[DOCID: f:ws2002259.wais] HOCKER CONSTRUCTION WEST 2002-259-M May 16, 2002 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 May 16, 2002 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : Docket No. WEST 2002-259-M v. : A.C. No. 05-04456-05529 : HOCKER CONSTRUCTION : BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners ORDER BY: THE COMMISSION This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On February 19, 2002, the Commission received from Hocker Construction ("Hocker") 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). 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," Rule 60(b) of the Federal Rules of Civil Procedure. 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). In its request, Hocker, apparently proceeding pro se, asserts that its failure to timely file a hearing request to contest the proposed penalty assessment was due to lack of familiarity with Commission procedures. H Mot. In a March 6, 2002 response to Hocker's request to reopen, the Secretary argued that the Commission should direct Hocker to provide a more detailed explanation of why its unfamiliarity with Commission procedures warrants reopening. Sec'y Mot. at 2-3. On the basis of the present record, we are unable to evaluate the merits of Hocker's position. In the interest of justice, we remand the matter for assignment to a judge to determine whether Hocker has met the criteria for relief under Rule 60(b). See Upper Valley Materials, 23 FMSHRC 130, 130-32 (Feb. 2001) (remanding to a judge where operator failed to file hearing request due to unfamiliarity with Commission procedures); Eclipse C Corp., 23 FMSHRC 134, 134-36 (Feb. 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. Theodore F. Verheggen, Chairman Mary Lu Jordan, Commissioner Robert H. Beatty, Jr., Commissioner Distribution Roy Hocker Hocker Construction 4167 Co. RD 321 P.O. Box 627 Ignaci, CO 81137 W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 1100 Wilson Blvd., 22nd Floor West Arlington, VA 22209 Chief Administrative Law Judge David Barbour Federal Mine Safety & Health Review Commission 1730 K Street, N.W., Suite 600 Washington, D.C. 20006