Secretary of Labor v. Clintwood Elkhorn Mining Company, Inc.

Plain-English summary

Clintwood Elkhorn filed a petition for discretionary review on June 16, 2014, three days after the deadline measured from the Judge's May 14 decision. The Commission held that a May 15 amended decision correcting a clerical error did not restart the 30-day filing period under its procedural rule. It denied the petition as late and stated that the Judge's decision became final 40 days after issuance. The Commission also noted that no two Commissioners would have granted review on the merits.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 823(d)(1) and 823(d)(2); 29 C.F.R. § 2700.69(c)
• Outcome: The petition for discretionary review was denied as untimely, leaving the ALJ decision to become final under the 40-day rule.
• Key point: A clerical correction in an amended ALJ decision does not restart the deadline for seeking Commission review of the merits.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

June
20, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CLINTWOOD ELKHORN MINING

COMPANY, INC.   

Docket Nos. KENT 2011-1354

KENT 2011-1385

KENT 2011-1386                               

ORDER

A petition for
discretionary review was filed by Clintwood Elkhorn Mining Company, Inc. on
June 16, 2014. This petition was filed pursuant to section 113(d)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 823(d)(2). Section
113(d)(2)(A)(1) of the Mine Act states that a petition for discretionary review
by the Commission may be filed within 30 days after the issuance of the judge’s
decision. 30 U.S.C. § 823(d)(2)(A)(1).

The judge’s decision
was issued on May 14, 2014. Any petition for discretionary review was due 30
days thereafter, on June 13, 2014. Although the judge filed an amended decision
on May 15, 2014, correcting a clerical error, Commission Procedural Rule 69(c)
states that the issuance of an amended decision correcting a clerical error
shall not toll the time for filing a petition for discretionary review of the
judge’s decision on the merits. 29 C.F.R. § 2700.69(c). Thus the 30-day time
limit for filing the petition started to run from May 14 (the date of the
initial decision) rather than from May 15 (the date of the amended decision).

The petition for
discretionary review is therefore denied. Consequently, the decision of
Administrative Law Judge Priscilla M. Rae dated May 14, 2014, is final as of 40
days after its issuance. 30 U.S.C. § 823(d)(1).[1]        

/s/
Mary Lu Jordan       

Mary
Lu Jordan, Chairman

/s/Michael
G. Young     

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.   

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura  

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen      

William
I. Althen, Commissioner

Distribution:

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY  40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Priscilla M. Rae

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004

[1]
Separately, we note that no two Commissioners would have voted to grant the
petition on the merits.