FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268
December 18, 2020
SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR ON BEHALF OF JACOB HAMILTON,
SMALL MINE DEVELOPMENT,
Docket No. WEST 2021-0069
Mine: El Nino
Mine ID: 26-02830
IN PART AND DENYING IN PART
SECRETARY’S MOTION IN LIMINE
Before: Judge Simonton
This case is before me upon an application for temporary reinstatement filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Small Mine Development (“Respondent”) pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). On December 15, 2020, the Secretary filed a Motion in Limine to exclude Respondent’s evidence extending beyond the narrow scope of the temporary reinstatement determination. The Respondent filed a response in opposition to the Secretary’s motion on December 18, 2020. The temporary reinstatement hearing is scheduled for December 22, 2020 via Zoom.
The Commission has held that “the scope of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as to whether a miner’s discrimination complaint is frivolously brought.” Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d 920 F.2d 738 (11th Cir. 1990). The judge should not resolve conflicts in testimony at this preliminary stage of the proceeding, nor should the judge determine whether there is sufficient evidence to justify permanent reinstatement. Jim Walter Res., Inc. v. Fed. Mine Safety & Health Review Comm’n, 920 F.2d 738, 744 (11th Cir. 1990). However, such discretion should not interfere with the right of the respondent to present testimony and evidence that supports a finding that the Secretary’s complaint was frivolously brought. See 29 C.F.R. § 2700.45(d).
The Secretary offers no case law holding that evidence creating testimonial conflicts or supporting affirmative or rebuttal defenses must be excluded from temporary reinstatement proceedings. The Secretary’s reliance on the Commission’s decision in CAM Mining, LLC, 31 FMSHRC 1085 (Oct. 2009), is misplaced. In CAM Mining, the Commission addressed whether the judge applied the proper burden of proof and refrained from weighing conflicts in testimony in determining whether the Secretary’s discrimination claim was frivolous. Id. at 1088. The Commission did not hold that evidence creating testimonial conflicts was inadmissible, but limited what the judge may consider and determine in properly evaluating whether the discrimination case was frivolous. Id. at 1089–91. In fact, none of the Secretary’s cited case law requires that such evidence must be excluded from temporary reinstatement proceedings, but rather holds that the judge must refrain from making findings on the merits of the discrimination claim.
Accordingly, the Secretary’s Motion in Limine is GRANTED to the extent that it seeks to exclude the admission of after-acquired evidence. The remainder of the Secretary’s motion is hereby DENIED.
/s/ David P. Simonton
David P. Simonton
Administrative Law Judge
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