FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
June 30, 2010
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), |
Docket No. WEVA 2009-1445 |
|
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On May 12, 2010, the Commission received a petition for discretionary review from Brody Mining, LLC (“Brody”) challenging an order issued by Chief Administrative Law Judge Robert J. Lesnick on April 9, 2010. In his order, Judge Lesnick denied a motion to dismiss filed by Brody and accepted an untimely petition for assessment of penalty filed by the Secretary of Labor.
Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s final decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(a), 2700.70(a). Under the Commission’s Procedural Rules, the filing of a petition for discretionary review is effective upon receipt.
29 C.F.R. §§ 2700.5(e)(2), 2700.70(a).
Brody’s petition was received by the Commission on May 12, 2010, more than 30 days after issuance of the Judge’s April 9, 2010 order. Accordingly, the petition should be dismissed as untimely filed. Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal Corp., 2 FMSHRC 775 n.1 (Apr. 1980).
For the foregoing reasons, Brody’s petition for discretionary review is dismissed as
untimely.
____________________________________
Mary Lu Jordan, Chairman
____________________________________
Michael F. Duffy, Commissioner
____________________________________
Michael G. Young, Commissioner
____________________________________
Robert F. Cohen, Jr., Commissioner
____________________________________
Patrick K. Nakamura, Commissioner
Distribution:
Jason M. Nutzman., Esq.
Smith, Moore, Leatherwood
P.O. Box 87
300 E. McBee Avenue, Suite 500
Greenville, SC 29602
Ernie Ross, Jr.
Conference & Litigation Representative
U.S. Department of Labor, MSHA
100 Bluestone Road
Mt. Hope, WV 25880-1000
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Administrative Law Judge William Moran
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202