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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0081%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 952

## Text

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 |
BE IE WEE dastsnsctbinenenvsetddeenerseseonsSvosueetannsvee 2
Be id IE adiniachaeiniadinsnawisicndissuchoinncvbebawensiets 2
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
SO U.S.C. Cm. ED) REDD cccccceccccepsacsssossesccece 4

ORs Ge The BD crninnsssnentessieeseinisnomianntnnenncevianntinetmnatin 5

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0081%3A2. Public record. Not legal advice.