<DOC>
[DOCID: f:pe2000203-2e.wais]

 
HARRIMAN COAL CORPORATION
PENN 2000-203
February 12, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        February 12, 2001

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
          v.                      : Docket No. PENN 2000-203
                                  : A.C. No. 36-06990-03526
HARRIMAN COAL CORPORATION         :


BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
        Commissioners


                              ORDER

BY: Jordan, Chairman; Riley and Verheggen, 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 
August 7, 2000, the Commission received from Harriman Coal 
Corporation ("Harriman") 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).  The Secretary 
of Labor does not oppose Harriman's motion for relief.

     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 motion, Harriman, through counsel, asserts that the
late filing of its hearing request to contest the proposed penalty
assessment was due to unfamiliarity with Commission rules and
procedure.  Mot. at 2.  Harriman contends that it understood that
the proposed assessment became final after 30 days, but that it
did not understand that the final order would be non-appealable.
Id.  According to Harriman, it did not receive notice that the
proposed assessment became a final action until it received a
delinquency notice from the Department of Labor's Mine Safety and
Health Administration ("MSHA") on July 28, 2000, which noted that
the proposed assessment became final on July 14, 2000, and that
the final action could not be appealed to the Commission or
otherwise reviewed.  Id.  Harriman notes that it has promptly
filed its request to reopen less than one week after receiving the
notice of finality and that given the severity of the proposed
assessment, it would be prejudiced by not having an opportunity
for a hearing to contest the proposed assessment.  Id. at 3-4.
Harriman requests relief under Fed. R. Civ. P. 60(b)(1).  Id. at
4.  Attached to its motion is an affidavit of Ronald Lickman,
president of Harriman; a Notice of Contest for filing, in the
event the Commission grants its request to reopen; the proposed
assessment; and the delinquency notice.  Exs.

     We have held that, in appropriate circumstances and pursuant
to Rule 60(b), we possess jurisdiction to reopen uncontested
assessments that have become final under section 105(a).  See,
eg., Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993);
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 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 Nat'l Lime & Stone Co., Inc., 20 FMSHRC 923, 925 
(Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997).

     The undisputed assertions of Harriman indicate that the
operator believed it would have the opportunity to appeal the
proposed penalty assessment when it became a final order.  Ex. 1
at 2.  Under the circumstances presented here, Harriman's late
filing of a hearing request could be found to qualify as
"inadvertence" or "mistake" within the meaning of Rule 60(b)(1).
See Peabody Coal Co., 19 FMSHRC at 1614-15 (reopening final order
when party failed to submit hearing request due to unfamiliarity
with Commission procedure).  We further note that Harriman acted
promptly to rectify its mistake once it discovered it, filing its
motion for relief on August 3, just a few days after it received a
delinquency notice on July 28 which alerted it to its mistake.
See Augusta Fiberglass Coatings v. Fodor Contracting, 843 F.2d
808, 812 (4th Cir. 1988) (denial of 60(b) relief reversed by court
of appeals in case where defendant's attorney failed to file an
answer, with court emphasizing that defendant "showing awakened
speed . . . moved for relief within two weeks of the entry of the
judgment, well within the rule's one-year limit.").

     We recognize that Harriman has been represented by counsel in
this proceeding.  However, the Commission has previously awarded
relief in cases in which an operator represented by an attorney
has failed to file in accordance with the time limits of our
procedural rules.  See Turner v. New World Mining, Inc., 14 FMSHRC
76, 77 (Jan. 1992) (reopening final order and finding sufficient
allegation that counsel misinterpreted deadline for filing
petition for discretionary review); Boone v. Rebel Coal Co., 4
FMSHRC 1232, 1233 (July 1982) (granting operator's request for
permission to file late-filed petition for discretionary review
when operator's prior counsel had failed to file one).

     Accordingly, in the interest of justice, we grant Harriman's
unopposed request for relief, reopen this penalty assessment that
became a final order, accept for filing Harriman's Notice of
Contest, and remand this case to the judge for further proceedings
on the merits.  The 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
                              
                              Theodore F. Verheggen, Commissioner


Commissioner Beatty, dissenting:

     On the basis of the present record, I am unable to evaluate
the merits of Harriman's position and would remand the matter for
assignment to a judge to determine whether Harriman has met the
criteria for relief under Rule 60(b).  See Dean Heywood Addison,
19 FMSHRC 681, 682-83 (Apr. 1997) (remanding to judge to determine
whether asserted lack of familiarity with Commission procedures
met criteria for relief under Rule 60(b)); M&Y Servs., Inc., 19
FMSHRC 670, 671 (Apr. 1997) (remanding when proposed penalty
became final because operator was unfamiliar with procedures for
requesting hearing); REB Enters., Inc., 18 FMSHRC 311, 312-13
(Mar. 1996) (remanding where failure to file answer was claimed to
be based upon lack of familiarity with Commission rules and
procedures).  I also note that, unlike the operators and
individuals involved in the above-mentioned cases, Harriman was
apparently represented by counsel at the time that it delayed
filing its hearing request to contest the proposed penalty
assessment based upon its asserted unfamiliarity with Commission
rules and procedure.


                              Robert H. Beatty, Jr., Commissioner
                              

Distribution

Paul J. Bruder, Jr., Esq.
Rhoads & Sinon, LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146

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