Faith Coal Co.

Plain-English summary

Faith Coal failed to file its opening brief after the Commission granted discretionary review. After receiving a show-cause order, the company explained that it was a pro se operator and did not know that a written designation was required. The Commission excused the late response, accepted Faith's petition as its brief, denied the Secretary's motion to dismiss, and allowed the appeal to proceed.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.75; 29 C.F.R. § 2700.75(e)
• Outcome: Faith's late response was accepted, its petition was designated as its brief, and the motion to dismiss was denied.
• Key point: The Commission may excuse a missed briefing requirement when a pro se operator promptly explains the omission and no unfairness results.

Full text (FMSHRC public release)

[DOCID: f:faith2.wais]

FAITH COAL CO.
May 3, 1996
SE 91-97

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET NW, 6TH FLOOR

                   WASHINGTON, D.C.  20006


                         May 3, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. SE 91-97, etc.
:
FAITH COAL CO. :

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

                            ORDER

BY THE COMMISSION:

 These civil penalty proceedings arise under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine
Act"). On August 28, 1995, the Commission granted the cross-
petitions for discretionary review filed by Faith Coal Company
("Faith") and the Secretary of Labor. Pursuant to Commission
Procedural Rule 75, 29 C.F.R. � 2700.75 (1995),[1] Faith's opening
brief was due to be filed by September 27, 1995. Faith,
however, failed to file its brief.

 On January 26, 1996, the Secretary filed a Motion to Dismiss

for Want of Prosecution pursuant to Commission Procedural Rule 75(e), 29
C.F.R. � 2700.75(e).[2] The Secretary states that Faith failed
to file its opening brief or designate its petition as such.
Mot. at 1. The Secretary notes that he has not been able to reach Faith
by telephone, facsimile, or mail. Id. at 2 & n.2. He asserts that no
injustice would result from the dismissal of Faith's petition. Id.
at 2-3. The Secretary requests that the petition be dismissed with
prejudice. Id. at 3. Faith has not filed an opposition to the motion.

 On March 14, 1996, the Commission issued an order directing

Faith to show cause within 14 days why its appeal should not be
dismissed. The file contains the return receipt showing that Faith
received the show cause order on April 1, 1996, 18 days after its
issuance. On April 8, 1996, Faith filed a response to the show cause
order stating that, as a pro se operator, it was unaware that a
written statement was required to designate the petition as its brief.
Faith requests that the Commission accept its late correspondence as
its motion to designate the petition as such. Faith also states that it
opposes the Secretary's motion to dismiss because it "should not be
penalized nor denied the privilege of due process of appeal because of
financial poverty and lack of knowledge" of the Commission's
rules. The Secretary has not filed an opposition to Faith's motion to
designate the petition as its brief.

 Whether the Commission vacates its direction for review due

to a petitioner's failure to file an opening brief in accordance with
Rule 75 is a matter within the Commission's discretion. See 29
C.F.R. � 2700.75(e). Faith has proffered a reason for its failure
to file its brief, i.e., as a pro se operator, Faith was unaware of
the filing requirement. Under the circumstances, we excuse Faith's
late-filed response to the show cause order and grant its motion to
designate the petition as its brief.

 For the foregoing reasons, we deny the Secretary's motion.


                          Mary Lu Jordan, Chairman

                          Arlene Holen, Commissioner

                          Marc Lincoln Marks, Commissioner

                          James C. Riley, Commissioner

FOOTNOTES

 [1]:  Rule 75 provides, in part:

           (a)   Time  to  file.   (1)  Opening and
      response  briefs.  Within 30 days  after  the
      Commission     grants    a    petition    for
      discretionary review,  the  petitioner  shall
      file  his  opening  brief.  If the petitioner
      desires, he may notify the Commission and all
      other parties within  the  30-day period that
      his  petition  and any supporting  memorandum
      are to constitute his brief. . . .

 [2]:  Rule 75(e) provides:

           Consequences  of petitioner's failure to
      file brief.  If a petitioner  fails to timely
      file a brief or to designate the  petition as
      his  brief, the direction for review  may  be
      vacated.

Distribution:

Lonnie Stockwell
Faith Coal Company
Route 1, Box 196
Palmer, TN 37365
(Certified Mail)

Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
(Certified Mail)