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

 
THOMAS HALE, employed by DAMON CORP.
November 27, 1995
WEST 90-283-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                        WASHINGTON, D.C. 20006

                          November 27, 1995

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
          v.                      :  Docket No. WEST 90-283-M
                                  :
THOMAS HALE,                      :
  employed by DAMON CORP.         :

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
August 13, 1990, the Secretary of Labor filed a petition for
assessment of civil penalty, pursuant to section 110(c) of the
Mine Act, 30 U.S.C.  820(c), against Thomas Hale,
general manager of the Valley Sand and Gravel Mine owned by Damon
Corporation, alleging that he knowingly authorized, ordered, or
carried out five violations of 30 C.F.R.  56.14107(a).  On March 12,
1991, Chief Administrative Law Judge Paul Merlin issued an Order
of Default to Hale for his failure to answer the Secretary's penalty
proposal or the judge's Order to Show Cause dated October 30, 1990.
The judge assessed civil penalties of $1,500.

     On October 11, 1995, the Commission received a letter from
Hale requesting that the case be reopened for hearing.  In his
letter, Hale acknowledges that the citations had been properly issued
but asserts that he is not responsible for payment of the
penalties because he had been told by the company's controller that
they would be paid.  Letter at 1-2. Hale states that he was unaware
that the penalties had not been  paid until he was contacted in 1991
by a collection office.  Id. at 3. Subsequently, he was contacted by
the Department of Justice regarding the matter.  Id.  Hale asserts that
he "began to know how to handle"  the situation only after contacting
the local director of the Mine Safety and Health Administration in
Vacaville, California, who suggested that he contact the
Commission.  Id. at 3-4.

     On October 31, 1995, the Commission received the Secretary's
opposition to Hale's request for relief.  The Secretary informs the
Commission that the United States filed an action pursuant to section
110(j) of the Mine Act, 30 U.S.C.  820(j), in the United States
District Court for the Eastern District of California for recovery
of the penalty owed by Hale, and that the District Court granted
summary judgment in favor of the United States on April 12, 1994.
Opp'n at 2-3.  Hale filed a motion to set aside the summary judgment,
which was denied, and final judgment was entered on May 9,
1995.  Id. at 3.  The Secretary asserts that the time limitations
set forth in Fed. R. Civ. P. 60(b) preclude the Commission from
considering the case.  Id. at 9-12.

     The judge's jurisdiction over this case terminated when his
default order was issued on March 12, 1991.  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).  Hale's
letter was received by the Commission on October 11, 1995,
more than four years 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).  A motion
requesting relief based on such reasons must be made "within a
reasonable time, and . . . not more than one year
after the judgment, order, or proceeding was entered or taken."
Fed. R. Civ. P. 60(b).

     Hale's request for relief was filed more than four years
after the judge's default order became a final decision of the
Commission, well beyond the one-year time limit set forth in Rule
60(b) for filing such requests. See Ravenna Gravel, 14 FMSHRC 738,
739 (May 1992).  Accordingly, the request for relief is denied.

                              Mary Lu Jordan, Chairman

                              Joyce A. Doyle, Commissioner

                              Arlene Holen, Commissioner

                              Marc Lincoln Marks, Commissioner

                      T A L L Y   S H E E T

Hale, employed by Damon Corp., Docket No. WEST 90-283-M

       Commissioner               Date

Deny the request for relief from final order (order to
that effect attached).

       Other:

       Comments:

Please return to Lynne Bowman