LEFT FORK MINING COMPANY, INC.; BENNETT RESOURCES, LLC; CUMBERLAND RIVER ENERGIES, LLC; BLACKSTAR LAND & MINING COMPANY, LTD.; MANALAPAN LAND COMPANY, LTD., Plaintiffs-Appellants,
IRVING T. HOOKER, et al., Defendants-Appellees
Argued, November 18, 2014
Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:13-cv-00008--Karen K. Caldwell, Chief District Judge.
John M. Williams, RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC, Lexington, Kentucky, for Appellant.
Cheryl D. Morgan, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellees.
John M. Williams, Todd C. Myers, RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC, Lexington, Kentucky, for Appellant.
Cheryl D. Morgan, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellees.
Before: MERRITT, WHITE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge.
This is an appeal from the district court's dismissal of a claim for money damages brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court found that the existence of an alternate remedial scheme created by statute precluded a judicially-created damages remedy in this case. For the reasons stated herein, we AFFIRM.
Plaintiffs-Appellants are the owners, operators, and other parties with a financial interest in the Straight Creek underground coal mine in Bell County, Kentucky, and include the Left Fork Mining Company (" Left Fork" ), which leases and operates the mine. Straight Creek is an underground slope mine containing two separate seams of coal: the upper seam is the Rim Seam and the lower seam is the Straight Creek Seam. Until its flooding, Left Creek mined in three sections of the Rim Seam, while working to rehabilitate the Straight Creek Seam. Mines like Straight Creek are subject to regular safety inspections pursuant to the Federal Mine Health and Safety Act of 1977 (" Mine Act" ) (30 U.S.C. § 801 et. seq.). The Mine Act authorizes the Secretary of Labor to promulgate mandatory health and safety regulations for all mines (30 C.F.R. § 75.370 et seq.). The Federal Mine Safety and Health Administration (" MSHA" ), a division of the Department of Labor (" DOL" ), acts on behalf of the Secretary of Labor and enforces the Mine Act. The Mine Act generally requires at least four annual inspections and, in some instances, more frequent, " spot," inspections,
such as in the event of excessive methane liberation. 30 U.S.C. § 813(i). Defendants-Appellees Irvin Hooker, Clayton " Eddie" Sparks, Dannie Lewis, Dennis Cotton, Charles Maggard, and Sam Creasy are mine inspectors or supervisors employed by the MSHA (collectively, " MSHA employees" ). The Mine Act mandates that an inspector must issue a citation to a mine operator for any conditions the inspector observes that are in violation of the Mine Act or its attendant regulations. 30 U.S.C. § 814(a).
During a routine inspection on March 22, 2011, MSHA inspector Tom Middleton noted elevated methane gas readings from behind a seal meant to confine methane and other dangerous gases and prevent entry to the Straight Creek mine's ventilation system. Given the high likelihood of a significant and substantial safety threat, Middleton issued an order (" Imminent Danger Order" ) under section 107(a) of the Mine Act, 30 U.S.C. § 817(a) and a citation under section 104(a) of the Mine Act, 30 U.S.C. § 814(a). In the event of an accident, which includes an unplanned inundation of a mine by a gas, section 103(k) of the Mine Act, 30 U.S.C. § 817(a), authorizes MSHA agents to issue orders they deem appropriate to ensure safety of any persons in the mine. Acting pursuant to this authorization, Middleton issued a second order (" No Access Order" or " K Order" ) proscribing Left Fork's access to the mine. The No Access Order closed the mine for all activity, but was modified by Middleton multiple times that day to allow for ventilation, conducting of required examinations, re-energizing of power, ...