1331 PENNSYLVANIA AVE. NW SUITE 520N, WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900, www.fmshrc.gov

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of the Chairman

 April 5, 2022

Senator Richard Burr

U.S. Senator for North Carolina

217 Russell Senate Office Building

Washington, DC 20510

c/o matt_mimnaugh@help.senate.gov 

Dear Senator Burr:

Thank you for your commitment to ensuring proper oversight of the Federal Mine Safety and 

Health Review Commission (“FMSHRC”). I welcome this opportunity to inform your committee of 

matters of serious concern that have kept me extraordinarily busy in the fifteen months since I took over 

from Commissioner Marco Rajkovich as FMSHRC Chair. As many of the matters discussed below are 

the subject of pending administrative and criminal investigations by the Office of Personnel 

Management (OPM) and the FBI, some of the information is necessarily preliminary. As soon as these 

investigations are complete, I welcome the opportunity to respond in greater detail.

President Trump appointed me a FMSHRC Commissioner on March 14, 2019, and President 

Biden appointed me as its Chair on January 20, 2021. As you know, FMSHRC is an independent agency 

whose primary function is the adjudication of mining health and safety cases arising under the Mine Act, 

30 USC § 801 et seq, first at the administrative judge (“ALJ”) level and then on review before a 

Presidentially appointed Commission. One Commissioner is chosen by the President to serve as Chair, 

and the Mine Act states that the “Chairman shall be responsible on behalf of the Commission for the 

administrative operations of the Commission.” 30 USC § 823(b)(2). FMSHRC’s most recent 

organizational charts are attached (Doc. No. 1).

For 45 years, the Mine Act has been consistently interpreted to mean that the Chair has authority 

over issues of personnel, procurement, and other internal administrative governance, while all 

Commissioners serve in an equal capacity in their appellate review function. In one of his final acts as 

Chair, Rajkovich directed Mary Lu Jordan (who has served on the Commission since 1994, with almost 

15 years as Chair) and former Acting Chair Michael Young (who served as Commissioner from 2003-

2020 and is now an ALJ) to prepare “position descriptions” delineating the division of authorities and 

responsibilities between the Chair and the other Commissioners. Rajkovich made final edits to these 

documents before directing Judge Young to transmit them to me by e-mail on January 29, 2022. They 

are attached. (Doc No. 2). 

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HELP Committee serves an invaluable oversight function over federal agencies, so I am confident it will 

not assist any effort to impede OPM or FBI investigators.

Contrary to the wild hyperbole in my fellow Commissioner’s March 17, 2022 follow-up to the 

Feb. 15 letter, the Commission is neither “paralyzed,” nor is it unable to perform its mission. Indeed, the 

new policies of which the Feb. 15 complained were never actually implemented, pursuant to my 

direction to the to continue selecting OGC attorneys to draft advisory memos 

for her approval. Regrettably, even though they consented to this interim arrangement in writing, my 

fellow Commissioners withheld this key fact from their letters to your HELP committee. I assure you 

Commission decisions and orders continue to issue in ordinary course at the trial and appellate level.

Despite the complaints set forth in their letters to the HELP Committee, Rajkovich and Althen do 

not appear to want an actual resolution to the issues they raise. Three times since he first attempted to 

intervene in my efforts to hire the COO in September of 2021, I have offered to mediate with Rajkovich 

the issue of the division of authority between Chair and Commissioners. Every time he declined. On 

March 15, 2022, Rajkovich, Althen and I met with two senior officials of the Department of Justice’s 

Office of Legal Counsel. Senior counsel in that office offered to resolve our dispute in a formal opinion 

letter, to be issued only after all three Commissioners agreed to be bound to the process and submitted 

written argument and documentation. I agreed to participate in the process, but Rajkovich and Althen 

declined.

Though the various pending criminal and administrative investigations described herein 

constrain me from going into greater detail at this time, I am available and willing to meet with you or

your staff to discuss any remaining inquiries. I trust you share my desire to see all ongoing 

investigations proceed without interference. And I respectfully request that you and your colleagues will 

support the continued repair and improvement of this independent agency so vitally important to the 

health and safety of our nation’s miners.

Sincerely,

Arthur Traynor, Chair

FMSHRC

cc: Senator Patty Murray, Chair of the HELP Committee

Exemption 6 - privacy
1

Arthur Traynor

From: Michael Young

Sent: Friday, January 29, 2021 1:31 PM

To: Arthur Traynor; William I. Althen; Marco Rajkovich; Lisa M. Boyd

Cc: Mary Jordan

Subject: Position descriptions for Chair and Commissioners

Attachments: Position Description - Chair.docx; Commissioner Description.docx

Follow Up Flag: Follow up

Flag Status: Flagged

Hello.  Marco requested Mary Lu and I to draft position descriptions for the Chair and Commissioners.  I’ve attached the

draft descriptions.  Because I am leaving OGC/OCC Monday, please work with Mary Lu on these (although I will be happy

to discuss them or answer any questions).   

Thank you,

Mike
January 28, 2021  

DRAFT

Position Description: Chair, Federal Mine Safety and Health Review Commission

.

All redactions in this document are pursuant to Exemption 5 - deliberative process
Draft 12/4/2020

  
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