Tuesday, July 7, 2009

Scott Howard v. Hilda Solis

Jul 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5799. In this case Petitioner Scott Howard, a miner, sought a writ of mandamus from the court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argued that the present standards are too high and that the Secretary had, therefore, violated her duty under the Mine Act to promulgate “improved” standards to protect the health of miners.

The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"

Access the complete opinion (
click here).