Maggard v. Chaney Creek Coal Corporation

Plain-English summary

The operators in related discrimination proceedings asked the Commission to reconsider its denial of a motion to dismiss Dollar Branch Coal Corporation as a party and to amend their petition for discretionary review. The operators argued that Dollar Branch had no direct employment relationship with Odell Maggard. The Commission denied both motions. It held that the operators had not raised the issue in their petition or before the ALJ and had not shown why the asserted facts could not have been raised earlier.

Decision snapshot

• Governing provision: 30 U.S.C. § 801.
• Outcome: The motions for reconsideration and to amend the petition for discretionary review were denied.
• Key point: A party may not use reconsideration to raise an issue omitted from the petition and not presented to the ALJ without showing why it could not have acted earlier.

Full text (FMSHRC public release)

CCASE:
ODELL MAGGARD V. CHANEY CREEK COAL,
MSHA (MAGGARD) V. DOLLAR BRANCH COAL, CHANEY CREEK COAL
DDATE:

19870930
TTEXT:

                                 FMSHRC-WDC
                                September 30, 1987

ODELL MAGGARD

 v.                Docket No. KENT 86-1-D

CHANEY CREEK COAL CORPORATION

and

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ODELL MAGGARD

 v.                Docket No. KENT 86-51-D

DOLLAR BRANCH COAL CORPORATION
and CHANEY CREEK COAL COMPANY

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

                ORDER

BY THE COMMISSION:

On August 25, 1987, the Commission issued its decision in

this matter. On September 15, 1987, the Commission received from
counsel for respondents a Motion for Reconsideration and a Motion
to Amend Petition for Discretionary Review. Oppositions to both
motions have been received from complainant Odell Maggard and from
the Secretary of Labor. The operators request the Commission to
reconsider its denial of their prior motion seeking dismissal of
Dollar Branch Coal Corporation ("Dollar Branch") as a party on
the asserted grounds that Dollar Branch had no direct employment

Page 2

relationship with Maggard. Upon consideration of the motions and
the oppositions, the motions are denied.

We previously ruled that we were barred as a matter of law

by the Federal Mine Safety and Health Act of 1977, 30 U.S.C. $ 801
et seq. (1982), from considering this issue because it was not
included in the operators' petition for discretionary review. Odell
Maggard v. Chaney Creek Coal Corporation, etc., 9 FMSHRC , Nos.
KENT 86-1, etc., slip op. at 2 n. 2 (August 25, 1987). We adhere
to that ruling. We note that the operators also failed to raise
this issue before the Commission's administrative law judge, and we
conclude that counsel for the

Page 3

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operators has failed to show why the facts asserted by Dollar
Branch relating to its involvement in this case could not have
been ascertained and acted upon in a timely manner.

               Ford B. Ford, Chairman

               Richard V. Backley, Commissioner

               Joyce A. Doyle, Commissioner

               James A. Lastowka, Commissioner

               L. Clair Nelson, Commissioner

Page 4

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Distribution

Thomas C. Marks, Esq.
Miller, Griffin & Marks
Suite 700, Security Trust Bldg.
Lexington, Kentucky 40507

Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.0. Box 360
Hazard, Kentucky 41701

Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203