<DOC>
[DOCID: f:ws200063-2.wais]
ORIGINAL SIXTEEN to ONE MINE, INC.
November 28, 2001
WEST 2000-63-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
November 28, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 2000-63-M
: 2000-78-M
ORIGINAL SIXTEEN : 2000-195-M
to ONE MINE, INC. :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
Commissioners
DIRECTION FOR REVIEW AND ORDER
BY: Verheggen, Chairman; Riley 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 November 26, 2001, the Commission received via
facsimile from Original Sixteen to One Mine, Inc. ("Original
Sixteen") a letter challenging the decision issued on October 19,
2001 by Administrative Law Judge Michael Zielinski. In his
decision, Judge Zielinski in part vacated and/or dismissed,
affirmed, and approved the settlement of various citations
alleging violations of mandatory safety standards. 23 FMSHRC
1158 (Oct. 2001) (ALJ).
The judge's jurisdiction in this matter terminated when
his decision was issued on October 19, 2001. 29 C.F.R.
� 2700.69(b). 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); 29 C.F.R. � 2700.70(a).
In accordance with the Commission's procedural rules, the
filing of a petition for discretionary review is effective
upon receipt, and may be made by facsimile. 29 C.F.R.
�� 2700.5(d), 2700.70(a). Rule 70(d) 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). If
the Commission does not direct review within 40 days of a
decision's issuance, it becomes a final decision of the
Commission. 30 U.S.C. � 823(d)(1).
In its letter, Original Sixteen "petitions for review" of
the judge's decision, sets forth general grounds for requesting
the review, and requests an extension of time to file necessary
documentation. Letter from Original Sixteen to Commission of
11/26/01, at 1- 2. Original Sixteen explains that this case
involves its first hearing and appeal and that it is unfamiliar
with Commission procedure; that personnel instrumental in the
preparation of appropriate documentation, including its president
and corporate manager, have been unavailable after issuance of
the judge's decision; and that its response time has been
decreased due to delays in mail service occurring after September
11, 2001. We construe Original Sixteen's letter as a request to
accept its late-filed petition for discretionary review. See
generally Kelley Trucking Co., 8 FMSHRC 1867, 1868 (Dec. 1986)
(construing request for hearing as a request for relief from
final order incorporating by implication a late-filed petition).
Original Sixteen filed its petition with the Commission on
November 26, 2001, eight days past the 30-day deadline, but
within the 40-day time period during which the Commission retains
jurisdiction. Its 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. Rostosky Coal Co., 21 FMSHRC
1071, 1072 (Oct. 1999), citing Marin v. Asarco, Inc., 14 FMSHRC
1269, 1273 (Aug. 1992); Dykhoff, Jr. v. U.S. Borax Inc., 21
FMSHRC 1279, 1280 (Dec. 1999). 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 conclude that Original Sixteen, which is not represented by
counsel, has shown good cause for its late filing. See generally
Dykhoff, 21 FMSHRC at 1280 (reconsidering previous order denying
late-filed petition where pro se miner provided explanation of
unfamiliarity with Commission procedure in motion for
reconsideration).
Additionally, in the interests of justice, we conclude that
Original Sixteen be afforded the opportunity to conform its
petition to the requirements of the Mine Act and our Procedural
Rules. See Rostosky, 21 FMSHRC at 1072-73. Therefore, upon
consideration of Original Sixteen's petition, it is hereby
granted for the limited purpose of affording Original Sixteen an
opportunity to amend its 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).
Original Sixteen must file any amended petition with the
Commission, with service upon the Secretary of Labor, within 20
days. The Secretary may file an opposition to the amended
petition within 10 days after service.
Theodore F. Verheggen, Chairman
James C. Riley, Commissioner
Robert H. Beatty, Jr., Commissioner
Commissioner Jordan, dissenting:
Original Sixteen has failed to show good cause as to why its
petition for discretionary review was filed eight days past the
30-day statutory time limit. Consequently, I would deny the
petition as untimely.
Original Sixteen claims that slow mail delivery "due to the
events of September 11, 2001" provided "short notice of response
time." However, the Commission's docket office has verified that
the October 19 decision was received by the operator on October
26, putting it on notice as of that date that any petition would
have to be received at the Commission by the November 19
deadline. See Duval Corp. v. Donovan, 650 F.2d 1051 (9th Cir.
1981) (upholding Commission's denial of petition for
reconsideration of dismissal of petition received 31 days after
issue of the ALJ's decision when operator argued that it did not
receive decision until six days after it was mailed).
Original Sixteen also claims that its "President was out of
town on business . . . shortly after receiving the decision."
Similarly, it states that its corporate manager, who, it asserts,
played an important role in preparation of MSHA-related
paperwork, was out of the office due to surgery. These vague
allegations, even if assumed to be true, do not, in my view
provide good cause as to why Original Sixteen was unable to
comply with the 30-day statutory time limit. Indeed, in neither
case are we provided with information about the length of the
absence; we do not know whether the company officials were away
for one day or one month.
Although I am mindful of the difficulty encountered by pro
se litigants, good cause must still be shown when a petitioner
seeks review of a judge's decision beyond the 30-day statutory
time limit. In this case I would, for the foregoing reasons,
deny the petition.
Mary Lu Jordan, Commissioner
Distribution
Michael M. Miller, President
Original Sixteen to One Mine, Inc.
P.O. Box 1621
Alleghany, CA 95910
Christopher B. Wilkinson, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, CA 94105
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041