Klimczak v. General Crushed Stone Co., Inc.

Plain-English summary

Leo Klimczak asked the Commission for a new hearing in his discrimination case based on alleged new evidence. The Commission explained that, after the matter had been reviewed by the Second Circuit, jurisdiction over a request to introduce additional evidence rested with that court while the petition was pending. It also found the motion seriously untimely because it was filed more than two and one-half years after the court’s decision and because Klimczak did not show that the evidence could not have been discovered earlier with due diligence. The Commission denied the motion.

Decision snapshot

• Governing provision: 30 U.S.C. § 816(a).
• Outcome: The motion for a new hearing was denied.
• Key point: A late request to present alleged new evidence cannot be used to reopen a case after appellate review when the governing jurisdiction and timeliness requirements are not met.

Full text (FMSHRC public release)

CCASE:
LEO KLIMCZAK V. GENERAL CRUSHED STONE
DDATE:
19861230
TTEXT:

             FMSHRC-WDC
             DEC 30, 1986

LEO KLIMCZAK

v. Docket No. YORK 82-21-DM

GENERAL CRUSHED STONE CO., INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                ORDER

BY THE COMMISSION:

Leo Klimczak has filed with the Commission a motion seeking
a new hearing in this matter. On April 6, 1983, Commission
Administrative Law Judge Gary Melick issued a decision dismissing
Mr. Klimczak's discrimination complaint; that decision became a
final order of the Commission by operation of the statute, and on
March 9, 1984, the United States Court of Appeals for the Second
Circuit affirmed the judge's decision. 5 FMSHRC 684 (April
1983)(ALJ), aff'd mem., No. 83-4122 (2d Cir. March 9, 1984). For
the reasons that follow, the motion for a new hearing is denied.

The basis of Klimczak's motion is an assertion that he has

obtained new evidence, which he claims establishes his complaint of
discrimination. Once a petition for review of a final Commission
decision is filed in a federal court of appeals, the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. $ 801 et se . (1982),
provides that jurisdiction to entertain a motion for leave to adduce
additional evidence rests exclusively with the court while the
petition is pending before it. 30 U.S.C. $ 816(a). As noted above,
this matter was reviewed in the Second Circuit, and Klimczak did not
seek permission during that proceeding to adduce additional evidence.

Even assuming that the Commission has jurisdiction in this

Page 2

matter, this motion, filed more than two and one-half years after the
court's decision, is seriously untimely (cf. Fed. R. Civ. P. 60(b),
which provides a one-year time limit for motions requesting relief
from a final judgment on the basis of newly discovered evidence).
Further, Klimczak fails to demonstrate why this alleged new evidence
could not have been discovered earlier with the exercise of due
diligence.

Page 3

~1872
Accordingly, the motion for a new hearing is denied.

              Ford B. Ford, Chairman


              Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner


              James A. Lastowka, Commissioner


              L. Clair Nelson, Commissioner

Distribution

Mr. Leo Klimczak
210 West Adsworth Avenue
Avon, New York 14414

General Crushed Stone Company
No. 6 County Road
Honeoye Falls, New York 14472

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church. Virginia 22041