[DOCID: f:cent981.wais] KNOCK'S BUILDING SUPPLIES May 24, 1999 CENT 98-1-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 May 24, 1999 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. CENT 98-1-M : A.C. No. 13-01916-05505 KNOCK'S BUILDING SUPPLIES : BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners ORDER BY THE COMMISSION: This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On April 1, 1999, the Commission received from Knock's Building Supplies ("KBS") a request to reopen a decision issued by Administrative Law Judge T. Todd Hodgdon on May 29, 1998. In its request for relief, KBS demands a jury trial and alleges that "a prejudicial error of procedure was committed." K. Mot. The operator also claims to have more knowledge of safety than MSHA's inspectors, and submits that it has never had a serious injury. Id. In opposition to KBS's request, the Secretary argues that the operator's request does not establish grounds upon which the Commission could grant relief under Fed. R. Civ. P. 60(b)(1) or 60(b)(6). S. Opp'n at 4-5. The judge's jurisdiction over these cases terminated when his decision was issued on May 29. 29 C.F.R. § 2700.69(b). Relief from a judge's 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. § 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). The Commission has entertained late-filed petitions for discretionary review where good cause has been shown. See, e.g., De Atley Co., 18 FMSHRC 491, 492 (Apr. 1996) (excusing late filing of petition for discretionary review where operator's predecessor failed to inform operator of unconsummated settlement agreement). Typically, in such cases, a default order has been entered against a party, depriving the party of any opportunity to defend against the enforcement action taken by the Secretary. Relief from a final Commission judgment or order is available to a party under Fed. R. Civ. P. 60(b)(1) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R. § 2700.1(b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). Rule 60(b) motions are committed to the sound discretion of the judicial tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987), cert. denied, 484 U.S. 1027 (1988); see Green Coal Co., 18 FMSHRC 1594, 1595 (Sept. 1996). Here, KBS has availed itself of the opportunity to defend the case before a judge. The operator offers no explanation for its failure to timely submit a petition for discretionary review. Thus, KBS has failed to set forth grounds establishing that Fed. R. Civ. P. 60(b) relief is appropriate. See Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen final Commission order where operator failed to set forth grounds justifying relief); Brown Bros. Sand Co., 15 FMSHRC 203, 204 (Feb. 1993) (rejecting late-filed petition for discretionary review of judge's decision where stated rationale did not meet the criteria of Fed. R. Civ. P. 60(b)). Accordingly, KBS's request for relief from the final Commission decision is denied. For the foregoing reasons, the operator's motion is denied. Mary Lu Jordan, Chairman Marc Lincoln Marks, Commissioner James C. Riley, Commissioner Theodore F. Verheggen, Commissioner Robert H. Beatty, Jr., Commissioner Distribution Markley Knock Knock's Building Supplies 302 North Side Parkersburg, IA 50665 Jack Powasnik, Esq. Office of the Solicitor U.S. Department of Labor 4015 Wilson Blvd., Suite 400 Arlington, VA 22203 Administrative Law Judge T. Todd Hodgdon Federal Mine Safety & Health Review Commission Office of Administrative Law Judges 5203 Leesburg Pike, Suite 1000 Falls Church, VA 22041