.
DAANEN AND JANSSEN, INC.
April 4, 1997
LAKE 95-180-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          April 4, 1997


SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
            v.                     :  Docket Nos. LAKE 95-180-RM, etc.
                                   :
DAANEN AND JANSSEN, INC.           :


BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]


                                 ORDER
 
BY THE COMMISSION:

     These consolidated contest and civil penalty proceedings
arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 801 et seq. (1994) ("Mine Act"). The Commission previously granted
the petition for discretionary review filed by Daanen and Janssen,
Inc. ("D&J") challenging the conclusion of a Commission
Administrative Law Judge that D&J  violated 30 C.F.R. � 56.9101 for
failure to maintain control of a front-end loader, and 30 C.F.R.
� 56.14101(a)(3) for failure to  maintain the loader's braking
system in functional condition.  18 FMSHRC 1796, 1804-15 (October 1996)
(ALJ).  The citations were issued following investigation of an
accident in which a miner died when his loader fell off a 40-foot-high
embankment.

      On January 30, 1997, counsel for the Secretary of Labor
filed a motion for an extension of time, from January 30, 1997 to
February 13, 1997, to file the Secretary's brief.  S. Ext. Mot. at
1.  She explained that the extension was necessary due to a
heavy workload.  Id.  Counsel stated she had "contacted the
counsel for Daanen and Janssen to apprise him of the situation and he
does not object to the granting of this extension."  Id.  On January
31, 1997, the Commission granted the motion.

     On February 3, 1997, counsel for D&J filed an opposition to
the motion alleging that the motion had been untimely filed, the
Secretary had not shown good cause for the extension, and counsel for
the Secretary had misrepresented that the motion was unopposed.  D&J
Opp. to Mot. for Ext. at 1-2. Counsel stated that, while the
Secretary's counsel had left a  message at his office that she
would be seeking a 2-week extension of time to file her response brief,
she had never inquired whether he objected to the motion.  Id. at 1.
He asserted that he has never spoken with the Secretary's counsel
and that he did not inform her that he had no objection.  Id.  On
February 5, 1997, the Commission ordered the Secretary to reply to
the allegation of misrepresentation, restating that the response
brief was due to be  filed by February 13, 1997. Unpublished Order
at 2 (February 5, 1997).

     On February 6, 1997, the Secretary's counsel filed her
response to the allegation of misrepresentation.  Counsel
explained that, prior to filing the motion for an extension of time,
she had telephoned counsel for D&J and asked the office secretary if
she could speak with the attorneys of record in this case.  S. Resp.
at 1.  Counsel stated that the office secretary informed her that
both attorneys were not available. Id.  Counsel then told the office
secretary that she was requesting a 2-week extension that day and that
"apprising opposing counsel of what our intentions are . . . is done as
a courtesy and is standard  practice."  Id. at 2.  Counsel
asserted that the office secretary  told her that "she foresaw no
problem from either attorney  regarding the extension of time."
Id.  Counsel requested that the  office secretary inform the
attorneys of her telephone call. Id.  Counsel asserted that the
office secretary assured her that  "this was not going to be a
problem, and promised that if  either attorney had a problem with
[the] request for an extension of  time, someone representing that
office would call [her] before the end of that business day."  Id.
Counsel stated that, since no one called her, she represented in the
motion that opposing counsel did not object to the granting of the
extension.  Id.  Counsel stated that, had she received any
indication that opposing counsel would object to the motion, she
would not have made this representation.  Id.  Therefore,
counsel asserted that the  allegation of misrepresentation is
unfounded.  Id.

     On February 11, 1997, counsel for D&J filed a reply in which
it moved to strike the Secretary's response brief.  Counsel asserts
that, had the Secretary's counsel attempted to reach him again, he
would have agreed to the extension. Mot. to Strike at 1.  He requests
that the Commission strike the Secretary's response brief because
the Secretary's counsel "called at the last minute" to announce that
she would be seeking a 2-week extension, never inquired whether
he objected to the request nor consulted with either attorney of
record regarding any such objection, explicitly told the
office secretary that no return telephone call was necessary, and
subsequently represented that she had consulted with opposing counsel
and that he had no objection to the motion for extension.  Id. at 2.

     Attached to the motion to strike is the sworn affidavit of
the office secretary.  She states that the Secretary's counsel did
not ask "if our firm's client would object" to the motion for
extension.  Aff. at 1.  Rather, according to the office secretary,
the Secretary's counsel said she would be filing the motion for
extension because her office had  gotten backed up due to a death in
someone's family.  Id.  She states that the Secretary's counsel said
the telephone call was a "courtesy call," that she was leaving the
office in 45 minutes, and that it was not necessary to call her back.
Id.  She denies telling the Secretary's counsel that she
foresaw no problem from either  attorney of record regarding the
extension, and assuring her that the extension was not going to be a
problem.  Id.  She further denies  promising the Secretary's counsel
that someone would call her before the end of that business day if
either attorney had a problem with the request for extension.  Id.
She asserts that she is in no position to make such assurances
and that she does not have authority on behalf of the firm's
clients to respond to requests for  extensions.  Id. at 2.  She further
states that at no time did the Secretary's counsel request that
she or the attorneys call her back regarding any objection the client
might have to the motion for extension.  Id.

     On February 13, 1997, the Secretary's counsel filed an
opposition to the motion to strike. Counsel states that her
recollection of the events is as  set forth in her reply to the
allegation of misrepresentation and not as stated in the motion to
strike and accompanying affidavit. S. Opp'n to Mot. to Strike at 1.
Counsel requests that the Commission deny the motion to
strike because mere differing  recollections of events does not
warrant the imposition of "the  extraordinary sanction of striking
the Secretary's brief in a case  which involves the interpretation
of an important safety standard and the death of a miner."  Id. at 1-2.
On the same date, the Secretary's counsel filed the response brief.

     On March 7, 1997, counsel for D&J filed a reply to the
Secretary's opposition to the motion to strike.  Counsel argues
that it remains uncontroverted that the Secretary's counsel represented
that she had consulted with opposing counsel who had no
objection to the motion for  extension.  D&J Reply at 1-2.
Counsel argues that, by her own  admission, the Secretary's counsel
did not consult with anyone representing D&J and that she was
not told that D&J had no objection to the motion for extension.  Id.
at 2.  He argues that the representation by the Secretary's
counsel is simply untrue.  Id.  On the same date, counsel filed D&J's
reply brief.

     The motion to strike is based on D&J's allegation that the
Secretary's counsel misrepresented its contact with D&J's counsel in
the motion for extension of time. The Commission is authorized to
impose a sanction for  misrepresentation under its inherent 
powers.[2]  The imposition of such a sanction is committed to
the Commission's sound discretion. See Chambers, 501 U.S. at 55
(citations omitted).

      It is undisputed that the Secretary's counsel initiated a
telephone call to opposing counsel, left a message informing him of the
motion for extension, but never communicated directly with him.  In
light of this, counsel for the Secretary's statement that she had
"contacted" opposing counsel and  that he did not object to the
motion is, at best, inaccurate.

     We agree with the Secretary that striking the Secretary's
response brief would be inappropriate.  However the conduct
of the Secretary's counsel is characterized, striking the
response brief would punish the Secretary of Labor for his
counsel's conduct.  As the Secretary points out, the
Commission needs to hear from the Secretary on the merits on an
important question of regulatory interpretation involving the death
of a miner.  S. Opp'n to Mot. to Strike at 1-2.  Moreover, we
conclude that D&J has not suffered prejudice as a result of the
Secretary's counsel's representation because counsel for
D&J admitted that, had she spoken with him, he would have agreed to
the extension.  D&J Mot. to Strike  at 1.  Therefore, whatever was said
by the parties to the conversation, we conclude that the requested
sanction would be inappropriate.  Accordingly, we deny the motion to
strike the Secretary's response  brief.


                                   Mary Lu Jordan, Chairman
                                   
                                   Marc Lincoln Marks, Commissioner
                                    
                                   James C. Riley, Commissioner


**FOOTNOTES**

     [1]:   Pursuant to section 113(c) of the Federal Mine Safety
and Health Act  of  1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been  designated  to exercise the powers of the
Commission.

     [2]:  Inherent powers are "`governed  not by rule or statute
but by the control necessarily vested in courts  to  manage their
own  affairs  so  as  to  achieve  the  orderly  and  expeditious
disposition of cases.'"  Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991)  (quoting  Link  v. Wabash R.R. Co., 370 U.S. 626,  630-31
(1962)).