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

 
WISER CONSTRUCTION, L.L.C.
June 20, 1995
WEST 94-720-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 94-720-M
                              :
WISER CONSTRUCTION, L.L.C.    :
                              :


BEFORE: Jordan, Chairman; Doyle, Holen and Marks, 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. (1988).
On March  13, 1995,  Chief  Administrative Law Judge Paul Merlin
issued an Order of Default to Wiser Construction, L.L.C. ("Wiser")
for  its failure to answer the Secretary of Labor's proposal for
assessment of civil  penalties or the judge's  January 4, 1995,
Order  to  Respondent  to Show Cause.    The   judge   assessed 
civil penalties of $4300.

     In  a  letter  to  the  judge  dated March 16, 1995, Wiser's
managing member  states that, on January 1,  1995,  Wiser had  
responded  to  the Secretary's penalty proposal but that it had 
inadvertently mailed its response to an  attorney in the Office
of the Department of Labor's Regional Solicitor in Denver, Colorado.
He enclosed a copy of that letter, which  is  dated January 9, 1995.

     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 16 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  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);
see, e.g., Lloyd Logging, Inc., 13 FMSHRC  781, 782 (May 1991).

     In  the  interest of justice, we reopen this proceeding  and
treat  Wiser's  March  16  letter  as  a timely  filed petition for
discretionary 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
Wiser'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,  1202 (June 1990).


                              Mary Lu Jordan, Chairman

                              Joyce A. Doyle, Commissioner

                              Arlene Holen, Commissioner

                              Marc Lincoln Marks, Commissioner