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[DOCID: f:lak2.wais]

 
LAKEVIEW ROCK PRODUCTS, INC.
June 8, 1995
WEST 94-308-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                             June 8, 1995

SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA)       :  Docket Nos. WEST 94-308-M
                              :              WEST 94-309-M
            v.                :
                              :
LAKEVIEW ROCK PRODUCTS, INC.  :


BEFORE:  Jordan, Chairman; Doyle, Holen and Marks, Commissioners

                               ORDER

BY THE COMMISSION:[1]

     This civil penalty proceeding arises under the  Federal Mine
Safety and Health Act of  1977,  30 U.S.C.  � 801 et seq. (1988) ("Mine
Act").   On   March  2,  1995,  the Commission received  from  Lakeview
Rock Products, Inc. ("Lakeview")  a request  for  a 30-day extension of
time   to  file  a   petition   for discretionary  review  contesting a
decision  issued  by Administrative Law Judge Arthur Amchan  on January
30,  1995.   17  FMSHRC 83 (January 1995)  (ALJ).   Lakeview's  counsel
states that he was  unable  to turn to the decision when he received it
on  February  6,  that  mining  law materials    were    not    readily
available  in local libraries,  and that   Lakeview's   decision-makers
were temporarily  out of state.  In opposition  to  Lakeview's  motion,
the Secretary of  Labor argues that the Commission lacks subject matter
jurisdiction.   In  reply   to  the Secretary's   opposition,  Lakeview
states that the  notice it received from the Commission  indicates that
an  operator may seek an  extension for  good  cause  shown.   It  also
requests    that   the   Commission consider   its   request   for   an
extension  as  its  petition.   The Secretary     opposes      treating
Lakeview's request as its petition.

    Under the Mine Act and the Commission's Procedural Rules (29
C.F.R.  Part  2700), 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)   ("Rule
70(a)").   Lakeview  did not file a timely   petition,   nor  did   the
Commission direct review on its own motion  within  the 30-day  period.
30  U.S.C.  � 823(d)(2)(B).   Thus, the judge's decision became a final
decision of the  Commission 40 days after its issuance.   30  U.S.C.  
� 823(d)(1).

     The  Commission denies Lakeview's motion for an extension of
time and rejects Lakeview's request to treat the motion as its petition
for  discretionary  review.   Under the  Mine  Act and the Commission's
Procedural Rules,  a party must set forth the grounds for appeal in its
petition.  30 U.S.C.  �  823(d)(2); 29 C.F.R. � 2700.70(c).  Lakeview's
request  did  not  set forth  those grounds.   Indeed, Lakeview  stated
in  its  request   that  it  needed additional  time  to  evaluate  the
merits  of  an  appeal,  suggesting that   a  petition  might  not   be
forthcoming.    Accordingly,   upon consideration of Lakeview's motion,
it is denied.

     Separate opinions of Commissioners follow:

     Chairman Jordan and Commissioner Marks:

     The  Commission  has strictly enforced the 30-day time limit
     for filing petitions  for  discretionary  review,  accepting
     petitions  filed late only where the accompanying motion  to
     excuse the late  filing  has shown good cause for the delay.
     McCoy v. Crescent Coal Co.,  2  FMSHRC  1202,  1203-04 (June
     1980);  see also Duval Corp. v. Donovan, 650 F.2d 1051, 1054
     (9th  Cir.  1981).  In McCoy, the Commission explained  that
     adherence to  the 30-day time limit is essential because the
     Commission has only 10 days, between the last day for filing
     a petition and  the date the judge's decision becomes final,
     during which to evaluate the merits of a petition.  2 FMSHRC
     at 1204.  Here, we  deny Lakeview's request because Lakeview
     has failed to show good cause for delay in filing a petition
     for discretionary review.

     We need not decide whether  the Commission's procedural rule
     pertaining to extensions of time,  29 C.F.R. � 2700.9 ("Rule
     9"), applies to requests for extensions for filing petitions
     for discretionary review.  Assuming,  however,  that  Rule 9
     applies,  we  conclude that Lakeview's request was untimely.
     A  request  for an  extension  must  "be  filed  before  the
     expiration of  the time allowed for the filing or serving of
     the document."  Rule 9 (emphasis added).  The Commission has
     applied   unique   filing    requirements    to   petitions,
     establishing that filing is effective only upon
      receipt.   29  C.F.R.  �  2700.5(d)  ("Rule  5(d)") & Rule
     70(a).[2]   Lakeview's  petition, to be timely, should  have
     been received by the Commission  within  30  days  after the
     judge's  decision, by March 1, 1995.  Consequently, pursuant
     to Rule 9,  Lakeview's  request for an extension should have
     been filed within that 30-day period as well.


**FOOTNOTES**

     [1]:  The Commissioners agree, in result, to deny Lakeview's
request  for  an  extension  of  time  to  file its petition  for
discretionary  review,  but differ as to the rationale  for  that
determination.   The portion  of  the  decision  upon  which  all
Commissioners agree  is  followed  by  the  opinions  of Chairman
Jordan  and  Commissioner  Marks  and  of Commissioner Doyle  and
Commissioner Holen, respectively, setting  forth  their  separate
views.


     Our general filing rule,  Rule 5(d), provides that pleadings
     other than petitions for discretionary review are considered
     filed on the date of mailing, while petitions are considered
     filed only upon receipt.  We view the filing requirement for
     a motion to extend time for  filing  a petition in the light
     of  Rule  5(d)'s  provision  that  a  petition   itself   is
     effectively filed only upon receipt.  Interpreting Rule 5(d)
     to  permit  Lakeview's  request  to  be filed on the date of
     mailing, rather than upon its receipt,  would  undermine the
     unique filing requirements for review petitions.  Construing
     Rules  5,  9,  and  70(a)  together,  we  would disallow  as
     untimely  any  request  for  an extension to file  a  review
     petition received by the Commission  after expiration of the
     30-day  period  for  filing that petition.   See  generally,
     e.g., Weinberger v. Hynson,  Westcott and Dunning, Inc., 412
     U.S. 609, 631-32 (1973) (in interpreting  single  enactment,
     courts  should  give  "the  most  harmonious,  comprehensive
     meaning  possible") (citations omitted).  Although  Lakeview
     has certified that it mailed its request for an extension on
     March 1, the  request  was  filed out of time because it was
     received by the Commission on  March  2,  one  day after the
     expiration of the 30-day period.[3]


                                 Mary Lu Jordan, Chairman

                                 Marc Lincoln Marks, Commissioner


**FOOTNOTES**

     [2]:  Lakeview received, as an attachment  to Judge Amchan's
decision,  a  notice  that  provided: "PETITION FOR DISCRETIONARY
REVIEW  MUST BE RECEIVED BY THE  COMMISSION  WITHIN  THIRTY  (30)
CALENDAR  DAYS  AFTER  THE  ISSUANCE  DATE  OF THE DECISION TO BE
CONSIDERED  [29  C.F.R.  � 2700.5(d) and .70(a)]."  (Emphasis  in
original).

     [3]:   Given  our  disposition,   we   need  not  reach  the
Secretary's  argument  that the Commission lacks  subject  matter
jurisdiction to entertain Lakeview's motion.


     Commissioner Doyle and Commissioner Holen:

     There  is  no provision in the Mine Act for extension of the
time  to  file  a petition for discretionary review  ("PDR").
Nor    do   the   Commission's Procedural  Rules,  29  C.F.R.
Part 2700, provide for such an extension.     Therefore,   we
conclude  that the  Commission is   without    authority   to
entertain such a  motion  and,accordingly,   we   deny   the
operator's   motion   for   an extension  of time to file its
PDR.

     Lakeview's  reliance  on 29 C.F.R. � 2700.9  ("Rule  9")  is
misplaced.   The  Commission's Procedural   Rules,  including
those under which  parties may seek  Commission  review,  are
set forth in Subpart H--Review by the Commission.   Rule  70,
entitled     "Petitions for discretionary review," provides 
in part:

     Any person adversely affected or aggrieved by a Judge's
     decision  or  order  may  file  with  the  Commission a
     petition for discretionary review within 30  days after
     issuance of the decision or order.

29  C.F.R.  �  2700.70(a).   Subpart  H  makes  no provision  for
extensions of time to file PDRs.  Further, the notice attached to
the judge's decision (the "Notice") gave Lakeview  actual  notice
of the 30-day requirement.  It states:

     PETITION FOR DISCRETIONARY REVIEW MUST BE RECEIVED
     BY THE COMMISSION WITHIN THIRTY (30) CALENDAR DAYS AFTER THE

     ISSUANCE DATE OF THE DECISION TO BE CONSIDERED [29 C.F.R.
     � 2700.5(d) and .70(a)].

     Notice at 1 (emphasis in original).  Reference in the Notice
to  other  procedural  rules  relevant to the review process
does not overcome either Rule 70  or  the clear statement in
the Notice of the filing requirements for  PDRs.  See Turner
v. New World Mining, Inc., 14 FMSHRC 76, 77 (January 1992).

     We  note  that   the  Commission  has,  in  appropriate
circumstances, accepted  late-filed  petitions  for  review.
Such  relief  has  been granted pursuant to Fed. R. Civ.  P.
60(b)(1)  &  (6), on the  basis  of  mistake,  inadvertence,
surprise, excusable  neglect  or  other  reasons  justifying
relief.[4]   E.g.,  Turner,  14 FMSHRC at  77-78;  Boone  v.
Rebel Coal Co., 4 FMSHRC 1232, 1233 (July 1982).  Motions to
excuse late filing have been granted  only  where good cause
for the delay has been shown.  McCoy v. Crescent Coal Co., 2
FMSHRC 1202, 1203-04 (June 1980);  Duval Corp.  v.  Donovan,
650 F.2d 1051, 1054 (9th Cir. 1981).  We conclude that, even
if  the  Commission  had,  as  Lakeview  asked,  treated its
request  for an extension of time as a late-filed PDR,  good
cause for such late filing has not been shown.


                                   Joyce A. Doyle, Commissioner

                                   Arlene Holen, Commissioner


**FOOTNOTES**

     [4]:  The  Commission's  Procedural  Rules  incorporate,  as
appropriate, the  Federal  Rules of Civil Procedure.  29 C.F.R. �
2700.1(b) (Federal Rules of  Civil  Procedure apply in absence of
applicable Commission rule).