29 C.F.R. § 2700.70

Petitions for discretionary review

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(a) Procedure. Any person adversely affected or aggrieved by an ALJ's decision or order may file with the Commission a petition for discretionary review within 30 days after issuance of the decision or order. Filing of a petition for discretionary review is effective upon receipt. Two or more parties may join in the same petition; the Commission may consolidate related petitions. Procedures governing petitions for review of temporary reinstatement orders are found at § 2700.45(f).

(b) Review discretionary. Review by the Commission shall not be a matter of right but of the sound discretion of the Commission. Review by the Commission shall be granted only by affirmative vote of at least two of the Commissioners present and voting.

(1) A finding or conclusion of material fact is not supported by substantial evidence;

(2) A necessary legal conclusion is erroneous;

(3) The decision is contrary to law or to the duly promulgated rules or decisions of the Commission;

(4) A substantial question of law, policy, or discretion is involved; or

(5) A prejudicial error of procedure was committed.

(d) Requirements. Each issue shall be separately numbered and plainly and concisely stated, and shall be supported by detailed citations to the record, when assignments of error are based on the record, and by statutes, regulations, or other principal authorities relied upon. Except by permission of the Commission and for good cause shown, petitions for discretionary review shall not exceed 35 pages. Except for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon which the ALJ had not been afforded an opportunity to pass.

(e) Statement in opposition to petition. A statement in opposition to a petition for discretionary review may be filed, but the opportunity for such filing shall not require the Commission to delay its action on the petition.

(f) Motion for leave to exceed page limit. A motion requesting leave to exceed the page limit shall be received not less than 3 days prior to the date the petition for discretionary review is due to be filed, shall state the total number of pages proposed, and shall comply with § 2700.10. Filing of a motion requesting an extension of page limit is effective upon receipt. The motion and any statement in opposition shall include proof of service on all parties by a means of delivery no less expeditious than that used for filing the motion, except that if service by email or other electronic transmission is impossible, the filing party must serve in person, or by third-party commercial carrier, resulting in same-day delivery.

(g) Scope of review. If a petition is granted, review shall be limited to the issues raised by the petition, unless the Commission directs review of additional issues pursuant to § 2700.71.

(h) Denial of petition. A petition not granted within 40 days after the issuance of the ALJ's decision is deemed denied.

[90 FR 5625, Jan. 17, 2025]

Notes of Decisions

Cited in 4 cases (1 in the last 5 years), 1988–2022 · leading case: Wolf Run Mining Co. v. Fed. Mine Saf. & Health Review Comm'n, 659 F.3d 1197 (D.C. Cir. 2011).

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Wolf Run Mining Co. v. Fed. Mine Saf. & Health Review Comm'n, 659 F.3d 1197 (D.C. Cir. 2011). “29 C.F.R. § 2700.70 (a). 6 . Although Wolf Run does not contest the proposed penalty, it can suffer additional adverse consequences from the "significant and substantial” designation.”

Holcomb v. Colony Bay Coal Co., 852 F.2d 792 (4th Cir. 1988). “29 C.F.R. § 2700.70 (a) (1987). Holcomb’s novel contention is that this review procedure is permissive instead of mandatory; therefore, he was not required to petition the Federal Mine Safety and Health Review Commission for review of the AU’s decision in order to exhaust his…”

Northshore Mining Co. v. Sec'y of Labor, 46 F.4th 718 (8th Cir. 2022). “See 29 C.F.R. § 2700.70 (g) (same as 30 U.S.C.”

Darby v. Kemp, 957 F.2d 145 (4th Cir. 1992). “2d at 795 (quoting 29 C.F.R. § 2700.70 (a) (1987)). We held that the claimant was required to exhaust administrative remedies prior to seeking judicial review.”

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