Morton v. Delta Mining, Inc., No. 73-1752

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtADAMS, HUNTER and WEIS, Circuit
Citation495 F.2d 38
PartiesRogers C. B. MORTON, Secretary of Interior, United States Dept. of Interior v. DELTA MINING, INC. Rogers C. B. MORTON, Secretary of the Interior, United States Department of the Interior v. G. M. W. COAL COMPANY, INC. Rogers C. B. MORTON, Secretary of Interior, United States Dept. of the Interior v. Edward MEARS et al. Appeal of UNITED STATES of America, in Nos. 73-1752-73-1753, 73-1848.
Decision Date20 March 1974
Docket Number73-1848.,73-1753,No. 73-1752

495 F.2d 38 (1974)

Rogers C. B. MORTON, Secretary of Interior, United States Dept. of Interior
v.
DELTA MINING, INC.
Rogers C. B. MORTON, Secretary of the Interior, United States Department of the Interior
v.
G. M. W. COAL COMPANY, INC.
Rogers C. B. MORTON, Secretary of Interior, United States Dept. of the Interior
v.
Edward MEARS et al.
Appeal of UNITED STATES of America, in Nos. 73-1752-73-1753, 73-1848.

Nos. 73-1752, 73-1753, 73-1848.

United States Court of Appeals, Third Circuit.

Argued January 10, 1974.

Decided March 20, 1974.

As Amended June 12, 1974.


495 F.2d 39

John L. Murphy, Chief, Government Regulations Section, Crim. Div., Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D.C., for appellant; Richard L. Thornburgh, U.S. Atty., of counsel.

Frederick R. Blackwell, Washington, D.C., Franklyn E. Conflenti, Cauley, Birsic & Conflenti, Pittsburgh, Pa., for Delta Mining, Inc. and G. M. W. Coal Co., Inc.

Harold R. Schmidt, Rose, Schmidt & Dixon, Pittsburgh, Pa., John L. Kilcullen, Washington, D.C., for Edward Mears, and others.

Before ADAMS, HUNTER and WEIS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The question on this appeal is whether, under the Federal Coal Mine Health and Safety Act,1 the Secretary of Interior may assess civil penalties against mine operators without making and publishing factual findings. The district court, in which the Secretary sought enforcement of assessment orders against the defendant mining companies,2 held that the orders were invalid because of the absence of such findings, and the Secretary appealed.

The Act was passed in 1969 to "protect the health and safety of the Nation's coal miners."2a At various times during 1971, inspectors of the Bureau of Mines, Department of Interior, entered and inspected the coal mines operated by the various defendants, seeking to determine the extent of compliance or noncompliance with the Act, and with the regulations promulgated thereunder.3 During the course of these visits the inspectors detected a number of violations of the Act or the regulations. In each such instance, an inspector served the defendant in question with a notice of the infraction. Each notice stated that the particular violation had to be abated by a certain date. On the date set for abatement, the inspector returned to the mine and, upon determining that the violations had in fact been abated, furnished the defendant with a notice to that effect.

After the abatement of each violation and the notification of the defendant involved, the local office of the Bureau of Mines sent copies of the notices of violation and abatement to the Bureau's central office in Washington, D.C. There an Assessment Officer reviewed the various notices and sent proposed penalty assessment orders to the defendants.4

The proposed penalty assessment orders informed each defendant that the Assessment Officer, after giving "due consideration" to certain statutory criteria,

495 F.2d 40
intended to assess civil penalties in various amounts; that the defendants could protest the assessments in writing; and that the defendants had a right, secured by statute, to request hearings. Each defendant protested the orders.5 However, the Assessment Officer did not consider that a reduction in the size of the penalties was called for, and he accordingly notified the defendants of his affirmance of the proposed orders

The defendants were also notified, upon affirmance of the proposed orders, that they had 15 days in which to request a hearing, and that upon their failure to do so within the prescribed time the proposed orders would become the final orders of the Secretary. No hearings were requested and the final orders of the Secretary were entered. When the defendants failed to pay the assessments set forth in the final orders, this action for enforcement was brought in the district court.6

Section 109(a)(3) of the Act7 provides in part as follows:

"A civil penalty shall be assessed by the Secretary only after the person charged with a violation under this chapter has been given an opportunity for a public hearing, and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur and the amount of the penalty which is warranted, and incorporating, when appropriate, an order therein requiring that the penalty be paid. . . . Any hearing under this section shall be of record and shall be subject to section 554 of Title 5."

Section 109(a)(1)8 enumerates six factors to be considered by the Secretary in determining the amount of any penalty assessment:

"In determining the amount of the penalty, the Secretary shall consider the operator\'s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator\'s ability to continue in business, the gravity of the violation and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation."

The proposed orders of assessment which the defendants received from the Assessment Officer were on preprinted forms which recited, in some instances, that the six factors set out in the statute had been considered.9 The final orders entered by the Secretary did not mention the six statutory criteria at all, but merely set forth the Secretary's finding that a violation "did, in fact, occur."10 The defendants contend, and the district court agreed that in omitting from the final orders express findings of fact relating to the statutory criteria for determining the amount of the penalty, and so providing no assurance of any considered application of these criteria, the Secretary failed to satisfy the requirements of section 109(a)(3).

495 F.2d 41

The Secretary counters that the language of section 109(a)(3), requiring a "decision incorporating his findings of fact therein," applies only when a defendant has requested an oral hearing, and that when, as here, the Secretary makes a "decision" without any hearing, it is unnecessary under the statute to include any findings of fact.11 We reject this contention and affirm the district court's grant of summary judgment in favor of the defendant mine operators.

We note that, in ordering penalty assessments without making express findings, the Secretary was acting pursuant to, and in apparent conformity with, the pertinent Regulations of the Department of Interior.12 Regulation 100.4(h)13 provides that once a proposed order of assessment has been made, the operator charged shall have 15 days in which to accept such order of the Assessment Officer or to seek a "formal adjudication." Acceptance, or failure to request an adjudication, results under the Regulation in the proposed order becoming "the final assessment order of the Secretary." Thus, the Regulations appear to contemplate the very procedure that was utilized here: a proposed order became final without the Secretary himself making findings on the question of penalty amount.14 The question before us then, narrows to whether the Regulations themselves, as implemented, were consistent with the requirements of the Coal Mine Health and Safety Act.

As noted above, the Act provides that a civil penalty may be assessed only after the operator "has been given an opportunity for a public hearing." The language of the Act would appear to require also that, whether or not the operator requests a hearing, the assessment must be made "by the Secretary's decision incorporating his findings of fact therein, that a violation did occur and the amount of the penalty which is warranted." The Secretary seeks refuge from this interpretation by pointing to the legislative history, which, he asserts, supports his reading of section 109.

Nothing in that history convinces us, however, that any departure from the plain import of the statutory terms is warranted.15 There is not a modicum of evidence in the reports from either

495 F.2d 42
House of Congress,16 nor in the Conference Committee report on the compromise bill that became section 109,17 that would indicate an intent to dispense with findings of fact where no hearing is requested

Another consideration, apparent on the face of section 109, tends to indicate that findings are required when a violator does not seek a hearing as well as when he does. When a hearing is requested, the section 109 triggers the application in that proceeding of section 5 of the Administrative Procedure Act18 which, by incorporating section 8 of the APA,19 requires that the final decision of the Secretary be accompanied by findings. Thus the language in section 109 itself requiring findings would be merely duplicative if it did not refer to some situation other than that in which a hearing is requested and held. While duplication and repetition in statutory language are certainly not unheard of, it would seem a salutary rule to avoid reading the terms of a...

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10 practice notes
  • Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Com'n, No. 73-1765
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 24 Julio 1975
    ...a party to answer a complaint within a given time on penalty of a default judgment for a fixed sum. Cf. Morton v. Delta Mining, Inc., 495 F.2d 38 (3d The self-executing aspect of the Act is not violative of due process because an employer is given adequate opportunity for a hearing at a tim......
  • U.S. v. Jones, Nos. 74--1466
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 23 Diciembre 1975
    ...ed. 1973). See, e.g., Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961); Morton v. Delta Mining, Inc., 495 F.2d 38, 42 (3d Cir. 1974), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975). It is well settled, and has been since long before Con......
  • Brennan v. Occupational Safety and Health Review Com'n, No. 73-1131
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 14 Agosto 1974
    ...of New York State Inc. v. United States Department of Labor, 487 F.2d 342 (2d Cir. 1973). See also Morton v. Delta Mining, Inc., 495 F.2d 38 (3d Cir. 1974). We may also distinguish the separate problem of a conflict between the Secretary and the Commission as to the proper interpretation of......
  • Flav-O-Rich, Inc. v. N.L.R.B., FLAV-O-RIC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 1 Marzo 1976
    ...v. NLRB, 425 F.2d 677, 681 (7th Cir.1970); it exposes and deters arbitrary administrative actions, see e.g., Morton v. Delta Mining, Inc., 495 F.2d 38, 42 (3d Cir.1974), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975); and it prevents both the agency and the court from exce......
  • Request a trial to view additional results
10 cases
  • Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Com'n, No. 73-1765
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 24 Julio 1975
    ...a party to answer a complaint within a given time on penalty of a default judgment for a fixed sum. Cf. Morton v. Delta Mining, Inc., 495 F.2d 38 (3d The self-executing aspect of the Act is not violative of due process because an employer is given adequate opportunity for a hearing at a tim......
  • U.S. v. Jones, Nos. 74--1466
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 23 Diciembre 1975
    ...1973). See, e.g., Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961); Morton v. Delta Mining, Inc., 495 F.2d 38, 42 (3d Cir. 1974), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975). It is well settled, and has been since long before Con......
  • Brennan v. Occupational Safety and Health Review Com'n, No. 73-1131
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 14 Agosto 1974
    ...of New York State Inc. v. United States Department of Labor, 487 F.2d 342 (2d Cir. 1973). See also Morton v. Delta Mining, Inc., 495 F.2d 38 (3d Cir. 1974). We may also distinguish the separate problem of a conflict between the Secretary and the Commission as to the proper interpretation of......
  • Flav-O-Rich, Inc. v. N.L.R.B., FLAV-O-RIC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 1 Marzo 1976
    ...v. NLRB, 425 F.2d 677, 681 (7th Cir.1970); it exposes and deters arbitrary administrative actions, see e.g., Morton v. Delta Mining, Inc., 495 F.2d 38, 42 (3d Cir.1974), cert. granted, 420 U.S. 906, 95 S.Ct. 824, 42 L.Ed.2d 835 (1975); and it prevents both the agency and the court from exce......
  • Request a trial to view additional results

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