Opposition — Double "Q", Inc. v. Andrus

No. 80-57

a

|

Supreme Court, U.S.

FILED

OCF 1 1980

MICHAEL RODAK, JR., CLERK |

In the Supreme Court of the United States ——

OCTOBER TERM, 1979

DOuBLE “Q,” INC., PETITIONER

V.

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

WADE H. MCCREE, JR.

' Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Atlas Roofing Co. v. Occupational Safety

and Health Review Comm’n, 430 U.S.

I ais actsiadidastencdeadkcvstealicnlhnibbaiiuadpubdicteneancuevinianscanisions 4

Kleppe v. Delta Mining Inc., 423 U.S.

UIE neat nhchindlidianiha dacinaendsidsaheiidadaisineialanievetdenadeanieene 6

National Independent Coal Operators’ Ass’n

V. Kleppe, 423 U.S. 388 ....cccccccccccorrrrereeeseees 1, 5-6

United States v. Jan Hardware Mfg. Co.,

IY, FID iasitastesiccencenietsaseccndecstcertantnonsion 4

Statutes and rule:

Federal Coal Mine Health and Safety Act of

1969, 30 U.S.C. 801 ef SOG. .o.eeeececeeeececeeeeeeeeeeeees |

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SN: MUNN sduvicuudnndsiecsbdiametvesstet dias «<expuesio 5

ST TED Aalpuindsasenicessiberkaininlecsadeneninebscies ;

BEET deiniandethansinbivciaasecnicnvsinecinenanionsicn 5

Fe Riaes WRIIIL ED cttcesssesecssnvesisosivnsetscssocecseses 2

Fe UG Biicc GER IOED cscecccccrcccesicsscscsesconsscnseses y

Federal Mine Safety and Health Act of 1977,

30 U.S.C (Supp. Il) 801 et seg., as amended

and renamed by the Federal Mine Safety

and Health Amendments Act of 1977,

Pub. L. No. 95-164, 91 Stat. 1290 we |

II

Page

Statutes and rule—Continued:

FO Ws GE TF Ge esntniceiccncicnnscinsictinctitinn 4

30 U.S.C. (Supp. 11) 816(a)(1) oo... eeeeeeeee 4

30 U.S.C. (Supp. I) 816(b) ou... eee eeeeeeeees 4

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Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 80-57

DousLe “Q,” INC., PETITIONER

Vv.

CecIL D. ANDRUS, SECRETARY OF THE INTERIOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

Petitioner contends that it was entitled to de novo review

of all disputed issues of fact in this proceeding to enforce

civil penalties for violations of safety standards

promulgated under the Federal Coal Mine Health and

Safety Act of 1969, 30 U.S.C. 801 ef seq.

1. The enforcement scheme of the 1969 Act is sum-

marized in National Independent Coal Operators’ Ass’n v.

Kleppe, 423 U.S. 388, 391-393 (1976).' In brief, the Act

'The 1969 Act was extensively amended by the Federal Mine Safety

and Health Amendments Act of 1977, Pub. L. No. 95-164, 91 Stat. 1290.

Ihe 1969 Act was renamed the “Federal Mine Safety and Health Act of

1977,” 30 U.S.C. (Supp. Il) 801 et seg. The new Act transferred

enforcement jurisdiction to the Department of Labor, and, as we note

below, the issue presented by this petition cannot arise under the new

law.

2

required regular inspections by federal mine inspectors of

mines covered by the Act to detect violations of mandatory

health or safety standards. 30 U.S.C. 813. Upon finding

such a violation, the inspector would issue an order

requiring the withdrawal of all persons from the danger area

or a notice requiring the abatement of the condition within a

specified time, depending on the seriousness of the hazard

posed by the violation (Section 814). The operator could

obtain a full evidentiary hearing to review the basis of any

order or notice issued by an inspector (or the time set for

abatement), with judicial review under the substantial

evidence standard in the appropriate court of appeals

(Section 816). The Act also required the Secretary of the

Interior to assess and collect civil penalties after considering

specified factors (Section 819(a)(1)). lf the operator failed to

pay the assessed penalty, the Secretary was required to

petition for judicial enforcement of the assessment in the

appropriate district court (Section 819(a)(4)). That Section,

which is the one at issue here, provided that in the

enforcement proceeding, “(t]he court shall consider and

determine de novo all relevant issues, except issues of fact

which were or could have been litigated in review

proceedings before a court of appeals under section 816 of

this title, and upon the request of the respondent, such issues

of fact which are in dispute shall be submitted to a jury.”

2. Between late 1975 and early 1976, inspectors from the

Interior Department’s Mining Enforcement Safety Ad-

ministration (MESA) conducted inspections of petitioner’s

coal mine in Claiborne County, Tennessee. The inspectors

issued a total of 25 notices of violations of applicable health

and safety standards, and MESA assessed a civil penalty for

each of the violations. An administrative hearing was then

held to determine whether the violations had occurred and,

if so, what penalties should be assessed. On February 4,

1977, the Administrative Law Judge found that petitioner

3

had committed all 25 violations and assessed petitioner civil

penalties totaling $1,823 (Pet. App. 19-20). Petitioner did

not seek review of the factual findings in the court of appeals

under 30 U.S.C. 816, nor did it pay the penalties.

In September 1977, the government filed a petition for

enforcement of the penalties in the United States District

Court for the Eastern District of Tennessee. Petitioner

requested a jury trial and sought de novo consideration of

both the question of liability and the amount of the penalties

(Pet. App. 20). The district court denied the request for de

novo consideration of the issue of liability, but it granted de

novo review of the amount of the penalties (Pet. App. 18-

27). Because the issues of fact relating to whether the

violations occurred were “facts of the same type as those

reviewed by appellate courts, under Section 816” (Pet. App.

23), the court held that those issues of fact should be

considered in the district court under the same standard as

would be employed in the court of appeals: review under the

substantial evidence test rather than de novo consideration

(Pet. App. 22-24). In contrast, issues relating to the

application of the statutory criteria to determine the amount

of the penalties would not be subject to review in the court of

appeals under Section 816. The district court accordingly

held that those issues were properly for de novo considera-

tion in the district court, with the jury resolving all disputed

issues of fact. Applying these principles, the district court

held that substantial evidence supported the administrative

determination that the charged violations occurred. The

jury assessed a total penalty of $1,181 for the 25 violations,

a figure that the district court approved as reasonable. The

court therefore entered a final judgment in that amount.

The court of appeals affirmed in a brief unpublished order

(Pet. App. 15-16; 617 F. 2d 602 (1980) (table)). The court

agreed with the district court that under the 1969 Act the

issue of liability was subject to “substantial evidence” review

4

rather than de novo consideration. With respect to the

penalty assessment, the court held that under the statute it

was for the district court to determine the amount of the

penalty, and that the role of the jury should have been

limited to “making any necessary findings of fact relevant to

the amount of the penalty” (Pet. App. 16). However,

because the district court ultimately determined the amount

of the penalties, the court of appeals held that the use of the

jury did not prejudice petitioner and that a remand under

the circumstances was unnecessary (ibid.).

3. The judicial review provisions of the Federal Mine

Safety and Health Act of 1977, which superseded the

provisions governing the instant case, are substantially

different from those at issue here. The only provision in the

1977 Act for judicial review of civil penalties is Section 106,

30 U.S.C. (Supp. 11) 816, which provides that petitions to

review civil penalty assessments go directly to the court of

appeals. If the aggrieved party seeks review of any Federal

Mine Safety and Health Review Commission order, the

Commission’s findings of fact are subject to review under a

substantial evidence standard. 30 U.S.C. (Supp. II)

816(a)(1). But if the aggrieved party does not seek review of

the Commission’s determination within 30 days, the

Secretary of Labor may file a petition for enforcement in the

court of appeals; in such an action, the Commission’s

findings of fact are conclusive. 30 U.S.C. (Supp. II) 816(b).?

2Alternatively, the Commission may enforce the civil penalties by an

action in the appropriate district court under 30 U.S.C. (Supp. 11) 820(j).

That Section provides simply that the assessed penalties “may be

recovered in a civil action in the name of the United States brought in the

United States district court for the district where the violation occurred

or where the operator has its principal office.” Similar statutory

provisions do not permit judicial review of the order to be enforced,

where there has been a previous opportunity to seek judicial review.

United States v. Jan Hardware Mfg. Co., 463 F. Supp. 732, 734

(E.D.N.Y. 1979), and cases there cited; see Atlas Roofing Co. v.

Occupational Safety and Health Review Comm'n, 430 U.S. 442, 447

(1977).

5

The issue of statutory construction presented in this case

is therefore of no continuing importance.’ As petitioner

concedes (Pet. 13), this is the only court of appeals that has

addressed this issue to date.* There is thus no reason for the

Court to grant review in this case.

4. In any event, we believe the district court and the court

of appeals correctly concluded that petitioner had no right

to de novo review of the determination that it had violated

the mandatory safety regulations. That determination was

based on “issues of fact which * * * could have been

litigated in review proceedings before a court of appeals

under section 816” (Section 819(a)(4)), and accordingly was

expressly exempt from de novo review in a Section 819

proceeding.’ Although, as this Court noted in National

3Although the 1977 Amendments became effective in early 1978, there

are several thousand cases pending in various stages of administrative

and judicial review that may involve the application of the 1969

procedures at issue here. It is not clear whether liability will be contested

in any significant proportion of those cases, or, indeed, whether the old

procedures apply to cases that were at an early stage of review when the

new Act became effective.

‘The decision of the court of appeals here, which was entered by

unpublished order, will have only limited precedential value. 6th Cir.

R. I.

5Petitioner apparently suggests (Pet. 9) that it could not in fact have

challenged the factual basis of the order under Section 816 because it

was never subject to a withdrawal order. Section 816 permitted review of

“[a]ny order or decision issued by the Secretary * * * under this chapter,

except an order or decision under Section 819(a) of this title.” That

language evidently permits review not only of withdrawal orders, but

also of notices of abatement and the time limits prescribed, which were

expressly made subject to administrative review by 30 U.S.C. 815(a).

Petitioner in fact obtained such review. In context, an “order or decision

under section 819(a)” referred only to an order or decision assessing the

penalty by applying the statutory factors.

6

Independent Coal Operators’ Ass'n v. Kleppe, supra, 423

U.S. at 393 n.3, “(t]he statutory scheme is less than clear on

this matter,” we submit that both the language of the statute

and the interests of judicial economy strongly support this

reading.® Moreover, as the district court noted (Pet. App.

23), there is 10 apparent reason why the operator should be

entitled to de novo review of the factual basis of the

violation in the district court, while he would only have been

entitled to substantial evidence review of the same question

if he had raised it earlier in the court of appeals.

It is therefore respectfully submitted that the petition fora

writ of certiorari should be denied.

WADE H. MCCREE, JR.

Solicitor General

SEPTEMBER 1980

We have previously suggested that the exemption applied only when

the operator had in fact filed a petition for review under Section 816

(Brief for Petitioner at 22 n.27, Kleppe v. Delta Mining, Inc., 423 U.S.

403 (1976)). We now believe that interpretation was unduly narrow.

DOJ-1980-09