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

 
T.E. BERTAGNOLLI & ASSOCIATES
June 20, 1995
WEST 94-681-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            June 20, 1995

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
         v.                       : Docket No. WEST 94-681-M
                                  :
T.E. BERTAGNOLLI & ASSOCIATES     :
                                  :


BEFORE:   Jordan,  Chairman; Doyle,Holen and Marks, Commissioners[1]


                                ORDER

BY THE COMMISSION:

     This civil penalty proceeding arises under the  Federal Mine
Safety and Health Act of 1977, 30 U.S.C. �  801 et seq. (1988). On
March 13, 1995, Chief Administrative Law Judge Paul Merlin issued
an Order of Default to T.E. Bertagnolli &  Associates ("Bertagnolli")
for its failure to answer the Secretary of Labor's proposal for 
assessment of civil penalties or the judge's  December  22, 1994,
Order to Respondent to Show Cause.  The judge assessed civil
penalties of $9800.

     In a letter to the judge dated March 27, 1995, Bertagnolli states
that, on October 21, 1994, it had responded to the Secretary's penalty
proposal but had inadvertently  mailed its response to an attorney in 
the Office of the Department of Labor's Solicitor in San Francisco,
California. It enclosed a copy of that letter, which it states is a 
"duplicate" in all respects except that it is addressed to Judge Merlin.

     The judge's jurisdiction over this case terminated when his default
order was issued on March 13, 1995. 29 C.F.R. � 2700.69(b). Relief from
a judge's decision may be sought by filing a petition for discretionary
review within 30  days of its issuance. 30 U.S.C. � 823(d)(2); 29 C.F.R.
�2700.70(a). Due to clerical oversight, the Commission did  not act on
the March 27  letter within the statutory  period for  considering 
petitions  for discretionary  review. The  judge's default order became
a final decision of the  Commission  40  days after  its issuance. 
30 U.S.C.� 823(d)(1).

     Relief from a final Commissio  judgment or order is available to a
party under Fed. R. Civ. P. 60(b)(1) in circumstances such as mistake,
inadvertence, or excusable neglect. 29 C.F.R. � 2700.1(b) (Federal Rules
of Civil Procedure apply "so far as  practicable" in the absence of
applicable Commission rules); see, e.g.,  Lloyd Logging, Inc., 13 FMSHRC
781, 782 (May 1991).

     In  the interest of justice, we reopen this  proceeding and treat
Bertagnolli's March 27 letter as a timely  filed petition for iscretionary
review, which we grant.  See Cedar Lake Sand & Gravel Co., 15 FMSHRC 
2253, 2254 (November 1993). On the basis  of the present record, we  
are unable to evaluate the merits of Bertagnolli's position. We remand 
the matter  to  the judge, who shall determine whether final relief 
from  default is warranted. See Hickory Coal Co., 12  FMSHRC 1201, 1201
(June 1990).


                                  Mary Lu Jordan, Chairman

                                  Joyce A. Doyle, Commissioner

                                  Arlene Holen, Commissioner

                                  Marc Lincoln Marks, Commissioner