Secretary of Labor v. Kopper Glo Mining, LLC

Plain-English summary

The Secretary filed a petition for discretionary review based on the date of a corrected ALJ decision rather than the earlier original decision. Rule 69(c) normally provides that correcting a clerical error does not restart the review deadline, but the corrected decision was not labeled amended and the Commission's docket email said its date controlled the appeal period. The Commission found good cause to consider the late filing and reopened the case to avoid timing questions. No two Commissioners voted to grant review, so the petition was denied and the ALJ decision became final. Separate opinions would have treated the petition as timely or tolled the deadline because of the Commission's own communication.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.69(c); 30 U.S.C. §§ 823(d)(1), 823(d)(2)
• Outcome: The case was reopened to consider the petition, but discretionary review was denied and the ALJ decision remained final.
• Key point: Official docket communications can establish good cause for a late review petition, even when they do not produce enough Commission votes to grant review on the merits.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF
LABOR,                             :                   

MINE SAFETY AND HEALTH                    :                   

ADMINISTRATION (MSHA)                       :                    Docket
No. SE 2014-403

:                                     

v.                                               
:                                           

:

KOPPER GLO MINING, LLC                        :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and
Althen, Commissioners

ORDER

BY: Cohen, Nakamura, and Althen, Commissioners

A petition for discretionary review was filed by
the Secretary of Labor on December 2, 2015. This petition was filed pursuant to
section 113(d)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(d)(2). That section provides that review of a decision of an
Administrative Law Judge may be granted upon specified grounds and upon the
affirmative vote of two Commissioners. Such review is discretionary. 30 U.S.C.
§ 823(d)(2)(A).

A threshold issue in this case is
whether the petition was timely filed. See 30 U.S.C.

§ 823(d)(2)(A)(1) (petition for discretionary review must be
filed within 30 days after issuance of a Judge’s decision). The Judge’s
decision was initially issued on October 29, 2015. Any petition for
discretionary review was due 30 days thereafter, on November 30, 2015.[1] Although the Judge issued an amended
decision on November 2, 2015, correcting a clerical error, Commission
Procedural Rule 69(c) states that the issuance of an amended decision
correcting a clerical error shall not toll the time for filing a petition for
discretionary review of the Judge’s decision on the merits. 29 C.F.R. §
2700.69(c). Thus, in this case, the 30-day time limit for filing the petition, started
to run from October 29 (the date of the initial decision) rather than from
November 2 (the date of the amended decision).

Nonetheless, the Commission may
consider a late-filed petition for review for good cause shown. See Duval
Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981); McCoy v. Crescent
Coal Co., 2 FMSHRC 1202, 1204 (June 1980). We find that the Secretary had
good cause for believing that the Judge’s decision was issued on November 2,
2015, and thus had good cause for filing the petition on the day he reasonably
believed it was due, i.e., December 2. Good cause for the late filing is
supported by the fact that the Judge did not title the November 2 decision as
an “Amended Decision.” More importantly, the Secretary relied on an email which
the Commission docket office sent to counsel with the November 2 decision. The
email stated that the appeal period commenced with the date on the attached
decision (November 2). Sec’y’s Reply to Kopper Glo Mining, LLC’s Statement in
Opp’n to Pet., Ex. A. Therefore, although the petition was filed out of time,
we find good cause to consider it.

Pursuant to 30 U.S.C. § 823(d)(1),
a Judge’s decision becomes the final decision of the Commission 40 days after
its issuance unless within such period the Commission directs review. We
recognize that the fortieth day from October 29 was December 8 and, therefore,
this Order is beyond the fortieth day from the date of the decision. Recognizing
the possibility of delay, the Secretary, in the alternative, moved that we
reopen the case to consider the PDR. Sec’y’s Reply to Kopper Glo Mining LLC’s
Statement in Opp’n to Pet. at 4. To avoid any questions of timing should the
Secretary appeal, we grant the motion to reopen.

Having considered the petition, no
two Commissioners voted to grant the petition or to otherwise order review
under 30 U.S.C. § 823(d)(2)(B).[2]
Consequently, the petition for discretionary review is denied, and the decision
of Administrative Law Judge Margaret A. Miller is final. 30 U.S.C. § 823(d)(1).

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner                                                                                                                         

/s/
William I. Althen

William
I. Althen, Commissioner

Chairman Jordan, concurring in part and dissenting in part:

Without addressing the issue of
whether the Commission has jurisdiction to entertain petitions for
discretionary review filed 30 days after a Judge’s decision has issued or
whether, once a Judge’s decision has been deemed a final order of the
Commission pursuant to 30 U.S.C. § 823 (b)(2)(d)(1), the Commission can reopen
it, I conclude that the issuance date for the Judge’s decision in this case was
November 2, and that therefore the petition was timely filed. My reasoning in
large part is the same as the majority’s rationale for finding good cause for
what it considers the late filing of the petition. Notably, the Commission
circulated the November 2 decision in an attachment to an email that read in
pertinent part: “The date of issuance is stamped or typed on the Decision, and
it is the effective date of the document for purposes of computing the deadline
for an appeal.” Sec’y’s Reply to Kopper Glo Mining, LLC’s Statement in Opp’n to
Pet., Ex. A. In addition, I find it relevant that the November 2 decision was
not titled “Amended Decision.” I would therefore hold that the petition for
discretionary review was timely filed. However, I join the majority in denying
review of the petition.  

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman                

Commissioner Young, concurring:

I join Chairman Jordan in result,
but would base my decision on our ability to construe our own procedural rules.
While our rules hold that the issuance of a decision correcting clerical error
does not toll the period for filing a petition for discretionary review, we
should hold that the period should be tolled in the unique circumstances of
this case. See 29 C.F.R. § 2700.69(c) (“nor the issuance of an order or
amended decision correcting a clerical error[] shall toll the time for filing a
petition for discretionary review”). This would recognize the fact that an
earlier decision was issued, while also reflecting the miscommunication from
the Commission and the reasonable misunderstanding arising from it.

/s/
Michael G. Young

Michael
G. Young, Commissioner

[1] Because the thirtieth day after October 29 was
Saturday, November 28, the thirtieth day for purposes of the filing deadline
was Monday, November 30. See Commission Procedural Rule 8(c), 29 C.F.R.
§ 2700.8(c).

[2]
Commissioner Cohen voted to grant review of the petition.