<DOC>
[DOCID: f:ws200220.wais]

 
CASCADE SAND & GRAVEL, INCORPORATED
January 17, 2002
WEST 2002-20-M


        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. WEST 2002-20-M
          v.                     : A.C. No. 45-03220-05517
                                 :
CASCADE SAND & GRAVEL,           :
  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 1, 2001, the Commission received from Cascade Sand 
& Gravel, Inc. ("Cascade") 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, Cascade, apparently proceeding pro se,
asserts that it failed to timely submit a request for a hearing
on the proposed penalty assessment to the Department of Labor's
Mine Safety and Health Administration ("MSHA") because it
misplaced its copy of the proposed penalty assessment.  Mot.
Cascade attached a copy of the proposed penalty assessment to 
its request to reopen and a copy of the certified mail receipt
indicating that Cascade received the proposed penalty assessment
on August 21, 2001.

     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 Cascade'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 Georges Colliers, Inc., 22 FMSHRC 939, 939-41 (Aug. 2000)
(remanding to judge where operator misfiled proposed penalty
assessment due to changes in office personnel); E. Ark.
Contractors, Inc., 21 FMSHRC 981, 981-83 (Sept. 1999) (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.


                            Mary Lu Jordan, Commissioner
                              
                            Robert H. Beatty, Jr., Commissioner


Chairman Verheggen, dissenting:

     I would grant Cascade'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

Joseph B. Clerget, President
Cascase Sand & Gravel, Inc.
6802 196th Avenue, S.W.
Rochester, WA 98579

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