Association of Bituminous Contractors, Inc. v. Andrus, s. 75-1931 and 75-1932

• Decision Date: 22 February 1978
• Docket Number: Nos. 75-1931 and 75-1932,s. 75-1931 and 75-1932
• Citation: 581 F.2d 853,189 U.S.App.D.C. 75
• Parties: , 6 O.S.H. Cas.(BNA) 1377, 1978 O.S.H.D. (CCH) P 22,559 ASSOCIATION OF BITUMINOUS CONTRACTORS, INC. v. Cecil D. ANDRUS, Secretary of the Interior, U. S. Department of the Interior. Appeal of UNITED MINE WORKERS OF AMERICA. ASSOCIATION OF BITUMINOUS CONTRACTORS, INC. v. Cecil D. ANDRUS, Secretary of the Interior, U. S. Department of the Interior, United Mine Workers of America, Party-Defendant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 853

581 F.2d 853

189 U.S.App.D.C. 75, 6 O.S.H. Cas.(BNA) 1377,

1978 O.S.H.D. (CCH) P 22,559

ASSOCIATION OF BITUMINOUS CONTRACTORS, INC. v. Cecil D. ANDRUS, Secretary of the Interior, U. S. Department

of the Interior.

Appeal of UNITED MINE WORKERS OF AMERICA.

ASSOCIATION OF BITUMINOUS CONTRACTORS, INC. v. Cecil D. ANDRUS, Secretary of the Interior, U. S. Department

of the Interior,

United Mine Workers of America, Party-Defendant.

Nos. 75-1931 and 75-1932.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 6, 1976.

Decided Feb. 22, 1978.

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

Steven B. Jacobson, Washington, D. C., with whom Harrison Combs, Washington, D. C., was on the brief, for appellant in No. 75-1931.

John M. Rogers, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellant in No. 75-1932. Morton Hollander, Michael H. Stein, Robert E. Kopp and Michael Kimmel, Attys., Dept. of Justice, Washington, D. C., also entered appearances for appellant in No. 75-1932.

Guy Farmer and William A. Gershuny, Washington, D. C., filed a brief on behalf of Bituminous Coal Operators' Association as amicus curiae urging reversal.

Francis T. Coleman with whom William H. Howe and John R. Erickson, Washington, D. C., were on the brief for appellee.

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

Opinion for the court filed by MacKINNON, Circuit Judge.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

MacKINNON, Circuit Judge:

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, ¹ and issued the withdrawal order pursuant to section 104 of the Federal Coal Mine Health and Safety Act of 1969. ² 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. ³ 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. ⁴ 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. ⁵ There was no further review of that decision. ⁶

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" ⁷ 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. ⁸ 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. ⁹ 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...