UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ROBERT THOMAS, No. 24-1442 Agency Nos. Petitioner, WEST 2018-0402-DM WEST 2019-0205 v.
FEDERAL MINE SAFETY AND ORDER HEALTH REVIEW COMMISSION and CALPORTLAND COMPANY,
Respondents.
Before: McKEOWN, FORREST, and BUMATAY, Circuit Judges.
The memorandum filed on May 7, 2025, is amended as follows: on page two,
delete footnote one.
Judge Forrest votes to deny the Petition for Rehearing En Banc (Dkt. 38) and
Judge McKeown so recommends. Judge Bumatay votes to grant the petition. The
full court has been advised of the petition for rehearing en banc, and no judge has
requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 40. The
petition is therefore DENIED, and no further petitions for rehearing will be accepted. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. AMENDED MEMORANDUM* FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; CALPORTLAND COMPANY,
On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission
Submitted September 15, 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).
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.
2 24-1442 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. §
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).
3 24-1442 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
discriminated against the claimant; and (3) a causal connection between the two.1
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
1 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).
4 24-1442 (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).
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,
5 24-1442 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).
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.
6 24-1442 FILED SEP 16 2025 Thomas v. Fed. Mine Safety & Health Rev. Comm’n, No. 24-1442 BUMATAY, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK 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.