District 6, United Mine Workers of America v. U.S. Dept. of Interior Bd. of Mine Operations Appeals, 75-1704

• Citation: 562 F.2d 1260,183 U.S.App.D.C. 312
• Decision Date: 14 October 1977
• Docket Number: No. 75-1704,75-1704
• Parties: , 1977-1978 O.S.H.D. ( 22,044 DISTRICT 6, UNITED MINE WORKERS OF AMERICA et al., Petitioners, v. UNITED STATES DEPARTMENT OF the INTERIOR BOARD OF MINE OPERATIONS APPEALS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1260

562 F.2d 1260

183 U.S.App.D.C. 312, 1977-1978 O.S.H.D. ( 22,044

DISTRICT 6, UNITED MINE WORKERS OF AMERICA et al., Petitioners, v. UNITED STATES DEPARTMENT OF the INTERIOR BOARD OF MINE OPERATIONS APPEALS, Respondent.

No. 75-1704.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 24, 1976.

Decided Aug. 9, 1977.

Rehearing Denied Sept. 7, 1977. As Amended Oct. 14, 1977.

Michael Kimmel, Atty., Dept. of Justice, Washington, D. C., for respondent. Rex E. Lee, Asst. Atty. Gen., Robert E. Kopp and Karen K. Siegel, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondent.

William A. Gershuny, Washington, D. C., with whom Guy Farmer, Washington, D. C., was on the brief for intervenor.

Charles E. DeBord, II, for petitioners. John W. Cooper and Steven B. Jacobson, Washington, D. C., were on the brief for petitioners.

Before LEVENTHAL, MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

MacKINNON, Circuit Judge:

On July 19, 1974, the roof fell in on a portion of the Meigs No. 2 Mine of the Southern Ohio Coal Company, near Athens, Ohio. A miner was killed. A federal coal mine inspector at once ordered all miners to evacuate that portion of the mine because of "imminent danger." The next day, upon finding an inadequately supported roof, he extended his closure order to the entire mine. The inspector also found a great many other violations of the Mandatory Safety Standards promulgated by the Bureau of Mines; and the mine stayed closed until July 27, 1974.

The evacuation was ordered for "imminent danger" pursuant to 30 U.S.C. § 814(a) (1970), ¹ the Federal Coal Mine Health and Safety Act of 1969. ² An "imminent danger" is a term of art defined by that Act as "the existence of any condition or practice in a coal mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated." ³ Closure of a mine, or the dangerous area of the mine, is mandatory upon finding an imminent danger.

The Petitioners here are 126 miners at Meigs No. 2 who were without work from July 19, 1974, to July 27, 1974. Their claim is for compensation from the mine operators for a week's wages. Under 30 U.S.C. § 820, ⁴ coal miners idled by a closure order are entitled to pay for the rest of the shift and up to four hours of the next shift, ⁵ and they may also receive up to a week's pay, "(i)f a coal mine or area of a coal mine is closed by an order issued under section 814 of this title for an unwarrantable failure of the operator to comply with any health or safety standard." (Emphasis added). A separate provision of the statute permits a federal coal mine inspector to close a mine, even though there is no imminent danger, if there is "an unwarrantable failure of (an) . . . operator to comply with such mandatory health or safety standards" with respect to two or more violations. ⁶

Here, the closure order was issued because of "imminent danger" the collapsing roof, not by an "order issued . . . for an unwarrantable failure of the operator to comply with any health or safety standard." Further inspection of the closure order disclosed other, unrelated violations of mandatory safety standards. Petitioners offer to prove in support of their compensation claim that the violation directly leading to the imminent danger closure, and several of the other violations as well, constituted "unwarrantable" failures to abide by mandatory safety regulations. There has developed a body of coal-mine administrative law giving a definite meaning to the term "unwarrantable failure"; it approximates that conduct which in the law of torts is generally described as gross negligence. ⁷ For purposes of this appeal, we must assume petitioners can prove that the circumstances at the Meigs No. 2 mine which led to the closing for imminent danger involved this kind of negligent behavior.

The issue before this court is thus quite clearly stated. Is the week's lost pay provision of 30 U.S.C. § 820(a) limited to closures actually ordered because of two or more unwarrantable failures, or can it extend to closures ordered because of an imminent danger when later investigation demonstrates the existence of two or more unwarrantable failures, perhaps even unwarrantable failures that caused the imminent dangers?

I. ADMINISTRATIVE HISTORY OF THE CASE.

On September 3, 1974, petitioners filed, in the Office of Hearings and Appeals of the Department of the Interior, an application for compensation based on the theory above outlined. That application was dismissed on December 11, 1974, by the Administrative Law Judge, and his opinion was, in so far as here relevant, affirmed by the Interior Board of Mine Operations Appeals on June 25, 1975. ⁸

Petitioners' application alleged that they "were idled because of numerous violations of the Federal Coal Mine Health and Safety Acts of 1969 . . . (which) were caused by unwarrantable failures of the respondent to comply with mandatory health or safety standards . . . ." (J.A. 12). The petition thus sought to review certain aspects of the closure order itself (namely, that it was actually due to unwarrantable failures) rather than to challenge aspects of the compensation paid pursuant to the closure order as issued. In so challenging the closure order, the petition relied upon the wrong statutory section. Section 820 of Title 30, U.S.C., provides for the Board to rule on a compensation claim "after all interested parties are given an opportunity for a public hearing on such compensation." Section 815 of Title 30, U.S.C. permits "any representative of miners in any mine affected by such order . . . (to) apply to the Secretary for review of the order . . . ." There are important procedural differences between the two statutory review provisions. The most notable difference is that section 815 requires adherence to the Administrative Procedure Act whereas section 820 does not. ⁹ The Interior Board of Mine Operations Appeals in Clinchfield, infra, has already stated that section 820 hearings "are those relating to compensation due the claimants under the order as issued." ¹⁰ There is no great hardship in seeking section 815 review; indeed, it provides for a more complete hearing than does section 820.

Hence, petitioners have not followed the proper procedure in bringing their claim. They should have first sought to reform the closure order under section 815 to reflect the unwarrantable failures; ¹¹ and, if successful, sought section 820 review only if the mine operator refused to pay the week's compensation. The imminent danger closure was ordered on July 19, and all of the inspector's findings were completed as of July 28 (J.A. 31), yet the petition was not filed until September 3, 1974 (J.A. 51). Petitions for review under section 815 must be filed within thirty days of the closure order at issue. ¹² Hence, petitioners were also fifteen days late in their filing.

However, it would be harsh to bar petitioner's claim because of untimeliness, since the claim was timely filed as a section 820 complaint (albeit on the last day, and giving credit for the withdrawal order's amendment on July 20). ¹³ Further, the same Board opinion that explained the limited scope of a section 820 proceeding went on to say "we cannot interpret section (814(c)) to imply that the basis for a finding of unwarrantable failure can be established retrospectively for the purpose of determining compensation under section (820(a))." ¹⁴ Petitioners knew, therefore, that the Board would not recognize their claim no matter how it was brought. Their only purpose in seeking to review the closure order to prove unwarrantable failures was to establish a compensation claim, so they filed for compensation. The regulation allowed forty-five days for such a claim and they were within the limit. Hence it would be unfair to refuse consideration of the merits of their appeal because they chose the wrong statutory subsection under which to proceed. Particularly is this so in light of the Board's Clinchfield opinion, ¹⁵ indicating that, even if proper procedure had been followed and a full section 815 proceeding had taken place, the result would be precisely the same as the Board did reach. ¹⁶

II. THE LEGISLATIVE HISTORY OF THE CLOSURE COMPENSATION PROVISIONS.

Petitioners contend that the statutory language on its face is not entirely free of ambiguity.

If a coal mine or area of a coal mine is closed by an order issued under section 814 of this title for an unwarrantable failure . . .

30 U.S.C. § 820(a). If the normal interpretative rule of the Last Antecedent is applied, ¹⁷ the phrase "for an unwarrantable failure . . ." would be interpreted to refer directly to the phrase that proceeds it, i. e.: "an order issued under section 814 of this title" so that only unwarrantable failure orders would evoke the larger compensation. Alternatively, it is contended that the phrase could modify the main clause, "If a coal mine . . . is closed," so that any closure traceable to an unwarrantable failure would be entitled to the larger compensation. The first reading is to be preferred as the more normal and less strained, especially considering that there is a separate type of closure order for unwarrantable failures. The second reading is not completely outside the language of the statute because it relies on the reference to "Section 814 " and is not limited to any subsection thereof. The second reading also, would not be inconsistent with some of the general objectives of the Act. It can be argued that where two equivalent mining operations are both run with unwarrantable failures to observe mandatory safety requirements in each, it would be anomalous to impose a lesser monetary burden of compensation on the one whose failures were so severe as to cause imminent danger.

Such...