Rostosky Coal Company

Plain-English summary

Rostosky Coal Company sought review of an ALJ decision that affirmed a citation and order, assessed a $2,000 penalty, and directed dismissal after payment. The Commission accepted the petition despite its one-day lateness and allowed Rostosky 20 days to amend it because the filing did not meet the Commission's required format. Rostosky filed no amended petition by the deadline. The Commission therefore vacated its direction for review.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2)(A)(i), 30 U.S.C. § 823(d)(2)(A)(iii), 29 C.F.R. § 2700.70(a), and 29 C.F.R. § 2700.70(d)
• Outcome: The Commission's direction for review was vacated after Rostosky failed to file the required amended petition.
• Key point: A party given leave to cure a defective petition must comply with the Commission's amendment order to preserve discretionary review.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                   December 21, 1999

SECRETARY OF LABOR :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 99-73
:
ROSTOSKY COAL COMPANY :
:

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

                                         ORDER

BY THE COMMISSION:

   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. 1999)
(ALJ). 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.

    The Commission received Rostosky’s petition for filing on October 5, 1999, one day past

the 30-day deadline. See 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). His petition also
failed to meet the requirements of Rule 70(d) of the Commission’s Procedural Rules.1 However,
since Rostosky was not represented by counsel, the Commission ruled that the petition should
not be dismissed because it was one day late. 21 FMSHRC 1071, 1072 (Oct. 1999).

   1
      Rule 70(d) of the Commission’s Procedural Rules 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).

Page 2

   In addition, the Commission concluded that Rostosky should be afforded the opportunity

to conform his petition to the requirements of the Mine Act and the Commission’s Procedural
Rules. Id. The petition was 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 Rule 70(d), 29 C.F.R. § 2700.70(d). Id.

   The Commission ordered Rostosky to file any amended petition within 20 days, making it

due on or before November 2, 1999. Id. at 1073. The Commission did not receive any further
submissions from Rostosky.

   Rostosky did not comply with the Commission’s order. Accordingly the direction for

review is vacated.

                                               _________________________________
                                               Mary Lu Jordan, Chairman




                                               _________________________________
                                               Marc Lincoln Marks, Commissioner




                                               __________________________________
                                               James C. Riley, Commissioner




                                               __________________________________
                                               Theodore F. Verheggen, Commissioner




                                               __________________________________
                                               Robert H. Beatty, Jr., Commissioner

Page 3

Distribution

Joseph Rostosky
Rostosky Coal Company
R.D. No. 3, Box 112
Monongahela, PA 15063
(Certified mail)

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