Justice v. Acosta et al

Filing 16

MEMORANDUM OPINION AND ORDER granting 7 MOTION by Alexander Acosta, Mine Safety and Health Administration to Dismiss. Signed by Judge John T. Copenhaver, Jr. on 9/7/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARSHALL J. JUSTICE,
Petitioner-Plaintiff,
v.

Civil Action No. 2:17-cv-03681

ALEXANDER ACOSTA, and
THE MINE SAFETY AND HEALTH
ADMINISTRATION,
Respondents-Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the motion to dismiss
filed by defendants Alexander Acosta and The Mine Safety and
Health Administration (“MSHA”) on October 19, 2017.

I. Factual and Procedural Background

On July 20, 2017, the plaintiff, Marshall J. Justice,
a resident of Boone County, West Virginia, instituted this
action against Alexander Acosta and MHSA seeking a writ of
mandamus and other appropriate relief under the Administrative
Procedure Act (“APA”) with respect to a Section 105(c) complaint
filed by him and not properly responded to by the defendants
within the statutorily required timeframe of 90 days.

Section

105(c) of the Federal Mine Safety and Health Act of 1977, as

amended, 30 U.S.C. 801, et seq. (“Mine Act”) provides a private
right of action to miners or miner representatives whose
statutory rights have been interfered with, or who have been
allegedly discriminated against because they engage in
activities protected under the Mine Act.

30 U.S.C. § 815(c)(1).

Mr. Justice has worked in coal mining for over thirty
years.

Id. at ¶ 6.

In January 2014, he began working at the

Gateway Eagle Mine in Boone County, West Virginia.

Id. at ¶ 7.

On June 22, 2015, miners selected Mr. Justice to serve as a
miners’ representative, as the term is used in the Mine Act.
Id. at ¶ 8.

As representative, he was responsible for

communicating with management concerning perceived health and
safety risks, speaking with investigators and inspectors,
reviewing and commenting on mine safety plans developed by the
operator, filing complaints about safety hazards, health risks,
and interference with workers’ rights under the Mine Act, and
for informing miners of their rights under the Act.

Compl. ¶ 8.

On July 20, 2017, Mr. Justice brought this action
seeking: (1) a writ of mandamus to compel the defendants to make
an immediate determination regarding his Section 105(c)
complaint filed on July 20, 2016; (2) an order directing the
defendants to comply with their duty under the Mine Act to issue
final determinations in response to a Section 105(c) complaint
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within 90 days; (3) any other relief available to him under the
APA; and (4) attorneys fees.

Compl. 1.

Mr. Justice based his

Section 105(c) complaint on instances in 2015 and 2016 in which
Mr. Justice alleged that Rockwell violated his rights as a miner
and as a miners’ representative.

In his capacity as a miner,

Mr. Justice complained that Rockwell allegedly instructed him to
operate a caged scoop for long-distance supply haulage after he
told Rockwell that the operation was dangerous.
of Mot. to Dismiss 3, Attachment A.

Mem. in Supp.

In his capacity as miners’

representative, Mr. Justice alleged that Rockwell failed to
provide him with timely copies of proposed ventilation plan
changes and deprived him of his right to accompany mine
inspectors during inspections at Gateway Eagle Mine, thereby
discriminating against him in violation of Section 105(c) of the
Mine Act.

Compl. ¶ 9. See also Def.’s Mot. Dismiss ¶ 2.
Pursuant to Section 105(c)(2) of the Mine Act, Mr.

Justice filed his complaint with the Secretary of Labor
(“Secretary”) on July 20, 2016.

Under Section 105(c)(3) of the

Mine Act, the Secretary was required to make a determination on
or before October 18, 2016 as to whether a violation had
occurred – within 90 days after Mr. Justice filed his complaint.
Compl. ¶ 13.

He has filed four Section 105(c) complaints

between 2013 and 2016.

Compl. ¶ 44.

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The complaint at issue

here is the only complaint of the four that MSHA failed to
respond to in a timely manner.

Compl. ¶ 49. Further, this

complaint was the only complaint that Mr. Justice filed in his
capacity as a miners’ representative.

Compl. ¶ 44.

After 365 days had elapsed since he filed the 105(c)
complaint, Mr. Justice brought this action because the Secretary
had not rendered a final decision. Compl. 1.

On April 5, 2017,

MSHA sent an email to Mr. Justice’s counsel that explained the
status of MSHA’s investigation.

Compl. ¶ 15.

According to Mr.

Justice, the agency “appeared to be pursuing a mediated outcome
rather than making any attempt to produce the mandatory,
nondiscretionary determination as to whether a violation had
occurred.”

Id.

The email stated, among other things, that:

It appears that Rockwell is trying to be cooperative
and is agreeable to recognizing Mr. Justice as a duly
designated miners’ representative and respecting his
rights as such . . . There [are] a few outstanding
issues that we need to address with the company in
order to try to avoid any potential future
disagreements. Of course, some unforeseen issue may
arise that we simply cannot anticipate and we will
have to deal with such situations if and when they
arise. However, to the extent that we are able to
anticipate any such issues, it would be best to try
and address those issues sooner rather than later.
Id.
MSHA further provided the plaintiff with a letter from
Rockwell Mining in the email that plaintiff alleges “purported
to resolve several – but by no means all - of the matters that
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Mr. Justice had raised in his complaint.”

Id.

Regarding this,

the email stated that there were “some outstanding issues, some
of which are discussed in the last paragraph of [the] letter
that will need to be addressed,” and while “MSHA does not agree
with this position, that is an issue that would likely be raised
should this matter need to proceed to litigation.”

Id.

Mr.

Justice admits that, while “certain delays may occasionally be
caused by unusual or unforeseen circumstances affecting MSHA’s
investigation,” the above communications evidence that what
occurred was instead MSHA’s attempt to “pursue a ‘predetermination mediation’ approach” in which the Solicitor of
Labor essentially “mediated Mr. Justice’s complaint, while
delaying for nearly nine months or more the issuance of a
notice.”

Compl. ¶ 15.

Rather than complying with the deadline,

MSHA personnel “violated their clear statutory duty” and
allegedly “improperly and capriciously withheld agency action.”
Id.
On September 14, 2017, MSHA notified Mr. Justice that
the agency had determined that a Section 105(c) violation
occurred with respect to the allegations made in his
representative capacity: that Rockwell failed to provide him
with timely copies of proposed ventilation plan changes and
deprived him of his right to accompany mine inspectors during

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inspections at Gateway Eagle Mine, thereby discriminating
against him in violation of Section 105(c) of the Mine Act. Id.
MSHA indicated that the U.S. Department of Labor’s Office of the
Solicitor would be filing a complaint to remedy the interference
with his statutory rights.

Id.

Subsequently, on October 3,

2017, MSHA filed a complaint with the Federal Mine Safety and
Health Review Commission (“FMSHRC”), alleging that Rockwell had
interfered with Mr. Justice’s statutory rights.

Id.

In

concurrence with this filing, the Solicitor’s Office notified
Mr. Justice that the Secretary had determined that Mr. Justice’s
allegations regarding the operation of the caged scoop did not
constitute a violation of Section 105(c).

Mem. in Supp. of Mot.

to Dismiss 4, Attachment E.
On October 19, 2017, defendants filed a motion to
dismiss this action, arguing that because the Secretary
conducted an investigation and rendered a finding in response to
Mr. Justice’s 105(c) complaint, he received the relief to which
he is entitled, and there exists no actual controversy.
Mot. to Dismiss ¶ 3.
are moot.

Def.’s

Rockwell asserts that Mr. Justice’s claims

Id.
On November 3, 2017, Mr. Justice filed a response in

opposition to the defendants’ motion to dismiss.

He contends in

his response that because the defendants’ conduct is capable of
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repetition yet evading review, and the defendants voluntarily
abated their alleged misconduct during litigation, the
controversy is still alive.

II. Governing Standard

Federal district courts are courts of limited subject
matter jurisdiction, possessing “only the jurisdiction
authorized to them by the United States Constitution and by
federal statute.”

United States ex. rel. Vuyyuru v. Jadhav, 555

F.3d 337, 347 (4th Cir. 2008).
the court has jurisdiction.”

“[T]here is no presumption that
Pinkley, Inc. v. City of

Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh
Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 327 (1895)).

When the

existence of subject matter jurisdiction is challenged under
Rule 12(b)(1), “[t]he plaintiff has the burden of proving that
subject matter jurisdiction exists.”

Evans v. B.F. Perkins Co.,

166 F.3d 642, 647 (4th Cir. 1999); see also Richmond,
Fredericksburg, & Potomac R .R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991).

If subject matter jurisdiction is

lacking, the claim must be dismissed.

See Arbaugh v. Y & H

Corp., 546 U.S. 500, 506 (2006).
Subject matter jurisdiction may be attacked by a
defendant with either a facial or a factual challenge.
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Kerns v.

United States, 585 F.3d 188, 192 (4th Cir. 2009).

In a facial

challenge, a defendant is asserting that the allegations
contained in the complaint fail to sufficiently establish the
existence of subject matter jurisdiction.

Id.

In a facial

attack, a plaintiff is “afforded the same procedural protection
as she would receive under a Rule 12(b)(6) consideration,” so
that “facts alleged in the complaint are taken as true,” and the
defendant’s motion “must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction.”

Id.

In a factual challenge, a defendant may argue “that the
jurisdictional allegations of the complaint [are] not true.”
Id.

This permits a trial court to consider extrinsic evidence

or hold an evidentiary hearing to “determine if there are facts
to support the jurisdictional allegations.”

Id.

At the motion to dismiss stage, “general factual
allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we presume that general
allegations embrace those specific facts that are necessary to
support the claim.”

Lujan, 504 U.S. at 561.

The court may

accept as true allegations that are supported by adequate
“‘factual matter’ to render them ‘plausible on [their] face.’”
Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (citing
Ashcroft, 556 U.S. 662, 678 (2009)).

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“The same presumption of

truth” does not apply to “conclusory statements and legal
conclusions” contained in the complaint.

Id.

As these are

facial and not factual challenges to Mr. Justice’s standing, the
court will accept all allegations in his complaint as true and
determine whether he has sufficiently established a basis for
subject matter jurisdiction.

See Kerns, 585 F.3d at 192.

III. Discussion
At issue in this case is whether Mr. Justice’s lawsuit
is moot.

Specifically, whether Mr. Justice’s alleged harm - the

Secretary’s failure to render a final determination in response
to his 105(c) complaint in a timely manner, as required by the
Mine Act - is capable of repetition, yet evading review.

And

further, whether the Secretary’s actions, which took place after
Mr. Justice filed this lawsuit, falls within the voluntary
cessation exception to the mootness doctrine.

Standing is

generally addressed at the motion to dismiss stage under Fed. R.
Civ. P. 12(b)(1) because “Article III gives federal courts
jurisdiction only over cases and controversies and standing is
an integral component of the case or controversy requirement.”
CGM, LLC v. BellSouth Telecommunications, Inc., 664 F.3d 46, 52
(4th Cir. 2011) (internal citations and quotations omitted).
A case that is deemed “moot” lacks standing because in
such cases, “the issues presented are no longer ‘live’ or the
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parties lack a legally cognizable interest in the outcome.”
Murphy v. Hunt, 455 U.S. 478, 481 (1982).

A case becomes moot,

and therefore no longer falls within the court’s subject matter
jurisdiction, when it is “impossible for a court to grant any
effectual relief whatever to a prevailing party.”

Chafin v.

Chafin, 568 U.S. 165, 172 (2013)(quoting Knox v. Service
Employees, 567 U.S. 298, 307 (2012)).
There are two exceptions to the mootness doctrine: (1)
when the harm is capable of repetition yet evading review and
(2) where the defendant voluntarily ceased the alleged harm once
litigation commenced.

With respect to the first exception, it

is well-settled that “[t]he capable-of-repetition doctrine
applies only in exceptional situations.”
U.S. 95, 109 (1983).

L.A. v. Lyons, 461

It should be applied only “where the

following two circumstances are simultaneously present: (1) the
challenged action [is] in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party [will] be
subject to the same action again.” Lewis v. Continental Bank
Corp., 494 U.S. 472, 481 (1990) (quoting Murphy v. Hunt, 455
U.S. 478, 482 (1982) (per curiam)).
Regarding the second exception, “the voluntary
cessation of challenged conduct does not ordinarily render a
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case moot because a dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is
dismissed.”

Knox v. Service Emps. Int’l Union, 567 U.S. 298,

307 (2012).

That is, the defendant may be “free to return to

his old ways.”
632 (1953).

United States v. W.T. Grant Co., 345 U.S. 629,

“The case may nevertheless be moot if the defendant

can demonstrate that there is no reasonable expectation that the
wrong will be repeated.”

Id. at 633.

“The ‘heavy burden of

persua[ding]’ the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party
asserting mootness.”

Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting United
States v. Concentrated Phosphate Export Ass’n, 393 U.S 199, 203
(1968)).
Mr. Justice initially sought MSHA to render an
immediate determination on his Section 105(c) complaint.

He

further seeks to compel MSHA to fulfill its duties under the
Mine Act in a timely manner.

These claims are moot.

As the

plaintiff points out, the defendants partook in a “swift action
to issue a decision . . . within less than two months following
the commencement of this lawsuit.”
Dismiss 4.

Pl.’s Resp. to Mot. to

By issuing a final determination with respect to Mr.

Justice’s Section 105(c) complaint, the defendants have both

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issued an immediate determination and complied with their legal
duty to issue decisions within a timely manner.

Unless the

plaintiff’s claims fall within one of the exceptions to the
mootness doctrine, this case must be dismissed.
Plaintiff correctly points to the filing of this
lawsuit and subsequent action by the Secretary, which resulted
in a final determination and the issuing of a complaint with the
FMSHRC, in support of his assertion that this lawsuit is capable
of repetition, yet evading review.

Plaintiff, however, must

further allege sufficient facts to show there is a “reasonable
expectation” or “demonstrated probability” “that the same
controversy will recur involving the same complaining party” for
the exception to apply.
(1982).

Murphy v. Hunt, 455 U.S. 478, 482

In light of the facts alleged in his complaint, the

court is not persuaded that MSHA’s failure to issue a final
determination on Mr. Justice’s Section 105(c) complaint within
90 days will recur under the level of probability necessary to
fall within this narrow exception.
The facts articulated to support such alleged
probability includes MSHA’s failure to render a timely
determination in response to the complaint Mr. Justice filed on
July 20, 2016, and MSHA’s alleged use of a “mediated outcome”
before MSHA issued a final decision.
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Compl. ¶ 15.

In addition,

it is asserted that defendants have allegedly “continued to make
productions of information to Mr. Justice that are untimely
under the federal regulations.”

Id. ¶ 55.

Mr. Justice also

notes his “numerous filings in the past,” and “his demonstrated
commitment as an outspoken advocate of workers’ rights within
coal mines.”

Id. ¶ 56.

No matter the reason for MSHA’s tardiness, a single
instance of the agency’s failure to adhere to its duties under
Section 105(c) of the Mine Act gives this court no reason to
expect that such harm will occur again.

If a “mere physical or

theoretical possibility was sufficient . . . virtually any
matter of short duration would be reviewable.”
at 482.

Murphy, 455 U.S.

And MSHSA’s timely determinations made in response to

Mr. Justice’s three prior complaints evidence the contrary: that
MSHA will issue a determination within 90 days in response to
any future complaints filed by Mr. Justice.
Finally, the continued productions of untimely
information complained of by Mr. Justice still relate to the
single complaint that was not responded to with a timely
determination.

At issue in this case is not a statute requiring

that all information produced by MHSA pertaining to a complaint
be provided to mining representatives within 90 days.

Rather,

it is a statute mandating a final determination be issued on a
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particular complaint within 90 days.

Here, Mr. Justice does not

assert in his complaint or responsive motion that he filed any
other Section 105(c) complaints since this litigation commenced.
As “past exposure to illegal conduct does not in itself show a
present case or controversy . . . if unaccompanied by any
continuing, present adverse effects,” one failure by MHSA to
timely respond to a Section 105(c) complaint filed by Mr.
Justice is insufficient to meet the reasonable expectation
standard of the exception.

Renne v. Geary, 501 U.S. 312, 321

(1991).
Ultimately, Mr. Justice merely seeks a court order
barring the defendants from acting in “similar fashion” in the
future, and in turn, has failed to show there is a present case
or controversy.

See Fleming v. Workers’ Compensation Com’n, 878

F.Supp. 852, 858 (E.D. VA 1995), aff’d., 78 F.3d 578 (4th Cir.
1996) (holding that because the plaintiff “merely s[ought] a
declaration that he was once injured and an order barring these
defendants from acting in similar fashion in the future,”
plaintiff failed to show there was an actual case or
controversy).

Accordingly, grounds for the “capable of

repetition yet evading review” exception are not shown in this
instance.

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Plaintiff claims that defendants voluntary ceased
their challenged actions after plaintiff filed suit, and have
not demonstrated with clear evidence that the “allegedly
wrongful behavior could not reasonably be expected to recur.”
Pl.’s Resp. to Mot. to Dismiss 2; see Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000).

And

further, asks this court to deny the defendants’ motion based on
mootness “because the Defendants fail to offer any evidence to
ensure that the challenged policy will not be resumed.”
Resp. to Mot. to Dismiss 2.

Pl.’s

The court does not agree.

As mentioned by both parties, courts traditionally
apply the voluntary cessation exception to cases where the
plaintiff’s injury resulted from a wrongfully established policy
or common practice.

In Wall v. Wade, a Muslim state inmate

filed suit under the Religious Land Use and Institutionalized
Persons Act and Section 1983 alleging that prison officials
interfered with his Ramadan observance by instituting a policy
requiring inmates to provide “some physical indicia,” such as a
Quran or prayer rug, to participate in Ramadan.
741 F.3d 492, 494 (4th Cir. 2014).

Wall v. Wade,

Prior to 2010, the prison

merely required Muslim inmates to sign up in order to
participate.

Id.

The plaintiff could not participate because

he lost all his belongings during a prison transfer.

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Id. at

495.

After filing suit in district court, the court granted the

defendants’ motion for summary judgment, and Wall was
transferred back to the prison.

Id. at 496.

Thereafter, the defendants abandoned its policy and
argued on appeal that doing so rendered Wall’s claims moot.

Id.

The Fourth Circuit held that the defendants did not meet their
burden in establishing that the Ramadan policy would not be
reinstated.

Id. at 497.

The defendants merely offered as

evidence a memorandum describing the prison’s purportedly new
policy that was submitted in a different case, and that
memorandum failed to suggest that the prison actually barred “or even consider[ed] itself barred - from reinstating the 2010
Ramadan policy should it so choose.”

Id. at 497.

Rather, the

“fact that at least three separate policies ha[d] been utilized
. . . since 2009 indicate[d] some degree of doubt that the new
policy w[ould] remain in place for long.”

Id.

Although MSHA issued a determination shortly after Mr.
Justice filed suit, the defendants have demonstrated that there
are no “old ways” to which MSHA will return if this case is
dismissed.

Unlike the Wall case, the defendants here do not

have an established policy that encourages or requires MSHA
personnel to deviate from their statutory duty to issue final
determinations on Section 105(c) complaints within 90 days.
16

The

facts in this case do not suggest that MSHA’s untimely
notifications or alleged mediation tactics used as an
alternative to issuing final decisions on Section 105(c)
complaints are in any way habitual so as to amount to an
unwritten policy or common practice.

If anything, it appears

more likely that MSHA encountered difficulties upon
investigating the claims asserted in Mr. Justice’s complaint, as
evidenced by the email communications cited in the plaintiff’s
complaint.
MSHA is mandated by statutory law to issue such
decisions within 90 days after a Section 105(c) complaint is
filed.

As the defendants point out, there is no indication,

aside from its failure to respond in a timely manner to this
complaint, that MSHA has an interest in delaying final decisions
with respect to any future complaints filed by Mr. Justice.

The

defendants further draw attention to the MSHA Handbook, which
indeed informs MSHA personnel of the importance of investigating
105(c) complaints.

It reads:

Under provisions of Section 105(c) of the Mines Act,
miners, representatives of miners, and applicants for
mine employment are protected from retaliation for
engaging in safety or health-related activities, such
as identifying hazards, asking for MSHA inspections,
or refusing to engage in an unsafe act. MSHA
vigorously investigates discrimination complaints to
encourage miners to exercise their rights under the
Mine Act. Def.’s Mot. to Dismiss, Attachment F, 2-1.
17

MSHA, therefore, has a clear policy requiring
personnel to investigate Section 105(c) complaints and ensure
that miners’ rights are protected, and it is required by statute
to issue final decisions within a 90-day period.

Because the

plaintiff’s claims, which ask for a writ of mandamus compelling
the Respondents to make an immediate determination on the thenpending Section 105(c) complaint and for the defendants to
comply with their statutory duty to render timely final
determinations are moot, and because those claims fail to fall
within either of the exceptions, the court lacks subject matter
jurisdiction to further consider this matter.

Accordingly, this

case must be dismissed.

III. Conclusion

For the reasons stated above, the court ORDERS
that Alexander Acosta and The Mine Safety and Health
Administration’s motion to dismiss be, and hereby is, granted.
The Clerk is requested to transmit this Order and
Notice to all counsel of record and to any unrepresented
parties.
DATED: September 7, 2018

John T. Copenhaver, Jr.
United States District Judge

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