Daniel B. Lowe v. Veris Gold USA, Inc.

Plain-English summary

Daniel Lowe had prevailed on his self-filed Mine Act discrimination complaint against Veris Gold, but the Judge had not yet determined damages or other relief. The Secretary of Labor asked the Judge to vacate that ruling, arguing that an order to file a civil-penalty petition effectively made the Secretary a party and that Veris Gold's bankruptcy prevented further action. Judge William B. Moran held that the Secretary had chosen not to join Lowe's discrimination case and that the later civil-penalty proceeding was separate from Lowe's section 105(c)(3) action. He also held that the Commission and bankruptcy court, not the Secretary acting alone, should resolve whether bankruptcy or successor-liability rules prevented recovery. The Judge denied reconsideration, left the discrimination finding in place, and stated that he would continue reviewing Lowe's claimed damages unless the Commission directed otherwise.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.44(b); 30 U.S.C. § 815(c)(3)
• Outcome: The Secretary's motion for reconsideration was denied, and the discrimination case continued to the remedies stage.
• Key point: The Secretary's separate duty to seek a civil penalty after a miner prevails does not make the Secretary a party to the miner's discrimination case.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933 / FAX: 202-434-9949

January 5, 2016

DANIEL
B. LOWE,

Complainant,

v.

VERIS
GOLD USA, INC.,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2014-614-DM

WE-MD
14-04

Mine:
Jerritt Canyon Mill

Mine
ID: 26-01621

ORDER REGARDING
SECRETARY’S MOTION FOR RECONSIDERATION

Before:                        Judge
Moran

The Secretary
of Labor has filed a “Motion for Reconsideration” in this matter. The
reconsideration sought through the Motion seeks to have the Court vacate its
October 15, 2015, decision in which it found that the Complainant, Daniel B. Lowe,
was discriminated against by Veris Gold, USA, Inc. (“Veris”). For the reasons
which follow, the Court DENIES the Secretary’s motion.

The
problems with the Secretary’s motion are many, beginning with his premise that
the Court “effectively made the Secretary a party by ordering him to file a
penalty petition.” Motion at 1. No authority is cited for the contention that
the Court’s decision “effectively made the Secretary a party.” The Secretary
plainly decided not to become a party, a decision which compelled Mr. Lowe to
move forward on his own, once the Secretary declined to be involved with his
claim of discrimination. Lowe’s invocation of his right to go forward without
the Secretary’s help was part of Congress’ design in such matters by the Mine
Act’s provision, under section 105(c)(3), which provides that “the complainant
shall have the right, within 30 days notice of the Secretary’s determination
[that the provisions of section 105(c) have not been violated] to file an
action in his own behalf before the Commission, charging discrimination or
interference in violation of paragraph (c).” Thereafter, the Secretary
steered clear of the Lowe section 105(c)(3) proceeding, never seeking to
intervene.

The
civil penalty proceeding is an entirely separate matter, though the Secretary
now would like to conflate it with the prior section 105(c)(3) action. The same
provision goes on to provide:

Whenever an
order is issued sustaining the complainant’s charges under this subsection, a
sum equal to the aggregate amount of all costs and expenses (including
attorney’s fees) as determined by the Commission to have been reasonably
incurred by the miner, applicant for employment or representative of miners
for, or in connection with, the institution and prosecution of such proceedings
shall be assessed against the person committing such violation. Proceedings
under this section shall be expedited by the Secretary and the Commission. Any
order issued by the Commission under this paragraph shall be subject to
judicial review in accordance with section 816 of this title. Violations by
any person of paragraph (1) shall be subject to the provisions of section[]
. . . 820(a) of this title.

30 U.S.C. § 815(c)(3)
(emphasis added).

The
Commission’s procedural rules specifically address this matter and make clear
that, in the wake of a section 105(c)(3) decision finding for the complainant,
the Secretary is to promptly file a petition for the assessment of a civil
penalty:

Petition for assessment
of penalty in discrimination cases. . . . (b) Petition for assessment of
penalty after sustaining of complaint by miner, representative of miners, or
applicant for employment. Immediately upon issuance of a decision by a Judge
sustaining a discrimination complaint brought pursuant to section 105(c)(3), 30
U.S.C. 815(c)(3), the Judge shall notify the Secretary in writing of such
determination. The Secretary shall file with the Commission a petition for
assessment of civil penalty within 45 days of receipt of such notice.

29
C.F.R. § 2700.44(b); see also Maggard v. Chaney Creek Coal, 8
FMSHRC 966 (June 1986) (ALJ); Pendley v Highland Mining, 37 FMSHRC 2436 (Oct.
2015) (ALJ). Such civil penalty proceedings are assigned their own docket
numbers when the civil penalty action is launched.

Having
found that the Secretary has not been “effectively made” a party of the section
105(c)(3) action, the premise of the Motion collapses and becomes more
confusing by the Secretary’s assertion that he has “standing to file this
motion as a ‘party adversely affected’ by the ALJ’s decision.” Motion at 1 (citing
Procedural Rule 10(d), 29 C.F.R § 2700.10(d)). Remembering that the motion at
hand was brought by the Secretary, the procedural rule provision cited
refers to a statement in opposition to a written motion. If accepted,
the Secretary would apparently be opposing his own motion, a crazy-quilt
result.

The
Secretary does get some things right in his motion. As noted, it is accurate that
the Secretary did decline to file a section 105(c)(2) action on behalf of Mr.
Lowe, and that decision prompted Complainant to file his own action, under
section 105(c)(3), per Congress’ design. However, in a distressing fashion, the
Secretary neglects to mention several salient points, such as that Mr. Lowe
filed his complaint with MSHA on November 22, 2013, and that he filed his
section 105(c)(3) complaint twenty days after MSHA declined to represent him,
on April 24, 2014. By May 5, 2014, Veris had acknowledged that the Complaint
had been filed and by June 3, 2014, Veris’ retained law firm, and specifically
Attorney David M. Stanton, was responding to Lowe’s 105(c)(3) complaint,
denying the allegations of discrimination. The Secretary notes that Veris began
its quest for bankruptcy protection in June 2014, that is to say, at a point in
time after Lowe’s Complaint had been filed. Lowe’s conundrum was that he
could not make a claim for damages until after first prevailing in the
administrative proceeding before this Court. Lowe did so prevail upon the
Court’s issuance of its decision on October 15, 2015, finding that Veris had
discriminated against him in violation of the Mine Act. The record does not
reveal if the United States Bankruptcy Court was informed of Lowe’s Complaint,
nor does it disclose any notice to Mr. Lowe about such bankruptcy proceeding
being launched, or his rights in that matter, although Lowe apparently received
from Attorney Stanton a notice of an Order from the United States Bankruptcy
Court, District of Nevada, dated September 17, 2014.

The
Secretary’s motion states that, on December 17, 2014, this Court rejected
Veris’ claim that the bankruptcy court’s order enjoining the commencement or
continuation of any proceedings against Veris Gold applied to Lowe’s complaint.[1]
That much is true. However, as the Secretary tells the chronology of events,
immediately after his motion recounts that the Court rejected the claim by
Veris that the bankruptcy court’s order applied to Lowe’s complaint, the motion
next states that:

Veris Gold’s
attorney later informed the ALJ that he was withdrawing from representation,
that Veris Gold would be unrepresented at the hearing, and that Veris Gold was
aware of these facts. No representative for Veris Gold appeared at the hearing.

Motion
at 3.

In the Court’s assessment, the Secretary
engaged in a technically accurate, but quite misleading, telling of the events since
it implied nearness in time between the Court’s order and Veris’ attorney’s
informing the Court that he was withdrawing from representation of Veris. In
point of fact, more than six months elapsed following the Court’s ruling that
Lowe’s complaint could proceed. Veris’ attorney first announced his intention
to withdraw from the Lowe v. Veris discrimination litigation less than a
week before that hearing began. During that half-year interval between the
Court’s ruling and the start of the hearing, Veris prepared, through Attorney
Stanton, for Lowe’s hearing. A companion Veris discrimination case, another
section 105(c)(3) hearing, with this Court presiding, had concluded in the week
just prior to the start of Lowe’s hearing. Varady v. Veris Gold USA, Inc.,
WEST 2014-307-DM. Attorney Stanton appeared and represented Veris throughout
that entire hearing involving Mr. Varady’s claim. The Varady hearing did not go
well for Veris. The credible testimony revealed to all at the hearing the
merits of Mr. Varady’s claim and at the same time the lack of a credible
defense by Veris. Attorney Stanton could not have been oblivious to the
testimonial developments and the devastating impact that had on Veris’ defense
claims. The weakness of Respondent’s defense was subsequently memorialized in
the Court’s September 2, 2015, decision in the Varady matter, but it was plain
to all who participated at the Varady hearing that the complainant would
prevail.[2] Immediately after the Varady
hearing concluded, through emails to the Court from Veris’ attorney, Respondent
began to take actions to staunch the bleeding. This culminated the following
week when, on the first day of the Lowe hearing, Attorney Stanton appeared for
the purpose of withdrawing from representation of Veris. Thus, the Secretary’s
recounting of the events, jumping from the Court’s December 17, 2014, decision
to allow the continuation of Lowe’s action against Veris, to a time some six
months later when Attorney Stanton sought to back out of the case, is misleading.
It is fair to presume that Attorney Stanton’s firm was being paid or at least
was billing Veris for its defense of the Lowe and Varady discrimination
complaints up until the conclusion of the Varady hearing on June 10, 2015, and
through the first day of Lowe’s hearing on June 18th.

The Secretary’s Motion, after noting
that the successor to Veris Gold USA, Inc., Jerritt Canyon Gold, LLC, was not a
party to the Lowe hearing, contends that this Court lacked jurisdiction to
adjudicate Lowe’s 105(c)(3) complaint. To arrive at this contention, the Secretary
first acknowledges that

[t]he Commission
has held that [11 U.S.C. §] 362(b)(4) permits the Commission to adjudicate
proceedings brought by the Secretary alleging violations of the Mine Act and
mandatory health and safety standards and regulations promulgated thereunder. Hidden
Splendor Res., Inc., 35 FMSHRC 1548, 1550 (2013). Additionally, the
Commission has held that Section 362(b)(4) exempts Section 105(c)(2) actions
filed by the Secretary on behalf of a complainant. Jim Walter Res., Inc.
12 FMSHRC 1521, 1528-30 (1990).

Motion
at 4.

However, the Secretary, siding with mine
operator Veris, not miner Lowe, asserts that the Court erred by

holding that
Section 362(b)(4) exempts Section 105(c)(3) actions brought by miners
themselves. [The Secretary argues that] [m]iners do not meet the definition of
‘governmental unit’ for purposes of the Section 362(b)(4) exemption. See id.
(noting that the Bankruptcy Code defines ‘governmental unit’ as the ‘United
States;…department, agency, or instrumentality of the United States.’ 11 U.S.C.
§ 101(27)).

Motion
at 4.

The Motion continues by referencing
other examples where private individuals, as opposed to a governmental unit,
are out of luck when it comes to stays. Id. at 5. Accordingly, on the
basis that a section 105(c)(3) claim is inherently infirm vis-à-vis a bankruptcy
court’s stay, the Secretary maintains that he:

cannot comply
with the ALJ’s order to commence a penalty proceeding against Veris Gold or its
successor. Any such penalty would be for discriminatory action that occurred
prior to Veris Gold’s bankruptcy filing. Consequently, the Secretary’s only
remedy against Veris Gold was to file a proof of claim in the bankruptcy
proceeding. Moreover, commencing a civil penalty proceeding would be futile,
insomuch as Veris Gold has been liquidated in bankruptcy and the proceeding has
closed. Docs. 320, 356 in Docket No. 14-51015 (Bankr. D. Nev.). Nor may the
Secretary seek to impose a penalty on Veris Gold’s successor. When, as here,
the successor purchases the predecessor in bankruptcy, the Bankruptcy Code
renders such sales “free and clear,” 11 U.S.C. § 363(f) – even of employment
discrimination claims. In re Trans World Airlines, Inc., 322 F.3d 283,
290-92 (3rd Cir. 2003); see also In re Leckie Smokeless Coal Co., 99
F.3d 573, 585-87 (4th Cir. 1996) (successors of coal mine operators sold in
bankruptcy were not liable for financial obligations to employees’ benefit plan
and fund). In suggesting otherwise, the ALJ relied on Commission case law
imposing successor liability[3] for Section 105(c)
discrimination cases that did not involve sales in bankruptcy. ALJD at 12.

Motion
at 5-6.

Mr. Lowe, who is not an attorney and has
proceeded pro se throughout this proceeding, filed a response to the
Secretary’s motion.[4] In arguing against the
Secretary’s motion, Lowe contends that the Secretary could have moved to
intervene in the 105(c)(3) case, but did not, and that it is now too late to be
considered a party to this proceeding. Lowe Motion, Arguments I and II. The
Court agrees that the Secretary is not now, by the Court’s action, effectively,
a party, as discussed, supra.[5] Lowe also contends
that the Secretary is duty-bound by 29 C.F.R.§ 2700.44(b) to petition for the
assessment of a penalty after a complaint of discrimination has been sustained
by the judge. Lowe next notes that in the companion discrimination case of Varady
v. Veris Gold, this Court, having found that Varady was discriminated,
similarly ordered that the Secretary file a civil penalty and that the
Secretary did file such a petition. Lowe Response at 7.[6]

The Court’s reaction to the Secretary’s
contention is multi-faceted. While the Secretary states, as noted above, that
he “cannot comply with the ALJ’s order to commence a penalty proceeding against
Veris Gold or its successor [because] [a]ny such penalty would be for
discriminatory action that occurred prior to Veris Gold’s bankruptcy
filing,” that seems to be an acknowledgment in favor of Lowe. Motion at 5. Lowe’s
initial complaint to MSHA, relating to alleged discriminatory activity, and
later, his subsequent 105(c)(3) complaint, all occurred before the commencement
of the Veris bankruptcy proceeding. As noted, Lowe filed his initial complaint
with MSHA on November 22, 2013 and, thereafter, on April 24, 2014, filed his
section 105(c)(3) complaint. Veris filed for relief from creditors on June 9,
2014. Thus, Veris Gold, through its retained counsel, had notice of the claim. Neither
Lowe, nor anyone else, including the Secretary of Labor, could file a proof of
claim until after prevailing in the discrimination case. It would seem that Veris,
and the law firm representing it, being fully aware of the bankruptcy filing and
Lowe’s discrimination complaint, had a duty to inform Lowe of that bankruptcy
action, any notification rights he might have before the bankruptcy court, and to
advise the bankruptcy court of this potential liability. Instead, Veris,
through its legal counsel, pressed forward with discovery and defense of Lowe’s
complaint. Indeed, as noted earlier, by June 3, 2014, Veris’ law firm and
Attorney David M. Stanton were responding to Lowe’s 105(c)(3) complaint.

The Secretary adds, as also noted above,
that:

commencing a
civil penalty proceeding would be futile, insomuch as Veris Gold has been
liquidated in bankruptcy and the proceeding has closed[, and] . . . [e]ven if
he had, . . . it appears that general unsecured creditors, such as the
Secretary would have been, did not receive any payment from the bankruptcy
estate of the debtor.

Motion
at 5 & n. 2.

The Court’s reaction to these
contentions has two aspects. First, the Secretary has confused Mine Act
proceedings with proceedings in which businesses seek the refuge of bankruptcy
protection. Lowe’s right to pursue his 105(c)(3) action before the Federal Mine
Safety and Health Review Commission exists apart from bankruptcy court
issuances. Although it is possible that Veris, and the successor entity Jerritt
Canyon Gold, LLC, may escape financial responsibility for discriminating
against Mr. Lowe, such maneuvers do not erase Lowe’s right to bring his Mine
Act claim in the first instance. At a minimum, Lowe would have for all the
world to see the decision that Veris engaged in discrimination in violation of
that Act, behavior that Congress intended to protect miners from, and for which
it expressed that compensation and such other relief as the Commission deems
appropriate was to be provided. That Veris and Jerritt Canyon may be able to
legally walk away from compensating a victim of discrimination through the process
of bankruptcy law is, in this Court’s view, a stain on those entities.

Second, it should be for the bankruptcy
court, with its expertise in such matters, to rule upon such claims, and not
for the Secretary of Labor to peremptorily cede that obtaining payments would be
hopeless. It may be, as with the Federal Mine Safety and Health Review Commission,
that bankruptcy law permits such courts to reopen matters in the interest of
justice.[7] See, e.g., Tolbert
v. Chaney Creek Coal, 12 FMSHRC 615 (Apr. 1990); Sec’y of Labor v. Deck,
37 FMSHRC ___, No. SE 2014-322-M (Dec. 18 2015).

Similarly, regarding the Secretary’s
contention that it may not impose a penalty on Veris Gold’s successor “[w]hen,
as here, [a] successor purchases the predecessor in bankruptcy, [because] the
Bankruptcy Code renders such sales “free and clear,” 11 U.S.C. § 363(f) – even
of employment discrimination claims,” the Court believes that should be up to
the Commission, and, if the Commission agrees with this Court, ultimately the
bankruptcy court to make such a ruling. After all, the Mine Act is a remedial
statute. As the Commission has observed:

The Federal Mine
Safety and Health Act of 1977 is a remedial statute, the “primary objective [of
which] is to assure the maximum safety and health of miners.” U.S. Senate,
Committee on Human Resources, Subcommittee on Labor, Legislative History of the
Federal Mine Safety and Health Act of 1977, 95th Cong., 2d Sess. at 634 (1978).
Cf. Freeman Coal Mining Company v. IBMOA, 504 F.2d 741, 744 (7th Cir.
1974). The Senate Committee emphasized the remedial nature of the Act's
compensation provision. The Committee stated:

This provision .
. . is not intended to be punitive, but recognizes that miners should not lose
pay because of the operator's violations. . . . It is therefore a remedial
provision which also furnishes added incentive for the operator to comply with
the law. This provision will also remove any possible inhibition on the inspector
in the issuance of closure orders. Legislative History, supra, at 634-635. In
interpreting remedial safety and health legislation, “[i]t is so obvious as to
be beyond dispute that . . . narrow or limited construction is to be eschewed .
. . [L]iberal construction in light of the prime purpose of the legislation is
to be employed.”

St. Mary's Sewer
Pipe Co. v. Director, U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd Cir.
1959); Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d
772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975). We believe that a
liberal construction of the 30-day filing period for compensation claims
requires a conclusion that the period may be extended in appropriate
circumstances.

Local
5429, UMWA v. Consolidation Coal Co., 1 FMSHRC 1300, 1302 (Sept. 1979).

In
sum, unless the Commission directs otherwise, the Court intends to review
Lowe’s submission of his damages and to issue a decision regarding an
appropriate award.[8] Accordingly, the
Secretary’s Motion for Reconsideration is DENIED.

/s/ William B.
Moran

William B. Moran

Administrative Law Judge

Distribution:

Brad
J. Mantel, Attorney

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South – Suite 500

Arlington,
VA 22202

Daniel
B. Lowe

P.O.
Box 2608

Elko,
NV 89801

Veris Gold, USA, Inc.

HC 31 Box 78

Elko, NV 89801

Jerritt Canyon Gold, LLC

HC 31 Box 78

Elko, NV 89801

Matthew A. Varady

701 S. 5th Street, #6

Elko,
NV 89801

Honorable
Gregg W. Zive

U.S.
Bankruptcy Court

District
of Nevada

C.
Clifton Young Federal Building

300
Booth Street

Reno,
NV 89509

David M. Stanton, Esq.*

Goicoechea, DiGrazia, Coyle, & Stanton, Ltd.

530 Idaho Street

Elko, NV 89801

Peter S. Gould*

Squire Patton Boggs, LLP

1801 California Street, Suite 4900

Denver, CO 80202

Bruce L. Brown*

Associate Regional Solicitor

Regional Solicitor’s Office, U.S. Department of Labor

300 Fifth Avenue, Suite 1120

Seattle, WA 98104

Susan Gillett Kumli*

Regional Solicitor’s Office, U.S. Department of Labor

90 7th Street, Suite 3-700

San Francisco, CA 94103

Bill LeClair*

688 West Hastings Street, Suite 900

Vancouver, BC

V6B 1P1, Canada

Doug Johnson*

Court-appointed Monitor

c/o Ernst & Young, Inc.

700 West Georgia Street

Vancouver, BC

V7Y
1C7, Canada

*
The individuals marked with an asterisk are included in the distribution list
solely because they were included in the distribution list of the Secretary’s
Motion for Reconsideration. By including these individuals, the Court does not
imply that they are representatives of either party in this litigation.

[1] The Secretary’s motion is
not paginated and therefore the Court can only approximate the page associated
with a particular quoted passage.

[2] The Court noted
in its decision in the Lowe v. Veris Gold matter:

At the outset of
the hearing, Attorney David Stanton, privately retained legal counsel for Veris
Gold, appeared. The Court noted that Attorney Stanton filed a motion for his
withdrawal as the Respondent’s representative. Tr. 6. The Court had previously
received word of Attorney Stanton’s motion to withdraw at the conclusion of the
prior week, one day after another section 105(c)(3) hearing against Veris, Matthew
Varady v. Veris Gold USA, Inc., WEST 2014-307-DM, had concluded. This Court
presided in the Varady discrimination case. That case involved the pro
se discrimination claim brought Matthew Varady against Veris Gold, and a
decision finding for Mr. Varady was issued on September 2, 2015. Attorney
Stanton represented Veris in the Varady discrimination matter for the entirety
of the hearing. As stated, infra, the Varady hearing did not go well,
evidentiary-wise, from Respondent’s perspective, and it was obvious that
Attorney Stanton correctly gauged the adverse evidentiary consequences of the
proceeding, owing to the poor credibility of Respondent’s various witnesses. Therefore,
it was not a surprise to the Court that the attorney moved to withdraw from
representation. As the Varady and Lowe matters are closely linked, it followed
that withdrawal would be sought in the Lowe matter as well.

Lowe
v. Veris Gold USA, Inc., 37 FMSHRC 2337, 2338 (Oct. 2015) (ALJ).

[3] While the Court
recognizes that it is entirely premature to rule on successorship liability, if
newspaper accounts turn out to be correct, it would appear quite likely that
Jerritt Canyon Gold, LLC, squarely meets most, if not all, of the nine-factors
applied in determining whether an entity is a successor. These include notice
of this proceeding, substantial continuity of the mining operations, no
significant hiatus in that continuity, employment of substantially the same
workforce, essentially the same job functions and working conditions, the same
machinery, and selling the same mined material, gold. See Sec’y of Labor on
behalf of Zambonino v. Colonial Mining Materials, 36 FMSHRC 1239 (May 2014)
(ALJ) (citing Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463, 3465-66
(Dec. 1980), aff’d in relevant part sub nom., Munsey v. FMSHRC,
701 F.2d 976 (D.C. Cir. 1983)).

[4] Lowe accurately notes
that, while the Secretary opted not to pursue his discrimination complaint and
thereby necessitate that he file a 105(c)(3) claim in order to continue his
complaint, MSHA Special Investigator Kyle E. Jackson, investigated Lowe’s
discrimination claim, found that Lowe engaged in protected activity, and that
his employment was terminated, at least in part, because of that protected
activity. Declaration of Kyle E. Jackson, attached as Exhibit 1 to
Complainant’s Motion to Deny the Secretary’s Motion for Reconsideration. Unfortunately,
the Secretary declined to follow the recommendation of its special
investigator. The Court cannot usurp, nor look behind, the Secretary’s decision
to decline a section 105(c)(2) complaint; the Court can only proceed when a
miner elects to pursue a discrimination claim filed under section 105(c)(3), as
occurred here.

[5] The Court has reviewed
each of Lowe’s contentions in his motion, which is more in the nature of a
response to the Secretary’s motion. Not every observation made by Lowe, such as
the Secretary’s mistake in listing the certificate of service date as “December
XX, 2015,” will be commented upon.

[6] Following the Court’s
determination that Matthew Varady had been discriminated against by Veris, on September
11, 2015, an Associate Regional Solicitor filed a petition for assessment of
penalty in the Varady matter seeking a civil penalty of $20,000.00. The matter
was then docketed on September 15, 2015, as WEST 2015-909-M. On December 23,
2015, the Secretary moved to dismiss the civil penalty petition essentially on
the same arguments presented and addressed here in the Lowe matter. No order
has yet been issued on the Secretary’s motion to dismiss in the Varady matter.

[7] While not claiming any expertise
in bankruptcy law, the Court notes that under 11 U.S.C. section 105(a) of the
Bankruptcy Code, a bankruptcy court can issue any order, process, or judgment
that is necessary or appropriate to carry out the provisions of this title and
that “the overriding consideration in bankruptcy … is that equitable principles
govern.” In re NWFX, Inc., 864 F.2d 588, 590 (8th Cir. 1988). Even the
Supreme Court considers in forma pauperis petitions, and so it may also be
that if Lowe makes a claim before the bankruptcy court, it could decide to consider
Lowe’s claim. Given that changes in bankruptcy law, which went into effect in
October 2005, made it more difficult for individuals, as opposed to
corporations, to escape obligations they could afford to pay, it would be
ironic if, in discrimination cases, corporations, employing other bankruptcy
chapters, remain freer than individuals to clear away debts. 

[8] While an extra-judicial
observation, the Court would note that there is nothing prohibiting Jerritt
Canyon Gold from stepping up and doing what the Court considers to be the right
thing by settling the Lowe (and Varady) matters. Settlements regarding damages
in discrimination matters routinely occur and it may be that the new gold mine owners
may decide it best, in good conscience, to put these matters, remnants of the troubled
former operation under Veris Gold USA, Inc., behind them.