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[DOCID: f:pn9973co.wais]

 
ROSTOSKY COAL COMPANY
October 13, 1999
PENN 99-73


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET N.W., 6TH FLOOR

                    WASHINGTON,  D.C.  20006


                        October 13, 1999

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. PENN 99-73
                                 : A.C. No. 36-01555-03507
                                 :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners


                 DIRECTION FOR REVIEW AND ORDER

BY: Marks, Verheggen and Beatty, Commissioners

     This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act").  On October 5, 1999, the Commission's Office of
Administrative Law Judges received a petition for discretionary
review from Joseph Rostosky challenging a decision issued by
Administrative Law Judge Jacqueline Bulluck against Rostosky Coal
Company ("Rostosky") on September 3, 1999.  21 FMSHRC 1017 (Sept.
3, 1999) (ALJ).  Rostosky is not represented by counsel but by
its co-owner, Joseph Rostosky.  In her decision, Judge Bulluck
affirmed a citation and an order issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA"), ordered
Rostosky to pay a civil penalty of $2,000, and directed that the
case be dismissed upon receipt of payment.  Id. at 1023.

     Under the Mine Act and the Commission's procedural rules,
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)(A); 29 C.F.R. � 2700.70(a).  Rule 70(d) of the
Commission's Procedural Rules also requires that in a petition
for discretionary review, "[e]ach issue shall be separately
numbered and plainly and concisely stated, and shall be supported
by detailed citations to the record, when assignments of error
are based on the record, and by statutes, regulations, or other
principal authorities relied upon."  29 C.F.R. � 2700.70(d); see
also 30 U.S.C. � 823(d)(2)(A)(iii).

     The Commission received Rostosky's petition for filing on
October 5, 1999, 1 day past the 30-day deadline.[1]  His petition
also fails to meet the requirements of Rule 70(d).  The
Commission, however, has always held the pleadings of pro se
litigants to less stringent standards than pleadings drafted by
attorneys.  Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug.
1992) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).  The
Commission has also entertained late-filed petitions for
discretionary review where good cause has been shown.  See, e.g.,
McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1204 (June 1980)
(finding good cause where counsel for previously pro se
complainant only obtained judge's decision 10 days prior to
deadline for filing petition, and mailed petition on 30th day).
In keeping with these principles, we believe that since Rostosky
was not represented by counsel, we should not dismiss this
petition because it was 1 day late.[2]

     Additionally, in the interests of justice, we conclude that
Rostosky be afforded the opportunity to conform his petition to
the requirements of the Mine Act and our Procedural Rules.
Therefore, upon consideration of Rostosky's petition, it is
hereby granted for the limited purpose of affording Rostosky an
opportunity to amend his petition to comply with the requirements
of section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C.
� 823(d)(2)(A)(iii), and Commission Procedural Rule 70(d), 29
C.F.R. � 2700.70(d).  Any such amended petition must include a
statement of issues identifying those portions of the judge's
decision that he believes were wrongly decided.


**FOOTNOTES**

     [1]   Although, Rostosky's petition was mailed on October 1,
1999, within the 30-day  deadline  for filing, it was received by
the Commission's Office of Administrative  Law Judges on the 31st
day, October 5.  Rule 70(a) of the Commission's  Procedural Rules
specifies  that "[f]iling of a petition for discretionary  review
. . . is effective upon receipt."  29 C.F.R. � 2700.70(a).

     [2]   In  Dykhoff  v.  U.S. Borax Inc., 21 FMSHRC 976 (Sept.
1999), the Commission denied  a petition for discretionary review
as untimely filed.  Commissioners Marks and Beatty dissented from
the majority's order dismissing  the  pro  se miner's petition on
timeliness  grounds.  Id. at 979.  Commissioner  Verheggen  notes
that he would  have denied Dykhoff's petition notwithstanding its
untimeliness because  it was based on facts that did not serve as
the basis for his original  complaint and attempted to advance an
alternative theory of discrimination not raised before the judge.
See Beech Fork Processing, Inc.,  14  FMSHRC  1316, 1319-21 (Aug.
1992).  To the extent that Dykhoff could be read to stand for the
proposition that untimely petitions for discretionary review made
by  pro se litigants be routinely denied, Commissioner  Verheggen
rejects such a reading.


     Rostosky must file any amended petition with the Commission,
with service upon the Secretary, within 20 days.  The Secretary
may file an opposition to the amended petition within 10 days
after service.[3]


                              Mark Lincoln Marks, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner


Distribution

Joseph Rostosky
Rostosky Coal Company
R.D. No. 3, Box 112
Monongahela, PA 15063

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [3]    Chairman Jordan and Commissioner Riley would deny the
petition for  review as untimely, since it was received after the
thirty-day deadline  and  included  no  explanation  for the late
filing.   Administrative  law  judge  decisions  sent  to parties
routinely include a notice that a party seeking review must  make
sure  that  his  or  her  petition  for review is received by the
Commission within thirty days after the  date of  issuance of the
administrative law judge's decision.

     They also are mindful of the difficulty  encountered  by the
pro se litigant, and note that, upon reasonable explanation, they
have  shown  flexibility  towards late-filed petitions.  However,
they also note that Rostosky  offers  no explanation for his late
filing, nor states any basis for appellate  review in his letter.
They  believe  that  granting  even  limited  review  under  such
circumstances  makes  a  nullity  of the Commission's  procedural
rules.