Mallory Coal Co. v. NATIONAL BITUMINOUS COAL COM'N

• Decision Date: 01 August 1938
• Docket Number: No. 7178.,7178.
• Citation: 69 App. DC 166,99 F.2d 399
• Parties: MALLORY COAL CO. et al. v. NATIONAL BITUMINOUS COAL COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 166, 99 F.2d 399 (1938)

MALLORY COAL CO. et al. v. NATIONAL BITUMINOUS COAL COMMISSION.

No. 7178.

United States Court of Appeals for the District of Columbia.

Decided August 1, 1938.

Robert E. Quirk, of Washington, D. C., and J. V. Norman, of Louisville, Ky., for petitioners.

Robert W. Knox, Robert L. Stern, and Thomas O'Brien, all of Washington, D. C., for respondent.

By leave of Court, Henry S. Brainard, of Cleveland, Ohio, and John McDill Fox, Allen Coe, and Clarence A. Miller, all of Washington, D. C., as amici curiae.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

MILLER, Associate Justice.

Petitioners are corporations engaged in the production, sale and shipment of bituminous coal in interstate commerce, and are members in good standing of the Bituminous Coal Code, promulgated by respondent, under the provisions of the Bituminous Coal Act of 1937.¹

By its order, dated July 15, 1937, pursuant to authority given by Section 10 of the Bituminous Coal Act of 1937, 50 Stat. 88, 15 U.S.C.A. § 840,² the Commission required:

"1. That each producer of bituminous coal, whether or not a code member and whether or not engaged in commerce in coal which is subject to the provisions of Section 4 of said Act, shall file, in duplicate, complete reports showing the total costs of the tonnage produced and realization prices derived from the sale of coal, all as more fully set forth and specified in the Commission's Cost Forms No. 1 and No. 1-A, such reports to be made separately for each mine and to include all coal produced during the calendar year 1936 and all coal sold during the same period.

* * * * * *

"4. Each producer shall, within fifteen (15) days from the date of receipt of a copy of this order and of said forms, file the required reports, duly verified, with the statistical bureau of the Commission in the district within which the mine or mines reported upon are located."

The Commission's order of July 15, 1937, contained also the following injunction:

"The Commission directs specific attention to the provisions of Section 10 of said Act relating to the confidential nature of the reports required under this order and further gives notice that the penalties provided for non-compliance with this order by the producer will be strictly enforced."

Within fifteen days after receipt of copies of the order and forms, petitioners filed verified reports as required. The forms — supplied by the Commission — upon which these reports were made bore at the top, in bold type, the following statement: "This report is required under the provisions of the Bituminous Coal Act of 1937 and is therefore confidential."

On March 30, 1938, the Commission issued a ruling reading as follows:

"RULING

"Pursuant to the provisions of Section 4, Part 2(a) and Section 10(a) of the Bituminous Coal Act of 1937, 15 U.S.C.A. §§ 833(a), 840(a) the Commission obtained from producers detailed information with respect to individual costs of production of the coals of such producers in the calendar year 1936 to be used in connection with the proposal and establishment of minimum prices of coals of code members. Such records are held by the various Statistical Bureaus of the Commission as the confidential records of the producers furnishing the information.

"Section 10(a) of the Act provides:

"`* * * No information obtained from a producer disclosing costs of production or sales realization shall be made public without the consent of the producer from whom the same shall have been obtained, except where such disclosure is made in evidence in any hearing before the Commission or any court and except that such information may be compiled in composite form in such manner as shall not be injurious to the interests of any producer and, as so compiled, may be published by the Commission.'

"The Commission construes the foregoing provision as permitting the introduction in evidence at a hearing before the Commission of the aforesaid cost data of the individual producers.

"The Commission will in the immediate future give public notice of a hearing to be held to determine the weighted average of the total cost of the tonnage for each minimum price area in the calendar year 1936, adjusted as provided by Section 4, Part 2(a) of the Act, at which hearing the aforesaid information obtained from producers with respect to individual costs of production of the coals of such producers in the calendar year 1936 will be made available for introduction in evidence to support the determinations of the District Boards of the total costs of the ascertainable tonnage produced in their respective districts in the calendar year 1936, and the necessary adjustments thereto and to support the Commission's determination of the weighted average of the total costs of the tonnage for each minimum price area in the calendar year 1936 adjusted as aforesaid."

Section 4, Part 2(a), 50 Stat. 77, 15 U.S.C.A. § 833(a) — referred to in the Commission's ruling of March 30, 1938, provides that:

"(a) All code members shall report all spot orders to such statistical bureau hereinafter provided for as may be designated by the Commission and shall file with it copies of all contracts for the sale of coal, copies of all invoices, copies of all credit memoranda, and such other information concerning the preparation, cost, sale, and distribution of coal as the Commission may authorize or require. All such records shall be held by the statistical bureau as the confidential records of the code member filing such information."

On May 11, 1938, petitioners filed with the Commission a petition which asserted that the construction placed upon Section 10(a), by its ruling of March 30, 1938, was erroneous and contrary to the intent of the Act; that the reports filed by petitioners were filed in reliance upon the confidence imposed by the provision of Section 10(a) and Section 4, Part 2(a) of the Act; that knowledge of their costs of doing business constitutes a valuable and private right of which they cannot be deprived without their consent; that if the Commission makes such cost reports available to interested parties as proposed in its ruling, petitioners will suffer irreparable injury; and prayed that the Commission vacate its ruling and revoke its construction of Section 10(a) of the Act.

On May 13, 1938, the Commission promulgated a "Notice of and Order for Hearing" reading in part as follows:

". . . NOTICE IS HEREBY GIVEN that the above entitled proceeding is assigned for hearing before the Commission, on May 25, 1938, at 10:00 o'clock a. m. at the Hearing Room of the Commission, 734 Fifteenth Street, N. W., Washington, D. C., at which time an opportunity will be afforded interested parties to be heard.

"The Secretary of the Commission is, forthwith, directed to mail a copy of this Notice of Hearing to the petitioners above named, to each code member and to the Consumers' Counsel, and shall cause a copy to be published in the Federal Register. A copy of the aforesaid petition is on file and available to interested parties for inspection at the Office of the Secretary of the Commission."

On May 25th and 26th the matter was heard by the Commission, appearances were entered on behalf of petitioners and numerous interveners, witnesses were examined, exhibits were introduced into evidence, and the legal questions involved were argued by counsel.

On June 1, 1938, the Commission filed findings of fact and an opinion, and on the same day entered an order as follows:

"NOW, THEREFORE, It is ordered:

"1. That the petition of the Mallory Coal Company, et al., filed in Docket No. 13, and the petition of the Rochester and Pittsburgh Coal Company, filed in Docket No. 14, be and the same are hereby denied and dismissed.

"2. That the Secretary of the Commission be and he is hereby directed to cause the individual cost returns of the producers, as above described, to be made available for inspection by interested parties in the final hearing in the establishment of minimum prices and marketing rules and regulations, so that the same will be available for introduction in evidence if and when required.

"3. That the Secretary be and he is hereby directed to mail a copy of this order to each of the above named petitioners, and to all parties who filed petitions to intervene."

The petition for review in this court purports to be filed pursuant to the provisions of Section 6(b), Part 2 of the Bituminous Coal Act of 1937, 50 Stat. 85, 15 U.S.C.A. § 836(b),³ and the prayer for relief is as follows:

"That pending final determination on this petition the Court enter an order which will modify, set aside and stay the operation of the order of the Commission in dockets 13 and 14 made and entered June 1, 1938, and thereby prohibit the Commission from making available for inspection to interested parties the cost data and the information hereinbefore described;

"That the Court will review the record, order and proceeding before the National Bituminous Coal Commission in dockets 13 and 14, hereinbefore described, and enter a decree which will modify, set aside and stay the operation of the order of the Commission made and entered June 1, 1938.

"That your petitioners have such other and further relief in the premises as to this Honorable Court may seem just and proper."

The jurisdiction of this court is challenged by the Commission, as well as by the Consumers' Counsel, and by other amici curiae. Whether the court has jurisdiction depends upon whether the order from which relief is sought is reviewable under the provisions of Section 6(b), Part 2 of the Act.

It may be argued that the language of Section 6(b) is broad enough to permit judicial review of any order of the Commission. The language of the section is: "Any person aggrieved by an order issued by the Commission in a proceeding to which such person is a party may obtain a review of such order * *...