<DOC>
[DOCID: f:cn200088.wais]
SIDCO MINERALS
CENT 2000-88-DM
May 10, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 10, 2002
RONALD HARRISON :
:
v. : Docket No. CENT 2000-88-DM
:
SIDCO MINERALS :
BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
ORDER
BY: THE COMMISSION
This matter arose under section105(c)(3) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 815(c)(3),
when Ronald Harrison filed a discrimination complaint against
Sidco Minerals on December 6, 1999. Over six months later,
Chief Administrative Law Judge David F. Barbour dismissed
Harrison's complaint after Harrison failed to respond to two
show cause orders directing him to file with the judge a copy
or restatement of his original discrimination complaint.
Order of Default (June 22, 2000). On July 20, 2001, Harrison
filed with the Commission a request to vacate the judge's
default order. Sidco Minerals opposes Harrison's request for
relief. SM Mot. (Aug. 9, 2001).
In his request, Harrison, apparently proceeding pro se,
asserts that he never received any requests from the judge to
which he did not respond. H. Mot. at 4. Thus, we assume
Harrison is contending that he either did not receive a copy of
the second show cause order or that he responded to the order
but the Commission did not receive his response. We note,
however, that the record contains the certified mail receipt
for the judge's second show cause order issued on May 5, 2000,
indicating that it was received and signed for by Harrison on
May 9, 2000. In addition, Harrison provides no explanation for
the late filing of his request for relief from the default
order. The remainder of his request goes to the merits of the
discrimination case.
The judge's jurisdiction in this matter terminated when
his default order was issued on June 22, 2000. 29 C.F.R.
� 2700.69(b). Relief from a judge's order may be sought by
filing a petition for discretionary review within 30 days of
its issuance. 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 received Harrison's request on
July 20, 2001, almost a year after the judge's default order
had become a final decision of the Commission.
When considering whether relief from a final Commission
order is appropriate, we have found guidance in, and have
applied "so far as practicable," Fed. R. Civ. P. 60(b).[1]
See 29 C.F.R. � 2700.1(b) ("the Commission and its judges
shall be guided so far as practicable by the Federal Rules of
Civil Procedure"); Jim Walter Res., Inc., 15 FMSHRC 782, 787
(May 1993). In accordance with Rule 60(b)(1), the Commission
previously has afforded a party relief from a final order of
the Commission on the basis of "inadvertence" or "mistake."
See Kinross DeLamar Mining Co., 18 FMSHRC 1590- 1590-92 (Sept.
1996). A Rule 60(b) motion "shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceeding was entered or taken."
Fed. R. Civ. P. 60(b). This one-year time limit is an outside
time limit for motions requesting relief under subsections
(1) through (3). Id.; Lakeview Rock Prods., Inc., 19 FMSHRC 26,
28 (Jan. 1997) (holding that requests for relief under Rule
60(b)(1) must be made within one year of entry of order); see
12 James Wm. Moore, et al., Moore's Federal Practice
� 60.65[2][a] (3d ed. 1997).
Harrison does not explicitly assert in his request that he
is entitled to relief under Rule 60(b). However, we construe
the basis of his request - that he either did not receive the
second show cause order or responded to it and his response was
not received by the Commission - as falling squarely within the
coverage of the "inadvertence" or "mistake" provisions of Rule
60(b)(1). We therefore conclude that Harrison's request is not
entitled to relief under Rule 60(b)(1) because it was filed
over a year after the default order was issued. See Newball v.
Offshore Logistics Int'l, 803 F.2d 821, 827 (5th Cir. 1986)
(holding that one-year time limit under Rule 60 (b) begins to
run from date order is issued). Furthermore, Harrison provides
no explanation in his request why he failed to file a timely
petition for discretionary review after the default order was
issued. See Haro v. Magma Copper Co., 5 FMSHRC 9, 9-11 (Jan.
1983) (denying request to reopen final Commission decision
where request failed to adequately explain its late filing).
Accordingly, we deny Harrison's request for relief under
Rule 60(b).
Theodore F. Verheggen, Chairman
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Ronald Harrison
P.O. Box 736
Linden, TX 75563
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006
**FOOTNOTES**
[1]: Rule 60(b) states, in pertinent part:
[T]he court may relieve a party . . . from a
final judgment, order, or proceeding for the
following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due
diligence could not have been discovered in
time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it
is based has been reversed or otherwise
vacated, or it is no longer equitable that
the judgment should have prospective
application; or (6) any other reason
justifying relief from the operation of the
judgment.
Fed. R. Civ. P. 60(b).