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[DOCID: f:we2001618c.wais]

 
MISSION VALLEY ROCK COMPANY
WEST 2001-618-M
April 30, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                         April 30, 2002


SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                : Docket No. WEST 2001-618-M
          v.                    : A.C. No. 04-01859-05547
                                :
MISSION VALLEY ROCK COMPANY     :


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 September 28, 2001, the Commission received from 
Mission Valley Rock Company ("Mission Valley") 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 its request, Mission Valley, apparently proceeding pro
se, contends that it sent in a proposed assessment form ("green
card") requesting a hearing on the proposed penalties regarding
Citation Nos. 07998009 and 07998011. Mot. It also asserts that
it sent in a check for those proposed penalties that were not 
in dispute.  Id.  Mission Valley did not indicate when or to
whom it sent the green card or the check.  Id.  It contends 
that only the check but not the green card "reached its proper
destination." Id.  It further asserts that it subsequently 
received a letter from the Civil Penalty Compliance Office of 
the Department of Labor's Mine Safety and Health Administration 
("MSHA") stating that it had failed to fully pay the penalty
assessments.  Id. Mission Valley did not attach any documents 
to its request in support of its position.

     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, however, we are unable
to evaluate the merits of Mission Valley's position.  In the
interest of justice, we remand the matter for assignment to a
judge to determine whether relief from the final order is
appropriate.  See H & D Coal Co., 23 FMSHRC 382, 382-84 (Apr.
2001) (remanding to a judge where operator alleged that it sent
a hearing request to MSHA, but MSHA did not receive the 
request); Missoula County Rd. Dep't, 23 FMSHRC 369, 369-72 
(Apr. 2001) (same).  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 Mission Valley's request for relief. First, 
I note that the Secretary does not oppose the operator's motion.
I also note that 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)).  Nor do I find any
other circumstances that would render a grant of relief here
problematic.  Under these circumstances, I thus fail to see the
need for or utility of remanding this matter.


                           Theodore F. Verheggen, Chairman


Distribution

M. J. Marchetti, Safety Manager
Mission Valley Rock Company
7999 Athenour Way
Sunol, CA 94586

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