Bituminous Coal Operators' Ass'n, Inc. v. Secretary of Interior

• Decision Date: 04 January 1977
• Docket Number: 76-1191,Nos. 76-1190,s. 76-1190
• Citation: 547 F.2d 240
• Parties: 4 O.S.H. Cas.(BNA) 1919, 1976-1977 O.S.H.D. ( 21,422 BITUMINOUS COAL OPERATORS' ASSOCIATION, INC., and each of its member companies listed, Appellants, Association of Bituminous Contractors, Inc., Plaintiff-Intervenor, v. SECRETARY OF INTERIOR, et al., Appellees. BITUMINOUS COAL OPERATORS' ASSOCIATION, INC., and each of its member companies listed, Plaintiffs, Association of Bituminous Contractors, Inc., Appellant, v. SECRETARY OF INTERIOR, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 240

547 F.2d 240

4 O.S.H. Cas.(BNA) 1919, 1976-1977 O.S.H.D. ( 21,422

BITUMINOUS COAL OPERATORS' ASSOCIATION, INC., and each of

its member companies listed, Appellants, Association of Bituminous Contractors, Inc., Plaintiff-Intervenor, v. SECRETARY OF INTERIOR, et al., Appellees.

BITUMINOUS COAL OPERATORS' ASSOCIATION, INC., and each of

its member companies listed, Plaintiffs, Association of Bituminous Contractors, Inc., Appellant, v. SECRETARY OF INTERIOR, et al., Appellees.

Nos. 76-1190, 76-1191.

United States Court of Appeals Fourth Circuit.

Argued Aug. 24, 1976.

Decided Jan. 4, 1977.

Guy Farmer, Washington, D. C. (William A. Gershuny, Farmer, Shibley, McGuinn & Flood, Washington, D. C.; William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for appellant Bituminous Coal Operators' Association, Inc.

Francis T. Coleman and William H. Howe, Washington, D. C. (John R. Erickson, Counihan, Casey & Loomis, Washington, D. C., on brief), for appellant Association of Bituminous Contractors, Inc.

John M. Rogers, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Paul R. Thomson, Jr., U. S. Atty., Roanoke, Va., Leonard Schaitman, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., on brief), for appellee Secretary of the Interior.

Steven B. Jacobson, Washington, D. C. (Harrison Combs, Washington, D. C., on brief), for appellee United Mine Workers of America.

Before CRAVEN, BUTZNER and FIELD, Circuit Judges.

BUTZNER, Circuit Judge:

Both the Association of Bituminous Contractors, Inc., and the Bituminous Coal Operators' Association, Inc., appeal an order of the district court upholding the authority of the Secretary of the Interior to cite coal mining companies for violations of federal health and safety standards committed by construction companies that the mining companies employ. The Secretary seeks dismissal of the suit for lack of jurisdiction, or, alternatively, affirmance of the judgment. We conclude that the district court had jurisdiction; that construction companies are subject to Titles I-III of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801-878; and that the Secretary can enforce the Act against a mining company or a construction company, which it has employed, for violations committed by the construction company. Accordingly, although we do not subscribe to all of the conclusions of law reached by the district court, we affirm its judgment. ¹

I

Titles I, ² II, ³ and III ⁴ of the Act and regulations promulgated under it establish and provide for enforcement of mandatory health and safety standards for the protection of coal miners. The Secretary's inspectors are authorized to require the operator of a coal mine, or his agent, to withdraw miners from a dangerous area. ⁵ Miners idled by a withdrawal order may recover limited compensation for lost wages. ⁶ Withdrawal orders may be reviewed by the Secretary through the Board of Mine Operations Appeals, ⁷ and the Board's decisions are reviewable by the courts of appeals. ⁸ In addition to closing a dangerous mine, the Secretary, after an administrative hearing, may impose civil penalties on coal mine operators who violate the Act. ⁹ These penalties may be enforced by district courts. ¹⁰

Mining companies frequently employ independent, general contractors for both surface and subsurface construction work. These construction companies build coal preparation plants, tipples, conveyor equipment, storage silos, bath houses, office buildings, power lines, roads, drag lines, and shovels. They also construct underground facilities, such as shafts, slopes, and tunnels. Their work may be done before or after the mine is in operation. The construction companies, however, do not process the coal that they remove.

This controversy arises out of conflicting opinions of the Board of Mine Operations Appeals and the United States District Court for the District of Columbia over the status of mine construction companies. In Affinity Mining Co., 2 IBMA 57, 1971-73 OSHD P 15,546 (1973) and Wilson v. Laurel Shaft Construction Co., Inc., 1 IBMA 217, 1971-73 OSHD P 15,387 (1972), the Board held that coal mine construction companies were subject to the health and safety standards of the Act and that they could be cited for violations. In contrast, the District Court for the District of Columbia held that the Secretary could not cite mine construction companies for violating the Act. Association of Bituminous Contractors, Inc. v. Morton, Civil No. 1058-74 (D.D.C. May 23, 1975), appeal pending sub nom. Association of Bituminous Contractors, Inc. v. Kleppe, Nos. 75-1931/75-1932 (D.C.Cir.). Complying with that court's decision, the Secretary ordered his inspectors to issue citations to mining companies for violations of the Act committed by the construction companies they employ. That order precipitated this case.

II

The complaint alleges that jurisdiction is founded on 28 U.S.C. § 1331 (federal question), 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgment Act), and 5 U.S.C. § 551 et seq. (Administrative Procedure Act). On appeal, the Secretary questioned for the first time the district court's jurisdiction, contending that orders of the Secretary are reviewable only by a court of appeals, pursuant to 30 U.S.C. § 816(a).

While a literal reading of § 816(a) supports the Secretary, it is apparent, from the context of this section, that the review by the courts of appeals to which it refers deals with citations issued by inspectors and adjudicated by the Board of Mine Operations Appeals. But in this case, which deals with pre-enforcement review, the procedure set forth in § 816(a) is not appropriate because no administrative record has been developed. Nonetheless, the provisions for judicial review in §§ 816, 819 and 820 indicate that Congress did not intend the action of the Secretary dealing with the enforcement of health and safety standards to be committed by law to agency discretion within the meaning of 5 U.S.C. § 701(a)(2). Because the Act neither states nor implies that § 816(a) furnishes the exclusive procedure for obtaining judicial review, other procedures are not precluded. Consequently, the Administrative Procedure Act is applicable, and the Secretary's order is reviewable. Abbott Laboratories v. Gardner, 387 U.S. 136, 139-41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The complaint's allegation of a federal question sustains jurisdiction, and the application for declaratory and injunctive relief was properly made in the district court where a record could be developed. 5 U.S.C. § 703. Cf. Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962); K. Davis, Administrative Law Text § 23.03 (3d ed. 1972).

The critical question is whether the district court, having acquired jurisdiction, should have denied pre-enforcement review for failure to exhaust administrative remedies or for lack of ripeness. These defenses, however, are not jurisdictional, and the Secretary should have raised them, in the first instance, in the district court rather than on appeal. Wilson Clinic & Hospital, Inc. v. Blue Cross of South Carolina, 494 F.2d 50, 53 n. 4 (4th Cir. 1974).

Quite apart from the untimely assertion of these defenses, they lack merit. Exhaustion of administrative remedies is not required in this case, because of the Secretary's order to cite mining companies for their contractors' violations is binding, not only on the inspectors, but also on the administrative law judges and the Board of Mine Operations Appeals. Republic Steel Corp., 5 IBMA 306, 1975-76 OSHD P 20,233 (1975). Therefore, any attempt to follow administrative remedies would be futile, and consequently need not be exhausted. NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 n. 8, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645, 652 (4th Cir. 1968). ¹¹

Ripeness depends on "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Both tests are satisfied here. An issue is fit for judicial decision when it involves purely legal questions and when it concerns "final agency action," within the meaning of 5 U.S.C. § 704. In this case, the issue is purely legal for the question involves the interpretation of the Act against the background of undisputed facts. The Secretary's order is final agency action because it is binding on all concerned. Therefore, the issue is fit for judicial decision.

Secondly, hardship is also evident. Even though a mining company is not cited for a contractor's violation, it must take immediate steps to comply with the policy embodied by the Secretary's order. The company must undertake construction work itself, negotiate contracts of indemnity, or take other precautionary measures. This creates sufficient hardship to justify judicial review before a mining company is actually cited for a contractor's violation of the Act. Cf. Abbott, 387 U.S. at 152-54, 87 S.Ct. 1507.

For substantially similar reasons, we find no merit in the suggestion of the United Mine Workers, an intervening defendant, that the Operators' Association lacks standing to press this appeal. The record is sufficient to establish that the Secretary's order caused injury to interests of the Association's members within an area regulated by the Act. The Association, therefore, has standing. Cf. United States v. SCRAP, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). We turn, therefore, to a discussion of the merits of the controversy.

III

The contractors contend that they are not subject to the Act because construction work is not performed in a coal mine as defined by the Act. Title 30 U.S.C. § 802(h) defines a coal mine as follows:

"(c...