Brown Brothers Sand Company

Plain-English summary

Brown Brothers Sand Company challenged an ALJ decision finding two Mine Act violations, but filed its petition for discretionary review after the 30-day deadline. The company acknowledged that it deliberately waited past the deadline. The Commission held that the late filing did not satisfy the criteria for relief under Federal Rule of Civil Procedure 60(b)(1). It denied the petition.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2)(A)(i), 29 C.F.R. §§ 2700.70 and 2700.1(b).
• Outcome: The Commission denied Brown Brothers' late petition for discretionary review.
• Key point: Deliberately waiting past the statutory filing deadline did not justify relief from the deadline.

Full text (FMSHRC public release)

February 25, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. SE 92-84M
ADMINISTRATION (MSHA) :
:
V. :
:
BROWN BROTHERS SAND COMPANY :

                          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. (1988)
("Mine Act"). On December 11, 1992, Administrative Law Judge
David F. Barbour issued a decision finding two violations of the
Mine Act. On February 1, 1993, the Commission received a letter
from Brown Brothers Sand Company ("Brown") challenging the
judge's findings of violations. The Mine Act, 30 U.S.C. 823
(d)(2)(A)(i), and Commission Procedural Rule 70, 29 C.F.R.
2700.70, require that petitions for discretionary review be filed
within 30 days after issuance of the judge's decision, in this
instance by January 11, 1993.1/ The letter from Brown states
that the writer, Carl Brown, was aware of the 30-day time limit
to appeal but that he "deliberately waited past this deadline."

 The Commission has entertained late-filed petitions for

discretionary review in appropriate circumstances. Such relief
is evaluated on a case-by-case basis. We have looked to the
Federal Rules of Civil Procedure for guidance in such matters.
29 C.F.R. 2700.1(b). Federal Rule 60(b)(1) provides relief
from a final judgment on the basis of inadvertence, mistake,
surprise, or excusable neglect. See M.M. Sundt Constr. Co., 8
FMSHRC 1269, 1270-71 (September 1986); Kelley Trucking Company, 8
FMSHRC 1867 (December 1986); A.H. Smith Stone Company, 11 FMSHRC
796 (May 1989).

1/ If the last day for filing falls on a Saturday, Sunday or
holiday, the filing date is extended to the following non-holiday
weekday. See Gravely v. Ranger Fuel Corp., 4 FMSHRC 799 (April
1984).

 Brown's admittedly deliberate late filing does not meet the

criteria of Rule 60(b)(1). Accordingly, we deny Brown's
petition.

                          _______________________________
                          Arlene Holen, Chairman

                          ________________________________
                          Richard V. Backley, Commissioner

                          ________________________________
                          Joyce A. Doyle, Commissioner

                          ________________________________
                          L. Clair Nelson, Commissioner