Maggard v. Chaney Creek Coal Corporation (Commission decision, September 30, 1987)

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

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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

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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

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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