one four five four five zero left for mining company incorporated at all versus irving look at all arguments not see fifteen minutes thank you amir please the court counsel good afternoon i am john williams a represent the appellant's this matter i have twelve minutes for argument i reserve three for rebuttal the issue th we're here on today is whether the complaint that was filed on behalf of my clients in the district court states kline under bivins a bit of an action against the applebee's who are all the employees of the united states department of labor mine safety and health administration the district court's decision must be reversed because the court's finding that there was an adequate administrative women for my clients and that's the crux of the decision is simply incorrect under the structure that was i'm sorry there you saying that adequate  must include complete really no ma'am but it must we believe under the case all that it must include some form of relief which would be if not completely equal substantially equal to what you could get by proceeding in court the administrative system that is in place and mine safety has a clearly in the ministry of system in place yes sir no doubt yes or they just made it all up yes or the order mistreated procedure their permit expedited review for that if one thinks that it's false one can get it before the administratively but in challenge that yes ma'am and in this situation we had an order issued on january twelfth of two thousand and two that shut the power off to the mont causing it to begin to flood because there were series of pumps that pump water out of the mine we after five days i believe of trying to get this resolved with emption without going to the administrative perceiving a notice of contest was filed i believe in the seventeenth of january with a request for an expedited hearing that request was granted we were given a hearing on january thirty and thirty more on two weeks later that was as quick as the commission could give us a date during that two week period our mine continues to flood we have our hearing on january thirty and thirty first two months later we get a ruling from administrative judge andrew's ruling in our favor on every point he vacates the order that ordered us to shut off the piano or what was the basis of the ruling it it was that there was a failure on the part of the but what the judge's ruling was that this type of order under section one four b of the mine act does not give him the authority it's an it's an order that can only be issued if you in relation to failure to abate a violation this it was a modification of an earlier order that he also found was environment because we had abated the condition that the first order had been issued we called it the original order of leaving our complaint w judge found was its original order should never have been issued and this modification there required us to shut the power off to the man was unrelated to what the first order was a buyout and should not have been issued and that there was no authority he says in his ruling that there was no authority under the mine act to do that but did he find that the actions of the mine safety employees was motivated by that faith or retaliation or retribution or any of those there was no specific finding of that your honor and that wasn't an issue before he home that wasn't anything that we've been necessary to his ruling his his ruling is simply whether or not the orders issued were valid orders and should have been vacated going to one of the question at the time you have a hearing between the time the hearing w there was no state in place and under the the mine act once the mine was flooded in order to the water of the maya and go back and you have to submit a plan to the mine safety and health administration to be able to go back in do that that process continued up through the date of filing the complaint and we never did the water the my sounds to me like there was some bad blood between the mine safety labor department people and the the mayan people and if you would look at footnote company along with three mine managers named here are criminally indicted for failure to comply with the mine safety act presumably they had some connection there was some interlocking connection between the two but i don't know if that's relevant but what is all that about and you explained that well your honor i don't know what the relevance of it is to the to the issue about how many years into adams had to smile and been cited by these people in the now that's being dealt with through the bankruptcy court i don't know if any of those penalties will be paid when the when the company is finally liquidated so you really represent the presti in bankruptcy i am representing the the trustee to the extent of the claim for lift for mining company the other appellants are not in a believes of the other appellants binet resources is also in bankruptcy but i do not believe that the other ones or i will say that i'm not sure all are these other people left for things to be the same use but who are these other people is the operator of the mine been it resources owns the equipment that is underground has been destroyed cumberland river energy's was a sales company now these all they don't have the same ownership but they have a lot of common ownership it's family companies cover on rivers come river energies was a sales company selling the coal economically so to speak yes yes it's just they all they all had a particular bit what is this indictment malapert and people all know about that is monella pan mining company which is another operating not been dismissed and we've gone into discovery we think in discovery we would have found out a lot about a lot of bad blood between the companies and the folks it in district seven the root of this case blood it may well be it may well be but it doesn't change the circumstances we found ourselves in where we have availed ourselves of the procedure that was in place and yet our mind was animal or equipment destroyed and we had no vehicle and they knew this would happen when they did this that we could not be heard before the damage was done i'm sorry ok first of all did you plead that there was any that faith on the part of the defendants or malice or anything like that i believe your honor the pleading is not install specific terms of the pleading is in terms of them acting intentionally to do these things i don't know that it is it but we believe the actions that were done and we allege that were done with the specific knowledge that we were not going to be able to get any relief and what was driven behind this was their desire the forces into position to seal up the mine ok and so you you negotiated for five days and then you western expedited hearing is met and there was no effort to get it further expedited or to go to court to get an injunction or argue before the ale jay that you need an immediate answer that the mines underwater every day it's further under water and all of that we drove that point or hearing it we needed an answer as quickly as we could get one book and there's no that no there's no sort of administrative man davis there's no procedure to try to get a faster answer or anything like that now a practice in this area frequently every day and i know of no way to see commandements to make them move any more quickly than they do ok and then when we talk about the vivants requirements and the adequacy of a remedy do we do you always have to be able to get money damages that you have to have you have to i think the case is that we're allowed home by the district court in in by the police would indicate that there's always some element of compensation in those regulatory systems there's it may not be one hundred percent of what the claim is wanting but there is some element of compensation to at least put you someone in the position you would have been in had they not violated your rights aren't there many many situations where basically you've got you have to go through an administrative procedure you'll eventually find out if you win or lose and there's a possibility that you would have suffered some economic harm in the interim you're saying that all of those situations have to have some sort of damage claim attached to them i mean what if you're waiting what if you're waiting to get like a permit renewed or something and it's backed up and for some reason you know you're  of business for a time or it's denied and you have to go through an appeal to get it back are you saying there has to be a remedy for you to get your lost income i think in this in a situation that was similar to this where you end up with a final order that was not appealed where the new strait of all judge rules that the administrative body acted wholly outside the law all in what they did i think you would be entitled to compensation if it was done under circumstances like this to deny you the day in court i think when you look at some of the cases that relied upon by the district court that you have an element there whether it's a civil service case or whatever of some of compensation when the person goes through the process if you're suing on behalf of the trustee in bankruptcy doesn't the case and to be by the trustee in bankruptcy and i don't understand the procedural posture of the case my understanding your honor is that the trustee in bankruptcy is not paying for the litigation here that the litigation is being paid for by other companies that are not in bankruptcy and that we did not have to bring it through the bankruptcy argue bring it on behalf of the company that is bankruptcy yes sir and others too and others to understand but if you whatever you recover on behalf of left for would seem to be seem to go to the creditors right it's my understanding so doesn't the action here have to reflect that because the trustee know you're here so that you have the trustees approval of the only thing the trustee could not give me approval for was to use assets of the bankruptcy estate to fund the litigation so the funding of the litigation comes from the non bank or any there's a mechanism it's rarely used where they could have intervened but the relief that would have been granted to them would have been the same relief that the fork would have gotten which would have been ruling on the validity of the order and then what's their standing there standing in the in this court you know their standing in this court is that they too were did not have the opportunity to be heard before they were before the government damaged them but is this a due process yes ma'am down i mean i took a i didn't understand that but there's a statute that governs it you're saying that the statute itself is unconstitutional now i'm saying that under these circumstances that is been raised on that right yes the other into d's could have intervened and that's one of the things which they did not intervene they did not intervene so how they've been harmed exactly they have lost the cole which cannot be one of them has lost all its equipment that it was underground they whilst the potential sales from the coal ok and and i want to ask you this question for first of all i want to know what you assert is the best case that supports the position but what you're advocating and and what you've asked the question in light of the fact to complain for to claim protection of walls whenever he receives an injury and the wall as it set up under the mild safety in health and could not prevent our injury here particular case bevan's was enacted years ago and there have been exactly two cases that have extended bevan's davis versus passman and the carlton case and since that time there have been no new cases that have extended the bivins remedy so in this particular case the think that judge donohue talked about this and in your last question that there really are only two circumstances in which difference is expanded and if they're if congress has provided an alternative remedy like the mine act then they don't you know they don't to i guess for lack of a better phrase courts to to expand the business remedy beyond that if there is an obvious there remedy in the mind that i'm sorry there is no where is there a remedy in the mind that the mind it's a very specific act that has a very specific set of guidelines for lack of a better word by which the  somebody in a situation of left fork goes through the process of petitioning the a l j and then the commission if they wanted to in the event of something that happened like what happened here now there ar human is more or less we don't like what happened in this case and so we'd like to sue the individuals and the more that they don't like would have been they were there were shut down right out authority and haven't been able to reopen and lost a lot of money because of his right well you know i think that under all of these cases that that the supreme court has analyzed and there have been a lot of situations where people have undergone harm and have undergone i have had situations like this happen where there have been they have had damages but just because they're have they have had damages doesn't mean orders to correct certain things they said they submitted their plan for remediation for lack of a better term and that that had that echo's actually before the appropriate body at the time that the mine safety act employed employees were saying that you've got to do certain things to remediate you've got to you've got to seal this you've got to prevent this and they're saying we've done that but we couldn't even get an answer and so they're saying that that the mine safety people basically did not and what marc here would not reveal would not acknowledge their efforts at compliance if you will and continue to demand more things that every time they would comply either the game would change or something else would happen and so those kind of things are certainly troubling i'm sure you have you and left fork during that whole time period and it was a quite a lengthy time period that they were trying to get plans and so forth it wasn't just a few weeks i think it was several months that they were try to get all this worked out and in essence i don't think it was that they were ignoring them i think there were a lot of conversations that took place back and forth during the time period from sometime in two thousand and ten all the way through two thousand and eleven and you have to remember that during this time period we're talking about and an organization a mining company left fork that has a history of having literally hundreds of mining violations and in two thousand and ten left fork had the most mined violations of any company i believe and i'd have to go back and double check but i believe in the country and in against this backdrop they have you talked about bad blood not so sure if it if it was as much bad blood at merit as it was caution  and your position is a blow well yeah that's a nice way of putting it they didn't you know it was in you know when the mine act was passed in seventy seven it's all about if you look at the toe to go in and make certain correction but the buying the officials refuse them to allow them to go in and make corrections i think it at some point it becomes an issue of safety over and you know i'm not one i'm not going to be the one to say you know that the meter read one point whatever in methane and so did this or are they lying are they falsifying are they what's you to really read the one point whatever in methane should they have issued that order or this order and did they do it because they were out to seek retribution for something and that's yet another reason why if we go down the slope of impose imposing something like personal liability on mine inspectors for doing their job then that undermines the whole you know that we're there would really go to qualified  in in favor of hesitating there any problem here with procedural posture of this case it's a bankruptcy case yeah i mean that is they should go to trial and right all the money will go the to the bank group to stay and has yet the trustee is not a party to this case and is there any if you look up you need a law about this problem if there is a problem because i have now i have it your honor and that was actually a fairly recent development that some of the parties have declared bankruptcy not all of them and we received this fairly scant in the way i think somebody ought to look it up and maybe brief the court on whether there is a problem because the case is not brought by the mining company left fork now it's brought in favor of the the creditors right and your honor i would also argue to that that i think we need to know something about that in standing in this particular case left fork was the only party that brought the administrative action the other parties weren't even party to the administrative action they could have but they chose not to be and that the bankruptcy exist prior to the founding of the action no action on pre bankruptcy yes it was the bankruptcy has only occurred fairly recently and only if we need to know what effect that is if it is in him and i the the action when all of the proceeds would go to my to the proceeds would go to the backup to study that you know it's a we need to find out about the i have not received notification that left for work as declared bankruptcy so if they have declared bankruptcy is that your colleague said that's what the situation right and that that's like i said i've received notification about others but i if but if left work has declared bankruptcy that i just learned that today so and then what about the others that are they also object to the mine safety they can intervene if they if they because they have they they are similarly situated to left for work and the mine act reads that they if they have a stake basically in financially or otherwise they can intervene in any action that affects them so they could have come into the administrative proceeding and they could have staked a claim basically to any outcome and they chose not to and they they all could they could have filed a federal tort claims act claim instead of filing this bivins claim ok well let's talk about that you're saying any of them could have including left for absolutely and they chose not to ok and then what would the toward have been any any negligence or any any of the torts that they any you know the common law type of you know that that the government the united states was negligent and you're saying that they could have proceeded with that that you that you don't think that be subject dismissal possibly i'm not comp commenting on the merits of their claim i'm just saying they could have a veiled themselves of that in the supreme court has said that if you if you could have a veiled yourself of another remedy whether it be you know but you're not you're not conceding i mean let's say they had brought a tort action and then and then you would have said well there's no and then they would have said ok then there was a bit of ins action you know i mean you can i'm not conceding that they would have i'm not conceding that they would have been successful not successful but would you would they have survived a motion to dismiss i can't answer that question and maybe you shouldn't rely on it as i'm not equipped remedy i'm not relying on it as an adequate remedy all i'm saying is it was a remedy that they did not take advantage of and they could have and ok and you're saying that the bankruptcy has let you finish first he done it ok but in essence the supreme court has made it quite clear that when there's an alternative remedy that is so specific such act the court has gone through a litany of other of other acts that are quite similar to the mine act in specificity and in in with other specific remedies and by the way that it doesn't have to have a monetary remedy the court if there's been damages in the in the statute doesn't have to be a damages case if there aren't damages that all that's ok there can be a you say if that if there aren't damages or if there was some to damage remed there wasn't a damage remedy there doesn't have to be a damage remedy for the remedy to be sufficient you don't have to be made absolutely whole for the remedy ok is there a difference between absolutely whole or is there a difference between no money damages at all and you can get different things i'm not sure i follow ok yes adequate relief does not have to be money damages ok you can have adequate relief that has no money damages at all as opposed to there are some but they don't correspond to what you could get to a court in a court i think i follow you and yes adequate remedies can mean no money damages and adequate regret remedies can also mean not cases under questioning under title seven for example about this of governmental employees far for example or something that you cannot sue the government under bevan's an independent action when there is a ministry of procedures yes there are quite a few yes there are because there is the civil service act that basically covers that and it and it says that that act is very specific and congress has put that in place question is whether this case is like those  that's the same with like the the c the social security act is this is similar those kinds of acts congress has made very specific very tense of and as those acts are very specific and comprehensive even if those acts didn't provide for a monetary remedy because the congress has seen fit to put those acts in place and has a there are very specific statutory schemes that are already in place then it is not for the judiciary to superimpose a begins remedy on top of those acts the only exception would be the federal tort claims act where congress has explicitly said left fork has filed bankruptcy is i correct yes me ok and there i'm going proceedings in the bankruptcy court yes ma'am and the court is aware of this proceeding was this carved out of the proceeding i don't know what the court is where of this proceeding or not i've taken my instructions from the trustee i don't know what he's done to advise the court about the litigation and you don't know what the live pork lists that th i have discussed this case with the trustee ok did he want you to bring the case he was or he didn't want to bring it up he said there were no assets in the estate to could be used to pay fees and expenses it was essentially that ok but two of the entities bit resources i know is also in bankruptcy i'm not sure about cumberland river energies but now panel and company in black starling company are not in bankruptcy and not these charges at all against it but it's who does have criminal charges related to well there were criminal charges against we now pay in mining company but those were resolved there was  there were two individual i think two individual employees that were also that worked at other mines that were also indicted and i believe those w term seems like to me that somebody or look up a lot of us as to whether there is any problem procedurally here about this case being brought in dependently of the trust the bankruptcy in the sense that trustee in bankruptcy is not a party to the case and i don't know exactly what the bank i'm not a bankruptcy expert by any means what the bankruptcy law says about what has to be done case and the trustee if it's notified him that even though you say the trustee is not abandon this for the limited purpose of this litigation it seems like the trustee obviously has in that the trustee is not was answering the question more in terms of is is the trustee aware of it and as you know the suit is going on i don't know actually what has been filed in the bankruptcy action by the trustee really when the bankruptcy trustee have to agree to fee if if the proceeds of the action are coming to the bankrupt estate and have a relationship expect to be paying my hourly rate which i'm being paid to for being here today from somebody else yes out of the but you don't have any contract with the trustee in back or i don't have a contingent fee with anyone my fees are being paid on an co you would expect if you recovery thing that goes to a bankrupt state that nothing would come out of that i wouldn't expect to get a bonus because i put money into the bankruptcy estate now i expect my fees to be paid on an hourly rate there's they are i guess one of the questions is is is the bankruptcy state one of your clients is that do you have an understanding with the trustee that you are representing the estate i do have an understanding with the trustee that i'm representing the interest of lift for mining anything in writing a written contract no we've had exchanges i think the mail but i don't think we have a there's no way you know representation agreement or anything like that not to my knowledge with the court like supplemental briefing on this is this where is this where based on whatever this ruling would be properly administered in the bankruptcy form so far as i think of the interest or concern but i don't object to the supplemental briefing the only the only question i had about that was is for purposes of this appeal an issue that was i think raised on we always have to look at our jurisdiction understand and that's what i'm concerned about what exactly if this case is now in bankruptcy is there any  is there any any kind of legal problem going forward here and i think that needs to be brief i mean my guess counsel is that is that the trustee has agreed to your representation under the condition that other people are paying the fifth but i think there really should be something filed because  westport really is no longer the party it's the bankruptcy estate so i think at a minimum you should be informing us where things stand by way of you know something that establishes what the trip as president has done and what the authority is which my guess is the trustee would readily provide you i would assume so will will there be an order with  timeframe for briefing or want to proceed well how long do you think that would take you as you know i could speak to the trustee tomorrow i would think that is was a many would think twenty days we should be able to pull together whatever we