<DOC>
[DOCID: f:mountain.wais]

 
MOUNTAIN TOP TRUCKING COMPANY, MAYES TRUCKING COMPANY, INC.
April 17, 1996
KENT 95-604-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                        WASHINGTON, D.C. 20006


                            April 17, 1996

SECRETARY OF LABOR,                  :
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION (MSHA)              :
  On behalf of LONNIE BOWLING,       :
  EVERETT DARRELL BALL,              :   Docket Nos. KENT 95-604-D
  WALTER JACKSON, AND                :               KENT 95-605-D
  DAVID FAGAN                        :               KENT 95-613-D
                                     :               KENT 95-615-D
                  v.                 :
                                     :
MOUNTAIN TOP TRUCKING COMPANY,       :
  MAYES TRUCKING COMPANY, INC.,      :
  ELMO MAYES, WILLIAM DAVID RILEY,   :
  AND ANTHONY CURTIS MAYES           :


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


                                ORDER

BY THE COMMISSION:

     By order dated April 8, 1996, Administrative Law Judge
Jerold Feldman certified for interlocutory review by the
Commission, under Commission Rule 76(a)(1)(i), 29 C.F.R.
§ 2700.76(a)(1)(i) (1995), his denial of the entry of
appearance by private counsel for the individual complainants
in the instant proceeding.  We conclude that the judge's ruling
involves a controlling issue of law and that immediate review
may materially advance the final disposition of the proceeding.
Thus, we hereby grant review, pursuant to Commission Rule
76(a)(2), 29 C.F.R. § 2700.76(a)(2).  We waive the filing of
briefs from the parties otherwise required by the Commission's
rules in interlocutory review proceedings.  See Commission
Rule 76(e), 29 C.F.R. § 2700.76(c).

     The judge's Order Denying Notice of Appearance, also dated
April 8, 1996, denied the entry of appearance by private counsel
representing individual miner complainants in a discrimination
proceeding brought by the Secretary of Labor, pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(2) (1994).  Upon consideration of
the judge's order, we reverse. The right of a miner complainant
to participate in a discrimination proceeding brought by the
Secretary is unequivocal.  Section 105(c)(2) provides that a
complaining miner may present evidence.  Commission Rule 4(a)
reiterates that statutory right and accords the complaining miner
party status in a section 105(c)(2) proceeding.  29 C.F.R. §
2700.4(a).  Commission Rule 3(c) further provides for entry of
appearance by the representative of a party.  29 C.F.R. § 2700.3(c).

     Moreover, the Commission and a United States court of
appeals have approved the use of private attorneys in section
105(c)(2) actions.  Eastern Assoc. Coal v. FMSHRC, 813 F.2d
639, 643 (4th Cir. 1987) ("The complainant has . . . chosen to
retain private counsel."), aff'g Secretary on behalf of Ribel v.
Eastern Assoc. Coal Corp., 7 FMSHRC 2015, 2021 (December
1985) (miner retained private counsel); Secretary on behalf of
Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 1327, 1339 n.6
(August 1987) ("Individual complainants remain free to
retain private counsel at any time.").

     Accordingly, the judge's denial of the entry of appearance
by the attorney representing the individual miners is reversed
and the judge shall accept his entry of appearance.


                                 ____________________________
                                 Mary Lu Jordan, Chairman

                                 ____________________________
                                 Joyce A. Doyle,
                                 Commissioner

                                 ____________________________
                                 Arlene Holen, Commissioner

                                 _____________________________
                                 Marc Lincoln Marks,
                                 Commissioner

                                 _____________________________
                                 James C. Riley, Commissioner