Petition for Writ of Certiorari — Moore v. United States

@-Supreme Court, U.S. |

KF TL Eb

84 -41 ? JUL 3 1984

ALEXANOER L. STEVAS,

IN THE SUPREME COURT OF THE UNITED

CLERK

STATES ———---—- 4

No.

October Term, 1983

UNITED STATES OF AMERICA,

Plaintiff/Respondent

Ve

CLARENCE MOORE, individually, and

d/b/a LOG MOUNTAIN MINING COMPANY,

Defendant/Petitioner

PETITION FOR WRIT OF CEPTIORARI TO THE

UNITED STATES COURT OF APPEAL FOR THE

SIXTH CIRCUIT

David A. Burkhalter, II

Attorney for Petitioner

901 Bearden Drive

P. O. Box 11841

Knoxville, TN 37939-1841

(615) 584-0241

July 2, 1984

QUESTION PRESENTED

That it was. error to grant

Summary Judgment in the face of the

material question of waiver raised by

Petitioner and the issues of the

constitutionality of the Act in question

and the failure of the government to

follow the requirements of the Act and

related regulations.

PARTIES

Petitioner: Clarence lMoore

Respondent: United States of America

Fi cape RE ge aye NET OEE tt era gece wer er cers

TABLE OF CONTENTS

Question Presented

Parties

Table of Statutes and Other

Authorities

Reference to Official and

Unofficial Reports of

Lower Court Opinions

Statement of Grounds on which

Jurisdiction Invoked

Statement of the Case:

I. Nature of the Case, and

Course of Proceedings

II. Statement of the Facts

Argument

I. Introduction

II. The record raises a material

question of fact in that the

Department of the Interior

failed to notify Petitioner

Page

in

a meaningful way of violations

and rights, and such failure

- Fe raitet fe pea FT <

lead to unknowing noncompliance

of the Act as applied by the

Office of Surface Mining.

III. Conditioning access to judicial

review upon the full payment of

a civil penalty is unconstitu-

tional, thus summary judgment

is not available as a matter of

law.

IV. Failure to notify an operator of

the proposed amount of assessment

within thirty days of issuance

of a violation deprives the govern-

ment of any right to such penalty.

Conclusion

Appendix

Certificate

24

27

30

32

63

TABLE OF STATUTES AND OTHER AUTHORITIES

CONSTITUTIONAL PROVISIONS

United States Constitution

Amendment Five 244 ~—

Page i

STATUTES: /

5 U.S.C. Sec. 702 26 f

28 U.S.C. Sec. 1291 7 p

30 U.S.C. Sec. 1201, et seq. passim

30 U.S.C. Sec. 1268 (b) passim

30 U.S.C. Sec. 1268(c) passim

30 U.S.C. Sec. 1268 (d) passim

TEXT:

Federal Rules of Civil

Procedure, Rule 56 19

30 Code of Federal Regulations

Sec. 800, et seq. 27

CASES

Adickes v. Kress & Co.,

298 U.W. 144, 153 (1970) 20

Hodel v. Virginia Surface

Mining and Reclamation

Association, Inc., 452 U.S.

264 (1981)

Johnson v. Robison,

415 U.S. 361, 364 n.4 (1973)

Poller v. Columbia Broadcasting

Co., 368 U.S. 464, 473 (1962)

Shapiro v. Thompson, 394

U.S. 618, 642 (1969)

REFERENECE TO OFFICIAL AND UNOFFICIAL

REPORTS OF LOWER COURT OPINION

The text of the Orders,

Memoranda, and Opinions of the lower

courts are reproduced in the Appendix.

The district court's memorandum is

reported at 550 F.Supp. 811 (E.D. Tenn.

1982). The order of the Court of

Appeals is unpublished.

STATEMENT OF GROUNDS ON WHICH

JURISDICTION INVOKED

The Petitioner was found liable

for a civil penalty by final order of a

district court pursuant to the Surface

Mining Control and Reclamation Act of

1977, 30 U.S.C. Sec. 1201 et seg.,

Petitioner appealed to the United States

RPawcwekt at anmasia fawrew thraa Giwawth (6 e174 &

pursuant to 28 U.S.C. Sec. 1291.

The Court of Appeals affirmed

the district court's ruling by a final

order filed on April 4, 1984. The right

of appeal is not available in this

action.

The Petitioner respectfully

seeks further review of this case by

requesting the Court to grant this

Petition for Writ of Certiorari,

submitted pursuant to 28 U.S.C. Sec.

1254(1), timely filed under 28 U.S.C.

Sec. 2101(c).

STATEMENT OF THE CASE

I. NATURE OF THE CASE, COURSE OF

PROCEEDINGS

(All references to the record to the

Joint Appendix filed by the parties with

the Court of Appeals)

The Petition of Clarence Moore,

arises from the granting of Summary

Judgment on July 21, 1982, to the United

States, by the United States District

Court for the Eastern District of

Tennessee, Northern Division. The

Petitioner filed a Notice of Appeal on

August 4, 1982. The United States Court

of Appeals for the Sixth Circuit

affirmed on April 4, 1984.

The Complaint was for

collection of civil penalties allegedly

owed by Petitioner pursuant to 30 U.S.C.

Sec. 1268(d) of the Surface Mining

Control and Reclamation Act of 1977, 30

U.S.C. Sec. 1201 et seg. (J.A., Pp. 2).

The civil penalties were allegedly owed

in accordance with 30 U.S.C. Sec.

1268(b) and (c). (J-Ac, Pe 2)- The

United States sought penalties in the

amount of Twenty Thousand, Seven Hundred

and Twenty Dollars ($20,720.00). (J.A.,

p.- 5).

The original Complaint was

filed against Log Mountain Mining

Company on March 18, 1982. On motion of

the United States filed July 12, 1982,

an Order was entered on July 21, 1982,

amending the Complaint to add Clarence

=; =

Moore, individually. (J.A., Ppp. 66,

73).

Petitioner filed an Answer to

the Complaint on May 5, 1982, and filed

a First Request for Production of

Documents on May 6, 1982. (J.A., pp.

15, 20).

The United States moved for

Summary Judgment and filed a Memorandum

in Support of Motion for Summary

Judgment on June 22, 1982. (J.A., pp.

49, 50). Petitioner filed a Response to

Motion for Summary Judgment and

accompanying Memorandum in Opposition to

Plaintiff's Motion for Summary Judgment,

with an affidavit of Clarence Moore

attached as Exhibit I, on July 7, 1982.

(J.A., pp. 54, 55, 61).

Petitioner amended the

alhie

Memorandum in Opposition to Plaintiff's

Motion for Summary Judgment, and_ the

United States filed a Reply Memorandum

on July 20, 1982. (J.A., pp. 67, 69).

On July 21, 1982, the Honorable

Robert L. Taylor, presiding Judge of the

United States District Court, entered an

Order granting Summary Judgment in favor

of the United States for reasons stated

in a Memorandum Opinion filed the same

day. (J.A., Pp. 6). Petitioner, Clarence

Moore, filed a Notice of Appeal on

August 4, 1982 seeking reversal of the

Summary Judgment in the district court

(J.A., p. 14), but the Sixth Circuit

Court of Appeals affirmed on April 4,

1984.

II. STATEMENT OF THE FACTS

Due to the summary disposition

below, the relevant facts to this case

are contained in the Affidavit of

Clarence Moore, filed on July 7, 1982 as

Exhibit I to Petitioner's Memorandum in

Opposition to the United State's Motion

for Summary Judgment, the United State's

Answers to Defendant's First Set of

Interrogatories, filed on June 18, 1982,

the Complaint and Answer. (J.A., pp.

61; 30-48; 2-5; 15-19).

Clarence Moore avers in his

Affidavit that the confusion generated

by the notices [proposed notices of

assessment] sent to him by the

governnment resulted in an_ unknowing

waiver of his appeal rights. (J.A., p.

61). Also, due to the confusion,

site

Clarence Moore avers that he believed

civil penalties applied only to unabated

violations [of 30 U.S.C. Sec. 1201 et

seq.] and to serious threats to the

environment. (J.A-., Pe 61)- Finally,

Clarence Moore avers that the delays by

the government in assessing proposed

penalties further served to put him off

guard and substantially contributed to

his inaction relating to the penalties.

(J.A., pe 61).

Notice of Violation (NOV)

80-2-32-16 was issued on April 23, 1980,

citing Petitioner for two bookkeeping

violations of 30 U.S.C. Sec. 1201 et

seq., the Surface Mining Control and

Reclamation Act (hereinafter “the Act").

(J.A., pp. 30, 31). The violations

cited in NOU RN-9-29-16 were terminated

Baas

ma Sat

2

.

3

)

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af

fp

f

-14-

on April 29, 1980. (J.A., p. 31). The

Office of Surface Mining (OSM) sent out

a Notice of Proposed Assessment for $880

on August 20, 1980, (J.A., p. 32), 119

days after issuing NOV 80-2-32-16.

NOV 80-2-32-8 was issued on

February 14, 1980, for tweleve

violations of the Act ranging from minor

“paperwork" violations to more important

violations. (J.A., p. 33). Violations

l, 4, and 7 of NOV 80-2-32-8 were

terminated on April 23, 1980, and

violations, 2, 3, 5, 8 and 10 were

modified to extend the time for

abatement; on April 29, 1980, violations

6 and 9 were terminated; violations 2,

3, 8, 10 and 12 were terminated on May

20, 1980; violations 5 and 11l were

terminated on June 20, 1980. (J.A., pp.

oo

34, 35, 36). On April 11, 1980,

however, the OSM sent a Notice of

Proposed Assessment for $12,180, (J.A.,

p. 34), this coming 55 days after the

issuance of NOV 380 2-32-8. The OSM

reduced the assessment to $8,380 at an

informal assessment conference on June

23, 1980. (J.A., p. 36).

NOV 80-2-46-16 was issued on

April 2, 1880, for four violations of

the Act. (J.A., p. 37). The violations

were modified to extend the time for

abatement on May 20, 1980, and were

terminated on June 23, 19890. (J.A.,

pp. 37, 38). However, a Notice of

Proposed Assessment for $1,860 was sent

on June 19, 1980, (J.A., p. 39), 79 days

after NOV 80-2-46-16 was issued.

NOV 80-2-32-29 was issued on

July 17, 1980, for three violations of

the Act, (J.A., pe. 40). Violation 3

was modified on August 4, 1980, because

of a discrepancy in engineering

specifications. (J.A., pp. 40, 41).

Violation 1 was terminated on October 7,

and the remaining violations were

terminated on November 7, 1980. (J Ac,

p. 42). The OSM sent a Notice of

Proposed Assessment for $6,106 on

September 3, 1980, 49 days after NOV

80-2-32-29 was issued.

NOV 80-2-53-5 was issued on

April 2, 1980, citing six violations of

the Act. On April 23, 1980, violations

1, 5 and 6 were terminated, as were

violations 2 and 3 on July 2, 1980.

(J.A. pp. 43, 44). Violation 4 was not

terminated until January 20, 1982.

al Be

(J.A., pe. 45). A Notice of Proposed

Assessment for $2,300 was sent on August

20, 1980, 140 days after NOV 80-2-53-5

was issued.

NOV 80-2-53-12 was issued on

April 24, 1980, citing two violations of

the Act, and both violations were

terminated on July 2, 1980. (J.A., pp.

45, 460. 4 Notice of Proposed

Assessment for $1,200 was sent on August

20, 1980, 118 days after NOV 80-2-53-12

was issued.

The United States alleged that

in each instance heretofore described,

the Petitioner failed to pre-pay into

escrow the respective proposed amounts

of assessment and, therefore, waived all

legal rights pursuant to 30 U.S.C., Sec.

1268(c). (J.A., pp. 2-4).

aie

Petitioner admittted that no

amount had been paid into escrow but

denied that a waiver of all legal rights

was a necessary result of such failure

and denied that the proposed assessments

were due and owing. (J.A., pp. 15-18).

ai Ge

ARGUMENT

I. INTRODUCTION

Petitioner respectfully submits

that the requirements of Rule 56 of the

Federal Rules of Civil Procedure

precluded summary judgment in this case.

First, the question of whether

Petitioner knowingly waived his right to

appeal under the provisions of the Act,

is a question of fact which has not been

determined. Second, the constitutional

question raised by Petitioner has not

been definitively ruled upon by this

Court. Third, the Office of Surfacee

Mining failed to follow the mandate of

30 U.S.C. Sec. 1268(c) and its own

regulations in assessing proposed

penalties. Petitioner contends that the

-20-

question of waiver, the constitutional

issue, and the failure of the OSM to

comply with the Act and implementing

regulations precluded the proper

granting of summary judgment.

II. THE RECORD RAISES A

MATERIAL QUESTION OF FACT IN THAT THE

DEPARTMENT OF THE INTERIAL FAILED TO

NOTIFY PETITIONER IN A MEANINGFUL WAY OF

VIOLATIONS AND RIGHTS, AND SUCH FAILURE

LEAD TO UNKNOWING NONCOMPLIANCE OF THE

ACT AS APPLIED BY THE OFFICE OF SURFACE

MINING.

Initially, it is important for

the Court to’ apply two principles in

considering the disposition of the

United State's Motion for Summary

Judgment. First, the United States, as

the moving party, had the burden of

showing the absence of any material fact

in this case. Adicke v. Kress & Co.,

398 U.S. 144, 153 (1970). Second, in a

Pe

summary judgment proceeding, all

inferences which may be drawn from the

record should be looked at in the light

most favorable to the opposing party,

the Petitioner in this case. Poller v.

Columbia Broadcasting Co., 368 U.S. 464,

473 (1962).

The United States contended

that the record demonstrated that there

was no genuine dispute as to any

material fact. The United States

contended that Petitioner's failure to

avail itself of the various’ remedies

provided by the Act’ foreclosed its

appeal to the District Court,

particularly the failure to pre-pay

amounts of proposed penalties into

escrow. The failure to pre-pay is made

a waiver of all legal rights to contest

o22<

any violation of the amount of any

penalty under 30 U.S.C. Sec. 1268(c).

The record shows that

Defendant's so-called waiver of legal

rights was unknowingly made and caused

by the confusion surrounding the notices

sent to Petitioner, and the inaction and

unwarranted delay in assessing

penalties. (J.A., p. 61). Such notices

served only to confuse and frustrate

their purpose, which ostensibly was to

definitively inform Petitioner of his

rights.

The confusion involved in this

case is exemplified by the one instance

an administrative hearing was held after

a notice of violation was issued. At an

informal assessment conference held on

June 23, 1980, in connection with NOV

80-2-32-8 and a proposed assessment

amount of $12,180, was reduced to

$8,380. (JoAne Peo 36). This one

instance of Petitioner's recourse. to

available administrative avenues serves

to lend credence to the averments in his

Affidavit that the notices and actions

of the United States confused rather

than enlightened.

It makes little sense that

Petitioner would forego administrative

remedies when his sole experience with

such proceedings resulted in a reduction

of a proposed penalty, unless he in fact

did not understand the alleged import of

failing to exercise such rights and was

confused by the paperwork and ambiance

of the OSM.

Petitioner put this question

alge

before the Court in his Affidavit, thus

raising a material question of fact. It

is respectfully submitted that the

important question of intelligent waiver

of legal rights is a material question

of fact which cannot be decided by

summary motions and supporting papers.

III. CONDITIONING ACCESS TO

JUDICIAL REVIEW UPON THE FULL PAYMENT OF

A CIVIL PENALTY IS UNCONSTITUTIONAL,

THUS SUMMARY JUDGMENT IS NOT AVAILABLE

AS A MATTER OF LAW.

The provision of 30 U.S.C. Sec.

1268 (c) which conditions access’ to

courts for review of agency action on

the full payment of a penalty determined

by the agency violates the Due Process

Clause of the Fifth Amendment. In

addition, such a requirement violates

the Equal Protection Clause of the

Fourteeneth Amendment as applied through

a8

the Fifth Amendment.

The Fifth Amendment contains no

equal protection clause, but "it does

forbid discrimination that is ‘so

unjustified as to be violative of due

process." Shapiro v. Thompson, 394 U.S.

618, 642 (1969). A classification which

is invalid under the Equal Protection

Clause of the Fourteenth Amendment is

also invalid under the Due process

Clause of the Fifth Amendment. Johnson

v. Robison, 415 U.S. 361, 364 n. 4

(1973).

To justify a classification

under the Equal Protection Clause of the

Fourteenth Amendment it “must be

reasonable, not arbitrary and must rest

upon some ground of difference having a

fair and substantial relation to the

i

object of the legislation, so that all

persons similarly circumstanced shall be

treated alike." Reed v. Reed, 404 U.S.

71, 76 (1971).

In this case, the United States

would deprive Petitioner of the right to

judicial review given to all persons

“suffering legal wrong because of agency

action, or adversely affected or

aggrieved by agency action," pursuant to

> U.S.C. See. 72. Mine operators

subject to the Act are singled out among

litigants so that access to judicial

review is dependent upon the actual

advance payment of a disputed penalty.

Such a final and harsh requirement is

unreasonable, arbitrary and capricious.

Although judicial review is

often conditioned on the giving of

~

security, such security is a far cry

from giving up, in cash and in full, an

amount which has been assessed by an

agency and to which an aggrieved party

objects.

The less restrictive

alternative of requiring a performance

bond to insure that penalties will be

paid and, more importantly, that any

environmental damage will be restored is

provided for in 30 CRF Sec, 800 et seq.

Thus, the pre-payment Provision is

overly burdensome and unnecessary.

FAILURE TO NOTIFY AN OPERATOR

OF THE PROPOSED AMOUNT OF ASSESSMENT

WITHIN THIRTY DAYS OF ISSUANCE OF A

VIOLATION DEPRIVES THE GOVERNMENT OF ANY

RIGHT TO SUCH PENALTY.

The first sentence of 30 U.S.C.

Sec. 1268(c) provides that: "Upon the

issuance of a notice or order charging

a2G-

that a violation of the Act has

occurred, the Secretaty shall inform the

Operator within thirty days of the

proposed amount of said

penalty...."(Emphasis added).

The Office of Surface Mining

considered that it was the intention of

Congress by the thirty-day notification

requirement that no penalties were to be

assesed beyond thirty days. Federal

Register, September 4, 1980, 58781.

Recognizing that confusion and

unfairness could result from past

practices related to inspection,

re-inspection and proposed penalties,

the Office announced its intention to

restrict failure-to-abate penalties to a

maximum of thirty days, modify existing

assessments and grant hearing and

=29-

conference requests on any

recomputations. Id.

The concern shown by OSM over

the mandate of 30 U.S.C. Sec. 1268 (c)

that “the Secretary shall inform the

Operator within thirty days of the

proposed amount of said penalty"

indicates that Congress intended that

the Office had a duty to inform

operators of proposed assessments within

the explicit time period.

The proposed amount of the

penalties on the notices of violation

under consideration in this cae were

sent to Petitioner anywhere from 55 days

to 140 days from the issuance of such

violations. Surely, if operators are

ex pected to follow statutory and

regulatory provisions, the administering

agency, as enforcer, should be required

to adhere to the express requirements of

the Act and related regulations,

particularly, when a failure to do so

has resulted in a purported waiver of

rights under the same regulatory scheme.

CONCLUSION

For the foregoing reasons and

in light of the Supreme Court's

reservation of the question of

constitutionality of 30 U.S.C. Sec.

1268 (c) in Hodel v. Virginia Surface

Mining and Reclamation Association,

Inc., 452 U.S. 264 (1981), it is

respectfully requested that the Petition

be granted.

RESPECTFULLY SUBMITTED, this

()

the rnd day of

dul, Z , 1984.

(ich, blue.

DAVID A. BURKHALTER,

Attorney for sey oe pe

P. O. Box 11841

Knoxville, TN 37939-1841

(615) 584-0241

6%%e

DIX

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APPE}

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INDEX TO APPENDIX

Order of Court of Appeals

Order of District Court

Memorandum of District Court

United States Constitution:

Amendment Five

28 USC Sec. 1254(1)

28 USC Sec. 1291

28 USC Sec. 2101 (c)

30 USC Sec. 1268(b)

30 USC Sec. 1268 (c)

30 USC Sec. 1268 (d)

30 USC Sec. 1271 (a)

Rule 56, Federal Rules of

Civil Procedure

Page

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

CLARENCE MOORE, individually,

and d/b/a LOG MOUNTAIN MINING

COMPANY,

Defendant-Appellant.

i i a

ORDER

BEFORE: JONES AND WELLFORD, Circuit

Judges; and CELEBREZZE, Senior

a eee ye eT ee

atée

Circuit Judge

Moore appeals from the grant of

summary judgment to the Government in

this Surface Mining Control and

Reclamation Act case. The district

court found the statute at issue to be

constitutional. This appeal has been

referred to a panel of the Court

pursuant to Rule 9(a), Rules of the

Sixth Circuit. After an examination of

the record and the briefs, this panel

agrees unanimously that oral argument is

not needed. Rule 34(a), Federal Rules

of Appellate Procedure.

The Department of the Interior

brought this action to recover

assessments against Moore for violation

of the Act. Moore challenged’ the

constitutionality of the requirement

that he pre-pay the assessment before

obtaining review. This Court has

im

‘

it

a)

te

‘

‘on .aiee

-35-

recently held that this requirement is

constitutional. Blackhawk Mining co.,

Inc. v. Andrus, 711 F.2d 753 (6th Cir.

1983). Therefore, Moore has waived his

right to review of the assessments. 30

U.S.C. Sec. 1268(c).

Moore also alleges that he did

not knowingly waive his rights. The

administrative record contains a letter

clearly informing Moore of the

pre-payment requirement. So Moore's

argument is without merit.

The judgment of the district

court is affirmed under Rule 9(d) (3),

Rules of the Sixth Circuit, because the

issues are not substantial and do not

require oral argument.

ENTERED BY ORDER OF THE COURT

/s/By:John P. Hehman, Clerk

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

UNITED STATES OF AMERICA,

CIV.

3-81-520

Ve

LOG MOUNTAIN MINING COMPANY,

ORDER

For the reasons stated in a

memorandum opinion this day passed to

the Clerk for filing, it is ORDERED that

plaintiff's motion for summary judgment

be, and the same hereby is, granted. It

is further ORDERED that judgment enter

in favor of plaintiff for $20,720.00.

Enter:

/s/By:Robert L. Taylor

United States—ptstrict

Judge

SE ee Le reer |

ii teas

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

UNITED STATES OF AMERICA,

V. Civ.

)

)

)

)

) 3-81-350

)

LOG MOUNTAIN MINING COMPANY

MEMORANDUM

The United States brought this

action to collect civil penalties in the

amount of $20,720.00 assesed against

defendant. The case is presently before

the Court on plaintiff's motion for

summary judgment. Plaintiff has also

moved to amend its pleadings to name

Clarence Moore, individually d/b/a Log

Mountain Mining Company, as defendant.

Plaintiff states that the amendment is

Lecessary because Log Mountain Mining

Company is a sole proprietorship of

Clarence Moore rather than a

corporation. The motion to amend is

granted so that the pleadings’ will

reflect the true parties in interest.

Defendant does not contest the

violations which are the subject of the

penalties. It is undisputed that the

Secretaty of Interior has assessed the

$20,720 in penalties against defendant

for Notices of Violation 80-2-32-16,

80-2-32-8, 80-2-46-14, 80-2-32-39,

80-2-53-5 and 80-2-53-12. It is also

undisputed tht defendant failed to

exhaust his appeal rights for

challenging these penalties. Relying on

defendant's failure to challenge’ the

violations or penalties through the

exercise of his appeal rights, plaintiff

contends that defendant has waived his

right to contest the violations. 30

U.S.C. Sec. 1268(c).

Defendant contends that 30

U.S.C. Sec. 1268(c) is unconstitutional

as

obQe

a denial of due process and equal

protection. The challenged provision

provides that

Notice; waiver. Upon the

issuance of a notice or order

charging that a violation of

the Act has occurred, the

Secretary shall inform’ the

oerator within thirty days of

the proposed amount of said

penalty. The person charged

with the penalty shall then

have thirty days to pay the

proposed penalty in full or,

if the person wishes to

contest either the amount of

the penalty or the fact of the

violation, forward the

proposed amount to the

Seretary for placement in an

escrow account. If through

administrative or judicial

review of the proposed

penalty, it is determined that

no violation occurred, or that

the amount of the penalty

should be reduced, the

Secretary shall within thirty

days remit the appropriate

amount to the poerson, with

interest at the rate of 6

percent, or at the prevailing

Department of the Treasury

rate, whichever is greater.

Failure to forward the money

to the Secretary within thirty

days shall result in a waiver

of all legal rights to contest

the violation or the amount of

the penalty.

#

saciid NE ovis tae - =

-40-

Defendants attacks the

requirement that he pay the amount of

the proposed ‘penalty into escrow. He

contends that the escrow provision is

unreasonable, is a denial of acces to

the courts and is a deprivation of

property without due process, citing

Fuentes v. Shevin, 407 U.S. 67 (1972).

Four district courts have

upheld the escrow provision. United

States v. Hill, 533 F.SASupp. 810 (E.D.

Tenn. 1982); United States v. Thompson

Brothers Coal Co., Inc., 532 F.Supp.

979 (W.D.Pa. 1982); B & M Coal Corp. v.

Office of Surface Mining Reclamation and

Enforcement, 531 F.Supp. 677 (S.D. Ind.

1982) ; Blackhawk Mining Co. v. United

States Department of Interior, No.

79-136 (E.D. Ky. February ll, 1982). We

have found no case holding this section

unconstitutional after the Supreme

Court's decision in Hodel v. Virginia

Surface Mining and Reclamation

Association, 452 U.S. 264 (1981).

by Judge

an

The escrow provision was viewed

Edward Dumbauld as

appropriate means of

discouraging frivolous resort

to

an additional avenue of

delay for the purpose of

prolonging the collection

process and postponing’ the

painful moment of payment.

Past

experience, as the

legislative history shows,

indicated the wisdom of

enacting such a provision.

95th Cong., lst Sess., S.Rep.

No.

95-128, 58-59(1977).

The temporary loss of

use Of a small sum for a short

time is surely de minimis in

comparison to the other

expenditures and outlays which

a coal operator is obliged to

make

in order to carry on

business. If successful in

upsetting or reducing the

penalty he is reimbursed the

amount prepaid, together with

interest at 6% or that on

Treasury bills, whichever is

higher. This hardship is

insufficient to constitute

depr

ivation without due

process.

532 F.Supp. at 979.

provision

The validity of the escrow

should be determined by

«82

looking to the reasonableness of the

statutory scheme and its administrative

regulations. Judge Frank Wilson

described thee procedural safeguards

provided by the various levels of

administrative review as follows:

"The procedures followed by

the Secretary in assessing

civil penalties, and the

administrative and judicial

appeal rights afforded mine

Operators, are set forth in 30

U.S.C. Secs 1268, 1275-76; 30

C.F.R. Secs. 723.1 et seqg.;

and 43 C.F.R. Secs. 4.1100 et

seg. These procedures’ and

appeal rights become

applicable whenever a mine

operator or permittee is

issued a notice of violation

Or a cessation order under 30

U.S.C. Sec. 1271(a).

"I. Within ten days of

service of a notice or order,

the permittee may submit

written information concerning

the violation(s) to the Office

of Surface Mining Assessment

Office. Any such information

must be considered by the

Assessment Office in

determining whether to assess

a civil penalty and how large

a penalty to assess. 30

C.F.R. Sec. 723.16(a). Within

30 days of the issuance of the

notice or Order, the

Assessment Office must inform

the permittee of its decision

to assess a penalty and must

serve on the permittee a copy

of the proposed assessment.

30 U.S.C. Sec. 1268(c); 30

C.F.R. Sec. 723.16(b).

"II. If the notice or order

require the cessation of

mining an informal public

hearing must be held upon the

request of the permittee,

within 30 days of service of

the citation. 30 U.S.C. Sec.

1271(a) (5); 30 C.F.R. Sec.

722.15. The hearing is

conducted by a supervisory OSM

employee, and the permittee

may request that the hearing

be held on the mine site. The

hearing officer must issue his

decision affirming, vacating,

or modifying the citation

within five business days. 30

C.F.R. Sec. 722.15(f).

"III. Also within 30 days of

the issuance of any notice or

order, the permittee may apply

for formal review of the

citation under 30 U.S.C. Sec.

12753 43 C.F.R. Secs. 4.1160

et seq. The permittee may

receive a full, adversarial,

evidentiary hearing before an

impartial administrative law

judge, who reviews the

validity of the notie or order

and has the power to vacate,

affirm, or modify the

citation. Temporary relief

may be requested under 30

U.S.C. Sec. 1275(c); 43 C.F.R.

-44-

Secs. 4.1260 et seg.

Appeals to an administrative

review board and judicial

review rights are also

available 43 C.F.R. Secs.

4.1271 et seq.; 30 U.S.C. Sec.

1276(a)) (2).

ae 5 Within 15 days of

receipt of a notice of

proposed assessment of civil

penalty, the permittee may

request an informal conference

to review the amount of the

penalty. 30 C.F.R. Sec.

723.17(a). The conference is

conducted by an OSM employee

who has had no previous

connection with the case. Any

information presented by the

permittee at the conference

must be considered by the

Assessment Office in deciding

whether to affirm, vacate,

rgaise, or lower the penalty

30 C.F.R. Sec. 723.17(b).

"V. Finally, either within 15

days of the conclusion of th

assessment conference (if one

has been requested) or within

30 days of receipt of the

notice of proposed assessment

of civil penalty (if no

conference has been

requested), the permittee may

apply for formal review of

both the validity of the

citation and the amount of the

proposed penalty. 30 U.S.C.

Sec. 1268(¢c); 30 C.F.R. Sec.

723.18; 43 C.F.R. Secs. 4.1150

et seg. A full, adversarial,

evidentiary hearing is held,

as under remedy III described

above. As a precondition of

this final administrative

remedy only, the permitee is

required to pay the amount of

the proposed penalty into an

escrow account, 30 U.S.C. Sec.

1268 (c); 43 C.F R-« Sec.

4.1152. If the permittee

succeeds in having the penalty

reduced or eliminated in this

formal review process, any

amount determined not to be

owed must be refunded to the

permittee with interest at the

prevailing Department of

Treasury rate. Id. Appeals to

an administrative review board

and judicial review are

available here as well. 43

C.F.R. Sec. 4.1270; 30 U.S.C.

Sec. 1276(a) (2) .*

(Footnote omitted).

814 F.Supp. at 814-15. Both the notices

of violation an the notices of proposed

assessment explained these

administrative remedies to defendant.

The record indicates that

defendant availed himself of only one of

the various administrative remedies. He

requested and received = an informal

assessment conference for Notice of

Violation 8-2-32-8. As a result of the

conference, the amount of the proposed

penalty was reduced from $12,180 to

$8,380.

We agree with the views

expressed in the cases cited above that

the adminitrative review available to

defendant satisfies the requirements of

due process.

Defendant's equal protection

argument is that Sec. 1268(c) creates an

arbitrary and unreasonable

classification. He does not explain

what the classifications are and we are

unable to find that the statute creates

any classifications. See Unites States

v. Thompson Brothers Coal Co., supra.

This argument is likewise without merit.

Defendant asserts in his

affidavit that he did not knowingly

waive his rights to appeal. He states

that the notices were confusing and that

he was unaware the he would have to pay

ai Ta

for minor violations or for violations

affecting the environment but which had

been corrected. Samples of two notices

received by defendant are attached as

exhibits. Exhibit III is a notice of

the administrative relief which

defendant “may" request. Exhibit IV is

a notice of proposed assessment of

penalty. This notices states that

THE PROPOSED PENALTY(IES) WILL

BECOME FINAL AND #£PAYABLE

WITHIN 30 DAYS from the date

you receive this lettr UNLESS

YOU REQUEST A CONFERENCE OR

HEARING in accordance with the

following instructions. ...

The notice then explains how to request

a conference or hearing, and that if a

hearing is requested, the coal miner

must submit a check or money order in

the amount of the proposed penalty. If

the check or money - order is not

submitted with the petition, the coal

miner is advised that "you may forfeit

your right to a hearing." Defendant

~48-

contends that the use of the word "may"

did not sufficiently warn him that his

inaction would constitute a waive of his

rights.

We reject defendant's argument.

It is undisputed that defendant received

the notices of violations and proposed

assessments, but took no action except

for requesting one conference. The

notice of the proposed assessment of

penalty stated that the penalty would

become final and payable unless. a

hearing or conference was requested.

Defendant ignored these citations. We

Cannot find that the use of the word

"may" in the notices justifies

defendant's failure to seek

administrative review of the proposed

penalties. To the extent that the

notices were confusing, defendant should

have contacted the Office of Surface

Mining, as the notices suggested, or

ai

sought legal counsel. This Court cannot

sanction defendant's ignoring the

citations of an agency of the

Government. Defendant's failure to

contest the proposed penalties through

the available administratie procedures

resulted in a waiver of his rights to

contest the penalties at this time. 30

U.S.C. Sec. 1268(c).

Defendant's last contention is

that the penalties are void because the

Secretary failed to inform him of the

amount of the proposed penalty wirhin 30

days of the issuance of the violations,

as required by Sec. 1268(c). We must

disagree. A statutory time period is

not jurisdictional unless it both

expressly requires an agency to act

within a particular time period = and

specifies a consequence for failure to

comply with the provision. See Usery v.

Whitin Machine Works, Inc., 554 F.2d

af6q

498, 501 (lst Cir. 1977); Fort Worth

National Corp. v. Federal Savings & Loan

Ins. Corp., 469 F.2d 47, 58 (5th Cir.

1972); Maryland Casualty Co. v.

Cardillo, 99 F.2d 432, 434 (D.C. Cir.

1938). Since Sec. 1268(c) does not

specify any consequence for the

Secretary's failure to act within 30

days, the provision is not

jurisdictional. Since the provision is

not jurisdictional, and defendant has

neither claimed nor shown any prejudice,

we conclude that the penalties are not

void.

For these reasons, it is

ORDERED that plaintiff's motion for

summary judgment be, and the same hereby

is, granted. It is further ORDERED that

the judgment enter in favor of plaintiff

for $20,720.00

Order Acccordingly.

/s/By:Robert L. Taylor

ie

United States District

Judge

«82

CONSTITUTION OF THE UNITED STATES OF

AMERICA

Amendment 5

Criminal actions---Provisions

concerning--Due process of law and just

compensation clauses.

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due

process of law; nor_- shall _ private

property be taken for _ public. use,

without just compensation.

“Be

28 U.S.C. Sec. 1254. Court of appeals;

certiorari; appeal; certified questions

Cases in the courts of appeals may be

reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari

granted upon the petition of any party

to any civil or criminal case, before or

after rendition of judgment or decree;

(2) By appeal by ae party

relying on a State statute held by a

court of appeals to be invalid as

repugnant to the Constitution, treaties

or laws of the United States, but such

appeal shall preclude review by writ of

certiorari at te instance of = such

appellant, and the review on appeal

shall be restricted to the Federal

questions presented;

(3) By certification at any

time by a court of appeals of any

question of law in any civil or criminal

case as to which instructions are

desired, and upon such certific.tion the

Supreme Court may give binding

instructions or require the- entire

record to be sent up for decision of the

entire matter in controversy.

-54-

28 U.S.C. Sec. 1291. Final decisions of

district courts

The courts of appeals’ shall

have jurisdiction of appeals from all

final decisions of the district courts

of the United States, the United States

District Court for the District of the

Canal Zone, the District Court of Guam,

and the District Court of the Viryin

Islands, except where a direct review

may be had in the Supreme Court.

28 U.S.C. Sec. 2101. Supreme Court;

time for appeal Or certiorari;

docketing; stay

(a) eee

(b) eee

(c) Any other appeal or any

writ of certiorari intended to bring any

judgment or decree in a civil action,

Suit or proceeding before the Supreme

Court for review shall be taken or

applied for within ninety days after the

entry of such judgment or decree. a

justice of the Supreme Court, for good

cause shown, may extend the time for

applying for a writ of certiorari for a

period of not exceeding sixty days.

(d) ee¢ce

(e) ec

(f£) eeee

-56-

30 U.S.C. Sec. 1268. Penalties

(a) eee

(b) Hearing. A civil penalty

shall be assessed by the Secretary only

after the person charged with a

violation described under subsection (a)

of this section has been given = an

opportunity for a public hearing. Where

such a public hearing has been held, the

Secretary shall make findings of fact,

and he shall issue a written decision as

to the occurrence of the violation and

the amount of the penalty which is

warranted, incorporating, when

appropriate, and order therein requiring

that the penalty be paid. When

appropriate, the Secretary shall

consolidate such hearings with other

proceedings under section 521 of this

Act. Any hearing under this’ section

shall be of record and shall be subject

to section 554 of title 5 of the United

States Code. Where the person charged

with such a violation fails to avail

himself of the opportunity for a public

hearing, a civil penalty shall _ be

assessed by the Secretary after the

Secretary has determined that a

violation did occur, and the amount of

the penalty which is warranted, and has

issued an order requiring that’ the

penalty be paid.

(c) Notice; waiver. Upon the

issuance of a notice or order charging

that a violation of the Act has

occurred, the Secretary shall inform the

operator within thirty days of the

proposed amount of said penalty. The

person charged with the penalty shall

then have thirty days to pay’ the

proposed penalty in full or, if the

wi Pe

person wishes to contest either’ the

amount of the penalty or the fact of the

violation, forward the proposed amount

to the Secretary for placement in an

escrow account. If through

administrative or judicial review of the

proposed penalty, it is determined that

no violation occurred, or that’ the

amount of the penalty should be reduced,

the Secretary shall within thirty days

remit the appropriate amount to. the

person, with interest at the rate of 6

percent, or at the prevailing Department

of the Treasury rate, whichever is

greater. Failure to forward the money

to the Secretary within thirty days

shall result in a waiver of all legal

rights to contest the violation or the

amount of the penalty.

(d) Recovery in civil action.

Civil penalties owed under this Act, may

be recovered in a civil action brought

by the Attorney General at the request

of the Secretary in any appropriate

district court of the United States.

(e) ccc

(i) eevee

oiin

30 U.S.C. Sec. 1271. Enforcement.

(a) Notice; Federal

inspection; waiver; cessation order;

affirmative obligations; hearing;

suspension or revocation cof permits;

contents of notices and orders;

expiration date. (1) Whenever, on the

basis of any information available to

him, including receipt of information

from any person, the Secretary has

reason to believe that any person is in

violation of any requirement of this Act

Or any permit condition required by this

Act, the Secretary shall notify the

State regulatory authority, if one

exists, in the State in which’ such

violation exists. If no such State

authority exists or the State regulatory

authority fails within ten days after

notification to take appropriate action

to cause said violation to be corrected

Or to show good cause for such failure

and transmit notification of its action

to the Secretary, the Secretary shall

immediately order Federal inspection of

the surface coal mining operation at

which the alleged violation is occurring

unless the information available to the

Secretary is a result of a previous

Federal inspection of such surface coal

mining operation. The ten-day

notification period shall be waived when

the person’ informing the Secretary

provides adequate proof that an imminent

danger of significant environmental harm

exists and that the State has failed to

take appropriate action. When the

Federal inspection results from

information provided to the Secretary by

any person, the Secretary shall notify

such person when the Federal inspection

is proposed to be carried out and such

person shall be allowed to accompany the

witGe

inspector during the inspection.

(2) When, on the basis of any

Federal inspection, the Secretary or his

authorized representative determines

that any condition or practices exist,

Or that any permittee is in violation of

any requirement of this Act or any

permit condition required by this Act,

which condition, practice, or violation

also creates an imminent danger to the

health or safety of the public, or is

causing, Or can reasonably be expected

to cause significant, imminent

environmental harm to land, air, or

water resources, the Secretary or his

authorized representative shall

immediately order a cesstion of surface

coal mining and reclamation operations

or the portion thereof relevant to the

condition, practice, or violation. Such

cessation order shall remain in effect

until the Secretary or his authorized

representative determines that the

condition, practice, or violation has

been abated, or until modified, vacated,

Or terminated by the Secretary or his

authorized representative pursuant to

Subparagraph (a)(5) of this section.

Where the Secretary finds that the

ordered cessation of surface coal mining

and reclamation operations, or _ any

portion thereof, will not completely

abate the imminent danger to health or

safety of the public or the significant

imminent environmental harm to land,

air, or water resources, the Secretary

shall, in addition to the cessation

order, impose affirmative obligations on

the operator requiring him to_- take

whatever steps the Secretary deems

necessary to abate the imminent danger

or the significant environmental harm,

-60-

(3) When, on the basis of a

Federal inspection which is carried out

during the enforcement of a Federal

program or a Federal lands’ program,

Federal inspection pursuant to section

502, or section 504(b) or during Federal

enforcement of a State program in

accordance with subsection (b) of this

section, the Secretary or his authorized

representative determines that any

permittee is in violation of 8 any

requirement of this Act or any permit

condition required by this Act; but such

violation does not create an imminent

danger to the health or safety of the

public, or cannot be reasonably expected

to cause significant, imminent

environmental harm to land, air, or

water resources, the Secretary or

authorized representative shall issue a

notice to the permittee or his agent

fixing a reasonable time but not more

than ninety days from the abatement of

the violation and providing opportunity

for public hearing.

If, upon expiration of the

period of time as originally fixed or

subsequently extended, for good cause

shown and upon the written finding of

the Secretary or his authorized

representative, the Secretary or his

authorized representative finds that the

violation has not been abated, he shall

immediately order a cessation of surface

coal mining and reclamation operations

or the portion thereof relevant to the

violation. Such cesation order. shall

remain in effect until the Secretary or

his authorized representative determines

that the violation has been abated, or

until modified, vacated, or terminated

by the Sectetary or his authorized

representative pursuant to subparagraph

—OooooooeeeeeeeeeerereRX_s_— Oa

ehiia

(a) (5) of this subsection, the Secretary

shall determine the steps necessary to

abate the violation in the most

expeditious manner possible, and shall

include the necessary measures in the

order.

(4) When, on the basis of a

Federal inspection which is carried out

during the enforcement of a Federal

program or a Federal lands' program,

Federal inspection pursuant to section

502 or section 504 or during Federal

enforcement of a State program in

accordance with subsection (b) of this

section, the Secretary or his authorized

representative determines that a pattern

of violations of any requirements of

this Act or any permit conditions

required by this Act exists or has

existed, and if the Secretary or his

authoried representative also find that

such violations are caused by the

unwarranted failure of the permittee to

comply with any requirements of this Act

Or any permit conditions, or that such

violations are willfully caused by the

permittee, the Secretary or his

authorized representative shall

forthwith issue an order to the

permittee to show cause as to why the

permit should not be suspended or

revoked and shall provide opportunity

for a public hearing. If a hearing is

requested the Secretary shall inform all

interested parties of the time and place

of the hearing. Upon the permitte's

failure to show cause as to why the

permit should not be suspended or

revoked, the Secretary or his authorized

representative shall forthwith suspend

or revoke the permit.

(5) Notices and orders issued

shin

to this section shall set forth with

reasonable specificity the nature of the

violation and the remedial action

required, the period of time established

for abatement, and a reasonable

description of the portion of the

surface coal mining and reclamation

Operation to which the notice or order

applies. Each notice or order issued

under this section shall be given

promptly to the permittee or his agent

by the Secretary or his authorized

representative who issues such notice or

order, and all such notices and orders

shall be in writing and shall be signed

by such authorized representatives. Any

notice or order issued pursuant to this

section may be modified, vacated, or

terminated by the Secretary or his

authorized representative. A copy of

any such order or notice shall be sent

to the State regulatory authority in the

State in which the violation occurs:

Provided, That any notice or _ order

issued pursuant to this section which

requires cessation of mining by the

operator shall expire within thirty days

of actual notice the operator unless a

public hearing is held at the site or

within such reasonable proximity to the

site that any viewings of the site can

be conducted during the course of the

public hearing.

(b) eee

(c) eee

-6§3-

CERTIFICATE

I, David A. Burkhalter, II, a

member of the Bar of the Court, pursuant

to Supreme Court Rule 19 and Rule 28,

hereby certify that I have served Robert

Ss. More, Special Assistant U.S.

Attorney, Department of the Interior, P.

O. Box 15006, Knoxville, TN 37901, and

the Solicitor General, Department of

Justice, Washington, D.C., 20530, with

three (3) true and exact copies of the

foregoing Petition and filed with the

Court forty (40) true and exact copies,

properly addressed to the Clerk of the

Court, by depositing same in a United

States Post office, first-class postage

pre-paid, or with the Knoxville terminal

of Federal Express, a corporation

offering overnight delivery of documents

and other articles, this the adn & day of

July, 1984.

bacon bat

avid A. Burkhalter,

STATE OF TENNESSEE

COUNTY OF KNOX

SUBSCRIBED and sworn to before

the au & day of

me this

_——auly