<DOC>
[DOCID: f:va95-3m.wais]

 
MECHANICSVILLE CONCRETE INC.
March 10, 1995
VA 95-3-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                            March 10, 1995

SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. VA 95-3-M
                Petitioner         :  A.C. No. 44-06701-05506
                                   :
          v.                       :
                                   :
MECHANICSVILLE CONCRETE INC.,      :
                Respondent         :  Pit #1

                                ORDER

     On February 10, 1995, the Secretary filed a motion to
preclude Mechanicsville, Concrete, Inc. (Respondent) from
relitigating the issue of whether it and its mine, Pit No. 1,
are subject to the jurisdiction of the Commission.  The motion
is based upon the principle of collateral estoppel.[1]

     On July 7, 1994, in Secretary v. Mechanicsville Concrete,
Inc., 16 FMSHRC 1444 (July 1994), Respondent had raised the
defense that it was not subject to MSHA jurisdiction.  Judge
Arthur Amchan ruled that the Respondent herein and its mines,
Pit No. 1 and Branchville Plant, were subject to MSHA
jurisdiction.

     On August 16, 1994, the Commission denied the Respondent's
petition for review of this ruling, but accepted the Respondent's
petition for review of other issues, and directed sua sponte for
review of other rulings contained in Judge Amchan's decision.

     "Under the judicially developed doctrine of collateral
estoppel, once a court has decided an issue of fact or law
necessary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action involving a
party to the prior litigation."  U.S v. Mendoza, 464 U.S. 154,
158 (1984), citing Montana v. U.S., 440 U.S. 147, 153 (1979).
The rationale for this doctrine was set forth by the Supreme
Court in Montana, supra, as follows:  "To preclude parties from
contesting matters that they have had a full and fair opportunity
to litigate protects their adversaries from the expense and
vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing
the possibility of inconsistent decisions."  Montana v. U.S.,
440 U.S. at 153-154.

     Respondent has already litigated before Judge Amchan the
issue of the Act's jurisdiction over it and its mines.
Respondent asserts that the mine at issue before Judge Amchan was
close to the North Carolina border, whereas the case at bar
"deals only with a mine in the geographic center of the state."
However, Respondent, in the instant proceeding does not seek to
litigate the issue of jurisdiction based upon a set of facts
differing in essential part from those presented in the case
before Judge Amchan.  It is Respondent's position that "the Court
can address the legal (sic.) of the continuing viability of
Wickard without fact finding and testimony on the jurisdictional
issues. . . . Because this case will not involve the relitigation
of facts but simply the appropriateness of continuing to apply an
unworkable constitutional precedent this is not the kind of case
where collateral estoppel is appropriate."

     Hence, since Judge Amchan made a decision regarding the
jurisdiction of the Act over Respondent and its mines, Respondent
is precluded from relitigating this issue before me.

     The Secretary's Motion is granted .[2]  IT IS ORDERED that
Respondent be precluded from relitigating the issue of whether
it is subject to the Act, and that Judge Amchan's decision in
this issue is conclusive in the instant proceeding.  IT IS
FURTHER ORDERED that by March 23, 1995, the parties shall comply
with all the terms of the Prehearing Order previously issued on
January 23, 1995.

                                 Avram Weisberger
                                 Administrative Law Judge

Distribution:

Javier I. Romanach, Esq., Office of the Solicitor, U.S.
Department of Labor, Suite 516, 4015 Wilson Blvd.,
Arlington, VA  22203  (Certified Mail)

Arthur Anthony Lovisi, Esq., Mechanicsville Concrete, Inc.,
33211 Lees Mill Road, Franklin, VA  23851  (Certified Mail)

/ml

**FOOTNOTES**

     [1]:In its answer filed in this matter, Respondent asserted,
inter-alia, that the Commission does not have jurisdiction over
the Respondent or its mine, Pit No. 1, and that the Federal Mine
Safety and Health Act of 1977 ("the Act") is unconstitutional as
applied to this Respondent.

     [2]:To the extent that Respondents' arguments are
inconsistent with this decision, they are rejected for the
reasons set forth above.