<DOC>
[DOCID: f:klineflt.wais]
GARY J. KLINEFELTER
May 5, 1997
PENN 97-114
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 5, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 97-114
: A.C. No. 36-05018-04109 A
GARY J. KLINEFELTER :
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").
On March 25, 1997, the Commission received from
Gary J. Klinefelter ("Klinefelter") 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).
It has been administratively determined that the Secretary of
Labor does not oppose the motion for relief filed by Klinefelter.
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).
Klinefelter asserts that he did not timely submit his
request for a hearing ("Green Card") to the Department of Labor
's Mine Safety and Health Administration ("MSHA") because he
never received a copy of the proposed penalty assessment in the
period following its issuance in December 1996. Klinefelter
asserts that he only received a copy of the proposed assessment
on March 19, 1997, at the request of his attorney, after he
received a letter from MSHA's Civil Penalty Compliance Office,
dated February 26, 1997, indicating that payment of a civil
penalty was delinquent. A copy of the February 26, 1997 letter
is attached to Klinefelter's motion as Exhibit C. The evidence
indicates that the proposed assessment was sent by MSHA to
Klinefelter at his correct home address by certified mail, and
attempts were made to serve him with the proposed assessment in
this manner on at least three occasions. There is no evidence as
to why service by certified mail was not successful, and
Klinefelter did not receive the proposed penalty assessment.
Klinefelter requests the Commission to reopen this matter.
The Commission has held that, in appropriate circumstances
and pursuant to Fed. R. Civ. P. 60(b), it possesses jurisdiction
to reopen uncontested assessments that have become final under
section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-
89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(September 1994).
The Commission has 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 Preparation Services, Inc., 17 FMSHRC 1529, 1530
(September 1995). In accordance with Rule 60(b)(1), the
Commission has previously afforded parties relief from a final
order of the Commission on the basis of inadvertence or mistake.
See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996);
Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September
1996).
On the basis of the present record, we are unable to
evaluate the merits of Klinefelter's position.[1] In the
interest of justice, we remand the matter for assignment to a
judge to determine whether Klinefelter 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.
**FOOTNOTES**
[1]: In view of the fact that the Secretary does not oppose
Klinefelter's motion to reopen this matter for a hearing on the
merits, Commissioner Marks concludes that the motion should be
granted.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen