Arch of Illinois

Plain-English summary

Gary D. Morgan asked the Commission to reconsider its denial of discretionary review and requested scientific analysis of test results in his discrimination case against Arch of Illinois. The Commission denied reconsideration because the motion was filed after the 10-day deadline in Commission Procedural Rule 78. It also stated that the request would fail on the merits because Morgan offered no new arguments and reopening the record was inappropriate at that stage. The Commission denied both motions.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.78
• Outcome: The motion for reconsideration and the motion to have test results scientifically analyzed were denied.
• Key point: An untimely reconsideration motion cannot reopen the record, and the Commission found no new argument that would justify relief in any event.

Full text (FMSHRC public release)

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

                                        May 9, 2000

GARY D. MORGAN :
:
: Docket No. LAKE 98-17-D
:
v. :
:
:
ARCH OF ILLINOIS :

                                          ORDER


   On April 21, 2000, the Commission received a Motion to Reconsider Previous Petition

for Discretionary Review and Motion to Have Test Results Scientifically Analyzed from the
complainant, Gary D. Morgan. Under Commission Procedural Rule 78, 29 C.F.R. § 2700.78, a
motion for reconsideration must be filed within 10 days after a decision or order by the
Commission. The Commission denied Morgan’s petition for discretionary review on March 24,
2000. Accordingly, Morgan’s motion for reconsideration is untimely under the Commission’s
rules.

    Moreover, having examined the arguments raised by Morgan’s motion, we would deny

the request for reconsideration in any event. In his motion, Morgan has not raised any new
arguments concerning the judge’s decisions that the Commission has not already considered.
Further, Morgan’s motion to have his test results scientifically analyzed is essentially a request to
reopen the record, which would be inappropriate at this stage of these proceedings.

                                     22 FMSHRC 586

Page 2

    For the foregoing reasons, the Motion to Reconsider and the Motion to Have Test Results

Scientifically Analyzed are denied.1

                                                Mary Lu Jordan, Chairman




                                                James C. Riley, Commissioner




                                                Theodore F. Verheggen, Commissioner




                                                Robert H. Beatty, Jr., Commissioner




   1
       Commissioner Marks would grant the relief requested in the motions.

                                    22 FMSHRC 587

Page 3

Distribution

Leonard D. Rice, Esq.
404 South Washington Street
Du Quoin, IL 62832
for Gary Morgan

Marco J. Rajkovich, Jr., Esq.
Robert I. Cusick, Esq.
Wyatt, Tarrant & Combs
250 West Main Street, Suite 1700
Lexington, KY 40507
for Arch of Illinois

                               22 FMSHRC 588