FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th Street, Suite 443

Denver, CO 80202-2536

303-844-3577/FAX 303-844-5268

September 9, 2021

ORDER GRANTING THE SECRETARY’S MOTION FOR LEAVE TO FILE FIRST 

AMENDED COMPLAINT

This proceeding was brought by the Secretary of Labor on behalf of Miguel Pugmire 

against Nevada Gold Mines (“NGM”) pursuant to section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801, et seq. (“Mine Act”) and 29 C.F.R.§ 2700.40 et seq. 

On August 19, 2021, the Secretary filed a Motion for Leave to File First Amended Complaint 

(“Mot.”). Respondent filed an opposition to the Secretary’s motion (“Opp.”). For reasons that

follow, I GRANT the Secretary’s motion. 

The complaint in this matter, as originally filed, contended that Pugmire, an underground

mine engineer, was summarily terminated from his position after removing four active headings 

from service due to low airflow readings on his monthly secondary air ventilation survey.1 The 

Secretary asserts that, during discovery, Respondent produced a document showing that Pugmire 

engaged in additional protected activity. As a result, the Secretary now seeks leave to amend the

complaint to include the additional protected activity. Specifically, the Secretary asks that the 

complaint be amended to allege that “around early August 2020, Mr. Pugmire also raised various 

concerns about the Mine’s ventilation at a meeting attended by Benjamin Gunn, the manager 

who eventually terminated Mr. Pugmire’s employment.” Mot. 3. The Secretary avers that the 

proposed amendment “will not significantly affect the scope of the case or unduly prejudice 

Respondent.” Mot. 3. 

1 The complaint, as originally filed, alleged that Pugmire removed four active headings from 

service on September 2, 2020. The following day, September 3, 2020, Pugmire requested time 

off due to a family emergency. The complaint further alleged that the request was initially 

approved and Pugmire did not attend work that day, but that NGM later repealed approval and 

labeled Pugmire’s absence as “unexcused.” On September 9, 2020, NGM suspended Pugmire 

and ultimately terminated his employment on September 11, 2020. Among other defenses in its 

answer to the original complaint, Respondent states that Pugmire failed to take all the required 

steps when he first discovered the insufficient airflow such as barricading the affected areas to 

keep miners out.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), on

 behalf of MIGUEL PUGMIRE,

 Complainant, 

v.

NEVADA GOLD MINES, LLC,

 Respondent

DISCRIMINATION PROCEEDING

Docket No. WEST 2021-0148-DM

MSHA CASE NO: WE-MD-2021-03

Mine: Turquoise Ridge

Mine ID: 26-02286
2

NGM, in its opposition, argues that the motion should be denied because the alleged 

additional protected activity was known to the Secretary at the time the discrimination complaint 

was originally filed and, further, that the claims made in the motion are “duplicative” and the

motion to amend is “futile.” Opp. 1-2, 5-6.

The Commission's procedural rules do not address amendments to pleadings. 

Nevertheless, the Commission, using the Federal Rules of Civil Procedure as guidance, has taken 

the view that leave to amend discrimination complaints should be “freely granted” in the interest 

of justice. Sec’y of Labor obo Hannah et al. v. Consolidation Coal Co., 20 FMSHRC 1293, 1303 

n. 10 (Dec. 1998); Fed. R. Civ. P. 15); Cyprus Empire Corp., 12 FMSHRC 911,916 (May 1990); 

see also Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (9th Circuit 

stating that the policy of granting leave to amend should be “applied with extreme liberality.”). 

This is especially true when such amendments “do not prejudice a party in preparing its 

defenses.” Brannon v. Panther Mining, LLC, 31 FMSHRC 1277, 1279 (Sept. 2009) (ALJ).

Here, the Secretary seeks to amend the complaint to include the additional alleged 

protected activity of Pugmire raising ventilation concerns at an August 2020 meeting attended by 

the individual who ultimately terminated him. I find that the proposed amendment does not 

amount to a new count of discrimination, i.e., it does not allege a new reason for the termination, 

but it provides potentially important context for the complaint by alleging that Pugmire raised 

substantially similar concerns in August. By amending the complaint, the Secretary properly 

seeks to conform the pleadings with evidence that will be adduced at hearing. See Faith Coal 

Co., 19 FMSHRC 1357, 1361-62 (Aug. 1997).

Administrative pleadings are to be broadly construed and easily amended if adequate 

notice is provided and there is no prejudice to the opposing party. Respondent seemingly argues 

that the Secretary should be barred from amending the complaint to include information that was 

known at the time, but not included in the complaint as originally filed. I disagree. The Secretary 

only learned of the details of the meeting after Respondent provided its responses to written 

discovery. Moreover, I find that the motion provides ample notice of the proposed amendment. 

As the Secretary correctly points out, although written discovery has commenced, “there is 

currently no deadline set for written discovery, depositions have not been scheduled, and there is 

currently no hearing date.” Mot. 6. Further, to avoid additional discovery and possibly resolve 

this matter without the need for a hearing, the parties recently agreed to participate in mediation 

facilitated by court appointed settlement counsel. Given the early stage of this proceeding, I find 

that Respondent has adequate notice of the proposed amendment.2

2 In Brannon v. Panther Mining, LLC, 31 FMSHRC 1277, 1279 (Sept. 2009) (ALJ) Former 

Commission Judge Barbour granted a motion to amend a discrimination complaint to include 

additional protected activity even though the proceeding was much further along, i.e., a hearing 

date had been set and depositions had already occurred. In granting the motion he stated that 

“the company may feel compelled to amend its answer, conduct additional discovery, amend its 

pending motion and supplement its brief in support of the motion, the expenses inherent in such 

activities are the necessary consequences of litigation, costs the company (and any litigant) must 

be prepared to bear.” Id. 
3

While Respondent does not allege that it will suffer prejudice, it asserts that the motion 

should nevertheless be denied because the claims made in the Secretary’s motion are 

“duplicative” and, in turn, “futile.” I disagree. Even if the concerns raised during the August 

2020 meeting are substantially like those raised when Pugmire removed the headings from 

service, the events took place on two separate occasions. Again, as mentioned above, I find that 

the proposed amendment provides potentially important context for the claim. As a result, I find 

that the two alleged protected activities are not duplicative and, in turn, that the proposed 

amendment is not futile for purposes of this discrimination complaint. 

For the reasons set forth above, the Secretary’s Motion for Leave to File First Amended 

Complaint is GRANTED.

3

Until further notice, case issuances of the Federal Mine Safety and Health Review 

Commission (FMSHRC), including notices, decisions, and orders, will be sent only through 

electronic mail. This includes notices, decisions, and orders described in 29 CFR 2700.4(b)(1), 

2700.24(f)(1), 2700.45(e)(3), 2700.54, and 2700.66(a). Further, FMSHRC will not be 

monitoring incoming physical mail or facsimile described in Procedural Rule 2700.5(c)(2). If 

possible, all filings should be e-filed as described in 29 CFR 2700(c)(1).

3 By granting the motion, the court is not passing judgement on whether the additional 

allegations amount to protected activity. Complainant bears the burden of proof and must 

present credible evidence on this point at hearing.

Richard W. Manning

Administrative Law Judge
4

Distribution:

Laura E. Beverage, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

(lbeverage@jacksonkelly.com)

Natasha Magness, Office of the Solicitor, U.S. Department of Labor, 300 Fifth Ave., Suite 1120, 

Seattle, WA 98104 (magness.natasha.a@dol.gov)

Miguel Pugmire (miguelpugmire@gmail.com)