Earl Begley, employed by Manalapan Mining Co., Inc.

Plain-English summary

Earl Begley challenged an ALJ decision finding that he carried smoking materials underground and ordering him to pay a $250 civil penalty. The Commission received his petition for discretionary review six days after the 30-day filing deadline. Because Begley was represented by counsel and offered no explanation for the late filing, the Commission found no good cause to excuse the delay and denied the petition as untimely. Commissioner Marks would have granted review.

Decision snapshot

• Cited authority: 30 U.S.C. § 877(c), § 823(d)(1), and § 823(d)(2)
• Outcome: The petition for discretionary review was denied as untimely.
• Key point: A late petition requires a showing of good cause, particularly when the petitioner had counsel and the case had already been heard.

Full text (FMSHRC public release)

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

                                      May 30, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 99-233
: A.C. No. 15-16318-03656 M
EARL BEGLEY, employed by :
MANALAPAN MINING CO., INC. :

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

                                        ORDER

BY THE COMMISSION:

    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).

    The Commission has entertained late-filed petitions for discretionary review where good

cause has been shown. See, e.g., DeAtley Co., 18 FMSHRC 491, 492 (Apr. 1996) (excusing late
filing of petition for discretionary review where operator’s predecessor failed to inform operator
of unconsummated settlement agreement); McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1204

                                    22 FMSHRC 629

Page 2

(June 1980) (vacating judge’s order of dismissal and finding good cause where petitioner was pro
se during part of the proceedings, subsequently-retained counsel obtained judge’s decision only
10 days prior to deadline for petition, and petition was mailed on 30th day). In circumstances in
which a hearing on the merits has taken place, the Commission has rejected a late-filed petition
for discretionary review where the petitioner has offered no explanation for the late filing. See
Dykhoff v. U.S. Borax Inc., 21 FMSHRC 976, 977-78 (Sept. 1999); Duval Corp. v. Donovan, 650
F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal Corp., 2 FMSHRC 775 (Mar. 1980). But see
Dykhoff v. U.S. Borax, Inc., 21 FMSHRC 1279, 1280-81 (Dec. 1999) (reopening proceedings
where pro se miner filed motion for reconsideration explaining he mistakenly believed he had 40
days to file his petition for discretionary review).

     Here, Begley, who is represented by counsel, has availed himself of the opportunity to

have his case heard by a judge. He also offers no explanation for his failure to timely submit a
petition for discretionary review. Thus, Begley has failed to show “good cause,” excusing his
late filing. Accordingly, we reject this petition as untimely. See Duval Corp., 650 F.2d at 1054
(upholding finding of no good cause where counsel obtained judge’s decision 24 days prior to
deadline for filing petition, and petition was mailed within 30 days of judge’s decision but
received by the Commission one day after filing deadline); Sunbeam, 2 FMSHRC at 775 n.1
(dismissing petition as untimely where good cause for late filing was neither claimed nor shown
in the petition).

                                   22 FMSHRC 630

Page 3

     For the foregoing reasons, Begley’s petition for discretionary review is denied as untimely
 1

filed.

                                          Mary Lu Jordan, Chairman




                                          James C. Riley, Commissioner




                                          Theodore F. Verheggen, Commissioner




                                          Robert H. Beatty, Jr., Commissioner




     1
         Commissioner Marks would grant Begley’s petition.

                                     22 FMSHRC 631

Page 4

Distribution

Fred Owens, Jr.
Attorney at Law
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 632