<DOC>
[DOCID: f:ce2001340.wais]

 
JUSTIN DEES, employed by ROGERS GROUP, INC. 
September 28, 2001
CENT 2001-340-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                       September 28, 2001


SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. CENT 2001-340-M
                                 : A.C. No. 03-00855-05532 A
JUSTIN DEES, employed by         :
  ROGERS GROUP, INC.             :


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


                              ORDER


BY:  Jordan and Beatty, Commissioners

     This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").
On July 6, 2001, the Commission received from Rogers Group, Inc.
("Rogers Group") a request to reopen a penalty assessment that
had become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. � 815(a).  The penalty
assessment proposed a civil penalty for a citation issued
pursuant to section 110(c) of the Mine Act, 30 U.S.C. � 820(c),
to Justin Dees, an employee of Rogers.

     Under section 105(a) of the Mine Act, an operator has 30
days following receipt of the Secretary of Labor's proposed
penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty.  If the operator fails to
notify the Secretary, the proposed penalty assessment is deemed a
final order of the Commission.  30 U.S.C. � 815(a).

     In its request submitted by Ed Elliott, Rogers Group's
Safety Director, Rogers Group states that it is requesting relief
to reopen the penalty assessment in order to provide information
regarding the citation issued to Dees.  Mot.  Elliott states that
on November 8, 2000, Dees received a proposed penalty assessment
of $750.  Id.  He further submits that Rogers Group requested an
informal conference with the Department of Labor's Mine Safety
and Health Administration ("MSHA"), which was subsequently held
on December 15, 2000.  Id.  Elliott states that on February 8,
2001, Dees received the final proposed assessment of $750, and
then contacted Elliott.  Id.  Elliott explains that he
subsequently informed an MSHA District Manager that Rogers Group
wished to contest the citation issued to Dees, but that it could
not until it contested the "original citation" that acted as a
basis for the citation issued to Dees.  Id.  Elliott states that
Rogers Group eventually settled the underlying citation, which
apparently involved a modification of the citation from one
issued under section 104(d)(1) of the Mine Act, 30 U.S.C. �
814(d)(1), to one issued under section 104(a) of the Mine Act, 30
U.S.C. � 814(a).  He states that Rogers Group believes that
"there was no unwarrantable failure on the part of [Dees] to
violate a regulation . . . [which] was borne out in the final
agreement on the original citation."  Id.

     We have held that, in appropriate circumstances, we possess
jurisdiction to reopen uncontested assessments that have become
final under section 105(a).  Jim Walter Res., Inc., 15 FMSHRC
782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994).  We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing
of adequate or good cause for the failure to timely respond, the
case may be reopened and appropriate proceedings on the merits
permitted.  See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).  In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed.
R. Civ. P. 60(b).  See 29 C.F.R.   � 2700.1(b) ("the Commission
and its judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.  In
accordance with Rule 60(b)(1), we previously have afforded a
party relief from a final order of the Commission on the basis of
inadvertence or mistake.  See Gen. Chem. Corp., 18 FMSHRC 704,
705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-
92 (Sept. 1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23
(June 1997).

     On the basis of the present record, we are unable to
evaluate the merits of Rogers Group's position.  In the interest
of justice, we remand the matter for assignment to a judge to
determine whether Rogers Group has met the criteria for relief
under Rule 60(b).  See, e.g., Ogden Constructors, 22 FMSHRC 1
(Jan. 2000) (remanding where the operator mistakenly believed
that proceeding was suspended during MSHA investigation);
Holbrook, emp. by Island Fork Constr., Ltd., 23 FMSHRC 158, 159
(Feb. 2001) (remanding where fellow employee claimed named
individual failed to timely file due to wife's illness).[1]  If
the judge determines that such relief is appropriate, this case
shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.


                              Mary Lu Jordan, Commissioner

                              Robert H. Beatty, Jr., Commissioner


**FOOTNOTES**

     [1]:   In  addition,  it is unclear from the record whether,
under the Commission's Procedural  Rules, 29 C.F.R. �� 2700.3 and
2700.6,  Rogers Group is authorized to  represent  Dees  in  this
case.   Therefore,  as  a  threshold  matter,  the  judge  should
determine  whether  Rogers  Group is authorized to represent him.
See Holbrook, 23 FMSHRC at 159 n.1.


Chairman Verheggen and Commissioner Riley, concurring in result:

     We would grant Dees' request for relief because the
Secretary does not oppose it, Dees has set forth (through Rogers
Group's Safety Director Ed Elliott) sufficiently compelling
circumstances to warrant relief, and no other circumstances exist
that would render a grant of relief here problematic.  However,
in order to avoid the effect of an evenly divided decision, we
join our colleagues in remanding the case.  See Pa. Elec. Co., 12
FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969
F.2d 1501 (3d Cir. 1992) (providing that the effect of a split
Commission decision is to leave standing the disposition from
which relief has been sought).


                              Theodore F. Verheggen, Chairman

                              James C. Riley, Commissioner


Distribution

Ed Elliott, Safety Director
Rogers Group, Inc.
P.O. Box 849
Bloomington, IN 47402

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006