<DOC>
[DOCID: f:wev2000118c.wais]

 
LANDON HOLBROOK, employed by ISLAND FORK CONSTRUCTION, LTD.
WEVA 2000-118
February 16, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        February 16, 2001

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. WEVA 2000-118
                                 : A.C. No. 46-08102-03588 A
LANDON HOLBROOK, employed by     :
  ISLAND FORK CONSTRUCTION, LTD. :



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


                              ORDER

BY: Jordan, Chairman; Beatty, Commissioner

     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 29, 2000, the Commission received from Pamela Taylor,
an employee of Island Fork Construction, Ltd. ("Island Fork"), 
on behalf of Landon Holbrook, 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 Secretary of Labor does not oppose the motion for relief 
filed by Mr. Holbrook.

     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 her letter, Ms. Taylor states that she is in charge of
payroll and human resources at Island Fork.  Mot.  She asserts
that Holbrook has been busy caring for his ill wife, who is
suffering from cancer, and their two-year old daughter.  Id.  She
contends that the medical costs of his wife's cancer treatment is
a financial burden on Mr. Holbrook, who does not have insurance.
Id.  She explains that the employees of Island Fork have
collected donations to assist Mr. Holbrook in paying his wife's
medical costs and this proposed assessment, but that they could
collect only $500 of the $1,900 assessed for three violations.
Id.  Ms. Taylor requests that the proposed assessment be reduced
to reflect the amount collected as payment in full.  Id.

     We have held that, in appropriate circumstances and pursuant
to Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen
uncontested assessments that have become final by operation of
section 105(a).  See, e.g., Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994); Jim Walter Res., Inc., 15 FMSHRC 782,
786-89 (May 1993).  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 accordance with Rule 60(b)(1), we have
previously afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake.  See Nat'l
Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal
Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining Co.,
19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (Sept. 1996).

     On the basis of the present record, we are unable to
evaluate the merits of Mr. Holbrook's position.  In the interest
of justice, we remand the matter for assignment to a judge to
determine whether Mr. Holbrook has met the criteria for relief
under Rule 60(b).  See, e.g., Wolf Creek Sand & Gravel, 21 FMSHRC
1, 1-2, 3 (Jan. 1999) (remanding where the operator claimed that
it failed to timely file due to its secretary's absence as a
result of her husband's health problems); Miller employed by Mid-
Wis. Crushing Co., 16 FMSHRC 2384, 2385 (Dec. 1994) (remanding
where the movant claimed he failed to timely file his hearing
request due to his secretary's absence because of her mother's
terminal 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, Chairman
                              
                              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, Ms. Taylor is authorized to  represent  Holbrook  in this
case.   Therefore,  as  a  threshold  matter,  the  judge  should
determine whether Ms. Taylor is authorized to represent him.
Commissioners Riley and Verheggen, concurring in result:

     We would grant the operator's request for relief here,
because the Secretary does not oppose and the operator has
offered a sufficient explanation for its failure to timely
respond.  However, in order to avoid the effect of an evenly
divided decision, we join in remanding the case to allow the
judge to consider whether the operator has met the criteria for
relief under Rule 60(b).  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 disposition from which appeal has
been sought).


                              James C. Riley, Commissioner
                              
                              Theodore F. Verheggen, Commissioner


Distribution

Landon Holbrook
 c/o Pamela M. Taylor
Island Fork Construction Ltd.
29501 Mayo Trail
Catlettsburg, KY 41129

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