1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), :

 on behalf of ALVARO SALDIVAR :

 :

v. : Docket No. WEST 2021-0178-DM

 : 

GRIMES ROCK, INC. :

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

DECISION

BY: Jordan, Chair; Rajkovich and Baker, Commissioners

This case arises under section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act”).1 It involves the granting of temporary 

reinstatement for a miner employed by Grimes Rock, Inc. On January 17, 2022, the Commission 

received a petition for discretionary review challenging an Administrative Law Judge’s order 

denying the operator’s motion to toll temporary reinstatement. On July 13, 2022, the 

Commission received cross-petitions from the Secretary of Labor and Grimes Rock, challenging 

different parts of the Judge’s June 17, 2022 order enforcing temporary reinstatement. 

1

 30 U.S.C. § 815(c)(2) provides in pertinent part: 

Any miner . . . who believes that 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, 

file a complaint with the Secretary alleging such discrimination. 

Upon receipt of such complaint, the Secretary shall forward a copy 

of the complaint to the respondent and shall cause such investigation 

to be made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary’s receipt of the 

complaint, and if the Secretary finds that such complaint was not 

frivolously brought, the Commission, on an expedited basis upon 

application of the Secretary, shall order the immediate reinstatement 

of the miner pending final order on the complaint.

November 28, 2023
2

For the reasons that follow, we affirm the Judge’s order denying the operator’s motion to 

toll temporary reinstatement and affirm in part and reverse in part the Judge’s order enforcing 

temporary reinstatement.

I.

Factual and Procedural Background

Complainant Alvaro Saldivar was a miner at Grimes Rock’s mine on two separate 

occasions. First, he was employed as a welder from May 2019 through July 2019. Then he was 

employed as a service technician from October 5, 2020 to January 15, 2021. Tr. 16. When 

Grimes Rock hired Saldivar the second time, Saldivar made the operator aware that he had a 

criminal record. Saldivar alleged that while employed at Grimes Rock the second time, he made 

approximately eight safety complaints to his direct supervisor Rene Garcia and general manager 

Ernie Melendez. Most of his complaints involved alleged bald tires on the water truck he 

operated, but they also included a complaint about a lack of proper training. Tr. 17-27. 

During this period, Saldivar received five disciplinary warnings from Grimes Rock. The 

operator eventually terminated Saldivar on January 15, 2021, just one day after his last safety 

complaint. Saldivar filed a discrimination complaint with the Secretary of Labor’s Mine Safety 

and Health Administration (“MSHA”) over his termination, and the Secretary subsequently 

brought a section 105(c)(2) action and sought temporary reinstatement on Saldivar’s behalf. 

Temporary reinstatement was granted by a Commission Administrative Law Judge on May 18, 

2021. Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 43 FMSHRC 287 (May 2021) 

(ALJ). Grimes Rock petitioned for review of the Judge’s decision, which was subsequently 

affirmed by the Commission. Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 43 

FMSHRC 299 (June 2021). 

While Grimes Rock’s appeal was pending, however, the parties agreed to temporary 

economic reinstatement. The Judge approved the agreement on May 28, 2021. Under the 

agreement, because Saldivar had found work with another employer, Grimes Rock was 

responsible for paying the difference between Saldivar’s earnings at his present job and his 

earnings at Grimes Rock. The agreement was silent on what would happen if Saldivar no longer 

had other employment to offset Grimes Rock’s payments. In July 2021, the Secretary filed a 

discrimination complaint on Saldivar’s behalf (Docket No. WEST 2021-0265).

While the parties awaited the Judge’s decision on the merits of Saldivar’s discrimination 

complaint, Saldivar was incarcerated on two occasions. Although the agreement was also silent 

on what would happen if Saldivar was unavailable for work, the Secretary agreed to toll Grimes 

Rock’s payments during these periods. After Saldivar’s first incarceration, Grimes Rock filed a 

motion to toll or permanently terminate the economic reinstatement, arguing the applicability of 

the “after-acquired evidence” doctrine and a “change in circumstances.” G.R. PDR 1 at 2-4. On 

January 7, 2022, the Judge denied the operator’s motion and Grimes Rock filed a petition 

challenging the Judge’s determination, which we granted and will consider here. 
3

After Saldivar was released from his first incarceration, around November 2021, Grimes 

Rock resumed making payments. However, at that time the parties disputed what amounts were 

then owed pursuant to the temporary reinstatement order. Saldivar’s second incarceration ended 

in May 2022. After the miner’s second release, Grimes Rock did not resume its payments.

2

 On 

May 27, 2022, the Secretary filed with the Judge a motion to enforce the settlement agreement, 

which was granted on June 17, 2022. The Judge ordered Grimes Rock “to pay Saldivar the full 

wages as required by the temporary reinstatement order during the periods of his availability to 

work between May 18, 2021 and June 17, 2022, offset by his wages earned from alternative 

employment during that period.” Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 44 

FMSHRC 497 (June 2022). Simultaneous with her order granting enforcement, the Judge issued 

her decision on the merits of the discrimination complaint, concluding that Grimes Rock did not 

violate the discrimination provisions of the Mine Act and dismissed the case. Sec’y of Labor on 

behalf of Saldivar v. Grimes Rock, Inc., 44 FMSHRC 473 (June 2022) (ALJ). Consequently, the 

Judge ordered the dissolution of the temporary reinstatement order. She ordered that the 

dissolution occur on the same date that she issued the decision on the merits.

On July 13, 2022, the parties filed cross petitions challenging different parts of the 

Judge’s June 17 order. Specifically, the Secretary challenges the Judge’s decision to terminate 

the temporary reinstatement order instantly, upon issuance of her decision on the merits of the 

discrimination complaint. Sec’y PDR. In turn, Grimes Rock takes issue with the duration of the 

temporary reinstatement and challenges the Judge’s enforcement order. G.R. PDR 2. The 

Commission has granted review of both petitions. 

Finally, on August 15, 2022, MSHA issued a section 104(a) citation to Grimes Rock for 

its refusal to make the required payments in violation of the Judge’s order to enforce. 30 U.S.C. 

§ 814(a). On August 17, 2022, Grimes Rock filed a request for an immediate stay of the Judge’s 

June 17 order granting enforcement, which was subsequently denied by the Commission. The 

Secretary subsequently filed a 104(b) Order, 30 U.S.C. § 814(b), for the operator’s failure to 

comply with the Judge’s enforcement order. On August 22, 2022, following the issuance of that 

order, Grimes Rock finally made the payments required under the temporary reinstatement 

order.3

 Three days later, the Secretary filed a motion for interest and consequential damages for 

2

 On April 7, 2022, Grimes Rock filed an “update” with the Commission informing it of 

Saldivar’s second incarceration. That same day, it also filed with the Judge a renewed “Motion 

to Toll and Terminate the Economic Temporary Reinstatement Order,” putting forth the same 

new information offered in its update to the Commission and requesting permanent termination 

of temporary economic reinstatement. On April 19, the Judge granted the operator’s second 

request to toll the temporary economic reinstatement from the date of her order until Saldivar 

was once again available for work. Order Granting Mot. to Toll at 3. The Judge denied the 

operator’s request for reimbursement of funds already paid to the Complainant. Id. at 4. The 

Judge did not address the operator’s request to permanently terminate the economic 

reinstatement order.

3

 In addition to Citation No. 9619114 (the 104(a) Citation issued on August 17, 2022) 

and Order No. 9619115 (the 104(b) Order issued on August 22, 2022), a second citation, No. 
4

the wages Saldivar was not able to access during the periods Grimes Rock refused to pay. Sec’y 

Mot. for Interest.

II.

Disposition

A. Grimes Rock’s petition challenging the Judge’s denial of its motion to toll the 

Judge’s Order of Temporary Reinstatement

For the reasons below, we conclude that the Judge did not err when she denied the 

operator’s motion to permanently toll the order of temporary reinstatement. 

1. Grimes Rock failed to establish that tolling was justified. 

The Mine Act directs the Commission to reinstate a miner during the pendency of his/her 

discrimination complaint as long as he or she can prove that the complaint was not frivolously 

brought. The scope of a temporary reinstatement hearing is narrow, and the Judge is limited to 

determining “whether the evidence mustered by the miner[] to date established that [his or her] 

complaint[] [is] nonfrivolous, not whether there is sufficient evidence of discrimination to justify 

permanent reinstatement.” See Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 

FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738, 744 (11th Cir. 1990) (“JWR”); Sec’y on 

behalf of Jones v. Kingston Mining, Inc., 37 FMSHRC 2519, 2522 (Nov. 2015). 

While the scope of temporary reinstatement proceedings is limited to determining 

whether the complaint is frivolously brought, we have permitted a limited inquiry to determine 

whether the obligation to reinstate a miner may be tolled due to a “change in circumstances.” 

Sec’y on behalf of Gatlin v. Ken American Res., Inc., 31 FMSHRC 1050, 1054-56 (Oct. 2009)

(concluding that the duration of a temporary reinstatement of a miner may be modified if the 

operator can prove that the complainant’s inclusion in a layoff, at an idled mine, was entirely 

unrelated to his protected activity). 

In previous cases, the only types of “events” that we have found may justify tolling are 

those which affect the availability of relevant work at the mine for the miner at issue, such as a 

layoff due to business contractions or similar conditions and mine closure. Id.; see, e.g., Sec’y on 

behalf of Russell Ratliff v. Cobra Natural Res., 35 FMSHRC 394 (Feb. 2013) (affirming the 

Judge’s order finding that the operator’s obligation to reinstate Ratliff was not tolled by a layoff 

because the operator continued to mine coal, and work was available for shuttle car operators). 

See also Sec’y of Labor on behalf of Anderson v. A&G Coal Corp., 39 FMSHRC 315, 319-20 

(Feb. 2017); Sec'y of Labor on behalf of Rodriguez v. C.R. Meyer & Sons Co., 35 FMSHRC 

1183, 1187-88 (May 2013); Sec’y of Labor on behalf of McGaughran v. Lehigh Cement Co., 42 

FMSHRC 467, 471 n.6 (July 2020). The Commission has held that “[a]n operator generally 

9619116, was issued on August 22, 2022, alleging that Grimes Rock continued to conduct work 

at the mine site despite its non-compliance with Order No. 9619115. See WEST 2022-0333, 

WEST 2022-0334, and WEST 2022-0335. 
5

must affirmatively prove that a layoff justifies tolling temporary reinstatement by a 

preponderance of the evidence.” Cobra Natural Res., LLC, 35 FMSHRC at 397. Additionally, 

the tolling inquiry is bound by the same evidentiary standards as the initial temporary 

reinstatement proceeding; the Judge is not permitted to make credibility determinations or 

resolve conflicts in the evidence. Id. 98 n.3.

Grimes Rock has not established that work at the mine was unavailable for Saldivar. 

Indeed, the operator offers no evidence regarding availability of work. Instead, Grimes Rock 

argues that the Commission’s doctrine on tolling should be extended to include a situation where 

the operator no longer wishes to offer employment to a miner. Specifically, Grimes Rock argues 

that tolling is justified because it no longer desires to employ Saldivar due to his periods of 

incarceration and the criminal allegations against him.

4

 G.R. PDR 1 at 9-12. Neither the Mine 

Act nor Commission precedent support the extension of the Commission’s tolling doctrine to 

include the position advanced by Grimes Rock.

Congress directed that temporary relief be ordered “pending the final order on the 

complaint.” 30 U.S.C. § 815(c)(2). Congress did so because it determined that “employers 

should bear a proportionately greater burden of the risk of an erroneous decision in a temporary 

reinstatement proceeding.” JWR, 920 F.2d at 748; Sec’y of Labor on behalf of Deck v. FTS Int’l

Proppants, LLC, 34 FMSHRC 2388, 2390 (Sept. 2012). The Commission has traditionally 

allowed exceptions to that statutory mandate only in narrow circumstances. 

It is axiomatic that an operator defending its decision to discharge a miner in a section 

105(c) proceeding no longer wishes to employ that miner. An operator’s desire not to employ a 

temporarily reinstated miner, in and of itself, is never sufficient to justify tolling. 5 If it were, 

every operator would be justified in discharging every miner granted a temporary reinstatement.6

 

4 Grimes Rock also argues that temporary reinstatement should be dissolved because it 

can show that Saldivar lied about his safety complaints and elements of his criminal record. 

G.R. PDR 1 at 12, 15. Consideration of such evidence is appropriate at the discrimination 

hearing on the merits, not during the temporary reinstatement phase of the proceeding. 

5

 Commissioner Rajkovich joins the majority regarding all its substantive holdings. In 

addition, he also notes that the Secretary in this case accepted Saldivar’s physical unavailability 

for work (during his incarceration) as sufficient justification for tolling. He would find it 

reasonable to consider changes in a miner’s circumstances on a case-by-case basis. However, 

the operator must still prove unavailability, i.e., that because of those changed circumstances the 

miner could not work at the mine. Here, Grimes Rock offered no indication of a company policy 

or history of barring miners with criminal records from employment. Oral Arg. Tr. at 8. 

Nothing the operator has presented suggests that work was unavailable to Saldivar because he 

had previously been incarcerated. 

6 Our dissenting colleague argues that at-will employment principles should apply to 

miners who are employed on a temporary reinstatement. Slip op. at 20-21. As the dissent notes, 

under at-will employment principles an employee not covered by an employment contract may 
6

Allowing such a justification would defeat the purpose of temporary reinstatement, which is to 

“provide the miner with an income through a return to work until the [merits] complaint is 

resolved.” North Fork, 33 FMSHRC at 592. Grimes Rock provided no other basis for tolling 

Saldivar’s temporary reinstatement. Therefore, we decline to extend our tolling doctrine to 

include the facts present here.7

Tolling, in this case, was not appropriate. The Judge did not err by declining to grant it. 

2. “After-Acquired Evidence of Wrongdoing” is not relevant in temporary 

reinstatement proceedings 

Grimes Rock argues that tolling is justified because it unearthed evidence of 

“wrongdoing” by Saldivar while preparing for the merits hearing. It then sought to introduce this 

“after-acquired evidence” as justification for tolling the temporary reinstatement. 

be terminated for a good reason, bad reason, or no reason at all. Engquist v. Oregon Dept. of 

Agr., 553 U.S. 591, 606 (2008). Here, however, we are dealing with the Mine Act, in which 

Congress enacted specific statutory requirements to govern temporary reinstatement. The 

Commission’s role is to interpret the Mine Act so as to “give practical effect to Congress’s 

intent, rather than frustrate it.” U.S. v. Heckenliable, 446 F.3d 1048, 1051 (10th Cir. 2006) citing 

United States v. Am. Trucking Assn’s, 310 U.S. 534, 542 (1940). As noted above, Congress 

created temporary reinstatement to ensure miners would receive relief pending a decision on the 

merits of their claims. 30 U.S.C. § 815(c)(2). If the dissent’s view is correct, temporary 

reinstatement provides no protection to miners whatsoever, they could be fired for “no reason.” 

Allowing operators to discharge miners on temporary reinstatement for “no reason at all” would 

substantially undermine Congress’ intent to have employers bear a disproportionately greater 

share of the burden of an erroneous decision in a temporary reinstatement proceeding. See, e.g., 

JWR, 920 F.2d at 748. We also note that Grimes Rock provided no evidence that it generally 

discharged miners with criminal records, nor that it maintained any policy to that effect.

7 Our decision does not, as our dissenting colleague suggests, provide absolute 

“immunity” from discipline for miners receiving temporary reinstatement. Our ruling is not 

intended to provide a broad, advisory statement regarding the scope of temporary reinstatement. 

As is appropriate, we considered only the relevant facts in this particular case. See Wade Sand & 

Gravel Co., 37 FMSHRC 1874, 1877-78 (Sept. 2015) (holding that the Commission, like Federal 

Courts, does not issue advisory opinions). Based on those facts we determined that the tolling 

doctrine should not be extended to include the instant circumstances. We take no position on 

whether our narrow tolling doctrine could be extended to other fact patterns not raised by this 

case. Further, we stress that the factual allegations raised by the operator were relevant to, and 

were consider by the Judge in, the case on the merits, where the operator prevailed.

In addition, our dissenting colleague implies that this footnote, and other sections of the 

majority decision, solely represent the views of Chair Jordan and Commissioner Baker. Slip op. 

at 23. That is not accurate. This footnote, and the other portions of this decision, are the joint 

opinion of the majority unless otherwise expressly stated. 
7

The Judge refused to toll the temporary reinstatement, instead finding that the evidence 

was relevant to the hearing on the merits. We find that the Judge’s actions were not in error. 

To support its position that a temporary reinstatement can be tolled based on afteracquired evidence, Grimes Rock relies on McKennon v. Nashville Banner Publishing Co., 513 

U.S. 352 (1995). In that case, the Supreme Court held that evidence of wrongdoing that occurred 

during the employee’s period of employment—but uncovered by the employer while conducting 

discovery regarding an Age Discrimination in Employment Act complaint—may limit available 

remedies for the violation. Notably the Court did not find that it completely shields the employer 

from liability under the ADEA. Instead, the Court found that such evidence may limit available 

remedies to an employee, provided that the employer can first establish “that the wrongdoing 

was of such severity that the employee would have been terminated on those grounds alone if the 

employer had known of it at the time of the discharge.” Id. at 362-63. 

For the reasons which follow, we find that McKennon is not applicable to temporary 

reinstatement proceedings under the Mine Act. 

Temporary reinstatement, pending a determination on the merits of the complaint, is 

awarded if the Secretary demonstrates that the miner’s complaint is not frivolous. See Jim 

Walter, 9 FMSHRC at 1306; Kingston Mining, Inc., 37 FMSHRC at 2522 (the “scope of a 

temporary reinstatement is narrow, being limited to a determination by the Judge as to whether a 

miner’s discrimination complaint is frivolously brought.”). 

However, temporary reinstatement is not a remedy for a violation of the Mine Act.8 

Instead, temporary reinstatement is awarded pending a determination on the merits of the 

complaint. If the miner prevails on the merits of the complaint, and the Judge finds that the 

operator violated the Mine Act, only then does the Judge consider remedies for the violation. 

The Commission has differentiated temporary reinstatement from remedies and awards by 

recognizing that “the purpose of temporary reinstatement is to put the miner back to work as 

soon as possible so that he or she can resume earning a living while the discrimination case is 

heard.” Sec’y of Labor v. North Fork Coal Corp., 33 FMSHRC 589, 592 (Mar. 2011) (citations 

omitted); McGaughran, 42 FMSHRC at 470 n.4. 9

8

 In this case the parties agreed to economic reinstatement. However, in the absence of 

such an agreement and pursuant to the Mine Act, a miner ordinarily returns to his former 

position and the mine operator receives the benefits of his labor. 

9

 There was evidence that Saldivar might have been less than forthcoming on his 

employment application about the full extent of his criminal history. But there is also evidence 

that the company may have chosen not to further investigate after being placed on notice that 

Saldivar had a criminal past. Regardless, this evidence would have required the Judge to weigh 

potentially conflicting evidence and make credibility and value determinations, which are not 

appropriate actions to take during the temporary reinstatement phase. Rockwell Mining, LLC, 43 

FMSHRC at 165-66, 168.
8

Moreover, the after-acquired evidence doctrine requires the employer to demonstrate that 

based on the new evidence of wrongdoing, the employer would have fired the employee at the 

time it occurred if the employer would have known about it. This standard requires that a Judge 

make credibility determinations and resolve conflicts in the evidence, which is inconsistent with 

the limited nature of a temporary reinstatement hearing. Sec’y of Labor on behalf of Albu v. 

Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999) (“[i]t [is] not the Judge’s duty, nor is it 

the Commission’s, to resolve the conflict in testimony at this preliminary stage of the 

proceedings.”).10

For these reasons, an operator is not permitted to use evidence it acquires while 

preparing for the case on the merits, or even relevant evidence it failed to submit for the original 

hearing on temporary reinstatement, to repeatedly relitigate the case against temporary 

reinstatement. See JWR, 920 F.2d at 748 n.11 (the “not frivolously brought” standard reflects a 

Congressional intent that “employers should bear a proportionately greater burden of the risk of 

an erroneous decision in a temporary reinstatement proceeding.”).11 

Simply put, after-acquired evidence of wrongdoing may be admissible in a full hearing 

on the merits of a discrimination complaint but is not a basis to toll a temporary reinstatement 

order. The Judge did not err.

3. Due Process and Prejudice

Grimes Rock contends that the Judge deprived it of its due process right to a meaningful 

hearing on its motion to terminate the temporary economic reinstatement. G.R. PDR 1 at 16-18. 

We do not agree. 

10 However, Grimes Rock knew at the time that it hired Saldivar that he had some 

criminal history. Therefore, any hearing on the after-acquired evidence regarding other unlawful 

activity would require the ALJ to determine whether the operator’s claim that it sought to 

discharge Saldivar solely because of his newly disclosed unlawful behavior was credible. Put 

simply, the Judge would have to determine whether the operator sought to discharge Saldivar 

because of his criminal behavior or if it was motivated (or partially motivated) by his protected 

activity. That would require making credibility determinations and resolving conflicts in 

evidence, which is not appropriate at the temporary reinstatement stage. 

11 Our dissenting colleague cites to Secretary on behalf of McKinsey v. Pretty Good Sand 

Co., Inc., 36 FMSHRC 2843, 2870 (Nov. 2014) (ALJ) for the proposition that after-acquired 

evidence is relevant in a temporary reinstatement proceeding. Slip op. at 26. However, we note 

that that decision concerns a determination on the merits of a 105(c) case. As we note elsewhere, 

after-acquired evidence may be relevant at that stage of the proceeding. See infra at 9. 
9

The motion to toll filed with the Judge did not include a request for a separate hearing on 

its motion, nor was Grimes Rock entitled to one.12 The Commission has recognized limited

circumstances in which a Judge, prior to the hearing on the merits, may appropriately order an 

intermediate hearing regarding changed circumstances. However, in the temporary reinstatement 

phase of the litigation, during which the parties may not have completed discovery, the burdens 

of proof and the standard against which the evidence is evaluated should be no different than if 

the issue had been heard during the initial temporary reinstatement hearing. Cobra Natural, 35 

FMSHRC at 398 n.3. The ultimate determination concerning the appropriate remedy for any 

alleged discrimination, including the duration of an operator’s reinstatement obligation, if any, is 

made in the proceeding on the merits.

13 Id. at 398. 

Grimes Rock also contends that continuing the temporary economic reinstatement 

despite the emergence of new undisputed evidence caused prejudice. G.R. PDR 1 at 19. As 

discussed above, after-acquired evidence is not appropriate at the temporary reinstatement stage. 

We further reject any claim of economic prejudice. Congress, in enacting the “not frivolously 

brought” standard, clearly intended that employers should bear a proportionately greater burden 

of the risk of an erroneous decision in a temporary reinstatement proceeding. JWR, 920 F.2d at 

744, n.11. Moreover, the Commission has indicated that the goal of the Mine Act’s 

discrimination provision is to make the miner whole until the case can be decided on the 

merits. Sec’y of Labor on behalf of Rieke v. Akzo Nobel Salt, Inc., 19 FMSHRC 1254, 1258 

(July 1997) (discussing pertinent legislative history); Sec’y of Labor on behalf of Totten v. Tk 

Mining Services, LLC, 37 FMSHRC 2217, 2218-19 (Sept. 2015).

We hold that evidence of prior behavior uncovered after the miner’s discharge but 

offered after a decision granting or denying temporary reinstatement has been reached is not 

appropriate for review prior to the hearing on the merits.

12 The Commission recently issued Sec’y on behalf of Collins v. Crimson Oak Grove 

Resources, LLC, 45 FMSHRC____, SE 2023-0235 (Oct. 11, 2023) in which we set forth the due 

process requirements for temporary reinstatement proceedings. In that case we noted that a 

single, pre-deprivation hearing in which the ALJ does not weigh disputed evidence has long been 

held as “far exceeding” the Constitutional requirements of due process. Id. citing Brock v. 

Roadway Exp., 481 U.S. 252 (1987) and JWR, 920 F.2d 738 (11th Cir. 1990). In light of that 

holding, there is no basis for the assertion that an operator is constitutionally entitled to 

additional hearings on motions within the temporary reinstatement proceeding. 

13 During the pendency of this PDR, the Judge held the merits hearing in the 

discrimination case on January 25-27, 2022 and issued her decision on June 17, 2022. See

Docket No. WEST 2021-265.
10

B. The Secretary’s petition challenging the Judge’s dissolution of the order of 

temporary reinstatement contemporaneous with her decision finding that 

Grimes Rock did not violate section 105(c)

The Secretary argues that the Judge abused her discretion by terminating Saldivar’s 

temporary reinstatement on June 17, 2022, because the merits decision was not yet a final order. 

Sec’y PDR at 2. We agree and conclude that the Judge erred when she dissolved the temporary 

reinstatement order prior to the conclusion of the Commission’s opportunity to direct review.

If the Secretary can show that the discrimination complaint was not frivolously brought, 

section 105(c)(2) of the Mine Act states that “the Commission . . . shall order the immediate 

reinstatement of the miner pending final order on the complaint. . . .” 30 U.S.C. § 815(c)(2)

(emphasis added). An order issued after a determination on the merits is not final directly upon 

its issuance. We have previously held that a Judge cannot terminate a temporary reinstatement 

order concurrently with a decision on the merits. In Reading Anthracite, the Commission 

determined that “the language of the Mine Act requires that a temporary reinstatement order 

remain in effect while the Commission reviews the judge’s decision.” Secretary ex rel. 

Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947, 949 (Sept. 1999) (holding that “the 

time had not yet passed for the Commission to review the judge’s decision on the merits . . . . 

Accordingly, the judge’s decision had not yet become a final Commission decision. 30 U.S.C. § 

824(d)(1). Thus, the judge lacked statutory authority to dissolve the temporary reinstatement 

order concurrently with his discrimination decision or at any time before we could direct 

review.”); Sec’y of Labor on behalf of Noe v. J & C Mining, LLC, and Manalapan Mining Co., 

22 FMSHRC 705, 706 (June 2000).

In the instant matter, the Judge erred by terminating the temporary reinstatement before 

this Commission could direct review of her merits decision. Furthermore, temporary 

reinstatement ends only after the merits case has become final.14 Neither scenario had occurred 

here when the Judge issued her order of termination.

Accordingly, the Judge erred when she ended the order of temporary reinstatement 

concurrently with her merits decision. This issue is remanded to the Chief Administrative Law 

Judge for recalculation of the temporary reinstatement amount owed between the date the Judge 

issued the order of enforcement and the date her merits decision became final.15 

14 Our dissenting colleague discusses, at length, concerns regarding prolonged periods of 

temporary reinstatement during the appeals process after a hearing on the merits in which an 

operator prevails. Slip op. at 19-25. In the instant case, Grimes Rock prevailed on the merits 

case and that decision was not appealed. 44 FMSHRC 473 (June 2022) (ALJ). Saldivar’s 

temporary reinstatement has now ended. As a result, we do not believe that our colleague’s 

concerns regarding lengthy appeals are implicated here. 

15 Whether the final termination date of temporary reinstatement is properly determined 

by the 30-day language in section 105(c)(2), 30 U.S.C. § 815(c)(2), or by the 40-day language in 
11

C. Grimes Rock’s petition challenging the Judge’s order granting the Secretary’s 

motion to enforce

Grimes Rock argues that the Judge abused her discretion by retroactively modifying the 

economic reinstatement agreement and ordering the operator to pay the full reinstatement 

amount after Saldivar lost his other employment. It notes that Grimes Rock only agreed to pay 

the difference between Saldivar’s earnings at the job he secured after being terminated by 

Grimes Rock and what he would have been earning at Grimes Rock. G.R. PDR 2 at 14; G.R.

Reply Br. at 3-5. The operator asserts that the Judge improperly interpreted the agreement to 

include implied terms that should only have been considered upon the Secretary’s proper filing 

of a motion to modify the existing order. G.R. Br. at 27-31. 

We conclude that the Judge did not err in granting the Secretary’s motion to enforce and 

in finding that Grimes Rock was obligated to pay Saldivar all wages required to make the miner 

whole under the original order of temporary reinstatement.

Under section 105(c)(2) of the Mine Act, if it is found that a miner’s complaint of 

discrimination is not frivolously brought, “the Commission, on an expedited basis upon 

application of the Secretary, shall order the immediate reinstatement of the miner pending final 

order on the complaint.” 30 U.S.C. § 815(c)(2) (emphasis added). While temporary 

“reinstatement” means to place the miner back to work at the mine during the pendency of the

discrimination case, the Commission has deemed economic reinstatement an acceptable 

alternative. Economic reinstatement is negotiated by joint agreement, which may be accepted by 

the Judge in lieu of actual reinstatement. A Judge may not order economic reinstatement on his 

or her own initiative. Sec’y on behalf of McGoughran v. Lehigh Cement Co., LLC, 42 FMSHRC 

467, 469 (July 2020); Sec’y of Labor on behalf of Gray v. North Fork Coal Corp., 33 FMSHRC 

589, 593 (Mar. 2011), rev’d on other grounds, 691 F.3d 735 (6th Cir. 2012). In addition, parties 

may renegotiate, or Judges may modify economic reinstatement agreements to allow for the 

offsetting of the temporary reinstatement award by the amount of wages earned by the miner 

from other employment during the reinstatement period. North Fork Coal Corp., 33 FMSHRC 

at 595-96. 

Congress stated that: “The Committee feels that this temporary reinstatement is an 

essential protection for complaining miners who may not be in the financial position to suffer 

even a short period of unemployment or reduced income pending the resolution of the 

discrimination complaint.” S. Rep. No. 95-181, at 36-37 (1977), reprinted in Legis. Hist. at 624-

25 (emphasis added). Congress also stated that temporary reinstatement was intended “[t]o 

protect miners from the adverse and chilling effect of loss of employment while [a discrimination 

complaint is] being investigated.” S. Conf. Rep. No. 95-461, at 52 (1977), reprinted in Legis. 

Hist. at 1330; Sec’y on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 161–62 

(Feb. 2000). 

section 113(d)(1), 30 U.S.C. § 823(d)(1), is currently under consideration before the Commission 

in Jason Hargis v. Vulcan Construction Materials Incorporated, SE-2021-0163. 
12

Consistent with the legislative history, the Commission has held that “the purpose of the 

temporary reinstatement provisions is to put the miner, during the time he [or she] pursues [a]

discrimination claim, in no worse a position than he [or she] was while working for the 

operator.” See North Fork, 33 FMSHRC at 597-98 (emphasis added). We have noted that a 

“Judge may defer ruling on a temporary reinstatement application or implementing a temporary 

reinstatement order in light of an economic reinstatement agreement between the parties that is 

consistent with the purposes of section 105(c).” Lehigh Cement, 42 FMSHRC at 469 (emphasis 

added). 

A miner is not “reinstated” if the miner is receiving less pay than what he or she would 

have received if the termination had not occurred. Under an order of temporary reinstatement, it 

is the operator’s responsibility to ensure that the miner is no worse off than when employed by 

the operator prior to the discrimination complaint. This status quo requirement remains even 

when the miner no longer has any alternative employment to offset the operator’s payment. 

Here, when the Judge first awarded Saldivar temporary reinstatement, her decision specifically 

reinstated “Mr. Saldivar to his former position at the mine . . . at the same rate of pay and with all 

benefits, including any raises, that he received prior to discharge, pending a final Commission 

order on the complaint of discrimination.” Grimes Rock, 43 FMSHRC 287, 292 (May 2021). 

The decision was subsequently affirmed by the Commission. Grimes Rock, 43 FMSHRC 299 

(June 2021). The parties then agreed to economic reinstatement and because Saldivar had 

secured other employment at that time, Grimes Rock’s payments were set at the difference 

between Saldivar’s earnings at his new job and what he would have been making at Grimes 

Rock. 

Although the agreement was silent on what would happen if Saldivar no longer had other 

employment to offset Grimes Rock’s payments, interpreting that silence to mean that Grimes 

Rock is responsible for something less than what is required to “reinstate” Saldivar would not be

“consistent with the purposes of section 105(c).” It is also difficult to believe that the Secretary 

and miner would agree to any compensation that was less than what the Judge had already 

awarded or to any terms that would “put [Saldivar] . . . in [a] worse [] position than he was 

while working for the operator.” See North Fork, 33 FMSHRC at 597-98. There is no 

indication in the record that Saldivar intended to waive any portion of the full wages to which he 

was statutorily entitled.

16 Likewise, we see no sign in the Judge’s decision approving settlement 

that she intended to approve any agreement that would run afoul of the Mine Act by placing the 

miner in a situation that would make him less than whole. 

In fact, in the Judge’s Order granting the Secretary’s motion to enforce, she stated that:

“The Economic Reinstatement Order was issued in the shadow of the initial Reinstatement 

Order, which mandated full and total reinstatement for Saldivar at this previous rate of pay. I 

approved the parties’ settlement agreement insofar as it adequately made Saldivar whole while 

his discrimination case was pending.” ALJ Ord. Gr. Sec’y Mot. to Enforce at 2 (June 17, 2022). 

She further noted that her initial order was issued to accomplish the goal of the temporary 

16 This is not to suggest a miner could waive a statutory entitlement through an economic 

temporary reinstatement agreement. 
13

reinstatement provision and the order approving economic reinstatement simply “‘described how 

the parties proposed to implement relief ordered by the Judge pursuant to the Mine Act.’” Id., 

quoting North Fork, 33 FMSHRC at 592. 

We conclude that any economic reinstatement agreement and any order issued by a Judge 

must be consistent with the purpose of the temporary reinstatement provision of the Mine Act, 

which is to make the miner whole. See North Fork, 33 FMSHRC at 593; Lehigh Cement, 42 

FMSHRC at 469. 

Grimes Rock argues that California statutory rules of contract interpretation govern the 

temporary reinstatement agreement, therefore any ambiguity in the agreement as to the 

operator’s payment obligations in the event of Saldivar’s loss of alternative employment must be 

construed against the Secretary. G.R. PDR 2 at 18-23. We reject this argument. The parameters 

of any temporary reinstatement agreement are first dictated by the statute, and any ambiguity 

shall be interpreted to further the purposes of the Mine Act.17 A private agreement simply 

cannot trump a valid order of temporary reinstatement issued pursuant to section 105(c). In light 

of this, it would have been reasonable for all involved to assume that in the event Saldivar no 

longer had other employment, Grimes Rock’s payments would automatically revert to the full 

amount under the Judge’s original order, which was still in place.

Conversely, Grimes Rock goes on to assert that it was implied in the agreement that “Mr. 

Saldivar would act in good faith and exercise reasonable efforts at maintaining an employable 

status,” which he failed to do. G.R. PDR 2 at 11. We reject this notion as the Mine Act does not 

require a miner to mitigate an operator’s temporary reinstatement obligation, which includes 

agreeing to offset an operator’s payments due to other employment. A miner’s only obligation to 

mitigate in a section 105(c) proceeding is limited to the consideration of backpay in the merits 

case. However, we have already distinguished backpay awards from wages owed under 

temporary reinstatement. North Fork, 33 FMSHRC at 592. 

We also find unpersuasive Grimes Rock’s argument that it would not have agreed to full 

economic reinstatement. G.R. PDR 2 at 21. Given the mandates of the Mine Act and the 

Judge’s original reinstatement order, the operator’s agreement was not necessary. If Grimes 

Rock had not opted for economic reinstatement, it would have had to physically reinstate 

Saldivar at his full pay. In any event, Saldivar was entitled to receive his full wages. “Economic 

reinstatement” allows the miner the benefit of receiving his or her normal pay, while permitting 

the operator to avoid bringing the miner back into the workplace. See Lehigh Cement, 42 

FMSHRC at 469.

17 The Commission has previously rejected the argument “that the issue raised . . . should 

be decided solely by reference to contract law.” North Fork, 33 FMSHRC at 592. We reasoned 

that we cannot ignore the Mine Act in determining the construction, application, and effect of an 

economic reinstatement agreement. Id.; see also R. Mullins v. Beth-Elkhorn Coal Corp., 9 

FMSHRC 891, 899 (May 1987) (citations omitted) (reasoning that “we do not decide cases in a 

manner which permits parties’ private agreements to overcome . . . miners’ protected rights”). 
14

We conclude that an economic reinstatement agreement must work in tandem with any 

existing order of temporary reinstatement and cannot deprive a miner of the full wages owed 

under and intended by the Mine Act’s temporary reinstatement provision.18 

Finally, Grimes Rock maintains that it was deprived of its due process right to a hearing, 

which it contends it was entitled to if the Judge was going to impose an increased payment 

amount. We disagree. A temporary reinstatement hearing was held and an order issued 

temporarily reinstating Saldivar “at the same rate of pay and with all benefits, including any 

raises, that he received prior to discharge, pending a final Commission order on the complaint of 

discrimination.” Grimes Rock, 43 FMSHRC at 292. As we have stated, the settlement 

agreement could not divest Mr. Saldivar of any pay owed to him under the original order and 

served only to describe his manner of reinstatement. Finally, contrary to Grimes Rock’s 

assertion, the Judge did not increase the amount Grimes Rock owed to Saldivar. The operator 

simply lost the benefit of Saldivar’s other employment offsetting its payments. The operator was 

due no additional hearing. 

Accordingly, we reject the notion that the Judge retroactively modified the parties’ 

settlement agreement and conclude that the Judge did not err in granting the Secretary’s motion 

to enforce. 

D. Secretary’s motion for interest and consequential damages

The Commission grants the Secretary’s motion for interest. Specifically, Grimes is 

obligated to pay interest, pursuant to section 105(c)(2) of the Mine Act, on any yet unpaid 

backpay wages owed to Saldivar. In addition, Grimes is obligated to pay interest on any backpay 

wages that were paid late to Saldivar. On remand, the Judge should determine the amounts of 

any remaining backpay owed as well as interest owed.

Additionally, on remand, the Judge should determine whether consequential damages as a 

result of Grimes’ failure to timely comply with the Judge’s orders are appropriate. See e.g., 

Amos Hicks v. Cobra Mining, 14 FMSHRC 50 (Jan. 1992).

18 Our dissenting colleague would hold that the parties’ agreement to economically 

reinstate a miner would supersede the requirements of the Mine Act. Slip op. at 28-31. In short, 

the dissent would allow the economic reinstatement agreement to set the terms of the parties’ 

relationship during the temporary reinstatement. For the reasons outlined in this section, we 

disagree. However, we would also note that given this conclusion, the dissent is not internally 

consistent. Specifically, the parties’ temporary economic reinstatement agreement did not 

contain any provision that allowed Grimes to terminate or discipline Saldivar. Further, it does 

not expressly create an employment relationship; it creates an obligation for Grimes to pay 

Saldivar regardless of work. If the parties’ agreement alone sets the terms for the parties’ 

relationship, it is unclear how our dissenting colleague reached his other conclusions in this case: 

that is, that Saldivar was an employee of Grimes and Grimes was entitled to discharge him for 

alleged misconduct. 
15

III.

Conclusion

For the foregoing reasons, we affirm the Judge’s order denying the operator’s motion to 

toll temporary reinstatement. We vacate the Judge’s order dissolving the temporary 

reinstatement as of the date of her order and decision, and remand it for assignment to a Judge 

for recalculation of the temporary reinstatement amount owed between the date the Judge issued 

the order of enforcement and the date her merits decision became final. We affirm the Judge’s 

order enforcing temporary reinstatement. Finally, we grant the Secretary’s motion for interest 

and consequential damages and remand this matter for a determination of any remaining 

backpay and interest owed as well as a determination on whether consequential damages are 

appropriate.

_________________________________ 

Mary Lu Jordan, Chair

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
16

Commissioner Althen, dissenting:

I respectfully dissent.

I. 

FACTUAL BACKGROUND

On October 6, 2020, Saldivar submitted an employment application to Grimes. The 

application signed by Saldivar asked: “Have you ever been convicted of, plead guilty/no contest 

to a crime?” Saldivar responded, “possession of a loaded firearm.” G.R. PDR 1, Decl. of 

Pachowicz, Ex 6. Saldivar certified that the answers were true and acknowledged that 

falsification would be grounds for dismissal. Despite his certification and acknowledgment, it is 

now indisputable that Saldivar lied on the application.

In 2021, the Secretary requested temporary reinstatement on behalf of Saldivar. An 

Administrative Law Judge (“ALJ”) temporarily reinstated Saldivar on May 18, 2021. Afterward, 

the parties entered into an economic reinstatement agreement explicitly prescribing the terms of 

his reinstatement – namely, the monies Saldivar would receive from Grimes. This prescribed 

amount was the difference between the salary Grimes had paid Saldivar and the amount Saldivar 

earned at a new job.1

 The ALJ accepted the parties’ agreement and entered an Order containing 

the terms of the agreement. 

1 The parties’ agreement explicitly provided,

Respondent agrees to pay Mr. Saldivar the difference in earnings at his present

place of employment Wayne J. Sand and Gravel Inc. and Grimes Rock Inc. . . . 

Based on these calculations, Grimes Rock Inc. will pay Mr. Saldivar $2,136.78

on a bi-weekly basis.

Sett. Agreement and J. Mot. for Temp. Econ. Reinst. at 3 (May 27, 2021).

An ALJ does not have authority to order temporary economic reinstatement. Sec’y on 

behalf of James McGoughran, v. Lehigh Cement Co., LLC, 42 FMSHRC 467, 469 (July 2020). 

(“A Judge may not order economic reinstatement on his or her own initiative.”). Because an 

ALJ may not order economic reinstatement on his or her own initiative, the terms of the parties’ 

settlement govern the terms for economic reinstatement. It is useful to repeat, therefore, that 

based upon mutual agreement of the parties, the ALJ ordered Grimes to pay the specific amount 

of $2,134.78 per pay period. If Saldivar had found work paying more than his other employer at 

the time of the agreement, the Commission would not hear an argument by Grimes for an 

“implicit” offset to keep Saldivar’s compensation the same as he was making at Grimes. See 

Sec’y of Labor v. North Fork Coal Corp., 33 FMSHRC 589, 594 (Mar. 2011). 
17

After Saldivar’s discrimination complaint, Grimes acquired evidence that contrary to 

Saldivar’s certified statement the prior year, Saldivar previously was convicted of, among other 

things:

a. Willfully causing or permitting a child to be placed in a situation where his or her person 

or health is endangered,

b. Being under the influence of cocaine, cocaine base, heroin, methamphetamine, or 

phencyclidine while in the immediate personal possession of a loaded, operable firearm,

c. Commission of a felony after release on bail of own recognizance,

d. Possessing an assault weapon.

e. Possession of a controlled substance while armed with a loaded, operable firearm, 

f. Possessing a sawed-off shotgun or rifle, and

g. Carrying a loaded firearm in a vehicle 2

People v. Saldivar, Case No. 2016002309, Superior Court of California, County of Ventura, 

available at https://secured.countyofventura.org/courtservices/Information/

CaseInformationSearch.aspx (last visited Aug. 28, 2023).

3

While on temporary reinstatement, on September 16, 2021, Saldivar pled guilty to a theft 

charge. He subsequently spent 75 days in the Ventura County, California jail. The Secretary 

recognized that Saldivar committed the crime and agreed that Grimes need not make temporary 

reinstatement payments to Saldivar during his incarceration.

On November 29, 2021, Grimes filed a motion to toll temporary reinstatement. Grimes 

made several arguments, including (1) after-acquired evidence that Saldivar failed to disclose 

prior severe crimes on his certified employment application despite notice that a failure to report 

fully could cause discharge and (2) Saldivar’s criminal misconduct after his reinstatement. On 

January 7, 2022, the ALJ denied Grimes’s motion to toll without a hearing. The ALJ failed 

even to consider Saldivar’s post-reinstatement criminality. Indeed, the ALJ neither considered 

nor ruled on the impact of Saldivar’s criminality upon reinstatement.

 As a result, this case does not present the Commission with the normal process of 

reviewing factual findings for substantial evidence. The ALJ made no factual findings related 

to Saldivar’s criminality to review. However, the commission of the crimes is undisputed. 

2

 My colleagues say, “Grimes Rock knew at the time that it hired Saldivar that he had 

some criminal history” (Slip op. at 8 n.10), thereby wholly ignoring the gross disparity between 

the minimal statement on the application and Saldivar’s later demonstrated criminal record. 

“Some criminal history” understates and minimizes Saldivar’s crimes set forth above. More 

importantly, under their line of reasoning, no crimes by Saldivar before or after reinstatement 

would suffice to permit discharge through tolling.

3

 See also CAL PENAL § 273a(a) (child endangerment); CA HLTH & S § 11550(e)(1) 

(under the influence with firearm); CAL PENAL § 12022.1(b) (commission of felony on bail); 

CAL PENAL § 30605(a) (assault weapon); CA HLTH & S § 11370.1 (possession of controlled 

substances with a firearm); CAL PENAL § 33215 (sawed-off shotgun or rifle); CAL PENAL § 

25850(a) (loaded firearm in vehicle).
18

Further, the ALJ’s denial of the motion to toll did not discuss the legal effect of postreinstatement criminality. Therefore, the ALJ decision made no legal findings relevant to the 

Commission’s review. 

On January 17, 2022, the Commission granted a Petition for Discretionary Review 

challenging the ALJ’s denial of tolling. In early 2022, Saldivar again went to jail – this time, 

for failure to appear. Grimes again filed a motion to toll. Saldivar spent sixty-five days in jail. 

The ALJ granted tolling only for the period Saldivar was in jail. Again, Grimes filed a Petition 

for Discretionary Review of the ALJ’s refusal to toll, and the Commission granted review. The 

Commission issues its decision on tolling today, long after the ALJ absolved Grimes from the 

discrimination claim and long after Grimes paid Saldivar tens of thousands of dollars.

On June 17, 2022, five months after a remote hearing, the ALJ found Grimes had not 

discriminated against Saldivar and dissolved the Temporary Reinstatement Order. That same 

day, six months after Saldivar’s release from jail, the ALJ granted the Motion to Enforce filed by 

the Secretary in May. The ALJ’s Enforcement Order explicitly required Grimes to pay Saldivar 

$12,533.94. The Secretary expressly requested this amount, subject to minor adjustments after 

the filing. The Secretary did not seek any consequential damages, and the ALJ never considered 

a claim for consequential damages. See Sec’y Motion to Enforce (May 27, 2022).

On July 13, 2022, the Secretary filed a Petition for Review challenging the ALJ’s 

dissolution of temporary reinstatement on June 17, arguing the Mine Act entitled Saldivar to 

continue temporary reinstatement until the expiration of any period of appeal or thirty days after 

the ALJ’s decision if neither the Secretary nor Saldivar filed an appeal. On July 13, 2022, 

Grimes filed a Petition for Review challenging the ALJ’s grant of the Secretary’s motion to 

enforce. The Commission granted both petitions. 

On August 25, 2022, approximately 69 days after the ALJ found no discrimination and 

39 days after the period for filing a Petition for Review, the Secretary filed a Motion for 

Consequential Damages directly with the Commission. 

II.

TOLLING REINSTATEMENT

A. The commission of crimes during temporary reinstatement and after-acquired 

evidence of dischargeable misconduct warranting termination may limit 

compensation 

The Supreme Court has recognized that after-acquired evidence warranting termination 

may limit compensation to the period before a defendant obtains such evidence. Further, 

dischargeable misconduct during regular employment, permanent reinstatement, or temporary 

reinstatement warrants termination of employment.

In McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995), the Supreme Court 

considered new facts supporting termination, which the employer only learned about after 
19

discharging the employee. The Court held that compensation would cease when the employer 

learned of the employee’s actions justifying termination. It stated that: 

The proper boundaries of remedial relief in the general class of cases 

where, after termination, it is discovered that the employee has 

engaged in wrongdoing, must be addressed by the judicial system in 

the ordinary course of further decisions, for the factual permutations 

and the equitable considerations they raise will vary from case to 

case. We do conclude that here, and as a general rule in cases of this 

type, neither reinstatement nor front pay is an appropriate remedy. 

It would be both inequitable and pointless to order the 

reinstatement of someone the employer would have terminated, 

and will terminate, in any event and upon lawful grounds.

. . . 

Once an employer learns about employee wrongdoing that would 

lead to a legitimate discharge, we cannot require the employer to 

ignore the information, even if it is acquired during the course of 

discovery in a suit against the employer and even if the 

information might have gone undiscovered absent the suit. The 

beginning point in the trial court’s formulation of a remedy should 

be calculation of backpay from the date of the unlawful discharge 

to the date the new information was discovered.

Id. at 361-62 (emphasis added).4

The majority’s position on Grimes’s presentation of new crimes and after-acquired 

evidence flouts this Supreme Court precedent. The Court has cogently and directly held 

that after-acquired evidence makes it inequitable and pointless to continue the 

reinstatement of someone the employer would have terminated, and will terminate, in any 

event, upon lawful grounds. Necessarily, this principle applies equally to new misconduct, 

The majority “stresses” that the factual allegations raised by the operator “were relevant 

to, and were considered by the Judge in, the case on the merits, where the operator prevailed.” 

Slip op. at 6 n.7. In so doing, the majority recognizes that the factual allegations of new 

misconduct and after-acquired evidence may point to denial of reinstatement. However, despite 

the Supreme Court’s instruction, they are satisfied to allow such new events to linger 

unreviewed until a hearing on the merits. Here, the delay was for eight months.

Moreover, the ALJ did not consider the after-acquired evidence and new misconduct in 

her decision issued in June 2022. The majority’s misstatement that the ALJ considered such 

evidence and the ALJ’s failure to consider the evidence demonstrates the wrongfulness of the 

majority’s willingness to accept a delay of many months to assess post-reinstatement events and 

evidence disqualifying Saldivar from permanent reinstatement. Having recognized that the new 

4

 The Court considered the possibility of an employer doing discovery into a discharged 

employee’s background to obtain after-acquired evidence. However, such consideration did not 

alter its decision. McKennon, 513 U.S. at 363.
20

evidence and events are relevant to continued employment, the majority endorses the 

“inequitable and pointless” process of not permitting a hearing regarding a complainant whom 

the operator could terminate based on after-acquired evidence or post-reinstatement misconduct.

B. The Commission Errs by Refusing to Consider Evidence of Misconduct After 

Reinstatement and After-Acquired Evidence

1. Criminal activity by a reinstated person after reinstatement justifies discharge.

The Mine Act provides crucial safety and health protection for miners. Section 105(c) of 

the Act supports those protections. There, the Act prohibits discrimination against a miner 

because of the exercise of any of the protections of the Act. Section 105(c) further seeks to 

assure that miners will not suffer a temporary loss of employment because of exercising a 

protected right. It provides for the temporary reinstatement of a miner if the Secretary presents a 

“non-frivolous” claim of discrimination.5 These are essential rights.

The Mine Act, however, does not exempt miners from the obligation of all workers to 

observe the legally required norms of society at work and away from work. In this case, 

undisputed evidence demonstrated that Saldivar engaged in criminal misconduct for which he 

served two jail sentences totaling several months and lied on his employment application. 

This case presents a significant issue of first impression for the Commission: Does 

temporary reinstatement protect a reinstated complainant from discipline if the complainant 

engages in criminal wrongdoing, resulting in incarceration after reinstatement? The specific 

criminal wrongdoing in the case is theft, followed by failure to appear. However, as a case of 

first impression, the case also presents the broader question of the effect of criminal misconduct 

by or incarceration of a reinstated complainant after reinstatement.

After temporary reinstatement, Saldivar committed crimes of theft and failure to appear. 

There is no dispute over his guilt or his jail terms. The Secretary does not dispute that such crimes 

occurred and agrees that Saldivar was not entitled to pay while in jail.6 

The Mine Act does not differ from general employment law for discipline motivated by a 

reason other than protected activity. Unless employees have a contract, employers may 

5

 The Commission has not defined “non-frivolous.” The United States Court of Appeals 

for the Eleventh Circuit analogized the “non-frivolous” standard to a reasonable cause to believe 

standard. It held “there is virtually no rational basis for distinguishing between the stringency of 

this standard [non-frivolous] and the ‘reasonable cause to believe’ standard that was implicitly 

upheld in Roadway Express.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 

1990).

6

 This does not mean that the Secretary was not entitled to a hearing to address the issues. 

Indeed, the Commission very recently unanimously recognized the reason for and right to a hearing 

in a tolling case. Sec’y of Labor on behalf of Torres v. W.G. Yates & Sons Constr. Co., 2023 WL 

5170092 (July 2023). 
21

discharge employees for any reason that is not unlawful. Engquist v. Oregon Dept. of Agr., 553 

U.S. 591, 606 (June 2008) (“The basic principle of at-will employment is that an employee may 

be terminated for a good reason, bad reason, or no reason at all.” (citing Andrews v. Louisville & 

Nashville R. Co., 406 U.S. 320, 324 (May 1972))). Employment at-will is the law in California. 

Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 335 (Oct. 2000); Cittadino v. BrandSafway Services, 

LLC, 2023 WL 3440407 (E.D. Cal May 2023) (“Under California law, there is a strong statutory 

presumption of ‘at will’ employment.”). There is no doubt that absent a claim of discrimination 

or other legal impediments, the employer could refuse to re-employ the worker. 

In this case, the issue is whether a reinstated worker has a right to return to reinstatement 

if the attempt to return is after a jail term for theft. Does a reinstated worker have more rights 

than a regular employee? Does the Secretary’s presentation months earlier of a non-frivolous 

claim protect a complainant from the ordinary prospect of discipline for post-reinstatement 

misconduct warranting discharge or after-acquired evidence of misconduct warranting 

discipline? Is a reinstated complainant legally entitled to engage in crimes or other unsafe or 

dangerous actions and retain or regain reinstatement with no questions asked by his employer?

A diligent review does not disclose any dispensation in the Mine Act for crimes 

committed by reinstated employees. Reinstated employees should and must follow the lawful 

requirements imposed upon all workers. One does not suppose that even the majority would 

support continued reinstated employment if the reinstated complainant stopped coming to work 

or committed safety violations in the workplace. It would not matter whether such conduct is a 

“change of circumstances” or simply “misconduct.”7

 The availability of discipline would be the 

same. 

Unfortunately, the majority decision fails to fulfill the most fundamental requirements of 

appellate adjudication—a fair representation of the appellant’s argument and presentation of a 

principled legal basis for the appellate decision. 

The majority bases its decision regarding tolling upon a misrepresentation of Grimes’s 

position and the issue in the case. The majority says Grimes seeks to extend tolling to “a 

situation where the operator no longer wishes to offer employment to a miner. Specifically, 

Grimes Rock argues that tolling is justified because it no longer desires to employ Saldivar due 

to his periods of incarceration and the criminal allegations against him.” Slip op. at 5.

The assertion that Grimes argues that it simply no longer wished to employ Saldivar is 

wrong – a makeweight for an erroneous decision. Grimes bases its argument upon Commission 

case law that a “change of circumstances” may warrant tolling. Indeed, elsewhere, in its opinion, 

the majority expressly notes that a “change of circumstances” is a reason for tolling. Slip op. at 

4.

Grimes argues that criminal misconduct by a complainant after temporary reinstatement 

is a “changed circumstance” that warrants tolling the employment of the miscreant complainant. 

7

 Nonetheless, it is entirely accurate to refer to the commission of crimes, safety 

violations, repeated absences, etc. as a “change of circumstances.” When a worker deviates from 

the normal and routine duties, it is a change of circumstance.
22

This argument claims that reinstatement does not make a complainant immune from the 

consequences of criminal misconduct after reinstatement. Grimes does not assert that temporary 

reinstatement may be tolled based upon a “wish” but rather on the confessed criminal 

misconduct of the complainant after reinstatement.

Grimes correctly contends that just as an employer may terminate the position of a 

regular employee or a permanently reinstated employee for criminal misconduct, temporary 

reinstatement does not create a haven from the results of criminal mischief that occurs after the 

temporary reinstatement. Discipline may occur when a reinstated employee engages in postreinstatement misconduct warranting discipline.

This same logic applies to Saldivar’s time in jail when he would not have been able to 

work. An employee would not expect to maintain employment after being absent due to a jail 

sentence. Moreover, neither the majority nor the Secretary dares go as far as to assert that 

Saldivar should have received temporary reinstatement while in jail. They both say that the Mine 

Act demands an operator rehire an individual after a stint of unavailability to work due to the 

individual’s intentional misconduct. 

The majority doubles down on its misinterpretation of Grimes’s argument by finding that 

Grimes’s claim that an operator may discipline a temporarily reinstated complainant who 

engages in post-reinstatement criminal misconduct would mean that in every instance, an 

operator could discharge any temporarily reinstated worker, regardless of the occurrence of 

misconduct. Slip op. at 5. That finding drawn from its misstatement of Grimes’s argument is 

facially incorrect—another makeweight for error. 

The fundamental issue is whether misconduct by a temporarily reinstated complainant 

may constitute a circumstance permitting discipline. The specific misconduct in this case is theft 

and failure to appear. Here, a temporarily reinstated complainant committed crimes after 

reinstatement for which an operator normally could, and almost certainly would, discipline a 

permanently reinstated worker or regular employee. It is senseless to find that the operator must 

wait for perhaps many months for a decision on the merits of the discrimination claim before 

acting on the new misconduct.8

 In this case, the gap between misconduct and a final decision 

was eight months. In another currently pending case, the gap between reinstatement and a 

finding on the merits was 17 months, and the case has been pending upon review for nearly a 

year. Sec’y on behalf of Hargis v. Vulcan Constr. Materials, LLC, SE 2021-0163, 2022-001, 

2022-013.

8

 The majority triples down on its misstatement of Grimes argument by asserting that 

this dissent’s mention of “at-will” principles means the dissent would construe the Mine Act as 

providing “no protection” because reinstatement could be tolled “for no reason at all.” Slip op. 

at 5 n.6. The issue before the Commission is whether post-reinstatement misconduct may permit 

tolling of reinstatement. It is a serious issue. The majority should such eschew obvious and 

trivial misrepresentations based upon the unremarkable observation that an employer ordinarily 

may discharge an employee who seeks to return to work after several months in jail for theft. 
23

As stressed above, Grimes’ argument and the undisputed facts of Saldivar’s crimes 

present a case of first impression regarding the consequences of post-reinstatement misconduct. 

Saldivar’s specific acts of post-reinstatement misconduct were theft and failure to appear, both 

of which resulted in many weeks of incarceration. The case raises an important legal question 

of the effect of post-reinstatement misconduct.9

Nonetheless, the majority states it is not ruling on this seminal question and issues no 

principled guidance regarding tolling for post-reinstatement misconduct. The majority 

proclaims its lack of principled reasoning: “We take no position on whether our narrow tolling 

doctrine could be extended to other fact patterns not raised by this case.” Slip op. at 6 n.7.

 

The majority does not explain why a reinstated complainant may commit crimes or other 

acts warranting discipline without any disciplinary consequence. The majority does not base its 

decision on any legal principle or reasoning. By doing so, in derogating proper appellate 

adjudication, the majority fails to provide any principled legal basis for its decision or guidance 

to ALJs. It simply says, “no discipline” in this case. 

By not taking any position on the possibility of discipline for misconduct, the majority 

decision is simply an arbitrary and unreasoned refusal to permit any adverse consequences to 

flow from Saldivar’s criminal conduct.10 Because this decision is limited to Saldivar and 

Saldivar alone, readers and ALJs may draw no legal principle from the majority decision. It is a 

decision without any underlying principle.

Moreover, the opinion does not appear to be a “majority” decision. In footnote 5, the 

opinion states that Commissioner Rajkovich, perhaps writing only for himself, would find it 

reasonable to consider changes in a miner’s circumstances on a case-by-case basis. Apparently 

or possibly, unlike the Chair and Commissioner Baker, he recognizes a right to impose discipline 

for misconduct. 

The decision states that Commissioner Rajkovich fully joins the entire opinion. 

However, it does not state whether Chair Jordan and Commissioner Baker agree with 

Commissioner Rajkovich’s opinion. It appears Chair Jordan and Commissioner Baker neither 

deny nor affirm that post-reinstatement misconduct can warrant tolling. They “take no position 

on it.” Slip op. at 6 n.7. However, Commissioner Rajkovich finds that the tolling doctrine 

extends to discipline for misconduct. Do Chair Jordan and Commissioner Baker join 

9

 It bears repeating that the Supreme Court has cogently established a point regarding 

after-acquired evidence that is equally applicable to post-reinstatement misconduct—namely, 

that “[i]t would be both inequitable and pointless to order the reinstatement of someone the 

employer would have terminated, and will terminate, in any event and upon lawful grounds.”

McKennon, 513 U.S. at 361. 

10 The majority incorrectly asserts that the Administrative Law Judge considered 

Saldivar’s criminality in making a final decision on the underlying discrimination claim. The 

ALJ did not even take Saldivar’s criminality into account in considering the motion to toll let 

alone the final decision on the merits.
24

Commissioner Rajkovich?11 The Commission leaves the public and ALJs with a unanimous 

decision but without a majority decision on whether an employer may terminate a reinstated 

employee for crimes of theft and failure to appear. The majority opinion is a refusal to explain 

its joint decision and an “add-on” opinion by Commissioner Rajkovich about which Chair Jordan 

and Commissioner Baker express no opinion.

The result is a tottering legal standard that cannot stand on its own weight. Worse yet, 

these flaws are by design. The majority appears to want to craft an amorphous standard for 

tolling that allows for ad hoc review whereby the result can be bent to suit the desires of the 

Commission without regard for any underpinning legal rule. How can the regulated community, 

the Secretary, or Commission ALJs know whether temporary reinstatement can be tolled in a 

particular situation? One can only guess. Without a principled finding, they will find no help in 

the majority’s decision. 

Finally, as discussed further below, the majority’s finding that Grimes was not entitled to 

a hearing is contrary to due process and recent Commission precedent. In Secretary of Labor on 

behalf of Torres v. W.G. Yates & Sons Construction Company, the Commission unanimously 

found that the Secretary was entitled to a hearing on tolling at which she could present evidence 

concerning the tolling of reinstatement. 2023 WL 5170092 (July 2023). The Commission 

required an appropriate hearing to provide “the parties with the opportunity to present evidence 

on tolling outside of the initial temporary reinstatement hearing.” Id. at 4 n.4.12 Obviously, it is 

wrong for the Commission to accord the Secretary greater rights to defend against tolling than 

11 Having recognized the possible right of an employer to toll reinstatement for postreinstatement misconduct, Commissioner Rajkovich writes that Grimes did not positively 

“prove” in its motion that it would discharge a worker for theft. Thus, he asserts the novel 

proposition that the proponent of a motion must prove its claim to a level of summary disposition 

on the face of the motion. Undisputed evidence proved Saldivar’s lies and crimes—suitable

reasons for discharge. The Secretary had a right to challenge Grimes’s claim. Moreover, 

Commissioner Rajkovich errs in saying Grimes’s “offered no indication of a company policy.” 

Slip op. at 5 n.5. Grimes introduced its employment application warning applicants that they 

could be fired for lying on the application. That is the proof, however unnecessary at this stage, 

of Grimes’s policies. It should suffice. Moreover, Commissioner Rajkovich suggestion would 

require an employer to have a “one-size-fits-all” discipline program. That is not correct. An 

employer may and should mete out discipline according to the offense and the employee’s 

record. To illustrate, unless unlawful discrimination is the basis for differing treatment, an 

employer may discharge one employee for misconduct and retain a different employee who 

engages in the same misconduct. Job performance, history with the employer, circumstances of 

the event, and many other factors may result in different consequences for the two employees. 

Finally, one may rightly suggest that not many handbooks explicitly say: “We will discharge you 

for going to jail for theft.” 

12 This puts to rest the fallacious argument by the majority that all issues regarding 

reinstatement must be resolved in the initial hearing.
25

operators have in asserting tolling. Such inconsistent decisions may raise questions regarding the 

impartiality of Commission decisions.

By reflexively neutering the right of an operator in a position such as Grimes to discipline 

a temporarily reinstated worker for misconduct after initial reinstatement, the majority 

effectively opts for the immunization of reinstated workers from redress for misconduct. Such a 

decision is not acceptable.

2. Indisputable Evidence Demonstrates That Saldivar Told Material Lies in Applying 

for Employment with Grimes.

Documentary evidence submitted by Grimes demonstrates that Saldivar’s employment 

application asked if he had been convicted of or pled guilty to a crime. Saldivar replied that he 

had been convicted of “possession of a loaded firearm.” Grimes hired Saldivar despite such a 

confessed conviction. Court records found and submitted after reinstatement disclosed that 

Saldivar lied on the application. He had been convicted of several felonious crimes far more 

severe than possessing a firearm. Saldivar’s lie on his application meets an expressly written 

condition for discharge. 

Saldivar had pled guilty or admitted to multiple felonies: (1) carrying a loaded firearm in 

a vehicle, (2) child endangerment (two counts), (3) possession of an assault weapon, (4) 

committing a crime while on bail, (5) the offer for sale/transfer/possession of a short-barreled 

rifle or shotgun, and (6) possession of a controlled substance while in possession of a firearm. 

People v. Saldivar, Case No. 2016002309 Superior Court of California, County of Ventura.

The Commission permits post-temporary reinstatement hearings on whether changed 

circumstances warrant tolling. Sec’y on behalf of Ratliff v. Cobra Nat. Res., LLC, 35 FMSHRC 

394 (Feb. 2013). It is insensible to read the Mine Act to permit tolling on changed circumstances 

through the closure of a mine or layoffs but not to permit such hearings when the operator 

discovers dispositive evidence after the initial hearing of new and different gross misconduct by 

the complainant.

An operator may not attempt to relitigate the temporary reinstatement hearing by 

asserting new evidence to show the miner did not engage in the protected activity claimed at the 

initial hearing or that the operator’s original reason for terminating the miner was not motivated 

by protected activity.13 However, in this case, the after-acquired evidence does not relate to an 

13 Delays within the Commission means that an operator may have to maintain a properly 

discharged individual in its workforce or pay significant amounts to an undeserving complainant 

for extended periods. Correctly expedited decisions by the Commission would get miners back 

to deserved status or save operators the problem of maintaining a discharged worker at its 

worksite or making tens of thousands of dollars in unrecoverable payments to an undeserving 

individual.
26

alleged protected activity or the motivation for the initial discipline. It is free-standing, newly 

acquired evidence for which Grimes may disqualify Saldivar from resumed employment.14

Courts have recognized the application of after-acquired evidence to a variety of statutes. 

Russell v. Microdyne Corp., 65 F.3d 1229, 1240 (4th Cir. 1995); Mardell v. Harleysville Life Ins. 

Co., 65 F.3d 1072, 1073-74 (3rd Cir. 1995); Wallace v. Dunn Constr. Co., 62 F.3d 375, 378 

(11th Cir. 1995); Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1153 (6th Cir. 

1995); Manard v. Fort Howard Corp., 47 F.3d 1067, 1067 (10th Cir. 1995). See also LA Film 

School, LLC & Its Branch, La Recording Sch., LLC & California Fed’n of Teachers & Brandii 

Grace, 358 NLRB 130, 141-42 (Mar. 2012), John Cuneo, 298 NLRB 856 (June 1990); Marshall 

Durbin Poultry Co., 310 NLRB 68, 70 (Jan. 1993), aff’d in relevant part, 39 F.3d 1312 (5th Cir. 

1994) (NLRA); Crapp v. City of Miami Beach, 242 F.3d 1017, 1021 (11th Cir. 2001) (Title VII); 

Miller v. AT&T Corp., 250 F.3d 820, 837 (4th Cir. 2001) (Family and Medical Leave Act); 

Wallace v. Dunn Constr. Co., 62 F.3d 374, 378 (11th Cir. 1995) (Title VII and the Equal Pay 

Act).

ALJ Lewis applied the after-acquired evidence principle in Sec’y of Labor on behalf of

McKinsey v. Pretty Good Sand Co., Inc, 36 FMSHRC 2843, 2870 (Nov. 2014). Although the 

operator failed to mount an effective affirmative defense, the ALJ found that an independent 

ground existed for dismissal. Prior threats made by the miner were of such a nature as to render 

the complainant unfit for employment. Therefore, the ALJ limited backpay to the date the 

operator learned of the threats.15 Id. The critical point is that the complainant did not have any 

right to damages or, in this case, to reinstatement for a period after new evidence demonstrated 

that the operator would have discharged him legitimately for proscribed conduct. As the 

Supreme Court said in McKennon, waiting months for an inevitable termination of an 

undeserved benefit is inequitable and unfair. That is especially true when, as here, the operator 

may not recapture the undeserved payments.16

14 It is undisputed that Saldivar committed post-reinstatement crimes. If an operator 

would lawfully fire the charged miner for those actions, the discrimination claim cannot be won 

and is, therefore, frivolous. Sec’y of Labor on behalf of Shaffer v. Marion Cty. Coal Co., 40 

FMSHRC 39, 47 (Feb. 2018).

15 The majority asserts that Pretty Good Sand is not relevant because it was decided after 

a hearing. Slip op. at 8 n.11. Of course, that is a convincing argument for why the ALJ should 

have held a hearing in this case. The decision shows a complainant is not entitled to continued 

pay or backpay past the point of acquisition of the new evidence of misconduct. If “afteracquired” evidence cannot be used before a final hearing, the principle becomes meaningless 

because at that point the operator will have paid the complainant undeserved monies but will not 

have any opportunity for recapture. The raison d’etre of after-acquired evidence is that the 

complainant is not entitled to compensation after acquisition of evidence justifying the 

termination.

16 For some reason, my colleagues stray into an erroneous irrelevancy by writing that 

temporary reinstatement is not a remedy for violation of the Mine Act. The Mine Act prohibits 
27

III.

GRIMES WAS ENTITLED TO BE HEARD ON ITS MOTIONS TO TOLL.

Due process requires a hearing at a meaningful time and in a meaningful manner. 

Mathews v. Eldridge, 424 U.S. 319 (1976). Most often, litigants think of a hearing as an 

appearance before a tribunal during which witnesses testify and introduce evidence. However, at 

its most fundamental level, Mathews means a right to be “heard” – a right for an impartial

tribunal to listen to a party’s arguments and reach a reasoned and impartial decision. 

In this case, the ALJ did not merely fail to hold an evidentiary hearing; the ALJ struck the 

entire “fact” section of Grimes’ argument from the record and further struck from the record 

Grimes’ argument based on those facts. She ordered: 

It is ORDERED that Section III [the facts section] of Respondent’s Motion to Toll, 

as well as any other portion of the motion or other document filed that recites or relies 

upon those “facts,” be STRIKEN from the record.

Order at 4 (Jan. 7, 2022). Thus, the ALJ did not even consider Grimes’ argument that forms of 

post-reinstatement misconduct, such as theft, may warrant tolling. The ALJ found that only a 

lack of work for the reinstated individual warrants tolling. She did not listen to – that is, hear 

Grimes’ position. 

If Chair Jordan and Commissioner Baker mean to imply that only the absence of 

available work can cause tolling so that crimes, unsafe acts, threats of violence, refusal to 

perform work, and other such actions do not permit tolling, then the ALJ did not need to hear 

Grimes’ argument because no crimes or safety violations could warrant tolling. As seen above, 

however, such a ruling would be repugnant to the purposes of the Mine Act and employment law 

generally in the face of after-acquired evidence of misconduct and post-reinstatement 

misconduct. 

Crimes by an employee constitute a legitimate reason for discharge unless a claimant 

proves discrimination. Moreover, even if, as Commissioner Rajkovich would require, a preexisting “policy” was necessary to discharge an employee for criminality, how could Grimes 

have “proved” that fact without an adversarial, evidentiary hearing? It did “prove” its policy to 

discharge lying job applicants. Indeed, as seen above, the Commission has held that the 

Secretary is entitled to a hearing. Cobra Natural Res., 35 FMSHRC at 397. Not only was 

Grimes not given a chance to provide such proof, but as set forth above, the ALJ refused even to 

hear the argument or permit the attachment of evidence to its motion. It is impossible to discern 

discrimination, and discrimination is a violation of the Mine Act. Temporary reinstatement is a 

remedy for a nonfrivolous assertion of a violation of the Mine Act rather than a proven violation. 

Separately, my colleagues show sympathy to Saldivar by deliberately downplaying the blatant 

lying on his employment application. They write “Saldivar might have been less than 

forthcoming on his employment application about the full extent of his criminal history.” Slip 

op. at 7 n.9.
28

how Grimes failed to “prove” its position when the ALJ neither listened to Grimes’ position nor 

permitted the admission of any evidence regarding its position to the record.

Finally, we need only point to W.G. Yates & Sons, supra, to show that the Commission 

has unanimously recognized entitlement to a hearing in tolling cases. 2023 WL 5170092 at 4 

n.4. If the Secretary must have a legal right to challenge tolling based upon undisputed facts, the 

operator must have a right to present facts, even though undisputed, warranting tolling.

The majority does not have principled grounds for finding Grimes was not entitled to 

even the possibility of tolling Saldivar’s reinstatement. They cannot explain why. They do not 

permit any disruption in the reinstatement of a confessed criminal. 

In Secretary on behalf of Robert Gatlin v. KenAmerican Resources, Inc. 31 FMSHRC 

1050, 1054 (Oct. 2009), the Commission found that “the Judge abused her discretion when she 

determined that a temporary reinstatement order requires a miner to be employed under any 

circumstance, regardless of changes that occur at the mine after issuance of the temporary 

reinstatement order.” The Commission violates its own well-stated principle without hearing 

Grimes’ argument.

IV.

 THE MOTION TO ENFORCE WAS IMPROPERLY GRANTED.

A. Facts Related to the Motion to Enforce

On May 18, 2021, the ALJ issued an Order requiring Grimes to reinstate Saldivar 

temporarily. After that, the parties negotiated a “settlement agreement” providing economic 

reinstatement for Saldivar instead of actual temporary reinstatement. On May 27, 2021, the 

Secretary and Grimes filed a “Settlement Agreement and Joint Motion for Temporary Economic 

Reinstatement.”17 In the attached proposed Decision Approving Settlement, the parties mutually 

agreed upon a settlement that stated: 

Respondent shall economically reinstate Mr. Saldivar to his 

position as a miner starting May 19, 2021, effective as of the entry 

of this Decision and Order. Respondent shall pay the difference 

between Mr. Saldivar’s earnings at his present place of 

employment Wayne J. Sand and Gravel and Grimes Rock Inc. 

based on the average amount of hours worked at each place of 

employment at his regular rate of pay for the first forty hours and 

at the overtime rate for any hours over forty. Based on these 

calculations, Respondent shall pay $2,136.78 per pay period (biweekly, every 2 weeks) subject to normal deductions. Mr. 

17 As the representative of Saldivar, the Secretary negotiated the settlement agreement 

with Grimes. 
29

Saldivar will not report for duty with Grimes Rock Inc. during the 

temporary economic reinstatement period.

On May 28, 2021, the ALJ entered an “Order Approving Settlement Order of Temporary 

Economic Reinstatement.” The Order stated, 

I accept the representations and modifications of the Secretary as 

set forth in the motion. I have considered the documentation 

submitted, find that the terms are reasonable, and conclude that the 

proposed settlement is appropriate under the Mine Act. The joint 

motion for temporary economic reinstatement is hereby 

GRANTED. The Respondent is ORDERED to pay Mr. Saldivar 

$2,134.78 per pay period (every two weeks), subject to normal 

deductions, and to otherwise comply with the terms of the 

settlement agreement.

Order at 2 (May 2021). 

The Secretary and Grimes submitted a proposed economic reinstatement Order to the 

ALJ under which payments would cease if Saldivar obtained employment at an equal or higher 

pay rate. However, the settlement agreement between the parties did not contain such a 

provision. The ALJ’s Order accepted the terms of the settlement agreement and did not take any 

note of or provide for that condition in the parties’ Proposed Decision. Thus, the ALJ’s Order 

followed the terms of the settlement agreement rather than the proposed order. 

After Saldivar’s release from prison in November 2021, understandably, Saldivar lost his 

then-current employment. Grimes continued to obey the settlement agreement and Order to 

make payments of 2,134.78 per pay period to Saldivar. The Secretary did not seek to amend the 

Economic Temporary Reinstatement Order entered at Grimes’ and the Secretary’s mutual 

request. Instead, months after Saldivar lost his active employment, the Secretary filed a “motion 

to enforce” in which the Secretary argued that, although Grimes had been paying the amount 

explicitly required by the ALJ’s Order, that Order “implicitly” required additional payments 

from Grimes.18

The ALJ found no discrimination; she granted the motion to enforce on the same day. 

Subsequently, Grimes filed a Petition for Discretionary Review with the Commission,

18 The Secretary bases much of her argument on allegations related to California 

contract law and particularly on a complicated and irrelevant California family court decision 

between quarreling divorcees. Grimes continued to obey the ALJ’s Order and parties’ mutual 

agreement. The Secretary failed for months to take the appropriate action by filing a motion to 

modify the original Order. Any economic injuries suffered by Saldivar between November and 

June are attributable to the Secretary’s lassitude rather than to Grimes adherence to the ALJ’s 

Order. 
30

challenging the ALJ’s decision on the motion to enforce. The Commission granted the Petition. 

However, the Secretary did not wait for the Commission to act on Grimes’ Petition. 

On August 15, 2022, the Secretary issued a section 104(a) citation to Grimes for failing 

to make the required payments, violating the Judge’s Order to enforce. 30 U.S.C. § 814(a). The 

suddenly aroused Secretary waited only two days. On August 17, 2022, MSHA issued another 

104(a) citation against Grimes. Subsequently, on August 22, 2022, MSHA issued a 104(b) 

Order. At that time, MSHA informed Grimes that it faced penalties of $10,000 a day and/or 

closure of the mine. MSHA, having applied the heavy hand of government coercion from which 

there could be no redress, Grimes capitulated and paid the sum required by the decision on

enforcement.19

B. Discussion 

The majority decision does not cite any case for accepting the Secretary’s argument that a 

clear, precise, and explicit settlement agreement between the parties implemented by an ALJ 

Order contains implicit or unwritten obligations. Moreover, Commission precedent 

demonstrates that any such implicit agreement would only flow one way. Sec’y of Labor v. 

North Fork Coal Corp., 33 FMSHRC 589, 594 (Mar. 2011). There, the Commission enforced 

the wording of the settlement agreement and did not find any implicit agreement that the 

settlement should be enforced only to make the complainant whole. “Unlike back pay awards, 

Commission judges do not decide the terms of economic reinstatement agreements. The 

agreement which formed the basis of the judge’s order was arrived at after negotiations between 

the parties.” Id. at 593.

The Commission refused an additional offset for the employer. Id. at 595. In this case, 

the Commission finds it would not enforce the negotiated agreement and subsequent order 

embodying the agreement.20

19 On August 17, 2022, Grimes filed a motion to stay the ALJ’s enforcement decision. 

The Commission meaninglessly denied the stay on August 30, 2022, days after Grimes had 

fallen to government might.

20 In economic reinstatement, the discharged employee agrees to forego actual 

reinstatement provided the employee receives satisfactory economic reinstatement. Such 

agreements vary because they are negotiated agreements in which each party seeks to obtain 

benefits from avoiding actual reinstatement. We easily understand the benefits each party seeks. 

The discharged employee gets money without any obligation to work. The employer avoids 

bringing a discharged employee back into the workforce. The parties may contemplate that the 

employee may get another job thereby doubling his income or, conversely the employee may 

lose existing alternative employment reducing total income. The strength of the of the parties’ 

desires for a return to employment determines the content of an economic reinstatement 

agreement. The Commission decision today turns this good faith negotiation in which each party 

may make concessions into a secret “heads I win, tails you lose” negotiation for the discharged 

employee.
31

Here, the Commission holds that bitter medicine for the operator is a sweet relief for the 

complainant. It accords no weight to the fact that an explicit settlement with potential benefits 

for both sides was negotiated between the parties and then embodied in an “Order” by the Judge. 

The agreement of the parties and the complementary Order by the ALJ are irrelevant to the 

majority’s decision. Again, the Opinion does not cite any authority for changing an explicit 

agreement of the parties based upon a finding of what the parties must have implicitly decided. 

The Opinion finds that the Order did not need to be modified to require a change of terms. 

Under the Opinion’s reasoning, a complainant could negotiate an agreement with an offset to 

avoid returning to the job. Then, immediately after obtaining the Judge’s Order, the employee 

could quit the offsetting job and be entitled to full pay from the operator. 

The Mine Act neither recognizes nor endorses economic reinstatement instead of actual 

reinstatement. Economic reinstatement is a non-statutory procedure through which the 

Commission permits the parties to substitute a private agreement for the prescribed statutory 

right to actual reinstatement. Both had competent counsel. However, that private, negotiated 

agreement becomes an enforceable Order by dint of the ALJ’s Order. Thus, a complainant does 

not need to go to state court to enforce the agreement between the parties. 

Because such agreements are non-statutory, the ALJ does not help negotiate a mutually 

acceptable agreement. The Mine Act does not authorize Commission Judges to substitute 

economic reinstatement for actual reinstatement. For that reason, such agreements, as in this 

case, are often styled as a “settlement” of an Order to Temporarily Reinstate. 

The Commission has held:

The obligation to comply with the terms of that order as written, 

with no offset, will continue unless and until the parties negotiate a 

new agreement and it is entered as a superceding [sic] order by the 

judge, or either party invokes the judge’s continuing jurisdiction 

and the judge modifies or rescinds the existing order. In the event 

a motion is submitted to modify or rescind the previously entered 

consent order, the judge is required to examine all the relevant 

circumstances, in accordance with section 105(c) of the Mine Act, 

and not just whether the miner or operator still consents to it.

North Fork, 33 FMSHRC at 595.

In short, the Commission endorses the loss of Grimes’s position on two critical matters 

without a hearing or any motion before the Commission to modify an explicit Order based upon 

mutual agreement of the parties. This decision is a profound setback for due process before the 

Commission. 
32

V.

 THE SECRETARY’S MOTION FOR CONSEQUENTIAL DAMAGES IS 

UNTIMELY AND BEYOND THE COMMISSION’S JURISDICTION.

A. Relevant Facts

The Mine Act grants the Commission specific jurisdiction. The Commission does not 

have jurisdiction over a motion filed directly with it over unlitigated claims. Further, the 

Secretary’s attempt to obtain consequential damages from the Commission is untimely. Finally, 

the Secretary has not even attempted to show good cause or any justification for seeking 

extraordinary relief through a motion to file a new claim directly before the Commission. The 

Opinion does not even consider the issues.

Upon filing the complaint on behalf of Saldivar, the Secretary became his legal 

representative. Immediately, the Secretary negotiated and submitted a written settlement 

agreement on Saldivar’s behalf calling for Grimes to pay Saldivar a specific dollar amount. The 

ALJ subsequently entered an Order confirming the requirement for Grimes to pay Saldivar 

$2,134.78 per pay period. As discussed above, the Secretary asserts Grimes should have known 

the agreement and subsequent ALJ Order did not mean what they said because the law imposed 

an obligation upon Grimes to pay more if Saldivar lost his job regardless of a binding Order 

agreed upon by the parties with the assistance of counsel. 

When Saldivar left jail in November 2021, Grimes continued to comply with its mutually 

agreed upon settlement and ALJ’s Order’s explicit terms—a position logical to all but the 

Secretary and Commission. Moreover, despite being Saldivar’s representative, the Secretary 

took no action. 

The Secretary waited five months and then filed a motion to change the settlement 

agreement and the Order by claiming an implied obligation. Given that the Secretary’s Solicitor 

served as counsel for Saldivar, if the Secretary thought Saldivar was entitled to larger payments, 

she immediately should have filed a motion to amend the ALJ’s Order. Instead, the Solicitor sat 

on her hands, allowing his damages to accrue. Only now, after completing the case before the 

ALJ, claims Grimes should pay monetary damages.

The Secretary now asserts any harm is Grimes’ fault because it should have known the 

Order did not mean what it said but carried an implicit obligation to increase payments. In fact, 

of course, if Saldivar suffered consequential harm due to the Secretary’s inaction, it is due to the 

Secretary’s failure as his representative.21

21 The Secretary fails to note that Saldivar spent at least 140 days in jail and, 

consequently, missed at least ten pay periods of $2,136.78—that is, a total of $21,367.80. Plus, 

he missed at least six pay periods from the other employer during the initial incarceration at 

approximately $1,000 a pay period. Therefore, Saldivar’s own criminal conduct caused him to 

lose three times as much income as the amount “lost” by Grimes’ adherence to the ALJ’s Order.
33

B. The Commission does not have jurisdiction to hear the Secretary’s Untimely 

Motion.

The Mine Act grants the Commission specific jurisdiction. Section 

113(d)(2)(A)(i) states: 

Any person adversely affected or aggrieved by a decision of an 

administrative law judge, may file and serve a petition for 

discretionary review by the Commission of such decision within 

30 days after the issuance of such decision. Review by the 

Commission shall not be a matter of right but of the sound 

discretion of the Commission.

30 U.S.C. § 823(d)(2)(A)(i). 

Section 113(d)(2)(A)(ii) provides:

Petitions for discretionary review shall be filed only upon one or 

more of the following grounds:

(I) A finding or conclusion of material fact is not supported 

by substantial evidence.

(II) A necessary legal conclusion is erroneous.

(III) The decision is contrary to law or to the duly 

promulgated rules or decisions of the Commission.

(IV) A substantial question of law, policy or discretion is 

involved.

(V) A prejudicial error of procedure was committed.

30 U.S.C. § 823(d)(2)(A)(ii).

The Commission is an institution of appellate review. Ignoring the jurisdictional 

prerequisite for Commission jurisdiction, the Secretary does not seek to obtain a review of an 

ALJ decision but instead asserts a new claim not raised before the ALJ. Indeed, the Secretary 

does not cite any of the jurisdictional prerequisites of the Mine Act for Commission jurisdiction. 

The Secretary did not file a timely Petition for Discretionary Review because the ALJ had given 

Saldivar everything the Secretary sought in granting the Motion to Enforce. The Secretary does 

not press an assignment of error by the ALJ. She filed a new claim against Grimes directly with 

the Commission. 

Having failed to seek a modification of the Judge’s temporary reinstatement order and 

waiting six months to take any enforcement action, the Secretary failed to make any claim for 

consequential damages. There is no decision of fact or law by the ALJ for the Commission to 

review. 
34

Finally, the Secretary does not attempt to provide any excuse, let alone good cause, for 

the failure to present any issue of other damages to the ALJ. Saldivar forfeited any claim for 

damages not pressed before the ALJ. 

In summary, the Secretary failed to file a Petition for Discretionary Review as required

by the Mine Act, failed to identify any of the jurisdictional grounds in section 113(d)(2)(A)(ii), 

failed to identify any assignment of error, failed to present the issue to the ALJ, and failed to 

provide any reasonable cause for such failures. Sometimes, parties must live with the action or 

inaction of their counsel. This case is one of those times.

VI. 

CONCLUSION

In summary, the majority misrepresents the issues presented. It presents a willful and 

unexplained refusal to accept that Saldivar’s crimes may have consequences. It does not 

establish any principled guidance for ALJs to apply in future cases. No legal principle may be 

gleaned from the majority’s decision, especially considering Commissioner Rajkovich’s separate 

comment. The majority does not rule whether post-reinstatement crimes or theft may warrant 

discipline or tolling. It finds only, and without explanation, that Saldivar’s crimes could not toll 

temporary reinstatement in this case.

I respectfully dissent.

_________________________________ 

William I. Althen, Commissioner 
35

Distribution:

Peter Goldenring, Esq. 

Pachowicz & Goldenring PLC 

6050 Seahawk Street 

Ventura, CA 93003 

peter@pglaw.law 

Mark R. Pachowicz, Esq. 

Pachowicz & Goldenring PLC 

6050 Seahawk Street 

Ventura, CA 93003 

mark@pglaw.law 

Alvaro Saldivar 

1241 Lookout Drive 

Oxnard, CA 93035 

saldivarwelding@icloud.com 

Susannah M. Maltz, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

maltz.susannah.m@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

scott.emily.t@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 
36

Karla Malagon, Esq.

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

malagon.karla@dol.gov

Jessica M. Flores, Esq.

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

Flores.Jessica@dol.gov

Bruce L. Brown, Esq.

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

Brown.Bruce.L@dol.gov

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@dol.gov

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov