<DOC>
[DOCID: f:faith2.wais]
FAITH COAL CO.
May 3, 1996
SE 91-97
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 3, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. SE 91-97, etc.
:
FAITH COAL CO. :
BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine
Act"). On August 28, 1995, the Commission granted the cross-
petitions for discretionary review filed by Faith Coal Company
("Faith") and the Secretary of Labor. Pursuant to Commission
Procedural Rule 75, 29 C.F.R. � 2700.75 (1995),[1] Faith's opening
brief was due to be filed by September 27, 1995. Faith,
however, failed to file its brief.
On January 26, 1996, the Secretary filed a Motion to Dismiss
for Want of Prosecution pursuant to Commission Procedural Rule 75(e), 29
C.F.R. � 2700.75(e).[2] The Secretary states that Faith failed
to file its opening brief or designate its petition as such.
Mot. at 1. The Secretary notes that he has not been able to reach Faith
by telephone, facsimile, or mail. Id. at 2 & n.2. He asserts that no
injustice would result from the dismissal of Faith's petition. Id.
at 2-3. The Secretary requests that the petition be dismissed with
prejudice. Id. at 3. Faith has not filed an opposition to the motion.
On March 14, 1996, the Commission issued an order directing
Faith to show cause within 14 days why its appeal should not be
dismissed. The file contains the return receipt showing that Faith
received the show cause order on April 1, 1996, 18 days after its
issuance. On April 8, 1996, Faith filed a response to the show cause
order stating that, as a pro se operator, it was unaware that a
written statement was required to designate the petition as its brief.
Faith requests that the Commission accept its late correspondence as
its motion to designate the petition as such. Faith also states that it
opposes the Secretary's motion to dismiss because it "should not be
penalized nor denied the privilege of due process of appeal because of
financial poverty and lack of knowledge" of the Commission's
rules. The Secretary has not filed an opposition to Faith's motion to
designate the petition as its brief.
Whether the Commission vacates its direction for review due
to a petitioner's failure to file an opening brief in accordance with
Rule 75 is a matter within the Commission's discretion. See 29
C.F.R. � 2700.75(e). Faith has proffered a reason for its failure
to file its brief, i.e., as a pro se operator, Faith was unaware of
the filing requirement. Under the circumstances, we excuse Faith's
late-filed response to the show cause order and grant its motion to
designate the petition as its brief.
For the foregoing reasons, we deny the Secretary's motion.
Mary Lu Jordan, Chairman
Arlene Holen, Commissioner
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
**FOOTNOTES**
[1]: Rule 75 provides, in part:
(a) Time to file. (1) Opening and
response briefs. Within 30 days after the
Commission grants a petition for
discretionary review, the petitioner shall
file his opening brief. If the petitioner
desires, he may notify the Commission and all
other parties within the 30-day period that
his petition and any supporting memorandum
are to constitute his brief. . . .
[2]: Rule 75(e) provides:
Consequences of petitioner's failure to
file brief. If a petitioner fails to timely
file a brief or to designate the petition as
his brief, the direction for review may be
vacated.
Distribution:
Lonnie Stockwell
Faith Coal Company
Route 1, Box 196
Palmer, TN 37365
(Certified Mail)
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
(Certified Mail)