**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE:303-844-5266 / FAX: 303-844-5268

 

December 18, 2020
| SECRETARY OF LABOR,

U.S. DEPARTMENT OF LABOR ON BEHALF OF JACOB HAMILTON,

    Complainant,

 

    v.

 

SMALL MINE DEVELOPMENT,

     Respondent.           |   |   | TEMPORARY REINSTATEMENT 

 

Docket No. WEST 2021-0069

 

 

 

 

Mine: El Nino

Mine ID: 26-02830 |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------|

** **

**ORDER GRANTINGIN PART AND DENYING IN PARTSECRETARY’S MOTION IN LIMINE**

 

Before:              Judge Simonton 

 

This case is before me upon anapplication for temporary reinstatement filed by the Secretary of Labor, actingthrough the Mine Safety and Health Administration (“MSHA”), against Small MineDevelopment (“Respondent”) pursuant to section 105(c)(2) of the Federal MineSafety and Health Act of 1977, 30 U.S.C. § 815(c)(2). On December 15, 2020, theSecretary filed a Motion in Limine to exclude Respondent’s evidence extendingbeyond the narrow scope of the temporary reinstatement determination. TheRespondent filed a response in opposition to the Secretary’s motion on December18, 2020. The temporary reinstatement hearing is scheduled for December 22,2020 via Zoom.

 

            UnderSection 105(c)(2), if the Secretary finds that a miner’s complaint allegingdiscrimination under Section 105(c) was “not frivolously brought, theCommission, on an expedited basis upon application of the Secretary, shallorder the immediate reinstatement of the miner pending final order on thecomplaint.” 30 U.S.C. § 815(c)(2). At this juncture, the Secretary need notprove a prima facie case of discrimination by a preponderance of the evidence inorder for the Complainant to receive temporary reinstatement—he must only provethat the complaint was “not frivolously brought.” The Secretary asserts thatthe “not frivolously brought standard” restricts the Judge’s ability to weighcredibility and testimonial conflicts during the temporary reinstatement hearing,and therefore should not include Respondent’s rebuttal or affirmative defenseevidence.

 

            Respondentargues that the Secretary’s motion should be denied because it is overly broadand precludes it the right to introduce nearly any evidence at the temporaryreinstatement hearing. Respondent argues that it is permitted to cross-examinethe Secretary’s witnesses and present testimony and documentary evidence tosupport its claim that the complaint was frivolously brought. The Secretary’smotion, framed to exclude any evidence presented “to create a testimonialconflict or credibility determination or to support an affirmative or rebuttaldefense,” would in its view effectively prevent Small Mine Development fromintroducing any contrary evidence to support its opinion that the complaint isfrivolous. 

 

            The Commission has held that “the scope of atemporary reinstatement hearing is narrow, being limited to a determination bythe judge as to whether a miner’s discrimination complaint is frivolously brought.”*Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc.*, 9 FMSHRC1305, 1306 (Aug. 1987), *aff’d* 920 F.2d 738 (11th Cir. 1990). The judgeshould not resolve conflicts in testimony at this preliminary stage of the proceeding,nor should the judge determine whether there is sufficient evidence to justifypermanent reinstatement. *Jim Walter Res., Inc. v. Fed. Mine Safety & HealthReview Comm’n*, 920 F.2d 738, 744 (11th Cir. 1990).  However, suchdiscretion should not interfere with the right of the respondent to presenttestimony and evidence that supports a finding that the Secretary’s complaintwas frivolously brought. *See* 29 C.F.R. § 2700.45(d).

 

The Secretary offers no case lawholding that evidence creating testimonial conflicts or supporting affirmativeor rebuttal defenses must be excluded from temporary reinstatement proceedings.The Secretary’s reliance on the Commission’s decision in *CAM Mining, LLC*,31 FMSHRC 1085 (Oct. 2009), is misplaced. In *CAM Mining*, the Commissionaddressed whether the judge applied the proper burden of proof and refrainedfrom weighing conflicts in testimony in determining whether the Secretary’sdiscrimination claim was frivolous. *Id.* at 1088. The Commission did nothold that evidence creating testimonial conflicts was inadmissible, but limitedwhat the judge may consider and determine in properly evaluating whether thediscrimination case was frivolous. *Id.* at 1089–91. In fact, none of theSecretary’s cited case law requires that such evidence must be excluded fromtemporary reinstatement proceedings, but rather holds that the judge mustrefrain from making findings on the merits of the discrimination claim.

 

            Furthermore,the Secretary’s motion is overbroad and may unduly preclude Respondent frompresenting evidence relevant to the temporary reinstatement proceeding. Respondenthas the right under section 2700.45(d) to present testimonial and documentaryevidence to support its argument that the Secretary’s claim is frivolous. Here,the Secretary’s motion does not identify any specific testimony or documentaryevidence to be excluded, but intends to exclude all evidence that creates a“testimonial conflict” or supports “affirmative or rebuttal defense.” Intemporary reinstatement cases, the testimony of the operator is highly likelyto conflict with that of the Secretary and the complainant miner, and nearlyall other evidence offered will speak in some way to the respondent’s defense. Admissibilityof such evidence should therefore be considered based on its specific relevanceto whether the Secretary’s claim is frivolous, and not based upon broadcategorical exclusions. Granting the motion runs the unnecessary risk ofexcluding relevant evidence simply because it falls into one of those twocategories, and would undoubtedly inhibit the respondent’s ability to put onits defense.  

 

            However,the Secretary is right on one count. Any evidence of wrongdoing that theRespondent acquired after terminating Hamilton is irrelevant and inadmissibleat this temporary reinstatement stage. The Mine Act directs the Commission toreinstate a miner during the pendency of his discrimination complaint as longas his claim is not frivolously brought. The *sole* purpose of thishearing is to determine whether Hamilton’s claim was frivolously brought. Whileafter-acquired evidence may be relevant to the remedies available to Hamiltonafter a hearing on the merits, this evidence is not relevant to the narrowquestion before the court at this juncture. In its statement in opposition tothe Secretary’s motion in limine, Respondent has not cited any precedent where after-acquiredevidence has been admitted in a temporary reinstatement context under the MineAct, and I believe that it would be inappropriate to introduce such evidencehere. 

 

Accordingly, the Secretary’s Motionin Limine is **GRANTED** to the extent that it seeks to exclude theadmission of after-acquired evidence. The remainder of the Secretary’s motionis hereby **DENIED**. 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

Distribution: (Email[1]) 

 

B.A. Schaaff, U.S. Department of Labor, Office of theSolicitor, schaaff.b.a@dol.gov

 

Hailey McAllister, U.S. Department of Labor, Office of theSolicitor, mcallister.hailey@dol.gov

 

Bruce L. Brown, U.S. Department of Labor, Office of theSolicitor, brown.bruce.l@dol.gov

 

Donna Pryor, Husch Blackwell LLP, donna.pryor@huschblackwell.com

 

Jacob Hamilton, jhamilto2@gmail.com

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[1]Forthe foreseeable future, Federal Mine Safety and Health Review Commission(FMSHRC) notices, decisions, and orders will be sent only through electronicmail. Because FMSHRC will not be monitoring incoming physical mail or faxes,parties are encouraged to submit all filings through the agency’s electronicfiling system. If you are not able to file through our electronic filingsystem, please send an email copy and we will file it for you.