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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

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

 

DECISION

BY THE COMMISSION: 

This temporary reinstatement proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). The Secretary of 

Labor filed an Application for Temporary Reinstatement on behalf of Victor Torres against 

W.G. Yates & Sons Construction Company (“Yates”) pursuant to section 105(c)(2) of the Act, 

30 U.S.C. § 815(c)(2). On July 6, 2023, the Administrative Law Judge issued an Order Granting 

Application for Temporary Reinstatement and Order Tolling Temporary Reinstatement, in which 

he found that Torres’s complaint was non-frivolous but the remedy of temporary reinstatement 

was not available due to layoffs at the facility. 45 FMSHRC __, No. WEST 2023-0256-DM 

(July 6, 2023) (ALJ). The Secretary subsequently filed a timely petition for review of the 

Judge’s order, directed at the tolling issue. For the reasons that follow, we grant the petition, and 

vacate and remand the part of the Judge’s order addressing tolling. 

I.

Factual and Procedural Background

A. Factual Background

Victor Torres worked as a journeyman millwright and welder for W.G. Yates and Sons 

Construction Company, which had been contracted by MP Materials Corporation to build a rare 

earth minerals processing facility in Mountain Pass, CA. Due to the secretive nature of the 

project, unauthorized photos were prohibited on the mine site. Torres testified that on April 10,

2023, his crew was tasked with using a manlift to bring pipe down from an elevated track. 

Torres believed this was unsafe and requested the use of a crane instead. The crew was 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA)

 on behalf of VICTOR TORRES

 

 v. 

W.G. YATES & SONS

 CONSTRUCTION COMPANY 

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Docket No. WEST 2023-0256-DM

July 28, 2023
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instructed to proceed with the manlift. When Torres refused, he states that he was threatened 

with removal. The crew proceeded with the manlift, and Torres took photos to include in a 

report regarding the incident. Mine management informed Torres that taking photos was against 

policy, but he was not disciplined at that time. He was subsequently laid off on April 13, 2023. 

See 45 FMSHRC __, slip op. at 2-5 (summary of Torres’s testimony).

Around this time (April 2023) construction began to slow and the operation began 

downsizing. By the time of the hearing (June 2023) construction was nearly complete and the 

number of employees had decreased significantly. Testimony from various witnesses indicates

that the project employed over 100 millwrights at its peak, which decreased to approximately 14 

millwrights by April 2023 and three to five millwrights (and no welders) by June 2023. Id. at 2, 

6, 7, 9. Yates’s witnesses testified that personnel decisions regarding the layoffs were based on 

the millwright superintendent’s working knowledge of the employees rather than an objective

formula or ranking system. They stated that Torres was included in the April 13 layoff because 

there was no more structural welding work, he did not have the qualifications for the remaining 

millwright work, and the other millwrights did not have his issues with absenteeism. Id. at 6-11.

Torres filed a discrimination complaint with the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”) alleging that he was discharged due to his safety complaint 

and work refusal. App. for Temp. Reinstatement, Ex. A. The Secretary determined that Torres’s

complaint was not frivolous, and on June 2, 2023, filed an application requesting that an Order 

of Temporary Reinstatement be issued directing Yates to reinstate Torres to the same or similar 

position he occupied prior to his discharge. App. for Temp. Reinstatement at 3. A hearing was 

subsequently scheduled for June 28, 2023. 

On June 27, the day prior to the scheduled hearing, Yates filed a Hearing Brief stating 

that it would rely on the “affirmative defense of changed circumstances, such as layoffs . . . as 

part of the hearing on Applicant’s Application for Temporary Reinstatement.” Yates’s Hr’g 

Br. at 1. The Secretary filed a Response in Opposition, arguing in part that affirmative defenses 

should not be weighed at temporary reinstatement hearings and that the brief was untimely 

because it did not provide the Secretary with adequate time to respond. Sec’y Opp. at 2.

The hearing was held on June 28, 2023. The Judge made a preliminary ruling allowing in 

evidence regarding layoffs. Tr. 13. Both parties addressed tolling in their closing arguments. 

Tr. 208-09, 212-14.

B. The Judge’s Order and Arguments on Appeal

In a July 6, 2023 Order, the Judge granted the Secretary’s application for temporary 

reinstatement. He found that Torres engaged in protected activity, that Yates’s management 

knew of the protected activity on the day it occurred, and that Torres was discharged three days 

later. The Judge also found indications of animus toward Torres due to his protected activity. 

Given management’s knowledge of the protected activity, the temporal proximity between the 

activity and Torres’s discharge, and the evidence of animus, the Judge concluded that the 

Secretary’s section 105(c)(2) complaint was not frivolously brought. Slip op. at 13. 

However, the Judge also found that temporary reinstatement was not an immediately 

available remedy. Slip op. at 14. The Judge overruled the Secretary’s objection to Yates’s 
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evidence regarding layoffs. Slip op. at 13-14 n.27. He found that Yates’s witnesses provided 

credible, undisputed testimony that Torres would not have been one of the remaining millwrights 

still working as of the date of the hearing, that one of the currently employed millwrights would 

have to be laid off to accommodate Torres’s reemployment, and that there was no work for 

structural welders at the time of the hearing. Slip op. at 15-16. He concluded that the operator

“demonstrated by a preponderance of the evidence, almost all of which was undisputed, that 

Torres would have been properly included in one of the many rounds of layoffs that occurred 

after April 13, 2023.” Slip op. at 16. Accordingly, he ordered that Torres’s temporary 

reinstatement be tolled. 

On appeal, the Secretary seeks review of the part of the Judge’s order tolling temporary 

reinstatement. The Secretary claims the Judge erred by considering Yates’s tolling argument, 

both because tolling is outside the proper scope of a temporary reinstatement hearing and 

because the Secretary was prejudiced by the short time frame. Alternatively, the Secretary 

claims the Judge applied the wrong standard of review to the tolling argument. The Secretary 

requests that the Commission reverse and remand for further proceedings. 

II.

Disposition

The Commission has long recognized that the “fundamental requirement of due process 

is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Matthews v. 

Eldridge, 424 U.S. 319, 333 (1976), cited in, e.g., Scott, emp. By Mill Branch Coal Corp., 42 

FMSHRC 481, 488-89 (Aug. 2020); Jones v. D&R Contractors, 8 FMSHRC 1045, 1051-52 

(July 1986). For the reasons below, we find that the Secretary was denied a meaningful 

opportunity to respond to Yates’s tolling argument. 

 Applications for temporary reinstatement are handled on an expedited schedule. See 

29 C.F.R. § 2700.45. Here, the Secretary filed the application for temporary reinstatement on 

June 2, 2023, and Yates requested a hearing on June 12. The Judge informed the parties that 

the primary issue at the hearing would be “whether Mr. Torres’s complaint of discrimination 

was frivolously brought,” directed the parties to provide names of any witnesses by June 21, 

and scheduled the hearing for June 28. Unpublished Order dated June 14, 2023. 

On June 27, Yates filed a brief stating that the Commission has recognized changed 

circumstances as a defense that can toll temporary reinstatement, and that it would rely on this 

affirmative defense to show at hearing that there was no job for Torres to return to because the 

construction project for which he was hired was largely complete.1

 Yates Hr’g Br. at 1-2. 

1

 We note that the cited changed circumstance was not a particularly recent development. 

Yates’s witnesses indicated that downsizing had been underway for months. If Yates had raised 

the tolling issue when it filed a hearing request on June 12, or even by the Judge’s June 21 

deadline, this could have been a different case. See Sec’y on behalf of Anderson v. A&G Coal 

Corp., 39 FMSHRC 165, 169 (Jan. 2017) (ALJ), aff’d 39 FMSHRC 315 (Feb. 2017) (no issue of 

prejudice raised where the operator filed a motion to toll eight days before the hearing). 
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The Secretary filed a same-day objection, claiming in part that she did not have adequate 

time to respond to the tolling argument. Sec’y Opp. at 2. The hearing occurred the next day as 

scheduled. The Judge overruled the Secretary’s objection to the introduction of evidence 

regarding Yates’s defense (Tr. 11-14) and subsequently issued an order finding that Torres was 

entitled to temporary reinstatement, but that temporary reinstatement should be tolled because no 

work was available for Torres.

In summary, until Yates’s filing on June 27, the Secretary reasonably expected the June 

28 hearing to focus on whether Torres’s underlying discrimination complaint was frivolously 

brought. By permitting Yates to address its affirmative defense at the hearing, the Judge gave 

the Secretary less than 24 hours to marshal arguments and evidence regarding a new issue. 

Generally, to show a due process violation, a party must show that he or she has sustained 

prejudice, i.e., that the party would have litigated the matter differently if adequate notice had 

been received. Brody Mining, LLC, 37 FMSHRC 1914, 1927 (Sept. 2015); Cumberland Coal 

Res., LP, 32 FMSHRC 442, 447-49 (May 2010). Here, the Secretary identifies one area of the 

case that would have been litigated differently with adequate notice; she indicates that with more 

time, she could have introduced evidence to counter Yates’s claim that a millwright would have 

to be laid off for Torres to be reinstated. Sec’y Pet. at 16. Beyond this, the Secretary is unable to 

identify specific witnesses or lines of argument. However, this seems to be an inevitable result 

of the specific harm caused by the lack of time. With less than 24 hours’ notice, the Secretary 

simply did not have the time to locate witnesses or prepare a litigation strategy.2

 See Sec’y on 

behalf of Overfield v. Highland Mining Co. LLC, 36 FMSHRC 1659, 1675 (June 2014) (ALJ) 

(finding the Secretary had no reasonable time to call into question the objectivity of a layoff 

where Secretary’s counsel did not receive copies of the layoff documentation until the hearing).

Significantly, the Judge’s order tolling temporary reinstatement relies almost exclusively 

on the “undisputed” testimony of Yates’s two witnesses, Jimmy Hayes and Bryan French. Slip 

op. at 15-16. We question whether testimony is truly “undisputed” when the Secretary had less 

than 24 hours to prepare for cross-examination on the relevant issue and no practical opportunity 

to locate additional witnesses who may have been able to provide contrary testimony. Yates’s 

tolling evidence was undisputed essentially by default, because the Secretary had no meaningful 

opportunity to dispute it.3 

The Commission stresses that it takes no position on what conclusions the Judge should 

reach regarding the evidence presented on remand. Instead, we simply note that this is a case 

where providing the Secretary with a meaningful opportunity to address the tolling issue could

have impacted the weight of evidence sufficiently to change the outcome of the Judge’s order.

2

 We also note that the Secretary had only five business days to file her petition for 

review. 29 C.F.R. § 2700.45(f). 

3 As a comparison, there may have been no due process concerns if the Judge had based 

his tolling order on facts contained in joint stipulations. 
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We find the Judge erred when he considered Yates’s motion to toll at the initial 

temporary reinstatement hearing, prior to providing the Secretary a meaningful opportunity to 

investigate and respond to the tolling issue raised in Yates’s June 27 Brief. 4

 Accordingly, we 

vacate the Judge’s order tolling temporary reinstatement and remand for further proceedings, 

where the Secretary will have the opportunity to present further argument and evidence on the 

tolling issue, including the proper standard of review. Yates shall also have the opportunity to 

present rebuttal evidence in the event of further development of the record. 

III. 

Conclusion 

For the reasons discussed above, we vacate the Judge’s order tolling Torres’s temporary 

reinstatement and remand for further proceedings consistent with this decision. 

________________________________ 

 Mary Lu Jordan, Chair

 

________________________________ 

William I. Althen, Commissioner

________________________________ 

Marco M. Rajkovich, Jr., Commissioner

________________________________ 

Timothy J. Baker, Commissioner

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 The Secretary claims it is always inappropriate to consider tolling arguments at an 

initial temporary reinstatement hearing, because Procedural Rule 45(d) limits the scope of such 

hearings to whether the miner’s complaint was frivolously brought. We note that we have 

previously rejected this argument. Sec’y on behalf of Ratliff v. Cobra Natural Res., LLC, 35 

FMSHRC 394, 397 (Feb 2013). Regardless, as we are remanding on different grounds, thus 

providing the parties with the opportunity to present evidence on tolling outside of the initial 

temporary reinstatement hearing as well as the opportunity to present further legal arguments 

regarding tolling in the temporary reinstatement context, we need not address this legal argument 

here. As a practical matter, however, we note that in this instance separating the tolling issue 

from the temporary reinstatement hearing would have provided the Secretary with a meaningful 

opportunity to respond. 
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Distribution:

McCord Wilson, Esq.

Rader and Campbell

2777 N. Stemmons Freeway, Suite 1125

Dallas, TX 75207

mwilson@radercampbell.com

Susannah M. Maltz, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Maltz.susannah.m@dol.gov

Natasha Magness, Esq.

Office of the Solicitor

U.S. Department of Labor

300 Fifth Avenue, Suite 1120

Seattle, WA 98104

Magness.natasha.a@dol.gov

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov
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Melanie Garris 

Civil Penalty Compliance Division Chief

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov

Administrative Law Judge Richard W. Manning

Office of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission

721 19th Street, Suite 443

Denver, CO 80202-2536

RManning@fmshrc.gov