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

LAKEVIEW ROCK PRODUCTS, INC.
January 21, 1997
WEST 97-38-M

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 1730 K STREET NW, 6TH FLOOR

 WASHINGTON, D.C. 20006

 January 21, 1997

SECRETARY OF LABOR, :
 MINE SAFETY AND HEALTH :
 ADMINISTRATION (MSHA) :
 :
 v. : Docket No. WEST 97-38-M
 : A.C. No. 42-01975-05509
LAKEVIEW ROCK PRODUCTS, INC. :

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]

 ORDER

BY THE COMMISSION:

 This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.
 801 et seq. (1994) ("Mine Act"). On December 2, 1996, Lakeview
Rock Products, Inc. ("Lakeview") filed with the Commission a
Motion to Reopen Case and for Relief from Order Assessing
Penalty, and a supporting Memorandum of Points and Authorities.
In the motion, Lakeview seeks to reopen a penalty assessment
issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA") that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
 815(a). Lakeview asserts that it is entitled to relief under
Fed. R. Civ. P. 60(b)(5) and (6).[2] Lakeview attaches the
affidavits of its secretary and treasurer, Gary V. Smith, and its
attorney, Gregory M. Simonsen. Smith's affidavit addresses
Lakeview's failure to submit a request for hearing ("Green Card")
to contest the alleged violations.

 The Secretary of Labor opposes the request, arguing that
Lakeview has failed to satisfy any of the requirements for
obtaining relief under Fed. R. Civ. P. 60(b). S. Opp'n at 4-6.
The Secretary also contends that Lakeview's request is untimely,
since it actually seeks relief based upon a claim of mistake
under Rule 60(b)(1), or misconduct by the adverse party under
Rule 60(b)(3). Id. at 5. According to the Secretary, Lakeview's
motion is therefore subject to the one-year time limitation
applicable to motions filed pursuant to Rule 60(b)(1), (2), or
(3), which cannot be avoided by invoking a different subsection,
such as Rule 60(b)(6). Id. In response, Lakeview contends that
the Secretary has attempted to mischaracterize its motion as one
brought pursuant to Rule 60(b)(1) and (3), and maintains that it
has demonstrated its entitlement to relief under Rule 60(b)(5)
and (6). L. Reply Mem. at 5-7.

 Under section 105(a) of the Mine Act, 30 U.S.C.  815(a), an
operator has 30 days following receipt of the Secretary of
Labor's proposed penalty assessment within which to notify the
Secretary that it wishes to contest the proposed penalty. If the
operator fails to notify the Secretary within that time period,
the proposed penalty assessment is deemed a final order of the
Commission. 30 U.S.C.  815(a).

 Lakeview failed to file its hearing request in this case
because of its mistaken belief that the citations at issue in
this case would be covered by the Green Card it had submitted in
another case involving a different citation that arose out of the
same inspection, conducted on May 2, 1994. See L. Mem. at 4, 
14; Affidavit of Gary V. Smith  9-12. Although the basis for
Lakeview's failure to file a Green Card in this case appears to
qualify as "mistake," "inadvertence," or "excusable neglect"
within the meaning of Rule 60(b)(1), Lakeview seeks relief
pursuant to subsections (5) and (6) of Rule 60(b). Lakeview
asserts that it is entitled to relief under Rule 60(b)(5) because
three of the citations involved in this case are virtually the
same as a prior citation (Citation/Order No. 4170702) that was
later vacated by an administrative law judge following a hearing.
L. Mem. at 8. Lakeview also asserts that it is entitled to
relief under Rule 60(b)(6) because the citations involved herein
are also included in two other penalty assessments that are being
contested by two employees who are agents of Lakeview. Id. at 8-
9. In addition, Lakeview contends that it is entitled to relief
under Rule 60(b)(6) because it has been faced with an "avalanche
of citations and assessments," the number and severity of which
are out of proportion to Lakeview's safety record and were the
result of unconscionable conduct of MSHA's inspectors and their
supervisor in attempting to make an example of Lakeview. Id. at
9-10.

 The Commission has held that, in appropriate circumstances
and pursuant to Rule 60(b), it possesses jurisdiction to reopen
uncontested assessments that have become final under section
105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May
1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (September
1994). As noted above, relief from a final order is available in
circumstances such as a party's "mistake, inadvertence, surprise,
or excusable neglect" (Rule 60(b)(1)), or "fraud . . . ,
misrepresentation or other misconduct of an adverse party" (Rule
60(b)(3)). A Rule 60(b) 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). This one-year time limit is an
outside time limit for motions requesting relief under
subsections (1) through (3), and may not be circumvented by
utilization of subsections (4) through (6) of Rule 60(b), which
are subject only to a reasonable time limit, when the real reason
for relief falls within subsections (1) through (3). 7 James Wm.
Moore et al., Moore's Federal Practice  60.28[2], at 60-316 to
60-317 (2d ed. 1996). See Newball v. Offshore Logistics Int'l,
803 F.2d 821, 827 (5th Cir. 1986) ("`where the reason for relief
is embraced in Clause (b)(1), the one year limitation cannot be
circumvented by use of Clause . . . (b)(6)'") (quoting Gulf Coast
Bldg. & Supply Co. v. IBEW, Local No. 480, 460 F.2d 105, 108 (5th
Cir. 1972)); United States v. Cirami, 563 F.2d 26, 32 (2d Cir.
1977) ("when the reason asserted for relief comes properly within
one of [the first three] clauses, clause (6) may not be employed
to avoid the one-year limitation"); Brown v. Burnside, 109 F.R.D.
412, 413 (E.D.N.Y. 1986) ("if a case falls within Rule 60(b)(1),
a party cannot avoid the one-year time limit by characterizing it
as falling within Rule 60(b)(6)"); see also Klapprott v. United
States, 335 U.S. 601, 613 (1949) ("one year limitation would
control if no more than `neglect' was disclosed by the
petition").

 Despite its attempt to characterize its motion as one
brought pursuant to Rule 60(b)(5) and (6), the explanation
offered by Lakeview for its failure to file a Green Card in this
case appears to fall squarely within the coverage of Rule
60(b)(1) (or possibly Rule 60(b)(3) to the extent that it alleges
unconscionable conduct or other misconduct on the part of MSHA).
Lakeview's motion was filed on December 2, 1996 (see 29 C.F.R. 
2700.5(d)), more than two years after the proposed penalty
assessment became a final order of the Commission. The motion is
therefore untimely under Rule 60(b). See Thomas Hale, 17 FMSHRC
1815, 1816-17 (November 1995); Ravenna Gravel, 14 FMSHRC 738, 739
(May 1992); Pena v. Eisenman Chemical Co., 11 FMSHRC 2166, 2167
(November 1989). As we have previously recognized, the one year
time limit contained in Rule 60(b) "may not be extended." Pena
v. Eisenman Chemical Co., 11 FMSHRC at 2167. Accordingly, we
deny Lakeview's request for relief under Rule 60(b).

 For the foregoing reasons, Lakeview's request for relief is
denied.

 Mary Lu Jordan, Chairman

 Marc Lincoln Marks, Commissioner

 James C. Riley, Commissioner

**FOOTNOTES**

 [1]: Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C.  823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.

 [2]: Rule 1(b) of the Commission's Procedural Rules
provides that the Federal Rules of Civil Procedure shall apply
"so far as practicable" in the absence of applicable Commission
rules. 29 C.F.R.  2700.1(b).

 Rule 60(b) states, in part:

 [T]he court may relieve a party . . . 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.

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