. MISSOULA COUNTY ROAD DEPARTMENT April 17, 2001 WEST 2001-124-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 April 17, 2001 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. WEST 2001-124-M : A.C. No. 24-01893-05510 MISSOULA COUNTY ROAD : DEPARTMENT : 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 December 18, 2000, the Commission received from Missoula County Road Department ("Missoula County") 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 Missoula County. 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 a letter submitted by Missoula County's Director of Public Works, Gregory Robertson, Missoula County contends that on August 29, 2000, it received a proposed assessment from the Department of Labor's Mine Safety and Health Administration ("MSHA") for a violation that was issued before Mr. Robertson began working at Missoula County. Mot. at 1. Missoula County claims that on August 30, it sent a letter contesting the proposed assessment. Id. It alleges that, on December 4, it received a notice of "fine and late fee" from MSHA dated November 8. Id. Robertson claims that he called MSHA and spoke with Tammy Nelson, who informed him that the contest letter had not been received and instructed him to send a copy of the letter by facsimile. Id. Missoula County contends that, on December 12, it received a letter from MSHA stating that its contest letter was received too late and could not be considered. Id. Missoula County requests that the Commission grant its request for relief and reopen the matter so that it may proceed to a hearing on the merits. Id. at 2. Attached to its request is a copy of the August 30 letter allegedly sent by Missoula County to MSHA. Attach. 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, we are unable to evaluate the merits of Missoula County'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 Ahern & Assocs., Inc., 23 FMSHRC 121, 122-23 (Feb. 2001) (remanding to a judge where movant claimed that it timely filed hearing request, which MSHA never received); BR&D Enters., 22 FMSHRC 479, 480-81 (Apr. 2000) (remanding to a judge where operator alleged that it timely submitted hearing request by certified mail but never received receipt, and MSHA did not receive request). 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 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 Gregory H. Robertson, PE Director of Public Works Missoula County Road Department 200 W. Broadway St. Missoula, MT 59802-4292 W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 4015 Wilson Blvd., Suite 400 Arlington, VA 22203 Tamara Nelson Office of Civil Penalty Compliance, MSHA U.S. Department of Labor 4015 Wilson Blvd., Suite 900 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