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[DOCID: f:ct99148o.wais]

 
PHOENIX ASSOCIATES LAND SYNDICATE
May 3, 1999
CENT 99-148-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., 6TH FLOOR

                  WASHINGTON ,D. C.  20006-3868


                           May 3, 1999


SECRETARY OF LABOR             :  CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH    :
     ADMINISTRATION (MSHA),    :  Docket No. CENT 99-148-M
               Petitioner      :  A. C. No. 16-01192-05508
                               :
          v.                   :  Docket No. CENT 99-149-M
PHOENIX ASSOCIATES LAND        :  A. C. No. 16-01192-05509
   SYNDICATE,                  :
               Respondent      :  Murphy Sand & Gravel

               ORDER TO RESUBMIT PENALTY PETITIONS

     These  cases  are before me upon petitions for assessment of
civil penalties under  section  105(d) of the Federal Mine Safety
and Health Act of 1977.  On February  26, 1999, penalty petitions
were filed on behalf the Secretary which  were  answered  by  the
operator on April 22, 1999.

     I  will  not accept these penalty petitions.  They have been
filed on behalf  of  an  individual  who  styles himself as a law
clerk, but this "law clerk" did not sign the  petition.   In this
case the law clerk did not even sign the petition.  It  is signed
by  an  individual whose status and position are not given.    In
addition,  the petitions contain the names of three Solicitors in
ascending degrees  of responsibility, but none of them has signed
the motion. I have recently  held  that  a  law  clerk  from this
regional   office  may  not  file  settlement  motions  with  the
Commission.  Bowen Industries, Inc., Docket No. CENT 98-268-M, 21
FMSHRC               ,  (April  26, 1999).  These cases present a
situation where the individual who  signed  the petitions is even
further removed from an attorney who is entitled to appear.

     Commission Rule 2700.3, 29 C.F.R. § 2700.3,  sets  forth the
individuals  and  categories of individuals who are permitted  to
practice before the Commission.  Under subparagraph (a) attorneys
are  permitted to practice  and  under  subparagraph  (b)  a  non
attorney  may  practice  if  he  is  a party, a representative of
miners   or  certain  designated  individuals   associated   with
specified  entities.  The law clerk on whose behalf the petitions
were filed is not an attorney and is not one of the described non
attorneys allowed  to  appear  before  the  Commission.   And the
person  who  signed the petitions is a fortiori unacceptable  and
unqualified.    Subparagraph  (c)  permits  any  other  person to
practice  with  the  approval  of  the  presiding  judge  or  the
Commission.   My  approval has not been sought for the appearance
of the law clerk.   Nor  has  my  approval  been  sought  for the
appearance  of  the  individual who signed the petition but whose
position and responsibilities are completely unknown to me.

     The filings from  the  Dallas Office of the Solicitor are in
contrast to procedures previously followed by the national Office
of  the  Solicitor in seeking permission  for  non  attorneys  to
appear before  the  Commission.   In 1994, when the Office of the
Solicitor    wished   to   have   Conference    and    Litigation
Representatives  (CLR)  appear on behalf of the Secretary in mine
safety cases, information  was  furnished  regarding the training
and credentials of these individuals.   Cyprus  Emerald Resources
Corp.,  16  FMSHRC  2359  (November 1994).  The very  substantial
experience and training of  CLRs  entitled  them to appear before
the Commission.  Moreover, in every case where  a  CLR  wishes to
represent the Secretary, he has filed a motion for permission  to
appear.

     The  petitions  filed  in  these  cases  must be refiled and
signed by an attorney in the Office of the Solicitor.   Otherwise
a show cause order will be issued why these cases should  not  be
dismissed for want of prosecution.

     These unauthorized filings connote a serious lack of respect
for the Commission which I find very disturbing.  Any office that
submits  such  pleading  obviously  attaches little importance to
penalty cases under the Mine Act.

     In light of the foregoing, it is ORDERED that within 21 days
of the  date of this order the penalty petitions be resubmitted  
and signed by an attorney in the Office of the Solicitor.


                              Paul Merlin
                              Chief Administrative Law Judge


Distribution:  (Certified Mail)

Brian L. Pudenz, Esq., Office of the Solicitor, U. S. Department 
of Labor, 525  Griffin Street, Suite 501, Dallas, TX 75202

Tom Mascolino, Esq., Office of the Solicitor,  U. S. Department 
of Labor, Room 420,4015 Wilson Boulevard, Arlington, VA 22203

Mr. Paul Alonzo, President, Phoenix Associates  Land Syndicate,  
P. O. Box 1358, Covington, LA  70433

/gl