U.S. Borax Incorporated

Plain-English summary

Louis W. Dykhoff, Jr. filed a petition for discretionary review of an ALJ decision dismissing his discrimination complaint, but the petition arrived ten days after the 30-day deadline. The Commission had denied the late petition, then considered Dykhoff’s motion for relief from default and reconsideration, in which he said he mistakenly believed he had 40 days to file. A Commission majority reopened the proceedings so it could consider whether to grant review, relying on the pro se miner’s explanation and the Commission’s treatment of similar filing mistakes. The Chairman and one Commissioner dissented, concluding that the explanation was unpersuasive.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 823(d)(1) and 823(d)(2); 29 C.F.R. §§ 2700.70(a), 2700.78(a)
• Outcome: The Commission reopened the proceedings for consideration of Dykhoff’s petition for discretionary review.
• Key point: The Commission may reopen proceedings when a self-represented miner plausibly shows that a filing deadline was misunderstood.

Full text (FMSHRC public release)

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

                                   December 6, 1999

LOUIS W. DYKHOFF, JR., :
:
v. : Docket No. WEST 99-26-DM
:
U.S. BORAX INCORPORATED :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                        ORDER

BY: Marks, Verheggen and Beatty, Commissioners

    This discrimination proceeding arises under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act”). On August 16, 1999, the Commission’s
Office of Administrative Law Judges received from Louis W. Dykhoff, Jr. a petition for
discretionary review of a decision issued by Administrative Law Judge Jerold Feldman on July 7,
1999. In his decision, Judge Feldman dismissed a discrimination complaint brought by Dykhoff
under section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). 21 FMSHRC 791 (July 1999)
(ALJ). Dykhoff’s petition was forwarded and received by the Commission’s Docket Office on
August 17.

    The judge’s jurisdiction over these cases terminated when his decision was issued on July

7, 1999. 29 C.F.R. § 2700.69(b). Relief from a judge’s decision may be sought by filing a
petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Dykhoff’s petition was
received by the Commission’s Office of Administrative Law Judge’s on the fortieth day, August
16, ten days past the 30-day deadline. Because the Commission did not sua sponte direct review
of the case, Judge Feldman’s decision became a final order of the Commission.

   On September 30, 1999, the Commission issued an order denying Dykhoff’s petition as

untimely filed. 21 FMSHRC 976, 978 (Sept. 1999). The Commission explained that Dykhoff
had availed himself of the opportunity to bring his case before a judge, and had offered no
explanation for his failure to timely submit a petition for discretionary review. Id. at 977.

    On October 12, 1999, the Commission received Dykhoff’s Motion for Relief from

Default and/or Reconsideration. In the motion, Dykhoff declares “under penalty of perjury” that
he did not offer an explanation for his late filing because he mistakenly believed that he had 40

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days following issuance of the judge’s decision, rather than 30, to file his petition. Mot. at 1. He
further states that he has been unrepresented since the time that Judge Feldman issued his
decision because he can no longer afford counsel. Id. In the memorandum attached to his
motion, Dykhoff states that U.S. Borax, which was represented by counsel throughout the
proceedings, failed to comply with procedural time limits on at least three occasions, without
negative repercussions. Memo. Dykhoff stated that, as an “unschooled miner,” he should
receive as much “leeway” as U.S. Borax with respect to timeliness issues. Id. Dykhoff also
attached to his motion various orders documenting in part his allegations that U.S. Borax failed
to timely file pleadings.

    On November 12, 1999, the Commission received from U.S. Borax an opposition to

Dykhoff’s motion for reconsideration. In its opposition, U.S. Borax states that the Commission
should deny Dykhoff’s motion because, in its September 30 order, the Commission stated that it
need not invite Dykhoff to provide an explanation for the late filing. Opp’n at 2. Second, it
notes that denial of Dykhoff’s motion will not result in a default because Dykhoff has availed
himself of the opportunity to have his case heard before a judge. Id. at 3. Third, U.S. Borax sets
forth reasons for denying Dykhoff’s petition for discretionary review on the merits. Id. at 3-4.
Finally, U.S. Borax asserts that the motion was untimely filed. Id. at 4.

     Relief from a final Commission judgment or order is available to a party in circumstances

such as mistake, inadvertence, or excusable neglect. 29 C.F.R. § 2700.1(b) (Federal Rules of
Civil Procedure apply “so far as practicable” in the absence of applicable Commission rules);
see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). Dykhoff, on his own
initiative, has adhered to the Commission’s procedural rules for filing a motion for
reconsideration, offering an explanation in the form of an affidavit that, as an unrepresented
miner, he mistakenly believed that he had 40 rather than 30 days to file his petition for
discretionary review.1 The Commission has previously reopened final Commission orders under
Fed. R. Civ. P. 60(b)(1) when parties’ counsel misunderstood the Commission’s filing
requirements for petitions for discretionary review. See Turner v. New World Mining, Inc., 14
FMSHRC 76, 77 (Jan. 1992) (finding sufficient allegation that counsel misinterpreted deadline
for filing petition); Boone v. Rebel Coal Co., 4 FMSHRC 1232, 1233 (July 1982) (finding
sufficient allegation that operator’s counsel failed to adhere to instructions to file petition). In
addition, the Commission has recognized that it has held the pleadings of pro se litigants to less
stringent standards than pleadings drafted by attorneys. Rostosky Coal Co., 21 FMSHRC 1071,
1072 & n.2 (Oct. 1999).

   1
       Contrary to U.S. Borax’s assertions, Dykhoff timely filed his motion for

reconsideration. Although the Commission received the motion on October 12, Dykhoff filed the
motion by registered mail on October 8, within 10 days of the Commission’s September 30
order. See 29 C.F.R. §§ 2700.78(a) (“A petition for reconsideration must be filed with the
Commission within 10 days after a decision or order of the Commission.”); 2700.5(d) (“When
filing is by mail, filing is effective upon mailing.”).

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 Under these circumstances, we reopen the proceedings for consideration by the

Commission of whether to grant Dykhoff’s petition for discretionary review.

                                      Marc Lincoln Marks, Commissioner




                                      Theodore F. Verheggen, Commissioner




                                      Robert H. Beatty, Jr., Commissioner




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Chairman Jordan and Commissioner Riley, dissenting:

     We would deny Dykhoff’s motion for reconsideration. It is significant that the

Commission’s September 30 order did not result in placing Dykhoff in default, since he had
already availed himself of the opportunity to bring his case before a judge. In addition, as we
noted in the September 30 order, Dykhoff attached to his petition for discretionary review a copy
of section 113(d)(2) of the Mine Act, 30 U.S.C. § 823(d)(2), which sets forth the deadline for
filing a petition for discretionary review. 21 FMSHRC at 977 n.1. Accordingly, we find his
assertion that he believed he had 40 days following issuance of the judge’s decision to file his
petition unpersuasive, and not a sound basis on which to grant this motion.

                                        Mary Lu Jordan, Chairman




                                        James C. Riley, Commissioner

Distribution

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Louis W. Dykoff, Jr.
16786 Monterey Avenue
North Edwards, CA 93523

Timothy B. McCaffrey, Jr., Esq.
O’Melveny & Myers, LLP
440 South Hope Street
Los Angeles, CA 90071-2899
For U.S. Borax, Inc.

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