Justin Nagel v. Newmont USA Limited (Commission decision, May 24, 2011)

Plain-English summary

Justin Nagel filed a discrimination complaint against Newmont USA Limited, and an administrative law judge dismissed it for failure to comply with discovery orders and lack of candor. The Commission had already denied Nagel's petition for discretionary review and his request for a new hearing. It treated his later motion to vacate as a petition for reconsideration. The motion was filed after the 10-day deadline and offered no basis for reconsideration even if it had been timely. The Commission denied the motion and stated that its earlier order was final.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.70 and 2700.78; 30 U.S.C. § 815(c)(3)
• Outcome: The motion to vacate, treated as a petition for reconsideration, was denied as untimely and unsupported.
• Key point: A petition to reconsider a Commission order must be filed within 10 days, and it must provide a basis for changing the order.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 24, 2011

JUSTIN NAGEL

v.

NEWMONT USA LIMITED

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Docket No. WEST 2010-464-DM

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

ORDER

BY THE COMMISSION:

On January 5, 2010, Justin Nagel, acting pro se, filed a complaint of discrimination against Newmont USA Limited (“Newmont”) under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3) (2006). On January 10, 2011, the judge in that case issued a Decision and Order Granting Respondent’s Motion to Dismiss for Failure to Comply with Discovery Orders and Lack of Candor with the Tribunal.

Mr. Nagel filed a Notice of Appeal on January 24, 2011. In that document, he stated that he was appealing the judge’s decision of January 10, 2011. We treated this document as a timely-filed petition for discretionary review of the judge’s decision.

Commission Procedural
Rule 70, 29 C.F.R. § 2700.70.

On February 18, the Commission issued an order denying Mr. Nagel’s petition for discretionary review as well as his motion for a new hearing filed on February 11, 2011.

On March 22, Mr. Nagel filed a Motion to Vacate Commission Order, in which he sought to overturn the Commission’s February 18 order.

Pursuant to Commission Procedural Rule 78, 29 C.F.R. § 2700.78, a party may file a petition for reconsideration of a Commission order within 10 days of its issuance. We will treat Mr. Nagel’s Motion to Vacate Commission Order as a petition for reconsideration. However, Mr. Nagel’s motion was filed 32 days after the issuance of the February 18 order and therefore was not timely. Even if it had been timely, we conclude that it did not provide any basis for reconsidering the February 18 order. For the foregoing reasons, the Motion to Vacate Commission Order is hereby denied.

The February 18 order denying Mr. Nagel’s petition is the final Commission order in this case. Accordingly, the Commission will no longer accept for filing any document submitted by Mr. Nagel seeking to vacate or modify the February 18 order in any way. If any such document is submitted in the future, the Commission will not consider it and will not issue any order addressing the document.

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Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

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Patrick K. Nakamura, Commissioner

Distribution:

Justin Nagel

P.O. Box 182

Rathdrum, ID 83858

Richard Tucker

Newmont Mining

1655 Mountain City Hgwy.

Elko, NV 89801

Richard J. Matthews, Esq.

Rebecca R. Rivenbark, Esq.

Hiliary N. Wilson, Esq.

Newmont Mining

1655 Mountain City Hgwy.

Elko, NV 89801

Donna Vetrano Pryor, Esq.

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

Mark N. Savit, Esq.

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Thomas McCarthy

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021