United States of America 

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor 

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 14-0922

SABATIS MITCHELL,

 Respondent.

 Before: Judge Bell

ORDER DENYING RESPONDENT’S MOTION TO DISMISS 

 This case is before the Occupational Safety and Health Review Commission (“Commission”) 

pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“OSH Act”). 

In response to the Secretary of Labor’s (“Secretary”) Complaint, Sabatis Mitchell 

(“Respondent”) filed an Answer that included an assertion that the Commission does not have 

jurisdiction over this case. Resp’t Answer, pgs. 3-4. Thereafter, on August 5, 2014, Respondent 

filed a Motion to Dismiss (“Motion”) pursuant to Rule 2(b) of the Commission’s Rules of 

Procedure1 and Rule 12(b)(1) which asserts the defense of lack of subject matter jurisdiction2on

three grounds: 1. Respondent is a member of the Passamaquoddy Tribe which is a sovereign 

Indian Tribe; 2. Respondent was operating a logging operation on lands owned by the 

Passamaquoddy Tribe; and 3. Respondent is not an employer within the meaning of the Act.3 On 

August 21, 2014, the Secretary filed his Opposition to Respondent’s Motion to Dismiss 

 

1

 Rule 2(b) of the Commission’s Rules of Procedure states, “[i]n the absence of a specific provision, procedure shall 

be in accordance with the Federal Rules of Civil Procedure.” 29 C.F.R. § 2200.2(b). 

2

 Fed. R. Civ. P. 12(b)(1). 

3

 Interestingly, Respondent’s assertion of being a “small logging operation” in its Motion to Dismiss is not made in 

connection to the affirmative defenses of “infeasibility/impossibility of compliance” and “greater hazard” as it is in 

its Answer. Instead, Respondent’s Motion implies that the location of the logging operation (on tribal land) exempts 

it from jurisdiction under the Act. 
2

(“Opposition”). For the reasons that follow, Respondent’s Motion to Dismiss is hereby 

DENIED. 

Discussion: Motion to Dismiss Under Rule 12(b)(1) of Federal Rules of Civil Procedure 

 Sovereign Immunity 

 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case may be dismissed for 

lack of subject matter jurisdiction if the court “lacks the statutory or constitutional power to 

adjudicate it .” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When a defendant 

moves to dismiss a cause of action pursuant to Rule 12(b)(1), the court must take all facts alleged 

in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Raila v. 

United States, 355 F.3d 118, 119 (2d Cir. 2004).

 Here, Respondent’s first two grounds for its Motion to Dismiss are both linked to a defense 

that the Passamaquoddy Indian Tribe, to which he (Sabatis Mitchell) belongs, has sovereign 

immunity thereby exempting his business from jurisdiction under the Act. However, 

Respondent’s belief that such an assertion is dispositive of the issue concerning the 

Commission’s jurisdiction over it is mistaken. To the contrary, further analysis is necessary 

before a decision can be made as to whether the Act applies. Because sovereign immunity “is a 

limitation on federal court jurisdiction, a motion to dismiss based on tribal immunity is 

appropriately examined under Fed. R. Civ. P. 12(b)(1).” Bassett v. Mashantucket Pequot 

Museum & Research Ctr. Inc., 221 F.Supp.2d 271, 276 (D.Conn. 2002). In evaluating a Rule 

12(b)(1) motion, “the court may resolve the disputed jurisdictional fact issues by referring to 

evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary 
3

hearing.”4 Zappia Middle E. Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d 

Cir.2000).

 Previously, when addressing this issue, the Commission has applied the Tuscarora rule (also 

referred to as the Tuscarora presumption) in which the Supreme Court stated that federal statutes 

of general applicability apply to “Indians and their property interests.” Turning Stone Casino 

Resort, 21 BNA OSHC 1059, 1061 (No. 04-1000) (“Turning Stone”) (citing Fed. Power 

Comm’n v. Tuscarora Indian Nation), 362 U.S. 99, 116 (1960) (“Tuscarora”). Circuit courts 

have recognized three exceptions to application of the Tuscarora rule: 

(1) the law [of general applicability] touches “exclusive rights of self-governance 

in purely intramural matters”; 

(2) the application of the law to the tribe would “abrogate rights guaranteed by 

Indian treaties”; or 

(3) There is proof “by legislative history or some other means that Congress 

intended [the law] not to apply to Indians on their reservations.” 

Donovan v. Coer d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985) (quoting United 

States v. Farris, 624 F.2d 890, 893-94 (9th Cir. 1980)); Fla. Paraplegic Ass’n. Inc. v. 

Miccosukee Tribe of Indians, 166 F.3d 1126, 1129 (11th Cir. 1999); Reich v. Mashantucket Sand 

& Gravel, 95 F.3d 174, 177 (2d Cir. 1996) (“Mashantucket”); Smart v. State Farm Ins. Co., 868 

F.2d 929, 932-33 (7th Cir. 1989). The Commission has held that “[i]t is undisputed that the Act 

does not directly address Indian tribes.” Turning Stone, 21 BNA OSHC 1059, 1060. Also, the 

logging activities Respondent is engaged in here do not fit the first exception’s definition of 

“purely intramural matters” as outlined by the court in Mashantucket to include activities 

generally involving “tribal membership, inheritance rules, and domestic relations.” 

Mashantucket, 95 F.3d at 179. Moreover, Respondent’s Motion does not make any assertion, 

nor offer any evidence, that any of the exceptions to the Tuscarora rule apply to this case. 

 

4

 Respondent’s Motion to Dismiss makes “bare bones” assertions that are unsupported by any “outside” evidence 

such as affidavits. 
4

 The Second Circuit has stated that “[o]n a motion invoking sovereign immunity to dismiss for 

lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance 

of evidence that jurisdiction exists.” Garcia v. Akwesana Hous. Auth., 268 F.3d 76, 84 (2d Cir. 

2001). In his Opposition to Respondent’s Motion, the Secretary argues that Sabatis Mitchell was 

operating as an “independent contractor” and that his business venture was not a tribal enterprise. 

Sec’y Opposition at 2. These arguments are supported by copies of two “timber cutting permits” 

between Respondent and the Passamaquoddy Forestry Department attached to the Secretary’s 

Opposition. Exhibits A & B. Further, the Secretary’s Opposition asserts facts obtained from the 

Occupational Safety and Health Administration Compliance Officer’s interviews of Respondent 

and at least one employee. These facts reveal that Respondent hired non-tribe members to cut 

and harvest timber to be sold to a private, non-Native American broker, who in turn resold the 

product to a non-tribal lumber company for sale on the open market. Sec’y Opposition at 3. In 

his Complaint, the Secretary alleges that Respondent was engaged in business “affecting 

commerce” within the meaning of the Act. Sec’y Complaint ¶ 3. Finally, taking all of the facts 

alleged in the Secretary’s Complaint as true and drawing all reasonable inferences in his favor, I 

find that the Secretary has established jurisdiction by a preponderance of the evidence. 

Accordingly, Respondent’s claim that the Commission lacks subject matter jurisdiction over this 

case must fail. 

 Coverage 

 Respondent’s third ground for establishing that the Commission lacks jurisdiction over this 

case is that it is not an “employer” within the meaning of the Act. However, the Commission has 

held that the threshold matter of whether an entity is an employer under the OSH Act is not a 

question of jurisdiction, but of coverage. See Startran, Inc., 21 BNA OSHC 1730 (No. 02-1140, 
5

2006), aff’d in relevant part, 290 Fed Appx. 656 (5th Cir. 2008) (unpublished) (“Startran”)

(citing Arbaugh v. Y&H Corp., 126 S. Ct. 1235, 1244 (2006)) (finding that definitional issues are 

issues of coverage, not jurisdiction; Title VII employee-numerosity requirement is issue of 

coverage, not jurisdiction). In Startran, the Commission held that Respondent bore the burden of 

proof to show that it fell within the exception to the definition of employer under the OSH Act. 

Startran, 21 BNA OSHC at 1731 (citing NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706 

(2001)) (showing burden of proving applicability of exemption falls on party claiming 

exemption). In the case at bar, the Secretary’s Complaint alleges that Respondent was an 

“employer” within the meaning of the Act and facts adduced in the Secretary’s Opposition 

revealing that it had employees support this contention. Respondent’s Motion fails to establish 

its claim that it is not an employer under the Act. Accordingly, its defense that it is not an 

“employer” within the meaning of the Act must also fail. 

 

 SO ORDERED: 

 

Dated: October 15, 2014 

 Washington, D.C. _/s/__________________ 

 Keith E. Bell 

 Judge, OSHRC