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

 
NEWMONT GOLD COMPANY
August 8, 1995
WEST 95-228-DM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            August 8, 1995

LANCE PAUL                         :
                                   :
     v.                            :  Docket No. WEST 95-228-DM
                                   :
NEWMONT GOLD COMPANY               :
                                   :


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


                                 ORDER

BY THE COMMISSION:

     This discrimination proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1988) ("Mine
Act" or "Act").  On February 13, 1995, Lance Paul initiated an
action pursuant to section 105(c)(3) of the Mine Act, 30
U.S.C. � 815(c)(3), alleging that he had been discriminated against
by Newmont Gold Company ("Newmont") in violation of the Act.  On May
23, 1995, Administrative Law Judge Jerold Feldman issued an order
setting the matter for hearing. On June 27, Newmont filed a motion to
dismiss on the basis that it was unable to locate Paul. On June 29,
the judge issued an order granting the motion and dismissing the case.

     On July 28, 1995, the Commission received a letter addressed
to Judge Feldman from Paul, requesting that his complaint be
reopened.  Paul states that he had informed MSHA of his new address in
January, and that he had arranged with the Postal Service to have his
mail forwarded for one year. He states that, although he had
received the order of dismissal, he had not received the notice of
hearing.

     The judge's jurisdiction in this matter terminated when his
decision was issued on June 29, 1995.  29 C.F.R. � 2700.69(b).
Under the Mine Act and the Commission's procedural rules,
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). We deem Paul's letter to be a
timely filed petition for discretionary review, which we
grant.  See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130
(September 1988).

     On the basis of the present record, we are unable to
evaluate the merits of Paul's position.  In the interest of
justice, we remand this matter to the judge, who shall determine
whether dismissal is warranted. See Hickory Coal Co., 12 FMSHRC
1201, 1202 (June 1990).

     For the reasons set forth above, we vacate the judge's
dismissal order and remand this matter for further proceedings.


                              Mary Lu Jordan, Chairman

                              Joyce A. Doyle, Commissioner

                              Arlene Holen, Commissioner

                              Marc Lincoln Marks, Commissioner