finding last antecedent rule inapplicable where the qualifying phrase was ambiguous and could modify either the preceding short clause or the preceding main clause
How later courts described this case
- finding last antecedent rule inapplicable where the qualifying phrase was ambiguous and could modify either the preceding short clause or the preceding main clause
- finding two interpretations of statute permissible and referring to legislative history to determine congressional intent
- resort to the last antecedent rule found to be improper when the qualifying phrase could modify either the preceding short clause or the preceding main clause, creating an ambiguity
Written by the judges who cited it.
The opinion
LEVENTHAL, Circuit Judge,
concurring:
I join in the result on the ground that the order issued by the mine inspector was based solely on imminent danger, and was not based on unwarrantable failure to maintain safety standards.
Judge MacKinnon’s opinion lends lucidity to statutory provisions that on their own are murky, and a legislative history that is confusing. However, it is my view that the statute does not require an absolute and clear dichotomy — that the closing order must be either for imminent danger, or for unwarrantable failure to maintain safety standards, but not for both reasons. Questions of legislative intent require the courts, in the last analysis, to reconstruct how the legislature would have decided the specific issue if it had been specifically addressed by the legislature. * I find it hard to suppose that Congress would have said — We want the operator to be responsible for compensation in an ordinary case of unwarrantable failure, but not in a case that is so extreme that his unwarrantable failure has led to an “imminent danger” of explosion.
The kind of blunt consideration Congress was giving to the problem, as outlined in *1269 the legislative history reviewed by Judge MacKinnon, is more congruent with its taking the view that compensation orders were appropriate, when the operator was guilty of unwarrantable failures, as an allocation of burden related to guilt, and that this imposition of burden is equally appropriate, and if anything even more appropriate, when the operator’s derelictions (“unwarrantable” failures) had the consequence of presenting an imminent danger.
The only possible indicator to the contrary rests on administrative considerations. Certainly the department may reasonably conclude that imminent closure orders could be subject to problems of delay if the inspector were simultaneously required to consider the issue of unwarrantable failure. But it would seem to me open to the department, under this statute, to provide by regulation for a procedure whereby an imminent closure danger could be accompanied by an unwarrantable failure finding— either in the same order, or a contemporaneous order issued the same day. For example, I have in mind this could be projected when the inspector could make the “unwarrantable failure” determination readily, from observations in hand before the “imminent danger” became apparent. This is a matter that would lie within administrative discretion, in my view. It is not before us in the present case, for I would certainly agree with Judge MacKinnon that the statute may reasonably be interpreted by the administrative agency, in the interest of safety, as permitting the inspector to focus on immediate closure, in the case of imminent danger, without being obligated in a particular case to make the effort and take the time that may be necessary to make a determination, one way or the other, on the issue of unwarrantable failure. Here the closing order made no reference to the unwarrantable failure standard. Accordingly, I concur in the mandate of affirmance.
Montana Power Co. v. Federal Power Commission, 144 U.S.App.D.C. 263 , 270, 445 F.2d 739 , 746 (en banc), cert. denied, 400 U.S. 1013 , 91 S.Ct. 566 , 27 L.Ed.2d 627 (1970); City of Chicago v. Federal Power Commission, 128 U.S.App.D.C. 107, 113 , 385 F.2d 629 (1967), quoting Learned Hand, J., in United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952):
Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.