American Coal Co. v. U.S. Dept. of Labor, Mine Safety and Health Administration

• Decision Date: 21 January 1981
• Docket Number: No. 79-2239,79-2239
• Parties: 1981 O.S.H.D. (CCH) P 25,137 AMERICAN COAL COMPANY, a corporation, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 659

639 F.2d 659

1981 O.S.H.D. (CCH) P 25,137

AMERICAN COAL COMPANY, a corporation, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH

ADMINISTRATION et al., Defendants-Appellees.

No. 79-2239.

United States Court of Appeals, Tenth Circuit.

Argued Oct. 14, 1980.

Decided Jan. 21, 1981.

Daniel M. Allred, Salt Lake City, Utah (James B. Lee, Salt Lake City, Utah, with him on the brief), of Parsons, Behle & Latimer, Salt Lake City, Utah, for plaintiff-appellant.

Cynthia L. Attwood, Counsel, Appellate Litigation, Washington, D. C. (Carin Ann Clauss, Sol. of Labor, Washington, D. C., Morell E. Mullins, Associate Sol., and Debra L. Feuer, Atty., U. S. Dept. of Labor, Arlington, Va., with her on the brief), for defendants-appellees.

Before McWILLIAMS, DOYLE and McKAY, Circuit Judges.

McWILLIAMS, Circuit Judge.

American Coal Company, a Utah corporation, is a contractual operator of coal mines owned by Utah Power & Light Company and situate in Utah. On Sunday, April 8, 1979, a portion of the roof in the main west section of American Coal's Wilberg Mine, located in Emery County, Utah, collapsed. The collapsed area measured approximately 25 feet in diameter in a tunnel complex approximately 600 feet wide and two miles long. ¹ No one was entrapped or injured as a result of the collapse of the roof. American Coal reported the incident to the Mine Safety and Health Administration (MSHA) on April 9, 1979. On April 10, 1979, one Dick K. Jones, a MSHA coal mine inspector, inspected the site. As a result of such inspection, Jones concluded that American Coal's roof control plan of 1977 was inadequate and he forthwith issued an order pursuant to Section 103(k) of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 813(k) (1979). The effect of the order was to temporarily close all areas forward of the main west section dumping point until the roof control plan then in effect could be reevaluated. The order, in its entirety, read as follows:

Because of an unintentional roof fall and adverse roof conditions throughout the main west working section the present approved roof control (plan) appears to (be) inadequate. Therefore until the present plan can be reevaluated all areas inby (forward of) the main west section dumping point is closed (sic). A crew consisting of 10 employees and a supervisor for the purpose of supporting the roof and cleaning up the cave will be allowed on the section at any one given time.

American Coal's response to the order of Dick Jones, the coal mine inspector, was to bring an action on April 13, 1979, in the United States District Court for the District of Utah against the United States Department of Labor, the Mine Safety and Health Administration, and five named officials in that agency. The last named defendant was Dick Jones, the coal mine inspector, whose order precipitated this entire controversy. American Coal's action sought declaratory and injunctive relief and was based on the premise that the order made by Inspector Jones was not authorized by 30 U.S.C. § 813(k).

The defendants filed a motion to dismiss upon the ground that under applicable statutes the federal district court lacked subject matter jurisdiction, and that jurisdiction to review Jones' withdrawal order lay in the first instance with MSHA's Review Commission, subject to judicial review in a United States Court of Appeals. The trial court granted this motion, without comment insofar as the record before us is concerned. Also, the record before us does not indicate that the action itself was ever formally dismissed, only that the motion to dismiss was granted. Since none of the parties suggest that the present appeal is not properly before this Court, we elect to proceed on the premise that the trial court did, in effect, dismiss the complaint and the action. American Coal now appeals the adverse ruling suffered by it. We affirm.

As indicated, the order of Inspector Jones was issued pursuant to 30 U.S.C. § 813(k). That statute provides as follows:

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.

American Coal's position is that 30 U.S.C. § 813(k) does not itself provide for administrative review of action taken pursuant to that statute, and that, such being the case, any action taken pursuant to that particular statute is subject to review by United States District Courts. We are not in accord with this argument. It is true that within the four corners of 30 U.S.C. § 813(k) there is no mention of review, be it administrative review or otherwise, of orders entered under the authority of that statute. We recognize that other sections of the Mine Safety and Health Act do specifically mention that action taken thereunder is subject to administrative review. ² We do not believe, however, that merely because 30 U.S.C. § 813(k) makes no specific reference to administrative review, such omission means that there is no administrative review. A reading of the entire Act, coupled with its legislative history, leads us to conclude that the action taken by Inspector Jones under 30 U.S.C. § 813(k) was subject, first, to administrative review, with final action by the Review Commission to then be subject to judicial review in the appropriate Court of Appeals under 30 U.S.C. § 816. It is on this basis that we conclude that the district court did not have subject matter jurisdiction.

Going directly to the legislative history of the Mine Safety and Health Act, Legislative History of the Federal Mine Safety and Health Amendments Act of 1977, S.Rep.No.95-181, 95th Cong., 1st Sess. 13, reprinted in (1977) U.S.Code Cong. & Ad.News, pp. 3401, 3413 reads as follows:

A five member Mine Safety and Health Review Commission is created as a separate entity. The Commission is empowered to act in panels of three members. The Commission serves as the ultimate administrative review body for disputed cases arising under the new mine safety act. An operator or affected party or employee representative may appeal to the Commission the issuance of a closure order or of any proposed penalty. Miners or their representative, or Operators may contest to the Commission a citation issued to an operator that fixes an abatement period they believe is unreasonable. In all such cases, the Commission is to afford an opportunity for a hearing. Administrative Law Judges of the Commission shall hear matters before the Commission and issue decisions affirming, modifying or vacating the Secretary's order, proposed penalty or extending the abatement period set in the citation. A decision of an ALJ shall become the final order of the Commission within 40 days unless review is directed by the Commission. The Commission's review of a decision of the ALJ on appeal shall be discretionary. Two members of the Commission may authorize such review. The Commission may also review cases on its own initiative and remand cases to an ALJ for further proceedings where warranted.

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