Secretary of Labor (MSHA) v. Sunbeam Coal Corporation (Commission decision, March 10, 1980)

Plain-English summary

A petition sought Commission review of a judge's January 29, 1980 decision involving Sunbeam Coal Corporation. The Mine Act required filing and service within 30 days, and Commission rules made filing effective when the Commission received the petition. The certificate of service said the petition was mailed on February 28, the thirtieth day, but the Commission received it on March 3. The Commission dismissed the petition as untimely and did not decide whether the statutory deadline could ever be waived for good cause. It also held that the five additional days allowed for responses to documents served by mail did not apply to this statutory petition period.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2)(A)(i) and 29 C.F.R. §§ 2700.5(d) and 2700.8(b).
• Outcome: Petition for discretionary review dismissed as untimely; no penalty assessed by this order.
• Key point: Mailing on day 30 did not make the petition timely when the Commission received it after the statutory deadline.

Full text (FMSHRC public release)

CCASE:
MSHA V. SUNBEAM COAL
DDATE:
19800310
TTEXT:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION WASHINGTON, DC
March 10, 1980

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. PITT 79-210 thru 214
v.

SUNBEAM COAL CORPORATION

ORDER

The petition for discretionary review is dismissed. Section 113(d)(2)(A)(i) requires that a Petition for discretionary review be filed and served within 30 days after the issuance of the judge's decision. The judge's decision was issued on January 29, 1980. The petition for discretionary review was received by the Commission on March 3, 1980, more than 30 days after the issuance of the judge's decision. Commission Rule 5(d), 29 CFR 2700.5(d), states that "filing of a petition for discretionary review is effective only upon receipt." 1/

Accordingly, the Petition is dismissed as untimely filed.
A. E. Lawson, Commissioner

Marian Pearlman Nease, Commissioner
_______
1/ Good cause to waive the statutory period is neither claimed nor shown in the Petition; the certificate of service states that the petition was mailed on February 28, 1980, the 30th day after the issuance of the judge's decision. We therefore need not and do not decide whether the 30-day time period in section 113(d)(2)(A)(i) may be waived for good cause. We also do not view the additional 5-day period provided for filing responses or other documents when service of document is by mail in 29 CFR 2700.8(b) to apply to the statutory period here.