FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave. NW, Suite 520N

TELEPHONE: (202)434-9900 / FAX: (202)434-9949

October 4, 2023 

 

ORDER GRANTING UNOPPOSED MOTION TO TOLL TEMPORARY ECONOMIC 

REINSTATEMENT

Before: Judge McCarthy 

Procedural Background

This case is before the undersigned upon an Application for Temporary Reinstatement 

filed by the Secretary of Labor pursuant to section 105(c)(2) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and 29 C.F.R. § 2700.45. On June 12, 

2023, the Secretary filed an application on behalf of miner Phillip Bowman (“Complainant”) 

seeking his reinstatement to his former position as a rock truck driver at the Twilight Mtr Surface 

Mine operated by Lexington Coal Company, LLC.1 

1 The following allegations are delineated within the Secretary’s application and MSHA’s special 

investigator’s affidavit affixed as Exhibit A thereto:

1) Complainant began working as a truck driver at the Twilight Surface Mine in October 2021;

2) On or about April 3, 2023, Complainant informed his foreman that rock truck number 252 CAT 

777 had no air conditioning and was releasing exhaust fumes into the cab of the truck; 

3) On April 4, 2023, Complainant downed rock truck number 252 CAT 777 and informed his foreman 

that he would not drive the truck in its current condition;

4) On April 5, 2023, he was told to run rock truck number 252 CAT 777 in its then current condition 

or to go home. Complainant then contacted MSHA and reported his concerns with the truck; 

5) On April 6, 2023, MSHA inspectors issued a citation which identified conditions consistent with 

those alleged by Complainant (Ex. C);

6) Complainant was “discriminatorily terminated” on April 19, 2023. App. at 8.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of PHILLIP BOWMAN,

 Complainant, 

 v. 

LEXINGTON COAL COMPANY, LLC,

 Respondent.

TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. WEVA 2023-0363 

MSHA Case No. HOPE-CD-2023-4 

Mine: Twilight Mtr Surface Mine 

Mine ID: 46-08645
2 

On June 29, 2023, the Secretary filed a Settlement Agreement and Joint Motion for 

Temporary Economic Reinstatement. The terms of the agreement provide for the Complainant 

to receive economic reinstatement with Lexington Coal Company in lieu of immediately 

returning to work. The undersigned approved this Settlement Agreement on July 10, 2023, and 

held that 

the parties were to comply with the terms and conditions in the Joint Motion,” and 

“that this economic reinstatement shall remain in effect until such time that the 

Secretary provides notification that he will not be bringing a discrimination case in 

chief on behalf of the Complainant, or such a case is brought and there is a final 

determination on it by Commission decision, approval of settlement, or other order 

of this tribunal or the Commission. 

Order Granting Joint Motion for Economic Reinstatement at 2-3. The undersigned 

retained jurisdiction over this temporary reinstatement proceeding for such purposes as are 

necessary, as provided by 29 C.F.R. § 2700.45(e)(4). 

On August 25, 2023, the Respondent filed a Motion to Toll [the] Economic Reinstatement 

Order, claiming that the Mine was idled on July 11, 2023 – the day after the temporary economic 

reinstatement was Ordered in this matter. The Motion further claimed that the mine had been 

idled due to “a downturn in the coal market resulting in all of its production coal miners being 

laid off by the Lexington [sic].” Mot. to Toll Economic Reinstatement Order at 2. In support of 

its assertions, the Respondent attached an Affidavit signed by mine superintendent Casey Miracle, 

which briefly describes the shutdown at Lexington's surface mine in Boone County, West 

Virginia. That affidavit avers, in part, that

1. Complainant was previously employed as rock truck operator at the Twilight 

Surface Mine in Boone County, West Virginia; 

2. As of July 11, 2023, coal production at the Lexington's Twilight Surface Mine 

has been idled and all employees have either been laid off or transferred;

3. No person with the Complainant’s specific skill set is currently working at the 

Twilight Surface Mine; 

4. Complainant would have been laid off from working at the Twilight Surface 

Mine on July 11, 2023, along with the other coal miners with a similar skill set.

Aff. of Casey Miracle at ¶¶ 3-7.

On Thursday September 21, 2023, the undersigned held a conference call with the parties 

to discuss his concerns regarding the then-pending request to toll Complainant’s temporary 

economic reinstatement. More specifically, the undersigned expressed concern that 1) the Mine 

was idled nearly contemporaneously with the issuance of my July 10, 2023 Order granting 

Complainant’s temporary economic reinstatement; 2) while Respondent’s counsel referenced a 

downturn in the metallurgical coal market in her motion, this downturn was not referenced in Mr. 

Miracle’s affidavit or substantiated by any other evidence; 3) no explanation was provided for why 

Complainant was ineligible for transfer to another mine facility operated by Lexington Coal; and 

4) there was no indication whether the layoff was temporary or permanent. During the call, 
3

counsel for the Respondent confirmed that on or about July 25, 2023, a single payment was 

remitted to Complainant under the terms of my Order. Counsel for the Secretary indicated that 

the Secretary was pursuing the underlying discrimination case.2

 The undersigned requested that 

Respondent’s counsel prepare a revised motion addressing my concerns. 

On September 27, 2023, the Respondent filed a Revised Verified Motion to Toll Economic 

Reinstatement Order. The Revised Motion included a Revised Affidavit from Casey Miracle 

(Exhibit 1) and copies of 1) Commission case law, and 2) samples of non-precedential ALJ 

decisions resolving motions to toll temporary reinstatement (Exhibit 2). Mr. Miracle’s revised 

affidavit states as follows:

1. I [Casey Miracle] am currently employed as a Superintendent of Lexington Coal 

Company, LLC ("Lexington") and have been employed in such a capacity since 

February 22, 2022.

2. I am therefore authorized and qualified to create this Affidavit and have personal 

knowledge of the facts contained therein.

3. I wish to clarify the statements made during my Affidavit dated August 25, 2023; I 

am the only employee of Lexington who was transferred from Twilight. Upon 

information and belief, I was transferred because I am the Superintendent of the 

operation and such a specific skillset was required at another of Lexington's 

operations, being one hour and forty-five minutes northwest.

4. On or about the first week of July, 2023, the Twilight layoff was coordinated by 

Lexington's management; upon information and belief, such decision was made as 

a result of its loss of a high price sales contract.

5. I was instructed by management at approximately 8:00 a.m. on July 10, 2023 and 

it was necessary to lay off the employees on July 11, 2023.

6. The layoff was strictly due to the coal market decrease Lexington faced, beginning 

during the first week of July 2023. Specifically, there became low demand for 

Lexington's Metallurgical coal product mined from Twilight. Lexington could not 

afford to operate Twilight until and unless it secured another order to fill the void.

7. There are currently no individuals with [Complainant]’s skill set working for 

Lexington at the Twilight Surface Mine.

8. There were no transfers available for any other employees.

9. All employees with [Complainant]'s skill set were laid off on July 11, 2023.

10. [Complainant] would have been laid off on July 11, 2023 with the other coal miners 

with his skill set working for Lexington at the Twilight Surface Mine.

For the reasons that follow, the undersigned tolls Complainant’s economic reinstatement as of the 

date of this Order. 

2 Upon questioning from the undersigned, counsel for the Secretary indicated that MSHA had 

confirmed that there was a layoff at the Mine, but had not investigated whether the layoff or 

partial closing itself was motivated by protected activity. 
4

Analysis

“The Commission has recognized that the occurrence of certain events, such as a layoff for 

economic reasons, may toll an operator's reinstatement obligation.” MSHA obo Robert Gatlin v. 

KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). This “limited inquiry to 

determine whether the obligation to reinstate a miner may be tolled even when it has been 

established that the miner's discrimination complaint is not frivolous,” must be consistent with the 

“narrow scope of temporary reinstatement proceedings.” MSHA obo Dustin Rodriguez v. C.R. 

Meyer & Sons Co., 2013 WL 2146640, *3 (May, 2013). Accordingly, 

[a]n operator generally must affirmatively prove that a layoff justifies tolling 

temporary reinstatement by a preponderance of the evidence. Gatlin, 31 FMSHRC 

at 1055. However, if the objectivity of the layoff as applied to the miner is called 

into question in the temporary reinstatement phase of the litigation, judges must 

apply the “not frivolously brought” standard contained in section 105(c)(2) of the 

Mine Act to the miner's claim.

MSHA obo Russell Ratliff v. Cobra Natural Resources, LLC, 2013 WL 865606, *4 (Feb. 2013). 

“In other words, temporary reinstatement should be granted and not tolled unless the operator 

shows that the claim that the layoff arose at least in part from protected activity is frivolous.” C.R. 

Meyer & Sons, 2013 WL 2146640, *3.

The Commission has found that tolling is an affirmative defense and an operator must make 

a showing by a preponderance of the evidence that no work was available for the miner. 

KenAmerican Resources, 31 FMSHRC at 1054-55; Cf., Chadrick Casebolt, 6 FMSHRC 485, 499 

(Feb. 1984) (“if business conditions result in a reduction in the work force the right to back pay is 

tolled because a discriminatee is entitled to back pay only for the period during which he would 

have worked but for the unlawful discrimination.”). 

In this case, Respondent initially submitted limited evidence to carry its burden to prove,

by a preponderance of the evidence, that layoffs at the Mine justify tolling Complainant’s 

temporary economic reinstatement. See Gatlin, 31 FMSHRC at 1054. The only submission 

provided in support of the Motion to Toll Temporary Economic Reinstatement was Casey 

Miracle’s affidavit. That affidavit makes a passing reference to a possible change in the economic 

conditions at the Mine, stating that, “as of July 11, 2023, Lexington’s Twilight Surface Mine has 

been idled.” Aff. of Casey Miracle at ¶ 5. Within the affidavit, Mr. Miracle states further that 

“there are currently no individuals with [Complainant’s] skill set working for Lexington Coal 

Company, LLC at the Twilight Surface Mine,” and “were it not for this honorable Court's 

Temporary Reinstatement Order, [Complainant] would have been laid off on July 11, 2023 with 

the other coal miners with his skill set working for Lexington Coal Company, LLC at the Twilight 

Surface Mine.” Id. at ¶¶ 6-7. Mr. Miracle did not expound on the reasons for Respondent’s 

decision to idle production at the Twilight Surface Mine, such as a market downturn or other 

externalities that might lawfully motivate that decision. See Id. at ¶ 5. Nor did he provide any 

justification at all for his employer’s decision to either terminate or transfer every employee 

previously assigned to the Twilight Surface Mine. See Id. at ¶ 4. Furthermore, other than stating 

that Complainant “was previously employed as a rock truck operator,” Mr. Miracle provided no 
5

details concerning Complainant’s skill set or credentials. See Id. at ¶ 4. There was nothing 

provided in Miracle’s initial affidavit explaining why Complainant would have been ineligible for 

transfer or reassignment rather than termination, except for the conclusory statement that 

“[Complainant] would have been laid off on July 11, 2023 with the other coal miners with his skill 

set.” Aff. of Casey Miracle at ¶ 7. 

Mr. Miracle’s revised affidavit ameliorates many of the foregoing concerns. First, he 

describes how the decision to idle production at the Mine was motivated by "low demand for 

Lexington’s Metallurgical coal” following the “loss of a high price sales contract.” Rev. Aff. of 

Casey Miracle at ¶¶ 4, 6.3 Mr. Miracle further averred that “Lexington could not afford to operate 

Twilight until and unless it secured another order to fill the void.” Id. at ¶ 6. In addition, Miracle 

now avers that after the decision to idle the Twilight Surface Mine was made, only Mr. Miracle –

as the mine superintendent – was transferred to another mine facility operated by the Respondent. 

See id. at ¶ 3. No other employees at the Twilight Surface Mine were eligible for transfer, and all 

other employees, including those individuals with a skill set similar to Complainant’s, were laid 

off. See id. at ¶¶ 7-9.

The Secretary has not filed an opposition to the motion to toll or otherwise submitted any 

evidence to rebut Respondent’s evidence. Thus, the only evidence that may be considered at this 

time are the Respondent's evidentiary submissions, as well as any relevant evidence from the 

original application for temporary reinstatement. Considering the totality of the Respondent's

evidence and the lack of any evidence from the Secretary to the contrary, the undersigned finds

that the Respondent has met its burden. As a result, my July 10, 2023 Order Granting Joint Motion 

for Economic Reinstatement shall be tolled. 

The undersigned must next consider the effective date of tolling and whether the 

Respondent maintains any obligation to remit additional payments to Complainant. In its initial 

motion Respondent argued that tolling should be effective on July 11, 2023, the date production 

was idled at the Mine. The Respondent cites Wiggins v. E. Assoc. Coal Corp. and Casebolt v. 

Falcon Coal Co., Inc. in support of the proposition that “a back pay award ends upon the date of 

a layoff.” See 7 FMSHRC 1766, 1772-73 (Nov. 1985); 6 FMSHRC 485, 486 (Feb. 1984). This 

case law is inapposite. In the former case, the Commission reviewed an ALJ Decision following 

a discrimination hearing on the merits, a hearing that Wiggins had requested pursuant to 30 U.S.C. 

§ 815(c)(3) after the Secretary declined to prosecute a case on his behalf. See Wiggins, 7 FMSHRC 

at 1768. In the latter case, Casebolt did not seek economic reinstatement and conceded that he 

suffered no loss of pay from any alleged discrimination, instead seeking broader “make whole” 

remedies. See Casebolt, 6 FMSHRC at 486. Neither case involved the approval of a temporary 

reinstatement order at any stage of the proceedings, and calculation of any ‘back pay’ occurred 

only after the complainants were afforded the opportunity to present a full case on the merits. 

The Respondent also relies on MSHA o/b/o Clinton Ray Ward v. Argus Energy WV, Inc., a 

non-precedential ALJ decision attached as Exhibit 2 to the Respondent’s initial Motion to Toll 

Economic Reinstatement Order. The Respondent contends that “the present situation is very 

similar to the one reviewed by ALJ Steele while rendering [that] decision.” Mot. to Toll Economic 

Reinstatement Order at 2. However, unlike the present situation, Judge Steele’s decision resolved 

3 No other documentation establishing loss of this contract was provided. 
6

a motion to dissolve temporary reinstatement after the Judge had already denied the Discrimination 

Complaint on the merits. Moreover, the motion to dissolve the temporary reinstatement order was 

filed in that case on December 12, 2023, which was more than two weeks before the mine was set 

to idle on December 25, 2023. By contrast, the idling of the Mine and layoff in this case was not 

raised until well after my July 10, 2023 Order Granting Joint Motion for Economic Reinstatement. 

Indeed, more than six weeks passed before Respondent filed its initial August 25, 2023 motion 

alleging that the idling of production and layoff constituted sufficient changed circumstances to 

justify tolling of my Order. See Gatlin, 31 FMSHRC at 1054. This delay occurred despite the fact 

that the mine was idled the day after issuance of my Order and a mere twelve days after the parties 

agreed to a potential settlement regarding the then-outstanding reinstatement request. The 

Respondent cannot now claim that its payment obligations should be tolled retroactively to July 

11, 2023, when Respondent was responsible for the 45-day delay between the July 11 layoff and 

the August 25, 2023 filing of its initial motion to toll my July 10, 2023 Order Granting Joint Motion 

for Economic Reinstatement. 

As noted above, during the September 21, 2023 conference call, counsel for the 

Respondent confirmed that a single payment was remitted to Complainant on or about July 25, 

2023. The Respondent, however, was obligated to continue to comply with the terms and 

conditions of my economic reinstatement Order which “shall remain in effect until such time 

that the Secretary provides notification that he will not be bringing a discrimination case in chief 

on behalf of the Complainant, or such a case is brought and there is a final determination on it by 

Commission decision, approval of settlement, or other order of this tribunal or the Commission.” 

Order Granting Joint Motion for Economic Reinstatement at 2-3. Rather than complying with 

that Order, Respondent apparently unilaterally ceased payments to Complainant after July 25, 

2023, without leave of this tribunal and a full month before filing its initial motion to toll. In 

previous cases, the Commission has rebuked a mine operator for unilaterally cutting off 

payments to an alleged discriminatee on the date of a reduction-in-force rather than on the date 

of modification of an order. Gatlin, 31 FMSHRC 1050, n. 2. In Gatlin, the Commission stated 

that “[r]ather than determining unilaterally that the workforce reduction justified terminating Mr. 

Gatlin’s reinstatement, [the Respondent] should have moved the Judge to modify the ... Order.” 

Id., citing Consolidation Coal Co., 14 FMSHRC 956, 970 (June 1992) (“[N]o operator is free to 

take the law into its own hands by deciding for itself what the law means and how it can best be 

applied.”). If the Respondent here had continued payment to the miner pursuant to the 

temporary economic reinstatement Order, that money would not be recoverable by the 

Respondent even though its July 11, 20223 layoff warranted tolling the temporary economic 

reinstatement. See Sec’y of Labor obo Dustin Rodriguez v. C.R. Meyer and Sons Co., 35 

FMSHRC 811, 813-814 (Apr. 2013) (“[T]here is nothing in the Mine Act which contemplates 

that the miner would be expected to repay the amounts paid pursuant to the reinstatement order. 

Indeed, that would run counter to the intent of the provision, which is to provide immediate relief 

to a complaining miner while he or she waits for the case to be decided.”)

Consistent with the reasoning in Gatlin, because the terms of my July 10, 2023 Order 

remained in effect until such time as the period of reinstatement is modified, Complainant 

Bowman should have continued to receive economic reinstatement until the date of this Order 

granting tolling. Gatlin, 31 FMSHRC at 1055 (“Thus, KenAmerican must continue to comply 
7 

with the terms of the August 31 Order and pay Mr. Gatlin until the matter is resolved by the 

Judge.”).

Order 

It is ORDERED that Complainant’s temporary economic reinstatement is TOLLED as of

October 4, 2023, the date of this Order. 

It is ORDERED that Respondent remit to Complainant any payments that are still due 

under the terms of my July 10, 2023 Order Granting Joint Motion for Economic Reinstatement 

from July 25 until October 4, 2023. 

It is further ORDERED that the Respondent shall inform the Secretary, Complainant, 

and this tribunal if the Twilight Mtr Surface Mine is brought back into production, or any 

employees are recalled from layoff. 

 Thomas P. McCarthy

 Administrative Law Judge 

Distribution (Electronic Mail): 

Kyle D. Stelmack, Esq.

Office of the Regional Solicitor 

U.S. Department of Labor 

1835 Market Street, Mailstop SOL/22

Philadelphia, PA 19103 

Stelmack.kyle.d@dol.gov 

Helena Racin Jackson, Esq.

685 Hambley Blvd., Suite 1-A 

Pikeville, KY 41501

hj@hrjacksonlaw.com 

/cbb