Secretary of Labor v. Veris Gold USA, Inc., and its Successors (ALJ decision, March 27, 2017)

Plain-English summary

Earlier rulings found that Veris Gold discriminated against Daniel Lowe and Matthew Varady and directed the Secretary to pursue civil penalties. Veris was later liquidated, leaving no assets to pay penalties or personal relief. The bankruptcy court's sale order also barred successor-liability claims against Jerritt Canyon Gold and related entities. The Secretary moved to dismiss the Varady penalty matter, and Judge David P. Simonton applied that request to Lowe's related case as well. Because further penalty proceedings would be futile, the judge dismissed the civil-penalty docket.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.28; section 105(c)(3) of the Mine Act
• Outcome: The civil-penalty proceeding was dismissed because the liable company had been liquidated and successor claims were barred.
• Key point: A discrimination penalty case may be dismissed as futile when liquidation eliminates the liable employer's assets and bankruptcy orders foreclose successor recovery.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

March 27, 2017

SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, (MSHA),

Petitioner,

v.

VERIS GOLD USA, INC., and its Successors,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2015-909-M

Mine: Jerritt Canyon Mill

Mine ID: 26-01621

ORDER
OF DISMISSAL

This
case is before me upon a petition for assessment of Civil Penalty pursuant to the Federal Mine Safety and Health Act, 30 U.S.C. §§ 801 et seq. and 29 C.F.R. § 2700.28. Daniel Lowe and Matthew Varady (“Complainants”) filed discrimination complaints against Veris Gold (“Veris”) pursuant to section 105(c) (3). In an order dated September 2, 2015, the presiding ALJ found Veris Gold liable for discrimination against Varady. The ALJ noted that Veris had previously filed a petition for Bankruptcy, but nonetheless instructed the Secretary to assess a civil penalty against Veris. The Secretary filed its position on September 11, 2015. The presiding ALJ then issued a decision on October 15, 2015, finding Veris Gold liable for discrimination against Lowe and instructed the Secretary to assess a civil penalty in that docket as well. On December 23, 2015, however, the Secretary withdrew the petition for civil penalty in Varady’s case and filed a Motion to Dismiss the Dockets. [1]

On
March 20, 2017, this court entered an Order granting JCG’s motion to dismiss the Complainants’ successorship claims and denied the Complainants’ motion to add other affiliates of Veris as successors. The court explained that although the Complainants established their claims against Veris Gold, the Sale and Enforcement Orders issued by the Bankruptcy Court foreclosed their pursuit of successorship liability against Jerritt Canyon Gold, LLC, (“JCG”) the purchaser of certain Veris Gold assets, and its other affiliates. The Order also instructed the Complainants that, should they wish to enter a claim against Veris Gold, they were to resubmit their claims for personal relief. On March 21, 2017, the Complainants informed the court via email that they did not wish to obtain orders against Veris because the company had been liquidated and no longer had assets to pay their claims. Pursuant to the terms of that Order, this court dismissed the cases in a separate order dated today.

In
light of the March 20, 2017 Order, the Secretary’s pursuit of a civil penalty against Veris is also futile. Veris Gold has been liquidated and no longer possesses assets to pay off its creditors, and the Bankruptcy Court’s Sale Order expressly prohibits pursuit of successorship liability claims.

Accordingly,
the Secretary’s Motion for dismissal in the Varady case is hereby GRANTED and applied to the Lowe case as well. IT IS ORDERED that this penalty docket be DISMISSED .

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (U.S. First Class Mail)

Cathy L. Reece, Fennemore
Craig, P.C., 239 East Camelback Rd., Suite 600, Phoenix, AZ 85016

Mark Kaster, Dorsey &
Whitney, 1500 South 6 th Street, Minneapolis, MN 55402

Annette Jarvis, Dorsey &
Whitney, 136 South Main Street, Suite 1000, Salt Lake City, UT 54101

Eric Sprott, 200 Bay Street
Suite 2700, P.O. Box 27, Toronto, Ontario, Canada M5J 2J1

Matthew A. Varady, 701 South
5 th Street, #6, Elko, NV 89801

Daniel Lowe, P.O. Box 2608,
Elko, NV 89803

Shaun Heinrichs, Veris Gold,
688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, Canada

Tevia Jeffries, Dentons
Canada LLP, 250 Howe Street, 20 th Fl., Vancouver, BC V6C 3R8, Canada

Brad J. Mantel, Office of
the Solicitor, U.S. Department of Labor, 201 12 th Street South, Suite 401, Arlington, VA 22202

Benjamin R. Botts, Office of
the Solicitor, U.S. Department of Labor, 90 7 th Street, Suite 3-700, San Francisco, CA 94103

W. Christian Schumann,
Office of the Solicitor, U.S. Department of Labor, 201 12 th Street South, Suite 401, Arlington, VA 22202

Bruce L. Brown, Office of
the Solicitor, U.S. Department of Labor, MSHA, 300 Fifth Ave, Suite 1120, Seattle, WA 98104

[1]
Both Varady and Lowe are in the same position regarding the bankruptcy issue in that findings of discrimination were made after the bankruptcy sale order had been issued. Therefore, my order dismissing any penalty docket or a potential for one shall apply to Lowe’s case. Specifically, I find the Secretary’s motion to dismiss the Varady case applicable to the Lowe docket as well.