Petition — Chaneyfield v. City of New York

FEB 10 1976

IN THE

Supreme Court of the

Ocroser Term—1975

MMOHAEL RODAK, JR., CLERK

——-~

Nn. 85-1131

SAMUEL CHANEYFTELD,

Petttioner,

v.

THE CITY OF NEW YORK and

~ MATHEWS & CHASE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Wuuum J. Corcoran

Of Counsel

Corcoran AND Brapy

Attorneys for Petitioner

11 Park Place

New York, N. Y. 10007

Tel: 212-227-2242

> 10

TABLE OF CONTENTS

Oprmnion BELow - 3

JURISDICTION

QuEsTIONS PRESENTED a

Statutes INVOLVED

STATEMENT ...

Reasons Reviep on ror Grantine Writ:

Powmt I—The desperate need of safety measures

enacted by the Congress for the protection

of workers in underground operations will be

wholly negated if a private right of action

under the Act is denied

Point IJ—Absent a Federal yardstick of safety:

for underground operations, the Country will

be faced with a lack of uniform control in dis-

covering and transporting those elements of

substance and energy needed as the Country

commences the Third Century of its existence

ConcLusion

Memorandum Decision and Order by Owen, D.J. .....

Motion for Reargument; Supporting Affidavit of

William J. Corcoran, Esq., and Memorandum of

Judge Owen Denying Motion for Reargument _...

Affidavit of William J. Corcoran in Support of Mo-

tion for Reargument

Memorandum of Judge Owen

appre

11

16

18

19

8 F

ii TABLE OF CONTENTS

Opinion of the United States Court of Appeals for

the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

Judgment of the United States Court of Appeals

for the Second Circuit

Statutes Cited

28 U.S.C.:

Sec. 721. Definitions

Sec. 722. Mines subject to chapter; declination

of jurisdiction =

Sec. 738. Effect on State laws ‘

Sec. 1254 (1) .

30 U.S.C. (Federal Coal Mine Health and Safety Act

of 1969) :

Sec. 801

30 U.S.C. (Federal Metal and Non-Metallic Mine

Safety Act) :

See. 721

Sec. 721 (b) al

See. 722

Sec. 731 2, 8, 16

Sec. 738 m

See. 738(c)

45 U.S.C. (Federal Employers Liability Act):

Sec. 51 .2,7,8

TABLE OF CONTENTS

PAGE

Other Authorities Cited

Senate Report 1296 12

p. 2851 13

U.S. Code Congressional and Administrative News,

Vol. 2 (89th Congress, Second Session 1966) :

pp. 2846, 2871 15

IN THE

Supreme Court of the United States

Octroser Term—1975

No.

—e

SAMUEL CHANEYFIELD,

Petttioner,

v.

THE CITY OF NEW YORK and

MATHEWS & CHASE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Opinion Below

Opinion of the United States Court of Appeals dated

November 14, 1975, Docket No. 75-7183 is not reported.

Jurisdiction

The jurisdiction of this Court is invoked under Title 28

U.S.C. Section 1254 (1).

2

Questions Presented

(1) Does the Federal Metal and Non-Metallic Mine Safe-

ty Act, 30 U.S.C., Section 721 et seq. create a private

civil right of action against the owner or operator of a

mine or tunnel, for violation of the Act?

(2) Is a private right of action for workers in a tun-

nel or mine implied inasmuch as the Federal Mine Safety

Act was enacted for the “protection of workers in mines”?

(3) Is a tunnel in New York City which is dug out of

solid rock hundreds of feet below the surface, with an

underground railroad whose cars, loaded with rock blasted

from the tunnel and known as “Manhattan Schist” are

pulled by a Diesel locomotive to a shaft where a mine

hoist raises the rock to the surface and from whence it

is sold and carried in interstate commerce to the State

of New Jersey where said rock is used in the construc-

tion of a large sport complex, a mine within the meaning

of the Act?

(4) Should the Court below have permitted the Peti-

tioner to process his claim on remand under the Federal

Metal and Non-Metallic Safety Act jointly with the Fed-

eral Employers Liability Act, 45 U.S.C., Section 51 by

reason of the fact that the underground railroad was a

component part of the transportation of the “Manhattan

Schist” in interstate commerce from New York to New

Jersey?

Statutes Involved

Pertinent provisions of the Federal Metal and Non-

Metallic Mine Safety Act, 30 U.S.C., Section 731, et seq.

and more particularly, Sections 721, 722, 738, as follows:

§ 721. Definitions

For the purposes of this chapter.

(a) The term “commerce” means trade, traffic,

commerce, transportation, or communication be-

tween any State, the Commonwealth of Puerto

Rico, the District of Columbia, or any territory or

possession of the United States, and any other

place outside the respective boundaries thereof, or

wholly within the District of Columbia, or any ter-

ritery or possession of the United States, or be-

tween points in the same State, if passing through

any point outside the boundaries thereof.

(b) The term “mine” means (1) an area of land

from which minerals other than coal or lignite are

extracted in nonliquid form or, if in liquid form,

are extracted with workers underground, (2) pri-

vate ways and roads appurtenant to such area, and

(3) land, excavations, underground passageways,

and workings, structures, facilities, equipment, ma-

chines, tools, or other property, on the surface or

underground, used in the work of extracting such

minerals other than coal or lignite from their nat-

ural deposits in nonliquid form, or if in liquid form,

with workers underground, or used in the milling

of such minerals, except that with respect to pro-

tection against radiation hazards such term shall

not include property used in the milling of source

material as defined in the Atomic Energy Act of

1954, as amended.

(ce) The term “operator” means the person, part-

nership, association or corporation, or subsidiary

of a corporation operating a mine, and owning the

right to do so, and includes any agent thereof

4

charged with responsibility for the operation of

such mine.

(d) The term “Secretary” means the Secretary

of the Interior or his duly authorized representa-

tive.

(e) The term “Board” means the Federal Metal

and Nonmetallic Mine Safety Board of Review cre-

ated by section 729 of this title.

Pub.L. 89-577, § 2, Sept. 16, 1966, 80 Stat. 772.

Historica, Nore

References in Text. The Atomic Energy Act of

1954, as amended, referred to in subsee. (b), is

classified to chapter 23 of Title 42. The Public

Health and Welfare.

Effective Date. Section 22 of Pub.L. 89-577, pro-

vided that: “This Act [this chapter] shall become

effective on the date of its enactment [Sept. 16,

1966], except that sections 8 and 9 [sections 727

and 728 of this title], and subsection (b) and para-

graph (1) of subsection (a) of section 14 [section

733 of this title] shall become effective one year

after the date of publication of notice in the Fed-

eral Register of the designation of mandatory

standards as provided for in section 6(b) of this

Act [section 725(b) of this title].”

Short Title. Section 1 of Pub.L. 89-577 provided:

“That this Act [enacting this chapter] may be cited

as the ‘Federal Metal and Nonmetallic Mine Safety

Act’.”

Legislative History. For legislative history and

purpose of Pub.L. 89-577, see 1966 U.S.Code Cong.

and Adm.News, p. 2846.

5

§ 722. Mines subject to chapter; declination of

-urisdicti

(a) Each mine the products of which regularly

enter commerce, or the operations of which affect

commerce, shall be subject to this chapter.

(b) The Secretary may, by published rules

adopted pursuant to the Administrative Procedure

Act, decline to assert jurisdiction under this chap-

ter over any class or category of mines where, in

the opinion of the Secretary, the effect of the op-

erations of such mines on commerce is not suffi-

ciently substantial to warrant the exercise of juris-

diction under this chapter, and the record of in-

juries and accidents in such class or category of

mines warrants such a declination of jurisdiction.

Pub.L. 89-577, § 3, Sept. 16, 1966, 80 Stat. 773.

Historica Note

References in Text. The Administrative Proced-

ure Act, referred to in subsec. (b), is classified to

section 551 et seq. of Title 5, Government Organiza-

tion and Employees.

Legislative History. For legislative history and

and Adm.News, p. 2846.

purpose of Pub.L. 89-577, see 1966 U.S.Code Cong.

§ 738. Effect on State laws

(a) No State or territorial law in effect upon the

effective date of this chapter or which may become

effective thereafter, shall be superseded by any

provision of this chapter, except insofar as such

State or territorial law is in conflict with this chap-

ter, or with orders issued pursuant to this chapter.

6

(b) Provisions in any State or territorial law

in effect upon the effective date of this chapter,

or which may become effective thereafter, which

provide for greater safety of persons in a mine as

defined in this chapter, than do provisions of this

chapter, which relate to the same phase of such

operations, shall not be construed or held to be

in conflict with this chapter. Provisions in any

State or territorial law in effect upon the effec-

tive date of this chapter, or which may become

effective thereafter, which provide for the safety

of persons in a mine as defined in this chapter

concerning which no provision is contained in this

chapter, shall not be construed or held to be super-

seded by this chapter.

(c) Nothing in this chapter shall be construed or

held to supersede or in any manner affect the work-

men’s compensation laws of any State or territory,

or to enlarge or diminish or affect in any other

manner the common law or statutory rights, duties,

or liabilities of employers and employees under

State or territorial laws in respect of injuries, oc-

cupational or other diseases, or death of employees

arising out of, or in the course of, employment.

Pub.L. 89-577, § 19, Sept. 16, 1966, 80 Stat. 784.

HistoricaL Note

References in Text. Effective date of this chap-

ter, referred to in subsec. (b), as Sept. 16, 1966,

except that effective date of sections 727, 728, and

733(a), (1), (b), of this title as effective one year

after date of publication of notice in Federal Regis-

ter of designation of mandatory standards as pro-

vided for in section 725(b) of this title, see section

7

22 of Pub.L. 89-577, set out as Effective date note

under section 721 of this title.

Legislative History. For legislative history and

purpose of Pub.L. 89-577, see 1966 U.S.Code Cong.

and Adm.News, p. 2846.

The Federal Coal Mine Health and Safety Act of 1969,

30 U.S.C. 801, et seq.

The Federal Employers Liability Act, 45 U.S.C., $51.

U.S.Code Congressional and Administrative News,

Vol. 2, Page 2846 (89th Congress, Secon! Session

1966).

Statement

On Septerfiber 13, 1971 the Petitioner was employed as

an engineer on a Diesel locomotive used to pull muck

cars in a tunnel under New York City’s West Side. The

muck cars were used to carry rock known as “Manhattan

Schist” blasted from the tunnel. The Diesel locomotive

pulled the muck cars to a shaft in the tunnel located

on West 79th Street and Riverside Drive, Borough of

Manhattan, City of New York where the Manhattan Schist

was hoisted by a conventional mine hoist to trucks which

transported the rock to New Jersey where it was used

as fill and foundation for a large sport complex being

erected there.

While the ten car train was en route to the mine shaft,

nine loaded cars became uncoupled from the locomotive

and one car attached thereto, and proceeded on its way

without knowledge of the Petitioner. When the free-riding

loaded nine cars came to an incline turning downward,

the uncoupled ears increased their speed until they crashed

into the rear of the one car attached to the locomotive,

8

projecting the Petitioner out of the cab and under the

wheels of a car which remained attached to the locomo-

tive, resulting in severe and permanent injuries to the

Petitioner.

The Court of Appeals in an opinion by Judge Oakes

held that Congress in enacting the Federal Metal and

Non-Metallic Mine Safety Act (Sect. 738(¢)) did not af-

ford a private right of action in favor of a workman

injured in the tunnel in violation of the Act. Although

the District Court (Richard Owen, J.) dismissed the ac

tion for lack of Federal jurisdiction without permitting

the amendment to include the Federal Employers Lia-

bility Act, 45 U.S.C., Section 51, the Court of Appeals

in its decision below held that such an inclusion of Fed-

eral Employers Liability Act would not have changed

the result for neither the Respondents The City of New

York or Mathews & Chase, its Consulting Engineers, can

be considered to have held themselves out to the public

as carriers of the “Manhattan Schist” on the underground

railroad involved.

The Federal questions sought to be reviewed were raised

by a motion to dismiss the action on the ground that the

Court lacked the jurisdiction and the cause of action was

not stated inasmuch as the alleged claim did not arise

out of the Federal Metal and Non-Metallic Mine Safety

Act, 30 U.S.C., Section 731, et seq.

Judge Richard Owen in the United States District

Court, Southern District of New York in a Memorandum

Decision and Order granted the Motion to dismiss on the

ground that the operation in which the Petitioner was

working was not a mine within the Federal Metal and

Non-Metallic Mine Safety Act; that said Act does not

provide for a private right of action by one injured and

that the Respondent Mathews & Chase are not mine op-

erators within the Act and that there is no Federal juris-

diction.

On appeal, the United States Court of Appeals for the

Second Cireuit, per Oakes, J. in an opinion dated Novem-

ber 14, 1975 held that the Federal Metal and Non-Metallic

Mine Safety Act did not provide for private remedies

and did not create jurisdiction in the Federal District

Court for the enforcement of private remedies. The

Court of Appeals did not reach the question as to whether

the Respondent The City of New York operated the proj-

ect railroad “as a means of carrying for the public”. The

Court of Appeals further did not pass upon the ques-

tion as to whether the railroad’s shipment are “in com-

merce”.

REASONS RELIED ON FOR GRANTING WRIT

POINT I

The desperate need of safety measures enacted by

the Congress for the protection of workers in under-

ground operations will be wholly negated if a private

right of action under the Act is denied.

With the discovery and development of new sources of

energy and the need to extract metallic and non-metallic

products underground and their transportation to the cen-

ters of usage will require more and more use of mine

and tunnel operations. The most pressing problem in

search of an answer is that of environmental and pol-

lution control. Apart from the continuing need for im-

proved stable business conditions, the chief problem con-

cerning the nation as it enters on its Bicentennial year

is the need for development of new products and the

10

transportation of wastes which have damaged the beauty

of the country and the health of its inhabitants.

In a parallel field, namely, coal mining, Congress has

set the standards of safety to insure the continued life

and health of the miner when it enacted the Federal Coal

Mine Health and Safety Act of 1969, 30 U.S.C. 801, et

seq. In all other areas other than coal and lignite mines,

Congress sought a parallel measure of safety for the

worker in the remaining underground operations. The

title of the Federal Metal and Non-Metallic Mine Safety

Act on its face indicates that Congress was very much

concerned in maintaining high standards of safety. Apart

from these two Federal statutes aforesaid there are no

other Federal Acts that look towards the safety of work-

ers underground. It is to insure the implementation of

the intent of Congress to give the underground worker

these measures of safety that this Court should hold that

Congress intended to give the underground worker a pri-

vate right of action with which he would assist in the

enforcement of the Code of Rules which Congress in-

tended.

Section 738(c) of the Federal Metal and Non-Metallic

Mine Safety Act affords the underground worker his

rights under the statutory Workmen’s Compensation Laws

as well as under Commcen Law.

Every phase and area of the nation has felt the im-

pact caused by the necessary import of oil from the Mid

East. The utilities that are generating the electric cur-

rent so desperately needed by the American economy to

continue on its course of economic and national defense

will be side-tracked if these new sources of energy are

not found and transported to the centers of commerce.

The long_sought and tedious development of the Alas-

kan pipe lines is giving the Country some measure of

confidence. This, however, will require the construction

of tunnels and pipelines underground with which to carry

safely and swiftly the precious oil so greatly needed by

American industry. To a limited extent, such underground

construction operations of tunnels and mines were seen

in the development of the natural gas lines from their

sources in Oklahoma and other States to the cities where

the same is utilized by the citizenry of the great metro-

polises.

The deposits of oil in continental United States are

claimed by geologists to be of a limited amount and

hence, they, as well as the national oil companies are

urging the Government to permit the usage of coal and

the development of nuclear power plants. To get at these

original sources of energy, mines and tunnels of all kinds

will have to be exeavated underground. Finally, the Gov-

ernment will have to take broad and varied measures to

12

insure that the beauty of the countryside and the health

of its citizens are not impaired by pollution. To do this,

the Government has underwritten a huge underground

tunnel in which the Petitioner was injured and which is

known as the North River Water Pollution Control Proj-

ect to serve as part of the City’s sewer system. A short

distance from this tunnel is located a large engineering

project known as the North River Pollution Plant which

upon completion will serve to screen and control the

wastes of a goodly portion of the City of New York that

has polluted the North and Hudson Rivers in the City

of New York as well as other waterways throughout the

Country.

Congress having acted to locate and transport new

sources of energy could, by the same token, have enacted

legislation to control environmental damages and should

not be obstructed in its goals in having the workmen who

are at the bottom of the ladder working in underground

facilities injured in life and limb with no protective meas-

ures for himself and his next of kin.

It is incredible to assume that Congress, through its

various committees, having become knowledgeable of all

of these vast undertakings which will influence the future

of our nation as we commence the third century, as much

as the industrial revolution influenced our nation during

the course of its first one-hundred years, has not pro-

vided suitable legislation to protect the workmen in un-

derground facilities and for their next of kin in ease of

death.

The language of the Senate Committee reports, par-

ticularly Senate Report 1296 is sufficient to justify that

the Federal Metal and Non-Metallic Mine Safety Act of-

fers an underground worker a private cause of action for

personal injuries suffered or to his next of kin for wrong-

ful death.

13

The legislative history in Senate Report No. 1296 deals

with the actions of these Congressional Committees cover-

ering the period from June 23 to August 31, 1966 and

contained on Page 2851, the following language is used:

“Scope of Coverage” and reads * * * “The pro-

posed—Act—will cover every mine the products of

which regularly enter commerce or the operation

of which affect commerce * * * authorizing the Sec-

retary (of Interior) to decline to assert jurisdic-

tion under this Act over mines, when in his opinion,

the effect of the operations of such mines in com-

merce is not sufficiently substantial to warrant the

exercise of jurisdiction or the exercise of jurisdic-

tion would impair the effective overall realization

of the objectives of the Act * * *.”

Up to the time of the accident, in the case at bar, the

Secretary of the Interior has not declined jurisdiction

and therefore Federal Interior Department jurisdiction

existed.

Hence, at this phase, the Petitioner seeks only to dem-

onstrate to this Honorable Court the compelling need to

grant the Writ of Certiorari and to assure the most pre-

cious product of the underground operation, namely, the

worker or miner that his representatives assembled in

the nation’s capital have made all efforts to insure that

his inalienable right to life and to limb is not swept down

the drain of pollution or in the cave-in of a mine or

tunnel. This is for a cause he has given and will give

the major part of his adult life.

Causes will multiply and uncertainty will increase un-

less this Court makes known to the Petitioner and others

like him of their rights in working in underground fa-

cilities. A reading of the Committee Reports in the Con-

14

gress will demonstrate that the only factor in which it

was extremely interested was that of “safety”. This is

true whether the underground facility was au excavation

for precious stones or minerals in the area of the Com-

stock Lode in Nevada, the salt mines in Syracuse, the

limestone mines in Indiana, the lead mines in Missouri

and the iron mines in Colorado, or whether the under-

ground facility was to be used for the carrying of water

such as a large underground viaduct blasted out of solid

rock 900 feet below ground connecting the reservoirs in

Westchester County by an underground tunnel or mine

now in construction going through the Counties of the

Bronx, New York, under the East River into Queens in

the City of New York. It may be noted that the water

viaduct has chambers 65 feet high, 45 feet wide dug out

of solid rock 900 feet underground. Is it any less a mine

because the rock excavated is “Manhattan Schist” which

is sold in interstate commerce in the State of New Jer-

sey rather than a metal or stone, precious or non-precious,

if the product excavated is secondary to the general pur-

poses of the underground operations? Is a fractured leg

any more or less painful or injurious if it oceurs in an

underground excavation for lead, gold, silver or lime-

stone rather than “Manhattan Schist?” Congress was not

interested in the product as it was in safety in the un-

derground operation. And how many mines are excavated

out of solid rock 900 feet underground? The overall in-

tent of Congress was to include every form of under-

ground excavation, other than coal, lignite and liquids for

which other provisions were made.

In the instant case the tunnel was part of a large sewer

pollution control plant running for many miles, the prod-

ucts of which, namely, “Manhattan Schist” was sold and

transported in interstate commerce into the State of New

Jersey. A “mine is still a mine” if after hundreds of

15

feet of excavation for silver, the underground operations

turn out to be a dud with no silver discovered and mined.

In other words, the product excavated is not controlling

as to whether or not the underground excavation is a

“mine” and this is also true whether the underground

excavation occurs in the iron mines of Colorado or in

a water viaduct blasted out of solid rock 900 feet un-

derground or in the case at bar, namely, a large tunnel

or mine in which the Petitioner was injured. Confusion

is easy and a “sewer tunnel” may be misleading but at

the moment when the Petitioner was severely injured, it

was an underground excavation meeting the definitions of

a mine as set forth in Sections 721 and 722 of the Fed-

eral Metal and Non-Metallic Mine Safety Act.

Accordingly, Congress wrote the Federal Metal and

Non-Metallic Mine Safety Act for all types of under-

ground excavations including sand and gravel whether the

the product is metal or non-metallic as long as the same

was sold or distributed in interstate commerce or in some

way affecting commerce. The tunnel in question had all

of these attributes and conformed precisely with all of

the provisions of the Federal and Non-Metallic Mine Safe-

ty Act as reported in U.S. Code Congressional and Ad-

ministrative News, Vol. 2 Page 2846 (89th Congress, Sec-

ond Session 1966). In fact, Senator Javits, one of the

sponsors of the Act at Page 2871 said:

“Unlike the Coal Mine Safety Act, this bill will

cover a great diversity of mines, w.th an even

greater diversity of dangers and I believe it un-

wise to attempt to write a comprehensive ‘laundry

list’ and risk leaving out some important danger, ©

which through inadvertence, might have been over-

looked by the committee.”

16

At the present time the Court of Appeals for the Second

Circuit is holding in abeyance a second appeal based upon

the Federal Metal and Non-Metallic Mine Safety Act,

entitled

Bernard Rush

v.

The City of New York

United States Court of Appeals

Second Cireuit Docket No. 75-7562.

This case involves the water viaduct. Consideration of

the appeal in the Rush case has been deferred by the

Court of Appeals for the Second Circuit pending dis-

position on the Petition for the granting of the Writ of

Certiorari on the case at bar, pursuant to a stipulation

of counsel approved by the Court.

CONCLUSION

The Court of Appeals overlooked the intent of Con.

gress to insure safety in holding that the Federal Metal

and Non-Metallic Mine Safety Act, 30 U.S.C., Section

731 et seq. did not grant a private civil right of action

in’ favor of the Petitioner for injuries suffered in an un-

derground excavation, running many miles, hundreds of

feet below the surface out of solid rock and which had

all of the attributes and dangers of a conventional mine

and whose products were sold and transported in inter-

state commerce from the State of New York to the State

of New Jersey; the Court of Appeals failed in its duty

to rule on the “rather troublesome” question as to whether

the underground excavation was a mine within the pur-

view of 30 U.S.C. Section 721 (b) and whether the rail-

road’s shipments are “in commerce”. The failure of the

17

Court below to pass on these questions leaves the Peti-

tioner and thousands of workers like him in limbo as

to his and their rights under the Act; no other Federal

tribunal having passed on this subject throughout the

country should prompt this Honorable Court to grant cer-

tiorari for the effect of the Federal Metal and Non-

Metallic Mine Safety Act on the many workers under-

ground in the days ahead as the nation gets underway

in the discovery and production of sources for energy and

control of environmental pollution will be great indeed.

Respectfully submitted,

WuuuMm J. Corcoran

Of Counsel

Corcoran AND Brapy

Attorneys for the Petitioner

‘ 11 Park Place

New York, N. Y. 10007

18

Memorandum Decision and Order by Owen, D.J.

Since the operation in which plaintiff was working was

not a mine within the Federal Metal and Non-Metallic

Mine Safety Act, 30 U.S.C. §721 et seq.; since that act

does not provide for a private right of action by one

injured; and since Mathews & Chase are not mine opera-

tors within the act, there is no Federal jurisdiction and

the motion to dismiss is granted.*

So Ordered

s/ Ricnarp OwEN

US.D.J.

* On my own motion, pursuant to Rule 12 (b) (3) F.R.C.P. the

action as dismissed as to the City of New York as well as on the

ground that there is no subject matter jurisdiction.

19

Motion for Reargument; Supporting Affidavit of

William J. Corcoran, Esq., and Memorandum of

Judge Owen Denying Motion for Reargument

UNITED STATES DISTRICT COURT,

SoutHern District or New York.

Sir:

Please Take Notice, that upon the annexed affidavit of

William J. Corcoran, duly sworn to the 11th day of

March, 1975, the Memorandum of Law submitted in con-

nection therewith, and upon all of the proceedings here-

tofore had herein, on the 26th day of March, 1975, at

10:00 o’clock in the forenoon of that day, the undersigned

attorneys for the plaintiff, Samuel Chaneyfield, will move

before Judge Richard Owen sitting in Chambers at the

United States District Court for the Southern District of

New York, Foley Square, New York, New York, for the

following relief:

1. An Order granting this motion for reargument, pur-

suant to Rule 9(m) of the General Rules of this Court.*

2. Upon the granting of the motion for reargument

that the decision of this Couri, rendered on February

21, 1975, dismissing the cause of action as against the

defendants, Mathews & Chase, and upon the Court’s own

motion, dismissing the cause of action against the de-

fendant The City of New York upon the grounds that

the Federal Metal and Non-Metallic Mine Safety Act,

30 U.S.C. §721 et seq. does not apply to the operations

in which the plaintiff was working; and further, that

such Act does not provide for a private right of action

* The Court, per Peter Block, extended time to 3/12/75.

20

Motion for Reargument; Supporting Affidavit of

William J. Corcoran, Esq., and Memorandum of

Judge Owen Denying Motion for Reargument

by one injured; and further, on the ground that the de-

fendant, Mathews & Chase, are not mine operations within

the meaning of the Act; and that there is no Federal

jurisdiction, be recalled, and that thereupon the said mo-

tion of the defendant, Mathews & Chase, and the Court’s

own motion to dismiss the complaint, be denied.

Dated: New York, New York

March 11, 1975

Yours, ete.

CorcoraAN AND Brapy

Attorneys for Plaintiff

By Wuu1am J. Corcoran

A Member of the Firm

11 Park Place

New York, New York

Telephone No. (212) 227-2242

To:

Clerk, United States District Court

Southern District of New York

Foley Square

New York, New York

Kroll, Edelman, Elser & Wilson, Esqs.

Attorneys for Defendant Mathews & Chase

22 East 40th Street

New York, New York 10016

J. Robert Morris, Esq.

Attorney for Deft. The City of New York

111 Fulton Street

New York, New York 10038

21

Affidavit of William J. Corcoran in Support of Motion

for Reargument

UNITED STATES DISTRICT COURT,

‘SourHern District or New York.

Strate or New YorkK

County or New York

Wuuiuam J. Corcoran, being duly sworn, deposes and

says:

1. I am a member of the firm of Corcoran and Brady,

attorneys for the plaintiff in the above-entitled action,

and am familiar with the facts herein.

2. An application for reargument of the motion heard

before this Court on the 2ist day of February, 1975 is

sought on the ground that this Honorable Court has mis-

construed the meaning and intent of the Congress in en-

acting the Federal Metal and Non-Metallic Mine Safety

Act 30 U.S.C. §721 et seq. Parenthetically, the Court

misconstrued the purposes for which Congress enacted

the Act, aforesaid, by- confusing the ultimate object of

the underground work in progress and believing the un-

derground facility to be an “intercepting sewer” rather

than a “mine”. This misconception is readily understand-

able when one conceives of a mine as being an under-

ground facility from which is extracted a precious or non-

precious metal or mineral, and nothing more.

3. In the event the Court adheres to its original de-

cision that the Federal Metal and Non-Metallic Mine

Safety Act is not applicable to the within case, then, and

in that event, the attorneys for the plaintiff begs leave

22

Affidavit of William J. Corcoran in Support of Motion

for Reargument

of the Court to amend the complaint so as to base juris-

diction on the Federal Employees Liability Act, 45 U.S.C.,

Section 51 et seq.

4. Such other and further relief as to this Court may

seem just and proper.

(Sworn to by William J. Corcoran, March 11, 1975.)

To:

Clerk, United States District Court

Southern District of New York

Foley Square

New York, New York

Kroll, Edelman, Elser & Wilson, Esqs.

Attorneys for Defendant Mathews & Chase

22 East 40th Street

New York, New York 10016

J. Robert Morris, Esq.

Attorney for Deft. The City of New York

111 Fulton Street —

New York, New York 10038

23

Memorandum of Judge Owen

The motion for reargument is denied.

So Ordered

3/21/75

Filed 3/26/75

/s/ Ricwarp Owen

U. 8S. D. J.

24

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

UNITED STATES COURT OF APPEALS

For tHe Seconp Circurr

No. 62—September Term, 1975.

(Argued October 3, 1975 Decided November 14, 1975.)

Docket No. 75-7183

SaMvUEL CHANEYFIELD,

Appellant,

Tue Crry or New York and Matuews & Cuassz,

Appellees.

Before:

WatTerMAN, Oakes and MESKILL,

Circuit Judges.

Appeal from a judgment of the United States District

Court for the Southern District of New York, Richard

Owen, Judge, dismissing a complaint under the Federal

Metallic and Nonmetallic Mine Safety Act, 30 U.S.C. § 721

et seq.

25

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

Judgment affirmed.

Wurm J. Corcoran, Corcoran & Brady, New York,

N.Y., for Appellant.

Roy E. Pomerantz, New York, N.Y. (Kenneth J.

Balkan and Kroll, Edelman, Elser & Wilson, New

York, N.Y., on the brief), for Appellees.

Oaxes, Circuit Judge:

This appeal is from the dismissal of a complaint for

personal injuries under the Federal Metallic and Non-

metallic Mine Safety Act, 30 U.S.C. 4 721 et seq. (here-

after the “Mine Safety Act”). Judge Richard Owen, of

the United -States District Court for the Southern Dis-

trict of New York, concluded that the Mine Safety Act

did not apply under the facts and, as no other federal

claim was alleged, he dismissed the complaint for lack

of subject matter jurisdiction. We agree that the Mine

Safety Act, enacted in 1966, confers no private right of

action, and, although appellant seeks leave to amend his

complaint, we affirm the dismissal of this action.

On September 13, 1971, appellant was the engineer of

a Diesel locomotive being used to pull “muck cars” in a

tunnel under New York City’s West Side. The muck cars

were used to remove rock debris, known as “Manhattan

schist,” which was excavated in the construction of the

tunnel. This debris was removed from the tunnel at West

79th Street and Riverside Drive. It was then apparently

sold and removed to New Jersey, where it was to be used

as fill or foundation at a stadium project.

The tunnel was being dug as a portion of the North

River Water Pollution Control Project, and is to serve

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

as part of the City’s sewer system. Appellee City owns

the tunnel and contracted with appellant’s employer, who

is not a party to this suit, for its excavation. Appellee

Mathews & Chase is the City’s consulting engineer on the

project.

Appellant’s affidavit alleges that he was injured when

nine of the ten loaded muck cars his locomotive was pull-

ing became uncoupled. The detached cars at first rolled

slowly after the locomotive as it pulled away. But then,

as the incline turned downward, the uncouped cars rolled

faster and faster until they crashed against the rear of

the one remaining car. This jolt caused the appellant to

fall from the locomotive, resulting in severe injuries to

his left arm.

It is appellant’s contention that the tunnel project is a

“mine” within the meaning of the Mine Safety Act, 30

U.S.C. §§ 721(b), 722(a). He argues that the appellee City

as owner of the “mine” and Mathews & Chase as its super-

vising agent are liable to him for any injuries he sustained

due to unsafe mine conditions.

The Minety Safety Act was, as appellant correctly as-

serts, doubtless enacted for the purpose of extending fed-

eral supervision of mine safety to mines of all type and

character (other than coal and lignite mines which are

regulated by a different statute, the Federal Coal Mine

Health and Safety Act of 1969, 30 U.S.C. § 801 e¢ seq.).

As such the Mine Safety Act requires the Secretary of

Interior to designate mandatory safety standards after

public hearing, 30 U.S.C. 4 725; it authorizes the Secretary

to order the closing of dangerous mines, or areas thereof,

or of those in which there has been a failure to abate vio-

lations of the mandatory safety standards, 30 U.S.C.

27

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

§§ 727-28; it establishes a “Safety Board to Review” to

review the Secretary’s closing orders, 30 U.S.C. §4 729-30;

and it establishes judicial review of the Safety Board’s

orders, 30 U.S.C. § 731. The Act further provides that

the Secretary may seek injunctions to enforce orders

made under the Act, 30 U.S.C. 4 733(a), and that criminal

penalties may be levied against a mine operator for re-

fusal to obey valid orders where the failure to comply

could result in death or serious bodily harm, 30 U.S.C.

§ 733(b). The statute, however, explicitly does not “en-

large or diminish or affect in any other manner the com-

mon law or statutory rights, duties, or liabilities of em-

ployers and employees . . . in respect of injuries . . . aris-

ing out of, or in the course of, employment.” 30 U.S.C.

§ 738(c).

Neither anything in the Mine Safety Act nor any au-

thority referred to us by counsel or discovered by us upon

research purports to suggest that the Act creates a pri-

vate right of act.on by an injured employee against the

mine operator, or the operator’s agents, for violation of

the Act. Congress knows full . ell how to create a private

civil right of action to protect employees from dangerous

working conditions. Two obvious examples are the Fed-

1 30 U.S.C. § 738(c) provides in full as follows:

Nothing in this chapter shall be construed or held to super-

sede or in any manner affect the workmen’s compensation

laws of any State or territory, or to enlarge or diminish or

affect in any other manner the common law or statutory

rights, duties, or liabilities of employers and employees under

State or territorial laws in respect of injuries, occupational

or other diseases, or death of employees arising out of, or in

the course of, employment.

28

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

eral Employers’ Liability Act, 45 U.S.C. § 51, and the

Jones Act, 46 U.S.C. § 688. The plain language chosen by

Congress to effect its remedial purpose in those enact-

ments suggests, by contrast to the absence of such ex-

pression in the Mine Safety Act, that the governmental

purpose of insuring mine safety is to be achieved by gov-

ernment regulation, rather than by private civil actions.

It is true that in J. I. Case Co. v. Borak, 377 U.S. 426,

432-34 (1964), for example, the Supreme Court held in

connection with Section 14(a) of the Securities Exchange

Act of 1934, 15 U.S.C. 4 78n(a), that private rights of

action for investors could be implied since the statute was

for the “protection of investors.” Similarly, the Mine

Safety Act is plainly aimed at the protection of miners.

However, the implication of a direct private action under

the Mine Safety Act cannot be supported by analogy to

Borak. The Securities and Exchange Act specifically pro-

vided in Section 27, 15 U.S.C. § 78aa, a grant of jurisdic-

tion over “all suits in equity and actions at law brought

to enforce any liability or duty created” under that Act.

The Supreme Court relied on that general enforcement

jurisdiction to infer a provision for private remedies un-

der the Securities and Exchange Act in Borak, supra, 377

U.S. at 430-31. By contrast, the Mine Safety Act provides

for no such general jurisdiction, and further specifically

denies that it may be construed to “enlarge, diminish or

affect” the rights and liabilities of private parties regard-

ing employment-related injuries. 30 U.S.C. § 738(ce).

Under the Mine Safety Act, the role of the courts does

not go beyond review and enforcement of orders made

under the Act by the Secretary of the Interior. See 30

U.S.C. §§ 731, 733. It is wholly through the instrument of

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

the Secretary’s safety standards, inspections and compli-

ance orders that the Act regulates the conditions of mines,

with the view of accommodating both the interests of mine

operators and mine workers. See 30 U.S.C. §§ 726, 729(c).

In view of the purely regulatory nature of the Mine Safety

Act scheme, we read the congressional segregation of the

Act from private remedies in 30 U.S.C. § 738(c) at face

value. We do not perceive the Act to have created jur-

isdiction in the federal- district courts for the enforcement

of private remedies as part of the arsenal for effectuation

of regulations and orders made under the Act. This con-

clusion wholly comports with the legislative history of the

Act as set forth in the Senate Report and the Conference

Report, 1966 U.S. Code Cong. & Ad. News 2846, 2872

(individual views of Senator Javits), 2883. Appellant is,

therefore, relegated to his state law claims* and we need

not face here the rather troublesome question, somewhat

lightly discussed by the court below, whether the operation

in which appellant was working was indeed a “mine”

under the broad definition of that term in the Mine Safety

Act, 30 U.S.C. § 721(b).*

2 We gathered at argument that he has pursued his workmen’s

compensation claims against his own employer. The record also

shows that he has a state action pending, apparently for products

liability and negligence, against the coupling manufacturer, as well

as Mathews & Chase and several defendants other than the City of

New York. (Affidavit of Attorney William J. Corcoran in Opposi-

tion to Motion to Dismiss.)

*30 U.S.C. § 721(b) provides simply that “[t]he term ‘mine’

means (1) an area of land from which minerals other than coal or

lignite are extracted. . . .” 30 U.S.C. § 722(a) adds the additional

requirement that, to be subject to the Act, the mine must be one “the

products of which regularly enter commerce. . . .”

30

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

As an afterthough, appellant argues, for the first time

in this court, that he should be permitted before final dis-

missal to amend his complaint to the same set of facts

under the Federal Employers’ Liability Act (FELA), 45

U.S.C. § 51. His ingenious, if rather farfetched, sugges-

tion, primarily based on Kach v. Monessen Southwestern

Railway Co., 151 F.2d 400 (3d Cir. 1945) (wholly intra-

state movement, if part of continuous movement which

eventually crosses state border, can be “in commerce”

within meaning of the term as used in FELA), is that be-

cause the Manhattan schist excavated in this project is

transported in commerce from New York to New Jersey,

and since he was injured in a railroad-type accident* in

connection with the initial stage of such transportation,

the owner of the “railroad” is “liable in damages” for the

injury under the FELA, 45 U.S.C. § 51.

Granting that only appellant’s complaint and not his

action technically has been dismissed, the question is

whether a remand is required here solely for the purpose

of permitting an additional allegation of FELA jurisdic-

tion. It is true that a motion to dismiss a complaint be-

fore trial should ordinarily be granted only with leave

to amend. The action itself should be dismissed only

after the time granted for amendment has expired. A

number of cases, including our own Klebanow v. New

York Produce Exchange, 344 F.2d 294, 299-300 (2d Cir.

1965), and Neeff v. Emery Transportation Co., 284 F.2d

* We say railroad-type accident because, obviously, appellant al-

leges that he was employed as a “locomotive engineer” operating a

“Diesel locomotive” used to push and pull “muck cars” on narrow

guage (36-inch) “railroad tracks” in the tunnel at the time of the

uncoupling accident.

31

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

432, 434-35 (2d Cir. 1960), say that for the trial court

to refuse leave to amend at this stage of the pleadings

is to abuse its discretion. See 3. J. Moore, Federal Prac-

tice J 15.10, at 957 & n.2 (1974 ed.). But here neither

Judge Owen’s memorandum decision ordering dismissal

of the complaint, entered on February 25, 1975, nor the

judgment order from which appeal is taken provided for

leave to amend. True, appellant could have and perhaps

should have moved below for relief under Fed. R. Civ. P.

59(e) or 60(b), that is, to reopen the judgment to permit

the amended pleading, rather than have taken his appeal.

3 J. Moore, supra § 15.07[2], at 855; J 15.10, at 959-60.

Indeed there is authority, chiefly in the Ninth Circuit, for

the proposition that appeal from grant of a motion to

dismiss a complaint is premature, because the “final order”

is the one which dismisses the action. See 2A J. Moore,

supra, J 12.14, at 2338-39; 9 J. Moore, supra, J 110.13[1],

at 152, citing, e.g., Richardson v. United States, 336 F.2d

265, 266 (9th Cir. 1964). But see Stewart v. Lincoln-Doug-

las Hotel Corp., 208 F.2d 379, 381 (7th Cir. 1953) (where

district court intended by its order dismissing complaint

to terminate litigation and plaintiff by promptly taking

appeal elected to stand on complaint, order was final and

appealable).

We are inclined, however, to adopt the practical as-

sumption that by not seeking relief below appellant in-

tended that we treat the district court order as if the

action had been dismissed. 9 J. Moore’s supra, J 110.13[1],

at 153. As the Supreme Court has observed in a case

involving a premature appeal, it is “too late in the day

and entirely contrary to the spirit of the Federal Rules of

Civil Procedure for decisions on the merits to be avoided

32

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

on the basis of such mere technicalities.” F oman v. Davis,

371 U.S. 178, 181 (1962) (technical defect in notice of ap-

peal which did not prejudice appellee). In the interest of

avoiding unduly technical constructions of the Federal

Rules we will, therefore, treat the district court order as

final. See 9 J. Moore, supra, J 204.14. And in the spirit

of the Rules we will examine the complaint to see whether

it could be deemed if amended to state an FELA claim.

If so we can remand to permit such amendment; if not

we can affirm.

The FELA applies only to a “common carrier by rail-

road... .” 45 U.S.C. 4 51. This means “one who operates

a railroad as a means of carrying for the public. .. .”

Wells Fargo € Co. v. Taylor, 254 U.S. 175, 187-88 (1920)

(express company not common carrier). See also Ed-

wards v. Pacific Fruit Express Co., 390 U.S. 538, 540

(1968) (refrigerator car companies not common carriers).

The question what is a “common carrier by railroad” is

one which frequently causes difficulty where the use of

railroad equipment is involved. Compare McCrea v. Har-

ris County Houston Ship Channel Navigation District,

423 F.2d 605 (5th Cir.), cert. denied, 400 U.S. 927 (1970)

(political subdivision operating terminal facilities main-

taining railroad trackage at a bulk material handling

plant and public grain elevator not a common carrier),

with Lone Star Steel Co. v. McGee, 380 F.2d 640 (5th

Cir.), cert. denied, 389 U.S. 977 (1967), (steel company

performing rail services for itself and others held a com-

mon carrier). But here neither the City of New York

nor Mathews & Chase, its consulting engineers, can in any

way be considered to have held themselves out to the pub-

lic as carriers of the Manhattan schist on the under-

Opinion of the United States Court of Appeals

for the Second Circuit, Decided November 14, 1975,

Docket No. 75-7183

ground “railroad” here involved. Only one shipper was,

and only one could have been, served by this “railroad,”

and that shipper was the project itself.

Construing appellant’s complaint most favorably to his

position, we cannot conclude that the City operates the

project railroad “as a means of carrying for the public.”

We therefore need not concern ourselves with the argu-

me ¢ that the “railroad’s” shipments are “in commerce.”

See Kach v. Monessen Southwestern Railway Co., supra,

151 F.2d at 401.

Even had appellant been granted leave to amend his

complaint below (as would have been the preferable form

of order below) or had moved under Rules 5% and 60 for

relief from the court’s order (as would have been the pre-

ferable practice), the district court would have been com-

pelled to dismiss this complaint and its underlying action.

Accordingly we firm the judgment.

Judgment affirmed.

34

Judgment of the United States Court of Appeals

for the Second Circuit

At a stated Term of the United States

Court of Appeals for the Second Cir-

cuit, held at the United States Court-

house in the City of New York, on

the fourteenth day of November, one

thousand nine hundred and seventy-

five.

Present:

How. Sterry R. Waterman

Hon. James L. Oakes

Hon. THomas J. Mesxkrii

Circuit Judges,

75-7183

+>

SaMveEL CHANEYFIELD,

Plaintiff-Appellant

v.

Tae Crry or New York and Marnew anv Cuasz,

Defendants-A ppellees

Appeal from the United States District Court for the

Southern District of New York.

35

Judgment of the United States Court of Appeals

for the Second Circuit

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by coun-

sel.

On ConsmerATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed in accordance with the

opinion of this court with costs to be taxed against the

appellant.

A. Dantet Fvusaro

Clerk

By Vincent A. (Illegible)

Chief Deputy Clerk