FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

 

 

SECRETARY OF LABOR

  MINE SAFETY AND HEALTH           

  ADMINISTRATION (MSHA),

  o/b/o ROBERT BAUMANN

 

                        v.

 

MOSENECAMANUFACTURER, LLC

  d/b/a AMERICAN TRIPOLI

 

 

 

 

 

Docket No. CENT 2023-0251-DM

 

 

 

 

ORDER

 

The Commission directed review of this matter sua sponte on June 18, 2024, then granted the Petition for Discretionary Review filed by MOSenecaManufacterer, LLC, d/b/a/ American Tripoli (“American Tripoli”) on June 27, 2024.

 

American Tripoli subsequently filed a motion entitled “Motion to Cease and Desist Enforcement Actions Pending Final Judgment.” The operator’s arguments relied on purported cases such as “Secretary of Labor, MSHA v. Contestant” and “Mohammed v. Garland.” Mot. at 2. Following several attempts to locate these cases, the Commission determined that the cases relied upon by the operator could not be identified based on the incomplete information provided, and ordered American Tripoli to submit copies of the relevant cases by December 6, 2024.[1] Unpublished Order dated Nov. 22, 2024.

 

American Tripoli did not respond. Accordingly, on December 23, 2024, the Commission ordered the operator to show cause why the proceeding should not be dismissed. The Commission directed American Tripoli to explain its failure to respond to the previous Order, and explicitly placed the operator on notice that continued failure to comply with Commission Orders could result in the Commission vacating the directions for review and dismissing this proceeding. 46 FMSHRC __, No. CENT 2023-0251 (Dec. 23, 2024), citing, e.g., Broken Hill Mining Co., Inc., 18 FMSHRC 679 (May 1996).

 

American Tripoli filed a response on January 9, 2025. The filing offers no explanation for the operator’s failure to timely respond to the Commission’s November Order. Accordingly, American Tripoli has not shown good cause why the proceeding should not be dismissed. See, e.g., Coal-Mac LLC, 46 FMSHRC 33 (Jan. 2024) (operator failed to show good cause where it offered no explanation for its failure to timely answer the Secretary’s petition); Earl Begley, employed by Manalapan Mining Co., Inc., 22 FMSHRC 629 (May 2000) (miner failed to show good cause where he offered no explanation for his failure to timely file a petition for review).

 

Additionally, American Tripoli still has not provided copies of the cases upon which it purportedly relied. Instead, the operator asserts that the “lack of proper citations” in the Motion was an “oversight” and summarizes five new cases purportedly relevant to the proceeding.[2] Resp. at 1, 2-4. American Tripoli has apparently chosen to abandon the cases upon which it initially relied rather than attempting to support their legitimacy or existence. Notably, American Tripoli asserts that it has attached “verified case law citations and documentation” for the new cases upon which it now purports to rely (Resp. at 5) but has failed to provide any such attachments.

 

The Commission ordered American Tripoli to establish the legitimacy of the cases upon which it purportedly relied by providing copies. The operator failed to do so. The Commission then ordered American Tripoli to explain its failure to comply with the Commission’s previous order. The operator again failed to do so. Accordingly, the Commission concludes that the operator fabricated cases in its filings to the Commission. In light of the foregoing considerations, the directions for review in this matter are hereby VACATED, and this proceeding is DISMISSED.

 

 

 

 

/s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chair

 

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

 

 

 

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

 

 

 

 

 

Distribution List:

 

Russell Tidaback

Jordan Tidaback

American Tripoli

222 Oneida Street

Seneca, MO 64865

Russell.Tidaback@AmericanTripoli.com

RTidaback@deedyco.com

 

Russell Tidaback

2701 East Grauwyler Road, Bldg. 1, Dept. #1008

Irving, TX 75061

Russell.Tidaback@deedyco.com

 

Robert Baumann

baumannr24@gmail.com

 

Laura O’Reilly, Esq.

U.S. Department of Labor

2300 Main Street, Suite 10100

Kansas City, MO 64108

oreilly.laura.m@dol.gov

 

Quinlan B. Moll, Esq.

U.S. Department of Labor

2300 Main St., Suite 10100

Kansas City, MO 64108

Moll.Quinlan.B@dol.gov

 

Elaine M. Smith, Esq.

U.S. Department of Labor

2300 Main St., Suite 10100

Kansas City, MO 64108

smith.elaine.m@dol.gov

 

Susannah M. Maltz, Esq.

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4420 – N4430

Washington, DC 20210

maltz.susannah.m@dol.gov

 

 

Marcus D. Reed, Esq.

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4420 – N4430

Washington, DC 20210

Reed.Marcus.D@dol.gov

 

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4420 – N4430

Washington, DC 20210

scott.emily.t@dol.gov

 

April Nelson, Esq.

Associate Solicitor

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4420 – N4430

Washington, DC 20210

Nelson.April@dol.gov

 

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Review Commission

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@dol.gov

 

Administrative Law Judge William B. Moran

Federal Mine Safety and Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

wmoran@fmshrc.gov

 

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov



[1] The Commission noted that American Tripoli’s previous filings also appeared to contain incorrect or incomplete case citations. Order at 1 n.1 (Nov. 22, 2024).

[2] One such case is Broken Hill Mining Co., Inc., 18 FMSHRC 679 (May 1996), which we cited in our December Show Cause Order. The Commission in that case vacated review and dismissed the proceeding for want of prosecution where the operator failed to file an opening brief and was not reachable, and yet American Tripoli cites the case for the proposition that “leniency is warranted.” Resp. at 3.