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Case number 16-1094, Cal Portland Company, Inc.

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Petitioner versus Federal Mine Safety and Health Review Commission and Secretary of Labor.

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Mr. Lundgren for the petitioner.

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Mr. Waldman for the respondents.

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Mr. Lundgren, good morning.

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And thank all counsel for coming 30 minutes early.

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I would say I say that the six

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Good morning, Your Honors.

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Brian Lundgren on behalf of Petitioner Cal Portland Company.

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I have reserved three minutes for rebuttal.

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The issue before the court is the agency's statutory authority under 30 USC Section 815, which we refer to as Section 105.

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The matter involves an order for temporary reinstatement that was issued by the agency against Cal Portland.

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The agency.

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Council, let me just stop you and say, we are familiar with it.

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Why don't you address why we have jurisdiction?

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Absolutely, Your Honor.

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Both parties have conceded that the Court has jurisdiction.

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The Secretary and Cal Portland both contend that jurisdiction exists in two fashions.

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One, that the temporary reinstatement order is a final agency action that conclusively resolves that issue, meaning temporary reinstatement.

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Second, that the collateral order doctrine also provides jurisdiction because the temporary reinstatement order conclusively resolves that issue.

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There would be no appealability of that issue if we were not allowed to appeal the order.

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Isn't your second argument your stronger one?

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Yes, Your Honor.

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In fact, that that's the one that I primarily made.

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However, the Secretary raised the issue that the Secretary also believes it constitutes final agency action, and that too gives jurisdiction.

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We had argued both with a focus on the collateral

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The final agency action, the theory bearing, there's a right to have temporary reinstatement while one's pressing a claim, and this was the final decision as to that temporary right.

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That's exactly right, Your Honor.

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And you analogize it to temporary injunctive relief that is final for the purposes of appealability?

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That's correct, Your Honor, and the Secretary raised that point, and that point's also made in

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Young v. Lone Mountain processing, that the issue at hand is an extraordinary remedy akin to a preliminary injunction that provides appellate jurisdiction when you've exhausted the administrative remedies on that issue.

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Going to the collateral order basis, this 11th Circuit case, Jim Walter Resources,

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In footnote four, the Supreme Court case that said, and it's in a different statutory context, but the Supreme Court said it still had jurisdiction to determine the validity of the temporary reinstatement, even though the final reinstatement proceeding was already completed.

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And I haven't looked at that case.

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It's a different statute, Brock versus Roadway Express.

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But what's your position about if we don't exercise jurisdiction now and after the merits are reached in December, whether we could review the legitimacy of the temporary reinstatement?

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That issue is addressed

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I believe also by the descent in Cobra natural resources, which we cite on this case.

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And the issue is, does this become moot?

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when we have a final determination because when that happens the temporary reinstatement order will cease to exist in one way or another.

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It will either be replaced by a final agency determination that accords some rights to the complainant or

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That's a different right.

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The final right is a different right, isn't it?

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It's a different right.

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And so the question of mootness is a good question, Your Honor, and I've struggled with it.

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But the issue, because of the case law, the issue is what could Cal Portland do?

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after a final determination.

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And the case law suggests that, I think Cooper Natural Resources at the set suggested, I believe some others, that we would have no real right at that point because the current position of the agency is that we cannot go back and recoup any payment of wages or anything that's occurred under the temporary reinstatement order.

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So if we were to have waited

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to appeal to this court.

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We would then be met with the argument that you don't have a right now to appeal from final judgment, Mr. Lundgren, because the issues moved in the temporary reinstatement order ceases to exist.

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Well, how about the evading review exception?

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In other words, this whole argument about whether he's a minor or an applicant for employment

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is going to come up again when you have a predecessor and successor mine operator.

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So that it might be moot as to Cal Portland, but what about our exceptional jurisdiction?

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Not capable of repetition, but evading review.

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And that's why I believe the court should, under these doctrines, exercise jurisdiction, because if the agency

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if the agency's temporary reinstatement order were never allowed to be reviewed by the court because of mootness, timing, or because it can't be reviewed upon a final judgment, the agency could, in effect, exceed its statutory boundaries at will without any review by the federal court.

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And that's why we believe the court should now act, one, because the temporary reinstatement order exists,

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and two, because we won't have a right to appeal that in a final determination.

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So absent jurisdiction now, the agency would be able to exceed congressional authority whenever it wanted without any review by the court.

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What is your reading of 816

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A2, which is in your appendix at A4, which gives us authority to grant temporary relief when we're considering any order issued by the Commission.

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I'm going to pull up the statute and look at the exact language you're referring to.

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It's on A4, and it says, in the case of a proceeding to review any order,

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issued by the Commission under this chapter, the Court may grant such temporary relief.

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I'm wondering, is that what you used when you applied for a stay?

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That was my understanding when I read this, Your Honor, though I'm not sure

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this in any way nor would I suggest it does limit your authority to take additional action to stay a case or to provide a remedy that allows the court to exercise its jurisdiction over an agency action to ensure that the agency is not avoiding judicial review of its decisions.

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How did Mr. Pappas' job under the new management differ from his job under the former management?

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What was his job under Marietta?

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He amended your question to say ownership rather than management.

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Ownership, I'm sorry, that's right.

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How was his job under Marietta different than his job under Cal Portland, if at all?

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Well, much of that is not in the record, Your Honor, because it happened after the temporary reinstatement order.

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So I'm speaking of things that didn't happen during the temporary reinstatement order.

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But what happened when the temporary reinstatement order was complied with by Cal Portland, as they had to while we reviewed before this Court, is we tried to find Mr. Pappas

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a job at the facility and then we tried to pay him under the new terms and conditions and benefits that exist now at Cal Portland, which are wholly different than what was at Martin Marietta.

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Let me try it this way.

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When he applied for the job with Cal Portland, what job did he apply for and was it different in any significant way from the job that he had under Marietta?

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He applied for any job.

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he and why don't any job you have that he could do and the jobs are cal portland uses less employees to run these facilities the operational model is what his job for him in a minor right and i would have been a laborer a laborer and now since in in the arguments back and forth about exactly how to comply with the hiring order there was

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discussions where we said, well, we want to have him go to this part of the facility, and Amschott took the position.

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You can't do that.

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He has to stand inside the facility right here.

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That's the only place he can work.

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And so essentially, we were limited in what we would normally have an employee do if we had hired that employee off the street by the positions that were being taken by Amschott and compliance.

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So your strongest argument, textual argument, is with the word reinstatement, right?

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What does reinstatement mean?

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Isn't that your argument?

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How can he be reinstated to a job that's a new job?

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His job was gone.

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How can he be reinstated?

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Is that right?

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Is that the gravity of your argument?

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That is part of the statutory argument.

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There's two issues.

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Congress has specifically identified the rights accorded to applicants for employment in Section 105.

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I've counted, there's 10 site, there's 10 statements.

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But has Congress addressed this issue?

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This is a unique circumstance, right?

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As I look at the statute, it doesn't see, it talked about a minor can be reinstated, it doesn't say anything about an applicant, because an applicant can't be reinstated.

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reinstated, you can't go, you know, he hasn't been there before.

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But this seems to be a different sort of circumstance that doesn't seem to be contemplated by the statute, where somebody has a job, new ownership takes over, he wants that job back.

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but he's been denied the job, allegedly, in pursuit of his rights.

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That's what the temporary reinstatement argued.

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The statute doesn't seem to address this circumstance, does it?

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And the commission came up with a new phrase.

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What did they call this?

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They called this a minor retention decision.

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Minor retention.

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And that seems to be an accurate description of what it is, but there's nothing in the statute about minor retention decisions.

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You're correct.

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The statute does not say you have authority to order the hiring of applicants for employment who may have in the past worked at that mine.

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I think a plain reading of the statute takes that authority away from

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the agency, and the agency's own precedent says that, too.

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Because he's an applicant.

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You think he's an applicant.

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He's an applicant for employment.

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Yeah.

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And number one.

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Well, he's a minor as well, though, right?

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I mean, it doesn't say the definition of minor here isn't so limited that he has to be a minor for a certain employer.

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He's a minor, right?

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He comes to the mine and says, I'm a miner, I want to work here.

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He also happens to be an applicant.

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We have a strange circumstance.

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doesn't make him a minor for purposes of applying for a job with the current.

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When you said he applied for any job, does that mean there were jobs there that wouldn't require him to be a minor?

[00:14:08] Speaker 01:
That's not in the record.

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I believe there are jobs there that that may necessarily not have him be a minor I don't there's certainly young.

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What's he doing now?

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What's the disease?

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Johnny's now is it a minor?

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He's working as a laborer in the mine.

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Okay

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But we're limited in how we can use him because of compliance arguments that have been raised.

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Isn't your argument that he is a minor who can only be instated or hired?

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He can't even be retained because the owners have changed.

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He's certainly not a minor who can be rehired or reinstated.

[00:14:45] Speaker 01:
That's correct, Your Honor.

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He was a minor for his past employer.

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He's an applicant for employment at Cal Portland.

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He's never worked for Cal Portland.

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He's clearly applied.

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It was a hiring situation.

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And the statute addresses specifically the rights of applicants for employment, and it does not

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But it's specific.

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It does not support that right.

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It seems to me part of it turns on the meaning of reinstatement.

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And it actually doesn't seem to be particularly clear about that.

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I mean, my guess is if you were to talk to someone on the street and ask them, is he being the same mine?

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He was a miner at this mine.

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He wants his job back at that mine.

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Some people would say, well, that's reinstatement.

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New employer, new owner, but is it a different job?

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I think that's what I have to struggle with.

[00:15:37] Speaker 01:
Well, hopefully I can help you.

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Reinstatement, first of all, we would apply the normal dictionary definition, which means to put in a former position or past position that one has held previously.

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That's what he wanted, right?

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But that doesn't exist anymore.

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Why?

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Because new owner?

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Because if he wanted to do that, he could have brought an action against Riverside Cement Company and Martin Marietta.

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and said, I want to be, Martin Marietta still owns Riverside Cement Company, it still exists, it still has the Crestmore facility, and he could have said, I have a right to be reinstated by you, Martin Marietta, Riverside Cement Company.

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In a different mind.

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Well, then the issue would have arisen, I'm speaking hypothetically, but it would have arisen, there would have been some discussion.

[00:16:23] Speaker 01:
Well, that position doesn't, that exact position doesn't exist, ALJ.

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What do we do?

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Should we economically reinstate him, given the impracticability, I'm speaking as if I'm Riverside Cement Company now, given the impracticability?

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That would have been the discussion, but they didn't bring an action.

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against martin marietta riverside cement company for temporary martin marietta have any other minds nearby

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There was, the assets were purchased by four locations, Crestmore, National City, Stockton, and then Oro Grande.

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I don't have the exact geographical locations of these, but I know there was some testimony.

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One is approximately 60 miles away.

[00:17:04] Speaker 05:
So here's the, it seems to me, here's part of the problem with your argument.

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So he has a job in the mine.

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He files a complaint.

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He's discharged from that job, right?

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He's got a job in the mine.

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The statute says he has a temporary right to that job as long as he has a complaint pending, right?

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As long as it's a temporary thing.

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And he's losing that right, under your theory right now, he's losing that right now because the ownership changed.

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That doesn't have anything to do with what he did, but because the ownership changed.

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That's something that he has no control over.

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This statute is designed to protect workers who bring claims, right?

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They get a temporary right to that job during the pendency of their claim.

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And under your reading of it, he's going to lose that right

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not because of anything that he's done, but because the ownership changed.

[00:18:04] Speaker 02:
Well, that's why I asked you about 816, whatever it is, B2, because he could, just like you could come to get a stay, he could come to us and say, I want to be temporarily hired or instated while the merits of my discharge

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are pending.

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And the resolution's the same, is he doesn't have that right under the statute.

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This is an extraordinary remedy.

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Congress specifically delineated when this extraordinary remedy may be imposed.

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And it's not just the statutory definition.

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And you think Congress was saying, you get this right, but you know what, if the ownership changes, tough luck.

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Congress was saying applicants for employment do not get this right.

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And that's clearly what he is.

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And it's not just a dictionary definition of reinstatement, which we would defer to.

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Congress, in the statute, talks about what rehire and reinstatement means.

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And it knows how to use the word rehire.

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At the end of 105,

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C2, it talks about rehire and reinstatement to a former position at the end of 105 C3.

[00:19:19] Speaker 05:
You know, I used to be a textualist and then the Supreme Court told me I can't do that anymore, so.

[00:19:25] Speaker 05:
Just kidding, that's an inside joke.

[00:19:30] Speaker 01:
I understand your question, Your Honor, but the issue really is Congress made this decision, and the statute applies not just to employers, but to persons.

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And Congress said only if – only will we allow a temporary action to be taken pending a final order if it's a reinstatement of a minor to a former position.

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It doesn't exist here, Your Honor.

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And that would answer any attempt of temporary relief to the court, Your Honor.

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If you're out of time, we'll give you some time to reply.

[00:20:05] Speaker 01:
Thank you.

[00:20:05] Speaker 02:
Mr. Waldman?

[00:20:29] Speaker 04:
May it please the court.

[00:20:30] Speaker 04:
My name is Ed Waldman.

[00:20:31] Speaker 04:
I represent the Secretary of Labor and his agency, the Mine Safety and Health Administration, otherwise known as MSHA.

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Section 105C2's temporary reinstatement provision plays an integral role in achieving the overriding safety and health.

[00:20:51] Speaker 03:
I want to cut to my colleague's chase.

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How can an employer reinstate somebody who never worked for him before?

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Because he worked at the mine of the employer.

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I know it worked.

[00:21:01] Speaker 03:
The money didn't work for them.

[00:21:02] Speaker 03:
How can they reinstate him when he never worked for them before?

[00:21:06] Speaker 03:
They never instated him in the first place.

[00:21:10] Speaker 04:
But they can reinstate him to the... No they can't.

[00:21:12] Speaker 04:
You have to instate before you reinstate.

[00:21:14] Speaker 03:
You have to instate before you can reinstate.

[00:21:17] Speaker 03:
Reinstate by its very structure requires that something had been there before so it can be read.

[00:21:24] Speaker 03:
That's what re-means in our English language.

[00:21:27] Speaker 03:
I understand.

[00:21:36] Speaker 04:
If that's the way that you were to interpret Section 105.

[00:21:40] Speaker 03:
That doesn't seem to me to have a lot of interpretation to it.

[00:21:44] Speaker 03:
It seems to be the plain language of the statute.

[00:21:45] Speaker 05:
That's the word, that's the word Congress chose, reinstate.

[00:21:48] Speaker 04:
I'm not interpreting, I'm just reading.

[00:21:51] Speaker 04:
Okay, well, it says reinstate.

[00:21:55] Speaker 04:
It doesn't say who's supposed to do the reinstating.

[00:21:59] Speaker 03:
And a minor is not... Why did you tell them to do it then?

[00:22:04] Speaker 03:
I mean, it does.

[00:22:05] Speaker 04:
Because they're the one who owns the mine and has the power to reinstate.

[00:22:09] Speaker 03:
They never employed this person before.

[00:22:12] Speaker 03:
I don't understand your point that it doesn't say who.

[00:22:15] Speaker 03:
If it doesn't say who, you said who, you said them.

[00:22:18] Speaker 03:
I said, how can they reinstate when they never instated?

[00:22:22] Speaker 03:
I don't know where you're going with that question, but it doesn't say who.

[00:22:27] Speaker 03:
It says reinstate.

[00:22:29] Speaker 03:
How do you reinstate somebody

[00:22:37] Speaker 04:
By returning him to a position that he formerly held.

[00:22:40] Speaker 03:
With somebody else.

[00:22:43] Speaker 03:
Which position doesn't exist anymore because that employer no longer owns the facility.

[00:22:50] Speaker 04:
This man worked in the Oro Grande mine for 16 years.

[00:22:54] Speaker 04:
For Marietta.

[00:22:57] Speaker 04:
For Martin Marietta.

[00:22:59] Speaker 04:
Up until one tick of the clock before Cal Portland acquired the mine.

[00:23:04] Speaker 03:
I suppose the mine had closed down at that time.

[00:23:07] Speaker 03:
Post-Martin Marietta had gone bankrupt entirely.

[00:23:12] Speaker 03:
Could you reinstate somebody into a position that no longer exists because the entity that employed him is gone?

[00:23:21] Speaker 03:
Could you do that?

[00:23:22] Speaker 04:
Well, if Martin Marietta had gone bankrupt, then presumably the assets would have been sold in bankruptcy, and the sale in bankruptcy is free and clear.

[00:23:30] Speaker 03:
So you could trace the bankruptcy, and then had he reinstated the whoever bought him out of bankruptcy?

[00:23:34] Speaker 03:
Pardon me?

[00:23:36] Speaker 03:
Is that what you're telling me?

[00:23:38] Speaker 04:
No, I'm telling you the opposite.

[00:23:40] Speaker 04:
I'm telling you that in bankruptcy, under the bankruptcy statute, 11 USC section 363F, sale of assets is free and clear of any liability of the predecessor.

[00:23:51] Speaker 04:
And so if Cal Portland had purchased this mine from Martin Marietta in bankruptcy, it would have had no liability.

[00:24:00] Speaker 03:
Right, right.

[00:24:00] Speaker 03:
So where does the liability come from when it's not in bankruptcy?

[00:24:03] Speaker 04:
Liability comes from Section 105C2.

[00:24:06] Speaker 04:
Which says reinstate.

[00:24:08] Speaker 04:
That's correct.

[00:24:09] Speaker 03:
Okay.

[00:24:10] Speaker 03:
And you take that to mean instate?

[00:24:12] Speaker 03:
No, I take that to mean reinstate.

[00:24:15] Speaker 03:
So Congress with the superiors was real in the beginning of it?

[00:24:18] Speaker 04:
No, not at all.

[00:24:19] Speaker 04:
Because Mr. Pappas held a position as a minor at that mine for many years.

[00:24:24] Speaker 03:
Okay.

[00:24:26] Speaker 03:
I think I've got all the answer I'm going to get, whether I've got an answer or not.

[00:24:30] Speaker 02:
Can I ask you about the dissenting commissioner and his reliance on Lone Mountain?

[00:24:36] Speaker 02:
I thought that was pretty persuasive.

[00:24:38] Speaker 02:
Why isn't it?

[00:24:39] Speaker 04:
Well, the facts in Lone Mountain are distinguishable, as the majority of the commission pointed out, in that the minor in Lone Mountain

[00:24:51] Speaker 04:
had not worked at the mine for which he was seeking to be reinstated at.

[00:24:58] Speaker 02:
But he was a miner.

[00:24:59] Speaker 04:
He was a miner, but it was at a different mine.

[00:25:02] Speaker 02:
All right.

[00:25:02] Speaker 02:
He had no previous... Well, this is a different mine in that it's owned by a different operator, and it's the operator who has to do either the reinstating or the rehiring or the hiring or the instating.

[00:25:19] Speaker 02:
So why isn't that more like Lone Mountain Inn, that it's a different mine, not physically, but it's being operated by a different operator, and that is the person who does the action of temporarily reinstating or not?

[00:25:39] Speaker 04:
Well, that's just the point, is that the fact that a new owner takes over a mine doesn't make it a different mine.

[00:25:45] Speaker 04:
It's still the same mine.

[00:25:47] Speaker 04:
It's still the same mine.

[00:25:49] Speaker 02:
They're using the same... It's still the same mine, but what we're talking about is the entity that's taking the action of either temporarily reinstating or not.

[00:25:58] Speaker 02:
And if the dissent says you can't entity, you can't reinstate if you never instated, what is wrong with that?

[00:26:10] Speaker 02:
I guess I'm asking just, I guess we know your position, because I think I'm asking basically what Judge Sintel asked.

[00:26:17] Speaker 04:
Yes.

[00:26:17] Speaker 04:
And if I may, though, I'd like to explain the statutory context.

[00:26:22] Speaker 04:
Because you can't just look at the word reinstate in Section 105C2 in isolation and say, that's the end of the story.

[00:26:30] Speaker 04:
Because Section 105C2 plays an integral role in achieving the overall safety and health purposes of the MINAT by encouraging

[00:26:39] Speaker 03:
and empowering minors to raise safety and health issues at the mines where they work without fear of trouble with the purpose of arguments and statutory interpretation is the inevitably prove more than you're offering them for.

[00:26:57] Speaker 03:
If you say we interpret the statute, no matter what it says, we interpret it to accomplish what we see as Congress's goal.

[00:27:04] Speaker 03:
The task of interpreting statutes becomes writing statutes after we discern Congress' goal.

[00:27:11] Speaker 03:
Congress intended to provide whatever remedy it wrote into the Act.

[00:27:15] Speaker 03:
It didn't intend for us to come along and make new remedies.

[00:27:19] Speaker 03:
I'm not sure where you're getting with that argument.

[00:27:22] Speaker 04:
Correct, but Section 105C2

[00:27:25] Speaker 04:
talks about reinstating minors as opposed to applicants.

[00:27:29] Speaker 04:
That's correct.

[00:27:30] Speaker 03:
And in this case... When you've never worked with somebody before, you're their applicant, you're not their miner.

[00:27:35] Speaker 03:
He was also a miner.

[00:27:37] Speaker 03:
Well, so is the fellow who works across the ridge in some other mining.

[00:27:40] Speaker 03:
He was a miner too, but not for purposes of this rank.

[00:27:44] Speaker 03:
You can't come in from a mine across the mountain and say, well, I'm a miner.

[00:27:49] Speaker 04:
Okay, there's a difference between the remedy, which is temporary reinstatement and eligibility for the remedy, which is all we're talking about here.

[00:27:59] Speaker 03:
You can't come in from a mine across the mountain and say, I'm a miner, therefore I'm eligible.

[00:28:03] Speaker 03:
I agree with you.

[00:28:05] Speaker 03:
Where we disagree with you is that you have to be a minor at the mine where you want.

[00:28:24] Speaker 04:
You can start with the statutory definition of a minor, which says an individual who is working in a mine.

[00:28:30] Speaker 03:
That would bring in the person from across the mountain, wouldn't it?

[00:28:38] Speaker 04:
It wouldn't because you have to, as this court has recognized in the past,

[00:28:43] Speaker 04:
And as the Commission has recognized many times, the word minor always has to be interpreted within the specific statutory provision where it appears.

[00:28:51] Speaker 03:
Precisely.

[00:28:53] Speaker 03:
And that's the problem that I see here, is you're not doing that.

[00:28:56] Speaker 03:
That's exactly what we're doing.

[00:28:58] Speaker 03:
You're limiting somebody that isn't described by the rest of the profession.

[00:29:03] Speaker 05:
But do you think that Congress is addressing this circumstance?

[00:29:06] Speaker 03:
No.

[00:29:08] Speaker 03:
And if Congress is not addressing this circumstance,

[00:29:13] Speaker 03:
This is purely a statutory remedy.

[00:29:15] Speaker 03:
So if Congress is not addressing this circumstance, where are you coming from by making this order?

[00:29:21] Speaker 05:
Why are we talking about this statute if Congress hasn't addressed it?

[00:29:24] Speaker 04:
Because the statute is ambiguous as to what Congress's intent would be in the case where an individual is both a miner working at the Oro Grande mine, at the same time that he's an applicant for employment at that mine with some future operator who's on the verge of taking over that mine.

[00:29:44] Speaker 04:
And if we exclude Mr. Pappas here, then any miner who's in those shoes, that is specifically the shoes of an individual who's working at a mine where a new operator is about to take over.

[00:29:58] Speaker 04:
A new owner is about to take over.

[00:30:01] Speaker 04:
A new operator or a new owner.

[00:30:03] Speaker 04:
Well, that's two different things.

[00:30:06] Speaker 04:
That's right.

[00:30:07] Speaker 04:
That's right.

[00:30:07] Speaker 04:
But in this case, it's both.

[00:30:10] Speaker 04:
Cal Portland is the owner and the operator.

[00:30:12] Speaker 03:
The fact that it's the new owner.

[00:30:19] Speaker 03:
Yes, but it doesn't change...

[00:30:29] Speaker 04:
It doesn't say minor for that employer anywhere in the statute either, Judge Santel.

[00:30:36] Speaker 03:
So I think that... No.

[00:30:40] Speaker 04:
As the Secretary's brief says, the ambiguity in Section 105C2 in that Congress didn't address the situation of when an individual is both a minor at and an applicant for employment at the same mine,

[00:30:56] Speaker 04:
The way the Secretary interprets that is that if the minor is employed at that mine and his discrimination complaint arises out of his employment at that very same mine, then he's a minor for purposes of Section 105C2.

[00:31:13] Speaker 04:
And that's a reasonable interpretation of the text.

[00:31:17] Speaker 04:
I don't deny that Cal Portland's interpretation is reasonable as well, but Cal Portland's interpretation frustrates the purposes of the MINAC by putting... Only if you follow the definition of purpose that you want to follow.

[00:31:31] Speaker 03:
Congress only intends whatever remedy it grants.

[00:31:34] Speaker 03:
And when you come in here and argue that it doesn't accomplish Congress's purpose, if you follow the language of the statute, that doesn't get you anywhere.

[00:31:42] Speaker 03:
We can only do what Congress says, not what they might have wanted to accomplish.

[00:31:50] Speaker 04:
If Mr. Pappas is a miner for purposes of 105C2, that does not automatically entitle him to temporary reinstatement of that mine.

[00:32:01] Speaker 03:
It makes him eligible.

[00:32:02] Speaker 04:
It makes him eligible.

[00:32:04] Speaker 04:
But if he doesn't have

[00:32:07] Speaker 04:
a non-frivolous claim that Cal Portland was complicit in the discrimination, then he's not going to get temporary reinstatement.

[00:32:15] Speaker 04:
Cal Portland, in this case, has not appealed a finding that Mr. Pappas' discrimination complaint against it was non-frivolous.

[00:32:25] Speaker 04:
That's not an issue here.

[00:32:27] Speaker 04:
The only issue is whether this man was a minor.

[00:32:30] Speaker 04:
And if you hold that he was a minor, that doesn't mean that everybody in his shoes in the future is automatically going to get temporary reinstatement.

[00:32:38] Speaker 04:
It only means that they're going to be eligible for it if they can bring a non-frivolous discrimination complaint implicating the new owner of the mine.

[00:32:49] Speaker 04:
But again, I have to emphasize that Section 105C2 on its base does not resolve this question.

[00:32:56] Speaker 04:
It says minor.

[00:32:58] Speaker 04:
It says applicant for employment.

[00:33:00] Speaker 04:
It doesn't say what happens when one individual is simultaneously both a minor at that mine and an applicant.

[00:33:07] Speaker 05:
So what are we to do then?

[00:33:08] Speaker 05:
Your argument is therefore that the agency can

[00:33:11] Speaker 05:
can interpret this ambiguity.

[00:33:13] Speaker 05:
But isn't another way to approach it is, no, Congress hasn't created a remedy for this circumstance, and you can't create one where it hasn't.

[00:33:21] Speaker 05:
How do we decide between those two?

[00:33:24] Speaker 02:
And if we can fill in a gap, why couldn't Congress have said, shall order the immediate reinstatement, parens, or in statement, or hiring?

[00:33:34] Speaker 02:
I'm sorry, or in statement.

[00:33:35] Speaker 04:
Certainly, Congress could have, Your Honor.

[00:33:38] Speaker 02:
Well, then we would know that it was when you had a minor who was also an applicant for employment that he could get a temporary in-statement.

[00:33:51] Speaker 02:
We would know that.

[00:33:53] Speaker 02:
And that would have been easy for Congress to say, you know, if we just add the word in-statement where

[00:33:59] Speaker 02:
it fits if the minor happens to be both a minor and an applicant for employment?

[00:34:05] Speaker 04:
Yes, yes, I agree with you 100 percent, Your Honor, except that we can't assume that Congress will anticipate every conceivable circumstance that will arise.

[00:34:15] Speaker 04:
That's why we have courts to interpret the application of the statute in various circumstances which Congress might not have foreseen.

[00:34:25] Speaker 04:
And that's, I mean, Section 105C2 doesn't answer the precise question.

[00:34:31] Speaker 04:
before this Court, the Secretary's interpretation does in a way that's consistent with the MINAC, and the Secretary's interpretation is entitled to deference if there's an ambiguity in the statute.

[00:34:46] Speaker 05:
Well, unless the Secretary's creating a whole cloth of new remedy.

[00:34:49] Speaker 03:
Right.

[00:34:50] Speaker 03:
No, I agree with you.

[00:34:51] Speaker 03:
The second prong of Chevron is not with – assuming that you're correct if there's an ambiguity, which is not

[00:35:00] Speaker 03:
And if this creates a remedy that Congress has not created, that's pretty prima facie, unreasonable, if that's the case.

[00:35:11] Speaker 04:
I disagree with you, Your Honor.

[00:35:12] Speaker 03:
I only have four seconds left to explain why.

[00:35:17] Speaker 04:
May I proceed?

[00:35:23] Speaker 04:
I disagree with you that Congress has not created this remedy.

[00:35:26] Speaker 04:
Congress did create this remedy.

[00:35:28] Speaker 03:
Did you really phrase that as, if Congress has not created the remedy, then this is unreasonable?

[00:35:34] Speaker 03:
Are you really disagreeing with that statement?

[00:35:36] Speaker 04:
No.

[00:35:37] Speaker 03:
OK, thank you.

[00:35:38] Speaker 03:
Thank you.

[00:35:40] Speaker 02:
All right.

[00:35:41] Speaker 02:
Does Mr. Lund, he doesn't, why don't you take two minutes?

[00:35:48] Speaker 01:
I'll try to use less of that, Your Honor.

[00:35:50] Speaker 02:
All right.

[00:35:51] Speaker 01:
There is no silence.

[00:35:53] Speaker 01:
Congress has specifically identified the rights of applicants for employment under section 105.

[00:36:00] Speaker 01:
It gives them rights in a final merits determination with respect to remedies.

[00:36:05] Speaker 01:
It does not

[00:36:07] Speaker 01:
allow them access to the extraordinary temporary action that took place in this case.

[00:36:16] Speaker 01:
It speaks directly to it and absent any congressional intent to the contrary, that conclusive statutory language is controlling, number one.

[00:36:27] Speaker 01:
Number two, the entire concept

[00:36:29] Speaker 01:
of temporary reinstatement, as put in the language of the action by Congress, is reinstatement, which by dictionary definition does not include forcing somebody to hire somebody for a new position, number one.

[00:36:45] Speaker 01:
And number two, Congress in the statute talks about reinstatement.

[00:36:51] Speaker 05:
The question is,

[00:36:52] Speaker 05:
What is his job?

[00:36:54] Speaker 05:
What is Mr. Pappas' job?

[00:36:55] Speaker 05:
Is it working in that mine or is it working for a certain set of people?

[00:37:01] Speaker 05:
And if it's working in the mine, then he's back in that old job, right?

[00:37:04] Speaker 05:
He's back in that old... He wants to go back in that mine and have the job that he had before.

[00:37:09] Speaker 05:
The question is, at least in my mind, what's the significance of the fact that it's a new employer?

[00:37:17] Speaker 05:
Does that change the calculus at all?

[00:37:21] Speaker 01:
The fact it's a new employer makes him an applicant for employment and changes the calculus.

[00:37:26] Speaker 01:
And to go to Judge Santel's point is employment isn't a fixture that attaches to an asset and travels all through the legal system.

[00:37:35] Speaker 01:
And that's the type of argument they're making.

[00:37:38] Speaker 01:
they're they're in the weeds and beyond the statute of limitations.

[00:37:41] Speaker 05:
You're saying it attaches to an employer.

[00:37:43] Speaker 01:
I'm saying it's an employment situation.

[00:37:46] Speaker 01:
You either work for this person and had a job with this person under the terms and benefits and conditions of that employment or you didn't.

[00:37:52] Speaker 01:
You either made an application to be hired or you were something else.

[00:37:56] Speaker 01:
Here he's clearly an applicant for employment.

[00:37:59] Speaker 01:
That's a substantial evidence question.

[00:38:01] Speaker 01:
That's what they're trying to do is they're trying to bring in speculative

[00:38:06] Speaker 01:
arguments about, hey, maybe he's not really an applicant for employment, that's contrary to the substantial evidence of record.

[00:38:12] Speaker 01:
That's analytically different than what does the statute say.

[00:38:16] Speaker 01:
The statute says, applicants for employment do not get temporary reinstatement.

[00:38:21] Speaker 01:
And so we request you grasp the petition for review.

[00:38:24] Speaker 01:
I thank you for the generous extra time.

[00:38:26] Speaker 02:
Thank you.

[00:38:27] Speaker 02:
Call the next case.