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

 
DE ATLEY COMPANY, INC.
April 17, 1996
WEST 95-512-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                        WASHINGTON, D.C. 20006


                            April 17, 1996

SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :
                                    :
          v.                        :    Docket No. WEST 95-512-M
                                    :
DE ATLEY COMPANY, INC.              :


BEFORE:  Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

                                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. (1994).  On
February 7, 1996, Chief Administrative Law Judge Paul Merlin issued
an Order of Default to DeAtley Company, Inc. ("DeAtley") for its failure
to answer the Secretary of Labor's petition for assessment of civil
penalty or the judge's December 15, 1995, Order to Respondent to Show
Cause.  The judge assessed a civil penalty of $1,019.

     In a letter to the judge dated March 16, 1996, DeAtley's office
engineer, Max Jensen, states that his predecessor contested the
penalty and subsequently settled the case with the Secretary.  He
explains that, shortly after receiving the settlement papers his
predecessor resigned without having the agreement signed.  Jensen
asserts that, when he discovered the unconsummated settlement
agreement, he immediately had it signed and mailed to the Secretary
along with payment in full of the stipulated amount.  Jensen states
that, on February 26, 1996, DeAtley received a letter from the
Secretary acknowledging receipt of the settlement payment but
demanding the balance ($512) of the original penalty.  Jensen states
he telephoned Matthew Vadnal, the Secretary's counsel, to explain
why the settlement agreement was returned late and Vadnal suggested
he contact the Commission.

     On April 1, 1996, the Commission received the Secretary's
response to DeAtley's March 16 letter.  The Secretary requests the
letter be treated as a request for relief from final judgment.

     The judge's jurisdiction over this case terminated when his
default order was issued on February 7, 1996.  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).  If the
Commission does not direct review within 40 days of a decision's
issuance, it becomes a final decision of the Commission.  30
U.S.C. � 823(d)(1).  DeAtley's letter was received by the
Commission on March 21, after the judge's default order had become
a final decision of the Commission.

     Relief from a final Commission 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); e.g.,
Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).

On the basis of the present record, we are unable to evaluate the
merits of DeAtley's position.  In the interest of justice, we reopen
the proceeding, treat DeAtley's letter as a late-filed petition for
discretionary review requesting relief from a final Commission
decision, and excuse its late filing.  See, e.g., Kelley Trucking
Co., 8 FMSHRC 1867, 1868-69 (December 1986).  We remand the
matter to the judge, who shall determine whether final relief from
default is warranted.  See Hickory Coal Co., 12 FMSHRC 1201, 1202
(June 1990).


                         Mary Lu Jordan, Chairman

                         Joyce A. Doyle, Commissioner

                         Arlene Holen, Commissioner

                         Marc Lincoln Marks, Commissioner

                         James C. Riley, Commissioner