Earl Begley, employed by Manalapan Mining Company, Incorporated

Plain-English summary

An ALJ found that Earl Begley violated the Mine Act by carrying smoking materials underground and assessed a $250 penalty. Begley filed his petition for discretionary review six days after the 30-day deadline, and the Commission denied it as untimely. He later sought reconsideration after the judge issued a clerical correction, but that petition was also filed five days late. The Commission denied reconsideration and held that clerical corrections did not restart the review period.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 877(c)
• Outcome: The petition for reconsideration was denied as untimely; the $250 ALJ penalty decision remained final.
• Key point: A clerical correction to an ALJ decision does not toll the deadline for seeking discretionary review on the merits.

Full text (FMSHRC public release)

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

                                    August 23, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 99-233
:
EARL BEGLEY, employed by :
MANALAPAN MINING COMPANY, :
INCORPORATED :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                        ORDER

BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

    This civil penalty proceeding arises under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act”). On May 25, 2000, the Commission received
via facsimile transmission a petition for discretionary review from Earl Begley, employed by
Manalapan Mining Co., Inc., challenging a decision issued by Administrative Law Judge Avram
Weisberger on April 19, 2000. In his decision, Judge Weisberger found that Begley had violated
section 317(c) of the Mine Act, 30 U.S.C. § 877(c), by carrying smoking materials underground,
and ordered Begley to pay a civil penalty of $250. 22 FMSHRC 537, 540-43 (Apr. 2000) (ALJ).

     The judge’s jurisdiction in this matter terminated when his decision was issued on April

19, 2000. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural rules,
relief from a judge’s decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does
not direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Begley’s petition was received by the Commission on May
25, 2000, six days past the 30-day deadline. Under the Commission’s Procedural Rules, the
filing of a petition for discretionary review is effective upon receipt. 29 C.F.R. § 2700.70(a).

    On May 30, 2000, the Commission issued an order denying Begley’s petition for

discretionary review as untimely. 22 FMSHRC 629, 631 (May 2000). The Commission
explained that Begley, who was represented by counsel, had availed himself of the opportunity to

                                   22 FMSHRC 943

bring his case before a judge, and had offered no explanation for his failure to timely submit a
petition for discretionary review. Id. at 630. Commissioner Marks dissented, stating that he
would have granted Begley’s petition. Id. at 631.

    On June 14, 2000, the Commission received from Begley, by counsel, a petition for

reconsideration. In his petition, Begley asks the Commission to grant his previously denied
petition for discretionary review. Pet. Recons. at 1. Begley explains that, although the judge
issued his decision in this case on April 19, 2000, he subsequently issued an order on May 5,
2000, amending his April 19 decision and correcting clerical errors. Id. Begley asserts that the
deadline for filing a petition for discretionary should run from May 5, and that his petition for
discretionary review filed on May 25 was timely. Id.

     Since the Commission issued its order denying his petition for discretionary review on

May 30, 2000, the Commission's Procedural Rules required that any petition for reconsideration
of this denial be filed within 10 days, or by June 9, 2000. See 29 C.F.R. §§ 2700.78(a) (“A
petition for reconsideration must be filed with the Commission within 10 days after a decision or
order of the Commission.”); 2700.5(d) (“When filing is by mail, filing is effective upon
mailing.”). Begley's petition for reconsideration, however, was filed on June 14, 2000, 5 days
after this filing deadline. Begley has offered no explanation for the late filing of his petition for
reconsideration.

     In any event, even if Begley’s petition for reconsideration had been timely filed, we

would not depart from our prior holding that Begley’s petition for discretionary review was
untimely. The Commission has held that clerical corrections made subsequent to the issuance of
a judge's decision do not toll the period for filing a petition for discretionary review of the
judge’s decision on the merits. North American Coal Corp., 2 FMSHRC 1694, 1695 (July 1980)
(rejecting argument that motion to correct a judge's decision tolls the period for filing a petition
for discretionary review, and holding that a petition for discretionary review must be filed within
30 days of the judge's decision on the merits); see also Capitol Aggregates, Inc., 2 FMSHRC
1040, 1041 (May 1980) (holding that once a judge issues his decision, his jurisdiction terminates,
and he cannot stay the effect of his decision or reconsider it). The Commission’s holding is
consistent with federal practice in that a motion to correct non-substantive clerical errors does not
toll the period for filing an appeal. See Harmon v. Harper, 7 F.3d 1455, 1457 (9th Cir. 1993); In
re Cobb, 750 F.2d 477, 479 (5th Cir. 1985) ("Corrections under Rule 60(a) [to correct clerical
mistakes] do not affect the underlying judgment, and consistent therewith, do not affect the time
for filing a notice of appeal.").

                                     22 FMSHRC 944


   Based on the foregoing, we deny Begley's petition for reconsideration as untimely. 1




                                        Mary Lu Jordan, Chairman




                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner




   1
     Commissioner Marks would accept Begley’s petition for reconsideration, and grant

Begley’s petition for discretionary review.

                                   22 FMSHRC 945

Distribution

Fred Owens, Jr.
Attorney at Law
209 East Mound St., Suite 102
P.O. Box 352
Harlan, KY 40831

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                               22 FMSHRC 946