<DOC>
[DOCID: f:we2000168.wais]
JOHN RICHARDS CONSTRUCTION
Docket No. WEST 2000-168-M
July 23, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 23, 2002
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEST 2000-168-M
ADMINISTRATION (MSHA) : A.C. No. 24-02070-05503
:
v. : Docket No. WEST 2000-470-M
: A.C. No. 24-02070-05504
JOHN RICHARDS CONSTRUCTION :
BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
ORDER
BY: Verheggen, Chairman; Beatty, Commissioner
On October 30, 2001, the Commission received from John Richards
Construction ("Richards Construction") a request for relief from
part of a final Commission decision on the merits issued by
Administrative Law Judge Richard W. Manning on September 13,
2001. 23 FMSHRC 1045 (Sept. 2001) (ALJ). The judge's
jurisdiction in this matter terminated when his decision was
issued on September 13, 2001. 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).
Richards Construction failed to file a timely petition for
discretionary review of Judge Manning's decision within the 30-
day deadline. Because the Commission did not direct review on
its own motion, the judge's decision became a final decision of
the Commission 40 days after its issuance. Under these
circumstances, we construe Richards Construction's request as a
motion for relief from a final Commission decision. See
Tunnelton Mining Co., 8 FMSHRC 1142, 1142 (Aug. 1986) (construing
request filed after 40-day deadline as request for relief from
final Commission decision).
When considering whether relief from a final Commission decision
is appropriate, the Commission has found guidance in, and has
applied "so far as practicable," Rule 60(b) of the Federal Rules
of Civil Procedure. 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), we
previously have afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See Gen.
Chem. Corp., 18 FMSHRC 704, 705 (May 1996).
Richards Construction's request for relief was sent to the
Commission by John Richards, the mine owner. Mot. at 1-3.
Richards, apparently proceeding pro se, alleges that Richards
Construction did not file a timely petition for discretionary
review because of a delay in his receipt of the judge's decision.
Id. at 2. He claims that the decision was sent by certified mail
to him at an apartment complex in Arizona and that office
personnel at the apartment complex signed for the certified mail
without his permission on October 16, 2001. Id. He claims he
received the copy of the judge's decision several days later.
Id. The judge's decision indicates that it was sent by certified
mail to Richards at an address in Montana, the same address that
was listed as Richards' contact address on the Proposed
Assessment of Civil Penalties. 23 FMSHRC at 1069.
Because of confusion in the record, we are unable to evaluate
Richards Construction's request. The following information is needed
before this case can proceed:
1. A full and clear explanation of why the operator
allegedly received a copy of the judge's decision only after
the 30-day time limit to file a petition for discretionary
review had expired. The explanation should be accompanied
by any available supporting documentation, such as mail
receipts and affidavits.
2. Supporting evidence that the decision was sent, as
Richards alleges, to him at an apartment complex in Arizona
rather than to the Montana address listed for him on the
judge's decision.
Upon consideration of Richards Construction's request, it is
hereby granted for the limited purpose of affording the operator
an opportunity to provide the Commission with the above
information. Accordingly, it is ordered that within 30 days from
the date of this order, Richards Construction either provide the
Commission and the Secretary with the above information or show
good reason for its failure to do so. Otherwise, an order will
be entered denying Richards Construction's request for relief.
The Secretary may file a response with the Commission to the
additional information provided by Richards Construction within
10 days after her receipt of the information.
Theodore F. Verheggen, Chairman
Robert H. Beatty, Jr., Commissioner
Commissioner Jordan, dissenting:
The Mine Act and the Commission's procedural rules require that a
petition for discretionary review be filed within 30 days of the
issuance of a judge's decision. 30 U.S.C. � 823(d)(2); 29 C.F.R.
� 2700.70(a). Although the judge in this case issued his
decision on September 13, 2001, the Commission did not receive
the petition from John Richards Construction ("Richards
Construction") until October 30, 2001, approximately two weeks
past the statutory deadline.
John Richards, the mine owner, attempts to excuse this late
filing by claiming that the judge's decision was sent to him in
Arizona, but that someone at his apartment complex there signed
for it, so he did not receive it until several days thereafter.
Mot. at 2. Although at times we have, in accordance with Rule
60(b)(1) of the Federal Rules of Civil Procedure, afforded a
party relief from a final order of the Commission on the basis of
inadvertence or mistake, Richards' excuse for this late filing
does not meet these criteria.
Contrary to Richards' assertion that the decision was sent to him
at an Arizona address, the judge's decision shows that it was
sent by certified mail to him at a post office box address in
Montana, the same address listed as Richards' contact address on
the Proposed Assessment of Civil Penalties. 23 FMSHRC 1045, 1069
(Sept. 2001) (ALJ). In addition, I take notice of the fact that
the Commission's logbook of mailing by certified mail indicates
that on September 13, 2001, the day the decision was issued, a
mailing was sent by certified mail to Richards at his address in
Montana. I also take notice of the fact that the certified mail
receipt indicates that the decision was sent to Richards' mailbox
address in Montana.
Commission records thus decisively indicate that the judge's
decision was mailed to Richards in Montana. Other than his
assertion that the decision was sent to Arizona, Richards has
submitted nothing to prove otherwise, and he has offered no
theory - much less any evidence - to indicate how the decision
got to Arizona. His claim is completely inconsistent with the
Commission's documents, and he offered nothing to cause me to
refrain from relying on the Commission's records.
Moreover, Richards Construction has already availed itself of the
opportunity to defend its case before a judge. See Knock's Bldg.
Supplies, 21 FMSHRC 483, 484 (May 1999) (request for relief from
final Commission decision denied when operator offered no
explanation for failure to timely submit a petition for
discretionary review). Nothing it has submitted gives me reason
to believe I should disturb the finality of the judge's decision.
See Duval Corp. v. Donovan, 650 F.2d 1051 (9th Cir. 1981)
upholding Commission's denial of petition for reconsideration of
dismissal of petition for discretionary review received 31 days
after issuance of ALJ decision). Accordingly, I respectfully
dissent.
Mary Lu Jordan, Commissioner
Distribution
John Richards
John Richards Construction
Box 316
Seeley Lake, MT 59868
W. Christian Schumann, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-3939