Temporary Reinstatement Proceedings

Temporary reinstatement proceedings involve cases in which a miner has filed a complaint with MSHA stating he or she has suffered discrimination and the miner has lost his or her position. If the Secretary determines that the discrimination complaint filed by the miner with MSHA was not frivolously brought, the Secretary may file an application with the Commission for the temporary reinstatement of the miner. The operator who has been charged with discrimination may request a hearing before an Administrative Law Judge after it has received the Secretary’s application for temporary reinstatement. However, the scope of the hearing is limited to whether the miner’s complaint was frivolously brought. Only later, in a further hearing before the Judge, can the operator challenge whether the alleged discrimination occurred. If a party wishes to challenge the Judge’s order on temporary reinstatement, it may file a petition for review with the Review Commission.

The following chart summarizes the temporary reinstatement provisions in Rule 45. All references to Commission rules are to 29 C.F.R. Part 2700.

TEMPORARY REINSTATEMENT PROCEEDING

1 2 3 4 5 6 7
Application for Temporary Reinstatement Request for Hearing Hearing Order on Application Petition for Review Response Notification of Judge
  10 calendar days from receipt of application 10 calendar days from receipt of request 7 calendar days from close of hearing 5 business days from receipt of order 5 business days from receipt of petition  
§2700.45(b) §2700.45(c) §2700.45(c)
§2700.45(d)		 §2700.45(e) §2700.45(f) §2700.45(f) §2700.45(g)
  1. The application for temporary reinstatement must state the Secretary’s finding that the miner’s discrimination complaint was not frivolously brought and must be served by the most expeditious means available.

  2. Within 10 calendar days of receipt of the application, the operator may make a request for hearing. If no hearing is sought, the Judge shall issue an order based on his review of the Secretary's application.

  3. A hearing must be held within 10 calendar days of the receipt of the request. The hearing is limited to determining whether the miner's complaint was frivolously brought.

  4. Within 7 calendar days of the close of the hearing, the Judge shall issue an order on application, granting or denying reinstatement.

  5. Within 5 business days of receipt of the order, a party may file a “Petition for Review of Temporary Reinstatement Order” with the Commission.

  6. A response to the petition must be filed within 5 business days following service of the petition, and the Commission must rule on the petition within 10 calendar days after receipt of the response.

  7. If, after an investigation, the Secretary subsequently determines that there is no violation of the Mine Act, the Secretary shall notify the Judge.



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