i 

January 2022 

TABLE OF CONTENTS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-07-22 CAPURRO TRUCKING WEST 2021-0183 Page 1 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-21-22 KNIGHT HAWK COAL, LLC LAKE 2021-0160 Page 15
ii 

Review Was Granted In The Following Cases During The Month Of January 2022 

Robert Thomas v. Calportland Company and Secretary of Labor v. Calportland Company, 

Docket Nos. WEST 2018-0402 DM, et al. (Judge Miller, December 2, 2021) 

Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc., Docket No. WEST 2021-0178 DM 

(Judge Miller, January 7, 2022) 

Review Was Denied In The Following Case During The Month Of January 2022 

Secretary of Labor v. Cactus Canyon Quarries, Inc., Docket No. CENT 2022-0010 (Chief Judge, 

December 1, 2021) 
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

January 7, 2022

DECISION ON RESPONDENT’S 

MOTION FOR SUMMARY DECISION 

Before: Judge Sullivan 

This discrimination proceeding is before the Commission pursuant to section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). 

Respondent Capurro Trucking (“Capurro”), pursuant to Commission Procedural Rule 67(a)-(c), 

29 C.F.R. §2700.67(a)-(c), has filed a Motion for Summary Decision (“Resp’t Mot.”) on the pro 

se discrimination complaint brought against it by its former employee, Complainant Maria T. 

Walker. Complainant opposes the Motion for Summary Decision. 

I. GENERAL FACTUAL AND PROCEDURAL BACKGROUND 

Capurro, headquartered in Sparks, NV, provides trucking services as a contractor under 

the Mine Act from its Carlin, NV Mining Division facilities to nearby mines, including the 

Goldstrike Mine of Nevada Gold Mines LLC. Complainant started as a Capurro ore haul truck 

driver on November 25, 2019, with approximately three weeks of training.1

 She worked as a 

Capurro Mining Division driver until her termination on September 3, 2020. 

According to the Exit Interview that Complainant attached to her Commission 

Complaint, (hereinafter “105(c)(3) Compl.”), Capurro informed the Complainant that she was 

being terminated for her “[f]ailure to take direction from supervisors without constant argument” 

and “[d]isruption of workforce.” The Exit Interview further stated that “all communications and 

1

 Prior to her employment at Capurro, Complainant had six years of truck driving 

experience. Questionnaire at 2. Complainant’s husband, Mr. William Walker, was hired in the 

same position by Capurro at approximately the same time. Resp’t Mot. Ex. 1, ¶ 13. 

MARIA T. WALKER, 

 Petitioner, 

 v. 

CAPURRO TRUCKING, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

 Docket No. WEST 2021-0183 

 MSHA Case No. WE-MD-21-20 

 

 Mine ID: 26-01089 / F732 

 Mine: Goldstrike Mine 

44 FMSHRC Page 1
directives given from any management or supervision is a debate or argument” and are “very 

disruptive and time consuming.” Id.2

Complainant, pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), 

subsequently filed a discrimination complaint against Capurro with the Department of Labor’s 

Mine Safety and Health Administration (“MSHA”) (hereinafter “MSHA Compl.”).3

 However, 

by letter dated March 19, 2021, MSHA notified Complainant that the Secretary of Labor would 

not be filing a discrimination complaint on her behalf with the Commission, because “[b]ased on 

a review of the information gathered during the investigation, MSHA does not believe that there 

is sufficient evidence to establish, by a preponderance of the evidence, that a violation of Section 

105(c) occurred.” 

Along the lines suggested in MSHA’s March 19th letter, and as discussed in further detail 

below, Complainant filed her own discrimination complaint with the Commission, dated April 

13, 2021. Capurro timely filed its Answer, and on June 7, 2021, Chief Administrative Law Judge 

Glynn F. Voisin assigned me this matter. 

On June 15, 2021, I conducted a conference call with the parties. Among the topics 

discussed was the scope of a Commission discrimination proceeding.4

 I granted Complainant’s 

request that a hearing not be held in the near term, primarily in order to permit her to receive and 

review documents she had requested from MSHA through the Freedom of Information Act 

(“FOIA”).5 I explained to both parties that it was unrealistic to expect that any of the materials 

obtained from MSHA pursuant to a FOIA request would include MSHA’s view on the merits of 

2 The Exit Interview cited a specific example of disruption it attributed to the 

Complainant. According to Capurro, Complainant had recently, in a group text thread, objected 

to a Covid-19 temperature check protocol, which in turn caused “several others to fear 

temperature checks and park several pieces of equipment causing hardship to the employer and 

the employer[’]s inability to perform customer needs.”

3

 The MSHA complaint includes (1) a completed MSHA Form 2000-123 titled, 

“Discrimination Complaint,” and (2) MSHA Form 2000-124 titled, “Discrimination Report,” a 

one-page narrative dated October 13, 2020, describing the basis for the complaint. While her 

MSHA Form 2000-123 stated that she would “possibly” seek temporary reinstatement, 

Complainant later informed MSHA that she was not interested in returning to work for Capurro. 

4

 The initial pleadings in this case, along with the initial conversation with the parties, 

indicated that not only the pro se Complainant, but also Capurro’s able counsel, viewed this 

Commission proceeding as an appeal of the Secretary’s decision not to pursue the case, rather 

than the de novo proceeding contemplated by section 105(c)(3). Such an erroneous impression 

may have resulted from the final instruction in the MSHA form letter concerning the filing of a 

section 105(c)(3) complaint, which refers to any subsequent Commission case as an “appeal 

file.” 

5

 MSHA had indicated that the agency would take approximately three months to fully 

answer the FOIA request. During this time Complainant was expecting to complete her planned 

relocation to a town in Idaho approximately 500 miles from Carlin. 

44 FMSHRC Page 2
the Complainant’s discrimination allegations. However, given the circumstances and that the 

request was from a pro se Complainant, I viewed it as reasonable one and issued a Notice of 

Hearing and Prehearing Order for December 2021. See Ribble v. T & M Dev. Co., 22 FMSHRC 

593, 595 (May 2000) (holding that pro se complainant who met Commission’s minimal section 

105(c)(3) proceeding pleading requirements be afforded opportunity to prove discrimination 

allegations under the Commission’s Procedural rules).6

After both parties conducted discovery, on November 15, 2021, Capurro filed its Motion 

for Summary Decision, along with a five-page Statement of Undisputed Facts, two affidavits, 

and approximately 600 additional pages of exhibits (“Resp’t Ex.”). 

In response, Complainant filed a one-page opposition to Capurro’s Motion, to which she 

appended a two-page “response” to Capurro’s initial Answer. Complainant also submitted 356 

pages of documents she characterized as exhibits (“Walker Ex.”). Many of the documents were 

copies of repetitive instances of the same text conversation, and many documents included 

Complainant’s undated annotations. Also accompanying the exhibits was a four-page “Exhibit 

Form” in which Complainant tersely summarized the documents and her view of their import. 

Because the Complainant is pro se, I have liberally construed Commission Rule 67(d), 29 C.F.R. 

§ 2700.67(d), which governs the form of opposition to motions for summary decision. 

 With the prospect of a hearing that could only be held via Zoom video conferencing,7

 I 

held a Zoom session with the parties on December 9, 2021. The purpose of the session was to 

explore their respective abilities to conduct a full video conference hearing, as well as to discuss 

the issues in the case, including those raised by a voluminous summary decision record. 

At that time, Complainant requested a continuance to the hearing so that she could 

continue with what she represented were ongoing conversations with experienced Mine Act 

counsel regarding his serving as her attorney in the case. I granted the continuance request, 

indicating that I had not yet decided how I would rule on the Motion for Summary Decision, but 

would do so in a written order or decision before ordering further proceedings in the case, if any. 

I also suggested that Complainant respond in good faith to Capurro’s outstanding offer to discuss 

6

 In the interim, Commission staff attempted to cure the absence in her section 105(c)(3) 

Complaint of the relief that Complainant was seeking. See Commission Procedural Rule 42, 29 

C.F.R. § 2700.42 (“A discrimination complaint shall include . . . a statement of the relief 

requested.”). By e-mail dated September 20, 2021, Complainant responded she was seeking 

$5,000,000. She also indicated her desire that the case result in Capurro firing or otherwise 

disciplining various members of its Mining Division management. 

Complainant was thereupon informed that such requests far exceeded any remedy 

conceivably permitted by section 105(c). See Sec’y on behalf of Rieke v. Akzo Nobel Salt, Inc., 

19 FMSHRC 1254, 1257-60 (July 1997) (discussing that goal of Mine Act is to make 

discriminatees whole). In the absence of a serious response from Complainant, I am assuming 

that her statement to MSHA during its investigation that she was seeking backpay, but not 

reinstatement, extends to her case before the Commission. 

7

 The Commission was not holding in-person hearings through 2021 due to the changing 

circumstances regarding Covid-19. 

44 FMSHRC Page 3
potential settlement, informing the parties, as I had before, that the Commission could assist 

these discussions by appointing settlement counsel in the case. 

A month later, Complainant has yet to provide a definitive answer on whether she will be 

retaining the counsel she referenced at the conference (or any other), and recent indications are 

she is not interested in participating in settlement discussions. Consequently, due process and 

fairness considerations require that I rule upon Capurro’s Motion for Summary Decision now. 

II. SUMMARY OF APPLICABLE LAW

A. Establishing Discrimination Under the Mine Act

The pertinent provision of the Mine Act, section 105(c)(1), provides that “No person

shall discharge or in any manner discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the exercise of the statutory rights of any miner 

. . . in any coal or other mine subject to this Act because such miner, . . . has filed or made a 

complaint under or related to this Act, including a complaint notifying the operator or the 

operator’s agent . . . of an alleged danger or safety or health violation in a coal or other mine.” 30 

U.S.C. § 815(c)(1). In cases such as this one, that are potentially reviewable by the United States 

Court of Appeals for the Ninth Circuit under section 106(a)(1) of the Mine Act, 30 U.S.C. § 

816(a)(1), the key term in section 105(c)(1) is “because.” A discrimination complainant must 

show that (1) she engaged in what is known as “protected activity” (i.e., “the exercise of 

statutory rights”); and (2) that the adverse action complained (here the Complainant’s 

termination) was “because” of that protected activity. In other words, at least in cases ultimately 

subject to Ninth Circuit review, a Complainant must show that her employer would not have 

taken the adverse action against her “but for” the protected activity she engaged in. Thomas v. 

CalPortland Co., 993 F.3d 1204, 1210 (9th Cir. 2021) (remanding 105(c)(3) case for 

Commission to apply “but-for standard”); Docket No. WEST 2018-0402 (Dec. 2, 2020), at 11 

(ALJ) (decision on remand applying but-for standard), pet. for rev. filed Dec. 29, 2021; see also 

Sec’y on behalf of Alvaro v. Grimes Rock, Inc., 43 FMSHRC 299, 302-03 (June 2021). 

The question of whether an employer would not have taken an adverse action “but for” a 

complainant’s protected activity is one of motivation. Motivation can be established either 

directly or indirectly, through circumstantial evidence. Relevant considerations in determining 

motivation are the employer’s knowledge of the protected activity, its hostility towards the 

protected activity, the coincidence in time between the protected activity and the adverse action, 

and disparate treatment of the complainant. See Sec’y on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)), rev’d on other grounds, 709 F.2d 954 (D.C. Cir. 

1983). 

B. Summary Decision Standard

Commission Procedural Rule 67(b) provides that a motion for summary decision shall be

granted only if “the entire record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as to any 

material fact; and (2) [t]hat the moving party is entitled to summary decision as a matter of law.” 

44 FMSHRC Page 4
29 C.F.R. § 2700.67(b). The Commission analogizes summary decision to Rule 56 of the Federal 

Rules of Civil Procedure governing summary judgment. Lakeview Rock Prods., Inc., 33 

FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as the Commission 

observes, determined that summary judgment is only appropriate “upon proper showings of the 

lack of a genuine, triable issue of material fact.” Id. at 2987-88 (citing Celotex Corp. v. Catrett, 

477 U.S. 317, 327 (1986)). 

 

The Supreme Court has also held that both the record and “inferences drawn from the 

underlying facts” must be viewed in the light most favorable to the party opposing the motion. 

Id. at 2988 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). However, only 

such inferences that are “reasonable” may be drawn. Reeves v. Sanderson Plumbing Prod., 530 

U.S. 133, 150 (2000); Tolan v. Cotton, 572 U.S. 650, 660 (2014). Consequently, in ruling upon 

motions for summary judgment, courts have refused to indulge inferences from non-movants that 

are “farfetched or fantastic” (Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. 

Winship Green Nursing Ctr., 103 F.3d 196, 206 (1st Cir. 1996)), that do not that do not follow 

rationally from facts presented to the judge (Iglesias v. Mutual Life Ins. Co. of New York, 156 

F.3d 237, 240 (1st Cir. 1998)), or that require the court to “accept . . . sheer speculation as fact.” 

Robbins v. Becker, 794 F.3d 988, 997 (8th Cir. 2015). In short, a non-moving party “cannot rely 

on conclusory allegations, improbable inferences, acrimonious invective, or rank speculation.” 

Thompson v. Gold Medal Bakery, Inc., 989 F.3d 135, 141 (1st Cir. 2021). 

III. DISCUSSION AND ANALYSIS 

In its Motion for Summary Decision, Capurro argues that Complainant has not alleged, 

much less provided any evidence, that she engaged in activity protected by the Mine Act. Resp’t 

Mot. at 11-13. Capurro maintains that the scope of any discrimination complaint before the 

Commission is strictly circumscribed by matters raised in the initial complaint to MSHA, 

because only those matters could have been investigated by that agency. Id. at 16. Capurro 

further argues that the evidence it submitted establishes beyond any doubt that Complainant was 

terminated for cause, and thus, under the “but for” section 105(c) test for discrimination, its 

Motion should be granted. Id. at 13-15. 

In opposing the motion, Complainant argues that Capurro still fails to sufficiently 

document why it terminated her. She further contends that Capurro did not address her section 

105(c) complaints and that the “constant absences” of Capurro Mining Division General 

Manager David Peck “left unknowledgeable and untrained . . . managers/supervisors in his 

stead.” 

A. The Permissible Scope of a Section 105(c)(3) Complaint 

 

I first address Capurro’s arguments on the scope of the section 105(c)(3) complaint that 

the Commission can entertain in this case. In Hatfield v. Colquest Energy, Inc., the Commission 

held that the scope of a section 105(c)(3) proceeding is not defined solely by the original 

complaint to MSHA but can also include additional matters that were “reported to” MSHA for 

investigation. 13 FMSHRC 544, 546 (Apr. 1991). A section 105(c) proceeding is not strictly 

circumscribed by the original complaint to MSHA if, during MSHA’s subsequent investigation, 

additional information relevant to the question of whether discrimination occurred is uncovered. 

44 FMSHRC Page 5
Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1322-26 (June 2016) (detailing MSHA 

investigatory process in discrimination cases). 

The MSHA investigatory process can hardly be described as transparent when the 

Secretary declines to file a discrimination complaint with the Commission. Hence why it is 

difficult for a section 105(c)(3) complainant, especially a pro se one, to establish the actual 

extent of matters that MSHA investigated. Here, however, there is no question regarding what 

matters Complainant “reported to” MSHA during its investigation, and thus provided the agency 

the opportunity to investigate. 

That is because Complainant appended to her Commission Complaint not only the 

required original discrimination complaint to MSHA and the Capurro Exit Interview previously 

discussed, but also copies of two other documents detailing the information she provided to 

MSHA in support of her initial complaint. The first is a six-page document containing answers 

the Complainant appears to have provided to various MSHA questions on October 29, 2020 

(hereinafter “Questionnaire”). The second is a more formal document, the signed “Statement of 

Maria Walker” that Complainant gave to MSHA Special Investigator Kyle E. Jackson on 

November 17, 2020 (hereinafter “Complainant Statement”). 

Consequently, in ruling upon the Motion for Summary Decision, I will review the 

allegations in the Complaint to the Commission to the extent that they were reported to MSHA in 

the Complaint to MSHA, the Questionnaire, or the Complainant Statement. I will not address the 

additional allegations Complainant made to MSHA in the latter two documents that she did not 

include in either of her complaints. See Carmichael v. Jim Walters Res., Inc., 20 FMSHRC 479, 

484 n.9 (May 1998) (“Whatever its value as evidence, the [section 105(c)(3)] complaint to the 

Commission, much like a complaint in a court proceeding, is a basic pleading that serves to 

frame the issues to be tried.”). Such review will be conducted in accordance with the standard for 

summary decision. 

B. Whether the Section 105(c)(3) Complaint Includes Allegations of Protected Activity

Raised in the Complaint to MSHA or the Subsequent Investigation

Much of the Complaint to the Commission is a compendium of accusations against 

Capurro, many of which are quite serious. For instance, as she had to MSHA, Complainant 

alleges criminal conduct on the part of Capurro and its agents. Included are allegations of “fraud” 

carried out by Capurro’s agents, “payoffs of mine employees,” and theft from the company. 

While Complainant identifies those she accuses by name, most of those names will not be 

repeated here, given the Complainant’s tendency to cavalierly allege criminal conduct, not only 

by individuals within Capurro’s Mining Division management but outside of it as well.8 With the 

exception of one serious accusation, none of the claims will be addressed in this decision 

because, even if true (which the record indicates there is much reason to doubt), they have 

8

 In responding to the Motion for Summary Decision, Complainant included a copy of 

her letter to the superior of a Nevada Highway Patrol Commercial Enforcement Officer, in which 

she accused the officer of having accepted a bribe from Capurro. Dated October 19, 2021, the 

letter appears to have been prompted by information Complainant would have then recently 

learned through the discovery process in this case. See Walker Ex. WV-1(a) & (b). 

44 FMSHRC Page 6
nothing to do with workplace safety. Rather they only concern how Capurro carried out other 

aspects of its business operations.9

The Complainant maintains that the reason she was terminated was not related to how she 

carried out her job duties, but rather because she knew “too much” regarding the criminal 

conduct at Capurro. 105(c)(3) Compl. at 1. According to the Complainant, she posed a risk to the 

company’s management personnel, in that she could inform Capurro’s owner in Reno “of all the 

going-on’s” at the Carlin location. The Complainant further alleges that because she knew “too 

much,” she was treated differently from other drivers by management with respect to 

enforcement of company rules. Her ultimate request is that, before the Commission, she be 

permitted to “challenge Capurro, in which to produce true and correct documentation against 

their falsified and sparse history” of her employment there. Id. at 2. 

At bottom, Complainant’s case revolves around allegations of disparate treatment of her 

by management. Of course, a Mine Act discrimination case based on disparate treatment must 

contain some plausible allegation that a miner had engaged in protected activity and was 

subsequently treated differently than employees who had not engaged in protected activity. See, 

e.g., Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1364-67 (Dec. 2000).

Keeping in mind that Complainant is pro se, I have thoroughly reviewed her Complaint 

to the Commission, as supported by her original Complaint to MSHA and the additional MSHA 

investigation documents she included, to discern any recognizable allegation of protected activity 

under the Mine Act that may have motivated Capurro to terminate Complainant’s employment. 

My conclusions are as follows: 

1. “Stop work” Incident

The closest mention of protected activity in the Complaint to the Commission is what led 

to what Complainant refers as the “stop work” incident. 105(c)(3) Compl. at 2. Capurro 

described the incident as a “disruption of [the] work force” and included it as a reason for 

Complainant’s termination. 

According to the information Complainant provided to MSHA, on August 3, 2020, she 

and other drivers on her shift learned that due to a mine’s Covid-19 concerns, driver compliance 

with masking and temperature checks were now conditions of truck entry through the mine’s 

gate. MSHA Compl. at 2; see also Walker Ex. WI-6 (L). It is undisputed that the new 

9

 The section 105(c)(3) Complaint also included absurdly false information. It stated that 

“[m]y Exit interview did not even specify what I was being fired for.” As discussed, the Capurro 

Exit Interview sheet clearly and succinctly provided the reasons Capurro gave Complainant for 

her termination, doing so under the heading “Reason for Termination.” Complainant not only 

attached this to her Complaint to the Commission, but her very first exhibit submitted is a copy 

of the Exit Interview (which also indicates that she refused to sign it). Walker Ex. WI-1. 

44 FMSHRC Page 7
requirements were the subject of a driver group text involving the Complainant, and she and 

several other drivers subsequently parked their trucks.10

While the Mine Act grants miners the right to complain of a safety, health, or danger 

violation, it does not expressly state that miners have the right to refuse to work under such 

circumstances. Nevertheless, both the Commission and the courts have recognized the right to 

refuse to work in the face of such perceived danger. See Dolan v. F & E Erection Co., 22 

FMSHRC 171, 177 (Feb. 2000) (citing Price v. Montery Coal Co., 12 FMSHRC 1505, 1514 

(Aug. 1990); Sec’y of Labor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 520 

(Mar. 1984)). To be considered “protected,” work refusals must be based upon a “good faith, 

reasonable belief in a hazardous condition.” Sec’y of Labor on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803, 812 (Apr. 1981); accord Gilbert v. FMSHRC, 866 F.2d 1433, 

1439 (D.C. Cir. 1989). Consistent with the requirement that the complainant establish a good 

faith, reasonable belief in a hazard, “a miner refusing work should ordinarily communicate, or at 

least attempt to communicate, to some representative of the operator his belief in the safety or 

health hazard at issue.” Sec’y of Labor on behalf of Dunmire v. N. Coal Co., 4 FMSHRC 126, 

133 (Feb. 1982). 

In this instance, Complainant has not alleged that the work stoppage arose from concerns 

regarding potential adverse health or safety impacts associated with the new mine site 

requirements. Rather, she stated that the basis for her and other drivers’ objections was that the 

policy was understood to have been newly instituted during that shift, and that it was contrary to 

the policy that previously applied to drivers who would not be exiting their trucks while at the 

mine. In bringing her complaint to MSHA regarding this incident, Complainant never alleged 

that concern with health or safety impacts prompted her involvement in it. Rather, her concern 

was solely regarding how the issue was handled internally by Capurro. See MSHA Compl. at 2 

(“As it turns out, [Capurro’s] acting supervisor was wrong [about the new mine policy] and the 

whole incident was a waste of time, energy and emotion by her lack of due diligence. . . [O]ur 

Supervisor then got involved when the issue became too big for our acting supervisor . . . .”11 

In responding to Capurro’s Motion, Complainant provides contemporaneous evidence, in 

the form of copies of her own texts with General Manager of Mining Division Peck. The texts 

further establish that she was not objecting to compliance with the mine’s new masking and 

temperature check requirement on safety or health grounds. See Walker Ex. WI-6 (c) (“I’m 

trying to work within the rules but don’t [think?] that that was cool to spring [on] us. Was there 

not a meeting?”); Walker Ex. WI-6 (h) (“Did you guys have a meeting on this with the mine? 

Feels really weird we were informed on the road like that[.]”). 

10 Contrary to the section 105(c)(3) Complaint, the Exit Interview does not state that the 

Complainant initiated the work stoppage by being the first to park her truck. Rather, the Exit 

Interview merely states that after the Complainant stated in the group text her refusal to comply 

with the temperature check, several other drivers also parked their equipment. 

11 The MSHA Complaint goes on to allude to Complainant having, on more than one 

occasion, “issues with ‘Fill-in’ supervisors, as my boss was gone on many personal trips.” There 

is no mention of protected activity having prompted any of the “issues.” 

44 FMSHRC Page 8
Thus, there is no claim by Complainant that any disparate treatment of her with respect to 

the August 3rd incident is connected to any activity protected by the Mine Act in which she 

alleges to have engaged. Instead, this incident is more in line with what appears to be her myriad 

other general complaints regarding how Capurro Mining Division management carried out dayto-day operations.12

Complainant’s issues with masks extend beyond requirements imposed by the mine, to 

also include how Capurro carried out its own masking policy. Again, however, Complainant’s 

issue was not that wearing masks posed any sort of health or safety hazard, either in general or 

while carrying out her duties. Rather, her objection was that the policy was inconsistently 

enforced. Walker Ex. WI-6 (x); (a-1). Complainant pointed to when she was asked to wear a 

mask by management while indoors, and although she proceeded to go outside instead of putting 

a mask on, management still requested that she put one on. MSHA Compl. at 2 (“made to put on 

a mas[k]outside just so my safety director could see me, ‘Wear one for a few seconds’”); Walker 

Ex. WI-6 (t). When describing this incident, the Complainant provided no indication that this 

request impacted her medically, but rather just that she was asked to do so – again, aligning more 

with a general grievance. 

Moreover, Complainant’s issues with masks appear to stem from her personal views, as 

she states in texts with management, that she is an employee who is against masks. Ex. WI-6 (o). 

While Complainant indicated in texts with management that she could wear a mask while 

working, she also communicated during the same text exchange that she and her husband will 

“stand true to beliefs” and “will not bow to our generation of sheeples[s]” if they are asked to 

wear a mask in a situation that can be “worked around.” Walker Ex. WI-6 (R). 

2. Speeding Infractions 

Complainant also alleges that Capurro treated her differently than other drivers, including 

her own husband, with respect to discipline for violating Capurro’s speeding policies. 105(c)(3) 

Compl. at 2. As background, in her Complaint to MSHA, Complainant stated that she “spent 

many days off for speeding and held accountable as I accepted my responsibility for my actions. 

12 Other documents submitted by the Complainant in response to Capurro’s Motion 

indicate that at one time she feared an adverse impact from the use of the specific temperature 

check device being used by the mine. Complainant’s fear, however, had to do with whether she 

would be able to subsequently continue with her side avocation as a “light worker,” not as a 

driver for Capurro. Walker Ex. WI-6 (C), WII-3(k),(l)). Complainant’s documents describe a 

“light worker” as someone who facilitates “quantum healing hypnosis.” Walker Ex. WV-2 (a)-

(h). Even then, as her own documents show, Capurro Trucking management sent her pictures 

and additional information regarding the type of thermometer used for temperature checks and 

allowed the Complainant to take a day off, at her request, while management “figures out 

particulars.” Walker Ex. WI-6 (g)-(j). This appears to have alleviated Complainants’ concern, 

and she did not subsequently raise with MSHA her concern that the temperature check device 

would adversely impact her “light worker” capabilities or that the prospect for its use on her 

prompted her to park her truck. 

44 FMSHRC Page 9
It was later after checking that others also had speeding infractions but were not given days off 

and batches were even thrown in the garbage with no time off.” MSHA Compl. at 2. 

Again, Complainant fails to suggest in either complaint that there was any protected 

activity in which she engaged that may have prompted this alleged disparate treatment. At most, 

during the MSHA investigation Complainant attributed some of the speeding infractions she 

incurred to the lack of a working speedometer in the first truck she was assigned, Truck 29, and 

claims that she had earlier alerted Capurro to that fact. Complainant Statement at 2; 

Questionnaire at 3, 4. Capurro, in its Motion, disputes that Complainant had previously notified 

it as to the condition of the speedometer. Resp’t Mot. at 12-13. This conflict need not be 

resolved, however, because Capurro provided documentary evidence indicating that 

Complainant was assigned Truck 29 only during her first month and was soon assigned other 

trucks to drive for the remaining eight or so months while she drove for Capurro. Resp’t Mot., 

Ex. 10 (timecards) & 12 (truck assignments). Complainant does not dispute this, nor has she 

alleged speedometer problems with those other trucks led to her additional speeding infractions. 

Cf. Metz v. Carmeuse Lime, Inc., 34 FMSHRC 1820, 1825-26 (Aug. 2012) (finding termination 

of complainant two to three weeks after his safety-related complaints indicated employer’s 

discriminatory motivation); Bradley v. Belva Coal Co., 4 FMSHRC 982, 983, 992-93 (June 

1982) (concluding that termination of complainant the same day he had engaged in a protected 

work refusal was indicia of employer’s discriminatory motivation). 

Capurro cited Complainant 21 more times for speeding instances during that period. 

While Complainant took issue with the basis for a few of the later infractions during the MSHA 

investigation (Complainant Statement at 4-5), consistent with her earlier admission that she 

accepted responsibility for her speeding infraction record, she does not dispute that she incurred 

many additional speeding infractions that she did not challenge at the time.13

13 Absent an allegation of protected activity that prompted the Capurro’s alleged disparate 

treatment of the Complainant with respect to speeding infractions, any further conflicts between 

the parties’ accounts on this issue need not be resolved. I note, however, that in its Motion 

Capurro documented that Complainant was not the only driver suspended for speeding 

infractions over the course of her employment. See Resp’t Mot. at 4 & Ex. 5 (showing 

documentation of six other drivers suspended). Complainant herself also provided 

documentation of other drivers receiving suspensions after speeding, contradicting her own 

complaints. Walker Ex. WI-7 (A)-(B), WI-7 (J), (O), (P), and WI-7 (a) 24, 26 (featuring records 

of various other drivers who received one-day and three-day suspensions for speeding). 

Capurro’s documents further contradict Complainant’s claim to MSHA that “[e]very time I was 

written up for speeding, I was given 3 days off.” Questionnaire at 3. Of the 22 times Capurro 

cited the Complainant for speeding, the company’s records show that only six times was she 

disciplined, only twice was she suspended, and only once was she suspended for three days. 

Resp’t Mot. at 6-7 & Resp’t Ex. 5. Thus, there is evidence in the case that Complainant also 

benefitted from any tendency on the part of Capurro to not strictly enforce its disciplinary 

policies with respect to speeding infractions. 

44 FMSHRC Page 10
3. Repair Incident 

In her complaint to MSHA, the Complainant obliquely referred to another incident that 

occurred on March 2, 2020—again relatively early in her tenure at Capurro. She described it as 

her as having been required to wait for truck repairs at a mine site. MSHA Compl. at 2. In her 

statement to MSHA, the Complainant alleged that she “one time red tagged the truck and they 

cut it off and put it back in service.” She subsequently explained, however, that, at that point, the 

truck had already been repaired at the mine, which permitted her to return to the Capurro truck 

shop. It was there that she proceeded to red tag the repaired truck out of an admitted fit of pique, 

stating “I was tired and upset that I was getting told two different things. So that is when I red 

tagged the truck and told them they can figure it out.” Complainant Statement at 3. 

When the MSHA Investigator asked Complainant how her reporting of safety issues led 

to her termination, she responded not with specifics but instead simply claimed that she had 

become a “pain” on reporting to Capurro issues with trucks and safety procedures not being 

followed. Id. at 4. However, text messages between Complainant and Capurro management, 

provided by the Complainant herself, include positive management feedback to Complainant’s 

safety suggestions. Walker Ex. WI-6 (p), (w). 

4. Down Time for Necessary Truck Washing 

Complainant also alleges disparate treatment regarding the discipline she received 

following instances in which she admitted to taking more time than routinely allotted to wash her 

assigned truck. While her Complaint can certainly be read to involve a safety matter (“when it is 

wet and the mag on the mine dries in your sensors, it is like concrete, therefore setting off the 

ABS”), her claim is not that the discipline she received was for taking too long to clean her truck 

to fix the problem. Rather, the discipline was for her not obtaining the required prior approval 

before taking additional time. See MSHA Compl. at 2. Complainant does not dispute that 

Capurro contemplated as a matter of policy that additional truck washing time could be 

necessary. See Resp’t Ex. 8 at MSD0110 (noting the Plan for Improvement states “Be in contact 

with immediate supervisor to inform them of any washing of trucks going longer than 30 

mins.”). Complainant again raises the issue as one in which allegedly similarly-situated drivers 

were not disciplined, but also again without alleging that Capurro’s disparate treatment towards 

her was due to her exercise of protected activity. As with the speeding infractions, Capurro 

documented the imposition of progressive discipline for not obtaining the required prior 

approval, starting with coaching from her supervisor. Id., Ex. 10 at MSD0551, MSD0574, 

MSD0533. 

5. Falsification of Documents 

The final allegation contained in the Complaint to the Commission that bears any 

resemblance to a claim that the Complainant engaged in an exercise of protected activity is her 

contention that she could prove that Capurro had “falsified MSHA documents.” Specifically, she 

stated “[p]lease also be aware that I will also be filing [an] MSHA Hazard complaint that will 

contain actual mine safety documents of falsification by” Capurro’s Mine Division management. 

105(c)(3) Compl. at 1. 

44 FMSHRC Page 11
Complainant did not include this falsification allegation in either her Complaint to 

MSHA or in her formal November 17, 2020 statement to MSHA Special Investigator Jackson. 

However, because it is a serious allegation, I have endeavored to discern from the documents 

provided what the Complainant is referring to, in the context of her relationship with Capurro, 

during the period of her employment and afterwards. 

The Complainant’s only mention of “falsification” involving mine safety documents is in 

her October 29, 2020 answers to questions from MSHA when she stated she was not seeking 

reinstatement because her “safety information had also been altered and signature forged” by 

Capurro. Questionnaire at 2. Complainant clearly did not provide to MSHA during its 

investigation any support for this claim, thus her statement to the Commission almost six months 

later that she “will be filing” an MSHA Hazard Complaint regarding falsification of mine safety 

documents. 

Just as importantly, if not more so, the Complaint to the Commission does not come close 

to alleging that Complainant held this belief regarding falsification, in good faith or otherwise, 

prior to her termination, and that Capurro had any knowledge that Complainant held this view. 

Cf. Pero, 22 FMSHRC at 1364-65 (finding that complainant had engaged in protected activity 

prior to her discharge when she had informed superiors that she believed company was falsifying 

lost-day information on MSHA 7000-1 forms). Absent any claim by Complainant that such was 

the case, her prolonged and mere promise to provide evidence of falsification, now that she no 

longer works for the company, does not qualify as protected activity that could have motivated 

the company to terminate her. 

Accordingly, I grant Capurro’s Motion on the ground that there remains no genuine issue 

of material fact as to whether Complainant engaged in protected activity as alleged in her 

Complaint to the Commission. I thus do not reach Capurro’s alternative ground for summary 

decision, which is that it has established as a matter of law that any protected activity on the part 

of Complainant was not the “but for” cause of her termination. 

CONCLUSION 

For the foregoing reasons Respondent’s Motion for Summary Decision in this proceeding 

is GRANTED and Complainant’s section 105(c)(3) proceeding is DISMISSED. 

/s/ John T. Sullivan 

John T. Sullivan 

Administrative Law Judge 

44 FMSHRC Page 12
Distribution: 

 

Maria T. Walker, 115 Selway Rd., Kooskia, ID 83539 (morton4x4@gmail.com) 

Sarah A. Ferguson, Esq., McDonald Carano, 100 W. Liberty St., 10th Floor, Reno, NV 89501 

(sferguson@mcdonaldcarano.com) 

44 FMSHRC Page 13

ADMINISTRATIVE LAW JUDGE ORDERS
44 FMSHRC Page 14
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

July 14, 2020 

 

ORDER DENYING MOTION TO ENFORCE ORDER

Before: Judge Rae 

 This matter comes before the Court upon the Secretary of Labor’s (“Secretary”) Motion 

to Enforce Order (“Motion”). For the reasons set forth below, the Secretary’s Motion is denied. 

I. BACKGROUND 

On August 20, 2019, I issued an Order Granting Temporary Economic Reinstatement 

(“Order”) ordering Lehigh Cement Company, LLC (“Respondent”) to economically reinstate 

James McGaughran in accordance with all terms set forth in the parties’ Joint Motion to Approve 

Settlement Regarding Temporary Reinstatement.I issued the Order in the temporary 

reinstatement proceeding, Docket No. PENN 2019-0144. Subsequently, I was assigned this 

discrimination proceeding—Docket No. PENN 2020-0015—which concerns the merits of 

McGaughran’s discrimination complaint. I set a hearing date of June 2-4, 2020 for the 

discrimination proceeding. Subsequently, I postponed the hearing until October 27-30, 2020 due 

to COVID-19. 

On May 11, 2020, Respondent filed a Motion for Tolling of Economic Temporary 

Reinstatement. On May 22, 2020, I issued the Order Tolling Temporary Reinstatement under the 

temporary reinstatement docket, Docket No. PENN 2019-0144. The Secretary filed a Petition for 

Discretionary Review of my Order Tolling Temporary Reinstatement, which the Commission 

granted on July 1, 2020. The matter is currently pending before the Commission.

II. DISCUSSION 

The Secretary’s Motion alleges that Respondent is not honoring the Order. Specifically, 

the Secretary alleges that Respondent failed to pay McGaughran the entire amount he is owed 

under Respondent’s Annual Incentive Plan (“Incentive Plan”). The Incentive Plan provides 

Respondent’s eligible employees with “an incentive compensation opportunity for improving

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JAMES MCGAUGHRAN, 

 Complainant, 

 

 v. 

LEHIGH CEMENT COMPANY, LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2020-0015-DM 

 

Mine: Nazareth Plant I 

Mine ID: 36-00190 

44 FMSHRC Page 15
operating performance within their areas of responsibility during the ‘plan year.’” Mot. to 

Enforce Order Ex. 1, at 1. The Secretary seeks an order requiring Respondent to pay 

McGaughran $12,000.00, which the Secretary claims represents the remainder of the Incentive 

Plan payment that Respondent has withheld from McGaughran.1 

Conversely, Respondent claims it is in full compliance with the Order. Respondent 

argues that payments under the Incentive Plan are a discretionary “bonus,” not a “benefit” that 

McGaughran is entitled to under the Order. Resp’t’s Opp’n to Mot. to Enforce Order, at 3-5. 

Although Respondent made a partial Incentive Plan payment to McGaughran, Respondent now 

maintains that the Order does not require Respondent to make any Incentive Plan payment to 

McGaughran. Id. at 6-7. For that reason, Respondent seeks an order requiring McGaughran to 

return the partial Incentive Plan payment to Respondent. 

Ultimately, I cannot resolve the issues raised by the Secretary’s Motion at the present 

time because the Motion is not properly before me and because I lack jurisdiction over the 

temporary reinstatement proceeding. The Secretary filed the instant Motion under the incorrect 

docket. The instant discrimination proceeding solely concerns the merits of McGaughran’s 

discrimination claim, not issues addressing compliance with the Order. Rather, the matter of 

enforcing compliance with the Order would be properly filed under Docket No. PENN 2019-

0144, the temporary reinstatement proceeding. 

However, this Court would lack jurisdiction to address the substance of the Secretary’s 

Motion even if it were filed under the temporary reinstatement docket. Per Commission Rule 

45(e), “[a] Judge’s order temporarily reinstating a miner is not a final decision within the 

meaning of [Section] 2700.69, and[,] except during appellate review of such order by the 

Commission or courts, the Judge shall retain jurisdiction over the temporary reinstatement 

proceeding.” 29 C.F.R. §2700.45(e)(4) (emphasis added); see also BR&D Enters., Inc., 

23 FMSHRC 386, 389 (Apr. 2001). During the Commission’s review of the Order, the Court 

does not retain jurisdiction over the temporary reinstatement proceeding.2

 29 C.F.R. 

§ 2700.45(e)(4). 

1 From 2016 through 2019, Respondent paid McGaughran an incentive payment that 

ranged from 15% to 17% of his annual salary. McGaughran Decl. ¶ 5. The Incentive Payment 

Respondent paid McGaughran in April 2020 represented approximately 7% of his annual salary. 

Id. ¶¶ 6, 7. 

2 Even if I had jurisdiction, I would find that payments under the Incentive Plan are not a 

“benefit” that McGaughran is entitled to under the Order. Payments under the Incentive Plan are 

solely at the discretion of Respondent to award. Further, Section VI.D of the Incentive Plan 

states that “incentive payments . . . shall not be deemed a part of a participant’s regular, recurring 

compensation for purposes of calculating payments or benefits from any Company benefit plan 

or severance program.” Mot. to Enforce Order Ex. 1, at 7. 

44 FMSHRC Page 16
Therefore, I deny the Secretary’s Motion to Enforce Order because the Motion is not 

properly before me and because I lack jurisdiction over the temporary reinstatement proceeding 

pending review by the Commission. 

ORDER 

The Secretary’s Motion to Enforce Order is DENIED. 

/s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

M. del Pilar Castillo, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence 

Mall West, Suite 630E, Philadelphia, PA 19106, Castillo.M.Pilar@dol.gov 

Margaret Lopez, Carin Burford, OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C., 

1909 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com, 

carin.burford@ogletreedeakins.com

44 FMSHRC Page 17
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

TELEPHONE NO.: 202-434-9933 

TELECOPIER NO.: 202-434-9949

July 25, 2020 

ORDER ON RESPONDENT’S MOTION TO COMPEL 

PRODUCTION OF DOCUMENTS 

 Respondent, Yager Materials Corp., through Counsel, filed, on July 21, 2020, a Motion to 

Compel Production of Documents. (“Motion”). The Court held a conference call with the parties 

on July 23, 2020 to discuss the Motion. During that call the also Court issued its rulings on the 

subjects identified in the Motion. This Order memorializes the Court’s rulings. 

 The Motion requested the following documents: Copies of the statement or memorandum 

of interview of any interview of Mr. Whitmore; Copies of the statements or memoranda of 

interviews of any management witness; Copies of all exhibits the Secretary intends to introduce 

at hearing on the Secretary’s Application for Temporary Reinstatement in this matter; Copies of 

any documents Mr. Fugate relied upon in preparing his Declaration. Motion at 2-3.

SECRETARY OF LABOR, U.S. 

DEPARTMENT OF LABOR on behalf of 

WILLIAM R. WHITMORE, 

 Complainant 

 v. 

YAGER MATERIALS CORP., 

 Respondent 

 TEMPORARY REINSTATEMENT 

Docket No. KENT 2020-0116-DM 

Mine: Riverside Stone Mine 

Mine ID: 15-00081 

Docket No. KENT 2020-0117-DM 

Mine: Riverside Stone Mine 

Mine ID: 15-18549 

44 FMSHRC Page 18
 The Secretary responded to the Motion via an email, objecting to it on the basis that it ran 

afoul of several of the Commission’s Procedural Rules, including claims that the response to the 

Motion would not be due until the day of the temporary reinstatement hearing or later and that 

discovery was not expressly contemplated for a hearing on a temporary reinstatement 

application. The full text of the Secretary’s email response is footnoted here.1 

1

 The Secretary’s Attorney stated in his email that he “request[ed] oral argument on this 

matter [asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder: As the 

parties are aware, by Rule, a response to the Respondent’s Motion is not due for eight days from 

service, which would be July 29, 2020, the day of the hearing. 29 C.F.R. 2700.10(d). Any 

discovery served under the Rules would not be due for 25 days from service. 29 C.F.R. 

2700.57(c). If we call what [Respondent’s Attorney] served on July 17, 2020 “Document 

Requests,” the responses from the Secretary would not be due until August 11, 2020. The Rules 

also clearly state that discovery must be completed at least 20 days before a hearing. 29 C.F.R. 

2700.56(e). We are within 20 days of hearing and were when the requests were served. Even [the 

Respondent’s attorney’s] arbitrary deadline of this Friday [July 24, 2020] (after he conceded his 

initial arbitrary deadline of tomorrow) has not passed for the Secretary’s responses. So, to have 

any discussion of what the Rules permit, we must ignore the plain language of the foregoing 

rules, and the deadline that the Respondent, itself, set. The Respondent and the Secretary agree 

on one thing: the Commission Rules do not expressly contemplate discovery commencing after a 

request for a hearing on an Application for Temporary Reinstatement: (d) Initiation of discovery. 

Discovery may be initiated after an answer to a notice of contest, an answer to a petition for 

assessment of penalty, or an answer to a complaint under section 105(c) or 111 of the Act has 

been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R. 2700.56(d). Absent from this list is the request 

for a Temporary Reinstatement hearing. This absence is intentional in light of the unique scope 

of such a hearing and the speed at which it must be completed. If the rules contemplated 

discovery prior to a Temporary Reinstatement hearing, they would necessarily have set forth 

things like the scope of such discovery in light of the limited scope of the hearing, alternate time 

frames for service of requests and responses, and a blanket exemption from Rule 2700.56(e). 

Initial disclosures, rather than discovery, would be more appropriate given the tight deadlines 

between the request for a hearing and the hearing itself, but the Rules contain no such provisions. 

As I explained to [the Respondent’s Attorney]: he wants discovery, the complainant (I am sure) 

wants discovery, and the Secretary wants discovery. Why does the Respondent get discovery and 

not the Secretary or the Complainant? The time frame for a Temporary Reinstatement hearing 

does not allow the parties the opportunity to serve discovery and to lodge good-faith objections 

to such requests. As we have here, we are essentially preparing for the hearing at the same time 

we are having a discovery dispute. If all of the parties, as the Respondent argues, are allow[ed] to 

serve discovery, the week before the hearing will be filled with constant expedited discovery 

battles for which the Rules set forth no time frames. This current issue only came to a head 

because the Secretary’s counsel affirmatively stated that discovery was not permitted. Had the 

undersigned waited until this Friday to do so, the issue would not be before the Tribunal until 

three days before the hearing. Had the Secretary served discovery responses with objections, the 

same problem would have arisen. Finally, since the Rules set forth no limit on discovery for 

[a]Temporary Reinstatement proceeding, who is to decide the scope of what is permissible for 

such requests and how many requests can be served? There is simply no guidance available on 

 (continued...) 

44 FMSHRC Page 19
 At the outset of the July 23, 2020 conference call with the parties to discuss the Motion, 

the Court informed that it considered the Secretary’s Counsel’s procedural objections to have 

been waived by virtue of his email response. 

 The Court’s rulings on the Motion were also informed by the Commission’s procedural 

rules on the subject of Temporary reinstatement Proceedings at 29 CFR 2700.45. It is noted that 

subsection (d) of that section provides that “[t]he scope of a hearing on an application for 

temporary reinstatement is limited to a determination as to whether the miner's complaint was 

frivolously brought. The burden of proof shall be upon the Secretary to establish that the 

complaint was not frivolously brought. In support of his application for temporary 

reinstatement, the Secretary may limit his presentation to the testimony of the 

complainant. The respondent shall have an opportunity to cross-examine any witnesses called 

by the Secretary and may present testimony and documentary evidence in support of its position 

that the complaint was frivolously brought.” Id. (emphasis added). In that regard, the Court 

notes that there is no reference to the MSHA investigator’s declaration. Rather, the focus is upon 

the testimony of the complainant and that the Secretary’s presentation can rely solely upon that.2

1. The Respondent’s request for copies of the statement or memorandum of interview 

of any interview of Mr. Whitmore 

Apart from the Court’s ruling that the Secretary had waived issues regarding the due date 

for a response to the motion, the Court informed the parties that it did not view the Respondent’s 

request for copies of the statement or memorandum of interview of any interview of Mr. 

Whitmore to be properly denominated as “discovery,” at least in the classic sense of that term. 

The Court explained its reasoning for this determination, noting that all the Respondent had, and 

all that the Court had as well, was the Complainant’s signed, but unfairly uninformative May 18, 

2020, “Discrimination Report.” That document contained a typed “Summary of Discriminatory 

Action,” which stated in its entirety the following: 

I was suspended on April 23, 2020, then discharged on April 29, 2020, from my 

job as the Maintenance Manager at Riverside Stone underground and surface 

mines because of numerous protected safety activities that I engaged in. 

Discrimination Report, May 18, 2020. 

1

 (...continued) 

what the permissible scope of discovery is in light of the ‘not frivolously brought’ standard. It is 

inconsistent that a party would be burdened with a broader scope of discovery than its burden of 

proof at an expedited hearing. The Rules contain no guidance on these issues because discovery 

was not completed, and was specifically excluded, for Temporary Reinstatement hearings.” July 

21, 2020 email from the Secretary to the Court. 

2

 As explained infra with regard to the Respondent’s request for copies of the statement 

or memorandum of interview of any interview of Mr. Whitmore, the Court considered the 

Respondent’s discovery request to actually be a request for a complete statement of the 

Complaint from the Complainant Whitmore. 

44 FMSHRC Page 20
The “Discrimination Complaint” document itself was no more enlightening. At its 

heart, it informed of the Complainant’s name, rate of pay, job title and the address of the 

Respondent’s mine and the names of four individuals employed by the Respondent alleged to be 

responsible for the discriminatory action.3 Discrimination Complaint, May 19, 2020. 

Importantly, the Discrimination Complaint added nothing, that is to say it provided no 

additional information whatsoever regarding any particulars about the alleged protective activity. 

It was only through the vehicle of the Secretary’s “Declaration of Freddie Fugate,” 

identified as a “senior special investigator” employed by MSHA, that some particulars about the 

nature of the Complainant’s discrimination complaint were first revealed. Of course, Mr. Fugate 

has no more first-hand knowledge about the Complainant’s allegations than the Court. 

Accordingly, the Fugate Declaration serves as a mere conduit, recounting the allegations 

made by the Complainant and nothing more than that. Thus, the Court does not consider it farfetched to analogize the Fugate Declaration as akin to an individual relating a story over a fence 

to a neighbor. And it is that serious shortcoming that formed the basis of the Court’s problem 

with the inadequacy of the declaration. The story may be an accurate retelling, or it may not, but 

for purposes of defending a discrimination complaint under due process, a respondent has a right 

to more. The Respondent is entitled to the Complainant’s first-hand accounting of the basis for 

his discrimination complaint. Fundamental fairness demands this. See, e.g., Sec. v. Cumberland 

Coal Resources, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the 

“concepts of fundamental fairness [ ] require that every litigant receive adequate notice of 

charges made against it.” Id. at 449. 

Accordingly, during the conference call, the Court ordered that copies of the statement or 

memorandum of interview of any interview of Mr. Whitmore be provided. 

2. Copies of the statements or memoranda of interviews of any management witness 

The Court ruled during the conference call that this request was denied. The basis for that 

ruling was that such statements, if they exist, are not necessary in the context of the Secretary’s 

burden in an application for temporary reinstatement. If the Secretary did intend to introduce 

such documents, the Court’s order for the parties’ prehearing exchange would cover those.4

 As 

an aside, the Court opined that it would be highly unusual for any management witness to have 

made a statement without receiving a copy of it. 

 

3

 Four individuals are named in Complaint itself as those responsible for the 

discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman, but there 

is no information tying those individuals to Whitmore’s Discrimination Report. 

4

 The Court had previously ordered that the parties conduct their prehearing exchange by 

Friday, July 24, 2020. The parties submitted those exchanges pursuant to that order. 

44 FMSHRC Page 21
3. Copies of all exhibits the Secretary intends to introduce at hearing on the 

Secretary’s Application for Temporary Reinstatement in this matter 

This request, as alluded to above, was covered by the Court’s prehearing exchange order. 

4. Copies of any documents Mr. Fugate relied upon in preparing his Declaration. 

As the Court ruled that Mr. Fugate’s declaration could not serve as a substitute for copies 

of the statement or memorandum of interview of any interview of Mr. Whitmore, this request 

was denied. The Court considered that such other documents, if they exist, would more 

appropriately be the subject for possible discovery in a full hearing on the merits in the 

complainant’s discrimination complaint, but not in the context of a temporary reinstatement 

application. It is noted that such a request could run afoul of attorney-client or deliberative 

process claims. 

Accordingly, having ruled on the four aspects of the Respondent’s Motion, this matter 

has been disposed of and will now proceed to the hearing on the application for temporary 

reinstatement set to commence on Wednesday, July 29, 2020 at 9:00 a.m. EDT. 

SO ORDERED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Thomas J. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219 motzny.thomas.j@dol.gov 

Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com 

Wes Addington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858 

wes@aclc.org 

Arthur M. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222 

awolfson@fisherphillips.com

44 FMSHRC Page 22
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202 434-9987 / FAX: 202 434-9949 

January 21, 2022 

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW 

Before: Judge Young 

This matter is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”), pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary filed a Motion to Approve 

Settlement setting forth the factual bases for the proposed modifications. When I disapproved the 

settlement, the Secretary filed amended motions, which I disapproved based on my concerns 

with the removal of a “Significant and Substantial” (“S&S”) designation. 

The Secretary now seeks interlocutory review of this proceeding, pursuant to 

Commission Procedural Rule 76, 29 C.F.R. § 2700.76. I agree with the Secretary that this 

interlocutory ruling involves a controlling question of law, and that immediate review will 

materially advance the final disposition of this proceeding. I certify for review this question: 

whether the Secretary has unreviewable discretion to remove a “Significant and Substantial” 

(“S&S”) designation from a contested citation without the Commission’s approval. 

This case was assigned to me on August 18, 2021. This docket includes three citations 

issued pursuant to Section 104(a) of the Mine Act. The Secretary submitted a motion to approve 

settlement on August 24, 2021, in which the Secretary proposed removing S&S designations 

from two citations: Citation Nos. 9198165 and 9198038. The third citation remained unaltered. 

Additionally, the motion requested a penalty reduction from $7,960.00 to $4,590.00. After 

review and careful consideration, I denied approval of this settlement via email—specifying that 

for Citation Nos. 9198165 and 9198038, I needed clarification of the operator’s arguments in 

support of why the facts and circumstances surrounding the conditions were not reasonably 

likely to contribute to an event with the potential to cause significant injuries. The email 

provided possible resolution—a detailed explanation—rather than Commission review. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

KNIGHT HAWK COAL, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

 Docket No. LAKE 2021-0160 

 A.C. No. 11-03147-536309 

 

 Mine: Prairie Eagle-Underground 

44 FMSHRC Page 23
The Secretary chose to submit subsequent motions to approve settlement on September 3, 

September 13, and September 14, 2021. Although I determined that the amended explanation for 

the removal of the S&S designation from Citation No. 9198165 was satisfactory, I was not 

provided with sufficient factual support to approve such removal from Citation No. 9198038.1 As 

such, my approval of the settlement would unfairly compromise the public interest by conceding 

an important issue without reasonable justification for doing so. Therefore, I issued an order on 

September 30, 2021, denying the motion to approve settlement (“Denial Order”).2 In order to 

resolve the question of law before us, the Secretary submitted a motion for certification on 

November 24, 2021. 

I. The Standard for Approval of Proposed Settlements 

The Secretary relies on the Commission’s decisions in Mechanicsville Concrete, Inc. and 

American Aggregates of Michigan, Inc. as support for his contention that he need only depend on 

his discretion when vacating S&S designations. S. Mot. ¶ 6(C)(2); Am. Aggregates of Mich., 

Inc., 42 FMSHRC 570, 576–79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 

877, 879–89 (June 1996)). However, Mechanicsville and American Aggregates do not confer 

sole discretion upon the Secretary or limit the evaluation of the Commission under section 

110(k) of the Mine Act. The Secretary made a S&S designation and now intends to modify it. He 

cannot rely solely on discretion, but must provide sufficient factual support. See 29 C.F.R. 

§ 2700.31(b)(1) (requiring “facts in support of the penalty agreed to by the parties”); see also 

Am. Coal Co., 38 FMSHRC 1972, 1981 (Aug. 2016) (“AmCoal I”); Black Beauty Coal Co., 34 

FMSHRC 1856, 1856 (Aug. 2012). 

The unreviewable discretion asserted by the Secretary is contrary to the Mine Act’s 

requirement that the Commission approve all settlements. See 29 C.F.R. § 2700.31(g) (“Any 

order by the Judge approving a settlement shall set forth the reasons for approval and shall be 

supported by the record.”). While the Secretary retains prosecutorial discretion at the citation and 

petition stage, Commission Judges have the authority to review proposed compromises. 30 

C.F.R. § 2700.31(b) (“A motion to approve a penalty settlement shall include for each 

violation . . . facts in support of the penalty agreed to by the parties.”) (emphasis added). Rule 31 

enables Judges to review proposed penalties under section 110(k) of the Mine Act, which 

provides, “No proposed penalty which has been contested before the Commission under section 

105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.” 

30 U.S.C. § 820(k). 

The Secretary argued in AmCoal I that enforcement agencies are generally presumed to 

have unreviewable discretion to settle enforcement actions, and that section 110(k) does not 

provide meaningful or substantive standards sufficient to limit the Secretary’s prosecutorial 

discretion as applied to settlement agreements. 38 FMSHRC at 1974–75 (citing as support the 

“Heckler Test” established in Heckler v. Chaney, 470 U.S. 821, 834 (1985)). The Commission 

1 This is a controlling question of law because there is no other defect with the settlement. 

If I am found to be in error, I will approve on remand the motion as submitted to me. Otherwise, 

the case will still be before me subject to further action by the Secretary and Respondent. 

2 I incorporate that order here by reference. 

44 FMSHRC Page 24
has expressly rejected, and the text and structure of the Mine Act refutes, this argument. Id. at 

1979–81. As the Commission held in AmCoal I, Congress charged the Commission with the 

administration of section 110(k), which explicitly grants the Commission the authority to 

approve settlements and limits the Secretary’s authority to reduce contested penalties. As the 

Commission noted, the assessment of civil penalties under the Mine Act has not been committed 

to the Secretary by law, but was instead expressly and clearly delegated to the Commission. Id. 

The Commission has employed a meaningful abuse of discretion standard—discussed in detail 

below—under which the Secretary is required to provide facts in support of settlement. This 

requirement may only be deemed inappropriate if it is unreasonable or inconsistent with the 

Mine Act—and it is not. 

A. The Secretary's cited authority does not confer the discretion asserted. 

The Secretary’s reliance on Mechanicsville is misplaced. Mechanicsville is irrelevant to 

this proceeding because it relies upon the Commission’s decision in RBK Construction, Inc., 

15 FMSHRC 2099, 2101 (Oct. 1993), which in turn relied upon the U.S. Supreme Court’s 

decision in Cuyahoga Valley Railway Co. v. United Transportation Union, 474 U.S. 3, 6–7 

(1985). In contrast to the case at hand, RBK Construction did not involve a settlement, and the 

Court in Cuyahoga Valley grounded its decision on the statutory scheme of the Occupational 

Safety and Health Act, which—unlike section 110(k) of the Mine Act—does not require the 

Occupational Safety and Health Review Commission to approve settlements. 

Even if the cited authority was relevant to a case which has been contested before the 

Commission under section 105(a), an important distinction between this proceeding and 

Mechanicsville renders it inapplicable. The present case involves a proposal to eliminate an S&S 

designation, while the Commission in Mechanicsville held that an ALJ may not add an S&S 

designation on his or her own initiative. Mechanicsville Concrete, Inc., 18 FMSHRC at 880, 882. 

These important distinctions between this case and Mechanicsville render this authority 

irrelevant to this case. 

The Secretary’s reliance on American Aggregates is also misplaced. In this case, the 

Commission vacated a Judge’s decision to deny a settlement motion because the Judge ignored 

information that was relevant to the reasonableness of the settlement under the AmCoal criteria. 

42 FMSHRC at 577, 581. This information included several facts that were relevant to, and 

plausibly supported, a decrease in gravity and negligence, and the removal of the S&S 

designation. The Commission only reversed the Judge’s denial of the settlement, and the 

included removal of the S&S designation, because of the Judge’s failure to consider the 

significant factual support provided. 

B. The Secretary must provide substantive, relevant facts in support of modifying 

violations in a motion to approve settlement. 

The Commission has consistently required its judges to consider facts that are both 

substantive and relevant to proposed modifications before a motion to approve settlement may be 

granted. The facts provided must enable a plausible inference that the violation at issue can be 

justly compromised. In the case at hand, the facts provided must permit an inference that facts 

44 FMSHRC Page 25
might be established at hearing that could result in the violation in question not being affirmed as 

S&S.3 

1. The Commission has consistently required Judges to consider substantive, relevant 

facts in support of settlement. 

No definition of the term “relevant” has been provided by the Commission to date. 

However, Black’s Law Dictionary defines the term “relevant” as “[l]ogically connected and 

tending to prove or disprove a matter in issue; having appreciable probative value — that is, 

rationally tending to persuade people of the probability or possibility of some alleged fact.” See 

Relevant, BLACK’S LAW DICTIONARY (10th ed. 2014). The Federal Rules of Evidence defines 

“relevant” as a contention that “has any tendency to make a fact more or less probable than it 

would be without the evidence and the fact is of consequence in determining the action.” Fed. R. 

Evid. § 401. 

 In Solar Sources Mining, LLC, the Commission approved a denied settlement based on a 

Judge’s failure to consider the facts submitted in support of settlement. 41 FMSHRC 594, 605, 

606 (Sept. 2019). The Commission held that the Judge erred in concluding that the parties 

presented no facts to support settlement, when the parties “actually presented relevant facts,” 

including the non-applicability of the standard. See 41 FMSHRC at 601.4

 

In addition to relevant facts, the Commission has consistently recognized that Judges 

must consider substantive evidence, defined as “[e]vidence offered to help establish a fact at 

issue,” in order to approve or deny settlement motions. Substantive Evidence, BLACK’S LAW 

DICTIONARY (10th ed. 2014). In AmCoal I, the Commission rejected the Secretary’s “boilerplate 

referencing” of “professional judgment” and enforcement value “in lieu of the substantive factual 

support traditionally provided to justify a penalty reduction.” AmCoal I, 38 FMSHRC at 1973–

74. Another Am. Coal Co. case was denied settlement by a split Commission because of a lack of 

facts, and was approved by the disapproving Commissioners only upon submission of additional 

facts. See 40 FMSHRC 765, 766 n.1 (June 2018); Am. Joint Mot. Approve Settlement 

Agreement, Docket No. LAKE 2009-0035, at 8–10 (May 18, 2018). 

The Commission discussed the proper substantive evidence requirement for modifying 

individual citations in Hopedale Mining, 42 FMSHRC 589 (Aug. 2020). In Hopedale, the 

Commission held that a Judge’s denial of a settlement constitutes an abuse of discretion when 

the agreed-upon facts supplied by the parties satisfy the standard for approval established in 

AmCoal I. Although judges need not engage in fact-finding, weighing conflicting evidence, or 

making credibility determinations, the majority stressed that this holding does not restrict judges 

by limiting their ability to “probe gaps or inconsistencies in the explanation offered in support of 

3 I note that I have not found, and do not find, that the violation must be affirmed as S&S. 

Nor have I required the Secretary to establish that it is not. I merely note that the limited facts the 

parties have chosen to provide would preclude a non-S&S finding for this violation. 

4 Commissioners Jordan and Traynor dissented, arguing that the parties failed to meet the 

AmCoal standards because the motion contained insufficient factual support. See Id. at 607 

(Jordan, Traynor, dissenting).

44 FMSHRC Page 26
a settlement motion.” Id. at 595; see also Solar Sources Mining LLC, 41 FMSHRC at 602 

(stating that Judges are “expected to . . . determine whether the facts support the penalty agreed 

to by the parties”). 

The Commission determined that the provided facts in Hopedale supported the penalty 

reduction agreed to in the settlement, and that “[t]he rejection in this case was contrary to 

stipulated facts, mischaracterized the operator’s compliance history, and failed to give weight to 

the considerable non-monetary value preserved by the settlement.” Id. at 602. For citations where 

the Secretary proposed a reduction in negligence, he provided respondent contentions 

demonstrating that the “violative conditions were not obvious or readily known to the operator.” 

Id. at 598. For other violations challenging gravity, the Secretary provided contentions showing 

possible compliance (i.e., no violation) or the reduced likelihood of hazard because the 

equipment was found to be functioning better than noted. Id. at 597–98. These facts were all 

substantive because they were offered to dispute a fact at issue. These substantive facts, as 

described, were also relevant to the individual modifications proposed, a principle that should 

also apply to the removal of S&S designations. This case thus differs from Hopedale Mining, in 

that it does not involve the rejection of substantive, relevant facts. Rather, the parties have not 

provided me with sufficient facts to serve as the basis for an evaluation under AmCoal I.

5 

2. The Secretary misreads the cited authorities. 

a. Although the Secretary cites Am. Coal Co., this case requires the submission of 

relevant facts. 

The Secretary states in the Motion to Approve Settlement that he “has considered the 

deterrent value of the penalty and obtaining a final resolution to this matter.” As support for this 

statement, the Secretary cites the following excerpt: 

The Amended [motion] provides substantive explanations supporting the 

Secretary’s decision to compromise the issues of one violation at issue . . . . In 

5

 Though the Commission found that the facts provided in Hopedale Mining were 

substantive and relevant to either gravity or negligence modifications, two Commissioners 

thought even these facts were insufficient to support the modifications. See 42 FMSHRC at 608–

09 (Commissioners Jordan and Traynor, arguing in dissent that settlements must provide 

substantive explanations). The dissenting Commissioners asserted that “[t]he Congressional 

transparency mandate has always meant that the Judge’s decision must include a substantive 

explanation as to how the penalty reduction submitted for approval is (or is not) warranted by the 

facts and legal contentions the parties claim as support for their motion.” Id. (citing Co-Op 

Mining Co., 2 FMSHRC 3475, 3475, 3476 (Dec. 1980) (vacating a settlement with finding of 

violation where the stipulations demonstrate that a violation did not actually occur)). My 

decision is consistent with both the majority and the dissent in Hopedale and the decision in CoOp Mining. All of the opinions rely on the same legal principles requiring settlement decisions to 

be consistent with the facts provided, but the dissent in Hopedale disagreed that the required 

quantum of substantive evidence had been met. 

44 FMSHRC Page 27
addition, the Secretary has set forth reasons why it would not be in the public 

interest to litigate certain legal issues in the context of this case. Moreover, the 

amended motion explains that the operator’s mines have closed since the citations 

issued, reducing the deterrent value of the penalty. Commissioners Jordan and 

Cohen note that these justifications were absent in the initial settlement motion. 

Upon review of the amended motion, Commissioners Jordan and Cohen agree to 

grant the motion and approve the settlement. 

Am. Coal Co., 40 FMSHRC at 766 n.1 (emphasis added). 

The Secretary asserts that it is sufficient for him to “consider the deterrent value” of the 

penalty. This assertion is based on only a partial understanding of the cited authority. In citing 

this footnote as support, the Secretary ignores the facts of the case. Importantly, the settlement at 

issue was only granted following the submission of additional facts. Id. at 766. After AmCoal 

appealed a remanded decision, the parties submitted a motion to approve settlement that was 

denied by the Commission in a 2-2 split. 

As support for their denial, Commissioners Jordan and Cohen set forth reasons why 

approval would not be in the public interest, including their concerns that (1) it was unclear what 

AmCoal had agreed to give in exchange for settlement, (2) the Commission did not remand for a 

gravity reduction where the trier of fact already made a gravity determination, and (3) the 

settlement was one-sided and did not help with enforcement of the Mine Act. Am. Coal Co., 

40 FMSHRC 330, 337–39 (Mar. 2018). 

Commissioners Jordan and Cohen joined in approving settlement after the parties 

submitted an amended motion that included additional factual support. Amended Joint Motion to 

Approve Settlement Agreement, Docket No. LAKE 2009-0035, at 8 (May 18, 2018). 

The amended motion included at least three additional substantive facts that were directly 

relevant to the proposed modification, including acknowledgement that the operator’s mines had 

since closed. Am. Coal Co., 40 FMSHRC at 766 n.1. This decision, and the footnote cited by the 

Secretary, do not support the contention that the Secretary need only consider the deterrent value 

of a penalty in obtaining a final resolution. The outcome of this case clearly depended on the 

submission of substantive, relevant facts. This is the standard I have followed in rejecting the 

settlement. 

b. AmCoal II also requires the submission of substantive facts. 

The Secretary states that he has evaluated enforcement values and maximized his 

prosecutorial impact, citing page 989 of AmCoal II. The cited authority requires that the facts 

provided “reflect a mutual position that the parties have agreed is acceptable to them in lieu of 

the hearing process.” Am. Coal Co., 40 FMSHRC 983, 991 (Aug. 2018) (“AmCoal II”). The 

Secretary uses this language to make the overbroad assertion that he need only state that the 

parties are in agreement without submitting adequate support. However, the Commission has 

consistently required that the Secretary provide substantive facts, relevant to the proposed 

modifications.

44 FMSHRC Page 28
The standard for Commission evaluation is whether the proposed settlement is “fair, 

reasonable, appropriate under the facts, and protects the public interest.” AmCoal II, 40 

FMSHRC at 987.6

 The Commission found that in order to effectively apply this standard, 

Commission Judges must be provided with “sufficient information” upon which to base their 

evaluation. Id. (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)). 

Specifically, the Commission found that the Judge required substantive facts to support proposed 

penalty reductions. Id. at 989 (“[T]he Judge appropriately determined that the submission of 

additional substantive facts to support the proposed penalty reductions was necessary . . . .”) 

(emphasis added). 

Similar to the AmCoal case noted above, see supra Section I.B.2.a., the settlement motion 

approved by the Commission depended on the submission of new facts that were substantial and 

relevant to the modifications—primarily that the mine ceased production two years prior, and 

that the respondent’s other mine also ceased production, facts that proved a reduced enforcement 

value. Am. Coal Co., 40 FMSHRC 1380, 1388 (Sept. 2018) (ALJ); Joint Mot. Approve 

Settlement & Dismiss Proc., Docket No. LAKE 2011-0013, at 2 (Sept. 7, 2018). 

In this case, the Secretary denies that he must provide substantive, relevant facts in 

support of settlement. AmCoal II does not support this claim. The Commission requires 

sufficient facts—including nonmonetary assessments regarding enforcement value—upon which 

Judges can make an appropriate finding. AmCoal II, 40 FMSHRC at 991 (“[F]acts required by 

Rule 31 may include a description of an issue on which the parties have agreed to disagree.”). In 

the present case, the Secretary has failed to provide any detailed explanation of how the 

enforcement value of the violation will be maintained. 

II. The facts provided by the Secretary do not justify removal of the S&S designation. 

A. The Commission utilizes an abuse of discretion standard to evaluate the Secretary’s 

enforcement decisions. 

Rule 31 requires that a settlement motion include facts in support of the penalty agreed to 

for “each violation,” and that a Judge’s order set forth reasons for approval and be supported by 

the record. 29 C.F.R. § 2700.31(b), (g). The abuse of discretion standard requires the Secretary to 

provide relevant facts from which a Commission Judge may understand the reasonable 

conclusions drawn in support of his decision. See Prairie State Generating Co., 792 F.3d 82, 92 

(D.C. Cir. 2015); Knight Hawk Coal, LLC, 42 FMSHRC 435, 445–46 (July 2020). 

The Commission has established that denial or reversal is justified in cases where there is 

no evidence to support the Secretary’s decision. See Solar Sources Mining, LLC, 41 FMSHRC at 

599 (citing Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (“An abuse 

of discretion may be found where there is no evidence to support the Judge’s decision or if the 

6

 While this is a “four factor” analysis, as a practical matter, there is often considerable 

overlap between the factors. Thus, a proposed settlement may not be “fair” because it is 

insufficiently protective of the public interest, or it may not be “reasonable” because it is 

inappropriate to the facts provided in support of the settlement. 

44 FMSHRC Page 29
decision is based on an improper understanding of the law”)); see also Twentymile Coal Co., 27 

FMSHRC 260, 278 (Mar. 2005) (Jordan, dissenting) (quoting Mingo Logan Coal Co., 

19 FMSHRC 246, 249–50 n.5 (Feb. 1997), aff’d, 133 F.3d 916 (4th Cir. 1998)). 

On review, the D.C. Circuit Court of Appeals has noted that the Commission’s ALJs 

determine, in the first instance, whether the Secretary has been arbitrary and capricious, abusing 

his discretion in his decision, and that the Commission’s standard of review is whether 

substantial evidence supports the Judge’s determination. See Sec’y of Lab. v. Knight Hawk Coal, 

LLC, 991 F.3d 1297, 1308 (D.C. Cir. 2021) (citing 30 U.S.C. § 823(d)(2)). Under the arbitrary 

and capricious standard, the Secretary must “articulate a satisfactory explanation for its action 

including a ‘rational connection between the facts found and the choice made.’” Id. at 1307 

(quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))). 

This standard is deferential to the Secretary, but its grace is not unlimited. In particular, 

the law—statutory law, Court and Commission precedents, and the Commission’s procedural 

rules—clearly establishes a requirement that the Secretary’s decisions be consistent with the 

reasoning and assumed facts provided with a motion to approve settlement. 

Congressional intent, as well as Commission and court precedent, compels a meaningful 

review of all settlements submitted for approval. Section 110(k) of the Mine Act serves to 

maintain the deterrent effect of violations and penalties, in part by preventing the Secretary from 

abusing his authority to settle such violations without appropriate justification. See AmCoal I, 38 

FMSHRC at 1976 (citing S. Rep. No. 95-181, at 44, reprinted in Senate Subcommittee on Labor, 

Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 632–33 (1978)) (“Congress explained that ‘[b]y imposing [the] 

requirements’ of section 110(k), it ‘intend[ed] to assure that the abuses involved in the 

unwarranted lowering of penalties as a result of the off-the-record negotiations are avoided.”). 

The Commission has acknowledged the importance of section 110(k) in preventing 

abuse, and it possesses the authority to deny the Secretary’s decisions when appropriate. This 

includes when the Secretary declines to provide an explanation for a settlement decision, or 

when the facts provided by the Secretary do not reasonably support a settlement decision. See 

Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012) (authorizing the Commission to 

approve the settlement of contested penalties in section 110(k) “[i]n order to ensure penalties 

serve as an effective enforcement tool, prevent abuse, and preserve the public interest.”) 

Thus, under the governing law, I—as well as the Secretary—must make a rational 

decision governed by the operative facts and the law as it has been interpreted. I would abuse my 

discretion if I approved a settlement that is inconsistent with the facts provided. I have declined 

to do so. 

B. Judges must have sufficient facts from which to plausibly infer that the violation would 

not meet S&S requirements. 

44 FMSHRC Page 30
The abuse of discretion standard requires judges to consider sufficient facts, taken as true, 

from which they may plausibly infer that proposed modifications are reasonable. Although the 

term “plausible” has not yet been defined by the Commission (and has in fact caused confusion 

amongst judges and scholars alike), the plausibility standard is evident in Commission precedent. 

The Commission has consistently required consideration of facts relevant to proposed 

modifications. See Knight Hawk Coal, LLC, 42 FMSHRC at 446 n.22 (requiring “some 

plausible—i.e., not speculative or preconceived—factual basis.”). 

In Knight Hawk Coal, LLC, the Commission affirmed a Judge’s decision to vacate the 

Secretary’s rejection of a ventilation plan because substantial evidence existed in support of the 

Judge’s conclusion that the plan was acceptable. 42 FMSHRC at 452. The Commission applied a 

plausibility standard, agreeing that the Secretary had failed to articulate reasons, “rationally 

supported by the facts,” that the ventilation approach did not protect miners. Id. The Commission 

could not condone rejection of a long-used plan based upon an “implausible belief” that harmful 

conditions might arise from the plan. Id. at 446 n.22 (describing such “implausible belief” as an 

“irrational belief not grounded on the record evidence”). 

The Commission articulated that the minimum standard requires “some plausible—i.e., 

not speculative or preconceived—factual basis for rejecting an operator’s claim.” Id. (“Requiring 

the Secretary to show his work in this regard is hardly a ‘new’ requirement. Rather, it reflects his 

fundamental duty under the Act to defend his choices as ‘reasonable,’ at a minimum.”). This 

should be no different from requiring the Secretary to provide facts in support of a proposed 

settlement—i.e., “show[ing] his work”—to support a Judge’s 110(k) review. 

This standard is also supported by the Commission’s requirement to be guided, when 

practicable, by the Federal Rules of Civil Procedure. See 29 C.F.R. § 2700.1(b) (“[T]he 

Commission and its Judges shall be guided so far as practicable by the [FRCP].”); see also Jim 

Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993). Specifically, the Secretary’s case can be 

likened to a pleading to survive a motion to dismiss for failure to state a claim under Rule 

12(b)(6). 

Black’s Law Dictionary equates the term “Plausibility Test” to the “Twombly Test,” 

which requires the following in a pleading to survive a 12(b)(6) motion: “(1) state facts that, 

taken as true, make a plausible (rather than conceivable) claim, and (2) not rely solely on 

conclusions of law, which are not entitled to the same assumption of truth as factual allegations.” 

Twombly Test, BLACK’S. The Court in Bell Atlantic Corp v. Twombly required a FRCP 8 

pleading to “possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” 550 U.S. 544, 

557 (2007). 

The Court noted that “[a]sking for plausible grounds does not impose a probability 

requirement at the pleading stage; it simply calls for enough facts to raise a reasonable 

expectation that discovery will reveal evidence of illegal agreement.” Id. at 556. Requiring 

substantive, relevant facts in a settlement motion only requires sufficient facts to “raise a 

reasonable expectation” that there was no violation, or that the violation did not meet the level of 

gravity or negligence cited. 

44 FMSHRC Page 31
 In Ashcroft v. Iqbal, the Supreme Court provided a description of the plausibility 

requirement, stating that in order to survive a motion to dismiss, “a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court described facial 

plausibility as “factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In relation 

to a settlement motion, the factual content provided should allow a Commission Judge to draw 

the reasonable inference that there is no violation, or that the violation does not meet the level of 

gravity or negligence cited. 

The standard of plausibility exists in Commission review of decisions on the merits of a 

violation. Upon a prima facie showing of a violation by the Secretary, a respondent operator 

must demonstrate a “plausible theory based upon any facts in the record to support a reasonable 

inference” that the violation did not occur. Jim Walter Res., Inc., 28 FMSHRC 983, 988, 989–90 

(Dec. 2006) (affirming the Judge’s decision to uphold a S&S designation because there was 

substantial evidence to support the conclusion that the respondent did not show “any plausible 

theory” rebutting the Secretary’s case). 

 The need to make a plausible demonstration refuting the existence of a violation could 

and should be applied to facts required in a settlement motion. Such a requirement is not 

contradictory to the Commission’s directives in AmCoal II. See 40 FMSHRC at 991 (ruling that 

judges must not assign probative value to some facts). It merely requires that the submitted facts, 

if taken as true, plausibly demonstrate that there was no violation, or that the violation did not 

reach the level of gravity or negligence assigned. 

C. The facts provided by the Secretary cannot support the removal of the S&S designation. 

An S&S designation is appropriate if, “based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard [danger to safety or health] 

contributed to will result in an injury or illness of a reasonably serious nature.” Mathies Coal 

Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 

825 (Apr. 1981)). An S&S determination must be based on the continuation of normal mining 

operations. See Consol PA Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ must be based on the facts existing at the time of issuance and assuming continued 

normal mining operations, absent any assumption of abatement or inference that the violative 

condition will cease.”). 

The four elements supporting an S&S designation provided in Mathies have been refined 

and expressed as follows: (1) an underlying violation of a mandatory safety standard; (2) a 

reasonable likelihood the violation will cause the occurrence of the discrete safety hazard against 

which the standard is directed; (3) a reasonable likelihood that the hazard would cause an injury; 

and (4) a reasonable likelihood that the injury would be of a reasonably serious nature. Peabody 

Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement of the 

second Mathies step in Newtown Energy, Inc.). 

44 FMSHRC Page 32
1. The relevant facts provided demonstrate a prima facie showing of a S&S violation. 

 The Mine Act and the Commission’s precedents interpreting it compel me to determine 

whether the settlement tendered is appropriate to the facts provided to me. Citation No. 9198038 

arises from an alleged violation of the operator’s roof control plan, which appears to have been 

discovered after a roof fall occurred. See 30 C.F.R. § 75.220(a)(1) (requiring operators to 

develop and follow approved roof control plans); see also 30 C.F.R. § 75.202(a) (requiring roof 

support to protect miners from hazards related to roof falls). Under the terms of the plan, entry 

widths are limited to 19 feet. The operator asserts that a variance permits it to inadvertently mine 

widths up to 211⁄2 feet wide. In that case, the variance requires the operator to use additional bolts 

that are one foot longer in between the rows to support the roof in the wider area. 

Both the second and third amended motions state, “Because the area had never been 

deemed to be wider than the plan allowed, the additional bolts had not been installed.” This 

explanation does not provide a sufficient evidentiary basis to support removal of an S&S 

designation. The explanation notes that the condition was not obvious, had not been noted on 

prior inspections, and did not present visible signs that a roof fall was imminent. 

While these facts would support a reduction in negligence, they would not support a 

reduction of the likelihood of injury in an area where a roof fall occurred. Additionally, the 

operator’s belief that a confluence of factors did not exist has no value to an assessment of the 

likelihood of injury from the hazard. 

 The limited facts provided in the motion included an acknowledgment that at least one 

miner, the examiner, would work or travel in the area where the fall occurred—an area where the 

Secretary has alleged the roof support was deficient—and a roof fall in fact occurred. During that 

time, the area was examined at least once every shift by an examiner. The motion provided no 

facts from which one might infer that this miner was not exposed to a possible hazard of serious 

injury from a roof fall. 

 A finding of S&S for a violation of an approved roof control plan is supported by 

Commission precedent. See, e.g., Consol Pa. Coal Co., 43 FMSHRC 145, 149 (Apr. 2021) 

(affirming Judge’s determination that roof control plan violation was S&S); Halfway, Inc., 8 

FMSHRC 8, 12–13 (Jan. 1986) (affirming S&S for failing to comply with roof control plan 

when miners could have worked or traveled in areas with inadequately supported roof). 

Importantly, I do not find that the cited violation is or must be held to be S&S. I have been 

provided with limited facts, and neither party has waived its right to contest this issue by 

providing additional facts or legal authority at hearing. I am thus not substituting my 

enforcement judgment for that of the Secretary; I am merely noting that his conclusion that this 

violation might not be found to be S&S is entirely inconsistent with the evidence the Secretary 

himself has chosen to provide. 

2. The Secretary has provided no facts plausibly supporting the inference that the 

violation does not meet any one of the Mathies elements.

44 FMSHRC Page 33
Mathies Step 1 requires that the Secretary establish a violation of a mandatory safety 

standard. The Respondent’s roof control plan is the functional equivalent of a mandatory safety 

standard and specifies the means of compliance with the ground support requirement for 

underground mines: “The roof, face and ribs of areas where persons work or travel shall be 

supported or otherwise controlled to protect persons from hazards related to falls of the roof, face 

or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). A failure to comply with the provisions of 

a roof control plan would satisfy Step 1 of the Commission’s S&S analysis. The Secretary has 

provided no facts plausibly supporting an inference that Respondent was in compliance with the 

allowed variance.7 

Mathies Step 2 requires a reasonable likelihood that the violation will cause the 

occurrence of a discrete safety hazard against which the standard is directed. The fact that a roof 

fall actually occurred here is dispositive as to the second S&S factor, because unintended roof 

falls in areas where miners work or travel is the focal point of Section 75.202(a) and the plan 

developed to ensure the protection of miners from such falls. See Jim Walter Resources, Inc., 

37 FMSHRC 493, 495–96 (2015) (noting that the Mine Act strictly requires protection of miners 

from roof falls in areas where miners work or travel). I find that an event that has occurred is 

perforce reasonably likely to have occurred. 

 Unlike the second factor, the remaining two S&S factors are not conclusively established. 

However, the settlement motion must provide at least a plausible basis for concluding that a 

hearing might result in a finding that there was no S&S violation, either because one of the 

remaining factors might not be proved or depends on questionable evidence, or because there 

may not have been a violation.

Mathies Step 3 requires a reasonable likelihood that the hazard would cause an injury. It 

is accepted that roof falls may cause injury as miners have died from roof falls. See, e.g., Doe 

Run Co., 42 FMSHRC 521, 521 (Aug. 2020); Jim Walter Res., Inc., 37 FMSHRC at 493. To 

support removal of a S&S designation, the facts must allow the plausible inference that 

occurrence of the hazard would not cause an injury. The Secretary has provided that only the 

examiner travels the area and that exposure to the hazard would only last for a “split second of 

time,” but these facts are insufficient for me to plausibly infer than an injury was unlikely. 

Respondent acknowledged that an examiner traveled the area for the entire duration the 

violative condition existed. The fact that a roof fall did not occur while the examiner was 

traveling there does not negate the likelihood of an injury. Nor does the fact that the examiner 

was only exposed once per shift. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient for Step 3 that the inspector determined that miners and an examiner would be exposed 

to the hazard twice per shift). Additionally, an unplanned roof fall is an “instantaneous event,” so 

the Secretary’s mention of only a split-second exposure fails to negate the likelihood of injury. 

7 The facts provided would establish a violation of the plan. The motion does not provide 

even a contention by the operator that the entries did not exceed the plan’s limits or that the 

additional longer bolts permitted by the variance had been employed in the areas cited by the 

inspector. As noted in the Denial Order, my decision does not prejudice Respondent’s ability to 

argue or prove facts contrary to those provided in the settlement motions. 

44 FMSHRC Page 34
Mathies Step 4 requires a reasonable likelihood that the injury would be of a reasonably 

serious nature. An inspector’s conclusion that a possible injury is of a reasonably serious nature 

has been held sufficient for Step 4. Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient that the inspector characterized the potential injury as “serious”). Therefore, to support 

removal of a S&S designation, the facts provided to challenge Step 4 must allow the plausible 

inference that an injury would not be of a reasonably serious nature. 

The inspector characterized the likely injury as “fatal” at the time of citation and 

petitioned for civil penalty on that finding. Roof and rib falls are subject to an extensive 

regulatory regime precisely because of the great danger of serious injury or death posed by 

unplanned ground movements in underground mines. No facts contended by the Secretary allow 

a plausible inference to the contrary—that the injury from a roof fall might not be of a 

reasonably serious nature. 

D. Application of the abuse of discretion standard leaves me no choice but to deny the 

Secretary’s motion to approve settlement. 

Having made a S&S designation, the Secretary must provide substantial and relevant 

evidence as support for its removal. My denial of the Secretary’s motion to approve settlement 

was specifically based on a lack of sufficient factual support available for me to properly 

consider the settlement under the AmCoal factors. 

The Secretary must provide me with a plausible basis for the proposed modification of 

Citation No. 9198038. The Commission should not condone the removal of a cited and 

petitioned designation based on the implausible conclusion that the violation did not meet the 

requirements of an S&S designation. The conclusion to which the Secretary comes—that the 

proposed modification is justified by the respondent’s contentions—must be rationally supported 

by the facts. It is not. The facts provided by the Secretary do not allow me to plausibly infer that 

the violation did not meet the Mathies requirements for a S&S designation. If anything, they 

support the existence of a S&S violation. 

III. Certification 

 A settlement would finally resolve this matter without a hearing. I have invited the parties 

to submit additional facts that might permit approval, and they are apparently unable to agree on 

such facts. Following Hopedale, it would not be appropriate for me to proceed to a hearing with 

this legal question unresolved. Therefore, under Commission Procedural Rule 76, 29 C.F.R. § 

2700.76, I certify that this interlocutory ruling involves a controlling question of law—whether 

the Secretary has unreviewable discretion to remove an S&S designation from a contested 

44 FMSHRC Page 35
citation without the Commission’s approval—and that immediate review will materially advance 

the final disposition of the proceeding. 

 This interlocutory ruling is hereby CERTIFIED. 

 /s/ Michael G. Young 

Michael G. Young 

Administrative Law Judge 

Distribution (by email): 

Alexandra J. Gilewicz, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, 

Suite 401, Arlington, VA 22202 gilewicz.alexandra.j@dol.gov 

Emily Toler Scott, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202 scott.emily.t@dol.gov 

John Miklos, Director of Health and Safety, Knight Hawk Coal, LLC, 500 Cutler-Trico Road, 

Perry, IL 62272, johnmiklos@knighthawkcoal.com 

44 FMSHRC Page 36