Lonnie Jones v. D&R Contractors (Commission decision, December 21, 1984)

Plain-English summary

The Commission had granted D&R Contractors' timely petition for review of an ALJ decision in Lonnie Jones's case. Jones asked the Commission to reconsider and vacate that grant, pointing to his opposition to D&R's petition. The Commission treated his opposition as support for the reconsideration motion but denied the request to vacate review. It explained that the procedural rule allows oppositions without delaying Commission action on a petition. Jones's opposition also reached the Commission one day after the 40-day deadline measured from the ALJ decision. The underlying review remained pending.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 823(d)(1); 29 C.F.R. § 2700.70(e) and (g).
• Outcome: Motion to reconsider and vacate the direction for review denied.
• Key point: An opposition to a review petition does not require the Commission to delay acting on the petition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006

December 21, 1984

LONNIE JONES

v. Docket No. KENT 83-257-D(A)

D&R CONTRACTORS

ORDER

On November 21, 1984, the Commission granted the timely petition for discretionary review filed by respondent D&R Contractors. On December 5, 1984, counsel for complainant Lonnie Jones filed a motion to reconsider and vacate the Commission's direction for review. As the basis for this motion, counsel requests the Commission to consider complainant's previously filed opposition to D&R's petition. We will treat complainant's opposition as a memorandum in support of his present motion for reconsideration. 1/ Upon consideration of the motion for reconsideration, complainant's request for vacation of the direction for review is denied.

Richard V. Backley, Acting Chairman
James A. Lastowka, Commissioner
L. Clair Nelson, Commissioner

1/ Commission Procedural Rule 70(e), 29 C.F.R. § 2700.70(e), permits the filing of oppositions to petitions for discretionary review, but states that "such filing shall in no way delay Commission action on the petition." Thus, the Commission may grant a petition, as it did here, without awaiting the possible submission of an opposition. Oppositions to petitions must also be filed within 40 days from the date of the administrative law judge's decision concerning which review has been timely sought. 30 U.S.C. § 823(d)(1); Commission Procedural Rule 70(g), 29 C.F.R. § 2700.70(g). We note that in this case, complainant's opposition was received by the Commission on November 28, 1984, one day past the 40-day time limit from the judge's decision below.

2709