Southern Ohio Coal Co. v. Secretary of Labor, s. 84-3910
| Decision Date | 02 January 1986 |
| Docket Number | 84-5688,Nos. 84-3910,s. 84-3910 |
| Parties | 1986-1987 O.S.H.D. ( 27,513 SOUTHERN OHIO COAL COMPANY (84-3910), U.S. Coal, Inc. (84-5688), Plaintiffs-Appellees, v. SECRETARY OF LABOR, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KEITH, MERRITT and WELLFORD, Circuit Judges.
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original hearing panel.
The panel has further reviewed the petition for rehearing and the petition is denied.
Upon consideration it is ORDERED that the opinion filed October 2, 1985, 774 F.2d 693, be amended as follows. The text below is to be appended to Section V, Failure to Exhaust Administrative Remedies:
"This court in Securities & Exchange Commission v. WACO Financial, Inc., 751 F.2d 831 (1985), held that a due process based collateral attack by the defendants in an enforcement action brought by the S.E.C. would not be heard because this question was never raised in the disciplinary proceedings and was thus waived. There was no attempt to challenge the Act itself, only the procedures followed in enforcing it.
The issue which WACO and Prevatte sought to raise had nothing to do with the constitutionality of a congressional enactment.... These questions should have been raised in the administrative proceedings.... The S.E.C. should have an opportunity to correct any deficiencies in the NASD proceedings before issuing its final order.
The situation in the instance case, unlike WACO, involves a direct constitutional due process challenge by plaintiffs to the constitutionality of a rule adopted under 30 U.S.C. Sec. 815. In effect, there is here a constitutional challenge to an enactment by Congress as interpreted through rulemaking by the Agency created by Congress to enforce the act which provides, inter alia, that the Secretary of Labor "shall order the immediate reinstatement of the miner...." Plaintiffs had been ordered, without any meaningful opportunity for hearing, to reinstate miners allegedly discharged for good cause and/or physical inability to perform. There was no waiver before an agency of the constitutional claim as in WACO. The constitutional...
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