Brody Mining, LLC (Commission decision, June 30, 2010)

Plain-English summary

Brody Mining sought Commission review of an administrative law judge's order denying dismissal and accepting the Secretary's late penalty petition. The judge issued that order on April 9, 2010. The Commission did not receive Brody's petition for discretionary review until May 12, more than 30 days later. Because filing is effective upon receipt and the Mine Act allows 30 days to seek review of a judge's final decision, the Commission dismissed Brody's petition as untimely.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.5(e)(2), 2700.69(a), and 2700.70(a)
• Outcome: Brody Mining's petition for discretionary review was dismissed as untimely.
• Key point: A petition for discretionary review is filed when the Commission receives it, and receipt after the 30-day deadline is untimely.

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

June 30, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

BRODY MINING, LLC

Docket No. WEVA 2009-1445

A.C. No. 46-09086-184529

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

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On May 12, 2010, the Commission received a petition for discretionary review from Brody Mining, LLC (“Brody”) challenging an order issued by Chief Administrative Law Judge Robert J. Lesnick on April 9, 2010. In his order, Judge Lesnick denied a motion to dismiss filed by Brody and accepted an untimely petition for assessment of penalty filed by the Secretary of Labor.

Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s final 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. §§ 2700.69(a), 2700.70(a). Under the Commission’s Procedural Rules, the filing of a petition for discretionary review is effective upon receipt.

29 C.F.R. §§ 2700.5(e)(2), 2700.70(a).

Brody’s petition was received by the Commission on May 12, 2010, more than 30 days after issuance of the Judge’s April 9, 2010 order. Accordingly, the petition should be dismissed as untimely filed. Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal Corp., 2 FMSHRC 775 n.1 (Apr. 1980).

For the foregoing reasons, Brody’s petition for discretionary review is dismissed as untimely.

______

Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

______

Michael G. Young, Commissioner

______

Robert F. Cohen, Jr., Commissioner

______

Patrick K. Nakamura, Commissioner

Distribution:

Jason M. Nutzman., Esq.

Smith, Moore, Leatherwood

P.O. Box 87

300 E. McBee Avenue, Suite 500

Greenville, SC 29602

Ernie Ross, Jr.

Conference & Litigation Representative

U.S. Department of Labor, MSHA

100 Bluestone Road

Mt. Hope, WV 25880-1000

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

Administrative Law Judge William Moran

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202