October 28, 2016

October 27, 2016

October 26, 2016

October 25, 2016

Coal Companies’ Constitutional Case against Mine Safety and Health Administration (MSHA) Employees Fails

A district court has rejected a lawsuit brought by several Kentucky coal companies to recover damages against MSHA employees following their refusal to allow the operator to recover mining equipment before it was ruined by flooding.

The plaintiffs charged MSHA District Manager Irwin Hooker and at least five other agency employees with devising a “coercive scheme” to shut down Left Fork’s Straight Creek #1 Mine in Bell County, Kentucky. Besides seeking monetary and punitive damages, the companies charged the MSHA employees with trespass, civil conspiracy, abuse of process and intentional interference with a contract.

The lawsuit, filed in January 2013, claimed unlawful search and seizure under the Fourth Amendment of the Constitution and was based on a successful 1971 case brought against federal narcotics agents. The U.S. Supreme Court in 1971 carved out a narrow source of relief, the so-called Bivens remedy, for constitutional violations by federal officials acting in their official capacity.

Left Fork exercised its rights under the Mine Act, but the wheels of justice turned too slowly to save the mine from ruin. The case began with a March-2011 MSHA order over elevated methane levels, which were traced to a missing ventilation curtain. However, the agency also determined seals in the mine were not being properly maintained. The operator was required to draw up a remediation plan for approval by the district manager. Ten months went by as the two sides discussed its contents. Meanwhile, the mine essentially was closed.

The next blow came in January 2012, when government officials issued an order to de-energize power and withdraw miners for the alleged failure to abate violations. Throughout, no mine company employees had been allowed to enter. Loss of power caused the mine to begin to flood. The operator’s request to retrieve the equipment was denied. Left Fork appealed for an expedited proceeding before the Federal Mine Safety and Health Review Commission, but an administrative law judge’s decision some three months later in favor of the operator came too late.

In the interim, the district manager finally approved the seals remediation plan; however, his approval was restricted to rescue personnel, who were unable to extract the equipment.

The court noted that damages are not available to the plaintiffs under the Mine Act for the flooded mine and loss of equipment. “But none of these facts justify recognition of a new Bivens remedy in the face of the Mine Act’s statutory structure,” the court said. 

Jackson Lewis P.C. © 2016


About this Author

Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

(703) 483-8300
Mark Savit government investigations attorney at Jackson Lewis Law firm

Mark Savit is a Shareholder in the Denver office of Jackson Lewis. Mr. Savit counsels clients in government investigations, and on regulatory matters, to help limit civil liabilities, prevent criminal prosecutions, and promote sound health, safety and environmental policies. Mr. Savit has expertise in health and safety law, industrial disaster response and environmental law  and related litigation and legislative services. Mr. Savit began his career at the Department of the Interior where he headed the special investigation unit of the Mining Enforcement and Safety Administration.

Mr. Savit received a Bachelor of Arts from the University of Southern California in 1970 and earned his Juris Doctor degree from Georgetown University Law Center in 1976. 

Mr. Savit is a member of the Bar Association of the District of Columbia and the American Bar Association’s Natural Resources Law Section, Labor and Employment Section and Marine Resources Committee. He is also a former Member of the American Bar Association’s Committee on Emergency Economic Controls. 

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