Rostosky Coal Company

Plain-English summary

Rostosky Coal Company, through co-owner Joseph Rostosky, sought discretionary review of an ALJ decision affirming a citation and an order and assessing a $2,000 penalty. The petition arrived one day after the 30-day filing deadline and did not meet the Commission's formatting requirements. The Commission declined to dismiss it solely because it was one day late, given Rostosky's unrepresented status, and allowed a limited opportunity to amend the petition to identify the issues for review. Two Commissioners would have denied the petition as untimely because it contained no explanation for the late filing and no stated basis for review.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2)(A), and 29 C.F.R. § 2700.70
• Outcome: Limited review was granted so Rostosky could amend the late and deficient petition, with deadlines for the amended petition and any opposition.
• Key point: The Commission may give an unrepresented party a limited chance to correct a late or procedurally deficient review petition when the delay is only one day.

Full text (FMSHRC public release)

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
ROSTOSKY COAL COMPANY :

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).

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    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.

   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.

                                             2
     

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   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




   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.

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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

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