[DOCID: f:se99220c.wais] WARRIOR INVESTMENT CO., INC. September 29, 1999 SE 99-220 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 September 29, 1999 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. SE 99-220 : A.C. No. 01-03002-03515 WARRIOR INVESTMENT CO., 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 July 12, 1999, the Commission received from Warrior Investment 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). It has been administratively determined that the Secretary of Labor does not oppose the motion for relief filed by Warrior Investment. 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, Warrior Investment asserts that it did not receive a copy of the original proposed penalty assessment. Mot. Warrior Investment states that it was first informed of the proposed penalty on June 28, 1999, when the Department of Labor's Mine Safety and Health Administration ("MSHA") informed it that the payment of the penalty assessment in the amount of $12,166 was past due. Id. It is unclear from the record why service upon Warrior Investment was unsuccessful, and why the operator did not receive the proposed penalty assessment. Warrior Investment requests the Commission to reopen this matter. 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., Harvey Trucking, 21 FMSHRC 567 (June 1999) (remanding where two notices sent to operator at its address where returned undeliverable to MSHA and operator claimed that it never received notice of the proposed penalty assessment); Gary Klinefelter, 19 FMSHRC 827, 828 (May 1997) (remanding for determination of whether relief from final order warranted where unclear why subject of section 110(c) investigation did not receive proposed penalty); Waste Coal Management, Inc., 14 FMSHRC 423, 423-24 (Mar. 1992) (remanding where default order sent by certified mail may not have been received by operator). 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 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 National 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 Warrior Investment's position.[1] In the interest of justice, we remand the matter for assignment to a judge to determine whether Warrior Investment has met the criteria for relief under Rule 60(b). 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, Jr., Commissioner **FOOTNOTES** [1]: Unlike our dissenting colleagues (slip op. at 4), we find this case to be distinguishable from Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998). See Harvey Trucking, 21 FMSHRC 567, 569 n.1 (June 1999) (distinguishing Roger Richardson). In Richardson, the Commission concluded that an individual did not "receive" the Secretary's penalty proposal within the meaning of section 105(a) of the Act under circumstances in which the penalty proposal was sent to Richardson's former address and Richardson was not required to inform the Department of Labor, Mine Safety and Health Administration ("MSHA"), of his change of address under 30 C.F.R. § 41.12. Id. at 1260. In contrast, Warrior Investment is required to inform MSHA of any change of address under section 41.12. The Commission has previously denied an operator's request to reopen a final order where the operator failed in that responsibility. Pit, 16 FMSHRC 2033, 2034 (Oct. 1994). Here, we are unable to evaluate from the record whether Warrior Investment maintained its correct address with MSHA or whether MSHA mailed the Secretary's penalty proposal to the address submitted by Warrior Investment pursuant to section 41.12. Commissioners Marks and Verheggen, dissenting: Warrior Investment Co. has alleged that it "did not receive a copy of the original assessment for the violations." Motion at 1. The Secretary has not disputed any of the facts set forth in Warrior Investment's motion, and, in fact, does not oppose the motion. We conclude that Warrior Investment did not "receive" the Secretary's penalty proposal within the meaning of section 105(a) of the Mine Act and the Commission's Procedural Rules before he received the final order. Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998). Under these circumstances, remanding this matter to the judge for considering whether Warrior Investment has met the criteria for relief under Rule 60(b) is not necessary. We would reopen the matter, and remand it for assignment to a judge so that the case could proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R., Part 2700. Marc Lincoln Marks, Commissioner Theodore F. Verheggen, Commissioner Distribution Jeffrey E. Jenkins. President Warrior Investment Company, Inc. P.O. Box 2888 Jasper, AL 35502 Tamara Nelson Office of Civil Penalty Compliance MSHA, U.S. Department of Labor 4015 Wilson Boulevard, 9th Floor Arlington, VA 22203 Sheila Cronan, Esq. Office of the Solicitor U.S. Department of Labor 4015 Wilson Boulevard, Suite 400 Arlington, VA 22203 Chief Administrative Law Judge Paul Merlin Federal Mine Safety and Health Review Commission 1730 K Street, N.W., Suite 600 Washington, D.C. 20006