January 2022
TABLE OF CONTENTS

ADMINISTRATIVE LAW JUDGE DECISIONS
01-07-22

CAPURRO TRUCKING

WEST 2021-0183

Page 1

ADMINISTRATIVE LAW JUDGE ORDERS
01-21-22

KNIGHT HAWK COAL, LLC

LAKE 2021-0160

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Review Was Granted In The Following Cases During The Month Of January 2022
Robert Thomas v. Calportland Company and Secretary of Labor v. Calportland Company,
Docket Nos. WEST 2018-0402 DM, et al. (Judge Miller, December 2, 2021)
Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc., Docket No. WEST 2021-0178 DM
(Judge Miller, January 7, 2022)

Review Was Denied In The Following Case During The Month Of January 2022
Secretary of Labor v. Cactus Canyon Quarries, Inc., Docket No. CENT 2022-0010 (Chief Judge,
December 1, 2021)

ii

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January 7, 2022
MARIA T. WALKER,
Petitioner,

DISCRIMINATION PROCEEDING
Docket No. WEST 2021-0183
MSHA Case No. WE-MD-21-20

v.
CAPURRO TRUCKING,
Respondent.

Mine ID: 26-01089 / F732
Mine: Goldstrike Mine

DECISION ON RESPONDENT’S
MOTION FOR SUMMARY DECISION
Before:

Judge Sullivan

This discrimination proceeding is before the Commission pursuant to section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3).
Respondent Capurro Trucking (“Capurro”), pursuant to Commission Procedural Rule 67(a)-(c),
29 C.F.R. §2700.67(a)-(c), has filed a Motion for Summary Decision (“Resp’t Mot.”) on the pro
se discrimination complaint brought against it by its former employee, Complainant Maria T.
Walker. Complainant opposes the Motion for Summary Decision.
I.

GENERAL FACTUAL AND PROCEDURAL BACKGROUND

Capurro, headquartered in Sparks, NV, provides trucking services as a contractor under
the Mine Act from its Carlin, NV Mining Division facilities to nearby mines, including the
Goldstrike Mine of Nevada Gold Mines LLC. Complainant started as a Capurro ore haul truck
driver on November 25, 2019, with approximately three weeks of training.1 She worked as a
Capurro Mining Division driver until her termination on September 3, 2020.
According to the Exit Interview that Complainant attached to her Commission
Complaint, (hereinafter “105(c)(3) Compl.”), Capurro informed the Complainant that she was
being terminated for her “[f]ailure to take direction from supervisors without constant argument”
and “[d]isruption of workforce.” The Exit Interview further stated that “all communications and

1

Prior to her employment at Capurro, Complainant had six years of truck driving
experience. Questionnaire at 2. Complainant’s husband, Mr. William Walker, was hired in the
same position by Capurro at approximately the same time. Resp’t Mot. Ex. 1, ¶ 13.

44 FMSHRC Page 1

directives given from any management or supervision is a debate or argument” and are “very
disruptive and time consuming.” Id.2
Complainant, pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2),
subsequently filed a discrimination complaint against Capurro with the Department of Labor’s
Mine Safety and Health Administration (“MSHA”) (hereinafter “MSHA Compl.”).3 However,
by letter dated March 19, 2021, MSHA notified Complainant that the Secretary of Labor would
not be filing a discrimination complaint on her behalf with the Commission, because “[b]ased on
a review of the information gathered during the investigation, MSHA does not believe that there
is sufficient evidence to establish, by a preponderance of the evidence, that a violation of Section
105(c) occurred.”
Along the lines suggested in MSHA’s March 19th letter, and as discussed in further detail
below, Complainant filed her own discrimination complaint with the Commission, dated April
13, 2021. Capurro timely filed its Answer, and on June 7, 2021, Chief Administrative Law Judge
Glynn F. Voisin assigned me this matter.
On June 15, 2021, I conducted a conference call with the parties. Among the topics
discussed was the scope of a Commission discrimination proceeding.4 I granted Complainant’s
request that a hearing not be held in the near term, primarily in order to permit her to receive and
review documents she had requested from MSHA through the Freedom of Information Act
(“FOIA”).5 I explained to both parties that it was unrealistic to expect that any of the materials
obtained from MSHA pursuant to a FOIA request would include MSHA’s view on the merits of
2

The Exit Interview cited a specific example of disruption it attributed to the
Complainant. According to Capurro, Complainant had recently, in a group text thread, objected
to a Covid-19 temperature check protocol, which in turn caused “several others to fear
temperature checks and park several pieces of equipment causing hardship to the employer and
the employer[’]s inability to perform customer needs.”
3

The MSHA complaint includes (1) a completed MSHA Form 2000-123 titled,
“Discrimination Complaint,” and (2) MSHA Form 2000-124 titled, “Discrimination Report,” a
one-page narrative dated October 13, 2020, describing the basis for the complaint. While her
MSHA Form 2000-123 stated that she would “possibly” seek temporary reinstatement,
Complainant later informed MSHA that she was not interested in returning to work for Capurro.
4

The initial pleadings in this case, along with the initial conversation with the parties,
indicated that not only the pro se Complainant, but also Capurro’s able counsel, viewed this
Commission proceeding as an appeal of the Secretary’s decision not to pursue the case, rather
than the de novo proceeding contemplated by section 105(c)(3). Such an erroneous impression
may have resulted from the final instruction in the MSHA form letter concerning the filing of a
section 105(c)(3) complaint, which refers to any subsequent Commission case as an “appeal
file.”
5

MSHA had indicated that the agency would take approximately three months to fully
answer the FOIA request. During this time Complainant was expecting to complete her planned
relocation to a town in Idaho approximately 500 miles from Carlin.

44 FMSHRC Page 2

the Complainant’s discrimination allegations. However, given the circumstances and that the
request was from a pro se Complainant, I viewed it as reasonable one and issued a Notice of
Hearing and Prehearing Order for December 2021. See Ribble v. T & M Dev. Co., 22 FMSHRC
593, 595 (May 2000) (holding that pro se complainant who met Commission’s minimal section
105(c)(3) proceeding pleading requirements be afforded opportunity to prove discrimination
allegations under the Commission’s Procedural rules).6
After both parties conducted discovery, on November 15, 2021, Capurro filed its Motion
for Summary Decision, along with a five-page Statement of Undisputed Facts, two affidavits,
and approximately 600 additional pages of exhibits (“Resp’t Ex.”).
In response, Complainant filed a one-page opposition to Capurro’s Motion, to which she
appended a two-page “response” to Capurro’s initial Answer. Complainant also submitted 356
pages of documents she characterized as exhibits (“Walker Ex.”). Many of the documents were
copies of repetitive instances of the same text conversation, and many documents included
Complainant’s undated annotations. Also accompanying the exhibits was a four-page “Exhibit
Form” in which Complainant tersely summarized the documents and her view of their import.
Because the Complainant is pro se, I have liberally construed Commission Rule 67(d), 29 C.F.R.
§ 2700.67(d), which governs the form of opposition to motions for summary decision.
With the prospect of a hearing that could only be held via Zoom video conferencing,7 I
held a Zoom session with the parties on December 9, 2021. The purpose of the session was to
explore their respective abilities to conduct a full video conference hearing, as well as to discuss
the issues in the case, including those raised by a voluminous summary decision record.
At that time, Complainant requested a continuance to the hearing so that she could
continue with what she represented were ongoing conversations with experienced Mine Act
counsel regarding his serving as her attorney in the case. I granted the continuance request,
indicating that I had not yet decided how I would rule on the Motion for Summary Decision, but
would do so in a written order or decision before ordering further proceedings in the case, if any.
I also suggested that Complainant respond in good faith to Capurro’s outstanding offer to discuss
6

In the interim, Commission staff attempted to cure the absence in her section 105(c)(3)
Complaint of the relief that Complainant was seeking. See Commission Procedural Rule 42, 29
C.F.R. § 2700.42 (“A discrimination complaint shall include . . . a statement of the relief
requested.”). By e-mail dated September 20, 2021, Complainant responded she was seeking
$5,000,000. She also indicated her desire that the case result in Capurro firing or otherwise
disciplining various members of its Mining Division management.
Complainant was thereupon informed that such requests far exceeded any remedy
conceivably permitted by section 105(c). See Sec’y on behalf of Rieke v. Akzo Nobel Salt, Inc.,
19 FMSHRC 1254, 1257-60 (July 1997) (discussing that goal of Mine Act is to make
discriminatees whole). In the absence of a serious response from Complainant, I am assuming
that her statement to MSHA during its investigation that she was seeking backpay, but not
reinstatement, extends to her case before the Commission.
7

The Commission was not holding in-person hearings through 2021 due to the changing
circumstances regarding Covid-19.

44 FMSHRC Page 3

potential settlement, informing the parties, as I had before, that the Commission could assist
these discussions by appointing settlement counsel in the case.
A month later, Complainant has yet to provide a definitive answer on whether she will be
retaining the counsel she referenced at the conference (or any other), and recent indications are
she is not interested in participating in settlement discussions. Consequently, due process and
fairness considerations require that I rule upon Capurro’s Motion for Summary Decision now.
II.
A.

SUMMARY OF APPLICABLE LAW

Establishing Discrimination Under the Mine Act

The pertinent provision of the Mine Act, section 105(c)(1), provides that “No person
shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise of the statutory rights of any miner
. . . in any coal or other mine subject to this Act because such miner, . . . has filed or made a
complaint under or related to this Act, including a complaint notifying the operator or the
operator’s agent . . . of an alleged danger or safety or health violation in a coal or other mine.” 30
U.S.C. § 815(c)(1). In cases such as this one, that are potentially reviewable by the United States
Court of Appeals for the Ninth Circuit under section 106(a)(1) of the Mine Act, 30 U.S.C. §
816(a)(1), the key term in section 105(c)(1) is “because.” A discrimination complainant must
show that (1) she engaged in what is known as “protected activity” (i.e., “the exercise of
statutory rights”); and (2) that the adverse action complained (here the Complainant’s
termination) was “because” of that protected activity. In other words, at least in cases ultimately
subject to Ninth Circuit review, a Complainant must show that her employer would not have
taken the adverse action against her “but for” the protected activity she engaged in. Thomas v.
CalPortland Co., 993 F.3d 1204, 1210 (9th Cir. 2021) (remanding 105(c)(3) case for
Commission to apply “but-for standard”); Docket No. WEST 2018-0402 (Dec. 2, 2020), at 11
(ALJ) (decision on remand applying but-for standard), pet. for rev. filed Dec. 29, 2021; see also
Sec’y on behalf of Alvaro v. Grimes Rock, Inc., 43 FMSHRC 299, 302-03 (June 2021).
The question of whether an employer would not have taken an adverse action “but for” a
complainant’s protected activity is one of motivation. Motivation can be established either
directly or indirectly, through circumstantial evidence. Relevant considerations in determining
motivation are the employer’s knowledge of the protected activity, its hostility towards the
protected activity, the coincidence in time between the protected activity and the adverse action,
and disparate treatment of the complainant. See Sec’y on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)), rev’d on other grounds, 709 F.2d 954 (D.C. Cir.
1983).
B.

Summary Decision Standard

Commission Procedural Rule 67(b) provides that a motion for summary decision shall be
granted only if “the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as to any
material fact; and (2) [t]hat the moving party is entitled to summary decision as a matter of law.”

44 FMSHRC Page 4

29 C.F.R. § 2700.67(b). The Commission analogizes summary decision to Rule 56 of the Federal
Rules of Civil Procedure governing summary judgment. Lakeview Rock Prods., Inc., 33
FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as the Commission
observes, determined that summary judgment is only appropriate “upon proper showings of the
lack of a genuine, triable issue of material fact.” Id. at 2987-88 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986)).
The Supreme Court has also held that both the record and “inferences drawn from the
underlying facts” must be viewed in the light most favorable to the party opposing the motion.
Id. at 2988 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). However, only
such inferences that are “reasonable” may be drawn. Reeves v. Sanderson Plumbing Prod., 530
U.S. 133, 150 (2000); Tolan v. Cotton, 572 U.S. 650, 660 (2014). Consequently, in ruling upon
motions for summary judgment, courts have refused to indulge inferences from non-movants that
are “farfetched or fantastic” (Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v.
Winship Green Nursing Ctr., 103 F.3d 196, 206 (1st Cir. 1996)), that do not that do not follow
rationally from facts presented to the judge (Iglesias v. Mutual Life Ins. Co. of New York, 156
F.3d 237, 240 (1st Cir. 1998)), or that require the court to “accept . . . sheer speculation as fact.”
Robbins v. Becker, 794 F.3d 988, 997 (8th Cir. 2015). In short, a non-moving party “cannot rely
on conclusory allegations, improbable inferences, acrimonious invective, or rank speculation.”
Thompson v. Gold Medal Bakery, Inc., 989 F.3d 135, 141 (1st Cir. 2021).
III.

DISCUSSION AND ANALYSIS

In its Motion for Summary Decision, Capurro argues that Complainant has not alleged,
much less provided any evidence, that she engaged in activity protected by the Mine Act. Resp’t
Mot. at 11-13. Capurro maintains that the scope of any discrimination complaint before the
Commission is strictly circumscribed by matters raised in the initial complaint to MSHA,
because only those matters could have been investigated by that agency. Id. at 16. Capurro
further argues that the evidence it submitted establishes beyond any doubt that Complainant was
terminated for cause, and thus, under the “but for” section 105(c) test for discrimination, its
Motion should be granted. Id. at 13-15.
In opposing the motion, Complainant argues that Capurro still fails to sufficiently
document why it terminated her. She further contends that Capurro did not address her section
105(c) complaints and that the “constant absences” of Capurro Mining Division General
Manager David Peck “left unknowledgeable and untrained . . . managers/supervisors in his
stead.”
A.

The Permissible Scope of a Section 105(c)(3) Complaint

I first address Capurro’s arguments on the scope of the section 105(c)(3) complaint that
the Commission can entertain in this case. In Hatfield v. Colquest Energy, Inc., the Commission
held that the scope of a section 105(c)(3) proceeding is not defined solely by the original
complaint to MSHA but can also include additional matters that were “reported to” MSHA for
investigation. 13 FMSHRC 544, 546 (Apr. 1991). A section 105(c) proceeding is not strictly
circumscribed by the original complaint to MSHA if, during MSHA’s subsequent investigation,
additional information relevant to the question of whether discrimination occurred is uncovered.

44 FMSHRC Page 5

Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1322-26 (June 2016) (detailing MSHA
investigatory process in discrimination cases).
The MSHA investigatory process can hardly be described as transparent when the
Secretary declines to file a discrimination complaint with the Commission. Hence why it is
difficult for a section 105(c)(3) complainant, especially a pro se one, to establish the actual
extent of matters that MSHA investigated. Here, however, there is no question regarding what
matters Complainant “reported to” MSHA during its investigation, and thus provided the agency
the opportunity to investigate.
That is because Complainant appended to her Commission Complaint not only the
required original discrimination complaint to MSHA and the Capurro Exit Interview previously
discussed, but also copies of two other documents detailing the information she provided to
MSHA in support of her initial complaint. The first is a six-page document containing answers
the Complainant appears to have provided to various MSHA questions on October 29, 2020
(hereinafter “Questionnaire”). The second is a more formal document, the signed “Statement of
Maria Walker” that Complainant gave to MSHA Special Investigator Kyle E. Jackson on
November 17, 2020 (hereinafter “Complainant Statement”).
Consequently, in ruling upon the Motion for Summary Decision, I will review the
allegations in the Complaint to the Commission to the extent that they were reported to MSHA in
the Complaint to MSHA, the Questionnaire, or the Complainant Statement. I will not address the
additional allegations Complainant made to MSHA in the latter two documents that she did not
include in either of her complaints. See Carmichael v. Jim Walters Res., Inc., 20 FMSHRC 479,
484 n.9 (May 1998) (“Whatever its value as evidence, the [section 105(c)(3)] complaint to the
Commission, much like a complaint in a court proceeding, is a basic pleading that serves to
frame the issues to be tried.”). Such review will be conducted in accordance with the standard for
summary decision.
B.

Whether the Section 105(c)(3) Complaint Includes Allegations of Protected Activity
Raised in the Complaint to MSHA or the Subsequent Investigation

Much of the Complaint to the Commission is a compendium of accusations against
Capurro, many of which are quite serious. For instance, as she had to MSHA, Complainant
alleges criminal conduct on the part of Capurro and its agents. Included are allegations of “fraud”
carried out by Capurro’s agents, “payoffs of mine employees,” and theft from the company.
While Complainant identifies those she accuses by name, most of those names will not be
repeated here, given the Complainant’s tendency to cavalierly allege criminal conduct, not only
by individuals within Capurro’s Mining Division management but outside of it as well.8 With the
exception of one serious accusation, none of the claims will be addressed in this decision
because, even if true (which the record indicates there is much reason to doubt), they have
8

In responding to the Motion for Summary Decision, Complainant included a copy of
her letter to the superior of a Nevada Highway Patrol Commercial Enforcement Officer, in which
she accused the officer of having accepted a bribe from Capurro. Dated October 19, 2021, the
letter appears to have been prompted by information Complainant would have then recently
learned through the discovery process in this case. See Walker Ex. WV-1(a) & (b).

44 FMSHRC Page 6

nothing to do with workplace safety. Rather they only concern how Capurro carried out other
aspects of its business operations.9
The Complainant maintains that the reason she was terminated was not related to how she
carried out her job duties, but rather because she knew “too much” regarding the criminal
conduct at Capurro. 105(c)(3) Compl. at 1. According to the Complainant, she posed a risk to the
company’s management personnel, in that she could inform Capurro’s owner in Reno “of all the
going-on’s” at the Carlin location. The Complainant further alleges that because she knew “too
much,” she was treated differently from other drivers by management with respect to
enforcement of company rules. Her ultimate request is that, before the Commission, she be
permitted to “challenge Capurro, in which to produce true and correct documentation against
their falsified and sparse history” of her employment there. Id. at 2.
At bottom, Complainant’s case revolves around allegations of disparate treatment of her
by management. Of course, a Mine Act discrimination case based on disparate treatment must
contain some plausible allegation that a miner had engaged in protected activity and was
subsequently treated differently than employees who had not engaged in protected activity. See,
e.g., Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1364-67 (Dec. 2000).
Keeping in mind that Complainant is pro se, I have thoroughly reviewed her Complaint
to the Commission, as supported by her original Complaint to MSHA and the additional MSHA
investigation documents she included, to discern any recognizable allegation of protected activity
under the Mine Act that may have motivated Capurro to terminate Complainant’s employment.
My conclusions are as follows:
1. “Stop work” Incident
The closest mention of protected activity in the Complaint to the Commission is what led
to what Complainant refers as the “stop work” incident. 105(c)(3) Compl. at 2. Capurro
described the incident as a “disruption of [the] work force” and included it as a reason for
Complainant’s termination.
According to the information Complainant provided to MSHA, on August 3, 2020, she
and other drivers on her shift learned that due to a mine’s Covid-19 concerns, driver compliance
with masking and temperature checks were now conditions of truck entry through the mine’s
gate. MSHA Compl. at 2; see also Walker Ex. WI-6 (L). It is undisputed that the new

9

The section 105(c)(3) Complaint also included absurdly false information. It stated that
“[m]y Exit interview did not even specify what I was being fired for.” As discussed, the Capurro
Exit Interview sheet clearly and succinctly provided the reasons Capurro gave Complainant for
her termination, doing so under the heading “Reason for Termination.” Complainant not only
attached this to her Complaint to the Commission, but her very first exhibit submitted is a copy
of the Exit Interview (which also indicates that she refused to sign it). Walker Ex. WI-1.

44 FMSHRC Page 7

requirements were the subject of a driver group text involving the Complainant, and she and
several other drivers subsequently parked their trucks.10
While the Mine Act grants miners the right to complain of a safety, health, or danger
violation, it does not expressly state that miners have the right to refuse to work under such
circumstances. Nevertheless, both the Commission and the courts have recognized the right to
refuse to work in the face of such perceived danger. See Dolan v. F & E Erection Co., 22
FMSHRC 171, 177 (Feb. 2000) (citing Price v. Montery Coal Co., 12 FMSHRC 1505, 1514
(Aug. 1990); Sec’y of Labor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 520
(Mar. 1984)). To be considered “protected,” work refusals must be based upon a “good faith,
reasonable belief in a hazardous condition.” Sec’y of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 812 (Apr. 1981); accord Gilbert v. FMSHRC, 866 F.2d 1433,
1439 (D.C. Cir. 1989). Consistent with the requirement that the complainant establish a good
faith, reasonable belief in a hazard, “a miner refusing work should ordinarily communicate, or at
least attempt to communicate, to some representative of the operator his belief in the safety or
health hazard at issue.” Sec’y of Labor on behalf of Dunmire v. N. Coal Co., 4 FMSHRC 126,
133 (Feb. 1982).
In this instance, Complainant has not alleged that the work stoppage arose from concerns
regarding potential adverse health or safety impacts associated with the new mine site
requirements. Rather, she stated that the basis for her and other drivers’ objections was that the
policy was understood to have been newly instituted during that shift, and that it was contrary to
the policy that previously applied to drivers who would not be exiting their trucks while at the
mine. In bringing her complaint to MSHA regarding this incident, Complainant never alleged
that concern with health or safety impacts prompted her involvement in it. Rather, her concern
was solely regarding how the issue was handled internally by Capurro. See MSHA Compl. at 2
(“As it turns out, [Capurro’s] acting supervisor was wrong [about the new mine policy] and the
whole incident was a waste of time, energy and emotion by her lack of due diligence. . . [O]ur
Supervisor then got involved when the issue became too big for our acting supervisor . . . .”11
In responding to Capurro’s Motion, Complainant provides contemporaneous evidence, in
the form of copies of her own texts with General Manager of Mining Division Peck. The texts
further establish that she was not objecting to compliance with the mine’s new masking and
temperature check requirement on safety or health grounds. See Walker Ex. WI-6 (c) (“I’m
trying to work within the rules but don’t [think?] that that was cool to spring [on] us. Was there
not a meeting?”); Walker Ex. WI-6 (h) (“Did you guys have a meeting on this with the mine?
Feels really weird we were informed on the road like that[.]”).
10

Contrary to the section 105(c)(3) Complaint, the Exit Interview does not state that the
Complainant initiated the work stoppage by being the first to park her truck. Rather, the Exit
Interview merely states that after the Complainant stated in the group text her refusal to comply
with the temperature check, several other drivers also parked their equipment.
11

The MSHA Complaint goes on to allude to Complainant having, on more than one
occasion, “issues with ‘Fill-in’ supervisors, as my boss was gone on many personal trips.” There
is no mention of protected activity having prompted any of the “issues.”

44 FMSHRC Page 8

Thus, there is no claim by Complainant that any disparate treatment of her with respect to
the August 3rd incident is connected to any activity protected by the Mine Act in which she
alleges to have engaged. Instead, this incident is more in line with what appears to be her myriad
other general complaints regarding how Capurro Mining Division management carried out dayto-day operations.12
Complainant’s issues with masks extend beyond requirements imposed by the mine, to
also include how Capurro carried out its own masking policy. Again, however, Complainant’s
issue was not that wearing masks posed any sort of health or safety hazard, either in general or
while carrying out her duties. Rather, her objection was that the policy was inconsistently
enforced. Walker Ex. WI-6 (x); (a-1). Complainant pointed to when she was asked to wear a
mask by management while indoors, and although she proceeded to go outside instead of putting
a mask on, management still requested that she put one on. MSHA Compl. at 2 (“made to put on
a mas[k]outside just so my safety director could see me, ‘Wear one for a few seconds’”); Walker
Ex. WI-6 (t). When describing this incident, the Complainant provided no indication that this
request impacted her medically, but rather just that she was asked to do so – again, aligning more
with a general grievance.
Moreover, Complainant’s issues with masks appear to stem from her personal views, as
she states in texts with management, that she is an employee who is against masks. Ex. WI-6 (o).
While Complainant indicated in texts with management that she could wear a mask while
working, she also communicated during the same text exchange that she and her husband will
“stand true to beliefs” and “will not bow to our generation of sheeples[s]” if they are asked to
wear a mask in a situation that can be “worked around.” Walker Ex. WI-6 (R).
2. Speeding Infractions
Complainant also alleges that Capurro treated her differently than other drivers, including
her own husband, with respect to discipline for violating Capurro’s speeding policies. 105(c)(3)
Compl. at 2. As background, in her Complaint to MSHA, Complainant stated that she “spent
many days off for speeding and held accountable as I accepted my responsibility for my actions.
12

Other documents submitted by the Complainant in response to Capurro’s Motion
indicate that at one time she feared an adverse impact from the use of the specific temperature
check device being used by the mine. Complainant’s fear, however, had to do with whether she
would be able to subsequently continue with her side avocation as a “light worker,” not as a
driver for Capurro. Walker Ex. WI-6 (C), WII-3(k),(l)). Complainant’s documents describe a
“light worker” as someone who facilitates “quantum healing hypnosis.” Walker Ex. WV-2 (a)(h). Even then, as her own documents show, Capurro Trucking management sent her pictures
and additional information regarding the type of thermometer used for temperature checks and
allowed the Complainant to take a day off, at her request, while management “figures out
particulars.” Walker Ex. WI-6 (g)-(j). This appears to have alleviated Complainants’ concern,
and she did not subsequently raise with MSHA her concern that the temperature check device
would adversely impact her “light worker” capabilities or that the prospect for its use on her
prompted her to park her truck.

44 FMSHRC Page 9

It was later after checking that others also had speeding infractions but were not given days off
and batches were even thrown in the garbage with no time off.” MSHA Compl. at 2.
Again, Complainant fails to suggest in either complaint that there was any protected
activity in which she engaged that may have prompted this alleged disparate treatment. At most,
during the MSHA investigation Complainant attributed some of the speeding infractions she
incurred to the lack of a working speedometer in the first truck she was assigned, Truck 29, and
claims that she had earlier alerted Capurro to that fact. Complainant Statement at 2;
Questionnaire at 3, 4. Capurro, in its Motion, disputes that Complainant had previously notified
it as to the condition of the speedometer. Resp’t Mot. at 12-13. This conflict need not be
resolved, however, because Capurro provided documentary evidence indicating that
Complainant was assigned Truck 29 only during her first month and was soon assigned other
trucks to drive for the remaining eight or so months while she drove for Capurro. Resp’t Mot.,
Ex. 10 (timecards) & 12 (truck assignments). Complainant does not dispute this, nor has she
alleged speedometer problems with those other trucks led to her additional speeding infractions.
Cf. Metz v. Carmeuse Lime, Inc., 34 FMSHRC 1820, 1825-26 (Aug. 2012) (finding termination
of complainant two to three weeks after his safety-related complaints indicated employer’s
discriminatory motivation); Bradley v. Belva Coal Co., 4 FMSHRC 982, 983, 992-93 (June
1982) (concluding that termination of complainant the same day he had engaged in a protected
work refusal was indicia of employer’s discriminatory motivation).
Capurro cited Complainant 21 more times for speeding instances during that period.
While Complainant took issue with the basis for a few of the later infractions during the MSHA
investigation (Complainant Statement at 4-5), consistent with her earlier admission that she
accepted responsibility for her speeding infraction record, she does not dispute that she incurred
many additional speeding infractions that she did not challenge at the time.13

13

Absent an allegation of protected activity that prompted the Capurro’s alleged disparate
treatment of the Complainant with respect to speeding infractions, any further conflicts between
the parties’ accounts on this issue need not be resolved. I note, however, that in its Motion
Capurro documented that Complainant was not the only driver suspended for speeding
infractions over the course of her employment. See Resp’t Mot. at 4 & Ex. 5 (showing
documentation of six other drivers suspended). Complainant herself also provided
documentation of other drivers receiving suspensions after speeding, contradicting her own
complaints. Walker Ex. WI-7 (A)-(B), WI-7 (J), (O), (P), and WI-7 (a) 24, 26 (featuring records
of various other drivers who received one-day and three-day suspensions for speeding).
Capurro’s documents further contradict Complainant’s claim to MSHA that “[e]very time I was
written up for speeding, I was given 3 days off.” Questionnaire at 3. Of the 22 times Capurro
cited the Complainant for speeding, the company’s records show that only six times was she
disciplined, only twice was she suspended, and only once was she suspended for three days.
Resp’t Mot. at 6-7 & Resp’t Ex. 5. Thus, there is evidence in the case that Complainant also
benefitted from any tendency on the part of Capurro to not strictly enforce its disciplinary
policies with respect to speeding infractions.

44 FMSHRC Page 10

3. Repair Incident
In her complaint to MSHA, the Complainant obliquely referred to another incident that
occurred on March 2, 2020—again relatively early in her tenure at Capurro. She described it as
her as having been required to wait for truck repairs at a mine site. MSHA Compl. at 2. In her
statement to MSHA, the Complainant alleged that she “one time red tagged the truck and they
cut it off and put it back in service.” She subsequently explained, however, that, at that point, the
truck had already been repaired at the mine, which permitted her to return to the Capurro truck
shop. It was there that she proceeded to red tag the repaired truck out of an admitted fit of pique,
stating “I was tired and upset that I was getting told two different things. So that is when I red
tagged the truck and told them they can figure it out.” Complainant Statement at 3.
When the MSHA Investigator asked Complainant how her reporting of safety issues led
to her termination, she responded not with specifics but instead simply claimed that she had
become a “pain” on reporting to Capurro issues with trucks and safety procedures not being
followed. Id. at 4. However, text messages between Complainant and Capurro management,
provided by the Complainant herself, include positive management feedback to Complainant’s
safety suggestions. Walker Ex. WI-6 (p), (w).
4. Down Time for Necessary Truck Washing
Complainant also alleges disparate treatment regarding the discipline she received
following instances in which she admitted to taking more time than routinely allotted to wash her
assigned truck. While her Complaint can certainly be read to involve a safety matter (“when it is
wet and the mag on the mine dries in your sensors, it is like concrete, therefore setting off the
ABS”), her claim is not that the discipline she received was for taking too long to clean her truck
to fix the problem. Rather, the discipline was for her not obtaining the required prior approval
before taking additional time. See MSHA Compl. at 2. Complainant does not dispute that
Capurro contemplated as a matter of policy that additional truck washing time could be
necessary. See Resp’t Ex. 8 at MSD0110 (noting the Plan for Improvement states “Be in contact
with immediate supervisor to inform them of any washing of trucks going longer than 30
mins.”). Complainant again raises the issue as one in which allegedly similarly-situated drivers
were not disciplined, but also again without alleging that Capurro’s disparate treatment towards
her was due to her exercise of protected activity. As with the speeding infractions, Capurro
documented the imposition of progressive discipline for not obtaining the required prior
approval, starting with coaching from her supervisor. Id., Ex. 10 at MSD0551, MSD0574,
MSD0533.
5. Falsification of Documents
The final allegation contained in the Complaint to the Commission that bears any
resemblance to a claim that the Complainant engaged in an exercise of protected activity is her
contention that she could prove that Capurro had “falsified MSHA documents.” Specifically, she
stated “[p]lease also be aware that I will also be filing [an] MSHA Hazard complaint that will
contain actual mine safety documents of falsification by” Capurro’s Mine Division management.
105(c)(3) Compl. at 1.

44 FMSHRC Page 11

Complainant did not include this falsification allegation in either her Complaint to
MSHA or in her formal November 17, 2020 statement to MSHA Special Investigator Jackson.
However, because it is a serious allegation, I have endeavored to discern from the documents
provided what the Complainant is referring to, in the context of her relationship with Capurro,
during the period of her employment and afterwards.
The Complainant’s only mention of “falsification” involving mine safety documents is in
her October 29, 2020 answers to questions from MSHA when she stated she was not seeking
reinstatement because her “safety information had also been altered and signature forged” by
Capurro. Questionnaire at 2. Complainant clearly did not provide to MSHA during its
investigation any support for this claim, thus her statement to the Commission almost six months
later that she “will be filing” an MSHA Hazard Complaint regarding falsification of mine safety
documents.
Just as importantly, if not more so, the Complaint to the Commission does not come close
to alleging that Complainant held this belief regarding falsification, in good faith or otherwise,
prior to her termination, and that Capurro had any knowledge that Complainant held this view.
Cf. Pero, 22 FMSHRC at 1364-65 (finding that complainant had engaged in protected activity
prior to her discharge when she had informed superiors that she believed company was falsifying
lost-day information on MSHA 7000-1 forms). Absent any claim by Complainant that such was
the case, her prolonged and mere promise to provide evidence of falsification, now that she no
longer works for the company, does not qualify as protected activity that could have motivated
the company to terminate her.
Accordingly, I grant Capurro’s Motion on the ground that there remains no genuine issue
of material fact as to whether Complainant engaged in protected activity as alleged in her
Complaint to the Commission. I thus do not reach Capurro’s alternative ground for summary
decision, which is that it has established as a matter of law that any protected activity on the part
of Complainant was not the “but for” cause of her termination.
CONCLUSION
For the foregoing reasons Respondent’s Motion for Summary Decision in this proceeding
is GRANTED and Complainant’s section 105(c)(3) proceeding is DISMISSED.

/s/ John T. Sullivan
John T. Sullivan
Administrative Law Judge

44 FMSHRC Page 12

Distribution:
Maria T. Walker, 115 Selway Rd., Kooskia, ID 83539 (morton4x4@gmail.com)
Sarah A. Ferguson, Esq., McDonald Carano, 100 W. Liberty St., 10th Floor, Reno, NV 89501
(sferguson@mcdonaldcarano.com)

44 FMSHRC Page 13

ADMINISTRATIVE LAW JUDGE ORDERS

44 FMSHRC Page 14

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

July 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES MCGAUGHRAN,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. PENN 2020-0015-DM

v.
LEHIGH CEMENT COMPANY, LLC,
Respondent.

Mine: Nazareth Plant I
Mine ID: 36-00190

ORDER DENYING MOTION TO ENFORCE ORDER
Before: Judge Rae
This matter comes before the Court upon the Secretary of Labor’s (“Secretary”) Motion
to Enforce Order (“Motion”). For the reasons set forth below, the Secretary’s Motion is denied.
I.

BACKGROUND

On August 20, 2019, I issued an Order Granting Temporary Economic Reinstatement
(“Order”) ordering Lehigh Cement Company, LLC (“Respondent”) to economically reinstate
James McGaughran in accordance with all terms set forth in the parties’ Joint Motion to Approve
Settlement Regarding Temporary Reinstatement. I issued the Order in the temporary
reinstatement proceeding, Docket No. PENN 2019-0144. Subsequently, I was assigned this
discrimination proceeding—Docket No. PENN 2020-0015—which concerns the merits of
McGaughran’s discrimination complaint. I set a hearing date of June 2-4, 2020 for the
discrimination proceeding. Subsequently, I postponed the hearing until October 27-30, 2020 due
to COVID-19.
On May 11, 2020, Respondent filed a Motion for Tolling of Economic Temporary
Reinstatement. On May 22, 2020, I issued the Order Tolling Temporary Reinstatement under the
temporary reinstatement docket, Docket No. PENN 2019-0144. The Secretary filed a Petition for
Discretionary Review of my Order Tolling Temporary Reinstatement, which the Commission
granted on July 1, 2020. The matter is currently pending before the Commission.
II.

DISCUSSION

The Secretary’s Motion alleges that Respondent is not honoring the Order. Specifically,
the Secretary alleges that Respondent failed to pay McGaughran the entire amount he is owed
under Respondent’s Annual Incentive Plan (“Incentive Plan”). The Incentive Plan provides
Respondent’s eligible employees with “an incentive compensation opportunity for improving

44 FMSHRC Page 15

operating performance within their areas of responsibility during the ‘plan year.’” Mot. to
Enforce Order Ex. 1, at 1. The Secretary seeks an order requiring Respondent to pay
McGaughran $12,000.00, which the Secretary claims represents the remainder of the Incentive
Plan payment that Respondent has withheld from McGaughran.1
Conversely, Respondent claims it is in full compliance with the Order. Respondent
argues that payments under the Incentive Plan are a discretionary “bonus,” not a “benefit” that
McGaughran is entitled to under the Order. Resp’t’s Opp’n to Mot. to Enforce Order, at 3-5.
Although Respondent made a partial Incentive Plan payment to McGaughran, Respondent now
maintains that the Order does not require Respondent to make any Incentive Plan payment to
McGaughran. Id. at 6-7. For that reason, Respondent seeks an order requiring McGaughran to
return the partial Incentive Plan payment to Respondent.
Ultimately, I cannot resolve the issues raised by the Secretary’s Motion at the present
time because the Motion is not properly before me and because I lack jurisdiction over the
temporary reinstatement proceeding. The Secretary filed the instant Motion under the incorrect
docket. The instant discrimination proceeding solely concerns the merits of McGaughran’s
discrimination claim, not issues addressing compliance with the Order. Rather, the matter of
enforcing compliance with the Order would be properly filed under Docket No. PENN 20190144, the temporary reinstatement proceeding.
However, this Court would lack jurisdiction to address the substance of the Secretary’s
Motion even if it were filed under the temporary reinstatement docket. Per Commission Rule
45(e), “[a] Judge’s order temporarily reinstating a miner is not a final decision within the
meaning of [Section] 2700.69, and[,] except during appellate review of such order by the
Commission or courts, the Judge shall retain jurisdiction over the temporary reinstatement
proceeding.” 29 C.F.R. §2700.45(e)(4) (emphasis added); see also BR&D Enters., Inc.,
23 FMSHRC 386, 389 (Apr. 2001). During the Commission’s review of the Order, the Court
does not retain jurisdiction over the temporary reinstatement proceeding.2 29 C.F.R.
§ 2700.45(e)(4).

1

From 2016 through 2019, Respondent paid McGaughran an incentive payment that
ranged from 15% to 17% of his annual salary. McGaughran Decl. ¶ 5. The Incentive Payment
Respondent paid McGaughran in April 2020 represented approximately 7% of his annual salary.
Id. ¶¶ 6, 7.
2

Even if I had jurisdiction, I would find that payments under the Incentive Plan are not a
“benefit” that McGaughran is entitled to under the Order. Payments under the Incentive Plan are
solely at the discretion of Respondent to award. Further, Section VI.D of the Incentive Plan
states that “incentive payments . . . shall not be deemed a part of a participant’s regular, recurring
compensation for purposes of calculating payments or benefits from any Company benefit plan
or severance program.” Mot. to Enforce Order Ex. 1, at 7.

44 FMSHRC Page 16

Therefore, I deny the Secretary’s Motion to Enforce Order because the Motion is not
properly before me and because I lack jurisdiction over the temporary reinstatement proceeding
pending review by the Commission.
ORDER
The Secretary’s Motion to Enforce Order is DENIED.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

Distribution:
M. del Pilar Castillo, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence
Mall West, Suite 630E, Philadelphia, PA 19106, Castillo.M.Pilar@dol.gov
Margaret Lopez, Carin Burford, OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C.,
1909 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com,
carin.burford@ogletreedeakins.com

44 FMSHRC Page 17

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
TELEPHONE NO.: 202-434-9933
TELECOPIER NO.: 202-434-9949

July 25, 2020
SECRETARY OF LABOR, U.S.
DEPARTMENT OF LABOR on behalf of
WILLIAM R. WHITMORE,
Complainant

TEMPORARY REINSTATEMENT
Docket No. KENT 2020-0116-DM
Mine: Riverside Stone Mine
Mine ID: 15-00081

v.
YAGER MATERIALS CORP.,
Respondent

Docket No. KENT 2020-0117-DM
Mine: Riverside Stone Mine
Mine ID: 15-18549

ORDER ON RESPONDENT’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
Respondent, Yager Materials Corp., through Counsel, filed, on July 21, 2020, a Motion to
Compel Production of Documents. (“Motion”). The Court held a conference call with the parties
on July 23, 2020 to discuss the Motion. During that call the also Court issued its rulings on the
subjects identified in the Motion. This Order memorializes the Court’s rulings.
The Motion requested the following documents: Copies of the statement or memorandum
of interview of any interview of Mr. Whitmore; Copies of the statements or memoranda of
interviews of any management witness; Copies of all exhibits the Secretary intends to introduce
at hearing on the Secretary’s Application for Temporary Reinstatement in this matter; Copies of
any documents Mr. Fugate relied upon in preparing his Declaration. Motion at 2-3.

44 FMSHRC Page 18

The Secretary responded to the Motion via an email, objecting to it on the basis that it ran
afoul of several of the Commission’s Procedural Rules, including claims that the response to the
Motion would not be due until the day of the temporary reinstatement hearing or later and that
discovery was not expressly contemplated for a hearing on a temporary reinstatement
application. The full text of the Secretary’s email response is footnoted here.1
1

The Secretary’s Attorney stated in his email that he “request[ed] oral argument on this
matter [asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder: As the
parties are aware, by Rule, a response to the Respondent’s Motion is not due for eight days from
service, which would be July 29, 2020, the day of the hearing. 29 C.F.R. 2700.10(d). Any
discovery served under the Rules would not be due for 25 days from service. 29 C.F.R.
2700.57(c). If we call what [Respondent’s Attorney] served on July 17, 2020 “Document
Requests,” the responses from the Secretary would not be due until August 11, 2020. The Rules
also clearly state that discovery must be completed at least 20 days before a hearing. 29 C.F.R.
2700.56(e). We are within 20 days of hearing and were when the requests were served. Even [the
Respondent’s attorney’s] arbitrary deadline of this Friday [July 24, 2020] (after he conceded his
initial arbitrary deadline of tomorrow) has not passed for the Secretary’s responses. So, to have
any discussion of what the Rules permit, we must ignore the plain language of the foregoing
rules, and the deadline that the Respondent, itself, set. The Respondent and the Secretary agree
on one thing: the Commission Rules do not expressly contemplate discovery commencing after a
request for a hearing on an Application for Temporary Reinstatement: (d) Initiation of discovery.
Discovery may be initiated after an answer to a notice of contest, an answer to a petition for
assessment of penalty, or an answer to a complaint under section 105(c) or 111 of the Act has
been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R. 2700.56(d). Absent from this list is the request
for a Temporary Reinstatement hearing. This absence is intentional in light of the unique scope
of such a hearing and the speed at which it must be completed. If the rules contemplated
discovery prior to a Temporary Reinstatement hearing, they would necessarily have set forth
things like the scope of such discovery in light of the limited scope of the hearing, alternate time
frames for service of requests and responses, and a blanket exemption from Rule 2700.56(e).
Initial disclosures, rather than discovery, would be more appropriate given the tight deadlines
between the request for a hearing and the hearing itself, but the Rules contain no such provisions.
As I explained to [the Respondent’s Attorney]: he wants discovery, the complainant (I am sure)
wants discovery, and the Secretary wants discovery. Why does the Respondent get discovery and
not the Secretary or the Complainant? The time frame for a Temporary Reinstatement hearing
does not allow the parties the opportunity to serve discovery and to lodge good-faith objections
to such requests. As we have here, we are essentially preparing for the hearing at the same time
we are having a discovery dispute. If all of the parties, as the Respondent argues, are allow[ed] to
serve discovery, the week before the hearing will be filled with constant expedited discovery
battles for which the Rules set forth no time frames. This current issue only came to a head
because the Secretary’s counsel affirmatively stated that discovery was not permitted. Had the
undersigned waited until this Friday to do so, the issue would not be before the Tribunal until
three days before the hearing. Had the Secretary served discovery responses with objections, the
same problem would have arisen. Finally, since the Rules set forth no limit on discovery for
[a]Temporary Reinstatement proceeding, who is to decide the scope of what is permissible for
such requests and how many requests can be served? There is simply no guidance available on
(continued…)

44 FMSHRC Page 19

At the outset of the July 23, 2020 conference call with the parties to discuss the Motion,
the Court informed that it considered the Secretary’s Counsel’s procedural objections to have
been waived by virtue of his email response.
The Court’s rulings on the Motion were also informed by the Commission’s procedural
rules on the subject of Temporary reinstatement Proceedings at 29 CFR 2700.45. It is noted that
subsection (d) of that section provides that “[t]he scope of a hearing on an application for
temporary reinstatement is limited to a determination as to whether the miner's complaint was
frivolously brought. The burden of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the testimony of the
complainant. The respondent shall have an opportunity to cross-examine any witnesses called
by the Secretary and may present testimony and documentary evidence in support of its position
that the complaint was frivolously brought.” Id. (emphasis added). In that regard, the Court
notes that there is no reference to the MSHA investigator’s declaration. Rather, the focus is upon
the testimony of the complainant and that the Secretary’s presentation can rely solely upon that.2
1. The Respondent’s request for copies of the statement or memorandum of interview
of any interview of Mr. Whitmore
Apart from the Court’s ruling that the Secretary had waived issues regarding the due date
for a response to the motion, the Court informed the parties that it did not view the Respondent’s
request for copies of the statement or memorandum of interview of any interview of Mr.
Whitmore to be properly denominated as “discovery,” at least in the classic sense of that term.
The Court explained its reasoning for this determination, noting that all the Respondent had, and
all that the Court had as well, was the Complainant’s signed, but unfairly uninformative May 18,
2020, “Discrimination Report.” That document contained a typed “Summary of Discriminatory
Action,” which stated in its entirety the following:
I was suspended on April 23, 2020, then discharged on April 29, 2020, from my
job as the Maintenance Manager at Riverside Stone underground and surface
mines because of numerous protected safety activities that I engaged in.
Discrimination Report, May 18, 2020.

1

(…continued)
what the permissible scope of discovery is in light of the ‘not frivolously brought’ standard. It is
inconsistent that a party would be burdened with a broader scope of discovery than its burden of
proof at an expedited hearing. The Rules contain no guidance on these issues because discovery
was not completed, and was specifically excluded, for Temporary Reinstatement hearings.” July
21, 2020 email from the Secretary to the Court.
2

As explained infra with regard to the Respondent’s request for copies of the statement
or memorandum of interview of any interview of Mr. Whitmore, the Court considered the
Respondent’s discovery request to actually be a request for a complete statement of the
Complaint from the Complainant Whitmore.

44 FMSHRC Page 20

The “Discrimination Complaint” document itself was no more enlightening. At its
heart, it informed of the Complainant’s name, rate of pay, job title and the address of the
Respondent’s mine and the names of four individuals employed by the Respondent alleged to be
responsible for the discriminatory action.3 Discrimination Complaint, May 19, 2020.
Importantly, the Discrimination Complaint added nothing, that is to say it provided no
additional information whatsoever regarding any particulars about the alleged protective activity.
It was only through the vehicle of the Secretary’s “Declaration of Freddie Fugate,”
identified as a “senior special investigator” employed by MSHA, that some particulars about the
nature of the Complainant’s discrimination complaint were first revealed. Of course, Mr. Fugate
has no more first-hand knowledge about the Complainant’s allegations than the Court.
Accordingly, the Fugate Declaration serves as a mere conduit, recounting the allegations
made by the Complainant and nothing more than that. Thus, the Court does not consider it farfetched to analogize the Fugate Declaration as akin to an individual relating a story over a fence
to a neighbor. And it is that serious shortcoming that formed the basis of the Court’s problem
with the inadequacy of the declaration. The story may be an accurate retelling, or it may not, but
for purposes of defending a discrimination complaint under due process, a respondent has a right
to more. The Respondent is entitled to the Complainant’s first-hand accounting of the basis for
his discrimination complaint. Fundamental fairness demands this. See, e.g., Sec. v. Cumberland
Coal Resources, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the
“concepts of fundamental fairness [ ] require that every litigant receive adequate notice of
charges made against it.” Id. at 449.
Accordingly, during the conference call, the Court ordered that copies of the statement or
memorandum of interview of any interview of Mr. Whitmore be provided.
2. Copies of the statements or memoranda of interviews of any management witness
The Court ruled during the conference call that this request was denied. The basis for that
ruling was that such statements, if they exist, are not necessary in the context of the Secretary’s
burden in an application for temporary reinstatement. If the Secretary did intend to introduce
such documents, the Court’s order for the parties’ prehearing exchange would cover those.4 As
an aside, the Court opined that it would be highly unusual for any management witness to have
made a statement without receiving a copy of it.

3

Four individuals are named in Complaint itself as those responsible for the
discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman, but there
is no information tying those individuals to Whitmore’s Discrimination Report.
4

The Court had previously ordered that the parties conduct their prehearing exchange by
Friday, July 24, 2020. The parties submitted those exchanges pursuant to that order.

44 FMSHRC Page 21

3. Copies of all exhibits the Secretary intends to introduce at hearing on the
Secretary’s Application for Temporary Reinstatement in this matter
This request, as alluded to above, was covered by the Court’s prehearing exchange order.
4. Copies of any documents Mr. Fugate relied upon in preparing his Declaration.
As the Court ruled that Mr. Fugate’s declaration could not serve as a substitute for copies
of the statement or memorandum of interview of any interview of Mr. Whitmore, this request
was denied. The Court considered that such other documents, if they exist, would more
appropriately be the subject for possible discovery in a full hearing on the merits in the
complainant’s discrimination complaint, but not in the context of a temporary reinstatement
application. It is noted that such a request could run afoul of attorney-client or deliberative
process claims.
Accordingly, having ruled on the four aspects of the Respondent’s Motion, this matter
has been disposed of and will now proceed to the hearing on the application for temporary
reinstatement set to commence on Wednesday, July 29, 2020 at 9:00 a.m. EDT.
SO ORDERED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Thomas J. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Department of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219 motzny.thomas.j@dol.gov
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
Arthur M. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222
awolfson@fisherphillips.com

44 FMSHRC Page 22

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202 434-9987 / FAX: 202 434-9949

January 21, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2021-0160
A.C. No. 11-03147-536309

v.
KNIGHT HAWK COAL, LLC,
Respondent

Mine: Prairie Eagle-Underground

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before: Judge Young
This matter is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary filed a Motion to Approve
Settlement setting forth the factual bases for the proposed modifications. When I disapproved the
settlement, the Secretary filed amended motions, which I disapproved based on my concerns
with the removal of a “Significant and Substantial” (“S&S”) designation.
The Secretary now seeks interlocutory review of this proceeding, pursuant to
Commission Procedural Rule 76, 29 C.F.R. § 2700.76. I agree with the Secretary that this
interlocutory ruling involves a controlling question of law, and that immediate review will
materially advance the final disposition of this proceeding. I certify for review this question:
whether the Secretary has unreviewable discretion to remove a “Significant and Substantial”
(“S&S”) designation from a contested citation without the Commission’s approval.
This case was assigned to me on August 18, 2021. This docket includes three citations
issued pursuant to Section 104(a) of the Mine Act. The Secretary submitted a motion to approve
settlement on August 24, 2021, in which the Secretary proposed removing S&S designations
from two citations: Citation Nos. 9198165 and 9198038. The third citation remained unaltered.
Additionally, the motion requested a penalty reduction from $7,960.00 to $4,590.00. After
review and careful consideration, I denied approval of this settlement via email—specifying that
for Citation Nos. 9198165 and 9198038, I needed clarification of the operator’s arguments in
support of why the facts and circumstances surrounding the conditions were not reasonably
likely to contribute to an event with the potential to cause significant injuries. The email
provided possible resolution—a detailed explanation—rather than Commission review.

44 FMSHRC Page 23

The Secretary chose to submit subsequent motions to approve settlement on September 3,
September 13, and September 14, 2021. Although I determined that the amended explanation for
the removal of the S&S designation from Citation No. 9198165 was satisfactory, I was not
provided with sufficient factual support to approve such removal from Citation No. 9198038.1 As
such, my approval of the settlement would unfairly compromise the public interest by conceding
an important issue without reasonable justification for doing so. Therefore, I issued an order on
September 30, 2021, denying the motion to approve settlement (“Denial Order”).2 In order to
resolve the question of law before us, the Secretary submitted a motion for certification on
November 24, 2021.
I.

The Standard for Approval of Proposed Settlements

The Secretary relies on the Commission’s decisions in Mechanicsville Concrete, Inc. and
American Aggregates of Michigan, Inc. as support for his contention that he need only depend on
his discretion when vacating S&S designations. S. Mot. ¶ 6(C)(2); Am. Aggregates of Mich.,
Inc., 42 FMSHRC 570, 576–79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC
877, 879–89 (June 1996)). However, Mechanicsville and American Aggregates do not confer
sole discretion upon the Secretary or limit the evaluation of the Commission under section
110(k) of the Mine Act. The Secretary made a S&S designation and now intends to modify it. He
cannot rely solely on discretion, but must provide sufficient factual support. See 29 C.F.R.
§ 2700.31(b)(1) (requiring “facts in support of the penalty agreed to by the parties”); see also
Am. Coal Co., 38 FMSHRC 1972, 1981 (Aug. 2016) (“AmCoal I”); Black Beauty Coal Co., 34
FMSHRC 1856, 1856 (Aug. 2012).
The unreviewable discretion asserted by the Secretary is contrary to the Mine Act’s
requirement that the Commission approve all settlements. See 29 C.F.R. § 2700.31(g) (“Any
order by the Judge approving a settlement shall set forth the reasons for approval and shall be
supported by the record.”). While the Secretary retains prosecutorial discretion at the citation and
petition stage, Commission Judges have the authority to review proposed compromises. 30
C.F.R. § 2700.31(b) (“A motion to approve a penalty settlement shall include for each
violation . . . facts in support of the penalty agreed to by the parties.”) (emphasis added). Rule 31
enables Judges to review proposed penalties under section 110(k) of the Mine Act, which
provides, “No proposed penalty which has been contested before the Commission under section
105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.”
30 U.S.C. § 820(k).
The Secretary argued in AmCoal I that enforcement agencies are generally presumed to
have unreviewable discretion to settle enforcement actions, and that section 110(k) does not
provide meaningful or substantive standards sufficient to limit the Secretary’s prosecutorial
discretion as applied to settlement agreements. 38 FMSHRC at 1974–75 (citing as support the
“Heckler Test” established in Heckler v. Chaney, 470 U.S. 821, 834 (1985)). The Commission
1

This is a controlling question of law because there is no other defect with the settlement.
If I am found to be in error, I will approve on remand the motion as submitted to me. Otherwise,
the case will still be before me subject to further action by the Secretary and Respondent.
2

I incorporate that order here by reference.

44 FMSHRC Page 24

has expressly rejected, and the text and structure of the Mine Act refutes, this argument. Id. at
1979–81. As the Commission held in AmCoal I, Congress charged the Commission with the
administration of section 110(k), which explicitly grants the Commission the authority to
approve settlements and limits the Secretary’s authority to reduce contested penalties. As the
Commission noted, the assessment of civil penalties under the Mine Act has not been committed
to the Secretary by law, but was instead expressly and clearly delegated to the Commission. Id.
The Commission has employed a meaningful abuse of discretion standard—discussed in detail
below—under which the Secretary is required to provide facts in support of settlement. This
requirement may only be deemed inappropriate if it is unreasonable or inconsistent with the
Mine Act—and it is not.
A. The Secretary's cited authority does not confer the discretion asserted.
The Secretary’s reliance on Mechanicsville is misplaced. Mechanicsville is irrelevant to
this proceeding because it relies upon the Commission’s decision in RBK Construction, Inc.,
15 FMSHRC 2099, 2101 (Oct. 1993), which in turn relied upon the U.S. Supreme Court’s
decision in Cuyahoga Valley Railway Co. v. United Transportation Union, 474 U.S. 3, 6–7
(1985). In contrast to the case at hand, RBK Construction did not involve a settlement, and the
Court in Cuyahoga Valley grounded its decision on the statutory scheme of the Occupational
Safety and Health Act, which—unlike section 110(k) of the Mine Act—does not require the
Occupational Safety and Health Review Commission to approve settlements.
Even if the cited authority was relevant to a case which has been contested before the
Commission under section 105(a), an important distinction between this proceeding and
Mechanicsville renders it inapplicable. The present case involves a proposal to eliminate an S&S
designation, while the Commission in Mechanicsville held that an ALJ may not add an S&S
designation on his or her own initiative. Mechanicsville Concrete, Inc., 18 FMSHRC at 880, 882.
These important distinctions between this case and Mechanicsville render this authority
irrelevant to this case.
The Secretary’s reliance on American Aggregates is also misplaced. In this case, the
Commission vacated a Judge’s decision to deny a settlement motion because the Judge ignored
information that was relevant to the reasonableness of the settlement under the AmCoal criteria.
42 FMSHRC at 577, 581. This information included several facts that were relevant to, and
plausibly supported, a decrease in gravity and negligence, and the removal of the S&S
designation. The Commission only reversed the Judge’s denial of the settlement, and the
included removal of the S&S designation, because of the Judge’s failure to consider the
significant factual support provided.
B. The Secretary must provide substantive, relevant facts in support of modifying
violations in a motion to approve settlement.
The Commission has consistently required its judges to consider facts that are both
substantive and relevant to proposed modifications before a motion to approve settlement may be
granted. The facts provided must enable a plausible inference that the violation at issue can be
justly compromised. In the case at hand, the facts provided must permit an inference that facts

44 FMSHRC Page 25

might be established at hearing that could result in the violation in question not being affirmed as
S&S.3
1. The Commission has consistently required Judges to consider substantive, relevant
facts in support of settlement.
No definition of the term “relevant” has been provided by the Commission to date.
However, Black’s Law Dictionary defines the term “relevant” as “[l]ogically connected and
tending to prove or disprove a matter in issue; having appreciable probative value — that is,
rationally tending to persuade people of the probability or possibility of some alleged fact.” See
Relevant, BLACK’S LAW DICTIONARY (10th ed. 2014). The Federal Rules of Evidence defines
“relevant” as a contention that “has any tendency to make a fact more or less probable than it
would be without the evidence and the fact is of consequence in determining the action.” Fed. R.
Evid. § 401.
In Solar Sources Mining, LLC, the Commission approved a denied settlement based on a
Judge’s failure to consider the facts submitted in support of settlement. 41 FMSHRC 594, 605,
606 (Sept. 2019). The Commission held that the Judge erred in concluding that the parties
presented no facts to support settlement, when the parties “actually presented relevant facts,”
including the non-applicability of the standard. See 41 FMSHRC at 601.4
In addition to relevant facts, the Commission has consistently recognized that Judges
must consider substantive evidence, defined as “[e]vidence offered to help establish a fact at
issue,” in order to approve or deny settlement motions. Substantive Evidence, BLACK’S LAW
DICTIONARY (10th ed. 2014). In AmCoal I, the Commission rejected the Secretary’s “boilerplate
referencing” of “professional judgment” and enforcement value “in lieu of the substantive factual
support traditionally provided to justify a penalty reduction.” AmCoal I, 38 FMSHRC at 1973–
74. Another Am. Coal Co. case was denied settlement by a split Commission because of a lack of
facts, and was approved by the disapproving Commissioners only upon submission of additional
facts. See 40 FMSHRC 765, 766 n.1 (June 2018); Am. Joint Mot. Approve Settlement
Agreement, Docket No. LAKE 2009-0035, at 8–10 (May 18, 2018).
The Commission discussed the proper substantive evidence requirement for modifying
individual citations in Hopedale Mining, 42 FMSHRC 589 (Aug. 2020). In Hopedale, the
Commission held that a Judge’s denial of a settlement constitutes an abuse of discretion when
the agreed-upon facts supplied by the parties satisfy the standard for approval established in
AmCoal I. Although judges need not engage in fact-finding, weighing conflicting evidence, or
making credibility determinations, the majority stressed that this holding does not restrict judges
by limiting their ability to “probe gaps or inconsistencies in the explanation offered in support of
3

I note that I have not found, and do not find, that the violation must be affirmed as S&S.
Nor have I required the Secretary to establish that it is not. I merely note that the limited facts the
parties have chosen to provide would preclude a non-S&S finding for this violation.
4

Commissioners Jordan and Traynor dissented, arguing that the parties failed to meet the
AmCoal standards because the motion contained insufficient factual support. See Id. at 607
(Jordan, Traynor, dissenting).

44 FMSHRC Page 26

a settlement motion.” Id. at 595; see also Solar Sources Mining LLC, 41 FMSHRC at 602
(stating that Judges are “expected to . . . determine whether the facts support the penalty agreed
to by the parties”).
The Commission determined that the provided facts in Hopedale supported the penalty
reduction agreed to in the settlement, and that “[t]he rejection in this case was contrary to
stipulated facts, mischaracterized the operator’s compliance history, and failed to give weight to
the considerable non-monetary value preserved by the settlement.” Id. at 602. For citations where
the Secretary proposed a reduction in negligence, he provided respondent contentions
demonstrating that the “violative conditions were not obvious or readily known to the operator.”
Id. at 598. For other violations challenging gravity, the Secretary provided contentions showing
possible compliance (i.e., no violation) or the reduced likelihood of hazard because the
equipment was found to be functioning better than noted. Id. at 597–98. These facts were all
substantive because they were offered to dispute a fact at issue. These substantive facts, as
described, were also relevant to the individual modifications proposed, a principle that should
also apply to the removal of S&S designations. This case thus differs from Hopedale Mining, in
that it does not involve the rejection of substantive, relevant facts. Rather, the parties have not
provided me with sufficient facts to serve as the basis for an evaluation under AmCoal I.5
2. The Secretary misreads the cited authorities.
a. Although the Secretary cites Am. Coal Co., this case requires the submission of
relevant facts.
The Secretary states in the Motion to Approve Settlement that he “has considered the
deterrent value of the penalty and obtaining a final resolution to this matter.” As support for this
statement, the Secretary cites the following excerpt:
The Amended [motion] provides substantive explanations supporting the
Secretary’s decision to compromise the issues of one violation at issue . . . . In
5

Though the Commission found that the facts provided in Hopedale Mining were
substantive and relevant to either gravity or negligence modifications, two Commissioners
thought even these facts were insufficient to support the modifications. See 42 FMSHRC at 608–
09 (Commissioners Jordan and Traynor, arguing in dissent that settlements must provide
substantive explanations). The dissenting Commissioners asserted that “[t]he Congressional
transparency mandate has always meant that the Judge’s decision must include a substantive
explanation as to how the penalty reduction submitted for approval is (or is not) warranted by the
facts and legal contentions the parties claim as support for their motion.” Id. (citing Co-Op
Mining Co., 2 FMSHRC 3475, 3475, 3476 (Dec. 1980) (vacating a settlement with finding of
violation where the stipulations demonstrate that a violation did not actually occur)). My
decision is consistent with both the majority and the dissent in Hopedale and the decision in CoOp Mining. All of the opinions rely on the same legal principles requiring settlement decisions to
be consistent with the facts provided, but the dissent in Hopedale disagreed that the required
quantum of substantive evidence had been met.

44 FMSHRC Page 27

addition, the Secretary has set forth reasons why it would not be in the public
interest to litigate certain legal issues in the context of this case. Moreover, the
amended motion explains that the operator’s mines have closed since the citations
issued, reducing the deterrent value of the penalty. Commissioners Jordan and
Cohen note that these justifications were absent in the initial settlement motion.
Upon review of the amended motion, Commissioners Jordan and Cohen agree to
grant the motion and approve the settlement.
Am. Coal Co., 40 FMSHRC at 766 n.1 (emphasis added).
The Secretary asserts that it is sufficient for him to “consider the deterrent value” of the
penalty. This assertion is based on only a partial understanding of the cited authority. In citing
this footnote as support, the Secretary ignores the facts of the case. Importantly, the settlement at
issue was only granted following the submission of additional facts. Id. at 766. After AmCoal
appealed a remanded decision, the parties submitted a motion to approve settlement that was
denied by the Commission in a 2-2 split.
As support for their denial, Commissioners Jordan and Cohen set forth reasons why
approval would not be in the public interest, including their concerns that (1) it was unclear what
AmCoal had agreed to give in exchange for settlement, (2) the Commission did not remand for a
gravity reduction where the trier of fact already made a gravity determination, and (3) the
settlement was one-sided and did not help with enforcement of the Mine Act. Am. Coal Co.,
40 FMSHRC 330, 337–39 (Mar. 2018).
Commissioners Jordan and Cohen joined in approving settlement after the parties
submitted an amended motion that included additional factual support. Amended Joint Motion to
Approve Settlement Agreement, Docket No. LAKE 2009-0035, at 8 (May 18, 2018).
The amended motion included at least three additional substantive facts that were directly
relevant to the proposed modification, including acknowledgement that the operator’s mines had
since closed. Am. Coal Co., 40 FMSHRC at 766 n.1. This decision, and the footnote cited by the
Secretary, do not support the contention that the Secretary need only consider the deterrent value
of a penalty in obtaining a final resolution. The outcome of this case clearly depended on the
submission of substantive, relevant facts. This is the standard I have followed in rejecting the
settlement.
b. AmCoal II also requires the submission of substantive facts.
The Secretary states that he has evaluated enforcement values and maximized his
prosecutorial impact, citing page 989 of AmCoal II. The cited authority requires that the facts
provided “reflect a mutual position that the parties have agreed is acceptable to them in lieu of
the hearing process.” Am. Coal Co., 40 FMSHRC 983, 991 (Aug. 2018) (“AmCoal II”). The
Secretary uses this language to make the overbroad assertion that he need only state that the
parties are in agreement without submitting adequate support. However, the Commission has
consistently required that the Secretary provide substantive facts, relevant to the proposed
modifications.

44 FMSHRC Page 28

The standard for Commission evaluation is whether the proposed settlement is “fair,
reasonable, appropriate under the facts, and protects the public interest.” AmCoal II, 40
FMSHRC at 987.6 The Commission found that in order to effectively apply this standard,
Commission Judges must be provided with “sufficient information” upon which to base their
evaluation. Id. (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)).
Specifically, the Commission found that the Judge required substantive facts to support proposed
penalty reductions. Id. at 989 (“[T]he Judge appropriately determined that the submission of
additional substantive facts to support the proposed penalty reductions was necessary . . . .”)
(emphasis added).
Similar to the AmCoal case noted above, see supra Section I.B.2.a., the settlement motion
approved by the Commission depended on the submission of new facts that were substantial and
relevant to the modifications—primarily that the mine ceased production two years prior, and
that the respondent’s other mine also ceased production, facts that proved a reduced enforcement
value. Am. Coal Co., 40 FMSHRC 1380, 1388 (Sept. 2018) (ALJ); Joint Mot. Approve
Settlement & Dismiss Proc., Docket No. LAKE 2011-0013, at 2 (Sept. 7, 2018).
In this case, the Secretary denies that he must provide substantive, relevant facts in
support of settlement. AmCoal II does not support this claim. The Commission requires
sufficient facts—including nonmonetary assessments regarding enforcement value—upon which
Judges can make an appropriate finding. AmCoal II, 40 FMSHRC at 991 (“[F]acts required by
Rule 31 may include a description of an issue on which the parties have agreed to disagree.”). In
the present case, the Secretary has failed to provide any detailed explanation of how the
enforcement value of the violation will be maintained.
II.

The facts provided by the Secretary do not justify removal of the S&S designation.
A. The Commission utilizes an abuse of discretion standard to evaluate the Secretary’s
enforcement decisions.

Rule 31 requires that a settlement motion include facts in support of the penalty agreed to
for “each violation,” and that a Judge’s order set forth reasons for approval and be supported by
the record. 29 C.F.R. § 2700.31(b), (g). The abuse of discretion standard requires the Secretary to
provide relevant facts from which a Commission Judge may understand the reasonable
conclusions drawn in support of his decision. See Prairie State Generating Co., 792 F.3d 82, 92
(D.C. Cir. 2015); Knight Hawk Coal, LLC, 42 FMSHRC 435, 445–46 (July 2020).
The Commission has established that denial or reversal is justified in cases where there is
no evidence to support the Secretary’s decision. See Solar Sources Mining, LLC, 41 FMSHRC at
599 (citing Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (“An abuse
of discretion may be found where there is no evidence to support the Judge’s decision or if the
6

While this is a “four factor” analysis, as a practical matter, there is often considerable
overlap between the factors. Thus, a proposed settlement may not be “fair” because it is
insufficiently protective of the public interest, or it may not be “reasonable” because it is
inappropriate to the facts provided in support of the settlement.

44 FMSHRC Page 29

decision is based on an improper understanding of the law”)); see also Twentymile Coal Co., 27
FMSHRC 260, 278 (Mar. 2005) (Jordan, dissenting) (quoting Mingo Logan Coal Co.,
19 FMSHRC 246, 249–50 n.5 (Feb. 1997), aff’d, 133 F.3d 916 (4th Cir. 1998)).
On review, the D.C. Circuit Court of Appeals has noted that the Commission’s ALJs
determine, in the first instance, whether the Secretary has been arbitrary and capricious, abusing
his discretion in his decision, and that the Commission’s standard of review is whether
substantial evidence supports the Judge’s determination. See Sec’y of Lab. v. Knight Hawk Coal,
LLC, 991 F.3d 1297, 1308 (D.C. Cir. 2021) (citing 30 U.S.C. § 823(d)(2)). Under the arbitrary
and capricious standard, the Secretary must “articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found and the choice made.’” Id. at 1307
(quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
This standard is deferential to the Secretary, but its grace is not unlimited. In particular,
the law—statutory law, Court and Commission precedents, and the Commission’s procedural
rules—clearly establishes a requirement that the Secretary’s decisions be consistent with the
reasoning and assumed facts provided with a motion to approve settlement.
Congressional intent, as well as Commission and court precedent, compels a meaningful
review of all settlements submitted for approval. Section 110(k) of the Mine Act serves to
maintain the deterrent effect of violations and penalties, in part by preventing the Secretary from
abusing his authority to settle such violations without appropriate justification. See AmCoal I, 38
FMSHRC at 1976 (citing S. Rep. No. 95-181, at 44, reprinted in Senate Subcommittee on Labor,
Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 632–33 (1978)) (“Congress explained that ‘[b]y imposing [the]
requirements’ of section 110(k), it ‘intend[ed] to assure that the abuses involved in the
unwarranted lowering of penalties as a result of the off-the-record negotiations are avoided.”).
The Commission has acknowledged the importance of section 110(k) in preventing
abuse, and it possesses the authority to deny the Secretary’s decisions when appropriate. This
includes when the Secretary declines to provide an explanation for a settlement decision, or
when the facts provided by the Secretary do not reasonably support a settlement decision. See
Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012) (authorizing the Commission to
approve the settlement of contested penalties in section 110(k) “[i]n order to ensure penalties
serve as an effective enforcement tool, prevent abuse, and preserve the public interest.”)
Thus, under the governing law, I—as well as the Secretary—must make a rational
decision governed by the operative facts and the law as it has been interpreted. I would abuse my
discretion if I approved a settlement that is inconsistent with the facts provided. I have declined
to do so.
B. Judges must have sufficient facts from which to plausibly infer that the violation would
not meet S&S requirements.

44 FMSHRC Page 30

The abuse of discretion standard requires judges to consider sufficient facts, taken as true,
from which they may plausibly infer that proposed modifications are reasonable. Although the
term “plausible” has not yet been defined by the Commission (and has in fact caused confusion
amongst judges and scholars alike), the plausibility standard is evident in Commission precedent.
The Commission has consistently required consideration of facts relevant to proposed
modifications. See Knight Hawk Coal, LLC, 42 FMSHRC at 446 n.22 (requiring “some
plausible—i.e., not speculative or preconceived—factual basis.”).
In Knight Hawk Coal, LLC, the Commission affirmed a Judge’s decision to vacate the
Secretary’s rejection of a ventilation plan because substantial evidence existed in support of the
Judge’s conclusion that the plan was acceptable. 42 FMSHRC at 452. The Commission applied a
plausibility standard, agreeing that the Secretary had failed to articulate reasons, “rationally
supported by the facts,” that the ventilation approach did not protect miners. Id. The Commission
could not condone rejection of a long-used plan based upon an “implausible belief” that harmful
conditions might arise from the plan. Id. at 446 n.22 (describing such “implausible belief” as an
“irrational belief not grounded on the record evidence”).
The Commission articulated that the minimum standard requires “some plausible—i.e.,
not speculative or preconceived—factual basis for rejecting an operator’s claim.” Id. (“Requiring
the Secretary to show his work in this regard is hardly a ‘new’ requirement. Rather, it reflects his
fundamental duty under the Act to defend his choices as ‘reasonable,’ at a minimum.”). This
should be no different from requiring the Secretary to provide facts in support of a proposed
settlement—i.e., “show[ing] his work”—to support a Judge’s 110(k) review.
This standard is also supported by the Commission’s requirement to be guided, when
practicable, by the Federal Rules of Civil Procedure. See 29 C.F.R. § 2700.1(b) (“[T]he
Commission and its Judges shall be guided so far as practicable by the [FRCP].”); see also Jim
Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993). Specifically, the Secretary’s case can be
likened to a pleading to survive a motion to dismiss for failure to state a claim under Rule
12(b)(6).
Black’s Law Dictionary equates the term “Plausibility Test” to the “Twombly Test,”
which requires the following in a pleading to survive a 12(b)(6) motion: “(1) state facts that,
taken as true, make a plausible (rather than conceivable) claim, and (2) not rely solely on
conclusions of law, which are not entitled to the same assumption of truth as factual allegations.”
Twombly Test, BLACK’S. The Court in Bell Atlantic Corp v. Twombly required a FRCP 8
pleading to “possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” 550 U.S. 544,
557 (2007).
The Court noted that “[a]sking for plausible grounds does not impose a probability
requirement at the pleading stage; it simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of illegal agreement.” Id. at 556. Requiring
substantive, relevant facts in a settlement motion only requires sufficient facts to “raise a
reasonable expectation” that there was no violation, or that the violation did not meet the level of
gravity or negligence cited.

44 FMSHRC Page 31

In Ashcroft v. Iqbal, the Supreme Court provided a description of the plausibility
requirement, stating that in order to survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court described facial
plausibility as “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In relation
to a settlement motion, the factual content provided should allow a Commission Judge to draw
the reasonable inference that there is no violation, or that the violation does not meet the level of
gravity or negligence cited.
The standard of plausibility exists in Commission review of decisions on the merits of a
violation. Upon a prima facie showing of a violation by the Secretary, a respondent operator
must demonstrate a “plausible theory based upon any facts in the record to support a reasonable
inference” that the violation did not occur. Jim Walter Res., Inc., 28 FMSHRC 983, 988, 989–90
(Dec. 2006) (affirming the Judge’s decision to uphold a S&S designation because there was
substantial evidence to support the conclusion that the respondent did not show “any plausible
theory” rebutting the Secretary’s case).
The need to make a plausible demonstration refuting the existence of a violation could
and should be applied to facts required in a settlement motion. Such a requirement is not
contradictory to the Commission’s directives in AmCoal II. See 40 FMSHRC at 991 (ruling that
judges must not assign probative value to some facts). It merely requires that the submitted facts,
if taken as true, plausibly demonstrate that there was no violation, or that the violation did not
reach the level of gravity or negligence assigned.
C. The facts provided by the Secretary cannot support the removal of the S&S designation.
An S&S designation is appropriate if, “based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard [danger to safety or health]
contributed to will result in an injury or illness of a reasonably serious nature.” Mathies Coal
Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822,
825 (Apr. 1981)). An S&S determination must be based on the continuation of normal mining
operations. See Consol PA Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and
substantial’ must be based on the facts existing at the time of issuance and assuming continued
normal mining operations, absent any assumption of abatement or inference that the violative
condition will cease.”).
The four elements supporting an S&S designation provided in Mathies have been refined
and expressed as follows: (1) an underlying violation of a mandatory safety standard; (2) a
reasonable likelihood the violation will cause the occurrence of the discrete safety hazard against
which the standard is directed; (3) a reasonable likelihood that the hazard would cause an injury;
and (4) a reasonable likelihood that the injury would be of a reasonably serious nature. Peabody
Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement of the
second Mathies step in Newtown Energy, Inc.).

44 FMSHRC Page 32

1. The relevant facts provided demonstrate a prima facie showing of a S&S violation.
The Mine Act and the Commission’s precedents interpreting it compel me to determine
whether the settlement tendered is appropriate to the facts provided to me. Citation No. 9198038
arises from an alleged violation of the operator’s roof control plan, which appears to have been
discovered after a roof fall occurred. See 30 C.F.R. § 75.220(a)(1) (requiring operators to
develop and follow approved roof control plans); see also 30 C.F.R. § 75.202(a) (requiring roof
support to protect miners from hazards related to roof falls). Under the terms of the plan, entry
widths are limited to 19 feet. The operator asserts that a variance permits it to inadvertently mine
widths up to 21½ feet wide. In that case, the variance requires the operator to use additional bolts
that are one foot longer in between the rows to support the roof in the wider area.
Both the second and third amended motions state, “Because the area had never been
deemed to be wider than the plan allowed, the additional bolts had not been installed.” This
explanation does not provide a sufficient evidentiary basis to support removal of an S&S
designation. The explanation notes that the condition was not obvious, had not been noted on
prior inspections, and did not present visible signs that a roof fall was imminent.
While these facts would support a reduction in negligence, they would not support a
reduction of the likelihood of injury in an area where a roof fall occurred. Additionally, the
operator’s belief that a confluence of factors did not exist has no value to an assessment of the
likelihood of injury from the hazard.
The limited facts provided in the motion included an acknowledgment that at least one
miner, the examiner, would work or travel in the area where the fall occurred—an area where the
Secretary has alleged the roof support was deficient—and a roof fall in fact occurred. During that
time, the area was examined at least once every shift by an examiner. The motion provided no
facts from which one might infer that this miner was not exposed to a possible hazard of serious
injury from a roof fall.
A finding of S&S for a violation of an approved roof control plan is supported by
Commission precedent. See, e.g., Consol Pa. Coal Co., 43 FMSHRC 145, 149 (Apr. 2021)
(affirming Judge’s determination that roof control plan violation was S&S); Halfway, Inc., 8
FMSHRC 8, 12–13 (Jan. 1986) (affirming S&S for failing to comply with roof control plan
when miners could have worked or traveled in areas with inadequately supported roof).
Importantly, I do not find that the cited violation is or must be held to be S&S. I have been
provided with limited facts, and neither party has waived its right to contest this issue by
providing additional facts or legal authority at hearing. I am thus not substituting my
enforcement judgment for that of the Secretary; I am merely noting that his conclusion that this
violation might not be found to be S&S is entirely inconsistent with the evidence the Secretary
himself has chosen to provide.
2. The Secretary has provided no facts plausibly supporting the inference that the
violation does not meet any one of the Mathies elements.

44 FMSHRC Page 33

Mathies Step 1 requires that the Secretary establish a violation of a mandatory safety
standard. The Respondent’s roof control plan is the functional equivalent of a mandatory safety
standard and specifies the means of compliance with the ground support requirement for
underground mines: “The roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). A failure to comply with the provisions of
a roof control plan would satisfy Step 1 of the Commission’s S&S analysis. The Secretary has
provided no facts plausibly supporting an inference that Respondent was in compliance with the
allowed variance.7
Mathies Step 2 requires a reasonable likelihood that the violation will cause the
occurrence of a discrete safety hazard against which the standard is directed. The fact that a roof
fall actually occurred here is dispositive as to the second S&S factor, because unintended roof
falls in areas where miners work or travel is the focal point of Section 75.202(a) and the plan
developed to ensure the protection of miners from such falls. See Jim Walter Resources, Inc.,
37 FMSHRC 493, 495–96 (2015) (noting that the Mine Act strictly requires protection of miners
from roof falls in areas where miners work or travel). I find that an event that has occurred is
perforce reasonably likely to have occurred.
Unlike the second factor, the remaining two S&S factors are not conclusively established.
However, the settlement motion must provide at least a plausible basis for concluding that a
hearing might result in a finding that there was no S&S violation, either because one of the
remaining factors might not be proved or depends on questionable evidence, or because there
may not have been a violation.
Mathies Step 3 requires a reasonable likelihood that the hazard would cause an injury. It
is accepted that roof falls may cause injury as miners have died from roof falls. See, e.g., Doe
Run Co., 42 FMSHRC 521, 521 (Aug. 2020); Jim Walter Res., Inc., 37 FMSHRC at 493. To
support removal of a S&S designation, the facts must allow the plausible inference that
occurrence of the hazard would not cause an injury. The Secretary has provided that only the
examiner travels the area and that exposure to the hazard would only last for a “split second of
time,” but these facts are insufficient for me to plausibly infer than an injury was unlikely.
Respondent acknowledged that an examiner traveled the area for the entire duration the
violative condition existed. The fact that a roof fall did not occur while the examiner was
traveling there does not negate the likelihood of an injury. Nor does the fact that the examiner
was only exposed once per shift. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it
sufficient for Step 3 that the inspector determined that miners and an examiner would be exposed
to the hazard twice per shift). Additionally, an unplanned roof fall is an “instantaneous event,” so
the Secretary’s mention of only a split-second exposure fails to negate the likelihood of injury.
7

The facts provided would establish a violation of the plan. The motion does not provide
even a contention by the operator that the entries did not exceed the plan’s limits or that the
additional longer bolts permitted by the variance had been employed in the areas cited by the
inspector. As noted in the Denial Order, my decision does not prejudice Respondent’s ability to
argue or prove facts contrary to those provided in the settlement motions.

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Mathies Step 4 requires a reasonable likelihood that the injury would be of a reasonably
serious nature. An inspector’s conclusion that a possible injury is of a reasonably serious nature
has been held sufficient for Step 4. Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it
sufficient that the inspector characterized the potential injury as “serious”). Therefore, to support
removal of a S&S designation, the facts provided to challenge Step 4 must allow the plausible
inference that an injury would not be of a reasonably serious nature.
The inspector characterized the likely injury as “fatal” at the time of citation and
petitioned for civil penalty on that finding. Roof and rib falls are subject to an extensive
regulatory regime precisely because of the great danger of serious injury or death posed by
unplanned ground movements in underground mines. No facts contended by the Secretary allow
a plausible inference to the contrary—that the injury from a roof fall might not be of a
reasonably serious nature.
D. Application of the abuse of discretion standard leaves me no choice but to deny the
Secretary’s motion to approve settlement.
Having made a S&S designation, the Secretary must provide substantial and relevant
evidence as support for its removal. My denial of the Secretary’s motion to approve settlement
was specifically based on a lack of sufficient factual support available for me to properly
consider the settlement under the AmCoal factors.
The Secretary must provide me with a plausible basis for the proposed modification of
Citation No. 9198038. The Commission should not condone the removal of a cited and
petitioned designation based on the implausible conclusion that the violation did not meet the
requirements of an S&S designation. The conclusion to which the Secretary comes—that the
proposed modification is justified by the respondent’s contentions—must be rationally supported
by the facts. It is not. The facts provided by the Secretary do not allow me to plausibly infer that
the violation did not meet the Mathies requirements for a S&S designation. If anything, they
support the existence of a S&S violation.
III. Certification
A settlement would finally resolve this matter without a hearing. I have invited the parties
to submit additional facts that might permit approval, and they are apparently unable to agree on
such facts. Following Hopedale, it would not be appropriate for me to proceed to a hearing with
this legal question unresolved. Therefore, under Commission Procedural Rule 76, 29 C.F.R. §
2700.76, I certify that this interlocutory ruling involves a controlling question of law—whether
the Secretary has unreviewable discretion to remove an S&S designation from a contested

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citation without the Commission’s approval—and that immediate review will materially advance
the final disposition of the proceeding.
This interlocutory ruling is hereby CERTIFIED.

/s/ Michael G. Young
Michael G. Young
Administrative Law Judge

Distribution (by email):
Alexandra J. Gilewicz, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South,
Suite 401, Arlington, VA 22202 gilewicz.alexandra.j@dol.gov
Emily Toler Scott, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, Suite
401, Arlington, VA 22202 scott.emily.t@dol.gov
John Miklos, Director of Health and Safety, Knight Hawk Coal, LLC, 500 Cutler-Trico Road,
Perry, IL 62272, johnmiklos@knighthawkcoal.com

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