Theodore Oesau v. Rogers Group, Inc.

Plain-English summary

Theodore Oesau sought Commission review after an ALJ dismissed his discrimination complaint. His counsel filed the petition only by fax even though the Commission had warned that pandemic conditions prevented it from monitoring fax and physical mail. Because the rules still permitted fax filing, the Commission treated the petition as timely and reopened the proceeding after the ALJ decision had become final by operation of law. No two Commissioners voted to grant discretionary review. The Commission therefore denied relief on the merits and made the ALJ dismissal final.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 816(a)(1), 823(d)(1)-(2); 30 C.F.R. §§ 2700.1(b), 2700.5(c)(2), 2700.69(b), 2700.70(a)
• Outcome: The case was reopened to consider the petition, but discretionary review was denied.
• Key point: A technically permitted fax filing was treated as timely despite pandemic monitoring limits, but reopening did not guarantee that discretionary review would be granted.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

THEODORE
OESAU  

v.

ROGERS
GROUP, INC.

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Docket
No. CENT 2019-0276-DM

BEFORE: Rajkovich,
Chairman; Althen and Traynor, Commissioners

ORDER

BY THE
COMMISSION:

This
discrimination proceeding arises under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On September 3, 2020, Theodore
Oesau, by counsel, filed a petition for discretionary review challenging a
decision by a Commission Administrative Law Judge issued on August 4, 2020,
dismissing the complaint of discrimination brought by Mr. Oesau. 42 FMSHRC 625 (Aug.
2020) (ALJ).

In his decision, the Judge noted that
the Commission would not be monitoring incoming physical mail or facsimile
transmissions and that parties were encouraged to submit all filings through
the agency’s electronic filing system. Id. at 640 n.10. The Judge
further noted that if a party was unable to file through the Commission’s
electronic filing system, the party should email a copy, and the Commission
would file the copy. Id. Contrary to the Judge’s instructions, Oesau’s
counsel filed the petition by facsimile transmission only.

The judge’s jurisdiction
over this case terminated when he issued his decision on August 4. 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). The Commission’s procedural rules do permit filing
by facsimile transmission. 29 C.F.R. § 2700.5(c)(2). Thus, we find good cause
for treating Oesau’s petition as timely filed. See generally McCoy v.
Crescent Coal Co. , 2 FMSHRC 1202, 1204 (June 1980). 

Due to exigencies created by
the COVID-19 pandemic, the Commission has not been monitoring incoming mail and
facsimile transmissions and did not act on the petition within the statutory
period for considering requests for discretionary review. 85 Fed. Reg. 50825
(Aug. 18, 2020). The Judge’s decision became a final order of the Commission 40
days after its issuance by operation of section 113(d)(1) of the Mine Act, 30
U.S.C. § 823(d)(1).

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 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); e.g., Lloyd
Logging, Inc., 13 FMSHRC 781, 782 (May 1991). In the interest of justice,
we reopen this proceeding and consider the merits of the petition. See North
Star Contractors, Inc., 17 FMSHRC 886, 887 (June 1995).            

Section 113(d)(2) of the Mine Act, 30
U.S.C. § 823(d)(2), provides that review of a decision of an Administrative Law
Judge may be granted upon specified grounds and upon the affirmative vote of
two Commissioners. Such review is discretionary. 30 U.S.C. § 823(d)(2)(A).
However, after consideration by the Commissioners, no two Commissioners voted
to grant Oesau’s petition. Accordingly, this order reopening the case and
denying relief on the merits now constitutes the Commission’s final order. The
right to obtain review of Commission decisions in a United States court of
appeals is set forth in 30 U.S.C. § 816(a)(1).

/s/ Marco M. Rajkovich,
Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor, III , Commissioner

Distribution (e-mail):

Chris
W. Burks

WH
Law, PLLC

[email protected]

Margaret
S. Lopez

Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.

[email protected]

J.
Carin Burford

Ogletree,
Deakins, Nash, Smoak, & Stewart, P.C.

[email protected]