[DOCID: f:cn2002192.wais] WEBSTER SCALE, INC. CENT 2002-192-M May 21, 2002 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 May 21, 2002 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. CENT 2002-192-M : A.C. No. 39-01447-05504 WEBSTER SCALE, INC. : BEFORE: Verheggen, Chairman; Jordan 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 April 24, 2002, the Commission received from Webster Scale, Inc. ("Webster") 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). 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 the request, John Shoemaker, Vice President of Sales at Webster, seeks relief for a proposed penalty assessment (A.C. No. 39-01447-05504) totaling $1,563 for five alleged violations. Mot. The operator asserts that, due to employee changes, it failed to timely submit a request for a hearing on the proposed penalty assessment to the Department of Labor's Mine Safety and Health Administration ("MSHA"). Id. It contends that the employee responsible for handling MSHA matters is no longer with the company and requests that the Commission reopen the proposed assessment. Id. Attached to its request is a copy of the proposed penalty assessment. 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," Rule 60(b) of the Federal Rules of Civil Procedure. 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). However, where an operator has failed to timely submit a hearing request due to internal mishandling, the Commission has remanded the matter to a judge for further consideration. See, e.g., E. Ark. Contractors, Inc., 21 FMSHRC 981, 983 (Sept. 1999) (remanding where operator failed to timely file hearing request due to a change in personnel which resulted in mishandling of the proposed penalty assessment). On the basis of the present record, we are unable to evaluate the merits of Webster's position. In the interest of justice, we remand the matter for assignment to a judge to determine whether Webster has met the criteria for relief under Rule 60(b). 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 Chairman Verheggen, dissenting: I would grant Webster Scale's request for relief and reopen these penalty assessments. Webster Scale has provided a reasonable explanation for its failure to timely request a hearing which I find qualifies as "inadvertence" or "mistake" under Rule 60(b) of the Federal Rules of Civil Procedure. I also note that the Secretary does not oppose the operator's motion. In addition, the operator is proceeding pro se, and the Commission 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)). Under these circumstances, and because no other circumstances exist that would render a grant of relief here problematic, I fail to see the need or utility for remanding this matter to determine if relief would be appropriate. I therefore dissent. Theodore F. Verheggen, Chairman Distribution John Shoemaker, Vice President of Sales Webster Scale, Inc. P.O. Box 127 North Highway 25 Webster, SD 57274 W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 1100 Wilson Blvd., 22nd Floor West Arlington, VA 22209 Chief Administrative Law Judge David Barbour Federal Mine Safety & Health Review Commission 1730 K Street, N.W., Suite 600 Washington, D.C. 20006