<DOC>
[DOCID: f:wst200077.wais]

 
OGDEN CONSTRUCTORS, INC.
January 12, 2000
WEST 2000-77-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        January 12, 2000

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket No. WEST 2000-77-M
                                : A.C. No. 04-05373-05501
OGDEN CONSTRUCTORS, INC.        :



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


                              ORDER

BY: Jordan, Chairman; Riley, 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 December 10, 1999, the Commission received from Ogden
Constructors, Inc. ("Ogden") 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 Ogden.

     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, Ogden asserts that its failure to file a
hearing request to contest the proposed penalty for Citation No.
7966771 was due to its mistaken belief  that no action was
required because the citation was the subject of an ongoing
investigation by the Department of Labor's Mine Safety and Health
Administration ("MSHA").  Mot. at 1.  It explains that shortly
after receiving the penalty proposal associated with the citation
on August 18, 1999, it was contacted by an MSHA Special
Investigator, who informed Ogden that he would be investigating
the citation.  Id.  Ogden states that it believed that the
actions against the company and any individuals were being
investigated at the same time and that it requested, by letter
dated September 7, that MSHA delay final disposition of the case
pending the results of the investigation.  Id.  It submits that
it received a letter dated October 15, 1999, from MSHA stating
that the enforcement actions against the company and individuals
had been investigated separately and that penalties had been
proposed separately.  Id.  Ogden states that it received the
letter after the time for contesting the citation had expired.
Id.  Accordingly, it requests that the Commission reopen the case
so that it may contest Citation No. 7966771.[1]  Id.  Ogden
attached to its letter the October 15 letter from MSHA.

     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., Jim Walters Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co., Inc., 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 Preparation
Services, 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, mistake, or excusable neglect.  See National Lime &
Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co.,
19 FMSHRC 1613, 1614-15 (Oct. 1997).


**FOOTNOTES**

     [1] Ogden  mistakenly  identified  the  case  involving
Citation No. 7966771 as identified by A.C. No. 42-02242-05501,
rather than A.C. No. 04-05373-05501.


     On the basis of the present record, we are unable to
evaluate the merits of Ogden's position.[2]  In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Ogden has met the criteria for relief under
Rule 60(b).  See Dean Heyward Addison, 19 FMSHRC 681, 682-83
(April 1997) (remanding when proposed penalty became final
because that individual mistakenly believed that a hearing on the
individual penalty would be automatically conducted with the
hearing on the penalty proposed against the operator); M&Y
Services, Inc., 19 FMSHRC 670, 671 (April 1997) (remanding when
proposed penalty became final because operator was unfamiliar
with the procedures for requesting hearing); see also Rivco
Dredging Corp., 10 FMSHRC 624, 625 (May 1988) (remanding when
operator filed notice of contest but was unaware that contest of
proposed penalties was required).  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
                              
                              James C. Riley, Commissioner
                              
                              Robert H. Beatty, Commissioner


Distribution

Conrad Weidenkeller
Regional Safety Manager
Ogden Constructors
2725 Jefferson St., Suite 12
Carlsbad, CA 92008

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


**FOOTNOTES**

     [2] In view of the fact that the Secretary does not oppose
Ogden's motion to reopen this matter for a hearing on the merits,
Commissioners Marks and Verheggen conclude that the motion should
be granted.