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

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 

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
–2–

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 
–3–

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.

David P. Simonton

Administrative Law Judge

Distribution: (Email1

) 

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

 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.