U.S. Borax Incorporated

Plain-English summary

Louis W. Dykhoff, Jr. petitioned for discretionary review of an administrative law judge's dismissal of his Mine Act discrimination complaint. The petition arrived on the fortieth day after the judge's decision, beyond the 30-day filing deadline, and Dykhoff offered no explanation for the delay. The Commission denied the petition as untimely, while two Commissioners dissented and would have allowed him to explain the late filing because he was a pro se miner who appeared to misunderstand the deadline. The underlying ALJ decision therefore became a final Commission order.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(3), 823(d)(1), and 823(d)(2); 29 C.F.R. §§ 2700.69(b), 2700.70(a), and 2700.1(b)
• Outcome: The Commission denied the petition for discretionary review as untimely.
• Key point: A petition filed after the 30-day review period is untimely absent grounds for relief, even when the filer may have misunderstood the deadline.

Full text (FMSHRC public release)

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

                                   September 30, 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: Jordan, Chairman; Riley, and Verheggen, 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, 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.

    The Commission has entertained late-filed petitions for discretionary review where good

cause has been shown. See, e.g., De Atley Co., 18 FMSHRC 491, 492 (Apr. 1996) (excusing late
filing of petition for discretionary review where operator’s predecessor failed to inform operator
of unconsummated settlement agreement). Typically, in such cases, a default order has been
entered against a party, depriving the party of any opportunity to defend against the enforcement
action taken by the Secretary. Relief from a final Commission judgment or order is available to a
party under Fed. R. Civ. P. 60(b)(1) in circumstances such as mistake, inadvertence, or excusable

                                    21 FMSHRC 976

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). Rule 60(b) motions are committed to the sound discretion of the judicial
tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir.
1987), cert. denied, 484 U.S. 1027 (1988); see Green Coal Co., 18 FMSHRC 1594, 1595 (Sept.
1996).

   Here, Dykhoff has availed himself of the opportunity to bring his case before a judge.

Dykhoff offers no explanation for his failure to timely submit a petition for discretionary review.1
Thus, Dykhoff has failed to set forth grounds establishing that Fed. R. Civ. P. 60(b) relief is
appropriate. See Knock’s Building Supplies, 21 FMSHRC 483, 484 (May 1999) (denying motion
to reopen when no explanation for late filing of petition for discretionary review offered); Jim
Walter Resources, Inc., 9 FMSHRC 388 (March 1987) (dismissing petition for discretionary
review where no explanation for late filing offered).

   1
       We are unwilling to speculate that Dykhoff “appears to have thought that he had 40, not

30, days in which to file his petition for discretionary review.” Slip op. at 4. 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 30-day deadline for filing a petition for discretionary review.
We also note that Dykhoff was represented by counsel at one point in these proceedings. 21
FMSHRC at 791 (noting “Neil M. Herring, Esq., on the brief . . . for the Complainant”). Under
these circumstances, and because no possibility of default exists, we conclude that the
Commission need not invite Dykhoff to provide an explanation for the late-filing.

                                     21 FMSHRC 977

   For the foregoing reasons, Dykhoff’s petition for discretionary review is denied as

untimely filed.

                                         Mary Lu Jordan, Chairman




                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




                                    21 FMSHRC 978

Commissioners Marks and Beatty, dissenting:

     Commissioners Marks and Beatty dissent from the majority’s order dismissing Dykhoff’s

petition for discretionary review on timeliness grounds. Dykhoff is an unrepresented, pro se
miner who appears to have thought that he had 40, not 30, days in which to file his petition for
discretionary review. Because Dykhoff was apparently not aware that his petition was untimely,
he did not submit a separate motion for permission to excuse the late filing or provide any
explanation of the circumstances surrounding the filing of his petition.2 Under these
circumstances, we would issue an order directing Dykhoff to provide a justification for his late
filing, and allowing the parties an opportunity to address whether this case should be reopened.
See Turner v. New World Mining, Inc., 14 FMSHRC 76, 77 (Jan. 1992) (affording parties
opportunity to address whether petition for discretionary review was timely filed and whether
case should be reopened where petition was filed two days late and not treated as a PDR by
Commission’s docket office).

                                           Marc Lincoln Marks, Commissioner




                                           Robert H. Beatty, Jr., Commissioner

Distribution

   2
      The majority’s approach has a serious impact on this pro se miner. Compare Boone v.

Rebel Coal Co., 4 FMSHRC 1232 (July 1982) (proceeding opened when counsel for operator
delayed filing petition nearly four months). It is clear that Dykhoff is not represented at this stage
of the proceedings. Accordingly, we believe that he should at least be afforded the opportunity to
explain the reason for his minimal delay. See 29 C.F.R. § 2700.1(c); Commission Procedural
Rule 1(c) (“These Rules shall be construed to . . . encourage the participation of miners.”).

                                     21 FMSHRC 979

Mr. Louis Dykoff, Jr.
16786 Monterey Avenue
N. Edwards, CA 93523

Andrew T. Kugler, Esq.
O’Melveny & Myers, LLP
400 South Hope Street
Los Angeles, CA 90071

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                               21 FMSHRC 980