Opposition — Carbon Fuel Co. v. Andrus

Supreme Court, U.S. «

FILED

18

IN THE

Supreme Court of the Yniteh wits |

OcToBER ‘TERM, 1978

No. 78-218

Carson Fue, Company, Petitioner,

v.

Ceci. D. Anprus, Secretary of the Interior,

and UNniTep Mine WorKERS OF AMERICA,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

UNITED MINE WORKERS OF AMERICA

Harrison Combs

STEVEN B. J AcOBSON

900 Fifteenth Street, N.W.

Washington, DC 20005

H. JoHN TAyYLor

1108 Union Building

Charleston, WV 25301

Attorneys for Respondent

United Mine Workers of America

Parss or Byron 8. Apams PrintInG, Inc., WasHINGcTON, D. C.

INDEX

Page

QUESTIONS PRESENTED FOR REVIEW ............000005 1

a a 2

STATEMENT OF THB CaSB .....ccccccccccccccccccccce 5

REASONS FOR DENYING THE WRIT ...............00. 10

I. THe Feperat Law Question Decipep Betow Is

No Longer IMPORTANT ........cccccccccccecs 10

II. Txere Is No Conruict or Decision .......... 13

III. Tue Peririoner’s Primary Contention Was

Not Trmety PresenTep TO THE Court or Ap-

PEALS, AND THEREFORE Was Never CONSIDERED

MY: Sb cae Paeautuc'e cc tvens ules ce beasieess 16

IV. Tue Decision or tHe Court or Apprats Is Cor-

Verte a ha ede sb i's k wan 0b ch hens 6 hea aees 17

I ise rhe eka ek a dabed Radke 20

TABLE OF AUTHORITIES CITED

CasEs:

California v. Taylor, 353 U.S. 553 (1957) ............ 16

Electrical Workers Local 790 v. Robbins & Myers, Inc.,

NS I ica AUR v5 bw chon ben dhs 16

Goss v. Lopez, 419 U.S. 565 (1975) .......... cee e eee 18

Iselin Preparation Co. v. MSHA, Federal Mine Safet

and Health Review Commission Nos. PITT 78-34

et in a Nocdlahes exssae eases cededes 13

Kanawha Coal Co. v. Andrus, 553 F.2d 361 (4th Cir.

PE Gu 0 kbs eeNh Eiht otnka Debs owen shana 14, 15

Lucas Coal Co. v. IBMA, 522 F.2d 581 (3d Cir. 1975) 14,15

Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 18

aca eee of Columbia, 510 F.2d 188 (D.C. Cir. ”

Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974) ..... 18

NICOA v. Kleppe, 423 U.S. 388 (1976) ........... 6, 13, 14

ay a K. Ely Construction Co., 386 U.S. 317 -

iD Cieby abd we thawed Mee eand oss sab ebneeeee be

ii Table of Authorities Cited—Continued

Page

STaTUTES AND REGULATIONS:

Federal Coal Mine Health and Safety Act of 1969, Pub-

lie Law No. 91-173 (Dee. 30, 1969), 30 U.S.C. § 801

et seq. (1970)

Section 3 (30 U.S.C. § 802 (1970)) ............ 6

Section 101 (30 U.S.C. $811 (1970)) .......... 6

Section 103 (30 U.S.C. §813 (1970)) .......... 5

Section 104(a) (30 U.S.C. §814(a) (1970)) .... 4,6

Section 104(b) (30 U.S.C. §814(b) (1970)) ..passtm

Section 104(c) (30 U.S.C. §814(c) (1970)) .... 6

Section 104(e) (30 U.S.C. §814(e) (1970)) .... 18

Section 104(h) (30 U.S.C. §814(h) (1970)) .... 6

Section 104(i) (30 U.S.C. §814(i) (1970)) ..... 5, 6

Section 105 (30 U.S.C. $815 (1970)) ........ passim

Section 106 (30 U.S.C. §816 (1970)) ......... 6, 7,9

Section 109 (30 U.S.C. §819 (1970)) ....... 6, 13,14

Title II (Sections 201-206) (30 U.S.C. §§ 841-846

(1996)) . civtvecssmacnetianneeeeeees

Title ITI (Sections 302-318) (30 U.S.C. §§ 862-878

(1970}) ..ccnndccsaasncueeas cae tlaeneeeers

Section 505 (30 U.S.C. § 954 (1970)) ............ 5,18

Federal Mine Safety and Health Amendments Act of

1977, Public Law No. 95-164 (Nov. 9, 1977), 30

U.S.C.A. § 801 et seg. (1978 pocket part)

Section 105(a) of Section 201 (30 U.S.C.A. § 815

(a) (1076 pockant BABE) cic mauiseascccueeses 13

Section 105(d) of Section 201 (30 U.S.C.A. § 815

(d) (1978 pocket part)) ..........cceeeees 11,12

Section 106 of Section 201 (30 U.S.C.A. §816

(1978 pocket pant)) ‘6 i. cscevseserinavewkess 13

Section 110 of Section 201 (30 U.S.C.A. § 820 (1978

pocket past)) ...cccccvceueerssuaeeasaneees 13

Table of Authorities Cited—Continued iii

Page

Section 111 of Section 201 (30 U.S.C.A. § 821 (1978

pocket part) )

Section 301 (30 U.S.C.A. § 961 (1978 pocket part)) 9

Code of Federal Regulations

We RM WRPNNRREEEE Ach ccc cicensbuvcccecncwon 7

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No. 78-218

CaRBON F'vEL Company, Petitioner,

Vv.

Ceci, D. Anprus, Secretary of the Interior,

and UNITED MINE WorRKERS OF AMERICA,

Respondents.

On Petition for Writ of Certiorari to the United Staton

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

UNITED MINE WORKERS OF AMERICA

Respondent United Mine Workers of America

(UMWA4A) hereby answers in opposition to the peti-

tion for a writ of certiorari.

QUESTIONS PRESENTED FOR REVIEW

1. Did now-amended-and-superseded §105 of the

Federal Coal Mine Health and Safety Act of 1969,

30 U.S.C. §815 (1970), not only empower adjudicative

bodies to modify abatement periods allowed in warn-

ing notices issued under now-amended-and-superseded

30 U.S.C. $814(b) (1970), but also create a power to

review and set aside, on the merits, the more than

2

100,000 such warnings issued each year by federal

coal mine inspectors?

2. Should this Court consider the petitioner’s new

contention with respect to the alleged unconstitution-

ality of now-amended-and-superseded 30 U.S.C. § 815

(1970), even though it was not properly presented to

and not considered by the Court of Appeals, having

not been presented until the petitioner requested a

rehearing two weeks after the Court of Appeals rend-

ered its decision?

3. Should this Court attempt to influence the reso-

lution of a conflict of decision between administrative

law judges of the new Federal Mine Safety and Health

Review Commission as to the scope of new 30 U.S.C.A.

§ 815(d) (1978 pocket part)—before the just-appointed

Commission has considered the cunflict, before any

Court of Appeals or District Court has been able to

review whatever the Commission may decide, and even

though the Court of Appeals herein did not render any

holding on that question?

STATUTES INVOLVED

Section 104(b) of the Federal Coal Mine Health and

Safety Act of 1969, 30 U.S.C. § 814(b) (1970):

“(b) Except as provided in subsection (i) of this

section, if, upon any inspection of a coal mine, an

authorized representative of the Secretary finds

that there has been a violation of any mandatory

health or safety standard but the violation has

not created an imminent danger, he shall issue a

notice to the operator or his agent fixing a reason-

able time for the abatement of the violation. If.

upon the expiration of the period of time as orig-

inally fixed or rape sig extended, an author-

ized representative of the Secretary finds that the

3

violation has not been totally abated, and if he also

finds that the period of time should not be further

extended, he shall find the extent of the area af-

fected by the violation and shall promptly issue

an order requiring the operator of such mine or

his agent to cause immediately all persons, except

those referred to in subsection (d) of this section,

to be withdrawn from, and to be prohibited from

entering, such area until an authorized representa- —

tive of the Secretary determines that the violation

has been abated.’’

Section 105 of the Federal Coal Mine Health and

Safety Act of 1969, 30 U.S.C. § 815 (1970) :

‘“(a) (1) An operator issued an order pursuant

to the provisions of section 814 of this title, or any

representative of miners in any mine affected by

such order or by any modification or termination

of such order, may apply to the Secretary for re-

view of the order within thirty days of receipt

thereof or within thirty days of its modification or

termination. An operator issued a notice pursuant

to section 814(b) or (i) of this title, or any repre-

sentative of miners in any mine affected by such

notice, may, if he believes that the period of time

fixed in such notice for the abatement of the viola-

tion is unreasonable, apply to the Secretary for

review of the notice within thirty days of the re-

kos thereof. The applicant shall send a copy of

such application to the representative of miners in

the affected mize, or the operator, as appropriate.

Upon receipt of such application, the Secretary

shall cause such investigation to be made as he

deems appropriate. Such investigation shall pro-

vide an M 4 elon: for a public hearing, at the

request of the operator or the representative of

miners in such mine, to enable the operator and

the representative of miners in such mine to pre-

sent information relating to the issuance and con-

tinuance of such order or the modification or termi-

4

nation thereof or to the time fixed in such notice.

The filing of an application for review under this

subsection shall not operate as a stay of any order

or notice.

‘‘(2) The operator and the representative of the

miners shall be given written notice of the time

and place of the hearing at least five days rior to

the hearing. Any such hearing shall be o record

and shall be subject to section 554 of Title 5.

‘“‘(b) Upon receiving the report of such investi-

gation, the Secretary shall make findings of fact,

and he shall issue a written decision, incorporating

therein an order vacating, affirming, modifying, or

terminating the order, or the modification or termi-

nation of such order, or the notice, complained of

and incorporate his findings therein.

‘(c) In view of the urgent need for prompt de-

cision of matters submitted to the Secretary under

this section, all actions which the Secretary takes

under this section shall be taken as promptly as

practicable, consistent with adequate consideration

of the issues involved.

‘“(d) Pending completion of the investigation

required by this section, the applicant may file with

the Secretary a written request that the Secretary

grant temporary relief (1) from any modification

or termination of any order, or (2) from any order

issued under section 814 of this title, except an

order issued under section 814(a) of this title,

together with a detailed statement giving reasons

for granting such relief. The Secretary may grant

such relief, under such conditions as he may pre-

scribe, if—

(1) a hearing has been held in which all par-

ties were given an opportunity to be heard;

(2) the applicant shows that there is sub-

stantial likelihood that the findings of the

rine ai will be favorable to the applicant;

an

5

(3) such relief will not adversely affect th

health and safety of miners in ne ae roy

No temporary relief shall be granted in the case

f “semegy

+e oan issued under section 814(b) or (i) of

STATEMENT OF THE CASE

Petitioner Carbon Fuel Company (Carbon) seeks

review of a decision of the United States Court of

Appeals for the District of Columbia Circuit (Me-

Gowan, Robinson and Wilkey, JJ.), vacating an order

entered on behalf of the Secretary of the Interior by

his former adjudicative delegate, the now-abolished

Interior Board of Mine Operations Appeals. The In-

terior Board’s order affirmed an earlier order of an

Interior Department administrative law judge (ALJ)

which order had vacated a violation warning notice

issued to Carbon by a federal coal mine inspector

under § 104(b) of the Federal Coal Mine Health and

Safety Act of 1969 (1969 Act), 30 U.S.C. §814(b)

(1970). The ALJ purportedly entered his order under

the 1969 Act’s § 105, 30 U.S.C. § 815 (1970). The § 814

(b) warning notice had been issued to Carbon during

a health inspection requested pursuant to 30 U.S.C.

§ 813( g) (1970) by respondent United Mine Workers

of America (UMWA). As the collective bargaining and

safety representative of Carbon’s non-supervisory coal

mining personnel, the UMWA was a statutory party

before the ALJ and the Interior Board, and was the

appellant in the Court of Appeals.

Under §§ 103(a) and (g) of the 1969 Act, 30 U.S.C.

§§ 813(a) & (g) (1970), Interior Department inspec-

tors meeting expertise requirements set out in that

Act’s § 505, 30 U.S.C. § 954 (1970), were to make fre-

6

quent inspections of the nation’s coal mines. An in-

spector who found a condition constituting an ‘‘immi-

nent danger’’ was to order immediate evacuation of

the “‘affected area” of the mine until the danger

ceased.’ 30 U.S.C. § 814(a) (1970). An inspector find-

ing an unsafe or unhealthful condition which both vio-

lated a federal safety or health standard and consti-

tuted a less than ‘‘imminent’’ danger was to issue a

notice, warning that evacuation of the ‘‘affected area

would be ordered unless the mine operator abated the

cited condition within a fixed ‘‘reasonable”’ period.

30 U.S.C. § 814(b) (1970). Other kinds of warning no-

tices were issued pursuant to 30 U.S.C. § 814 (i) (1970),

and other kinds of “‘affected area’’ evacuation orders

under 30 U.S.C. §§ 814(c), (h) & (i) (1970). And,

subject to administrative and de novo court review,

civil penalties were assessed for all violations found in

warning notices and evacuation orders. 30 U.S.C. §819

(a) (1970) ; see NICOA v. Kleppe, 423 U.S. 388 (1976).

ome review of warning notices and evacuation or-

Ph was provided in the 1969 Act’s §§ 105 and 106,

30 U.S.C. §§ 815 & 816 (1970)—the question presented

by this case is how much review was provided. A per-

son aggrieved by an evacuation order could ‘‘apply

... for review of the order’’ under 30 U.S.C. ee

1970), and anyone aggrieved by a warning notice

pie ‘if ct believe[d] that the period of time fixed

in [the] notice for abatement of the violation [was]

2An ‘‘imminent danger’’ was defined in 30 U.S.C. § 802(j)

(1970). "7

* Interim health and safety standards were set out at 30 U.S.C.

§§ 841.46 & 862-78 (1970), while improved standards were to be

promulgated following procedures outlined in 30 U.S.C. § 811

(1970).

7

unreasonable, apply . .. for review of the notice” under

the same section. Sections 105(d) and 106(¢) (1), 30

U.S.C. §§ 815(d) & 816(c)(1) (1970), allowed tempo-

rary pendente lite relief from some types of evacuation

orders, including 30 U.S.C. § 814(b) ( 1970) orders is-

sued for failure to abate conditions cited in § 814(b)

warning notices. At the same time, those sections pro-

hibited temporary relief from imminent danger evacu-

ation orders, as well as from warning notices them-

selves. 30 U.S.C. § 815(d) (1970) recognized ‘‘the ur-

gent need for prompt decision’’ of cases submitted un-

der §815, requiring Interior Department administra-

tive personnel to act in them ‘‘as promptly as possible.”’

The events in this particular action began in Febru-

ary 1975, when a federal mine inspector with 17 years

of experience in the coal industry, in collaboration

with another with 40 years of experience, issued § 814

(b) violation warnings to Carbon at two of its mines

in Kanawha County, West Virginia. Carbon was given

a month to abate, being warned that if it failed to

eliminate the conditions found by the inspectors to

constitute violations within that period, evacuation of

the ‘‘affected areas” would be ordered.’ Carbon

promptly applied for relief from one of the two no-

tices * to the ALJ below, who vacated it on the merits

—_

* The inspectors found that conditions at the two mines violated

the federal standard set out at 30 C.F.R. § 75.1712-2, which re-

quires coal mine operators to provide ‘‘convenient’’ facilities for

bathing and changing clothes for each mine.

*Carbon had been cited for providing ‘‘inconvenient”’ bathing

facilities eight miles from one mine and three miles from another.

It appealed from the warning given at the mine three miles from

facilities.

(Continued on following page)

8

following an evidentiary hearing, and who was subse-

quently affirmed by the Interior Board.’

The ALJ’s decision was predicated upon his finding

that 30 U.S.C. § 815 (1970) not only gave him author-

ity to shorten or lengthen the abatement period allowed

in the challenged warning notice, but also authorized

him to vacate the notice on the merits. Petition at 31la-

32a. Section 815(a) provided, again, that an aggrieved

person could, ‘‘if he believe[{d] that the period of time

fixed in [a] notice for abatement of [a] violation [was]

unreasonable, apply . . . for review of the notice.’’ The

ALJ’s theory, based upon dicta in an earlier Interior

Board decision, was that ‘‘any time for abatement is

an unreasonable time if no violation exists.’’ Jd. The

The inspectors testified that winter temperatures in the area of

the latter mine were ‘‘sub-zero,’’ that it was ‘‘very muddy and

wet’’ in the mine, and that the miners would therefore get muddy

and wet from working in it.

To reach bathing facilities and clean clothes from their under-

ground workplaces, the miners would have to get to the surface,

then get into and warm up their automobiles, and then drive three

miles—two of which were down a rough and narrow dirt road.

The drive took seven to fifteen minutes, depending upon the sea-

son, the condition of the road, and how fast one drove.

The inspectors added that they would have also cited Carbon

for violations at other mines two miles from bathing and changing

facilities, but for the fact that the other mines were old and thus

close to being abandoned, while the cited mine was less than a

year old (opened Spring 1974).

*The ALJ in essence found that the inspectors had been imper-

missibly ‘‘arbitrary’’ because they had not also cited Carbon for

violations at its older mines. He also found that the inspectors

health-related testimony was inadequate because they had ‘‘no

data’’ showing the harmful effects of prolonged exposure to the

elements when one is wet, muddy and tired. The Interior Board

affirmed on the ALJ’s theory that the inspectors had been ‘‘ar-

bitrary.’’

9

Interior Board did not discuss the scope of § 815 in

its affirmance.

On appeal by the UMWA pursuant to 30 U.S.C. § 816

(a) (1970), the Court of Appeals reversed, holding

that the ALJ erred in finding that he had the power

to vacate the notice. After studying the statutory lan-

guage and the legislative history, the Court concluded

that § 815 merely created authority to modify a warn-

ing notice’s abatement period. Petition at 7a-15a. The

Court therefore had no need to consider the UMWA’s

challenge to the ALJ’s holding on the merits, and did

not do so. Id. at 7a, n. 24. Nor did it “pass on”’ the

: ‘constitutionality of the statutory scheme,”’ since ‘‘no

issue ha[d] been raised concerning [it].”’ Id. at 14a,

n. 55. Carbon’s petition for rehearing, attempting to

raise a constitutional objection for the first time, was

quickly denied.

In its decision, the Court of Appeals observed that

it was “‘speak[ing] largely to the past” because the

applicable provisions of the 1969 Act had been amended

and superseded by new legislative provisions ‘‘cast in

substantially modified language.”’ Id. at 2a and at 3a,

n.3. The Court was referring to provisions of the new

Federal Mine Safety and Health Amendments Act of

1977, Public Law 95-164 (Nov. 9, 1977), 30 U.S.C.A.

§ 801 et seq. (1978 pocket part), which became effective

on March 8, 1978. The Court further observed that

since the 1977 Act’s provisions were expressly made in-

applicable to proceedings pending on the date it became

effective by 30 U.S.C.A. §§ 961(¢) (3-4) (1978 pocket

part), the Court had ‘‘no call to construe the 1977 Act

itself. ” Id. at 3a, n. 3. The Court added that ‘‘nothing”’

in the language or legislative history of the 1977 Act

“‘modifie[d]”’ its ‘‘view of how Congress contemplated

10

that the 1969 Act would operate on the matter here

at issue.’’ Id.

REASONS FOR DENYING THE WRIT

Petitioner Carbon Fuel Company asks this Court

to review the decision of the Court of Appeals because

of the alleged existence of three of the possible grounds

for certiorari review enumerated in this Court’s Rule

19(1)(b). In the words of the Rule, Carbon alleges

that the Court of Appeals ‘‘decided an important ques-

tion of federal law which has not been, but should be,

settled by this Court’’; “decided a federal question in

a way in conflict with applicable decisions of this

Court’’; and ‘‘rendered a decision in conflict with the

decision of another court of appeals on the same mat-

ter.’’* In reality, however, none of the three enumer-

ated grounds are actually present here. Moreover, the

federal law question decided below has now become

so unimportant that review should be denied even if

this Court finds a decisional conflict.

I. The Federal Law Question Decided Below Is No Longer

Important.

Contrary to the petition, the question decided by the

Court of Appeals is no longer an important question of

federal law. Indeed, Carbon does not even bother try-

* Carbon also contends that certiorari review should be granted

because the decision below allegedly conflicts with a district court

decision, and because it conflicts with an earlier decision of the

agency whose order was reversed by the Court of Appeals’ decision,

However, this Court does not grant review to resolve decisional

conflicts between the courts of appeals and the district courts.

Nor, needless to say, does it grant review to resolve ‘‘conflicts

between courts and agencies whose decisions they are empowered

to review.

11

ing to allege that the question the Court actually de-

cided—the scope of now-superseded 30 U.S.C. § 815

(1970)—is itself of any importance. Rather, Carbon

asks for review because of the alleged importance of

another question which the Court of Appeals, in its

own words, had ‘‘no call’’ to consider. Petition at 3a,

n. 3. Namely the scope of new 30 U.S.C.A. § 815(d)

(1978 pocket part). )

According to Carbon, the decision of the Court of

Appeals contains dicta indicating a belief that new

§ 815(d) did not create any power to vacate warning

notices issued under new 30 U.S.C.A. § 814(a) (1978

pocket part). Carbon claims that some of the admin-

istrative law judges of the new Federal Mine Safety

and Health Review Commission have “followed the

Court of Appeals’ decision’? when dismissing chal-

lenges to the merits of such notices. Carbon fears that

the decision below ‘‘will continue to be used as a basis

for limiting review” of such notices.

The short answer to Carbon’s theory is that this

Court simply does not review dicta of any kind. Nor

does it review unimportant questions, even where reso-

lution of such questions by this Court might possibly

have some impact on lower courts and agencies in their

consideration of other, important questions. The pos-

sible impact that resolution of one question will have

upon the resolution of another different question is

always speculative. And there may well be no impact

at all, which renders any resolution of the first ques-

tion a waste of the limited resources of all concerned.

Moreover, it is safe to say that in the great majority

of situations, important but unripe questions of federal

law will be correctly resolved without decisional con-

12

flict by the nation’s excellent lower courts, without any

need for guidance from this Court.

This Court’s wisdom in limiting its review to impor-

tant questions is plainly demonstrated by the facts

here. Even if this Court were to grant review of this

ease and decide the scope of old § 815, the lower courts

and agencies would not in any way be bound to hold

that the scope of new §815(d) is identical. As the

Court of Appeals noted, the relevant statutory language

has been “‘substantially modified.’’ Petition at 3a, n. 3.

There is new legislative history as well, as there always

will be when « statute has been amended. In short, the

possible impact of review on the resolution of questions ,

not presented here is merely speculative. |

Moreover, Carbon’s theory is based upon a misunder-

standing of what the decision of the Court of Appeals

says. In reality, the Court expressly refrained from

declaring how it would have decided the scope of new

§ 815(d)—a question neither presented nor briefed—

expressly observing that it had ‘‘no call’”’ to do so. J d.

It neither indicated how it would have dealt with new

§ 815(d)’s language and legislative history, nor how it

would have dealt with a due process argument like

that advanced for the first time by Carbon here. See

Petition at 2a-3a incl. n. 3, and at 14a incl. n. 55. In-

deed, the Court expressly declined to indicate how it

would have decided the scope of old § 815 if a due proc-

ess argument had been presented. Petition at 14a, n. 55.

Also, Carbon neglects to point out that while some

ALJs of the new Commission have in fact dismissed

challenges to the merits of warning notices filed under

new §815(d), other Commission ALJs have declined

to do so. They have held that they do have the power to

consider such challenges, notwithstanding the decision

13

below here. See, e.9., Iselin Preparation Co. v

Commission Docket Nos, PITT 78-343 & righ gstosng

N 0 one can be absolutely certain of how the Commis-

sion will resolve that conflict, nor of how the various

Courts of Appeals will decide any challenges to what-

ever the Commission may decide. Hence, Carbon’s claim

that the Court of Appeals’ decision will “‘be used as a

basis for limiting review” of warnin ices is lik

wise speculative. ; Cn he

II. There Is No Conflict of Decision.

1. Contrary to Carbon’s petition, the decisi

the Court of Appeals in no ve conflicts ete

this Court decided in NICOA v. Kleppe, 423 U.S. 388

(1976), where this Court in fact affirmed a decision of

the same Circuit—494 F.2d 987 (D.C. Cir. 1974). In

NICOA this Court only decided whether hearings and

formal findings of fact were required in uncontested

civil penalty proceedings under now-superseded 30

U.S.C. §819(a) (1970).’ See 423 U.S. at 690, 693. In

contrast, the Court below only decided whether now-

superseded 30 U.S.C. § 815 (1970) created adjudica-

tive power to vacate warning notices issued under now-

superseded 30 U.S.C. §814(b) (1970). In short, the

Court of Appeals only decided the scope of § 815, while

this Court in NICOA only decided the scope of § 819

(a)—an entirely unrelated question.’

"The successor provisions to old §819(a) are set out at 30

a §§ 815(a), 816(a-b), 820(a, i-k) & 821(d) (1978 pocket

*If anything, the decision below is in complete accord wi

spirit of NICOA, There this Court ‘dled Dehevaienad wre

to do away with ‘‘complex procedural provisions relating to in-

spections, appeals, and the postponing of orders,’’ which had pre-

peered made it exceedingly difficult’’ to ‘‘carry out an effective

orcement program’’ in the mine safety area. 423 U.S. at 399.

14

rbon’s argument to the contrary is based upon lan-

he in NI COA whee this Court was accurately de-

scribing how the Interior Department was interpreting

§ 815 at the time NICOA was decided. The description

was part of this Court’s general introductory descrip-;

tion of how the 1969 Act was then operating. However,

this Court had no occasion to rule upon the correctness

of how the Act was generally operating, or upon how

the Department interpreted § 815, and it clearly did

not do so. No question concerning § 815 was presented

in NICOA; NICOA did not decide the scope of any

provision of the 1969 Act other than 30 U.S.C. § 819(a)

(1970).

2. Similarly, the decision of the Court of Appeals

does not conflict with anything decided in Kanawha

Coal Co. v. Andrus, 553 F.2d 361 (4th Cir. 1976), or in

Lucas Coal Co. v. IBMA, 522 F.2d 581 (3d Cir. 1975).

Like this Court, the Third and Fourth Circuits have

not had occasion to decide whether § 815 created ad-

judicative power to vacate warning notices, on their

merits. Nor have they done so.

In Kanawha, for example, the Fourth Circuit actu-

ally affirmed an Interior Board decision dismissing

part of a mine operator’s § 815 administrative com-

plaint on procedural grounds. The dismissed portion

of the complaint did not challenge anything done at

the time a federal inspector issued the warning notice

at issue, instead asking that the notice be terminated

because the cited conditions had allegedly been abated

after the notice was issued. The operator was afraid

that an inspector might come to its mine at the end of

the abatement period, might then conclude that the

violative conditions had not been abated, and might

thereupon issue an evacuation order.

15

In other words, the operator in Kanawha was not

asking for ‘‘review”’ of anything already done by the

agency, but rather for purely anticipatory relief. And

the Fourth Circuit merely decided that § 815 did not

create adjudicative power to terminate warning notices

because of events occurring subsequent to their issu-

ance.

3. Like the Fourth Circuit in Kanawha, the Third

Circuit in Lucas actually affirmed an Interior Board

decision dismissing a mine operator’s challenge to

§814(b) activity. Thus, like this Court and the Fourth

Circuit, the Third Circuit has never approved any ex-

ercise of the alleged § 815 power to vacate § 814(b)

violation notices.

One part of Lucas involved challenges to the merits

of several warning notices which had already been

terminated due to abatement of the cited conditions.

The Third Circuit affirmed the Interior Board’s dis-

missal of that part of the affected operator’s complaint

as moot, thereby deciding that § 815 did not create ad-

judicative power to vacate warning notices already

terminated by federal mine inspectors.

The other part of Lucas dealt with the operator’s

attack on the merits of several § 814(b) notices which

were still in effect. The Interior Board denied those

challenges on the merits, and the Third Circuit af-

firmed without deciding, or even considering, whether

the notices could have been vacated if the Board’s de-

cision on the merits had been different. Not surpris-

ingly, that question was not raised by either of the two

parties before the Court in Zucas—neither by the

Board itself, nor by the mine operator, who wanted

16

notices set aside. All the Third Circuit thus decided

in the second part of Lucas was that the cited viola-

tions had in fact occurred.

Ill. The Petitioner's Primary Contention on the Merits Was Not

Timely Presented to the Court of Appeals, and Therefore Was

Never Considered Below.

On the merits, Carbon’s chief argument appears to

be that the scope of 30 U.S.C. § 815 (1970) must be

widened by judicial action in order to preserve its con-

stitutionality under the Due Process Clause of the

Fifth Amendment. However, Carbon cannot properly

present its due process argument to this Court, since

it was not timely presented to the Court of Appeals,

and the Court of Appeals therefore never considered

it. In its decision, the Court of Appeals specifically

noted that ‘‘no issue ha[d] been raised [before it] con-

cerning the constitutionality of the statutory scheme,”’

so that Court ‘‘d[id] not pass on it.’’ Petition at 14a,

n. 55. Carbon did not attempt to make any sort of con-

stitutional argument until it filed a petition for rehear-

ing two weeks after the Court of Appeals handed down

its decision.

It is well established that this Court does not grant

review to consider contentions not properly raised in

the lower Courts. Electrical Workers Local 790 v. Rob-

bins & Myers, Inc., 429 U.S. 229, 235 n. 7 (1976) ; Neely

v. Martin K. Ely Construction Co., 386 U.S. 317, 330

(1967); California v. Taylor, 353 U.S. 553, 556-557

n. 2 (1957). This Court only grants review to consider

matters which lower courts have ‘‘decided.’’ By defi-

nition, this Court cannot “‘review”’ any contention not

previously subject to ‘‘view’’ elsewhere.

17

IV. The Decision of the Court of Appeals Is Correct.

1. Review should also be denied becaus i

sion of the Court of Appeals is clearly Sia tl

Court carefully considered all of the language and all

of the legislative history of 30 U.S.C. § 815 (1970)—

something the Interior Board never did (see Petition

at 1la-12a)—and reached the only conclusion possible

after such an analysis. The Court’s decision speaks for

itself, and needs no further explication.

To be sure, Carbon tries to argue that th ,

decision is contrary to § 815’s ate words. ~ hai

bon can do so only by giving disingenuous meanings to

some “‘words,” and by failing to quote others which

contradict its position. Furthermore, Carbon does not

even address a legislative history which the Court of

Appeals found to be “unambiguous,” ‘“strong,’”’

straightforward,” and directly contrary to what

Carbon proposes argument.

2. Carbon’s simplistic due process ar is li

wise wrong. Carbon sonia. teat the ee Ace

ment always requires an adjudicative hearing before

anyone can be deprived of any kind of property in-

terest. According] , Carbon argues that § 815 was un-

constitutional as enacted because, without prior hear-

ings before administrative law judges on the merits, it

allowed federal mine inspectors to order evacuation of

areas of mines affected by conditions found to consti-

tute violations of health and safety standards.

In reality, however, the Due Process Clause does not

always require advance hearings prior to infringements

of property interests. Rather, as numerous decisions

of this Court indicate, it merely requires some kind of

a hearing at a meaningful time and in a meaningful

18

. The 1969 Act gave extensive procedural pro-

amas recipients of warning notices issued ae

30 U.S.C. §814(b) (1970). That protection went “a

beyond meeting minimum due process eer s,

as clearly indicated by a comparison of the procedures

here with those approved of in such recent decisions as |

} 1976), Goss v.

Mathews v. Eldridge, 424 US. 319 ( :

phe 419 U.S. 565 (1975), and Mitchell v. W.T. Grant

Co., 416 U.S. 600 (1974).°

Under the 1969 Act, a mine operator who —

one of the more than 100,000 warning notices ger

each year was thereby given complete and timely Z

vance notice of a possible future evacuation order. e

1969 Act required all notices to describe the cited con-

ditions in detail, so that the operators would =

actly what they had to abate. 30 U.S.C. § 814(e) (1970).

The notices were to allow ‘‘reasonable abatement Be

riods, and the periods set were reviewable in wre

ings before administrative law judges. 30 U.S.C. §§

(b) & 815(a) (1970).

its own terms, warning notices and evacuation or-

ine pursuant to § 814(b) could only be issued

by neutral federal mine inspectors in the public _

ice, and not by interested private parties. Notices an

orders could only be based upon conditions personally

observed by the inspectors during the exercise of ya

. duties, §814(b), and the inspectors had to possess ,

expertise required by 30 U.S.C. § 954 (1970). In lieu o

: d alterna-

® As the Court of Appeals observed, Carbon S propose

tive . the statutory system would have pg sige — hid pry

ir labors under conditions ‘‘ believed to unwhole id

pres tbecos of the Act’s health and safety standards.’’ Petition

at 14a.

19

issuing evacuation orders when abatement deadlines

were not met, the inspectors could grant additional

abatement time where warranted. § 814(b).

Once a § 814(b) evacuation order had been issued,

the affected operator had an immediate right to file for

a full hearing on the merits before an administrative

law judge. 30 U.S.C. § 815(a) (1970). Such hearings

were to be held ‘‘as promptly as practicable,” and tem-

porary pendente lite relief was available. 30 U.S.C.

§§ 815(e-d) (1970).

The evacuation orders were limited in scope and du-

ration. They only covered the “affected areas”’ of the

operators’ mines, and they only remained in effect

until the cited conditions were abated. § 814(b). The

mines remained in the possession of the operators at

all times, as did their coal, and the coal was still there

to be mined once abatement was achieved. N othing was

removed, nothing was destroyed,” and no one was de-

prived of any of the necessities of human life.

**Compare Miles v. District of Columbia, 510 F.2d 188 (D.C.

Cir. 1975), cited by Carbon at page 13 of the petition, where prop-

erty was actually going to be destroyed.

20

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

Harrison CoMBs

STEvEN B. JACOBSON

900 Fifteenth Street, N.W.

Washington, DC 20005

H. Jonn TAYLOR

1108 Union Building

Charleston, WV 25301

weer for Respondent

United Mine Workers of America