Secretary of Labor o/b/o Pena v. Eisenman Chemical Company

Plain-English summary

Juan G. Pena asked the Commission to reopen a discrimination proceeding and set aside a settlement that required Eisenman Chemical Company to pay $13,000 in back wages. The Commission held that the request came nearly four years after the settlement and was untimely to the extent it alleged fraud by the adverse party. It also found no clear and convincing evidence of fraud or misconduct, noting that Pena had agreed to the settlement at the hearing. The Commission denied the request to reopen.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c); 30 U.S.C. § 823(d)(1); 30 U.S.C. § 823(d)(2)(A)(i)
• Outcome: The request to reopen the discrimination proceeding and set aside the settlement was denied.
• Key point: Relief from a final settlement order requires timely filing and clear and convincing evidence supporting the asserted misconduct.

Full text (FMSHRC public release)

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                            November 30, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JUAN G. PENA

 v.                                 Docket Nos. CENT 85-47-DM
                                                     85-68-DM

EISENMAN CHEMICAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

                 ORDER

BY THE COMMISSION:

Juan G. Pena has filed with the Commission a letter requesting

that this discrimination proceeding be reopened and a previously approved
settlement be set aside. For the reasons that follow, Pena's request is
denied.

On April 15, 1985, the Secretary of Labor filed a discrimination

complaint on behalf of Pena alleging that Eisenman Chemical Company
("Eisenman") unlawfully discriminated against Pena in violation of section
105(c) of the Federal Mine Safety and Health Act of 1977 ("Mine Act"),
30 U.S.C. 815(c). Eisenman denied the allegation, and the matter was
assigned to Commission Administrative Law Judge Roy Maurer.

On December 18, 1985, at an evidentiary hearing, the Department of

Labor attorney representing Pena and counsel for Eisenman stated to the
judge that the parties agreed to settle the matter. Tr. 2. Counsel for
Pena read the proposed settlement into the record, and the attorneys
jointly moved the judge to approve the settlement. The judge asked Pena if
he agreed to the settlement as stated, and when Pena answered "yes," the
judge granted the motion and stated that upon receipt of the transcript he
would issue an order incorporating the terms of the settlement, requiring
compliance therewith, and dismissing the case. Tr. 5.

Page 2

he judge issued a written decision, approving the
settlement. 8 FMSHRC 142 (January 1986)(ALJ). In his decision the judge
repeated the settlement agreement, which, in pertinent part, required
Eisenman to pay the sum of $13,000 "in full and complete satisfaction of
back wages," and which stated that "[t]he intent ... is to settle all
claims Complainant may be due under the provisions of Section 105(c) of
the Act." 8 FMSHRC at 143 (quoting Tr. 3). The judge stated, "1 conclude
and find that [the settlement] reflects a reasonable resolution of the
complaint. Further...all of the parties, including Mr. Pena personally,
are in accord with the agreed upon disposition of the complaint." 8 FMSHRC
at 143. The judge ordered Eisenman to fully comply with the terms of the
agreement and dismissed the complaint. 8 FMSHRC at 142, 144.

 On October 30, 1989, the Commission received a letter from Pena

requesting that the matter be "re-open[ed] for trial because of breach of
contract on the settlement concerning my claim." Pena letter 1. Pena
states that although Eisenman paid him $13,000, the company did not pay
"taxes, withholding, and etc.," as promised. Id. 1, 2. Pena alleges that
he has been "defrauded...by my representatives from the U.S. Dept[ment] of
Labor and [by my] ex-employer," and Pena requests "triple damages for
fraud, and breach of contract at my new trial." Id.

 Pena did not file a timely petition for discretionary review of

the judge's decision approving the settlement within the 30-day period
prescribed by the Mine Act. 30 U.S.C. 823(d)(2)(A)(i). See also
29 C.F.R. 2700.70(a). Nor did the Commission direct review on its own
motion within this 30 day period. Thus, by operation of statute the
judge's decision became a final decision 40 days after its issuance.
30 U.S.C. 823(d)(1). Under these circumstances, Pena's submission must be
construed as a request for relief from a final Commission order.
29 C.F.R. 2700.1(b) (Federal Rules of Civil Procedure apply in absence of
applicable Commission rules); Fed. R. Civ. P. 60 (Relief from Judgment or
Order). See Danny Johnson v. Lamar Mining Co., 10 FMSHRC 506, 508 (April
1988); Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 (December 1986).

Relief from a final judgment or order on the basis of fraud,

misrepresentation, or other misconduct is available to a movant under
Fed. R. Civ. P. 60(b)(3) and Fed. R. Civ. P. 60(b)(6).

 To the extent that Pena is claiming that Eisenman, the adverse

party, defrauded him, the motion is seriously untimely. Pena's submission
was received by the Commission almost four years after the settlement was
agreed to and the decision was issued. Rule 60(b)(3) states that a motion
for relief due to fraud, misrepresentation or misconduct by an adverse
party must be made within a reasonable time and must be made not later than

Page 3

"one year after the judgment." This limit is an extreme limit, and a
motion made under clause (3) must be denied as untimely if made more than
one year after judgment regardless of whether the delay was reasonable.
The limit may not be extended. C. Wright & A. Miller, Federal Practice and
Procedure 2866 at 233..34 (1973).

Page 4

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Under either clause (3) or (6) of Rule 60(b), a movant must establish
by clear and convincing evidence that the alleged fraud or misconduct
occurred. Pena fails to meet this test. Pena's submission contains only
his unsupported allegation of fraud. The record contains no evidence of
fraud or misconduct by the attorneys representing the parties. At the
hearing, counsel representing Pena stated that the parties agreed that
Eisenman's payment of $13,000 to Pena would represent "full and complete
satisfaction of back wages" and that the intent of the agreement was to
"settle all claims [Pena] may be due under the provisions of section 105(c)
of the Act." Tr. 3. When asked by the judge if he understood the
settlement, if it was in accord with what he had been told, and if he
agreed to it, Pena responded affirmatively and without constraint. Tr. 4-5

Accordingly, the motion to reopen this proceeding is denied.

              Richard V. Backley, Commissioner

              Joyce A. Doyle, Commissioner

              L. Clair Nelson, Commissioner

Juan G. Pena
2038 Rockford Drive
Corpus Christi, Texas 78416

Steven R. Baker, Esq.
Fulbright and Jaworski
Bank of the Southwest Bldg.
Houston, Texas 77002

Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041