FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 October 19, 2022 

 

ORDER GRANTING MOTION TO DISSOLVE ORDER

GRANTING TEMPORARY ECONOMIC REINSTATEMENT

Before: Judge McCarthy

This matter is before the undersigned on the Secretary of Labor’s Application for 

Temporary Reinstatement filed on behalf of miner George Rice pursuant to Section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as amended (“Act”), and 

29 C.F.R. § 2700.45. 

On September 26, 2022, the undersigned issued an Amended Order Granting Temporary 

Reinstatement of Rice. On September 27, 2022, the parties submitted a Joint Motion to Approve 

Temporary Economic Reinstatement Agreement (“Agreement”). The parties agreed that, “[i]f 

the Secretary notifies Rice that he has decided not to prosecute Rice’s case on the merits, Nally 

& Hamilton will file a motion with the presiding ALJ to dissolve this Agreement, and Rice will 

not oppose said motion.” Agreement, 2. On September 28, 2022, the undersigned accepted the 

Agreement and issued an Order modifying the September 26, 2022 Order.

On October 14, 2022, the Secretary filed a Notice pursuant to 29 C.F.R. § 2700.45(g) that 

he was not going to file a Discrimination Complaint on Rice’s behalf. On October 18, 2022, the 

Respondent filed a Motion to Dissolve the Order Granting Temporary Economic Reinstatement. 

Federal circuit courts of appeals and Commission judges have ruled that, for 105(c) 

claims such as this one, any “temporary reinstatement provision ends when the Secretary’s

involvement ends” and that “the termination of [a temporary reinstatement] should rest on the 

Secretary’s determination” to not file a Discrimination Complaint. Vulcan Const. v. FMSHRC, 

700 F.3d 297, 310, 311 (7th Cir. 2012); see also N. Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 

744 (6th Cir. 2012); Panther Creek Mining, LLC, 39 FMSHRC 2001, 2002 (Oct. 2017) (ALJ); 

SECRETARY OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) on behalf 

of GEORGE RICE,

 Complainant 

 v. 

NALLY & HAMILTON ENTERPRISES, 

 Respondent 

TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. KENT 2022-0118 

MSHA Case No. BARB-CD-2022-03 

Mine: Meadow Branch Mine

Mine ID: 15-19890 
2 

Black River Coal, LLC, 38 FMSHRC 2869, 2870 (Nov. 2016) (ALJ); Teck Alaska, Inc., 

35 FMSHRC 2891, 2893 (Aug. 2013) (ALJ). 

After finding insufficient evidence to pursue a Discrimination Complaint, the Secretary’s 

involvement ended. Pursuant to precedent and the Agreement, the September 26, 2022 

Amended Order Granting Temporary Reinstatement, as modified by the September 28, 2022 

Order, is dissolved. 

For the foregoing reasons, the September 26, 2022 Order, as modified by the September 

28, 2022 Order, is DISSOLVED and the terms of the September 27, 2022 Temporary Economic 

Reinstatement Agreement are TERMINATED. Mr. Rice may elect to file a Discrimination 

Complaint on his own behalf with the Commission within 30 days’ notice of the Secretary’s 

determination. 30 U.S.C. 815(c)(3). 

 

Thomas P. McCarthy

 Administrative Law Judge

Distribution:

Thomas Hamilton

Nally & Hamilton Enterprises 

Saltsman Willett Deton & Hamilton, PSC

212 E. Stephen Foster Avenue 

Bardstown, KY 40004 

(sth@ky-atty.com) 

Joseph Mattingly 

JOSEPH H. MATTINGLY, PLLC

P.O. Box 678 - 104 West Main Street

Lebanon, KY 40033 

(joe@mattinglylawoffices.com) 

Tony Oppegard 

P.O. Box 22446 

Lexington, KY 40522 

(tonyoppegard@gmail.com) 

Wes Addington 

Appalachian Citizens’ Law Center

317 Main Street 

Whitesburg, KY 41858 

(wes@aclc.org) 
3 

Jennifer M. Tag

Office of the Solicitor

U. S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219 

(Tag.Jennifer.M@dol.gov) 

/vgr