employee pursues such complaint by filing an 
action under paragraph (4). If neither the Sec-
retary nor the miner or other employee pursues 
the underlying complaint within the periods 
specified in paragraph (4), such reinstatement 
shall remain in effect until such time as the 
Commission may, upon motion of the operator 
and after providing notice and an opportunity 
to be heard to the parties, vacate such com-
plaint for failure to prosecute. 
‘‘(C) INVESTIGATION.—Such investigation 
shall include interviewing the complainant 
and— 
‘‘(i) providing the respondent an op-
portunity to submit to the Secretary a 
written response to the complaint and to 
present statements from witnesses or pro-
vide evidence; and 
‘‘(ii) providing the complainant an op-
portunity to receive any statements or evi-
dence provided to the Secretary and to 
provide additional information or evidence, 
or to rebut any statements or evidence. 
‘‘(D) ACTION
BY
THE
SECRETARY.—If, 
upon such investigation, the Secretary deter-
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mines that the provisions of this subsection 
have been violated, the Secretary shall imme-
diately file a complaint with the Commission, 
with service upon the alleged violator and the 
miner or other employee, representative of min-
ers, or applicant for employment alleging such 
discrimination or interference and propose an 
order granting appropriate relief. 
‘‘(E) ACTION OF THE COMMISSION.—The 
Commission shall afford an opportunity for a 
hearing on the record (in accordance with sec-
tion 554 of title 5, United States Code, but 
without regard to subsection (a)(3) of such sec-
tion) and thereafter shall issue an order, based 
upon findings of fact, affirming, modifying, or 
vacating the Secretary’s proposed order, or di-
recting other appropriate relief. Such order 
shall become final 30 days after its issuance. 
The complaining miner or other employee, rep-
resentative, or applicant for employment may 
present additional evidence on his or her own 
behalf during any hearing held pursuant to this 
paragraph. 
‘‘(F) RELIEF.—The Commission shall have 
authority in such proceedings to require a per-
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son committing a violation of this subsection to 
take such affirmative action to abate the viola-
tion and prescribe a remedy as the Commission 
considers appropriate, including— 
‘‘(i) the rehiring or reinstatement of 
the miner or other employee with back pay 
and interest and without loss of position or 
seniority, and restoration of the terms, 
rights, conditions, and privileges associated 
with the complainant’s employment; 
‘‘(ii) any other compensatory and con-
sequential damages sufficient to make the 
complainant whole, and exemplary dam-
ages where appropriate; and 
‘‘(iii) expungement of all warnings, 
reprimands, or derogatory references that 
have been placed in paper or electronic 
records or databases of any type relating 
to the actions by the complainant that 
gave rise to the unfavorable personnel ac-
tion, and, at the complainant’s direction, 
transmission of a copy of the decision on 
the complaint to any person whom the 
complainant reasonably believes may have 
received such unfavorable information. 
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‘‘(4) NOTICE TO AND ACTION OF COMPLAIN-
ANT.— 
‘‘(A) NOTICE
TO
COMPLAINANT.—Not 
later than 90 days of the receipt of a complaint 
filed under paragraph (2), the Secretary shall 
notify, in writing, the miner or other employee, 
applicant for employment, or representative of 
miners of his determination whether a violation 
has occurred. 
‘‘(B) ACTION
OF
COMPLAINANT.—If the 
Secretary, upon investigation, determines that 
the provisions of this subsection have not been 
violated, the complainant shall have the right, 
within 30 days after receiving notice of the Sec-
retary’s determination, to file an action in his 
or her own behalf before the Commission, 
charging discrimination or interference in viola-
tion of paragraph (1). 
‘‘(C) HEARING AND DECISION.—The Com-
mission shall afford an opportunity for a hear-
ing on the record (in accordance with section 
554 of title 5, United States Code, but without 
regard to subsection (a)(3) of such section), 
and thereafter shall issue an order, based upon 
findings of fact, dismissing or sustaining the 
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complainant’s charges and, if the charges are 
sustained, granting such relief as it deems ap-
propriate as described in paragraph (3)(F). 
Such order shall become final 30 days after its 
issuance. 
‘‘(5) BURDEN OF PROOF.—In adjudicating a 
complaint pursuant to this subsection, the Commis-
sion may determine that a violation of paragraph (1) 
has occurred only if the complainant demonstrates 
that any conduct described in paragraph (1) with re-
spect to the complainant was a contributing factor 
in the adverse action alleged in the complaint. A de-
cision or order that is favorable to the complainant 
shall not be issued pursuant to this subsection if the 
respondent demonstrates by clear and convincing 
evidence that the respondent would have taken the 
same adverse action in the absence of such conduct. 
‘‘(6) ATTORNEYS’ FEES.—Whenever an order is 
issued sustaining the complainant’s charges under 
this subsection, a sum equal to the aggregate 
amount of all costs and expenses, including attor-
ney’s fees, as determined by the Commission to have 
been reasonably incurred by the complainant for, or 
in connection with, the institution and prosecution of 
such proceedings shall be assessed against the per-
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