Original Sixteen to One Mine, Inc.

Plain-English summary

Original Sixteen to One Mine sought review of an Administrative Law Judge's civil-penalty decision, but filed its petition eight days after the 30-day deadline. The Commission majority found good cause based on the operator's lack of familiarity with Commission procedure and related circumstances, and granted the petition for the limited purpose of allowing an amended filing that complied with the governing requirements. The operator was given 20 days to file the amended petition, and the Secretary could respond within 10 days. Commissioner Jordan dissented, concluding that the operator had not shown good cause for the late filing.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.5(d), 2700.69(b), 2700.70(a), and 2700.70(d); 30 U.S.C. § 823(d)
• Outcome: The Commission granted limited relief from the late-filing and pleading defects so Original Sixteen could amend its review petition.
• Key point: The Commission may allow a pro se operator to amend a late petition when the majority finds good cause, but the decision does not resolve the underlying citation or penalty issues.

Full text (FMSHRC public release)

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).

                                    23 FMSHRC 1217

Page 2

    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).

                                     23 FMSHRC 1218

Page 3

    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




                                  23 FMSHRC 1219

Page 4

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




                                   23 FMSHRC 1220

Page 5

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

                                 23 FMSHRC 1221