Klimczak v. General Crushed Stone Co., Inc. (Commission decision, December 30, 1986)

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

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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.

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~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