Secretary of Labor obo Robert Baumann v. MOSenecaManufacturer, LLC d/b/a American Tripoli

Plain-English summary

After directing review, the Commission received an American Tripoli motion relying on purported cases that could not be identified from the citations provided. The Commission ordered the operator to submit copies, but it did not respond. A later show-cause response offered no explanation for that failure, abandoned the original authorities, summarized five new cases, and claimed to attach supporting materials that were not included. The Commission concluded that American Tripoli had fabricated cases in its filings. It vacated the directions for review and dismissed the proceeding.

Decision snapshot

• Cited authority: None specified in the order.
• Outcome: Review was vacated and the proceeding dismissed.
• Key point: Repeated failure to substantiate purported authorities, followed by unsupported replacement citations, justified dismissal and a finding that cases had been fabricated.

Full text (FMSHRC public release)

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information provided, and ordered American Tripoli to submit copies of the relevant cases by December 6, 2024.[1] Unpublished Order dated Nov. 22, 2024.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

[email protected]

[email protected]

Russell Tidaback

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

Irving, TX 75061

[email protected]

Robert Baumann

[email protected]

Laura O’Reilly, Esq.

U.S. Department of Labor

2300 Main Street, Suite 10100

Kansas City, MO 64108

[email protected]

Quinlan B. Moll, Esq.

U.S. Department of Labor

2300 Main St., Suite 10100

Kansas City, MO 64108

[email protected]

Elaine M. Smith, Esq.

U.S. Department of Labor

2300 Main St., Suite 10100

Kansas City, MO 64108

[email protected]

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

[email protected]

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

[email protected]

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

[email protected]

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

[email protected]

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

[email protected]

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

[email protected]

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

[email protected]

[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.