<DOC>
[DOCID: f:wes2000421.wais]

 
CONTRACTORS SAND & GRAVEL INCORPORATED
June 15, 2001
WEST 2000-421-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          June 15, 2001



SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket Nos. WEST 2000-421-M
                                :             WEST 2000-422-M
                                :             WEST 2000-423-M
                                :             WEST 2000-424-M
                                :             WEST 2000-425-M
CONTRACTORS SAND & GRAVEL       :             WEST 2000-426-M
  INCORPORATED                  :             WEST 2000-427-M


BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
        Commissioners


                              ORDER

BY: Beatty, Commissioner

     This matter arises under the Federal Mine Safety and 
Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine 
Act"). On June 5, 2000, the Commission received a request from 
Contractors Sand & Gravel, Inc. ("Contractors") to reopen 11 
proposed penalty assessments that have become final orders of 
the Commission.  The Secretary of Labor opposes Contractors' 
request for relief.  For the reasons that follow, the 
Commission denies Contractors' request as to one of the 
proposed assessments,[1] and remands for further consideration 
the remaining ten proposed assessments.[2]

     In its request, Contractors seeks to reopen 11 proposed
penalty assessments, totaling $2,073 for 24 alleged violations,
which were originally issued by the Department of Labor's Mine
Safety and Health Administration ("MSHA") between July 6, 1993
and May 7, 1998.  Six of the 11 proposed penalty assessments
became final orders of the Commission, pursuant to section 
105(a) of the Mine Act, 30 U.S.C. � 815(a), thirty days after
Contractors failed to submit a hearing request ("green card") 
to contest the alleged violations.[3]  The Commission received
Contractors' letter between two to six years after the six
uncontested proposed assessments had become final orders of the
Commission.

     As to the remaining five proposed assessments, Contractors
timely filed a green card, but failed to answer the Secretary's
petitions for assessment of penalties.[4]  Former Chief
Administrative Law Judge Paul Merlin issued show cause orders
directing Contractors to answer the Secretary's petitions 
within 30 days, and entered default against Contractors after 
it failed to respond to the judge's show cause orders.  The 
judge's jurisdiction in these matters terminated when he issued 
his default orders between February 16 and June 23, 1994. 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).  
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).  The judge's default orders 
regarding these five assessments became final between March 28 
and August 2, 1994. The Commission received Contractors' letter 
approximately six years after the judge's five default orders 
had become final Commission orders.

     Contractors asserts that it failed to contest the 11
proposed assessments because it believed that they were 
included in a decision after remand approving settlement issued 
by Administrative Law Judge August Cetti on May 28, 1996.[5]  
Mot.; C. Reply.  It contends that the government waited four to 
five years to raise the matter and that Contractors has no way 
of determining what the claims relate to other than their date 
and the section of the Secretary's regulations cited.  Mot.
Contractors requests that the Commission reopen these proposed
assessments. Id. Attached to its request are various documents,
including correspondence with the United States Department of
Treasury, Judge Cetti's decisions in the underlying matters 
(see n.3 supra), the 11 proposed penalty assessments, the 
subject default orders, and MSHA reports.  Attachs.

     On June 14, 2000, the Commission received the Secretary's
opposition to Contractors' request.  The Secretary argues that
the request should be denied because Contractors has failed to
satisfy any of the requirements for obtaining relief under Fed.
R. Civ. P. 60(b). S. Opp'n at 4-13. Specifically, the Secretary
contends that if Contractors' request for relief falls under
Rule 60(b)(1) through (3), its request is time-barred because 
it has been filed more than one year after its final date, and 
the Secretary asserts that Rule 60(b)(4) through (6) cannot be 
used to circumvent that bar.  Id. at 6.  The Secretary also 
asserts that Contractors could not have "honestly felt" that 
the 11 penalty assessments were included in the judge's May 28, 
1996 settlement decision because three penalties were issued 
after that decision.  Id. at 9.  The Secretary argues that 
Contractors' request also fails under Rule 60(b)(6) because it 
was not made within a reasonable time; Contractors has not shown, 
by clear and convincing evidence, that it was faultless in the 
delay; and Contractors' mistaken belief that the settlement of 
the EAJA case included the 11 penalty assessments at issue is 
not a legally sufficient reason for failing to take action.  
Id. at 10-12.  The Secretary also contends that Contractors' 
request must fail because it has not established a meritorious 
defense to the underlying action. Id. at 12.

     In reply, Contractors clarifies that two of its non-metal
surface mining operations, the Montague Plant and the Scott 
River Plant, have been closed for approximately one and three 
years, respectively.  C. Reply.[6]  It claims that only one 
citation, not three as the Secretary contends, was issued after 
the judge's decision approving settlement.  Id.  Contractors 
contends that its failure to contest the penalty assessment 
was not deliberate, but that it was honestly led to believe by 
representations made by its attorney and the Solicitor's 
attorney that the settlement for $1,960 included the penalties 
at issue. Id. Finally, Contractors asserts that it is entitled 
to relief under Rule 60(b) for surprise because the government 
waited more than five years to bring this matter to its 
attention.  Id.  Accordingly, Contractors requests that the 
Commission review this matter and "dismiss or amend it." Id.

     The Commission has recognized that, in appropriate cases, 
it may grant various forms of relief from final Commission 
orders. Jim Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993) 
(citing Johnson v. Lamar Mining Co., 10 FMSHRC 506, 508 (Apr. 
1988)) ("JWR"); M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1270-71 
(Sept. 1986). In reopening final orders, the Commission has 
found guidance in, and has applied "so far as practicable," 
Fed. R. Civ. P. 60(b).  See 29 C.F.R. 2700.1(b) ("the 
Commission and its judges shall be guided so far as practicable 
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 
787.  The Commission has also observed that default is a harsh
remedy and that, if the defaulting party can make a showing of 
adequate or good cause for the failure to timely respond, the 
case may be reopened and appropriate proceedings on the merits 
permitted.  See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 
1530 (Sept. 1995). Rule 60(b) provides that motions made 
pursuant to the section "shall be made within a reasonable time, 
and for reasons (1), (2), and (3) not more than one year after 
the judgment, order, or proceeding was entered or taken." This 
one-year time limitation is an outside time limit for motions 
requesting relief under subsections (1) through (3).  See 12 
James W. Moore et al., Moore's Federal Practice � 60.65 (3d ed.
2000) ("Moore's").  It may not be circumvented by utilization 
of subsection 60(b)(6), which is subject only to a reasonable 
time limit, when the real reason for relief falls within 
subsections (1) through (3). Id.

     Contractors' claim that it believed that the 11 proposed
penalty assessments had been settled along with other 
outstanding violations assessed against it while its EAJA 
proceeding was pending could be construed as allegations of 
mistake, inadvertence, or excusable neglect under Rule 
60(b)(1).  Due to multiple civil penalty proceedings, 
complicated EAJA proceedings, and a settlement agreement 
involving 27 violations, Contractors and its counsel may have 
been confused as to which violations, if any, remained 
outstanding.  The Commission previously has vacated a final 
order and remanded the matter to the judge for further fact-
finding where the operator claimed it failed to timely file
a hearing request because it believed civil penalties were 
the subject of a settlement agreement; it was unfamiliar with
Commission procedure; or it misunderstood representations made 
to it by its attorney, MSHA, or the Secretary.  See, e.g., 
DeAtley Co., Inc., 18 FMSHRC 491, 492 (Apr. 1996) (remanding 
where operator believed penalties had been settled); Ogden
Constructors, Inc., 22 FMSHRC 5, 7 (Jan. 2000) (remanding to
a judge where the operator failed to timely submit a hearing
request due to a mistaken belief that no action was necessary
because the citation was the subject of an ongoing MSHA
investigation); Dean Heyward Addison, 19 FMSHRC 681, 682-83 
(Apr. 1997) (remanding to a judge where the movant failed to 
timely submit a hearing request due to unfamiliarity with 
Commission procedure and misunderstanding about information 
from the Secretary's counsel and ALJ).

     In addition, Contractors' claim that its attorney and the
Secretary's attorney made representations during settlement
negotiations that led it to believe that all pending proposed
assessments were included in the settlement could be construed 
as an allegation of fraud, misrepresentation, or misconduct 
under Rule 60(b)(3).  Relief under Rule 60(b)(3) has been 
provided in circumstances involving either intentional or 
unintentional conduct, which prevented the moving party from 
having a full opportunity to litigate its case fairly.  See, 
e.g., Lonsdorf v. Seefeldt, 47 F.3d 893, 895 (7th Cir. 1995) 
(stating that Rule 60(b)(3) applies to both intentional and 
unintentional misrepresentations); Bros., Inc. v. W. E. Grace 
Mfg. Co., 351 F.2d 208, 210-11 (5th Cir. 1965) (interpreting 
misconduct under Rule 60(b)(3) to incorporate accidental 
omissions); see generally Moore's, � 60.43[1][b]-[c].  The 
Commission has noted that fraudulent conduct under Rule 
60(b)(3) must be proven by clear and convincing evidence.  
JWR, 15 FMSHRC at 789; Pena v. Eisenman Chem. Co., 11 FMSHRC 
2166, 2167-68 (Nov. 1989) (denying miner's request for relief 
because it was untimely and failed to provide "clear and 
convincing evidence" of fraud or misconduct where miner alleged 
that operator defrauded him in the settlement of his 
discrimination suit); Wadding v. Tunnelton Mining Co., 8 FMSHRC 
1142, 1143 (Aug. 1986) (finding that miner's request for relief
pursuant to Rule 60(b)(3) was not filed within a
reasonable period of time and that he failed to provide "clear
and convincing evidence" of operator's alleged fraud during
hearing).

     To the extent that Contractors' request does not fall 
within Rule 60(b)(1) or (3), "extraordinary circumstances" 
pursuant to Rule 60(b)(6) could exist which may have arguably 
contributed to its lack of knowledge of the exclusion of the 
subject proposed penalty assessments from the judge's decision 
approving settlement until it recently received notice from 
the Treasury Department.  See Lakeview Rock Prods., Inc., 
19 FMSHRC 26, 28 (Jan. 1997) (providing that relief under Rule 
60(b)(6) is granted only when the reasons for relief are other 
than those set out in the more specific clauses (1) through 
(5)); see also Brian D. Forbes, 20 FMSHRC 99, 101-03 (Feb. 
1998) (remanding to judge to determine whether miner, who 
filed request for relief nearly four years after order became 
final, is entitled to relief where he did not receive notices 
of penalty assessment which were sent to his employer and 
returned to MSHA unclaimed); Tolbert v. Chaney Creek Coal 
Corp., 12 FMSHRC 615, 618-19 (Apr. 1990) (holding that
reopening final Commission decision under Rule 60(b)(6) for
supplemental proceedings in aid of compliance with final
Commission decision is "appropriate to accomplish justice").
However, if Contractors received notice or was at fault for
failing to receive notice, then such failure to timely respond
may amount to mistake or inadvertence under Rule 60(b)(1), and
cannot be claimed as "extraordinary circumstances" under Rule
60(b)(6).  Compare Klapprott v. United States, 335 U.S. 601, 
604-09, as modified in, 336 U.S. 942 (1949) with Ackermann v. 
United States, 340 U.S. 193, 195-97 (1950) (demonstrating that
extraordinary circumstances justifying relief have been found
where movant suffered undue hardship or injustice but not 
where movant was at fault); see also Johnson, 10 FMSHRC at 508
(reopening final order approving settlement upon showing that
underlying settlement agreement approved by Commission had 
been breached or repudiated).  Because Contractors was 
represented by counsel during the time of the settlement and 
EAJA proceeding, its actions are subject to a higher level of 
scrutiny and standard of diligence.   See Pioneer Inv. Servs. 
Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 397 (1993) 
(examining the conduct of both respondent and counsel to 
determine whether failure to file proof of claim by bar date 
can constitute excusable neglect); Link v. Wabash R.R. Co., 
370 U.S. 626 (1962) (providing that client usually bears 
consequences of negligence of his or her attorney).

     As to ten of the 11 proposed assessments,[7] the record 
is insufficient to determine whether Contractors' claims 
should be treated as mistake, inadvertence, or excusable 
neglect under Rule 60(b)(1); whether the representations that 
Contractors claims were made by the Secretary could qualify as 
misrepresentations within the meaning of Rule 60(b)(3); or if 
not within the purview of Rule 60(b)(1) or (3), whether 
extraordinary circumstances exist under Rule 60(b)(6). It is 
unclear from the record what happened during the course of 
settlement negotiations, particularly given Contractors'
failure to specify the statements made by its counsel and the 
Secretary's counsel which led it to believe that the proposed 
assessments were included in the settlement agreement.  In 
addition, there may have been other grounds, not attributable 
to the fault of Contractors, that would have reasonably led 
it to believe that the decision approving settlement included 
all remaining citations issued by the date of the decision.  
The remaining proposed assessment (A.C. No. 04-03404-05520) 
and underlying citation were issued after the judge's 
decision approving settlement.  Thus, even if Contractors' 
claim fell within Rule 60(b)(1), (3), or (6), relief would not
be appropriate as to that proposed assessment because
there is no reasonable basis for Contractors' claim that the
settlement agreement included that proposed assessment or the
underlying citation.

     If Contractors' motion amounts to a request for relief 
under Rule 60(b)(1) or (3), Contractors' request must be 
denied as untimely.  See Hale employed by Damron Corp., 17 
FMSHRC 1815, 1816-17 (Nov. 1995); Ravenna Gravel, 14 FMSHRC 
738, 739 (May 1992); Pena, 11 FMSHRC at 2167.  However, if 
Contractors' motion is rightfully brought pursuant to Rule 
60(b)(6), the record is insufficient to determine whether it 
was filed within a reasonable time.  There is not enough 
evidence in the record to determine whether Contractors had 
good reason for failing to take action sooner or whether the 
delay would cause prejudice to the Secretary.[8]  Forbes, 
20 FMSHRC at 103 (remanding to judge to determine whether miner
who filed request for relief four years after final order is
entitled to relief); Clarke v. Burkle, 570 F.2d 824, 831 (8th 
Cir. 1978) (providing that prejudice to opposing party is a 
factor to consider when determining whether a motion for relief
has been filed within a reasonable time under Rule 60(b)(6));
McKinney v. Boyle, 447 F.2d 1091, 1093 (9th Cir. 1971) 
(providing that another consideration is whether the moving
party has good reason for failing to take action sooner).

     For the foregoing reasons, Contractors' request for relief
as to one of the proposed assessments, A.C. No. 04-03404-05520 
in Docket No. WEST 2000-427-M, is denied.  With regard to the
remaining ten proposed assessments, on the basis of the present
record, I am unable to evaluate the merits of Contractors'
position.  In the interest of justice, the Commission remands 
for further consideration the proposed assessments in Docket 
Nos. WEST 2000-421-M through 2000-426-M, and A.C. Nos. 
04-03404-05516, 04-03404-05517, and 04-03404-05519 in Docket 
No. WEST 2000-427-M to the judge, who shall determine whether 
relief from final order is warranted.  If the judge determines 
that relief is appropriate, the case shall proceed pursuant to 
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. 
Part 2700.


                              Robert H. Beatty, Commissioner


**FOOTNOTES**

     [1]: The Commission's decision on this penalty assessment
which has become a final order (A.C. No. 04-03404-05520 in 
Docket No. WEST 2000-427-M)  is  evenly  divided. Chairman  
Jordan and Commissioner Beatty would deny the operator's 
request for relief and affirm the final order. Commissioners
Riley and Verheggen would grant the operator's  request  and  
vacate the final order. The effect of the split decision is 
to leave  standing  the final Commission  order.   See  Pa.  
Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd, 969 
F.2d 1501 (3d Cir. 1992).

     [2]: Commissioners  Riley and  Verheggen  would  grant
Contractors'  request  as to all 11 proposed penalty 
assessments. However, for the reasons set forth in their 
opinion, Commissioners  Riley  and  Verheggen join 
Commissioner Beatty  in remanding the ten proposed 
assessments. Chairman Jordan would deny Contractors' 
request as to all 11 proposed assessments.

     [3]: These six proposed penalty assessments are as 
follows:

  Docket No.          A.C. No.      Assess. Date    Final Date

WEST 2000-423-M   04-04679-05513      3/17/94         4/17/94
                  04-04679-05515      6/12/96         7/12/96
WEST 2000-427-M   04-03404-05516      1/11/94         2/11/94
                  04-03404-05517      7/15/94         8/15/94
                  04-03404-05519      5/29/96         6/29/96
                  04-03404-05520       5/7/98          6/7/98

     [4]: These five proposed penalty assessments are as 
follows:

  Docket No.        A.C. No.       Assess.   Default   Final
  				    Date      Date     Date
                                                        
WEST 2000-421-M   04-04679-05511   7/7/93    2/16/94  3/28/94
WEST 2000-422-M   04-04679-05512  11/3/93    6/23/94   8/2/94
WEST 2000-424-M   04-03404-05513   7/6/93    2/16/94  3/28/94
WEST 2000-425-M   04-03404-05514  8/13/93     3/3/94  4/12/94
WEST 2000-426-M   04-03404-05515  10/18/93    6/7/94  7/17/94

     [5]: Previously, the Commission granted Contractors' 
request to reopen nine unrelated civil penalty proceedings,
which had been defaulted and become final orders, and remanded
the proceedings to the judge to determine whether default was
warranted. Contractors Sand & Gravel, Inc., 16 FMSHRC 1645,
1646 (Aug. 1994). Of the nine proceedings remanded, Judge 
Cetti vacated the alleged violation in Docket No. WEST 
94-409-M, and one alleged violation in Docket No. WEST 
93-462-M, retaining jurisdiction of the remaining two citations
in that proceeding. Contractors Sand & Gravel, Inc., 18 FMSHRC
384, 389 (Mar. 1996) (ALJ). Judge Cetti subsequently approved
the settlement of 27 violations, including the two remaining
violations in Docket No. WEST 93-462-M, as well as the other
eight dockets reopened by the Commission in its August 1994
decision. Contractors Sand & Gravel, Inc., 18 FMSHRC 824,
825-26 (May 1996) (ALJ).

     Consequently, Contractors filed a suit against the 
Secretary for attorney's fees and costs in Docket No. WEST
94-409-M, pursuant to the Equal Access to Justice Act, 5 U.S.C.
� 504 et seq. (1994) ("EAJA"), and was ultimately successful.
Contractors Sand & Gravel, Inc., 18 FMSHRC 1820 (Oct. 1996)
(ALJ), rev'd 20 FMSHRC 960 (Sept. 1998), rev'd Contractors
Sand & Gravel, Inc. v. FMSHRC, 199 F.3d 1335, 1340-43 (D.C.
Cir. 2000), enforced, 22 FMSHRC 367 (Mar. 2000) and 22  FMSHRC
561 (Apr. 2000) (ALJ). 

     [6]: On June 21, 2000, the Commission received from
Contractors a request for an extension of time to file a reply
to the Secretary's opposition. The Commission granted 
Contractors' request and accepted Contractors' reply for
filing on July 12, 2000. Unpublished Order dated July 12,
2000.

     [7]: I include in these ten proposed assessments the two
penalty assessments (A.C. Nos. 04-04679-05515, 04-03404-05519)
as to which the citations were issued before the judge's May
28, 1996 decision approving settlement, but the proposed
penalties were issued after that decision. Although the proposed
assessments had not yet been issued at the time of the
settlement decision, Contractors may have believed that the
settlement decision included all citations issued by the date
of the decision. See Contractors, 18 FMSHRC at 825 (judge's
decision approving settlement) ("the parties . . . filed an
amended motion to approve a settlement agreement of all the
remaining citations") (emphasis added).

     [8]: It has been administratively determined that while 
the Commission and the Secretary no longer have the original
files in these proceedings, MSHA has retained copies of the
records in these matters. The availability of other evidence
is not clear from the record.


     Commissioners Riley and Verheggen, concurring in part and
dissenting in part:

     For the reasons set forth below, we would have vacated all
eleven of the penalty assessments at issue in this default
matter.  But to avoid the effect of a divided decision, which
would allow the default orders to stand, we join our colleague
Commissioner Beatty in remanding ten of the eleven penalty
assessments (Docket Nos. WEST 200-421-M through WEST 2000-426-M,
and A.C. Nos. 04-03404-05516, -05517, and -05519 in Docket No.
WEST 2000-427-M).  We do not join our colleague, however, in
denying Contractors' request for relief as to the penalty
assessment set forth in A.C. No. 04-03404-05520 in Docket No.
WEST 2000-427-M, which we would also vacate.

     The eleven penalty assessments at issue in this default
matter were based on a total of 24 citations and orders issued
against Contractors Sand and Gravel, Inc. ("Contractors"), the
majority of which (19) were issued between March and August 
1993. Of the remaining five citations and orders, two were 
issued in 1994 and one each was issued in 1995, 1996, and 1997,
respectively.[1] We find the dates of the violations underlying
the penalties at issue, the majority of which were cited almost
eight years ago, significant for a variety of reasons.

     We believe that these penalties, and the violations on 
which they are based, must be viewed in the larger context of 
relations between the Secretary and Contractors during these 
years.  On or around March 10, 1993, MSHA Inspector Ann 
Frederick visited Contractors Montague Plant to investigate a
matter involving accident reports.  Deposition of Eric 
Schoonmaker in Contractors Sand & Gravel Supply, Inc., Docket
No. WEST 93-462-M, at 56-57 (July 1995).[2]  An argument 
ensued between Schoonmaker and Frederick when Schoonmaker 
challenged Frederick's attempt to go through certain files.  
Id. at 57.  Schoonmaker testified that Frederick "stomped out 
of there [saying] `You're going to see how tough I can be.'"  
Id.  Schoonmaker further testified that Frederick subsequently 
issued 75 citations against Contractors. Id. at 59.

     One of these citations led to a lengthy and contentious
litigation.  First, in a decision the Secretary did not appeal,
Commission Administrative Law Judge August Cetti vacated one of
the citations Frederick issued, along with a related section
110(c) charge against Schoonmaker, on cross motions for summary
decision.  Contractors, 18 FMSHRC at 389.  When, pursuant to 
the Equal Access to Justice Act, 5 U.S.C. � 504 et seq. (1994)
("EAJA"), Contractors applied for the attorney's fees and costs
it incurred in defending this case, Judge Cetti granted the
company's application.  Contractors Sand and Gravel, Inc., 18
FMSHRC 1820 (Oct. 1996) (ALJ).  On review, the Commission
reversed the judge in a three to two vote, the majority
concluding that the Secretary's position in the underlying Mine
Act proceeding was substantially justified.  Contractors Sand 
and Gravel, Inc., 20 FMSHRC 960, 967-76 (Sept. 1998).  The
dissenting Commissioners held that the Secretary failed to 
establish that her position was substantially justified.  Id. 
at 978-85 (Commissioners Riley and Verheggen).

     Contractors appealed the Commission's decision to the 
United States Court of Appeals for the District of Columbia 
Circuit. The court reversed the Commission, concluding that 
the Secretary's position before the administrative law judge 
in the Mine Act proceeding lacked substantial justification 
because the Secretary's interpretation and application of the 
regulation at issue had no reasonable basis in law or fact.  
Contractors Sand and Gravel, Inc. v. FMSHRC, 199 F.3d 1335, 
1340-42 (D.C. Cir. 2000).  The court ordered that the award of 
fees and expenses granted by the administrative law judge be 
restored, and remanded the case to the Commission for further
proceedings to determine the amount of an award to compensate 
Contractors for pursuing review before the court. Id. at 1343.  
Before its mandate issued, the court clarified that its
decision was not intended to preclude Contractors from seeking 
"compensation for attorneys' fees and expenses incurred in 
defending the award of the [judge] before the . . . 
Commission." Order at 2 (Mar. 3, 2000).

     After the Commission remanded the case to the judge
(Contractors Sand and Gravel, Inc., 22 FMSHRC 367 (Mar. 2000)),
the parties entered into settlement discussions to resolve 
their longstanding dispute.  Contractors Sand and Gravel, Inc., 
22 FMSHRC 561 (Apr. 2000) (ALJ).  One would have expected the
Secretary, during those negotiations, to at least acknowledge 
the pendency of the eleven additional penalties now before us. 
At any rate, on remand, the parties "agreed that a total amount 
of $99,935.51 in fees and expenses" would be paid by the 
Secretary to Contractors.  Id.  Nothing in the judge's decision 
approving the parties' agreement alludes to the existence of 
other matters still in dispute.

     All of the penalties at issue in this default proceeding 
are thus based on enforcement actions taken against Contractors
either when a certain degree of acrimony apparently existed
between MSHA and the company, especially during 1993, or during
the pendency of the EAJA litigation. In our view, the Secretary
has all the appearances of a sore loser, battered from her loss
in the EAJA proceedings, seeking now as long as almost eight
years after the fact to exact what appears to be a measure of
revenge on Contractors.

     The legislative history of the Mine Act sets forth the
purpose of the Act's civil penalty provision, section 110(i), 
30 U.S.C. � 820(i), as follows:

          The purpose of . . . civil penalties, of
          course, is not to raise revenues for the
          federal treasury. . . . [T]he purpose of a
          civil penalty is to induce those officials
          responsible for the operation of a mine to
          comply with the Act and its standards.

S. Rep. No. 95-181, at 40-41 (1977) (also discussing "the
objective of [inducing] effective and meaningful compliance"),
reprinted in Senate Subcomm. on Labor, Comm. on Human 
Resources, Legislative History of the Federal Mine Safety and 
Health Act of 1977, at 628-29 (1978). See also Ambrosia Coal 
& Constr. Co., 18 FMSHRC 1552, 1565 n.17 (Sept. 1996) 
(recognizing importance of deterrent function of civil 
penalties).  The legislative history of section 110(i) makes 
clear that civil penalties are remedial in nature, not 
punitive, and are assessed to induce "effective and meaningful"
compliance with safety and health standards. We find troubling 
that the effort to collect the eleven penalties in this case 
after so long a delay has the appearance of being punitive.

     But appearances aside, the Secretary has advanced no good
reason for having failed to prosecute these penalties and seek
payment in a more timely fashion.[3]  Indeed, what we find most
troubling here is the Secretary's delay in attempting to 
enforce the penalties.

     Section 110(i) of the Mine Act delegates to the Commission
"authority to assess all civil penalties provided in [the Act]"
(30 U.S.C. � 820(i)), and to the Secretary the duty of proposing
penalties (30 U.S.C. �� 815(a) & 820(a)).  Under this statutory
scheme, the Secretary proposes penalties based on the section
110(i) penalty criteria, and the Commission ultimately assesses
penalties either by operation of law,[4] or by order.
Ultimately, a penalty proposal made by the Secretary "should
assist the Commission in efficiently exercising [its] authority
[to assess penalties]."  Sec'y of Labor on behalf of Hannah v.
Consolidation Coal Co., 20 FMSHRC 1293, 1300-01 (Dec. 1998).
Here, we do not believe that the Secretary assisted the
Commission at all.  Instead, in the context of the numerous
actions brought against Contractors in a relatively short time,
the numerous settlements that were agreed to (see slip op. at 3
n.5), and the lengthy EAJA litigation, what we find in this
record is a confused mess that could confound anyone, and
certainly justify to some extent Contractors' failure to pay 
the penalties.  These loose ends ought to have been tied up 
much, much earlier.  In fact, the delays in this case run 
directly counter to "the thrust of the penalty procedures 
under the Mine Act . . . to reach a final order of the 
Commission assessing a civil penalty for violations without 
delay."  Sec'y of Labor on behalf of Bailey v. Ark.-Carbona 
Co., 5 FMSHRC 2042, 2046 (Dec. 1983) (emphasis added).[5]


**FOOTNOTES**

     [1]: The following is a summary of the default penalties 
at issue in this matter, arranged  according  to MSHA control 
number ("A.C. Number").  The number in parentheses following 
the date on which  the  underlying  citations or orders were  
issued  is  the number of violations involved:

Uncontested Penalties

A.C. No.              Date(s) Underlying         Date
                         Paper Issued          Assessed

04-04679-05513           03/12/93 (1)          03/17/94
04-04679-05515           06/07/95 (1)          06/12/96
04-03404-05516           06/07/93 (1),         08/18/93 (2)
                                               01/11/94
04-03404-05517           05/03/94 (2)          07/15/94
04-03404-05519           03/05/96 (1)          05/29/96
04-03404-05520           06/25/97 (1)          05/07/98

Contested Penalties

A.C. No.         Date(s) Underlying     Date       Final Date
	            Paper Issued      Assessed     of Default

04-04679-05511      05/26/93 (1),   07/07/93        03/28/94
                    06/08/93 (2)
04-04679-05512      06/08/93 (1)    11/03/93        08/02/94
04-03404-05513      06/07/93 (5)    07/06/93        03/28/94
04-03404-05514      06/07/93 (1)    08/13/93        04/12/94
04-03404-05515      06/07/93 (2),   10/18/93        07/17/94
                    08/18/93 (3)

     [2]: This deposition was entered into the record of the
cited proceedings unchallenged by the  Secretary. Contractors
Sand & Gravel Supply, Inc., 18 FMSHRC 384, 386-87 (Mar. 1996)
(ALJ).

     [3]: A Civil Penalty Collection Report dated March 4, 1999
contains all of the eleven penalties at issue.  We also note 
that the Secretary has made no effort to recover the penalties 
at issue "in a civil action  in  the name of the United States 
. . . in the United States district court  for  the  district 
where the violation[s]  occurred or where the operator has its  
principal office."  30 U.S.C. � 820(j).

     [4]: When an operator, after receiving notice of a proposed
penalty, elects not to challenge  the  proposal, the Commission
plays no active role in the penalty determination. Instead, such
a  proposed penalty becomes a "final order of the Commission"  
by operation of law.  30 U.S.C. � 815(a).

     [5]: The  Chairman states that she sees "no reason why the
Secretary would have needed to address the question of the 
timing of her collection  efforts"  because  Contractors,  as 
the moving party, bears the burden of persuasion here. Slip op. 
at 16. In light of the undisputed record, however, of just how 
long ago the penalties  at  issue were assessed, we believe the 
Secretary was duty-bound  to  offer  a detailed explanation to 
"assist the Commission  in  efficiently   exercising   [its]   
authority  [to ultimately assess penalties]."  Hannah, 20 
FMSHRC at 1301.

     In light of the foregoing concerns, we would have vacated
all eleven penalties under Rule 60(b)(6) of the Federal Rules of
Civil Procedure in the interests of justice and because to not
do so would be to make a mockery of the deterrent purposes
underlying the Commission's authority to assess civil penalties
under section 110(i) of the Mine Act.  An eight year delay in
attempting to collect a penalty robs any such penalty of any
deterrent purpose.  Unfortunately, however, we must join
Commissioner Beatty in remanding these penalties to avoid having
them stand as a sorry monument to administrative inefficiency.


                            James C. Riley, Commissioner
                              
                            Theodore F. Verheggen, Commissioner


Chairman Jordan, concurring in part and dissenting in part:

     For Contractors Sand and Gravel, Inc. ("Contractors") to
obtain relief from the 11 final orders at issue here, it must, 
as a threshold matter, adequately explain why it failed to 
timely file a hearing request (or "green card") for six proposed 
penalty assessments that became final orders of the Commission 
between February 1994 and June 1998.  It must also explain why 
it failed to respond to both the Secretary's petition for 
assessment of penalty and the judge's show cause orders in five 
additional cases that became final orders of the Commission in 
1994. Because it did not provide sufficient justification for 
missing these deadlines, I would deny its request.

     Contractors' sole claim is that it thought these matters
were resolved as part of a settlement order issued by the judge
on May 28, 1996. Mot. This could be construed as an allegation
of mistake or inadvertence justifying relief under Fed. R. Civ.
P. 60(b).[1]  However, its assertion that it mistakenly thought
these cases were part of a settlement in 1996 does not justify
why it failed to act in 1993 and 1994, which is the relevant 
time period for eight of the proceedings.[2]  For example,
Contractors is seeking relief from a default order the judge 
issued in February 1994 (A.C. No. 04-04679-05511 in Docket No.
WEST 2000-421-M) due to its failure to respond to the judge's 
show cause order issued in October 1993.  Therefore, it must 
describe the events of October and November of 1993 that would 
excuse its failure to respond to the judge's show cause order.  
However, it offers no explanation at all.

     Furthermore, a settlement that was approved on May 28, 
1996 does not provide an excuse for failing to respond to a 
penalty assessment issued in the ninth case (A.C. 
04-0304-05520) in Docket No. WEST 2000-427-M, almost two 
years later on May 7, 1998.  Accordingly, I join Commission 
Beatty in denying relief as to that assessment.

     There appears to be only two proceedings in which
Contractors' duty to respond  occurred close in time to the
settlement agreement.  Docket No. WEST 2000-427-M includes a
penalty assessment that was issued on May 29, 1996 (A.C. No. 
04-03404-05519), and Docket No. WEST 2000-423-M includes a 
penalty assessment (A.C. No. 04-04679-05515) issued on June 12, 
1996. But even if Contractors could plausibly argue that it 
thought these penalty assessments had been incorporated into 
the settlement agreement, it should have offered some evidence 
to show that it made an effort to verify that they were 
included. Contractors was represented by an attorney in that 
May 1996 settlement.  It would have been a simple matter for 
it to pick up the phone and call its attorney to clarify 
whether these two other assessments were part of that 
settlement. Its motion for relief, however, is silent on this 
question.

     In any event, as Commissioner Beatty correctly points out,
Contractors is not entitled to relief under Rule 60(b)(1) 
because of its one-year time bar.  Slip op. at 7.[3]  Thus its 
claim that it mistakenly believed that these 11 cases were 
included in the settlement cannot prevail.

     Relief is also not warranted under Rule 60(b)(6), which
requires that a motion for relief be filed "within a reasonable
time."  Contractors provides no argument as to why its delay of
two to six years in requesting relief should be considered
"reasonable."  Mot.  Furthermore, for a party to prevail on a
60(b)(6) claim, it "must show `extraordinary circumstances'
suggesting that the party is faultless in the delay."  Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
393 (1993).  In most cases granting relief due to extraordinary
circumstances, "the movant is completely without fault for his 
or her predicament; that is, the movant was almost unable to 
have taken any steps that would have resulted in preventing the
judgment from which relief is sought." 12 James W. Moore et al.,
Moore's Federal Practice, � 60.48[3][b] (3d ed. 2000). Here, to
the contrary, Contractors has offered absolutely no reason why 
it was not at fault for missing its deadlines in 1993 and 1994.
Although Commissioner Beatty suggests that "there may have been
other grounds, not attributable to the fault of Contractors, 
that would have reasonably led it to believe that the decision
approving settlement included all remaining citations issued 
by the date of the decision" slip op. at 7 (emphasis added),
Contractors has provided us with nothing that supports that
assertion except a one-sentence declaration that it relied on 
the representations of its attorney and the Solicitor's lawyer. 
C. Reply.

     In any event, relief under Rule 60(b)(6) is justified only
when the basis for relief is other than those set forth in the
more specific clauses of 60(b)(1) through (5).  See Cotto v.
United States, 993 F.2d 274, 277-78 (1st Cir. 1993).  As the
Commission has made clear, the one-year time limit for motions
requesting relief under subsections (1) through (3) may not be
circumvented by using subsections (4) through (6). Lakeview Rock
Prods., Inc. 19 FMSHRC 26, 28 (Jan. 1997).  Here, Commissioner
Beatty's articulation of Contractors' potential claim under Rule
60(b)(6) (" `[E]xtraordinary circumstances'  pursuant to Rule
60(b)(6) could exist which may have arguably contributed to its
[Contractors'] lack of knowledge of the exclusion of the subject
proposed penalty assessments from the judge's decision approving
settlement. . . ."), slip op. at 6, is almost the mirror image 
of his characterization of Contractors' claim under Rule 
60(b)(1) ("[Contractors] believed that the 11 proposed penalty 
assessments had been settled along with other outstanding 
violations assessed against it. . . ."). Slip op. at 5. His 
characterization of both claims centers around the same 
mistaken belief or lack of knowledge regarding the status of 
the eleven penalty assessments vis a vis the May 1996 
settlement.  Consequently, relief under Rule 60(b)(6) is not 
appropriate.

     With all due respect, I also disagree with Commissioners
Riley and Verheggen's approach in this case, which would grant
Contractors relief from all 11 of the default orders due to a
presumed delay in the Secretary's enforcement efforts and a
presumption of retaliatory motive on her part. Slip op. at 11-
12. I am frankly puzzled by their statement that what is "most
troubling here is the Secretary's delay in attempting to 
enforce the penalties," slip op. at 11, when it is not clear 
from the record when collection attempts were made.  While I 
would also find the allegedly lengthy time period between the 
defaults and the collection proceeding troubling, I do not 
view it as a rationale for granting Contractors relief under 
60(b).

     In their opinion, my two colleagues turn the burden of 
proof for a Rule 60(b) case on its head.  They complain that 
"the Secretary has advanced no good reason for having failed 
to prosecute these penalties and seek payment in a more timely
fashion." Slip op. at 11. Given that Contractors is the moving
party requesting relief here, I see no reason why the 
Secretary would have needed to address the question of the 
timing of her collection efforts. On the other hand, although 
it is Contractors which has asked for relief from the final
orders, my colleagues' opinion never discusses Contractors' 
failure to litigate these 11 cases.  They make no mention of,
much less evaluate, the "reasonableness" of Contractors' 
years-long delay in coming to us for relief.  They are also 
completely silent about Contractors' assertion that it
believed all 11 citations were resolved in the May settlement.  
They thus would award "extraordinary relief" to a party 
without anywhere in their opinion alluding to or analyzing its 
role in this litigation. Such a one-sided approach to a 
request for equitable relief is unprecedented.

     In sum, I would deny relief with regard to all of the 
final orders.


                              Mary Lu Jordan, Chairman


Distribution

Eric Schoonmaker
Contractor's Sand & Gravel Supply, Inc.
P.O. Box 956
Yreka, CA 96067

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Tammy Nelson
Office of Civil Penalty Compliance, MSHA
4015 Wilson Blvd., 9th Floor
Arlington, VA 22203

Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006


**FOOTNOTES**

     [1]: As Commissioner Beatty notes, slip op. at 4, the
Commission looks to Rule 60(b) for guidance in cases where  
a party requests  that  the  Commission  grant  relief from 
a final order. See Close Const. Co. Inc., 23 FMSHRC 378,  
379  (Apr. 2001).  It provides in pertinent part:

     On motion and upon such  terms  as  are just,
     the  court  may  relieve a party or a party's
     legal representative  from  a final judgment,
     order,   or  proceeding  for  the   following
     reasons: (1) mistake, inadvertence, surprise,
     or excusable  neglect;  (2)  newly discovered
     evidence  which  by due diligence  could  not
     have been discovered  in  time  to move for a
     new   trial   under  Rule  59(b);  (3)  fraud
     (whether heretofore  denominated intrinsic or
     extrinsic),   misrepresentation,   or   other
     misconduct  of  an  adverse  party;  (4)  the
     judgment is void;  (5)  the judgment has been
     satisfied,  released,  or  discharged,  or  a
     prior  judgment upon which it  is  based  has
     been reversed  or otherwise vacated, or it is
     no longer equitable  that the judgment should
     have  prospective  application;  or  (6)  any
     other  reason  justifying   relief  from  the
     operation of the judgment.  The  motion shall
     be  made  within a reasonable time,  and  for
     reasons (1),  (2),  and (3) not more than one
     year after the judgment, order, or proceeding
     was entered or taken.

Fed. R. Civ. P. 60(b).

     [2]: The eight cases (A.C. Nos 04-04679-05511 through
05513, and A.C. Nos. 04-03404-05513 through 05517) all 
became final in 1994.

     [3]: I  do  not  a gree  with  Commission  Beatty  that
Contractors' allegation regarding  statements by its attorney
and the  Secretary's attorney during settlement  negotiations  
could even arguably constitute  fraud,  misrepresentation or 
misconduct presenting a claim for relief under Rule 60(b)(3).
Slip op. at 5.  In any event, like the Rule 60(b)(1) claim, 
any  claim under Rule 60(b)(3) would also be barred due to 
the one year time limit for motions requesting relief under 
that section.  Slip op. at 7.