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

 
MEDUSA CEMENT COMPANY
February 27, 1998
PENN 97-20-RM

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                      WASHINGTON, D.C. 20006

                         February 27, 1998

SECRETARY OF LABOR,                 :
 MINE SAFETY AND HEALTH             :
 ADMINISTRATION (MSHA)              :
                                    :
          v.                        :   Docket Nos. PENN 97-20-RM
                                    :            through 97-25-RM
MEDUSA CEMENT COMPANY               :

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

                            DECISION

BY:  Jordan, Chairman; Riley and Verheggen, Commissioners

     This is an interlocutory review of an order issued by
Administrative Law Judge Jerold Feldman denying a motion for
recusal[2] filed by Medusa Cement Company ("Medusa") in a
consolidated contest proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act").  Pursuant to Commission Procedural Rule
76(a)(1)(i), 29 C.F.R.  2700.76(a)(1)(i), the judge certified
for interlocutory review the order denying the recusal motion,
and the Commission granted Medusa's petition for interlocutory
review.  For the reasons that follow, we affirm the judge's order
denying recusal.

                               I.

                Factual and Procedural Background

     This proceeding involves several consolidated contests in
which Medusa challenged the citations and abatement periods.
Following the notices of contest, the cases were assigned to
Judge Feldman.  The proceeding was stayed while settlement
negotiations between counsel for Medusa and representatives of
the Mine Safety and Health Administration ("MSHA") were ongoing.
Order Granting Mot. for Cert. at 1 (January 29, 1997).  After the
collapse of those negotiations, Medusa's counsel, Henry Chajet
and Paul Wilson of the Patton Boggs law firm, filed a Motion to
Recuse in which they argued that the judge should recuse himself.

     The motion stated that in Rock of Ages Corp.,17 FMSHRC 1925
(November 1995) (ALJ), aff'd in pertinent part, 20 FMSHRC ____,
Nos. YORK 94-76-RM through 94-83-RM (February 24, 1998), the
judge demonstrated "open hostility towards the party, its
witnesses and particularly, his personal bias towards its
counsel" (Henry Chajet) (hereinafter "counsel for ROA"), and
interfered "with counsel's presentation of evidence."  M. Mot. at
1.  The motion requested that the proceeding be reassigned to a
different judge.  Id.  In the event the judge denied the motion,
Medusa asked that the matter be certified for interlocutory
review.  Id. at 1-2.  The Secretary opposed the motion, arguing
that the grounds for recusal were meritless and
further stating that Medusa's lead attorney was Paul Wilson, who
had not alleged any bias against himself.  S. Opp'n at 1-3.

**FOOTNOTES**

     [1]:  Commissioner Beatty assumed office after this case had
been  considered  at  a  decisional  meeting.  A new Commissioner
possesses legal authority to participate  in  pending  cases, but
such  participation  is  discretionary.  Mid-Continent Resources,
Inc., 16 FMSHRC 1218, 1218  n.2  (June 1994).  In the interest of
efficient decision making, Commissioner Beatty has elected not to
participate in this matter.

     [2]:  The Commission's procedural rule governing recusal, 29
C.F.R.  2700.81,  provides as follows:

                2700.81  Recusal and disqualification.

               (a) Recusal.  A Commissioner  or a Judge
          may recuse himself from a proceeding whenever
          he deems such action appropriate.

               (b)  Request  to withdraw.  A party  may
          request a Commissioner or a Judge to withdraw
          on  grounds  of  personal   bias   or   other
          disqualification.  A party shall make such  a
          request   by  promptly  filing  an  affidavit
          setting forth  in  detail the matters alleged
          to constitute personal  bias or other grounds
          for disqualification.

               (c) Procedure if Commissioner  or  Judge
          does  not withdraw.  If, upon being requested
          to withdraw pursuant to paragraph (b) of this
          section,  the  Commissioner or the Judge does
          not withdraw from the proceeding, he shall so
          rule upon the record, stating the grounds for
          his ruling.  If  the Judge does not withdraw,
          he shall proceed with the hearing, or, if the
          hearing has been completed,  he shall proceed
          with the issuance of his decision, unless the
          Commission  stays  the  hearing  or   further
          proceedings  upon  the granting of a petition
          for  interlocutory  review   of  the  Judge's
          decision not to withdraw.

     On December 2, 1996, the judge denied the motion to recuse.
In his order, the judge stated:

               During the Rock of Ages proceeding,
          counsel engaged in provocative conduct,
          pursued lines of questioning deemed to be
          irrelevant, and examined the Secretary's
          witnesses in an aggressive manner.  The bench
          rulings throughout Rock of Ages were
          necessary to discharge the judge's
          responsibilities to regulate the course of
          the hearing, to rule on offers of proof, and
          to ensure that only relevant evidence was
          received.

Order Denying Mot. to Recuse at 1 (December 2, 1996) (citations
omitted).

     On January 29, 1997, the judge granted Medusa's motion to
certify the ruling for interlocutory review.  In certifying the
order, the judge noted that he had denied the motion for recusal
"because regulating the course of the hearing, and making bench
rulings on evidentiary matters, are fundamental duties of a
presiding judge that do not support a claim of judicial bias."
Order Granting Mot. for Cert. at 2 (January 29, 1997).

                               II.

                           Disposition

     Medusa argues that the Commission should reassign the case
to another judge to avoid either bias or the appearance of bias.
M. Br. at 1.  Medusa states that its counsel had experienced the
judge's "personal bias" during the trial in Rock of Ages and that
he had submitted a brief to the Commission seeking reversal of
the judge's decision because, among other errors, he had
improperly and unfairly conducted the trial.  Id. at 2.

     As grounds for recusal, Medusa relies on the judge's conduct
in Rock of Ages and  submits pages and an appendix from the
operator's brief in that case.  In its brief, Rock of Ages
("ROA") argued that the judge committed reversible error by his
conduct of the hearing.  Id. at Attach. 3 & 4.  This conduct
purportedly included interrupting the presentation of evidence
"in an attempt to steer the case toward a predetermined
conclusion," interjecting repeatedly during counsel for ROA's
cross-examination, taking over his cross-examination of witnesses
(thereby giving advance notice of his theories and preventing
"cold" cross-examination of witnesses), encouraging witnesses to
state opinions adverse to ROA, misstating legal issues,
encouraging counsel for ROA to withdraw objections to the way the
hearing was being conducted, and refusing to strike the testimony
of a witness who conferred with another witness.  Id. at 3-4.
Medusa argues that the judge never assumed the role of a "neutral
arbiter" and that the judge's displeasure with counsel assertedly
increased with the filing of the brief with the Commission in the
Rock of Ages appeal.  Id. at 5.  As further support for the
assertion that the judge was biased, Medusa relies on the
objections of ROA's counsel to the judge's conduct of the hearing
and the response of the judge, who admonished counsel for ROA for
throwing his glasses during an off-the-record conference.  Id. at
6-10.  Medusa asserts that the Commission's precedent allows it
to take a commonsense approach and reassign a case when relations
between the judge and counsel create bias or the appearance of
bias.  Id. at 13-14.  As attachments to its brief, Medusa
submitted affidavits from counsel for ROA in which he swore that
"Judge Jerold Feldman bears personal bias against me."  Id. at
Attach. 1 & 2.

     The Secretary refutes the allegations of bias in Rock of
Ages, relying on attached pages from her brief in that case.  S.
Br. at 4 & Attach. A.  The Secretary further argues that the
judge's conduct was insufficient grounds for recusal under the
Supreme Court's decision in Liteky v. United States, 510 U.S. 540
(1994).  S. Br. at 4-5.  The Secretary asserts that there is a
lack of supporting evidence of bias or evidence that the judge
would act with bias in this case.  Id. at 6-9.  The Secretary
requests that the Commission affirm Judge Feldman's decision not
to recuse himself.  Id. at 13.

     In reply, Medusa asserts that the Commission should review
the judge's denial of recusal de novo, rather than under the
abuse of discretion standard suggested by the Secretary.  M.
Reply Br. at 2-3.  In its reply brief, Medusa moved to
strike that portion of the Secretary's brief, which alleged
that one of the counsel for Medusa (Chajet) "ha[d] `made a
practice' of making meritless accusations of impropriety
against Judges, opposing counsel and parties."  Id. at 5-10.
The Secretary opposed Medusa's motion to strike, noting that
her assertions regarding that attorney's conduct were based
on official records and findings.  S. Opp'n to Mot. to
Strike at 1.

     The standard of review governing recusal matters has been
previously addressed by the Commission.  In Big Horn Calcium
Co., 12 FMSHRC 1493 (August 1990), the Commission was asked
to review a judge's withdrawal from a case and termination
of a hearing.  The Commission held that the recusal of one
judge and reassignment of a matter to a new judge was
reviewed under "an abuse of discretion" standard.  Id. at
1496.  The use of an abuse of discretion standard for
recusal issues is consistent with the discretion accorded
judges in other discretionary matters related to the conduct
of trial.  E.g., In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1843-44, 1853 and 1864
(November 1995) (qualification and crediting of expert
witnesses; exclusion of trial testimony), appeal docketed
sub nom. Secretary of Labor v. Keystone Coal Mining Corp.,
No. 95-1619 (D.C. Cir. Dec. 28, 1995); Buck Creek Coal,
Inc., 17 FMSHRC 500, 503 (April 1995) (stay of proceedings);
Asarco, Inc., 14 FMSHRC 1323, 1327-28 (August 1992)
(discovery orders).  We reject Medusa's contention, Reply
Br. at 2-3, that section 113(d)(2)(C) of the Mine Act, 30
U.S.C.  823(d)(2)(C), establishes that the
Commission has de novo review authority over recusal
decisions of administrative law judges.[3]

     The issue of the judge's recusal in this proceeding based on
his rulings and conduct in Rock of Ages must be considered
in light of Commission decisions that address the role of
the judge at trial.  The Commission has recognized that, "a
judge is an active participant in the adjudicatory process
and has a duty to conduct proceedings in an orderly manner
so as to elicit the truth and obtain a just result."
Secretary of Labor on behalf of Clarke v. T.P. Mining, Inc.,
7 FMSHRC 989, 993 (July 1985).  The Commission has noted,
however, in reversing a judge's sua sponte post-hearing
joinder of a party, that "[t]he role of the Commission and
its judges is to adjudicate, not to litigate cases - a
procedural axiom followed by this Commission from its
formation."  Lonnie Jones v. D&R Contractors, 8 FMSHRC 1045,
1053 (July 1986) (citation omitted).  Also, in Canterbury
Coal Co., 1 FMSHRC 1311 (September 1979), the Commission
reversed the decision of an administrative law judge and
remanded the case for reassignment to a new judge.  Id. at
1314.  Acknowledging "the considerable leeway afforded
administrative law judges in regulating the course of a
hearing and in developing a complete and adequate record,"
the Commission concluded that the judge interjected himself
in the proceedings "so often and so extensively that [the
parties] were denied the opportunity to develop their case."
Id. at 1312-13.

     In addition to Commission cases, both parties rely on the
extensive body of federal cases dealing with
disqualification of judges.  In Liteky, the Supreme Court
recently interpreted the statutory provisions in Title 28 of
the U.S. Code.[4]  In that case, the petitioners alleged
that the judge violated 28 U.S.C.  455(a) in refusing to
recuse himself because of his conduct in an earlier trial
involving one of the petitioners.  510 U.S. at 542-43.  In
examining the history and meaning of sections 144 and 455(a)
and (b), the Court distinguished between a judge's opinions
derived from "extrajudicial source[s]" and those derived
from a prior judicial proceeding.  Id. at 550-51.  The Court
held:

          First, judicial rulings alone almost never
          constitute a valid basis for a bias or
          partiality motion. . . .  [T]hey cannot
          possibly show reliance upon an extrajudicial
          source; and can only in the rarest
          circumstances evidence the degree of
          favoritism or antagonism required . . . when
          no extrajudicial source is involved.  Almost
          invariably, they are proper grounds for
          appeal, not for recusal. Second, opinions
          formed by the judge on the basis of facts
          introduced or events occurring in the course
          of . . . current . . . or     . . . prior
          proceedings, do not constitute a basis for a
          bias or partiality motion unless they display
          a deep-seated favoritism or antagonism that
          would make a fair judgment impossible.
          Thus, judicial remarks during the course of
          trial that are critical or disapproving of,
          or even hostile to, counsel, the parties, or
          their cases, ordinarily do not support a bias
          or partiality challenge.

Id. at 555 (citation omitted).  The Court determined that the
lower court's rulings, statements (assertedly made with an anti-
defendant tone), and admonishments of counsel and parties
(whether legally supportable or not) were inadequate grounds for
recusal, because all occurred in the course of judicial
proceedings, and none displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible.  Id. at
556.

     There is no question that the judge took an active role in
the Rock of Ages proceeding at trial.  He frequently asked
questions of witnesses to clarify his understanding of the issues
under examination and to expedite the lengthy trial.  He
interrupted the examination of witnesses to encourage the parties
to stipulate to issues and shorten the examination.  In addition,
the judge announced to counsel what, in his view, were the
significant issues in the case, to allow them to tailor their
examination of witnesses.  Generally in response to objections
from the Secretary's  counsel, the judge cut off ROA's counsel's
use of hypothetical questions that strayed  too far from the facts
of the case. On occasion, the judge admonished ROA's counsel to
maintain the decorum of the proceeding.

**FOOTNOTES**

     [3]:  Section 113(d)(2)(C) provides only that the Commission
is to "affirm, set aside, or modify" a judge's  decision based on
the  "record"  in  the  proceeding;  it  does  not set forth  the
standard  of review to be applied.  Nor does the  fact  that  the
Commission  can  decide issues of "law, policy [and] discretion,"
M. Reply Br. at 3  (quoting  30  U.S.C.   823(d)(2)(A)), support
Medusa's contention that the Commission should  review  a judge's
decision on recusal de novo.

     [4]:  Title 28 provides in relevant part:

           144.  Bias or prejudice of judge

               Whenever  a party to any proceeding in a
          district court makes  and  files a timely and
          sufficient  affidavit that the  judge  before
          whom the matter  is  pending  has  a personal
          bias  or prejudice either against him  or  in
          favor of  any adverse party, such judge shall
          proceed no further therein, but another judge
          shall be assigned to hear such proceeding.

           455. Disqualification of justice, judge, or
     magistrate

               (a) Any justice, judge, or magistrate of
          the United States shall disqualify himself in
          any  proceeding  in  which  his  impartiality
          might reasonably be questioned.

               (b)  He shall also disqualify himself in
          the following circumstances:

                    (1) Where he has a personal bias or
               prejudice   concerning   a   party,   or
               personal     knowledge    of    disputed
               evidentiary   facts    concerning    the
               proceeding. . . .

     Under the relevant Commission rule and caselaw and analogous
federal statute and cases, we conclude that there is no basis for
Medusa's motion requesting the judge to recuse himself.[5]  The
judge's actions were well within the boundaries of his role in
conducting the trial.  See Liteky, 510 U.S. at 556 (judicial
rulings, routine trial administration efforts, and ordinary
admonishments to counsel and witnesses are inadequate grounds for
disqualification); see also Secretary of Labor on behalf of
Clarke, 7 FMSHRC at 993 (July 1985) ("[a]mong a judge's specific
obligations. . . is a duty to admonish counsel, when necessary").
In particular, we note that a judge has wide discretion to
interject questions in order to clarify testimony.  See Deary v.
City of Gloucester, 9 F.3d 191, 194-95 (1st Cir.1993) ("mere
active participation by the judge does not create prejudice");
see also United States v. Webb, 83 F.3d 913, 917 (7th Cir. 1996)
(a judge is not prohibited from asking questions to clarify an
important issue in the case); United States v. Olmstead, 832 F.2d
642, 648 (1st Cir.1987) (comments and questions remedied leading
questions, clarified lines of inquiry, or developed witness'
answers and were within court's discretion), cert. denied,  486
U.S. 1009 (1988).  Further, a judge's actions at trial in seeking
to avoid repetition in examining witnesses and limiting use of
hypothetical questions are proper.  See Desjardins v. Van Buren
Community Hospital, 969 F.2d 1280, 1282 (1st Cir. 1992) (judge's
request that counsel not be repetitive and follow proper
procedures in asking questions not an abuse of discretion).
Finally, the judge's placing on the record his concern about
counsel's throwing his glasses during an off-the-record
discussion was an appropriate response to counsel's conduct.  See
Arthur Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839
(7th Cir. 1989) (quoting FTC v. Amy Travel Service, Inc., 875
F.2d 564, 576 n.13 (7th Cir. 1989)) ("[f]riction between court
and counsel does not constitute bias").  In sum, none of the
judge's actions cited in Medusa's brief, either individually or
cumulatively, indicate that the judge harbored inappropriate bias
towards counsel that is grounds for recusal in this case.

     We further reject Medusa's argument that the Commission must
reassign the case in order to avoid the appearance of bias.  M.
Br. at 1; M. Reply Br. at 4-5; Oral Arg. Tr. at 30.  This record
does not indicate an appearance of bias.  Even if it were
present, appearance of bias is an insufficient ground upon which
to order recusal when the allegation of bias is based on prior
judicial proceedings (as opposed to extrajudicial conduct).  See
Liteky, 510 U.S. at 552-53 & n.2, 556; Baldwin Hardware Corp. v.
Franksu Enterprise Corp., 78 F.3d 550, 557-58 (Fed. Cir. 1996).
Cf. Nichols v. Alley, 71 F.3d 347, 350-52 (10th Cir. 1995) (based
on objective considerations, a reasonable person would have
reason to question judge's impartiality to preside over trial of
Oklahoma City bombing conspirator because of extrajudicial
considerations, including damage to judge's chambers and
courthouse and injury to his staff from the bombing).[6]  We
reject Medusa's apparent theory that a mere allegation of bias in
one case may serve as grounds for recusal of that judge (and
reassignment) in all subsequent cases involving the same party or
counsel.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's order
denying Medusa's motion for recusal.[7]
                             
							 
                              Mary Lu Jordan, Chairman
                                                           
                              James C. Riley, Commissioner
                                                            
                              Theodore F. Verheggen, Commissioner

     Commissioner Marks, concurring in part and dissenting in part:

     I concur in the result reached by my colleagues in affirming
Administrative Law Judge Feldman's denial of Medusa's motion for
recusal.  However, I find inexplicable the majority's refusal
to use Attorney Chajet's name throughout most of their opinion.
There were two counsels representing Medusa in this case,
Paul Wilson and Henry Chajet, both of the Patton Boggs law firm.
According to the Secretary of Labor, Mr. Wilson was the lead
counsel.  The recusal motion was  made as a result of matters that
affected Mr. Chajet, not Mr. Wilson.  It was Mr. Chajet who
claimed he had experienced the judge's "personal bias."  Maj. slip
op. at 3, line 22.  It was Mr. Chajet who claimed that the judge
"interject[ed] repeatedly" during his cross-examination, and that he
was encouraged to withdraw  objections to the way the hearing
was being conducted (maj. slip op. at 3, lines 29, 32-33), and it was
Mr. Chajet who claimed that the judge's displeasure assertedly
increased with the filing of the brief with the Commission in the
Rock of Ages appeal.  Maj. slip op. at 4, line 1.  It was Mr. Chajet
who objected to the judge's conduct of the Rock of Ages hearing (Maj.
slip op. at 4, line 3) and to the judge's admonishment of him for
throwing off his glasses during an off-the-record conference.  Maj.
slip op. at 4, lines 3-5.  It was  Mr. Chajet's affidavit that swore
that "Judge Jerold Feldman bears personal bias against me."  Maj.
slip op. at 4, lines 8-9.  Again, it was Mr. Chajet who claimed that
the judge cut off his use of hypothetical questions.  Maj. slip
op. at 7, line 1.  And it was Mr. Chajet that the judge admonished
for lack of decorum.  Maj. slip op. at 7, lines 2-3.  Finally, it was
Mr. Chajet who threw his glasses during an off-the-record
discussion.  Maj. slip op. at 7, lines 21-22.

    The opinion sustaining the judge's order denying Medusa's
motion for recusal should have   specifically indicated that Mr.
Chajet, and not Mr. Wilson, was the    recipient of the trial judge's
actions.

     I dissent from the majority's granting Medusa's motion to
strike, believing that in light of the disposition of this case there
is no need to reach that matter.  I  must say, however, as I did at the
oral argument in this case -  that for the Secretary to state in her
brief that Mr. Chajet has made a practice of making meritless
accusations of impropriety against judges, other counsel, and parties
in litigation without the slightest bit of evidence being presented to
the Commission to sustain those charges (even though the
Secretary's counsel was again given the chance to do so at the oral
argument) is in my opinion conduct unbecoming that which one expects
from the Secretary's legal staff.

                              Marc Lincoln Marks, Commissioner

Distribution

Henry Chajet, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C.  20037

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA  22041

**FOOTNOTES**

     [5]:   In  Rock  of Ages, 20 FMSHRC ___, Nos. YORK  94-76-RM
through 94-83-RM  (February  24,  1998),  the Commission reviewed
the  identical  judicial  conduct  at  issue in  this  case.   We
concluded that there was no basis for reversing  the  judge based
on his conduct of the trial.

     [6]:  UMWA on behalf of Rowe v. Peabody Coal Co.,  7  FMSHRC
1136  (August  1985), is readily distinguishable.  That decision,
which addresses  disciplinary  sanctions  of a judge, refers to a
prior reassignment order of the judge in the  proceeding that was
issued "to avoid either the appearance or existence  of  judicial
bias."   Id.  at  1138.   However,  the  judge's  conduct in that
proceeding involved extrajudicial incidents, including several ex
parte  contacts with representatives of one of the parties.   Id.
1140-44.

     [7]:   As  noted  above, Medusa moved to strike a portion of
the Secretary's brief to  the  Commission  which  stated that the
assertion that the judge is biased must be evaluated "in light of
the fact that Mr. Chajet has made a practice of making  meritless
accusations  of  impropriety  against judges, other counsel,  and
parties in litigation."  S. Br.  at  10-11, cited in M. Reply Br.
at 5-10.  We vote to grant the motion to strike and, accordingly,
the  motion  is  granted.   The  referenced   portions   of   the
Secretary's brief have not been relied on in our decision in this
matter.