F I L E D

United States Court of Appeals

Tenth Circuit

AUG 24 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HAZEL OLSON,

Petitioner,

v. No. 03-9528

FEDERAL MINE SAFETY AND

HEALTH REVIEW COMMISSION,

Respondent,

JACOBS RANCH COAL COMPANY,

Intervenor. 

PETITION FOR REVIEW OF A DECISION OF THE

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

(No. WEST-2002-305-D)

Malcolm S. Mead of Hall & Evans, LLC, Denver, Colorado, for Petitioner.

L. Anthony George of Jackson Kelly PLLC (Laura E. Beverage, and Anne T.

Nichting with him on the brief), Denver, Colorado, for Intervenor. 

Before LUCERO , McKAY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge. 
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Hazel Olson (Complainant) seeks review of the dismissal of her

administrative complaint by an Administrative Law Judge (ALJ) of the Federal

Mine Safety and Health Review Commission (the Commission). Complainant

failed to file her complaint within the 60-day period provided by § 105(c)(2) of

the Federal Mine Safety and Health Act, 30 U.S.C. § 815(c)(2). She claims that

she delayed filing until her husband was disabled because of her fear that her

former employer, Jacobs Ranch Coal Company (Jacobs Ranch), would retaliate

against her husband (who worked for Jacobs Ranch) or her son (who might apply

for work). The ALJ found that she had not met her burden of establishing that

her untimely filing was the result of justifiable circumstances, and that Jacobs

Ranch had demonstrated that it would be prejudiced in defending against her

allegations if the untimely filing were permitted. Exercising jurisdiction under 30

U.S.C. § 816(a)(1), we affirm. We agree with the ALJ that Complainant failed to

raise a genuine factual issue that her alleged fear of retaliation would have been

reasonable. 

I. BACKGROUND

A. The Mine Act

Under 30 U.S.C. § 815(c)(2), “Any miner . . . who believes that [s]he has

been discharged, interfered with, or otherwise discriminated against by any person

in violation of this subsection may, within 60 days after such violation occurs,
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file a complaint with the Secretary [of Labor] alleging such discrimination.” 

(emphasis added). After a miner files a complaint, the Mine Safety and Health

Administration (MSHA) investigates it on behalf of the Secretary of Labor. See,

e.g., Simpson v. Fed. Mine Safety & Health Review Comm’n, 842 F.2d 453, 456

n.3 (D.C. Cir. 1988). If the Secretary finds that a violation occurred, the

Secretary may pursue the claim on the miner’s behalf before the Commission. 30

U.S.C. § 815(c)(2). If not, the miner may file a claim with the Commission on

her own behalf under 30 U.S.C. § 815(c)(3). 

The Commission does not consider the 60-day limit of § 815(c)(2) to be

jurisdictional. See Morgan v. Arch, 21 FMSHRC 1381, 1386 (1999)

(“Commission case law is clear that the 60-day period for filing a discrimination

complaint under section . . . § 815(c)(2), is not jurisdictional.”). It will hear cases

in which a complaint’s untimely filing is due to “justifiable circumstances,

including ignorance, mistake, inadvertence and excusable neglect.” Perry v.

Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1921-22 (1996). On the other

hand, “[e]ven if there is an adequate excuse for late filing, a serious delay causing

legal prejudice to the respondent may require dismissal.” Id. at 1922. The

Commission places the burden of proving justifiable circumstances on the miner,

and places the burden of demonstrating material legal prejudice on the mine

operator. See id.; Schulte v. Lizza Indus. Inc., 6 FMSHRC 8, 13 (1984).
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B. Facts

Complainant and her husband Emmett reside in Wyoming’s Powder River

Basin, where they were formerly employed at the Jacobs Ranch Coal Mine (the

Mine). They married in 1988 and have one son, Josh. Complainant began

working at the Mine in 1979, Emmett in 1977. (Josh has not been employed at

the Mine.) The Mine was then owned by the Kerr-McGee Company, but was

purchased by the Kennecott Energy Company in July 1998. 

Complainant asserts that she “tends to be vocal about safety issues.” Aplt.

Br. at 3. In 1994 she filed a safety complaint under 30 U.S.C. § 813(g) and a

discriminatory-retaliation complaint under 30 U.S.C. § 815(c). She filed a second

retaliation complaint under § 815(c) in May 1995. According to the ALJ, the

MSHA failed to pursue these claims on Complainant’s behalf and she elected not

to pursue them on her own. 

Complainant alleges that her filing of these claims did not endear her to

management, and the animosity remained after the Mine was sold because much

of the management stayed on. Jacobs Ranch counters that it is not responsible for

interactions between Complainant and management prior to its purchase of the

Mine, and contends that her statement that management stayed on is unsupported

by any evidence and contradicted by her own testimony. It concedes that after its
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purchase of the Mine, Complainant’s relationships with her supervisors and coworkers were often less than amicable, but it assigns the blame to Complainant. 

In May 1999 Jacobs Ranch suspended Complainant for three days for

committing a safety violation. In response, Complainant filed yet another

retaliation complaint under § 815(c) in June 1999, alleging that she received a

harsher suspension than was appropriate for the violation because of her filing

previous complaints in 1994 and 1995. Again the MSHA declined to pursue the

claim on Complainant’s behalf, and again Complainant failed to pursue the claim

on her own. She also was issued a warning regarding her attendance in October

1999 and was counseled by Jacobs Ranch in November 1999 for alleged abuse of 

co-workers. 

Finally, Jacobs Ranch fired her on December 4, 1999, for allegedly making

false statements in a safety investigation. Complainant testified at her deposition

that Chad Anderson, the human resources manager at the Mine, and Robert

Hammond, the general manager, made the decision to terminate her. Hammond

moved to Australia on May 1, 2001, and Anderson moved to Australia on April 1,

2002. 

Complainant contends she was terminated in retaliation for complaining

about safety issues and for filing complaints in 1994, 1995, and 1999. Although

she disputed the grounds of her termination, she took no formal action at the time. 
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On January 22, 2001, Emmett suffered a stroke, which forced his retirement from

the Mine. On February 16, more than 14 months after her firing, Complainant

filed a complaint with the MSHA, stating, “Chad Anderson said I was fired for

giving false information in a Kennecott investigation. I believe I was fired for

filing [complaints under the Mine Act] in the past.” R. at 10. 

When the MSHA declined to pursue her case, Complainant proceeded on

her own behalf under § 815(c)(3). Jacobs Ranch filed an answer contending that

the complaint was untimely. Complainant, through counsel, then filed an

amended complaint, asserting that she “refrained from filing her discrimination

complaint [with the MSHA] until February 16, 2001 because she was fearful that

Jacobs Ranch would retaliate against her husband and that her teenage son would

not be able to gain employment at the Mine.” R. at 37, ¶ 11. Jacobs Ranch

moved to dismiss the complaint on the grounds of untimeliness, and attached a

transcript of Complainant’s deposition to the motion. In her response to the

motion, Complainant relied upon a signed declaration. 

The ALJ recognized that the 60-day limitations period could be tolled but

found that Complainant’s evidence would not support tolling, and dismissed the

complaint for untimeliness. The Commission declined to exercise discretionary

review, making the ALJ’s decision the final decision of the Commission, see 30

U.S.C. § 823(d)(1) (“The decision of the administrative law judge of the
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Commission shall become the final decision of the Commission 40 days after its

issuance unless within such period the Commission has directed that such

decision shall be reviewed by the Commission . . . .”). Complainant appeals. 

II. DISCUSSION

A. Standard of Review

Because the ALJ’s decision is the final decision of the Commission, we

review for substantial evidence the ALJ’s findings of fact. See 30 U.S.C.

§ 816(a)(1) (“The findings of the Commission with respect to questions of fact, if

supported by substantial evidence on the record considered as a whole, shall be

conclusive.”). We review de novo the ALJ’s legal conclusions, See Walker Stone

Co. v. Sec’y of Labor, 156 F.3d 1076,1085 (10th Cir. 1998) (“We reject legally

erroneous conclusions.”); Utah Power & Light Co. v. Sec’y of Labor, 951 F.2d

292, 293 n.1 (10th Cir. 1991) (“As to questions of law our review is plenary.”);

see also, e.g., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096,

1099 (D.C. Cir. 1998). 

As for the Commission’s interpretations of the Mine Act, whether the

Commission is entitled to deference depends on whether its interpretation is at

odds with that of the Secretary of Labor, acting through the MSHA. If the

Secretary and the Commission agree on an interpretation of the Mine Act, we

defer to a reasonable interpretation. See Utah Power & Light Co. v. Sec’y of
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Labor, 897 F.2d 447, 449 (10th Cir. 1990); see also Energy West Mining Co. v.

FMSHRC, 111 F.3d 900, 903 (D.C. Cir. 1997). When the Secretary and the

Commission disagree, however, both the Commission and a reviewing court must

defer to the Secretary. See, e.g., Joy Techs. v. Sec’y of Labor, 99 F.3d 991, 995

(10th Cir. 1996) (“If the Secretary of Labor and FMSHRC have conflicting

interpretations of the Mine Act, the Secretary’s interpretations rather than

FMSHRC’s are entitled to deference under Chevron.”); see also Sec’y of Labor v.

Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); Sec’y of Labor v. Mutual

Mining, Inc., 80 F.3d 110, 113-15 (4th Cir. 1996). 

This case presents a third situation. The legal issue before us is the

existence and scope of an equitable exception to the 60-day time limit for filing a

complaint under § 815(c)(2). The Commission has interpreted that provision in

the absence of interpretive guidance from the Secretary. But even though the

MSHA rather than the Commission is the agency primarily responsible for

administering the Mine Act, the Supreme Court has indicated in another context

that “[t]he Commission . . . was established as an independent-review body to

‘develop a uniform and comprehensive interpretation’ of the Mine Act,” Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994) (quoting Hearing on the

Nomination of Members of the Federal Mine Safety and Health Review

Commission before the Senate Committee on Human Resources, 95th Cong., 2d
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Sess., 1 (1978)). Moreover, Congress granted the Commission authority to

promulgate rules of procedure governing proceedings before the Commission and

its ALJs. See 30 U.S.C. §§ 815(d) & 823(d)(2). In this circumstance we will

defer to the Commission’s interpretation if it is reasonable. See Otis Elevator Co.

v. Sec’y of Labor, 921 F.2d 1285, 1293 (D.C. Cir. 1990) (Thomas, J.) (“Because

the Commission’s decision does not interpret any arguably jurisdictional

provisions and has never been disapproved by the Secretary, we clearly owe it

deference under Chevron.” (citing Simpson, 842 F.2d at 458-59 (R.B. Ginsburg,

J.))). We do not read United States v. Mead Corp., 533 U.S. 218 (2001), to

require less deference. 

B. Reasonableness of Commission’s Interpretation of § 815(c)(2)

Section 815(c)(2) contains no explicit exception to the requirement that

claims be filed with the Secretary within 60 days of an alleged violation. 

Nevertheless, the Commission’s interpretation of the Mine Act to permit equitable

tolling is supported by both the background presumptions against which the Act

was written and the Act’s legislative history. We hold that the Commission’s

interpretation is reasonable and deserves deference. 

The 60-day period in which a miner may file a claim under § 815(c)(2) is a

limitations period. As the United States Supreme Court has recognized, “It is

hornbook law that limitations periods are customarily subject to equitable tolling,
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unless tolling would be inconsistent with the text of the relevant statute.” Young

v. United States, 535 U.S. 43, 49 (2002) (internal quotation marks and citation

omitted). Accordingly, “Congress must be presumed to draft limitations periods

in light of this background principle.” Id. at 49-50. 

To the extent that legislative history is relevant, it supports recognition of

equitable tolling of § 815(c)(2). The Senate Committee Report on the statute

states: 

While [the 60-day] time-limit is necessary to avoid stale claims being

brought, it should not be construed strictly where the filing of a

complaint is delayed under justifiable circumstances. Circumstances

which could warrant the extension of the time-limit would include a

case where the miner within the 60-day period brings the complaint

to the attention of another agency or to his employer, or the miner

fails to meet the time limit because he is misled as to or

misunderstands his rights under the Act. 

S. Rep. 95-181, 95th Cong., 1st Sess. 36 (1977). The non-exclusive list of

justifiable circumstances recognized by the Commission echoes the legislative

history. According to the Commission, “justifiable circumstances includ[e]

ignorance, mistake, inadvertence, and excusable neglect.” Perry, 18 FMSHRC at

1921-22. 

To be sure, the Commission’s interpretation of the Mine Act also requires

the consideration of unfairness to the mine operator arising from hearing an

untimely claim. If a miner’s claim is so stale that hearing it would result in

material legal prejudice to the mine operator, it may be dismissed even if the
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miner demonstrates justifiable circumstances. Id. at 1922. Such consideration of

the mine operator’s interests, however, is proper in weighing the equities. We

conclude that the Commission’s equitable-tolling rule is a reasonable construction

of § 815(c)(2). 

C. The ALJ’s Decision

The ALJ granted Jacobs Ranch’s motion to dismiss. He began by reciting

Commission precedent holding that “a ‘miner’s late filing of a discrimination

complaint may be excused on the basis of justifiable circumstances, including

ignorance, mistake, inadvertence and excusable neglect.’” R. at 199 (quoting

Perry, 18 FMSHRC at 1921-22). The ALJ saw no such excuse here, finding that

Complainant’s deposition and her prior filing of complaints with the MSHA

demonstrated that she “was well aware of the 60-day period for filing

discrimination complaints” and “was fully aware of her section [815(c)] rights.” 

R. at 199-200. The ALJ also rejected as “inconsistent with the facts”

Complainant’s argument that she failed to timely file her complaint due to her

fear of retaliation against her husband and son. Id. at 200. The ALJ wrote: 

[Complainant] had filed several other section [815(c)] complaints

while her husband Emmett was employed at the mine. At her

deposition, [she] admitted that Emmett had not been threatened in

any way after she filed those discrimination complaints. She did not

express any specific reasons why she believed that Emmett would

suffer any adverse action by the company as a result of her

complaint, other than the fact that she no longer worked at the mine. 
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In addition, her son did not apply for a job at the mine until after she

filed her discrimination complaint in this case. 

Id. (internal citations omitted). The ALJ reasoned: 

A delay may be justified upon a showing that the fear of serious

reprisal can be supported by facts. Speculation that the relative may

be the butt of jokes or teasing is not enough. . . . A vague,

unsubstantiated concern that Emmett would replace her as a victim of

harassment and intimidation is an insufficient justification for the

knowing delay. 

Id. (internal quotation marks omitted). Furthermore, the ALJ found that Jacobs

Ranch had demonstrated material legal prejudice arising from Petitioner’s

untimely filing because of the relocation of two essential witnesses to Australia

and Complainant’s inability to recall relevant facts. 

The ALJ concluded that Complainant’s complaint was “excessively stale”

because “[t]he reasons set forth for the delay do not demonstrate any justifiable

circumstance for the delay, such as excusable neglect, and Jacobs Ranch suffered

at least some degree of legal prejudice because of the delay.” Id. at 201. 

D. Review of the ALJ’s Decision

Before addressing Complainant’s challenge to the ALJ’s ruling, we note the

ambiguous procedural posture of the ruling. It is unclear whether the ALJ treated

Jacobs Ranch’s motion as a motion to dismiss under 29 C.F.R. § 2700.10 or as a

motion for summary decision under 29 C.F.R. § 2700.67, which is essentially the

same as a motion for summary judgment under Federal Rule of Civil Procedure
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56. Complainant argues that the ALJ must have treated the motion as a motion

for summary decision because he considered evidence in the record rather than

simply assuming the truth of the allegations of her complaint. She therefore

contends that we should review the ALJ’s ruling as we review a summary

judgment. We may assume that Complainant is correct in this regard. 

Characterizing the ruling as a summary decision, however, does not help

Complainant. First, Complainant does not claim to have been prejudiced by the

ALJ’s examination of material outside the pleadings (indeed, she invited the ALJ

to look to outside materials). Second, as we shall explain, there are no disputed

issues of material fact; so a summary decision, like a summary judgment, was

appropriate. See 29 C.F.R. § 2700.67 (“A motion for summary decision shall be

granted only if the entire record . . . shows: (1) That there is no genuine issue as

to any material fact; and (2) That the moving party is entitled to summary

decision as a matter of law.”); Simms v. Oklahoma, 165 F.3d 1321, 1326 (10th

Cir. 1999) (standard for summary judgment). 

Turning to the merits of the ALJ’s ruling, Complainant contends that the

ALJ erred in granting Jacobs Ranch’s motion because “[r]eviewed de novo, the

record reveals a genuine dispute of material fact whether [Complainant] refrained

from filing her complaint in a timely manner because she held a good faith,

reasonable fear that her husband and son would be subjected to retaliation.” Aplt.
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Br. at 32. This contention has both a legal component—that a reasonable fear of

retaliation can justify an untimely filing—and a factual component—that she had

such a reasonable fear in this case. We begin with the legal component. 

To support her contention that a reasonable fear of retaliation would justify

delay in filing a complaint, Complainant cites Allen v. UNC Mining and Milling,

5 FMSHRC 30 (1983). That decision is not entitled to deference, however,

because the Commission did not review the ALJ’s decision, and the decision is

therefore not binding precedent under the Commission’s rules, see 29 C.F.R.

§ 2700.72 (“An unreviewed decision of [an ALJ] is not a precedent binding upon

the Commission.”). We agree with the following observation: 

[I]nitial decisions by ALJs . . . often are not treated as binding

precedent by the agency itself. In other words, they are not regarded

as legally binding inside the agency in future proceedings raising the

same issue. Such decisions also do not qualify for Chevron

deference Indeed, it would be extremely odd to give ALJ decisions

greater legal force in court than they have within the agency itself. 

Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain 89 Geo. L.J. 833,

908 (2001) (footnote omitted). 

Nevertheless, we will assume that equitable tolling can be based on a

reasonable fear of retaliation. Indeed, the ALJ did not categorically reject the

possibility of such an exception to the 60-day filing requirement. He merely held

that even if recognition of such an exception is a permissible construction of the

Mine Act, it would not apply on the evidence in this case. The ALJ said, “A
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delay may be justified upon a showing that the fear of serious reprisal can be

supported by facts.” R. at 200. We read the ALJ’s statement to mean that there

must be facts in the record from which one could conclude that a miner’s fear of

serious reprisal is reasonable. 

Where Complainant falls short is on the factual component of her

argument—whether she had a reasonable fear of retaliation. As with any party

claiming the benefit of equitable tolling of a limitations period, Complainant bore

the burden of proving justifiable circumstances. See, e.g., Tiberi v. Cigna Corp.,

89 F.3d 1423, 1428 (10th Cir. 1996) (applying New Mexico law); Aldrich v.

McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (“While the

statute of limitations is an affirmative defense, when the dates given in the

complaint make clear that the right sued upon has been extinguished, the plaintiff

has the burden of establishing a factual basis for tolling the statute.”);

United States v. All Funds Distributed To, or on Behalf of Weiss, 345 F.3d 49, 55

(2d Cir. 2003) (“A party seeking to benefit from the doctrine [of equitable tolling]

bears the burden of proving that tolling is appropriate . . . .”); United States v.

Marolf, 173 F.3d 1213, 1218 n.3 (9th Cir. 1999) (same); Justice v. United States,

6 F.3d 1474, 1479 (11th Cir. 1993) (same); see also Phillips v. Donnell, 216 F.3d

508, 511 (5th Cir. 2000) (habeas case, noting that “[i]n other areas of federal law,

the party seeking to establish [equitable] tolling typically carries that burden.”). 
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Complainant admits that she was required to prove that her fear of retaliation

against her husband was both genuine and reasonable. In our view, she failed to

satisfy that requirement. 

In Complainant’s brief in opposition to Jacobs Ranch’s motion, the section

on justifiable circumstances cites only to a declaration by Complainant attached to

the brief. The declaration contains statements to the effect that (1) after being

fired she “discussed with [her] husband [Emmett] whether [she] should file a

discrimination complaint” and Emmett “told [her] that he felt that Kennecott

would harass and intimidate him and would make his life ‘hell’” and (2) she “was

also very concerned that if [she] filed a discrimination complaint . . . [her] son,

Josh would not be able to get a job at Jacobs Ranch . . . .” R. at 155. She

included no evidence providing any basis for Emmett’s fear other than his own

speculation. Although her assertions might create a genuine issue of material fact

as to whether her fear of retaliation against Emmett and Josh was genuine, they do

not establish that it was reasonable. 

Complainant’s deposition testimony also fails to support a finding of

reasonableness. She admitted that she had no knowledge of Emmett’s job ever

having been threatened because of her activities after Jacobs Ranch purchased the

Mine. She also admitted that Josh never applied for a position at the Mine until

after she filed her untimely discrimination complaint. Her only testimony that
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Emmett was “retaliated against” by a Jacobs Ranch employee following her

dismissal was that his supervisor “would come up and ask [Emmett] how [or

what] I was doing.” R. at 92. As the ALJ observed, Complainant pointed only to

“speculation” and a “vague, unsubstantiated concern that Emmett would ‘replace

her as a victim of harassment and intimidation,’” R. at 200. 

In short, Complainant did not “present[] facts such that a reasonable

[factfinder] could find in [her] favor.” Simms, 165 F.3d at 1326. Because we

agree with the ALJ that Complainant did not provide justification for her untimely

filing, we need not address whether Jacobs Ranch suffered material legal

prejudice. 

III. CONCLUSION

We AFFIRM the ALJ’s dismissal of the complaint on grounds of

untimeliness. The ALJ correctly concluded that there was no genuine issue of

material fact as to the reasonableness of Complainant’s fear of retaliation against

Emmett and Josh.