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[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