United States v. Finley Coal Company, Crim. No. 10303.

• Decision Date: 07 July 1972
• Docket Number: Crim. No. 10303.
• Parties: UNITED STATES of America, Plaintiff, v. FINLEY COAL COMPANY, a Partnership, and Charles Finley, an individual, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

345 F. Supp. 62

UNITED STATES of America, Plaintiff, v. FINLEY COAL COMPANY, a Partnership, and Charles Finley, an individual, Defendants.

Crim. No. 10303.

United States District Court, E. D. Kentucky, Jackson Division.

July 7, 1972.

Eugene Siler, U. S. Atty., Lexington, Ky., for plaintiff.

James S. Wilson, Pineville, Ky., Bert T. Combs, Louisville, Ky., Edward F. Pritchard, Jr., Frankfort, Ky., for defendants.

MEMORANDUM OPINION

HERMANSDORFER, District Judge.

The matters under consideration arise under a Motion to Dismiss all or several specific counts of a criminal indictment charging violations of the Federal Coal Mine Health and Safety Act of 1969, Pub.L. 91-173, Dec. 30, 1969, 83 Stat. 742, 30 U.S.C. § 801 et seq.¹ The defendant Finley Coal Company is a partnership which prior to and on December 30, 1970, operated two coal mines at Hyden, Leslie County, Kentucky. The defendant Charles Finley is a partner of the defendant coal company. On December 30, 1970, there was an underground explosion in the interconnected mines; the consequences of that explosion in terms of fatalities are not material to the present case.² The consequences of the explosion which are material to this case are charges of multiple violations of the Coal Mine Health and Safety Act of 1969, alleged to have occurred on that date and during the period from June 22, 1970 to January 26, 1971. On February 23, 1971, the Department of the Interior, Bureau of Mines, tendered to the defendant Finley Coal Company a proposed Order of Assessment of Civil Penalties in the amount of Fifty Three Thousand Six Hundred ($53,600.00) Dollars. The order was protested and upon modification, the sum of Fifty Three Thousand Eight Hundred ($53,800.00) Dollars was sought. The amended order has been protested. No payment has been made as a result of the civil proceedings. On June 23, 1971, a Federal indictment was returned against the defendant coal company and Charles Finley charging each, in twenty-four counts, with violations of safety standards established in Subchapter III —Interim Mandatory Safety Standards For Underground Coal Mines, 30 U.S.C. §§ 861 through 878.

The defendants have filed two motions which for this consideration will be treated as a single Motion to Dismiss. Rule 12 F.R.Crim.Proc. Basically, two questions are raised by the Motion to Dismiss: First, that the dual civil and criminal proceedings violate the defendants' 5th Amendment rights against being twice placed in jeopardy for the same offense; Second, that the Secretary of the Interior violated the provisions of Section 811(c), 30 U.S.C. in promulgating "Part 75—Mandatory Safety Standards, Underground Coal Mines"³ and this violation is of sufficient magnitude to compel dismissal of the indictment. Defendants' contentions will be considered in the order stated.

I. DOUBLE JEOPARDY

Defendants seek dismissal of Counts II, IV, VI, VII, VIII, IX, X, XI, XIII, XV, XIX, XX, XXI, XXII, XXIII and XXIV alleging that to proceed on these counts would constitute double jeopardy in view of a pending civil administrative proceeding which, defendants contend, is punitive in nature. Another ground—violation of the intent of Congress in passing the legislation and the purpose announced in Section 109 of Act by the criminal and civil actions—is raised. No merit is found in the latter argument in view of the clear intent of the Congress to impose both civil and criminal sanctions to implement its findings and declaration of purpose, 30 U.S. C. § 801.

Although defendants contend that both the individual and the partnership defendants are cited in the pending administrative proceeding, the face of the Proposed Order of Assessment issued February 23, 1971, shows that the assessment is limited to Finley Coal Company. Since the recovery of a civil penalty is not clearly sought against Charles Finley, individually, he will not be heard to contend that he has been subjected to the alleged double jeopardy. The question will be considered in relationship to the coal company.

It is settled that the Congress may constitutionally impose both a civil and a criminal sanction in the same Act for the same offense. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938); Rex Trailer Co., Inc. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956). A defendant is placed in jeopardy only in those cases where the action is "intended to authorize criminal punishment to vindicate public justice". United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 386, 87 L.Ed. 443 (1943). Where a statute provides an administrative civil proceeding with right of appeal to the courts for a trial de novo, 30 U.S.C. § 819(a) (4), as to any civil assessment, the "civil procedure is incompatible with the accepted rules and constitutional guaranties governing the trial of criminal prosecutions, and where civil procedure is prescribed for the enforcement of remedial sanctions, those rules and guaranties do not apply". Helvering v. Mitchell, 303 U.S. 391, 402, 58 S.Ct. 630, 634, 82 L.Ed. 917 (1938). The assertion that a civil assessment of Fifty Three Thousand Eight Hundred ($53,800.00) Dollars necessarily places the defendant coal company in a punitive circumstance, is upon consideration of some sixty individual violations over a period of seven months certainly not conclusive. The civil penalties range from a Twenty-Five ($25.00) Dollar assessment to the maximum of Ten Thousand ($10,000.00) Dollars. Whether or not the proceeding will terminate, if prosecuted through all appellate steps, in any penalty being asserted on alleged violations identical to those charged in the indictment cannot be known at this time. To say that the institution of civil proceedings per se imports any concept of jeopardy on the defendant goes far beyond any authority brought to the attention of this Court. To make the tenuous assumption that "jeopardy" may apply to a "civil" proceeding within the meaning of the 5th Amendment is one thing; to contend that it attaches at the outset of such proceeding is another. We know of no rule which warrants such construction. To adopt defendant's argument would, in practical effect, bar every criminal prosecution under the Act. Under Section 819(a) (1), the Secretary is directed by the mandatory word, "shall", to impose a civil penalty on any operator who violates a mandatory health or safety standard. Even though the civil penalty sought against the defendant is a substantial amount, the number of alleged violations required repeated inspections of defendant's mines and a major investigation following the explosion of December 30, 1970.⁴ The amount in controversy does not require a finding that the asserted civil penalties in this case are other than remedial.

Logically, Congress does not expose a defendant twice to jeopardy by establishing comprehensive penalties which may be imposed in separate proceedings instead of a single action where the statute sets forth clear standards regulating the imposition of one or more of such comprehensive penalties. (See the concurring opinion of Mr. Justice Frankfurter, United States ex rel. Marcus v. Hess, 317 U.S. 537, 555, 63 S.Ct. 379, 87 L.Ed. 443 (1943)). The threat of a civil assessment and a criminal penalty against the Finley Coal Company under the Coal Mine Health and Safety Act of 1969 does not constitute double jeopardy within the meaning of the 5th Amendment. Clearly, the Congress did, in fact, in the Act establish comprehensive penalties to be imposed under stated conditions, some of which are civil and remedial in nature and which are to be applied under elaborate civil procedures and others criminal in nature to be sought only against wilful violators of a mandatory health or safety standard. 30 U.S.C. § 819. That all sanctions imposed by the Act—civil and criminal— seek to insure compliance with the mandatory health and safety standards certainly does not suggest any impropriety.

II. RULE MAKING

The matter in contention is simply stated. The defendants insist that the Secretary of the Interior in promulgating standards, Part 75—Mandatory Safety Standards, Underground Coal Mines, was obliged to follow the procedure of 30 U.S.C. § 811(c). The United States contends that the Secretary properly proceeded under 30 U.S.C. § 861(d). There is no question that the Secretary did proceed under and "pursuant to the authority of paragraph (d) of Section 301 of the Coal Mine Health and Safety Act of 1969".⁵ Section 301 of the Act is codified at 30 U.S.C. § 861.

At issue is whether the Secretary was under duty to consult with specifically named classes of interested persons as a condition to rule making in this area. The significant language of 30 U.S.C. § 811(c) is: "in the development and revision of mandatory safety standards, the Secretary shall consult with . . . appropriate representatives of the coal mine operators and miners . . .." Under the section relied on by the Secretary, the statutory direction is expressed in the following language, 30 U.S.C. § 861(d): "in any case where the provisions of Sections 862 to 878, inclusive, of this title provide that certain actions, conditions, or requirements shall be carried out as prescribed by the Secretary, . . . the provisions of section 553 of Title 5 shall apply . . .".

The resolution of the issue depends upon what the Secretary did—whether he engaged in rule making, 811(c), or discharged a directive contained in Sections 862 through 878—and his announcement, on its face, seems perfectly candid:⁶

"Part 75 of Title 30, Code of Federal Regulations, Subchapter O—Coal Mine Health and Safety—Mandatory Health and Safety Standards, amended and revised as set forth below is herewith promulgated. (Emphasis added.)

The question is not whether the Secretary had the authority to amend and revise the Mandatory Health and Safety Standards, which he clearly does, but whether he discharged...