Thomas (Tim) C. Means

Tim's practice focused on judicial review of agency action and appellate advocacy, primarily on issues involving federal regulation of the mining industry, principally under the Federal Mine Safety and Health Act of 1977 (MSHA), the Surface Mining Control and Reclamation Act of 1977 (SMCRA), and other environmental laws. He regularly represented mine operators, mine supervisors, mining equipment manufacturers, and trade associations in MSHA and SMCRA matters, including MSHA special investigations seeking to impose civil and criminal liability, MSHA discrimination complaints, and MSHA and SMCRA enforcement defense litigation, as well as in litigation challenging unlawful MSHA and OSMRE regulations and related regulatory actions. Tim often advised clients on the limits of MSHA jurisdiction and wrote and lectured on the impropriety of the MSHA's attempt to expand its jurisdiction over coal-fired power plants and other coal users.

As chair of the firm's Administrative Law and Regulatory Practice, Tim focused on judicial review of agency action, particularly in defeating agency attempts to insulate their actions from judicial review and on overcoming agency claims that courts must defer to their statutory and regulatory interpretations. For example, Tim was instrumental in persuading the D.C. Circuit to reverse District Judge Thomas Penfield Jackson's ruling that a major gold producer was not entitled to immediate judicial review of EPA guidance documents which substantially increased the mine operator's reporting obligations under EPA's Toxic Release Inventory Program. In a unanimous precedent-setting opinion, the court of appeals held that the mine operator could challenge the EPA "guidelines," even though they were not promulgated as regulations, without having to wait for EPA to enforce those guidelines against it, overturning Judge Jackson's contrary ruling. See Barrick Goldstrike Mines v. Browner, 215 F.3d 45 (D.C. Cir. 2000). Over the years, Tim represented clients in matters pending before numerous federal and state agencies, including NHTSA, CPSC, OSHA, FDA, FAA, NTSB, EPA, OWCP, NPS, DOJ, BLM, FWS, and the U.S. Congress, in addition to his steady diet of regulatory matters involving MSHA and OSMRE.

Surface Mining Litigation (SMCRA)

Tim represented clients in many cases either challenging or defending agency rulemakings, including almost every rulemaking under SMCRA since 1979, as well as many citizen suits. In addition to representing the industry in the landmark National Mining Association v. U.S. Department of the Interior case in which the D.C. Circuit struck down as ultra vires the Office of Surface Mining's Applicant Violator System (AVS) regulations, Tim also handled the series of follow-on cases challenging the agency's successor AVS ownership and control regulations in the D.C. Circuit and in federal district court. Tim also represented numerous companies and individuals in successfully contesting AVS permit blocks and won the only case in which an individual not only forced the agency to delist him from the AVS but also forced the agency to pay his attorneys' fees. See Angus Peyton, 158 IBLA 335 (2003).

In Citizens Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003), Tim not only represented the National Mining Association in defeating environmentalists' attempts to cripple the longwall mining industry by prohibiting subsidence from underground coal mining under millions of acres of land protected from surface mining by SMCRA Section 522, but he persuaded the Supreme Court in 2004 not to grant the environmentalists' petition challenging the D.C. Circuit's decision.

Occupational Safety and Health Litigation (MSHA and OSHA)

Tim represented mining industry clients in many of the industry's most significant occupational safety and health litigation victories over several decades, including the defeat of: the Labor Department's respirable dust fraud prosecutions, MSHA's excessive history civil penalty policy, MSHA's attempt to broaden the scope of unwarrantable failure liability, and OSHA's attempt to impose more restrictive occupational exposure standards for 428 different air contaminants. Tim and his team defended mine operators and mine managers in many of the major mine accident investigations of the last 30 years, from most recently Massey's Upper Big Branch Mine accident and the Crandall Canyon Mine collapse, going back to the Wilberg Mine Fire and Greenwich Collieries No. 1 Mine Explosion in 1984.

The Crandall Canyon representation, following the August 2007 mine accidents that claimed nine lives, encompassed investigations by three committees of Congress, the Labor Department Inspector General, MSHA, and the Justice Department. Tim's team, including Crowell & Moring White Collar specialists, led the clients' responses to the investigations, prepared witnesses, responded to document requests and witness subpoenas, and assisted in obtaining a prompt settlement of the civil litigation in Utah. The primary focus was the federal grand jury investigation in Utah and the MSHA enforcement litigation. In March 2012, the team secured a plea deal that involved a plea by the lowest level corporate client entity to two misdemeanor Mine Act violations and payment of a $500,00 fine. As part of the deal, no other entity or individual was charged in connection with the investigation, and the government stipulated that the misdemeanors did not cause the fatalities. The deal was harshly criticized by the Utah newspapers and even the sentencing judge for its leniency.

Bars, Awards and Pro Bono

Tim was named a Washington, D.C. "Super Lawyer" between 2013 and 2018, and was listed in The Best Lawyers in America every year between 2006 and 2017. Tim was a trustee and president of the Energy & Mineral Law Foundation and served on the Foundation's Editorial Board and its Scholarship Committee. He was a member of the Bar of the District of Columbia and admitted to practice before most of the U.S. Courts of Appeals and the U.S. Supreme Court. He was honored for his public interest work by two national organizations. Tim received the "John L. McClaugherty Award" from the Energy & Mineral Law Foundation and the "Daniel Levy Award" from the National Immigration Project of the National Lawyers Guild. He was also given the George Bailey Award by Crowell & Moring in recognition of his pro bono work.

Tim's pro bono career highlights include in 2011 successfully representing the only person who had her prison sentence commuted (to time-served) by President Obama during his first term of office, enabling Eugenia Jennings to rejoin her children at home after 11 years in prison for minor drug sales. Tim subsequently succeeded in persuading President Obama to free a second prisoner, Stephanie George, after she had served 16 years of a life sentence for a minor drug offense. Stephanie George was one of eight non-violent drug offenders to whom President Obama granted clemency in December of 2013, signaling the start of the increased use of the President’s power to commute prison sentences for non-violent drug offenders, during his Second Administration. Tim had also obtained two of the only nine sentence commutations granted by President George W. Bush during his eight years in office – for  Phillip Emmert in 2006 and Reed Prior in 2008. Each man had been serving a long prison sentence, one for 23 years, the other life without parole, for selling drugs to support their addictions.

Prior to joining Crowell & Moring, Tim was a lobbyist and government affairs representative for Colorado Counties, Inc., a non-profit association of all of the county governments in Colorado, where he gained extensive knowledge in the areas of legislation, agency rulemaking, inter-governmental relations, and federalism.