<DOC>
[DOCID: f:wv200138.wais]

 
MINGO LOGAN COAL COMPANY
WEVA 2001-38-D
July 26, 2002



        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET NW, 6TH FLOOR

                    WASHINGTON, D.C.  20006

                          July 26, 2002



NATHAN B. HARVEY                :
                                :
       v.                       : Docket No. WEVA 2001-38-D
                                :
MINGO LOGAN COAL COMPANY        :


BEFORE:  Verheggen, Chairman; Jordan and Beatty, Commissioners


                             ORDER

BY:  Verheggen, Chairman; Jordan, Commissioner

This discrimination proceeding arose under section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815(c)(2).  On
June 24, 2002, the Commission received from Nathan B. Harvey a request
to reopen a decision issued by Administrative Law Judge T. Todd
Hodgdon on January 8, 2002.  24 FMSHRC 71 (Jan. 2002) (ALJ).  In his
decision, Judge Hodgdon dismissed a discrimination complaint brought
by Harvey against Mingo Logan Coal Company ("Mingo") because he
determined that Harvey had not engaged in protected activity and had
been discharged based solely on his poor work attitude.  Id. at 73-80.

Harvey bases his request on unsworn statements he contends he obtained
from eight of his co-workers after the decision was issued and which
Harvey alleges are inconsistent with the testimony of the operator's
witnesses at hearing.  Mot., Attachs.  Mingo opposes Harvey's request
on the grounds that these statements are not new evidence and could
have been obtained with due diligence prior to the hearing.  M. Mot.
at 4-5.

The judge's jurisdiction in this matter terminated when his decision
was issued on January 8, 2002.  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.  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).  Harvey's request was received by the Commission's Office
of Administrative Law Judge's on June 24, 2002, several months past
the 30-day deadline.  Because the Commission did not direct review of
the case sua sponte, the decision became a final decision of the
Commission on February 18, 2002.

Relief from a final Commission judgment is available to a party under
Rule 60(b) of the Federal Rules of Civil Procedure.  F. W.
Contractors, Inc., 17 FMSHRC 247, 248 (Mar. 1995); see 29 C.F.R. �
2700.1(b) (Federal Rules of Civil Procedure apply "so far as
practicable" in the absence of applicable Commission rules).  Grounds
for relief from a final judgment under Rule 60(b) include in pertinent
part: "(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)."  Fed. R. Civ. P. 60(b)(2).

We conclude that Harvey has failed to allege sufficient grounds to
reopen the proceedings under Rule 60(b)(2).  All of the information
contained in the signed statements attached to Harvey's request
pertain to whether he had a bad work attitude.  None of the
information in the statements directly counters the judge's initial
finding that Harvey did not engage in protected activity.  Thus, the
information in the statements would not have changed the judge's
determination that no discrimination occurred.  12 James Wm. Moore et
al., Moore's Federal Practice � 60.42[9] (3d ed. 1997) ("movant
must show [for Rule 60(b)(2) relief] that the evidence was 'of such
magnitude that the production of it earlier would have been likely to
change the disposition of the case.'") (quoting Coastal Transfer Co.
v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211-12 (9th Cir. 1987)).
Moreover, the statements simply raise issues tangential to the
operator's affirmative defense, and do not even bring into question
most of the evidence on which the judge based his finding that Harvey
was fired because of his poor attitude.  24 FMSHRC at 77-80.  In sum,
even if the statements Harvey submitted were true and served to refute
the operator's witnesses on this one discrete point, the judge's
finding that Harvey was not discharged for engaging in protected
activity would still stand.

Our dissenting colleague would remand this case because he believes
the unsworn  statements submitted by Harvey may constitute evidence of
perjury, warranting the reopening of  the proceedings under Rule 60(b)
(3).  Slip op. at 4-5.  The dissent acknowledges, however, that this
type of claim merits relief "only when it is also shown that the
perjury at trial somehow prevented the innocent party from fully and
fairly presenting his or her case."  Id. at 4 (citations omitted).
The statements obtained by Harvey contradict company testimony that
Harvey's co-employees did not want to work with him.  That testimony,
however, related only to a tangential point in the operator's evidence
regarding Harvey's poor work attitude.  Notably, the judge found that,
in addition to testimony that miners did not want to work with Harvey,
the record was "replete with evidence . . . of Harvey refusing to
speak to supervisors, even going so far as not acknowledging receipt
of work assignments, of his failing to check back with supervisors to
find out his next assignment after completing one, of supervisors
having to check up on him to make sure he was doing his job and of his
otherwise uncooperative attitude."  24 FMSHRC at 78.  Thus, the
alleged perjury in no way thwarted Harvey's presentation of his case,
nor does it undermine the central underpinnings of the operator's
defense.  See Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 832
(7th Cir. 1985) (an adverse party's fraud or subornation of perjury
permits relatively free reopening of the judgment when the perjury
goes to the heart of the issue).

In Metlyn, the Seventh Circuit noted the importance of "protect[ing]
the finality of judgments against efforts to turn the vicissitudes of
litigation into grounds for more litigation still."  Id.  The
Commission adopted this principle in Wadding v. Tunnelton Mining Co.,
8 FMSHRC 1142 (Aug. 1986), cited by our colleague, when it denied a
Rule 60(b)(3) motion  alleging perjured testimony and other deception
during trial as "merely attempts to relitigate evidentiary matters and
assertions ruled upon by the judge."  Id. at 1143.  See also 11
Charles Alan Wright et al., Federal Practice and Procedure, � 2860 at
314 (2d ed. 1995) (Rule 60(b)(3) motion will be denied if it is merely
an attempt to relitigate a case).

Accordingly, Harvey's request to reopen these proceedings is denied.



                              Theodore F. Verheggen, Chairman


                              Mary Lu Jordan, Commissioner

                              Commissioner Beatty, dissenting:

While I agree with my colleagues that Harvey's request to reopen these
proceedings fails to allege sufficient grounds to reopen under Rule
60(b)(2), that is not the only provision of Rule 60(b) relevant to
Harvey's allegations. Grounds for relief from a final judgment under
Rule 60(b) also include "(3) fraud . . ., misrepresentation, or other
misconduct of an adverse party."  Fed. R. Civ. P. 60(b)(3).

Review of the signed statements accompanying Harvey's request
discloses information that contradicts some of the testimony given by
the operator's witnesses during the hearing.  For example, maintenance
foreman Robert Tillery and maintenance superintendent Gary Griffith
both testified that electrician Kelly Dingess told them that he did
not want to work with Harvey.  Tr. Vol. I 297, 345-46.  Maintenance
foreman John Morgan also testified that Harvey's co-workers Don Tharp,
Ronnie Mullins, and Dave VanMeter informed him that they did not want
to work with Harvey.  Tr. Vol. I 249.  The judge relied on this
hearsay testimony in determining that Harvey was not discharged for
any protected activity.  24 FMSHRC at 78, 80.  However, in their
signed statements attached to Harvey's request, Dingess, Tharp,
Mullins, and VanMeter state that they never made these statements to
management.  H. Mot., Attachs.

A demonstration of perjured testimony can be grounds for relief under
Rule 60(b)(3).  See Harre v. A.H. Robins, 750 F.2d 1501, 1504-05 (11th
Cir. 1985) (holding that perjury can constitute fraud under Rule 60(b)
(3)).  The Commission has noted that fraudulent conduct under Rule
60(b)(3) must be proven by clear and convincing evidence.  Secretary
of Labor on behalf of Pena v. Eisenman Chem. Co., 11 FMSHRC 2166,
2167-68 (Nov. 1989) (denying miner's request for relief because it
failed to provide "clear and convincing evidence" of fraud or
misconduct where miner alleged that operator defrauded him in the
settlement of his discrimination suit); Wadding v. Tunnelton Mining
Co., 8 FMSHRC 1142, 1143 (Aug. 1986) (finding that miner failed
pursuant to Rule 60(b)(3) to provide "clear and convincing evidence"
of operator's alleged fraud during hearing).  Further, "when the claim
of perjury at trial is raised under Rule 60(b)(3), relief is granted
only when it is also shown that the perjury at trial somehow prevented
the innocent party from fully and fairly presenting his or her case."
12 James Wm. Moore et al., Moore's Federal Practice � 60.43[1][c] (3d
ed. 1997) ("Moore's"); see also Wadding, 8 FMSHRC at 1143 ("movant
under Rule 60(b)(3) must establish that wrongdoing prevented  moving
party from fully and fairly presenting his case.").  Under Rule 60(b)
(3), "the moving party does not have to prove that he or she would
prevail in a retrial in order to secure relief from judgment on the
basis of fraud of an adverse party."  Moore's at � 60.43[1][d]; see
also Lonsford v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995) ("A
determination of whether the alleged misrepresentation altered the
result of the case is unnecessary because Rule 60(b)(3) protects the
fairness of the proceedings, not necessarily the correctness of the
verdict.").

If the signed statements Harvey has submitted are accurate, they may
constitute evidence of perjury which under Rule 60(b)(3) would warrant
reopening these proceedings.  On the basis of the present record,
however, I am unable to evaluate whether the proceedings should be
reopened under Rule 60(b)(3).  Instead, the judge who presided at the
hearing and heard the witnesses is in the best position to determine
whether the proceedings should be reopened.  Accordingly, in the
interests of justice, I would vacate the judge's decision and remand
the matter to him for the limited purpose of reviewing the statements
in the context of the testimony previously presented by Mingo Logan's
witnesses.  After that, the judge would be able to determine whether
sufficient grounds exist to fully reopen the proceedings under Rule
60(b)(3).



                              Robert H. Beatty, Jr., Commissioner



Distribution

Nathan B. Harvey
P. O. Box 14
Man, WV 25635

Mark E. Heath, Esq.
Heenan, Althen & Roles, LLP
BB & T Square
300 Summers St., Suite 1380
P.O. Box 2549
Charleston, WV 25329

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