Thomas v. Federal Mine Safety and Health Review Commission

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2025
• Docket: 24-1442
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT THOMAS, No. 24-1442 Agency Nos. Petitioner, WEST 2018-0402-DM WEST 2019-0205 v. MEMORANDUM* FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; CALPORTLAND COMPANY,

Respondents.

On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission

Submitted May 6, 2025** San Francisco, California

Before: McKEOWN, FORREST, and BUMATAY, Circuit Judges. Dissent by Judge BUMATAY.

Petitioner Robert Thomas seeks review of a decision of the Federal Mine

Safety and Health Review Commission denying his retaliation claim brought under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the Mine Act, 30 U.S.C. § 815(c)(1), (3). We assume the parties’ familiarity with the

facts. For the second time, see Thomas v. CalPortland Co. (Thomas I), 993 F.3d

1204 (9th Cir. 2021), and because the Commission misapplied the substantial

evidence standard, we grant Thomas’s petition and vacate and remand.

1. Standard of Review. The Mine Act instructs that “[t]he findings of the

Commission with respect to questions of fact, if supported by substantial evidence

on the record considered as a whole, shall be conclusive.” 30 U.S.C. § 816(a)(1); see

also Miller Min. Co. v. Fed. Mine Safety & Health Rev. Comm’n, 713 F.2d 487, 490

(9th Cir. 1983) (“This court will uphold the factual findings of the administrative

law judge if there is substantial evidence to support them.”). It also defines the

Commission’s review authority over the decisions of its administrative law judges

(ALJ). 30 U.S.C. § 823(d). As relevant here, the Commission may only review an

ALJ’s factual findings for substantial evidence, id. § 823(d)(2)(A)(ii)(I),

(d)(2)(A)(iii), and it commits legal error if it does not apply this standard. Thomas I,

993 F.3d at 1211 n.4; accord, e.g., Donovan ex rel. Chacon v. Phelps Dodge Corp.,

709 F.2d 86, 91–92 (D.C. Cir. 1983); Sec’y of Lab. v. Knight Hawk Coal, LLC, 991

F.3d 1297, 1306 (D.C. Cir. 2021).1

1 This is consistent with our opinions focusing on similar statutory regimes that specify an administrative tribunal is bound to apply a particular standard of review to ALJ decisions. See Bumble Bee Seafoods v. Dir., Off. of Workers’ Comp. Programs, 629 F.2d 1327, 1329 (9th Cir. 1980) (relying on 33 U.S.C. § 921(b)(3) to

2 24-1442 The dissent argues that because § 816(a)(1) only allows us to review the

Commission’s factual findings for substantial evidence, we cannot assess whether

the Commission applied the correct standard when reviewing the ALJ’s factfinding.

We disagree. As the D.C. Circuit has explained, § 816(a)(1)’s reference to

“Commission” refers to the agency generally—not just the Commission—because

“in many cases the ALJ’s decision will become the decision of the Commission.”

Donovan ex rel Chacon, 709 F.2d at 91 n.7; see also 30 U.S.C. § 823(d)(1). But

more crucially, the statute plainly provides that the Commission, in and of itself, has

no fact-finding authority when it reviews decisions of its ALJs. 30 U.S.C. §

conclude that because the Benefits Review Board reviews decisions of its ALJs for substantial evidence, “the Board may not substitute its views for those of the [ALJ] or engage in a de novo review of the evidence” and “[t]he only way we can ascertain whether the Board has adhered to this standard is to conduct an independent review of the administrative record”). And the inverse is true as well. Where a statute creating an administrative review tribunal does not mandate a particular standard of review, the tribunal may review the ALJ’s findings de novo and rely on its own view of the facts. See, e.g., NLRB v. Int’l Bhd. of Elec. Workers, Loc. 77, 895 F.2d 1570, 1573 (9th Cir. 1990); 29 U.S.C. § 160(c)–(e) (requiring the court to review findings of the NLRB for substantial evidence, but permitting the NLRB to modify or set aside decisions of its ALJs “at any time upon reasonable notice and in such manner as it shall deem proper”). In contrast to the statute governing the National Labor Relations Board, the Commission may only “affirm, set aside, or modify the decision or order of the [ALJ] in conformity with the record.” 30 U.S.C. § 823(d)(2)(C) (emphasis added). We also observe that § 823 expressly rejects application of 5 U.S.C. § 557(b), which provides that “[o]n appeal from or review of the initial decision [by the ALJ], the agency has all the powers which it would have in making the initial decision.” See 30 U.S.C. § 823(d)(2)(C). Therefore, the Mine Act creates an internal review process dissimilar from that governing other agencies.

3 24-1442 823(d)(2)(A)(ii)(I), (iii). The Commission is to review an ALJ’s factual findings for

substantial evidence and Section 816(a)(1) “does not supersede the statutory limits

on the Commission’s own powers of discretionary review.” Donovan, 709 F.2d at

91 n.7. Whether an administrative review body has complied with its statutory scope

of review is a question of law that we review de novo. E.g., Rodriguez v. Holder,

683 F.3d 1164, 1169–70 (9th Cir. 2012); see also Loper Bright Enters. v. Raimondo,

603 U.S. 369, 392 n.4 (2024).

Here, the Commission purported to review the ALJ’s decision for substantial

evidence. Thus, we must determine whether the Commission erred in concluding

that the ALJ’s decision did not meet this standard. Substantial evidence “means only

[] ‘such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.’” Biestek v. Berryhill, 587 U.S. 98, 103 (2019) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It requires “review of the whole

record.” Kyung Park v. Holder, 572 F.3d 619, 624 (9th Cir. 2009) (citation omitted).

When “the evidence can reasonably support either affirming or reversing” the

factfinder’s conclusion, then the Commission, like a reviewing court, “may not

substitute its judgment” for that of the factfinder. See Flaten v. Sec’y of Health &

Hum. Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).

2. Retaliation. A retaliation claim under § 815(c)(1) has three elements:

(1) the claimant engaged in protected activity; (2) the employer discharged or

4 24-1442 discriminated against the claimant; and (3) a causal connection between the two.2

The first two elements are not at issue here.

In Thomas I, we held that the third element requires a claimant to prove but-

for causation. 993 F.3d at 1209–11. But-for causation requires courts “to change one

thing at a time and see if the outcome changes. If it does, [the court has] found a but-

for cause.” Bostock v. Clayton County, 590 U.S. 644, 656 (2020). And because

causation for retaliation boils down to the employer’s motivations, where direct

evidence of retaliation is lacking, analogous cases have considered: (a) the

employer’s knowledge of the protected activity; (b) the timing of the discriminatory

act relative to the protected activity; (c) the employer’s hostility or animosity

towards the claimant; (d) the employer’s differential treatment of the claimant; and

(e) the employer’s explanation for the alleged discriminatory act, and whether that

explanation is merely pretextual. E.g., Maner v. Dignity Health, 9 F.4th 1114, 1127–

28 (9th Cir. 2021); Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per

curiam); Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1285–86

(9th Cir. 2001); Miller v. Fairchild Indus., Inc., 885 F.2d 498, 506 (9th Cir. 1989);

Kama v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024).

2 The statute reads: “No person shall discharge or in any manner discriminate against . . . any miner . . . because such miner . . . has filed or made a complaint under or related to this chapter, including a complaint notifying the operator . . . of an alleged danger or safety or health violation . . . .” 30 U.S.C. § 815(c)(1).

5 24-1442 The ALJ found four sets of protected activity and three adverse actions. After

reviewing the decisions below and the entire factual record, we conclude that the

Commission failed to limit its review to whether the ALJ’s findings are supported

by substantial evidence. Thus, regardless of whether the Commission’s view of the

facts might also be supported by substantial evidence, as the dissent contends, the

Commission erred.

To demonstrate the validity of the ALJ’s findings, we highlight some key

pieces of evidence. Relevant to Thomas’s suspension and termination, the ALJ

found that Dean Demers—Thomas’s supervisor—knew of Thomas’s safety

complaints and that the timing of the discharge was suspicious. The ALJ also

credited testimony suggesting that Demers was happy to have suspended Thomas

and that Demers himself engaged in similar safety violations to the one allegedly

motivating the action taken against Thomas. This is particularly relevant because

Demers drafted the initial termination letter that was “accidentally” sent to Thomas,

which caused Thomas’s eventual “voluntary resignation.”

The ALJ also found that CalPortland’s investigation was rushed, evidencing

pretext. Although the Commission voiced some valid concerns with this and other

evidence, they were insufficient to overcome the evidence cited by the ALJ. Instead,

the Commission repeatedly substituted its view of certain evidence for that of the

ALJ. That was error under 30 U.S.C. § 823(d)(2)(A)(iii).

6 24-1442 We do not address Thomas’s remaining arguments, as they would have no

impact on our decision.

The petition for review is GRANTED, the Commission’s decision is

VACATED, and the matter is REMANDED to the Commission. The matter of the

ALJ’s supplemental order regarding the amount of damages remains to be

conclusively resolved.

7 24-1442 FILED MAY 7 2025 Thomas v. Fed. Mine Safety & Health Rev. Comm’n, No. 24-1442 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS

Because the Federal Mine Safety & Health Commission’s factual findings

must be treated as “conclusive” if supported by substantial evidence, I respectfully

dissent.

1. Robert Thomas challenges the Commission’s finding that he failed to prove

that CalPortland Company fired him in retaliation for his protected activity and the

Commission’s finding that the administrative law judge (“ALJ”) in the case failed

to consider all the evidence in ruling for Thomas. We should have denied the

petition on both claims.

The Mine Act is crystal clear on our review of Commission decisions. As its

title suggests, § 816 governs the “Judicial review of Commission orders.” 30 U.S.C.

§ 816. It allows a person aggrieved by a Commission order to appeal to a federal

court of appeals. Id. § 816(a)(1). Section 816 then prescribes a limited role for

federal courts over fact findings. It instructs that “[t]he findings of the Commission

with respect to questions of fact, if supposed by substantial evidence on the record

considered as a whole, shall be conclusive.” 30 U.S.C. § 816(a)(1) (emphasis

added). So Congress’s command is straightforward. When reviewing the

Commission’s findings of fact, we must review only for “substantial evidence.” If

the Commission’s factfinding clears that low bar, its findings are “conclusive.” And

the provision doesn’t leave wiggle room for us to do anything otherwise. See 1 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)

(using the mandatory term shall “normally creates an obligation impervious to

judicial discretion”); Fejes v. FAA, 98 F.4th 1156, 1161 (9th Cir. 2024) (“‘Shall’

indicates mandatory action.”). Thus, “the Commission’s factual findings must be

upheld if they are supported by substantial evidence.” D.H. Blattner & Sons, Inc. v.

Sec. of Lab., Mine Safety and Health Admin., 152 F.3d 1102, 1108 (9th Cir. 1998).

Under this “highly deferential” standard of review, G.C. v. Garland, 109 F.4th

1230, 1239 (9th Cir. 2024), we should have easily denied Thomas’s first and second

claims. It is uncontested that, in January 2018, a government inspector alleges

observing Robert Thomas working on a ladder on a barge over open water without

a personal flotation device—in violation of government regulations. It is also

uncontested that the government inspector issued a citation to CalPortland,

Thomas’s employer, for Thomas’s failure to wear a safety device. The inspector

viewed Thomas’s actions as aggravated and a substantial violation that could

reasonably likely result in a fatality. CalPortland then suspended Thomas and

eventually discharged him.

Given these uncontested facts, substantial evidence supports the

Commission’s finding that Thomas failed to show a causal nexus between any

protected activity and an adverse action. For example, while Thomas established

that his supervisor, Dean Demers, had animus toward him, the Commission

2 reasonably concluded that the animus resulted from Thomas’s perceived

disrespectful behavior toward Demers rather than from Thomas’s safety complaints,

cooperation with the government inspector, or threats of legal action. Indeed,

Thomas admitted hanging up on Demers during a heated phone call and that Demers

made the comments allegedly showing animus toward Thomas the next morning. A

reasonable mind could accept the Commission’s conclusion considering the record.

See Biestek v. Berryhill, 587 U.S. 97, 103 (2019).

The Commission also found that Thomas couldn’t identify similarly situated

employees not punished as Thomas was for his misconduct—thus, failing to show

disparate treatment. While Thomas complained that another employee failed to wear

a flotation device while indoors on a boat, he could not show that any employee was

similarly reported for failing to wear a life jacket over open water who was not

suspended.

Substantial evidence also supports the Commission’s finding that

CalPortland’s justifications for firing Thomas weren’t mere pretext. First, evidence

showed that CalPortland made several efforts to contact Thomas but that Thomas

was unresponsive. Further, evidence showed that Thomas only offered to provide

information in written statements and didn’t fully cooperate with CalPortland’s

investigation. But even if CalPortland fired Thomas for the misconduct citation and

following investigation, the Commission reasonably found the firing justifiable

3 because, based on the mine’s violation history, it “was by far the most serious

violation the company had dealt with.”

For the same reasons, substantial evidence also supports the Commission’s

finding that ALJ in the case didn’t consider the totality of the evidence in initially

ruling for Thomas.

The majority doesn’t disagree that substantial evidence supports the

Commission’s findings. Rather, the majority reasons that when § 816(a)(1) limits

our review to the findings of fact of the “Commission” it does not mean the

“Commission” at all, but instead “refers to the agency generally.” Maj. Op. 3. But

as judges, our job is to follow the statute’s plain meaning and presume that Congress

“says what it means and means what it says.” Oklahoma v. Castro-Huerta, 597 U.S.

629, 642 (2022). Yet despite § 816(a)(1)’s clear command, the majority insists that

we must go beyond the Commission’s factfinding and also look at what the ALJ

found in the case. And in analyzing the record, the majority picks the ALJ’s version

of the facts—which teeters close to de novo factfinding. But that’s not what

§ 816(a)(1) requires.

Rather than relying on the Mine Act’s provision governing judicial review,

see 30 U.S.C. § 816, the majority seizes on a phrase in the Act’s provision governing

administrative review, see id. § 823(d)(2)(A)(ii)(I). The majority believes this

administrative review provision gives our court plenary authority to overturn the

4 Commission’s factfinding. But that’s not the congressional design. Under § 823(d),

Congress gives broad powers to the Commission over ALJ decisions. Congress

grants the Commission authority to “prescribe rules of procedure for its review of

decisions of” ALJs and makes the Commission’s review of ALJ decisions

discretionary. Id. § 823(d)(2)(A)(i). Congress expressly authorizes the Commission

to “affirm, set aside, or modify the decision or order of the administrative law judge

in conformity with the record.” Id. § 823(d)(2)(C). Congress then limited the

grounds for appeal of ALJ decisions to the Commission, including the ground that a

“finding or conclusion of material fact is not supported by substantial evidence.” Id.

§ 823(d)(2)(A)(ii)(i).

Based on the language of § 823(d)(2)(A)(ii)(i), the majority thinks that we can

disregard the plain text of § 816(a)(1) and that we must pierce the Commission’s

factfinding even if it’s supported by substantial evidence. But the language of

§ 823(d)(2)(A)(ii)(i) says no such thing. It only lists a ground of appeal of an ALJ

decision—it says nothing about our review of Commission’s factfinding. Further,

even if the two statutory provisions conflict, “[i]t is a commonplace of statutory

construction that the specific governs the general.” State v. Su, 121 F.4th 1, 13 (9th

Cir. 2024). So no matter the majority’s broad interpretation of § 823(d)(2)(A)(ii)(i),

Congress directly and expressly cabins our authority here. We should have followed

the plain text of § 823(d)(2)(A)(ii)(i).

5 Contrary to supporting the majority, Bumble Bee Seafoods v. Dir., Off. of

Workers’ Comp. Programs, 629 F.2d 1327, 1329 (9th Cir. 1980), counsels that we

follow the plain text of § 816(a)(1). In that case, the Longshoremen’s and Harbor

Workers’ Compensation Act directed the Benefits Review Board to treat the

“findings of fact in the decision under review” as “conclusive if supported by

substantial evidence in the record considered as a whole.” 33 U.S.C. § 921(b)(3).

So the Act mandated that the Board view the ALJ’s factfinding as “conclusive”—

unlike the Mine Act. And more importantly, Congress gave no instruction to federal

appellate courts to treat the Board’s factfinding as “conclusive” as the Mine Act

does. See id. § 921(c). So it’s no wonder that the Mine Act’s standard of review

would differ from the Longshoremen’s Act’s.

Nor does Miller Min. Co. v. Fed. Mine Safety & Health Rev. Comm’n, 713

F.2d 487 (9th Cir. 1983), help the majority. In that case, we said “we will uphold

the factual findings of the administrative law judge if there is substantial evidence

to support them.” Id. at 490. But the Commission there “adopted the decision” of

the ALJ, so the Commission’s factual findings were the ALJ’s factual findings. Id.

at 489. When the Commission and ALJ fully agree on the facts, our substantial

evidence review is the same no matter what. But when the Commission and the ALJ

disagree, Congress said we must review the Commission’s version.

6 2. Thomas also challenges the Commission’s application of the but-for

causation standard. “[A] but-for test directs us to change one thing at a time and

see if the outcome changes.” Bostock v. Clayton County, 590 U.S. 644, 656 (2020).

Though Thomas argues that the Commission misapplied but-for causation by “really

looking for a ‘sole cause’ of adverse action,” the record shows otherwise. The

Commission found that “Thomas failed to prove that his discharge was in any way

caused by any protected activity.” It concluded that Thomas would have been

suspended for his safety-device misconduct and considered resigned after his refusal

to communicate with CalPortland even if Thomas had not engaged in protected

activity. So rather than find that Thomas’s protected activity wasn’t the “sole cause”

of his termination, the Commission found that his protected activity wasn’t a cause

at all. Though Thomas may disagree with the Commission’s findings, he cannot

argue that it incorrectly applied but-for causation. We should have denied the

petition on this claim as well.