[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