# Petition for Writ of Certiorari — Moore v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3274%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1159

## Text

- wv S
Ps A on 7 49 — Office - Supreme Court, US

FILED
No. O¢T Na, 1994

AEE 2 NDE -_
IN THE SUPREME COURT OF THE UNITED © ~'*vAS

=p

STATES —

October Term, 1984

CLARENCE MOORE
ve

UNITED STATES OF AMERICA,

CLARENCE MOORE,
Petitioner

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

David A. Burkhalter, II
Counsel of Record

901 Bearden Drive

P. O. Box 11841
Knoxville, TN 37939-1841
(615) 584-0241

October 19, 1984

ane Hs

QUESTIONS FRESENTED

l. Whether the United States is
barred from collecting the civil
penalties sought, because it
arbitrarily, capriciously, unreasonably,
erroneously and without authority,
failed to act in conformity with the
procedure provided by law in assessing
such penalties, with prejudice to
Petitioner.

2. Whether the lower courts erred in
granting summary judgment to the United
States when the record, taken in light
most favorable to Petitioner, showed he
was not involved in the relevant mining
Operations and by law was not subject to

the Surface Mining Control and
Reclamation Act.

3. Whether the lower courts erred in
ruling that Petitioner was not entitled
to judicial review under the
Administrative Procedure Act.

4. Whether 30 USC Sec. 1268(c) is
unconstitutional as applied or on its
face so that judicial review cannot be
foreclosd despite a failure to prepay a
penalty.

i, Se

PARTIES
Petitioner: Clarence Moore
Respondent: United States of America

f= ler a
yo ee
aah ls Meal “7

ee a ee

=

TABLE OF CONTENTS

Page
Question Presented. ....+..es hk
vl . ORE EIS Sg ee ee ee eRe

Table of Statutes and
ee a

Reference to Official and
Unofficial Reports of Lower
Ut I le ae

Statement of Grounds on which
Jurisdiction Invoked, , ...., ,10

Statement of the Case

Es Nature of the Case,
Course of Proceedings. .... .12
II. Statement of the Facts. ... 1/7

Argument:

I. The United States is barred from
collecting the civil penalties sought,
because it arbitrarily, capriciously,
unreasonably, erroneously and without
authority, grossly failed to act in
conformity with the procedure provided
by law in assessing such penalties with
prejudice to Petitioner... .....21

II. The lower courts erred in granting
Summary judgment to the United Staes
when the record, taken in the light most
favorable to Petitioner, showed he was
not involved in the relevant mining
Operations and by law was not subject to
the Surface Mining Control and
Reclamation Bet. . .. i 1 tte

a

III. The lower courts erred in ruling
that Petitioner was not entitled to
judicial review under the Administrative
Procedure Act.

IV. 30 USC Sec. 1268 (c) is
unconstitutional as applied and on its
face and judicial review cannot be
foreclosed despite a failure to prepay a
penalty. .

Conclusion,

Appendix

Certificate.

~34

~45
>)

56
91

TABLE OF STATUTES AND OTHER AUTHORITIES

STATUTES Page
5 uSC Sec. 101 36
5 uSC Sec. 551 36
5S uSC Sec. 702 36,37,40,43
5 uSC Sec. 706 34,44
28 USC Sec. 1291 10
28 USC Sec. 1345 40
28 USC Sec. 1655 40
28 USC Sec. 2201 39
30 USC Sec. 802(e) 32
30 USC Sec. 1201 et seq. Passim
30 USC Sec. 1202 47
30 USC Sec. 1268 (b) 13
30 USC Sec. 1268(c) Passim
30 USC Sec. 1268 (d) 13
30 USC Sec. 1270 40
30 USC Sec. 1270(c) 40,41
30 USC Sec. 1271(a) (2) 48
30 USC Sec. 1276(a) (2) 40
42 USC Sec. 2000e et seq. 31
Rules

Rule 4(a) (4), Federal Rules of Appellate
Procedure 15,16

Rule 42, Federal Rules of Civil
Procedure 16

Rule 56, Federal Rules of Civil
Procedure 32

Regulations

—ee ee ee

Page
30 CFR 723.2 7

TR AOR,

we

TABLE OF CASES

Abbott Laboratories v. Gardner, 387 U.S.

Page

i ee, , Cl. Ct«w:C«SSC87 , 38, 38, 43

B & M Coal Corp. v. Office of Surface
Mining Reclamation and Enforcement, 699

F.2d 381 (7th Cir. 1983). ia
Blackhawk Mining Co. v. United States
Department of Interior, 711 F. 2d 753
(6th Cir. 1983)., .22
Eskra v. Morton, 380 F.Supp. 205 (W.D.
Wis. 1974) rev'd on other grounds, 524
F.2d 9 (7th Cir. 1975).. a. + ae
Fuentes v. Shevin, 407 U.S. 67 (1972).. .51l
Graham v. Office of Surface Mining
Reclamation & Enforcement, 722 F.2d 1106
(3rd Cir. 1983). . iy *
Hodel v. Virginia Surface Mining &
Reclamation Association, 452 U.S. 264
it. 5 5 . « .25,28,52,53
John Walters Coal Co. v. Watt, 553
F.Supp. 838 (E.D. Ky. 1982).. ae
Johnson v. Robison, 415 U.S. 361 (1974). 46
Lindsey v. Normet, 405 U.S. 56 (1972).. .47
Matthews v. Eldridge, 424 U.S. 319
(1976). . ; 45
New Jersey Life Insurance Co. v. Getz,

622 F.2d 198 (6th Cir. 1980).. 33

“iia aia
ae

Page
Standard Oil Co. v. Federal Energy

Administration, 440 F.Supp. 328 (N.D.
ee. eat foe ge es sy ae

State of Georgia, Departuwent of Human
Resources v. Califano, 446 F.S upp. 404
ke a ee ee ee

Save our Cumberland Mountains, Inc. v.
Watt, 550 F.Supp. 979 (D.C. 1982)... 23,24,54

United States v. Crooksville Coal Co.,
560 F.Supp. 141 (S.D. Ohio 1982). .... .22

United States v. Dix Fork Coal Co., 692
Wome Gen teem Gabe ZUOETS « + «© 2 0 es wea

United States v. Hill, 553 F.Supp. 810
ae ee

United States v. Log Mountain Mining
Co., 550 F.Supp. 811 (E.D. Tenn. 1982). . .22

United States v. Thompson Brothers Coal
Co., Inc., "32 F.Supp . 979 (W.D. Pa.

1982). 22
Wong Yang Sung v. McGrath, 339 U.S. 35
PE aOR ere aoe ee oto a. Se ah ae

oe

Pleegl laeniin ia)

lea

. Seno!
ae ea
7

Ad

ak pe
9,
a
.

*)

ee

a ree’

|

REFERENCE 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 orders and
memoranda entered October 29, 1982 and

December 13, 1982, are reported at

F.Supp. | (E.D. Tenn. 1982). The
order of the Court of Appeals entered

July 24, 1984, is unpublished.

- - . EE NER ee Ae. =

-10-

STATEMENT OF GROUNDS ON WHICH

JURISDICTION INVOKED

The Petitioner (and
co-defendant below, Julian H. Crews, who
is not a party to this .Petition) was
found liable for a civil penalty in the
amount of $45,000.00 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 seq.,
Petitioner appealed to the United States
Court of Appeals for the Sixth Circuit
pursuant to 28 U.S.C. Sec. 1291.

The Court of Appeals affirmed
the district court's ruling by a final
order filed on July 24, 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

drei ee
y

|

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).

-12—-

STATEMENT OF THE CASE

I. NATURE OF THE CASE, COURSE OF

PROCEEDINGS

(All references to the record are to the
Joint Appendix filed by the parties in
the Court of Appeals)

The Petition of Clarence Moore
arises from a final judgment on December
13, 1982, by the United States District
Court for the Eastern District of
Tennessee, Northern Division. Summary
judgment was entered in favor of the
United States on ‘iceman 29, 1982, and a
subsequent order was entered on December
13, 1982, disposing of a motion filed by
Petitioner to amend or to reconsider the
initial judgment.

The Complaint was brought by
the United States on September 2, 1982,

for the collection of civil penalties

at De

allegedly owed by Petitioner and Julian
H. Crews d/b/a D.C. Coal Company,
pursuant to 30 USC Sec. 1268(d) of the
Surface Mining Control and Reclamation

Act of 1977, 30 USC Sec. 1201 et seg.

(JA p. 3). Julian H. Crews and PD. C.
Coal Company are not parties to this
Petition, but will be referred to from
time to time when relevant and (for
purposes of clarity. The civil
penalties were allegedly owed in
accordance with 30 USC Sec. 1268(b) and
(d). (JA p. 3). The United States
sought penalties in the amount of Forty
Five Thousand Dollars ($45,000.00). (JA
p. 4).

An Answer and Counter-Claim
was filed on October 4, 1982. On
October 12, 1982, Petitioner filed a
motion for judgment on the pleadings or

in the alternative for summary judgment,

i
|

ak
(¢

ty on
aw Os

eee:

=

' eae

-14-

with supporting brief. An Amendment to
Answer was filed on October 14, 1982.

The United States filed a
reply to the counter-claim and a
cross-motion for summary judgment, with
supporting brief, on October 19, 1982.
A motions hearing was held on October
29, 1982, on the cross motions of the
parties.

Honorable Robert L. Taylor,
judge, presiding, entered an Order with
Memorandum on the day of the hearing
granting summary judgment in favor of
the United States in the amount of Forty
Five Thousand Dollars ($45,000.00).
Subsequently, on November 1, 1982,
Petitioner filed a response to the
United States’ cross-motion for summary
judgment, with supporting memorandum and

affidavit.

On November 8, 1982,

WN IR A a MR ERAN ate

atta

Petitioner filed a motion to amend the
judgment or in the alternative to
reconsider, with supporting memorandum.
An initial Notice of Appeal was filed on
November 26, 1983, but on November 29,
1982, the United States responded to the
motion to amend or reconsider.

The District Court on December
13, 1982, entered an Order granting the
motion to reconsider to the extent set
forth in a supporting memorandum. The
action of the District Court on December
13, 1982, necessitated the filing of a
new Notice of Appeal under Rule 4(a) (4)
of the Federal Rules of Appellate
Procedure. The new Notice of Appeal was
filed on December 30, 1982, and docketed
in the United States Court of Appeals
for the Sixth Circuit as Case No.
83-5014 on January 13, 1983. The

initial appeal of this case, docketed as

ities

. —

se Bical omy: tthe AREA CLA ale PS Nl

Pode a icaiald Seah sii

Nye nwer dahl taie Jew

nite

Case No. 82-5742, was dismissed on
January 11, 1983, by an order entered
upon consideration of the stipulation of
the parties to voluntarily dismiss the
case pursuant to Rule 42 and _ Rule
4(a) (4) of the Federal Rules of

Appellate Procedure.

a
4
5
j
4
;
‘
j
:

mi

II. STATEMENT OF THE FACTS

The relevant facts are
contained in the Complaint, Answer and
Affidavits filed in this cause in the
District Court and as revealed in the
transcript of proceedings held October
29, 1982, on the respective motions of
the parties.

The Complaint alleged that
both Petitioner and Crews operated a
surface coal mining and reclamation
operation in Campbell County on which
certain violations occurred giving rise
to the civil penalties sought. The
United States brought the action on
penalties assessed pursuant to Cessation
Order (CO) 200228, for which a proposed
assessment of civil penalty was issued

on April 2, 1982. (JA p. 3). The

proposed assessment was issued nearly

three (3) years from July 2, 1979, the

PASI.

aed

rs ee se, AG

witie

issue date of CO 200228. (JA p. 20).

A final order was issued on
June 1, 1982, requiring payment of the
civil penalty in the amount of
$45,000.00 (JA p. 20). The United
States claimed that the civil penalty
had not been paid and had not _ been
placed in escrow and Moore and Crews
had, therefore, waived all legal rights
to contest the existence of the alleged
violations and the amount of the penalty
pursuant to 30 USC Sec. 1268(c).
(Complaint, p. 1).

Fetitioner did not deny a
failure to pay the amount of the
prbposed assessment into escrow. (JA p.
20). However, Petitioner averred that
at no time during which any available
administrative remedy was open to him
could he have afforded to either pay the

penalty or place the amount in escrow

a ra

A tat
- =
s~ r
=" -~
ta
= bal

alu

while seeking administrative’ relief.
(JA p. 20 and p. 72).

CO 200228 was issued on July
2, 1979, for failure to abate violations
cited in Notice of Violation (NOV)
79-II-l1-15 (originally issued
erroneously as NOV 79-II-11-5). (JA p.
24 and p. 27). NOV 79-II-11-15 was
issued on May 11, 1979, on an area
identified only as a surface mine in
Campbell County, Tennessee. (JA p. 28).
The following violations were cited: 1)
failure to pass surface draineage
through a sedimentation pond, 2) failure
to post blasting signs at mine
entrances, 3) failure to remove all
topsoil to be salvaged before mining
Operations, and 4) failure to construct
and maintain access and haul roads,
Culverts, ditches and right of ways to

prevent addition of suspended solids to

o®

a ee ee ee ee ee

-20-

stream flow. (JA p. 30 and p. 31).

Petitioner denied any
participation in the minesite or mining
operations on which NOV 79-II-11-15 and
CO 200228 were issued. The only
connection between Petitioner and the
minesite in question was equipment he
had leased to Crews on April 19, 1979.
(JA p. 72 and p. 74).

The failure of the United
States to abide by the statutory
requirements and regulations resulted in
prejudice to the rights of Petitioner.
(JA p. 72).

afita

ARGUMENT

I. THE UNITED STATES IS BARRED FROM
COLLECTING THE CIVIL PENALTIES SOUGHT,
BECAUSE IT ARBITRARILY, CAPRICIOUSLY,
UNREASONABLY, ERRONEOUSLY AND WITHOUT
AUTHORITY GROSSLY FAILED TO ACT IN
CONFORMITY WITH THE PROCEDURE PROVIDED

BY LAW IN ASSESSING SUCH PENALTIES, WITH

PREJUDICE TO PETITIONER.

Petitioner respectfully
| contends that he has the right, through
judicial review, to show that he was
| prejudiced by the government's gross
failure to comply with 30 USC Sec.

1268(c), and the United States is barred
from collecting the civil penalty of
$45,000.00.

The decisions which thusfar

have upheld the constitutionality of 30

\
‘
|
'

|

=

.
|
|
:
|

~22-

USC Sec. 1268(c) are not controlling in
this case, The following cases, on
facts vastly different from the instant
case, have upheld the constitutionality

of 30 GC ser. 1268 (c): Graham v.

Office of Surface Mining Reclamation &

Enforcement, 722 F.2d 1106 (3rd Cir.

1983); B & M Coal Corp. v. Office of

Surface Mining Reclamation &

Enforcement, 699 F.2d 381 (7th Cir.

1983); Blackhawk Mining Co. v. United

States Department of the Interior, 711

F.2d 753 (6th Cir. 1983); United States

v. Log Mountain Mining Co., 550 F.Supp.

811 (E.D. Tenn. 1982); John Walters Coal

Co. v. Watt, 553 F.Supp. 838 (E.D. Ky.

1982), United States v. Crooksville Coal

Co., 560 F.Supp. 141 (S.D. Ohio 1982).
None of the cases cited above
involved a difference of three years

from the issue date of a violation to

i
j
'
i
4
:
j
:
(
|
i

att.

the issuance of a proposed notice of
assessment. In the instant case, CO
200228 was issued on July 2, 1979, but
the proposed notice of assessment was
not issued until April 2, 1982. (JA p.
20 and p. 3).

The Department of the Interior
and the Secretary have’ taken the
position that that portion of 30 USC
Sec. 1268(c) which requires that an
Operator be informed of a proposed
assessment within 30 days of the
issuance of an NOV or CO may bar
collection of any penalty assessed in
violation of the 30-day requirement.

Save Our Cumberland Mountains, Inc. v.

Watt, 550 F.Supp. 979, 982 (D.C. 1982)
rev'd 725 F.2d 143, judgment and opinion
vacated on rehearing en banc (D.C. Cir.
April 2, 1984). The Secretary also has

taken the position that a showing of

Fo

actual prejudice by an operator will bar
imposition of a penalty assessed in
violation of the 30-day requirement of
30 USC Sec. 1268(c). Id. at n.4. In
either case, collection of the
staggeringly large penalties the United
States has imposed against Petitioner
should be barred.

Significantly, the word
"shall" when used in the penalty and
enforcement provisions of the Act, was

construed by the Court in Save Our

Cumberland Mountains, supra, as imposing

a mandatory duty on the government to
act in accordance with the provision of
the statute to which it applies. Id. at
982. 30 USC Sec. 1268(c) in pertinent
part provides:
"Upon the
issuance of a notice or
order charging that a
violation of the Act has

occurred the Secretary
shall inform the operator

ET

o2G«

within thirty days of the
proposed amount of said
penalty."

The requirement of notification within
30 days is unequivocal and cannot be
presumed to be a gratuitous addition to
the statutory provisions. Congress
could have easily provided that the
Secretary inform an operator within a
"reasonable time" of the proposed amount
of a penalty; instead Congress provided

that the Secretary "shall inform the

operator within 30 days"of such amount.

The intent of Congress is clear and
unambiguous and should not be judicially

abrogated. Hodel v. Virginia Surface

Mining & Reclamation Assoc. 452 US 264,

304, 69 L.Ed. 2d 1, 33, 101 S.Ct. 2352,
2374 (1981).

The government previously has
argued that Petitioner actually

benefitted from the three-year delay in

atG a 4 PI sos; "eel aan

; te 2: tbe ger Reese
x eet! Meee te) 8 vip aE :
so! [age Yok ae ae x

) ms 4 7
- —_ at 6 , “* ~ a] ‘
- aol *
i Pe , Pre 1 ive
: 4
: ii a 6 im C“
* .
4
@
’
a %
; - —
;
; i
.
‘
Py
: ‘
is t
%
= {
7 5 -
- ”
ts os hj
‘= ~ } '
oe, ; :
*
‘
I > 7) - - rc > Paley:

oF age:

: : e Sree

, - PL ead

’ a Rae oor ee

ae Pha? eke ue

4 oe ° ote: ee Ey hod
“Tt ee tks akon ~ =e re

e¢ ip “Marts
re F hee 3

1fie Latte ; ele
ean ease

os

qn elk ees ee
fag fej ae

SP: SEFC
Goatees:

. vie SB wotie =a oan =i
cTiAse tees tor Sore ie
aed! SOW eae Seat Aas ra

ja?

-86-

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
(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
authorized 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

esi tantaee ge
aia | Ss iaonentom. bg
VERO Paulie. Oey ee ee eo “aviaagua 2

ve ent ALS cot se tee, wilh eee

te es 9 gees a oe,
(es rt wee 07 Meme ee Fae ett # eyned, Linge
v, reich a | _e 4) = ; ;
. i ) 4 . a al fo
ae fy3 a" ke LN einai ma re Vet eke ii Me se te Ks me a ey fe
: ; A : ‘ ; Sie we walle hg:
‘ : = ; j i
oot ‘ *e I : as 1“ c
t 7 ? et Pe ae
, : al ry ? = a! Sia? ad Jz i " i “} * ' : pv
Epa : - “ ae it / ole. oa 7 ia | al a a i it ~¥ AF
pus ; = es ae oT 5 er ee 4 tia me
Eas $25 rs ae) be mil aoe Ere
> 7
- - 2) a)
‘ ; aa] 7 4 4 b>
‘ i)
if”
: fl 4 4
.
* a
’ at.
* ate
s A ‘ t
al
ao ‘ a
= ‘, ; a, s
ig
4. ‘ t Pili P
‘ > 4 - “
&
mA" ‘ Sat > -
‘ e 4 I -¢ 7 or \ soe @
- s mi > pe SS Ae ee
\ ae 2 hy aged SRA ee
«! bees f peer 2 ores
A - = 7
a 1 ° 7 “+ > Ss Mo i - -) ~ ™"
4 { ™ - . n
s ? ’ > I I efit = = Ly. =
F. = ~— hella = ——— en EE EE EE —

' gy ia iorssiie:. > 3678350, Oo, OF Seeai ves

os a ES Se ks of ee ee ee eS eee CR oe ee ee

Oy

oth. vie
ea eh rae
~ :

atta

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
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.

-88-

‘ ‘ ij - *
hee ae. oe eel Artis en (ne OFS ures ‘ ‘ana
¢ . — — eer PR ao ly BID ep i iy Pom 0 haa tinal or “
’ : : y ; _ a eS aie ~
a ye 7 7
.
i
tel
i
’
a ; bg ‘ t
‘AM ; "
: &
4 ~ 3
r
,
. - d
‘
J , ie
,
a A
> > . ¢ c
‘ t .
: 7
5
¥., s ina
om ; 4 Mew me ey oe oe,

-89-

30 USC Sec. 1276. Judicial Review.
(a) (1) ...

(2) Any order or decision issued by the
Secretary in a civil penalty proceedings
Or any other proceeding required to be
conducted pursuant to 5 U.S.C. Sec.
554(1970) shall be suejct to judicial
review on or before 30 days from the
date of such order or decision in
accordance with subsection (b) of this
section in the United States District
Court for the district in which the
surface coal mining operation is
located. In the case of a proceeding to
review an order or decision issued by
the Secretary under the penalty section
of this Act, the court shall have
jurisdiction to enter an order requiring
payment of any civil penalty assessment
enforced by its judgment. This
availability of review established in
this subsection shall not be construed
to limit the operations of rights
established in Section 520.

(b) Findings of Secretary as
conclusive. The court shall hear such
petition or complaint solely on _ the
record made before the Secretary.
Except as provided in subsection (a),
the findings of the Secretary if
supported by substantial evidence on the
record considered as a whole, shall be
conclusive. The court may affirm,
vacate, or modify any order or decision
Or may remand the proceedings to the
Secretary fcr such further action as it
may direct.

[G) ase

(da)
(e)

-90-

sti.

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
Federal Express, a corporation offering
overnight delivery of documents 9 and

other articles, this the 24; day of
October, 1984.

STATE OF TENNESSEE
COUNTY OF KNOX

Pr SUBSCRIBED ang sworn to before
mé@ - this the Sy, day of
, i AT SLOP , 984.

PPS LL
: Yhllis, A wd,

c a en
My Comm ibn Expires: af> 4/4

, A.
~
aS
etle
ix
nt “S
S iN
i: )
\
i,
¥

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3274%3A1. Public record. Not legal advice.