<DOC>
[DOCID: f:pnn200222.wais]

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                        January 17, 2002

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 : Docket No. PENN 2002-22-M
          v.                     : A.C. No. 36-00251-05541
                                 :
SOUTHDOWN, INCORPORATED          :

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

                              ORDER

BY:  Jordan 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 October 25, 2001, the Commission received from Southdown, Inc.
("Southdown") 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).

     In its request, Southdown, apparently proceeding pro se,
asserts that it failed to timely submit a request for a hearing
because the Department of Labor's Mine Safety and Health
Administration ("MSHA") sent the proposed penalty assessment to
the wrong person at Southdown. Mot. It contends that the person
who received the proposed penalty assessment is often off site
for weeks at a time and is not the person listed on the "MSHA
Legal Identity Form."  Id.  Southdown maintains that, since
September 1999, it has attempted to update the "Name of the
Person to Receive Official Mail or Service." Id. A copy of the
proposed penalty assessment was attached to Southdown's request.

     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 Southdown's position. In particular, the
record is unclear as to the identity of the company official
listed on the Notification of Legal Identity form filed with
MSHA, and the reasons surrounding Southdown's alleged inability
to change that identity.  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 generally Concrete
Materials of Mont., LLC, 23 FMSHRC 1209, 1209-11 (Nov. 2001)
(vacating default and remanding to judge where operator did not
answer Secretary's petition or judge's show cause order because
MSHA and judge allegedly sent documents to wrong address); San
Juan Coal Co., 23 FMSHRC 800, 800-03 (Aug. 2001) (vacating
default and remanding to judge where operator did not answer
Secretary's petition or judge's show cause order because MSHA 
and judge allegedly failed to send documents to designated 
company official).  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, Commissioner
                              
                              Robert H. Beatty, Jr., Commissioner

Chairman Verheggen, dissenting:

     I would grant Southdown's request for relief. First, I note
that the Secretary does not oppose the operator's motion. I also
note that the operator is proceeding pro se, and the Commission
has always held the pleadings of pro se litigants to less
stringent standards than pleadings drafted by attorneys.  Marin
v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992) (citing Haines
v. Kerner, 404 U.S. 519, 520 (1972)).  Nor do I find any other
circumstances that would render a grant of relief here
problematic.  Under these circumstances, I thus fail to see the
need or utility for remanding this matter.

                              Theodore F. Verheggen, Chairman

Distribution

Lance W. Griffin, Plant Manager
Southdown Incorporated
P.O. Box 220
Thomasville, PA 17364

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