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02/22/78 Association of Bituminous v. Cecil D. Andrus

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


February 22, 1978

ASSOCIATION OF BITUMINOUS CONTRACTORS, INC

v.

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR, U.S. DEPARTMENT OF THE INTERIOR UNITED MINE WORKERS OF AMERICA, APPELLANT ASSOCIATION OF BITUMINOUS

CONTRACTORS, INC

v.

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR, U.S.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

DEPARTMENT OF THE INTERIOR

UNITED MINE WORKERS OF

AMERICA,

PARTY-DEFENDANT

Nos. 75-1931, 75-1932 1978.CDC.24

Appeals from the United States District Court for the District of Columbia (D.C. Civil 74-1058).

APPELLATE PANEL:

Opinion for the court filed by MacKINNON, Circuit Judge.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON

The events underlying this appeal begin with a decision in an earlier unconnected case involving essentially the same facts concerning the Affinity Mining Co. in West Virginia. In that case an order issued on December 21, 1970, to evacuate a slope being driven at the Keystone No. 5 coal mine operated by Affinity. A federal coal mine inspector had documented conditions at that slope constituting an imminent danger, *fn1 and issued the withdrawal order pursuant to section 104 of the Federal Coal Mine Health and Safety Act of 1969. *fn2 On February 4, 1972, the Bureau of Mines petitioned the Interior Board of Mine Operations Appeals to assess civil penalties upon Affinity Mining Company because of the conditions existing at the time of the withdrawal order. *fn3 The dangerous conditions were limited to the operations involved in driving the new slope, however, those excavating works were entirely under the control of Cowin Construction Company, an independent subcontractor under contract to drive the tunnel but not to mine coal. The issue in this appeal is to determine the proper party to assess under the Federal Coal Mine Health and Safety Act when construction operations present safety hazards.

The Affinity Mining case was decided in March of 1973. The Administrative Law Judge ruled that the construction company was the more "offending party," and that the proposed fine should be levied only upon it. *fn4 The Interior Board of Mine Operations Appeals affirmed, ruling that a proper interpretation of the Federal Coal Mine Health and Safety Act Required that Only the construction company be liable for safety or health violations connected with coal mine construction. *fn5 There was no further review of that decision. *fn6

In July of 1974, the Association of Bituminous Contractors, Inc., a trade association of contractors who carry on coal mine construction work, brought suit in the U.S. District Court for the District of Columbia. The Association sought a declaratory judgment that an independent contractor engaged by a coal mining company for construction work (not actual mining) did not fall within the category of an "operator" *fn7 of a "coal mine" so that no stricture of the Federal Coal Mine Health and Safety Act, and particularly no liability for civil penalties under 30 U.S.C. § 819(a), could be imposed against independent companies performing such construction work.

The statute provides:

(h) "coal mine" means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities.

30 U.S.C. § 802(h) (1970). Therefore, any person who "controls or supervises . . . a (slope) . . . to be used in . . . extracting in such area bituminous coal (etc.)" is, by definition, an "operator."

An injunction was also requested against the Secretary of the Interior "restraining (him) . . . from enforcing and applying the Act and the standards and regulations promulgated thereunder against companies engaged in the construction of coal mines. . . ." (J.A. 11). The District Court granted the relief requested in an oral opinion announced May 22, 1975 (J.A. 63), and the Secretary of the Interior has taken this appeal. *fn8 We reverse. I. JURISDICTION OF THE DISTRICT COURT

In its suit for declaratory and injunctive relief, the Association is suing essentially to overturn the Board's decision in Affinity Mining. *fn9 The Secretary contends that the District Court had no jurisdiction to hear such a claim, since 30 U.S.C. § 816(a) specifically provides for judicial review by the U.S. Court of Appeals. The rule he would apply here is "that where Congress has provided a special and adequate procedure for judicial review . . . that procedure is to be considered exclusive except in special circumstances not present here." Standard Forge and Axle Co., Inc. v. Coleman, 179 U.S.App.D.C. 309, 310, 551 F.2d 1268, 1269 (1977). See also Whitney National Bank v. Bank of New Orleans, 379 U.S. 411, 419, 85 S. Ct. 551, 13 L. Ed. 2d 386 (1965); Investment Co. Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App.D.C. 311, 551 F.2d 1270 (1977).

Closer comparison of the facts in this case and the standard asserted, however, reveals that the standard is inapposite. The "special and adequate procedure for judicial review" relied on here explicitly Excludes review of the type of order involved in Affinity Mining :

Any order or decision issued by the Secretary or the Panel under this chapter, Except an order or decision under section 819(a) of this title, shall be subject to judicial review . . . .

30 U.S.C. § 816(a) (1970) (emphasis added). Section 819(a) provides:

(1) The operator of a coal mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this chapter . . . shall be assessed a civil penalty by the Secretary. . . .

(4) If the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order, the Secretary shall file a petition for enforcement of such order in any appropriate District court of the United States. . . . The court shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order and decision of the Secretary or it may remand the proceedings to the Secretary for such further action as it may direct. The court shall consider and Determine de novo all relevant issues, except issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 816 of this title . . . . (Emphasis added.)

Clause (1) provided the Bureau of Mines with authority to cite the coal company in Affinity Mining. If there is a refusal to pay the fine assessed, then the entire proceeding comes up for review before the District court pursuant to clause (4), and that court is empowered to make a "de novo review of all relevant issues." Where the Interior Board of Mine Operations Appeals has dismissed the assessment of a fine, however, the matter is at an end.

Hence, to the extent that the Federal Coal Mine Health and Safety Act provides any judicial review of the Secretary's imposition of civil penalties under 30 U.S.C. § 819, review is available through a factual hearing in the district court. Where a decision has been made Not to assess penalties, however, there is no Coal Mine Act statutory review procedure at all. If any such decision constitutes "agency action" causing some person to suffer "legal wrong," judicial review would be available by 5 U.S.C. § 702, but the Administrative Procedure Act does not designate the court in which such a petition should be brought. As declaratory judgment and injunctive relief are being sought, and the question involves an interpretation of federal law relevant to interstate commerce, jurisdiction in the district court would be appropriate under 28 U.S.C. §§ 1331, 1337, 1651 & 2201 (1970).

This case is, therefore, fundamentally different from those in which judicial review, direct from the agency, has been found to be exclusively vested in the appropriate U.S. Circuit Court of Appeals. Investment Co. Institute (supra) for example, involved informal rulemaking in which the appellant had participated, followed by an interpretative ruling by the Federal Reserve Board. "Neither appellant nor any interested party sought judicial review in a court of appeals . . . ." Investment Co. Institute (supra) 179 U.S.App.D.C. at 316, 551 F.2d at 1275. Also, the court found that the Bank Holding Company Act which was being construed in Investment Co. Institute looked to the Federal Reserve Board to develop the necessary administrative record, obviating any need for the district court to determine facts. "It is the availability of a record for review and not the holding of a quasi-judicial hearing which is now the jurisdictional touchstone." Investment Co. Institute (supra) at 318, 551 F.2d at 1277, Quoting Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U.S.App.D.C. 191, 195, 479 F.2d 912, 916 (1973).

In the case of a civil penalty assessed for violations of mandatory health and safety standards, the Federal Coal Mine Health and Safety Act demonstrates precisely the opposite intent, for, despite the full hearing before the Secretary mandated by 30 U.S.C. § 819(a)(3), any and all "relevant issues" are to be reheard, De novo by a district court. 30 U.S.C. § 819(a)(4). *fn10 One simply cannot read into the Coal Mine Act the antipathy to district court adjudication that was inferred in the Whitney National Bank; Investment Co. Institute line of cases. *fn11

Finally, in Whitney National Bank; Macauley v. Waterman Steamship Corp., 327 U.S. 540, 66 S. Ct. 712, 90 L. Ed. 839 (1946); and Standard Forge and Axle and Investment Co. Institute, all of which are cited in support of exclusive appellate court review, the decision being appealed was either rule-making in which petitioner had participated, or adjudication in which petitioners had been a party. Here, the Association of Bituminous Contractors had no role to play in the adjudication of Affinity Mining's non-liability. As one source relied on in Investment Co. Institute has commented:

rule that foreclosed all opportunity for nonparty judicial review would seem too harsh. An individual ultimately affected by agency action might not attempt to intervene in the initial proceeding for a number of legitimate reasons. (footnote: See Gage v. AEC (156 U.S.App.D.C. 231, 235), 479 F.2d 1214, 1218 (D.C. Cir. 1973) . . . .) He may not realize that the agency's decision is likely to operate against his interests. More commonly, he may not be aware that the agency is taking action at all. *fn12 Moreover, prohibiting all nonparty review would have the disadvantage of encouraging unnecessary intervention by persons whose interests are unlikely to be affected by an administrative hearing.

Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv.L.Rev. 980, 996 (1975).

The specific appeal sections of the Coal Mine Health and Safety Act do not apply to the review here sought of the Secretary's failure to hold coal mine operators liable. What guidance is obtainable from the statute indicates a desire to have federal district courts consider findings of law and fact. Hence, we hold that the district court had jurisdiction to hear the present case. II. RIPENESS

Jurisdiction does not settle the issue of justiciability, however. The Secretary contends that the Association's suit for declaratory judgment was not ripe for adjudication. Affinity Mining overturned a levying of penalties on a coal mine operator, but it did not impose any penalty on the contractor. The Secretary argues that a proper appeal could be brought only by a construction contractor who had been found liable under 30 U.S.C. § 819.

Although none of the present petitioners is under citation for violation of a mandatory health or safety regulation, the case is sufficiently ripe for adjudication on the authority of Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). "Pre-enforcement review," *fn13 as sought in Abbott Laboratories, is requested here. Both suits were brought in district court for declaratory and injunctive relief. Abbott Laboratories involved regulations issued after informal rule-making, whereas the present case focuses on the potential application of an adjudication. The precise category of agency action, however, was not the test for ripeness in Abbott Laboratories. Rather, the Court held:

The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

387 U.S. at 149, 87 S. Ct. at 1515.

The question of "fitness for judicial decision" comes down to a determination of whether "the issue tendered is a purely legal one" and whether the agency's action was final. Just as in Abbott Laboratories, the question raised in this case is a definitional one (whether the statutory term "operator of a coal mine" can encompass independent construction companies). No fact findings are required.

As for finality, Abbott Laboratories applies less readily because the case then before the Court, and the cases the Court relied upon, were rules or orders, not adjudications. See, e.g., Frozen Food Express v. United States, 351 U.S. 40, 76 S. Ct. 569, 100 L. Ed. 910 (1956); United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S. Ct. 763, 100 L. Ed. 1081 (1956). However, the principles derived from those cases provide a means for measuring finality: final action is "promulgated in a formal manner," "clearly definitive," "no hint that (it) is informal . . . or only the ruling of a subordinate official . . . or tentative." 387 U.S. at 151, 87 S. Ct. at 1517. All of these factors point to finality here. In any subsequent proceeding under 30 U.S.C. § 819, the Secretary could cite a construction contractor. Review could be obtained before the Interior Board of Mine Operators Appeals, but that is precisely the body that has ruled that contractors Alone are to be held liable. Any inference of non-finality from the fact that the party that must bring any citation is not the party whose interpretation of liability is presently on appeal is also laid to rest by Abbott Laboratories, where the Attorney General had to "authorize criminal and seizure actions for violations of the statute" as interpreted in regulations promulgated by the Commissioner of Food and Drugs. 387 U.S. at 151, 87 S. Ct. at 1517.

Of course, it is possible for the Interior Board to reverse itself in a subsequent adjudication. It would have been equally possible for the Commissioner to rescind the regulation in Abbott Laboratories. Until either event occurs, however, the threat of enforcement is a serious encumbrance with which the regulated companies are burdened. Thus, considerations of finality blend into an analysis of the impact of the regulations and the harm they are likely to cause to concerned parties even in the absence of direct application. "he test of ripeness . . . depends not only on how adequately a court can deal with the legal issue presented, but also on the degree and nature of the regulation's present effect on those seeking relief." *fn14 Here, the similarity between the present case and Abbott Laboratories is most strong. Independent coal mine construction contractors threatened with potential liability are likely to make the necessary safety investments rather than insist that the coal mine operators incur such expenditure. If liability insurance is available, it is expectable that the construction companies will purchase it. It was just this situation a company being forced to incur all the expenses that regulation would entail before it can challenge the regulation in a specific adjudication, or suffering heavy fines if it did not make the expenditures that led the Court in Abbott Laboratories to find sufficient present harm to conclude that the case was ripe. *fn15

As a practical matter, after the decision in Affinity Mining was handed down, coal mine construction companies knew that the Bureau of Mines would impose liability on them, for unsafe or unhealthy conditions. They were faced with sizeable investments to take over safety expenditures from the coal mine operators, even though it was possible that the entire premise for such expense was not legally sound. In order to challenge that premise before the payment of such costs made their claim moot, petitioners were entitled to seek the declaratory and injunctive relief in the district court. III. THE COLLATERAL ESTOPPEL EFFECT

In National Independent Coal Operator's Association v. Brennan, 372 F. Supp. 16 (D.D.C.1974), the Association of Bituminous Contractors, Inc., was also a plaintiff. Suit was brought for injunctive relief against the application of Title IV of the Federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq. (1970), as amended (Supp. V 1975)), to coal mine construction companies. The court concluded that the Secretary's regulation including "all coal mine construction companies, whether or not they engage in the extraction of coal" as "operators" "exceeds and is inconsistent with the definition of operator stated at Section 3(d) of the Act." 372 F. Supp. at 25. Section 3(d) of the Act, 30 U.S.C. § 802(d) (1970), is part of the general definition section. It applies to the civil penalties section 30 U.S.C. § 819, at issue here, as well as to Title IV, which was at issue in National Independent. The Association seeks to assert its victory in National Independent as collateral estoppel against the Secretary of the Interior in the present proceeding.

Collateral estoppel is available "between the same parties as those to the original suit . . . (where) the very fact or point now in issue was, in the former action, (1) litigated by the parties; (2) determined by the tribunal; and (3) necessarily so determined." F. James, Civil Procedure (1965) § 11.18 at 576. *fn16 One problem is sufficient to dispose of this issue: the third requirement for collateral estoppel is plainly not met. It was not Necessary To the decision in National Independent To find that construction contractors were not encompassed within the general statutory definition. The issue in that case was simply an operator's obligation to provide insurance or to self-insure in order to afford black-lung compensation payments under Title IV of the Act. The district court's opinion is replete with findings specific to the black-lung issue. There is no discussion of the statutory provisions relating to imminent dangers or safety standards. The district court found that "The determination by the Secretary . . . that such coal mine construction companies are operators within the meaning of the Act contravenes the legislative intent, scheme and purpose Of Title IV." 372 F. Supp. at 25 (emphasis added). Every one of the court's findings may similarly be limited to Title IV of the Act, since that was the only section at issue. Hence, the court's conclusion that coal mine construction companies are not operators within the meaning of the general definition of 30 U.S.C. § 802(d) was broader than Necessary For the outcome reached. Collateral estoppel will not extend a finding reached in the context of pneumonoconiosis to a case involving danger of mine collapse or explosion. *fn17 IV. THE MERITS

At last, we may turn to the merits of the district court's decision. During the pendency of this appeal, the Fourth Circuit has issued its opinion by Judge Butzner in Bituminous Coal Operators' Association v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977), which provides guidance to our consideration of this case. *fn18 The BCOA Litigation arose as yet another chapter in the Affinity Mining History. Subsequent to the issuance of the District Court's opinion in the present case, the Secretary of the Interior ordered that federal coal mine inspectors were to cite coal mining companies for violations of mandatory safety regulations at the site of coal mine Construction Operations. The Coal Operator's Association challenged that order in the U.S. District Court for the Western District of Virginia *fn19 in much the same way that the contractors' association challenged Affinity Mining In the present litigation before the U.S. District Court for the District of Columbia.

The question is one of statutory construction. The definitional section of the Coal Mine Health and Safety Act specifies that the term

(d) "operator" means any owner, lessee, or Other Person who operates, controls, or supervises a coal mine . . . .

30 U.S.C. § 802(d) (1970) (emphasis added); and

(h) "coal mine" means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities . . . .

30 U.S.C. § 802(h) (1970).

It is a fundamental rule, too often neglected, that in statutory construction the primary dispositive source of information is the wording of the statute itself. Under 30 U.S.C. § 819(a)(1), "(t)he Operator Of a coal mine in which a violation occurs" (emphasis added) is liable for civil penalties. And by the definitional section of the statute an "operator" of a "coal mine" may be the "owner," and he may be the "lessee," and he may be an "Other Person" (emphasis added). In this context "other person" is to be read Ejusdem generis To refer to other Similar Person, "of like kind and character to the designated "owner(s or) lessee(s) designated.' " In so defining "operator," since the statute employs the general words "other person," following the specific words "owner, lessee," the words "other person" are to be read Ejusdem generis To refer to other persons of the same class as those enumerated by the specific words. *fn20 Thus, the other persons must be similar in nature to owners and lessees. That would include independent contractors who operate, control or supervise a "coal mine," as defined in the statute.

"Operator" includes a person other than an owner or lessee who operates, controls, or supervises a coal mine. A "coal mine means an area of land and all . . . shafts, slopes, tunnels, excavations, and other property . . . placed upon, under, or above the surface of such land . . . to be used in . . . the work of extracting bituminous coal." Shaft excavations and slopes are explicitly part of the definition of coal mine. Such coal mine construction operations are under the "supervision" of coal mine construction companies. It makes no difference that such companies are not owners or lessees, the fact of their control or supervision over the designated areas or facilities, under the statute, makes them "operators." For an "other person," or "lessee" to be an "operator" does not require that he control or supervise an entire coal mine. The definition may be read disjunctively. Hence, we conclude that the statutory definition on its face permits the interpretation given in Affinity Mining : an independent company engaged to do construction work at a coal mine is with respect to his contractual work an "operator of a coal mine" and is liable for violating mandatory health and safety regulations imposed in accordance with the Act.

The district court also relied on the statute's wording, but reached a contrary result. It focused on the clause " "operator' as meaning any owner, lessee, or other person who operates, controls, or supervises a coal mine." The court held:

It is clear to the Court that the statute placed the burden of Compliance with the regulations to be developed by the Secretary and the other requirements and penalties of the Act upon "owners, lessees," not "and other persons," but, "or other persons" who actually operate, control or supervise the mine.

(J.A. 67). The court's interpretation was that only one party could actually be operating, controlling, or supervising the mine. That reading, however, does not extend to the full sense of the definition and does not fully apply the statutory definition of a "coal mine." Likewise, this is an instance where "or" means "and." *fn21 There is always an owner of a coal mine, yet the statute includes lessees and "other persons" within the definition of operator as well. So there must be some cases where the person who operates, controls, or supervises is not the owner. In those cases, the definition of operator must encompass the owner And such other person. The district court supports its conclusion that only one person could be an operator by reading the clause "who operates, controls, or supervises a coal mine" to apply to "owner," "lessee" And "other person." If that were the correct reading, the specification of owner and lessee would then be superfluous. The statute could merely have read " "operator' means any person who operates, controls, or supervises a coal mine." A statutory interpretation that gives meaning to all the words used is to be preferred over one that leaves some words as inoperative. *fn22 We hold that an independent construction company, which operates, controls, or supervises excavation work on shafts, slopes, or tunnels to be used in the work of extracting coal *fn23 from a coal mine is an "operator of a coal mine" within the meaning and purposes of 30 U.S.C. § 819(a)(1). *fn24

The decisions of the Interior Board of Mine Operations Appeals, Wilson v. Laurel Shaft Construction Co.,25 and Affinity Mining (supra) Stress the importance of placing direct liability on the independent construction company as the party most able to take precautionary measures. The conclusion that coal mining companies were the only parties that could be assessed civil penalties was urged by the Bureau of Mines, but forcefully rejected by the Interior Board of Mine Operations Appeals in Affinity Mining.26 It is not a stretching of the statute to hold that companies who profess to be as independent of the coal mine owners as these construction companies purport to be, do Control And Supervise The construction work they have contracted to perform over the area where they are working. If a coal mine owner of lessee contracts with an independent construction company for certain work within a certain area involved in the mining operation, the supervision that such a company exercises over that separate project clearly brings it within the statute. Otherwise, the owner would be constantly interfering in the work of the construction company in order to minimize his own liability for damages. The Act does not require such an inefficient method of insuring compliance with mandatory safety regulations.

This rationale provides guidance in interpreting Congressional intent in a case like the present where, by everyone's concession, there is no helpful legislative history. The interpretation given to a statute by its enforcing agency should not be overturned by a reviewing court short of convincing proof of error,27 and the statutory construction asserted by the district court here falls far short of proving that the Board misconstrues the statute.

The Interior Board of Mine Operations Appeals did not err in holding that independent coal mine construction companies are liable in carrying out their contracts for failure to comply with the mandatory safety and health standards of the Federal Coal Mine Health and Safety Act.28 The decision of the district court is reversed.

Judgment accordingly. IN AGREEMENT

LEVENTHAL, Circuit Judge, concurring in judgment:

I concur generally in Judge MacKinnon's opinion on the merits. I concur in the judgment that the District Court had jurisdiction in this case to hear the complaint of the Association of Bituminous Contractors, Inc. (hereafter "Association"). But my approach differs from Judge MacKinnon's.

One of the difficulties with this jurisdictional issue is that it was raised cursorily in the government's brief in this court. In fact, it turns out to be a prickly question, which required much judicial research. I can understand that the Secretary may be more interested in the merits, but I should have thought some of the reasons for centralizing court presentation in the Department of Justice were a greater awareness of the importance and complexity of jurisdictional issues and a readiness to devote the time required for their sound resolution.

With that preamble, I present my views on the jurisdictional issue.

1. There are special provisions for judicial review under the Federal Coal Mine Health and Safety Act of 1969 (hereafter "Act"). The plaintiff Association (appellee) did not bring this suit under those provisions.

What plaintiff invoked was the District Court's more general jurisdiction, under 28 U.S.C. §§ 1331, 1337, 2201 (1970). That is not available as to any controversy fairly within the contemplation of the special review provisions of the Act. As this court recently observed in Investment Company Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App.D.C. 311, 320, 551 F.2d 1270, 1279 (1977), "an impressive line of authority supports the . . . proposition that, even where Congress has not expressly conferred exclusive jurisdiction, a special review statute vesting jurisdiction in a particular court cuts off other courts' original jurisdiction in all cases covered by the special statute." The Administrative Procedure Act itself states that "(t)he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute," except where such review would be inadequate.1

2. That brings us to a close examination of the special review provisions of the Act and their contemplated scope. Section 106(a) of the Act, 30 U.S.C. § 816(a) (1970), provides that "any order or decision" issued by the Secretary (or the Interior Board of Mine Operations Appeals)2 shall be subject to review in an appropriate court of appeals.3

We must consider the possibility that the pertinent decision of the Secretary, here reviewed in the district court, is one actually subject to review exclusively in the court of appeals under § 816(a). That provision pertains to "any order or decision issued by the Secretary." The only exception is an order or decision under § 819(a), which involves the assessment of penalties by the Secretary. Section 819(a)(4) is a special provision for judicial review of penalty assessments.4 It provides for suit by the Secretary in the district court to enforce the collection of a civil penalty imposed for violation of a mandatory health or safety standard.

A petition under § 816 must be filed by a "person aggrieved", but certainly the bituminous contractors comprising the plaintiff Association, and the Association suing in behalf of its members, were "aggrieved" as that term is understood under current principles of administrative law.5

Although there is no other explicit qualification to the scope of 816(a), it is implicit in the structure of the section that Congress contemplated review by the court of appeals on the basis of an administrative record developed prior to the decision of the Secretary or the Interior Board of Mine Operations Appeals (Board), which acts under delegation by the Secretary.6 Undoubtedly the chief work envisioned for the court of appeals under § 816(a) was that of reviewing challenges to withdrawal orders (orders closing mines because of imminent danger due to safety or health violations) and challenges to abatement orders (requiring correction of a violation within an allotted time) after those challenges had been passed on by the Board.7

One panel of the Fourth Circuit has stated that such appeals delimit the full scope of § 816.8 That conclusion in the Bituminous Coal Operators " opinion reflects, I think, a hasty reading of the statute. The provision for judicial review of "any order or decision issued by the Secretary," extends, in my view, to an order promulgating health or safety standards.9 The Act calls for notice of such proposed standards, receipt of data and comments thereon, and then some kind of public hearing if formal objections are filed. The final promulgation of health and safety standards is, in my opinion, subject to judicial review in the court of appeals.10

Another indication that review by the court of appeals under § 816 is broader than that set forth by the Fourth Circuit in the Bituminous Coal Operators " opinion appears from the provision in § 816 for judicial review of "any order or decision issued . . . by the Panel."11 The duties given to the Panel by the Act relate to the approval of permits for noncompliance with certain interim standards. See, e.g., 30 U.S.C. 865(a) (1970).

I am by no means clear as to the correctness of the Fourth Circuit's ruling in Bituminous Coal Operators " that the district court had jurisdiction of the controversy. The question is not an easy one. There was a "decision by the Secretary," that he would hold the operators to the standards of the Act even as to construction work done by independent contractors. True, it was not entered on the basis of a record. But the question arises whether that is a necessary condition to § 816 review by a court of appeals. In other instances, the familiar provisions for review by a court of appeals of an adverse agency decision have established jurisdiction in the court of appeals even though the agency treated the issue as one purely of law, without any provision for evidentiary hearing.12 When a "decision" is not directed to a particular party, but is an interpretative ruling, does the issue of review under § 816 come to depend on whether the Secretary has conducted a notice-and-comment proceeding? Arguments may be made both ways.

In this case, however, we have an unusual situation that excludes review under § 816 because the crucial departmental ruling the Board's decision in Affinity Mining Company was a decision on an appeal, under § 819, from the Secretary's imposition of a civil penalty. And a decision arising under § 819(a) is explicitly excluded from § 816 review.

3. That brings up the question whether plaintiff Association, unable to proceed under § 816(a) in a court of appeals, validly invoked the general equitable jurisdiction of the district court.

I think the answer is yes because the contractors had no other route for review of the Department's Affinity ruling that contractors were liable, no route short of waiting for enforcement proceedings and meanwhile facing withdrawal and abatement orders, and possible civil penalty assessments.

The Affinity ruling set forth the liability of construction contractors, but it was rendered in a case (a) where no construction contractor was a party, and (b) there was no penalty levied. The Board exonerated the subject of the penalty proceeding, Affinity Mining, a mine operator, while stating that in like circumstances in the future it would hold the mine contractor liable. In that state of facts, the construction contractors were faced with a situation that called for some judicial review yet fell outside the special judicial review provisions of the Act. Therefore the District Court had jurisdiction. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 280-82, 443 F.2d 689, 695-97 (1971).

4. What troubles me about Judge MacKinnon's opinion is that it goes beyond this simple ground for jurisdiction and makes an observation about the Federal Coal Mine Health and Safety Act that I think is misleading and unnecessary for purposes of disposing of this case. Judge MacKinnon distinguishes this case from Investment Company Institute by arguing that, unlike the Bank Holding Company Act, there is no antipathy to district court review under the Federal Coal Mine Health and Safety Act. As evidence for this proposition, Judge MacKinnon points to 819(a)(4), the provision for district court enforcement of civil penalties. In such enforcement proceedings, according to Judge MacKinnon, "any and all "relevant issues' are to be reheard De novo by a district court."

In National Coal Operators' Association v. Kleppe, 423 U.S. 388, 96 S. Ct. 809, 46 L. Ed. 2d 580 (1976), the Supreme Court described review under section 819(a) (4) as follows:

If the operator does not pay the penalty assessed, the Secretary is required, pursuant to § 109(a)(4), 30 U.S.C. § 819(a)(4), to petition for judicial enforcement of the assessment in the district court for the district in which the mine is located. At that stage the court must resolve the issues relevant to the amount of the penalty in a De novo proceeding with a jury trial if requested. The trial De novo with a jury is not available for review of issues of fact which "were or could have been litigated" in the court of appeals under § 106.

Id. at 393, 96 S. Ct. at 812 (footnote omitted). As to the contention that trial De novo is available on the factual basis of the violation as well as on the amount of the penalty, the Supreme Court observed that "the statutory scheme is less than clear," and declined to reach the issue.13 This court should follow the Supreme Court's lead and not intimate any views on review under § 819(a)(4). Given the scant presentation by the government, this court simply is not in a good position to expatiate on the scope of that subsection. Section 819(a)(4) gives the district court jurisdiction to determine issues relevant to the penalty, but that should not generate a broad conclusion of hospitality to district court review under the Federal Coal Mine Health and Safety Act. Indeed, § 819(a)(4) expressly excludes from district court review "issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 816." The scope of district court review, therefore, is dependent on an anterior determination of the scope of court of appeals review. For the present case, that the Association had no opportunity for judicial review under the special review provisions of the Act is enough to establish general district court jurisdiction. That should end the jurisdictional discussion in this case.

On the merits, I am in accord with Judge MacKinnon's exposition.


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