Trump political retribution and the ghost of DOGE (remember that?) are still alive and finally reaching down into the smallest agencies, this time the little known Federal Mine Safety and Health Review Commission (FMSHRC).
Last weekend, Commissioner Moshe Z. Marvit, a Biden appointee, received the following email from the White House:
On behalf of President Donald J. Trump, I am writing to inform you that your position as Federal Mine Safety and Health Review Commissioner is terminated, effective immediately. Thank you for your service[.]
His phone and computer access were immediately cut off. Marvit’s term was supposed to extend to August 30, 2028
Following Marvit’s termination, the agency’s Pittsburgh office was also closed and more than a dozen FMSHRC staff were laid off — a significant proportion of the agency’s 55 member staff. The White House provided no reason for the firings or closure of the Pittsburgh office.
FMSHRC was established by the Federal Mine Safety and Health Act of 1977 to provide administrative trial and appellate review of legal disputes arising under the Act. When MSHA enforcement actions or whistleblower cases are disputed, the affected parties can appeal to an Administrative Review Judge (ALJ). The ALJ’s decision can then be appealed to FMSHRC which reviews the dispute and issues a final decision.
And the law states that “Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”
No inefficiency, neglect of duty or malfeasance in office was alleged by the White House.
The Commission’s website notes that “The Commission was established as an independent agency to ensure its impartiality.”
Unfortunately, the Trump regime has decided that “independent” does not mean what you always thought it meant, nor apparently does the regime value impartiality. Trump has already fired members of independent boards and commissions such as the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission, and has been trying to fire Federal Reserve Chairman Jerome Powell and Fed member Lisa Cook. The Supreme Court is currently considering whether the President can fire independent commission members in the case Trump vs. Slaughter. A decision is expected next month. Any guesses as to which way it will go?
The Chamber of Commerce and other business associations, of course, support enabling the President to fire members of independent agencies. Whether they would have taken the same position during a Democratic Presidency is questionable, to say the least.
Meanwhile, Marvit has filed a lawsuit “challenging President Donald Trump’s unlawful attempt to remove him from office,” asking to be restored to his job.
“Congress created the Federal Mine Safety and Health Review Commission as an independent body so that those who go to work underground every day would have a neutral forum to decide disputes as to the rules meant to protect their lives,” said Hugh Baran, counsel for Commissioner Marvit. “The Mine Act’s protections from removal without cause are not trivial. They are a key safeguard that Congress built into the law to make the Commission’s independence real and protect miners. President Trump is attempting to dismantle this agency in defiance of the law by firing Commissioner Marvit and laying off a substantial portion of the Commission’s staff. Our client is filing suit today to defend this independent agency and assert his rights.”
Commissioner Marvit asks the Court to declare his removal unlawful so that he can be restored to his office, with full access to the resources required to do his job, as well as other appropriate relief.
No Quorum
The Commission is supposed to have five Commissioners, but one spot is vacant. With Marvit’s removal, the Commission will be reduced to three members, the minimum needed for a quorum. But the terms of two of the three remaining commissioners, Mary Lu Jordan and Timothy J. Baker, both Democratic appointees, expire at the end of August, which will leave the Commission without a quorum unless additional members are nominated and confirmed by that time. Baker and Jordan were most recently nominated and confirmed by the Senate in the Biden administration. Jordan was first confirmed to a Board position in 1994, during the Clinton administration.
The law states that “Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” No inefficiency, neglect of duty or malfeasance in office was alleged by the White House.
FMSHRC’s counterpart at OSHA, the Occupational Safety and Health Review Commission (OSHRC) is also operating without a quorum, with only one of its three members in office. No one has been nominated to fill any of the two open positions.
The lack of a quorum means that neither agency will be able to make final decisions on any cases that are appealed to the respective boards. The problem is especially critical for workers covered under OSHA as the Occupational Safety and Health Act prohibits OSHA from forcing employers to fix safety and health problems while the case is going through the legal process. MSHA does not have a similar restriction.
A Dream Job
Marvit will miss the job, and he will be missed by miners and worker advocates:
“It’s the best job in the world,” he said. “I get to review cases, add to this body of law that we have, help create case law that brings out the purpose of the congressional act to help keep miners safe and protect their free speech.”
Marvit speaks passionately both about his work and society’s need to understand its legal protections.
“People should know their rights and speak up for themselves and their fellow workers,” he said. “True strength in the workplace comes from working with your fellow worker…I feel like you can feel alone in the workplace, and I wish more people would get together and speak more openly about their pay, about the things that bother them.”
Shortly after being confirmed, Marvit told the Pittsburg Jewish Chronicle that ““It’s really a dream job — even if it only lasts for the next four years.” Unfortunately, unless his lawsuit is successful, he may be two years off.
If past is prologue, the fired Commissioner should survive with his job:
katzbanks.com/wp-content/uploads/Doc.-1-Marvit-Complaint-5-7-26.pdf
As a former General Counsel of FMSHRC, I have been appalled by this attack on the agency. From the unwarranted and illegal firing of Moshe Marvit to the wholesale gutting of the Commission’s staff, this frontal assault on the safety of miners leaves in shambles the adjudication of disputes between mine operators and the Mine Safety and Health Administration. One absolutely critical type of case that will inevitably suffer are those in which miners who have complained about safety issues, and have been subjected to retribution, can obtain permanent reinstatement. The agency is left now with just three judges to handle a caseload which during my tenure were handled by at least four times that number. Even under the best of conditions and management, being a miner is a difficult and dangerous job. It is tragic that the Trump regime has now turned its back “on the first priority and concern of all in the … mining industry … the health and safety of its most precious resource—the miner.”
Jordan, without you reporting these things, it is likely few would know about them. Yet another outrage from the anti-worker administration (even worse than the anti-worker Reagan administration).
Laying off more than a dozen workers will “save” about three (3) Iran-war-minutes of spending (at $1.2 billion per day and estimating wages, benefits and associated costs at $200,000 per FTE).
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