanation (slip op. 
at 7) puzzling for several reasons. To begin with, the majority fully recognizes 
that when the Solicitors Office allegedly received this case in July 1999, MSHA 
had just completed a 12-month investigation into the matter to determine whether 
charges would be brought against the miner under section 110(c). After a year-long
investigation, what on earth could possibly have been left for the Solicitors 
Office to investigate? Even if we were to assume that an additional investigation 
was needed, how can the majority justify the Solicitors Office taking 7 months 
to complete it, particularly when, as Commission staff who interviewed the miner 
reported, no more that four employees of the operator where involved, including 
the discriminatee himself?

Moreover, the majority must recognize the transparency of the Solicitors claim 
that his office wrestled with the strength of the temporary reinstatement case. 
After all, they understand the Solicitor's burden in terms of bringing a case for
temporary reinstatement. In fact, they recently commented on this very issue in 
Bussanich:

"[t]he scope of a temporary reinstatement hearing is narrow, being limited to a 
determination by the judge as to whether a miners discrimination complaint is 
frivolously brought." Secretary of Labor on behalf of Price v. Jim Walter Resources,
Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), affd, 920 F.2d 738 (11th Cir. 1990). . . .
The Mine Acts legislative history defines the "not frivolously brought" standard 
as indicating that a miners "complaint appears to have merit." S. Rep. 95-181, at 
36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624.

22 FMSHRC at 157.

Furthermore, before the meeting with the Solicitor the Commission was informed of 
facts involving this case that were exactly the opposite of what the Solicitor 
argued. There was no dispute regarding the existence of adverse action, as the 
miner was terminated. The miner had red tagged a truck and refused to certify new 
miners as trained because he was not qualified to do so, textbook examples of
protected activity. Evidence also supported the miners assertion that he repeatedly
complained about the truck, but was met with inaction on the companys part, if not
outright hostility. Based on the closeness in time between the most apparent 
protected act, red tagging the truck, and the miners firing, motivation could be
presumed for purposes of temporary reinstatement. The miners complaint was
therefore anything but frivolous, and I can see no reason why MSHA and the 
Solicitors Office delayed moving quickly to get the miner temporarily reinstated.
In addition, even if the Secretary were to later determine that the miner had not
been discriminated against, the Commissions rules require a judge to dissolve a 
temporary reinstatement order at the Secretarys request. See 29 C.F.R.  2700.45(g).

Finally, the Solicitor himself undercut his claim that closeness of the case merited
a 7-month investigation by his office. He reported in his presentation to the 
Commission that he was not pleased with the length of time it took to seek
reinstatement, and that, according to his review, there were periods of time during 
the 7-month "investigation" for which there was no appropriate accounting.

Against the backdrop of a previous 12-month investigation by MSHA, admissions of 
a failure to timely act by the Solicitors and his staff attorneys, independent
evidence regarding the strength of the miners case, and a recognition of the 
minimal burden placed on the Solicitor in temporary reinstatement matters, I
simply do not understand the majoritys decision to dismiss this case without 
conducting further inquiry into the conduct of the Solicitors Office. Perhaps my 
colleagues misunderstand their role under Rule 80. Our undertaking here is not to 
sit as a trier of fact to determine if there was misconduct on the part of an
attorney in the Solicitors Office. Instead, as stated earlier, our sole 
responsibility it is to conduct an complete and impartial inquiry into these 
disciplinary referrals. And, we must also complete an objective evaluation of 
the evidence we discover during the inquiry. Only then, if the evidence warranted, 
would we submit the matter to a judge to determine if misconduct occurred.

Do my colleagues in the majority believe that 7 months is an acceptable period of
time for a miner to sit at home without income after being discharged for seeking
to exercise his rights under the Mine Act? If not, they owe it to the nations 
miners, whether they be rank-and-file or not, to conduct a complete investigation 
in this proceeding, instead of simply accepting the unsupported assertions of the 
Solicitors Office.

In essence, my colleagues have elected to end this important investigation under 
Rule 80 and then dismiss this case because the cursory investigation did not bear
fruit. In other words, the majority ran into a dead end of its own making. This 
decision, in my opinion, should be viewed as a disappointment to both industry and
labor. In addition to the chilling effect the majority opinion will have on miners
exercising their rights under section 105(c), the decision also provides a basis 
upon which individuals in the private sector, who have been investigated and 
disciplined under Rule 80, can question our ability to objectively review the 
conduct of the Department of Labors attorneys.

For the foregoing reasons, I respectfully dissent.


                                         Robert H. Beatty, Jr., Commissioner
                                         
                                         
                                         
                                       APPENDIX A
                                       
Commission Procedural Rule 80(c)(2) expressly authorizes the Commission to require
persons to submit affidavits setting forth their knowledge of circumstances relevant
to its inquiry into whether disciplinary proceedings are warranted. See 29 C.F.R. 
 2700.80(c)(2). Pursuant to Commission Procedural Rule 80(c)(2), we direct 
Associate Solicitor of Labor Edward P. Clair, San Francisco Regional Solicitor 
Daniel W. Teehan, and San Francisco Regional Solicitors Office attorney Christopher 
B. Wilkinson, each to supply a sworn affidavit fully addressing each of the items 
that follow.

1. Provide a detailed chronology of the facts relating to the processing of [the 
miners] discrimination complaint from the time that [he] initially filed a complaint
with MSHA until the application for temporary reinstatement was filed.

2. Provide a complete, detailed description of your personal involvement in connection 
with the processing of [the miners] discrimination complaint in the case within the
time frames you have identified in response to question 1.

3. Provide a detailed description of any and all personal contact that you had with
[the miner] within the time frames you have identified in response to question 1.

4. Identify any attorney, or staff personnel to whom [the miners] case has been 
assigned at any time, or who were involved in any way and for any length of time 
in work related to [his] discrimination complaint.

5. Identify any individuals who were in custody of materials in [the miners] case 
file, or any other materials related to or stemming from [his] discrimination 
complaint. Describe the length of time each person possessed such materials, and the
reason these materials were in the custody of each person. If these materials were not
in any persons custody during certain time periods, please describe where these 
materials were located during such periods, how long they were in each location, the
reasons why these materials were in each location, and any other circumstances 
surrounding their presence in each location. Provide the earliest date where 
communication between MSHA and members of the Solicitor of Labors staff occurred 
relating to [the miners] discrimination complaint and/or the decision to file a 
petition for temporary reinstatement. Please identify the individuals involved in 
this contact, and the substance of any discussions which occurred.


6. Describe and provide information regarding each communication between MSHA and 
attorneys or other members of the Solicitor of Labors staff which in any way 
relates to the processing of [the miners] discrimination complaint and/or petition
for temporary reinstatement. Include the substance and outcome of any such 
discussions.

7. Did the investigation into [the miners] discrimination case and/or relating to 
the application for temporary reinstatement differ substantially from other Mine 
Act discrimination cases investigated and presented to the Solicitors Office? If so,
please provide facts to support your conclusion.

8. Did the procedure involved in the processing of [the miners] discrimination case 
and/or temporary reinstatement application, following the investigation, differ 
substantially from the procedures normally followed by the Solicitors Office in other
Mine Act discrimination cases? If so, please provide facts to support your assertion.

10. To the best of your knowledge, describe any other circumstances which contributed 
to the delay in the filing of a temporary reinstatement application on [the miners] 
behalf.


Distribution

Edward P. Clair, 
Associate Solicitor 
Office of the Solicitor 
U.S. Department of Labor 
4015 Wilson Blvd., Suite 400 
Arlington, VA 22203


FOOTNOTES:

1. Commission Procedural Rule 80 provides in part:

(a) Standards of conduct. Individuals practicing before the Commission and 
Commission Judges shall conform to the standards of ethical conduct required 
of practitioners in the courts of the United States. (b) Grounds. Disciplinary
proceedings may be instituted against anyone who is practicing or has practiced 
before the Commission on grounds that such person has engaged in unethical or 
unprofessional conduct . . . .

29 C.F.R.  2700.80.

2. Section 105(c)(2) of the Mine Act provides in pertinent part: "[I]f the 
Secretary finds that [a discrimination] complaint was not frivolously brought, 
the Commission, on an expedited basis upon application of the Secretary, shall 
order the immediate reinstatement of the miner pending final order on the 
complaint." 30 U.S.C.  815(c)(2).

3. Commission Procedural Rule 80(c) provides in pertinent part:

Disciplinary proceedings shall be subject to the following procedure: 
(1) Disciplinary referral. . . . [A] Judge or other person having knowledge of
circumstances that may warrant disciplinary proceedings against an individual 
who is practicing or has practiced before the Commission shall forward to the
Commission for action such information in the form of a written disciplinary 
referral. . . . (2) Inquiry by the Commission. The Commission shall conduct an 
inquiry concerning a disciplinary referral and shall determine whether 
disciplinary proceedings are warranted. The Commission may require persons to 
submit affidavits setting forth their knowledge of relevant circumstances. If 
the Commission determines that disciplinary proceedings are not warranted, it
shall issue an order terminating the referral. (3) Transmittal and hearing.
Whenever, as a result of its inquiry, the Commission, by a majority vote of 
the full Commission or a majority vote of a duly constituted panel of the 
Commission, determines that the circumstances warrant a hearing, the 
Commissions Chief Administrative Law Judge shall assign the matter to a 
Judge, other than the referring Judge, for hearing and decision. . . .

29 C.F.R.  2700.80(c).

4. We take general exception to our dissenting colleagues characterization 
of the Commissions investigation and deliberations concerning this matter. 
However, we will not respond to the dissents various assertions concerning 
the manner in which this case has proceeded. But we do feel it necessary to 
specifically refute the dissents suggestion that Commissioners or staff 
either initiated or received phone calls of questionable propriety. See slip
op. at 13 n.4.

5. Our dissenting colleague dismisses the Solicitors conflict of interest 
explanation as "nothing more than a post hoc cover story." Slip op. at 15.
We are mindful, however of the privacy and ethical considerations that would
have been implicated had the Solicitor referred to the section 110(c) 
investigation in his written response to our earlier order.

6. Attorneys employed by the Solicitors Office, because they practice before 
the Commission, are, of course, subject to rules of professional responsibility
pursuant to Rule 80.

7. Solicitor Solano informed the Commission that management improvements 
involving personnel and resource enhancements were subsequently implemented in
the regional office to ensure that temporary reinstatement cases would in the 
future be handled efficiently and accorded the high priority they deserve.

8. If the Secretary determines that the Act was not violated, the complainant, 
with or without private counsel, may file a complaint on his or her own behalf.
30 U.S.C.  815(c)(3). However, this section 105(c)(3) complaint may not be 
filed until the Secretary has made her determination of non-discrimination, 
which she is supposed to do within 90 days. Id.; Commission Procedural Rule
41(b), 29 C.F.R.  2700.41(b).



1. As recently as the Commissions decision in Capitol Cement Corp., 21 FMSHRC
883, 894 n.17 (Aug. 1999), we affirmed that the health and safety of all miners,
including supervisors, "is a preeminent statutory concern" under the Mine Act.

2. Interestingly, the disciplinary referral filed in this case makes reference 
to circumstances that may warrant disciplinary action against "individuals" 
practicing before the Commission. In fact, the referral names at least two of
the "individuals" who had some involvement in the case. To the extent that the 
majority has limited its inquiry to a search for information regarding a
particular individual, they have failed to investigate the disciplinary referral 
properly.

3. The majoritys conclusion of a system failure is indeed curious. A system, 
as I understand its meaning, is defined as "a complex unity formed of many
often diverse parts subject to a common plan or serving a common purpose." 
Websters Third New Intl Dictionary 2322 (1986). The system here is the 
Solicitors Office, which is composed of various attorneys who provide legal
representation to both MSHA and miners in 105(c) cases. Indeed, these individual
attorneys within the Solicitors Office are the "parts" that form the system 
the majority has examined. What puzzles me is how the majority can justify 
placing the blame for this delay on the system without first investigating the 
conduct of the individual attorneys who make up the system. These individuals 
make up part of the system the majority has chosen to admonish. By failing to 
investigate these individuals, the majority chastises the whole for what was 
clearly the fault of a few. In my view, the majoritys "system failure" argument
directly contravenes the "individual" responsibility envisioned by the ethical
rules and regulations that govern the practice of law.

4. OGC also informed the entire Commission that Associate Solicitor of Labor
Edward Clair had contacted the Commission by phone, apparently through then-
Chairman Mary Lu Jordans office, to suggest a meeting with the Solicitor to
discuss the referral. At the time of the phone call I voiced very strong 
opposition to the receipt of any off-the-record information from Mr. Clairs
office, because both he and his staff were within the scope of the Commissions
investigation into the delay.

5. As the majority recognizes (slip op. at 1 n.1), the Commissions disciplinary 
rules mandate that "[i]ndividuals practicing before the Commission and Commission 
Judges shall conform to the standards of ethical conduct required of practitioners
in the courts of the United States." 29 C.F.R.  2700.80(a). A common feature of 
the standards of conduct expected of a practicing attorney is that he or she will 
act with reasonable diligence and promptness in representing a client. See, e.g.,
ABA, Model Rule of Professional Conduct 1.3 (2001). There is nothing in the concept
of prosecutorial discretion which excuses attorneys from compliance with this 
requirement, least of all in a case where it took 19 months to file an application
under a statute which contemplates that the decision to proceed will be made on an
expedited basis.

6. In spite of MSHAs claim that it determined that the miner was not liable under
section 110(c), our investigation revealed that a representative of the Solicitors
Office, inexplicably, continued to cite the section 110(c) investigation to the 
miner as a reason why the miner should settle the case.

7 While the Solicitor was silent on why this explanation was not initially provided
to the Commission, the majority opines that the reticence was based on privacy and
ethical considerations. Slip op. at 6 n.5. This does not explain, however, the 
failure of MSHA and the Solicitors Office to inform the miner why the Secretary 
was taking so long to act on his discrimination complaint or a temporary reinstatement
application. Moreover, as the majority itself recognizes, the Solicitors Office 
refuses to acknowledge that it had an attorney-client relationship with the miner in
this case. Without the attorney-client relationship, the ethical obligations that 
govern that relationship do not attach, so the majority is not only speculating 
when it attempts to excuse the Solicitors actions by reference to ethical and 
privacy considerations, but contradicting the Solicitor as well.

8. The section 105(c) discrimination provisions are replete with time limits, in 
most cases quite severe. See, e.g., 30 U.S.C.  815(c)(2) (requiring miners to 
file discrimination complaints within 60 days of the alleged discrimination, the 
Secretary to commence investigation of the complaint within 15 days and to apply 
for temporary reinstatement on an expedited basis, and the Commission to order
immediate reinstatement if the complaint is not frivolous); 30 U.S.C.  815(c)(3)
(requiring Secretary to notify miner within 90 days of miners complaint whether 
Secretary has found the miner to have been discriminated against, and giving miner
30 days from that to file his own complaint with the Commission if the Secretary 
did not so find). In light of this clear Congressional intent, one simply cannot 
take seriously the Solicitors position that the Secretary can sit on a 
discrimination complaint indefinitely while a section 110(c) investigation is
conducted.

9. The irony in the majoritys observation, however, is that their decision to 
dismiss this case without further inquiry to determine the real cause for the 
delay in reinstating the miner will have the same practical impact on miners. 
After its decision, how many miners will be willing to raise safety complaints 
when their right to prompt temporary reinstatement under the Mine Act has proven
to be illusory?

10. Miners, either rank and file or supervisory, can also become entangled in this
trap in situations arising out of sections 110(e), 110(f), 110(g), and 110(h) of
the Mine Act. For example, we have held that even rank-and-file miners qualify as 
"agents" under the Mine Act when they perform examinations mandated by law. See 
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-96 (Feb. 1991); Mettiki Coal 
Corp., 13 FMSHRC 760, 772 (May 1991).

11. Unfortunately, the temporary reinstatement case here is not all that unique. 
Existence of delays in other MSHA Western District cases, discrimination and 
otherwise, are evident from the Commissions reported decisions both before and
after the 19-month delay in filing the miners temporary reinstatement application.
See, e.g., Secy of Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 
153, 153-54 (Feb. 2000) (miner had filed three discrimination complaints in previous
3 years, none of which Secretary had acted upon); United Metro Materials, 23 FMSHRC
1085 (Sept. 2001) (ALJ) (dismissal of civil penalty proceeding in fatality case 
because Secretary did not issue proposed penalty assessment until December, 2000, 
which was 14 months after citations had issued), rev. directed, Oct. 26, 2001.

12. Of course, there is no way for the majority to determine with any degree of 
certainty how early in the process the Solicitors Office became involved in the 
case. As the majority admits, "we are not certain when MSHA decided not to pursue
section 110(c) charges against the miner." Slip op. at 6. Again, this lack of 
information is a direct result of the majoritys refusal to pursue the investigation.