Monterey Coal Co. v. Federal Mine Safety & Health Review Commission

Fourth Circuit

Monterey Coal Co. v. Federal Mine Safety & Health Review Commission

635 F.2d 291, 1980 CCH OSHD 24,938

CourtCourt of Appeals for the Fourth Circuit

DecidedNovember 17, 1980

DocketNo. 79-1827

StatusPublished

Cited by1 cases

This text of 635 F.2d 291 (Monterey Coal Co. v. Federal Mine Safety & Health Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Monterey Coal Co. v. Federal Mine Safety & Health Review Commission, 635 F.2d 291, 1980 CCH OSHD 24,938 (4th Cir. 1980).

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Opinion

BUTZNER, Circuit Judge:

This petition for review is from an order of the Federal Mine Safety and Health Review Commission reversing an administrative law judge’s decision that the Mine Safety and Health Administration unjusti-fiedly cited Monterey Coal Company, a mine owner, instead of Frontier-Kemper Constructors, an independent contractor, for safety violations at a mine construction site. The Commission remanded the case to the administrative law judge for further proceedings to determine whether the alleged violations occurred.

Monterey petitioned under § 106(a)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 816(a)(1) (1980 Supp.), for review of the Commission’s decision. The Secretary of Labor moved to dismiss the petition on the ground that a remand order is not a reviewable final order. We conclude that the petition for review is premature and grant the motion to dismiss.

The Act grants “[a]ny person adversely affected or aggrieved by an order of the Commission” review in a court of appeals. 30 U.S.C. § 816(a)(1) (1980 Supp.). A related provision, § 816(b), states: “The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals ... . ” The Senate report explains: “Persons adversely affected by the Commission’s final order may obtain a review of such order in any appropriate U. S. court of appeals. The Secretary may also obtain review or enforcement of any final order to [sic] the Commission in any appropriate U. S. court of appeals.” S.Rep.No.95-181, 95th Cong., 1st Sess., at 13 (1977), U.S.Code Cong. & Admin.News 1977, pp. 3401, 3413, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of The Federal Mine Safety and Health Act of 1977, at 601. The statute, amplified by this legislative history, demonstrates congressional intent that only final Commission orders should be reviewed. Our conclusion is consistent with orders of two other courts of appeals that have dis[293]*293missed as premature petitions for review of the Commission’s remand orders.¹

We have previously decided that an order of remand in an enforcement proceeding is not a reviewable final order. See Fieldcrest Mills, Inc. v. Occupational Safety and Health Review Commission, 545 F.2d 1384 (4th Cir. 1976).² Here, as in Fieldcrest, Monterey has not exhausted its administrative remedies. Monterey has not yet been found liable for any violation of the Act. During proceedings on remand, Monterey will have the opportunity to contest the existence of the alleged violations. The decision of the Commission that Monterey is a proper respondent is a preliminary step in the final disposition of this case on its merits.

Bituminous Coal Operators’ Association v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977), does not require a contrary result. That case, an appeal from a declaratory judgment of a district court, upheld the Secretary’s authority, under an earlier version of the Act, to cite coal mine operators and construction companies for violations of the Act. Jurisdiction was not predicated on 30 U.S.C. § 816(a)(1). Instead, the jurisdictional question involved the propriety of pre-enforcement review in accordance with the criteria explained in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

The petition is dismissed without prejudice to Monterey’s right to seek review of the issue raised if it is aggrieved by the Commission’s final order.

DISMISSED.

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BUTZNER, Circuit Judge:

This petition for review is from an order of the Federal Mine Safety and Health Review Commission reversing an administrative law judge’s decision that the Mine Safety and Health Administration unjusti-fiedly cited Monterey Coal Company, a mine owner, instead of Frontier-Kemper Constructors, an independent contractor, for safety violations at a mine construction site. The Commission remanded the case to the administrative law judge for further proceedings to determine whether the alleged violations occurred.

Monterey petitioned under § 106(a)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 816(a)(1) (1980 Supp.), for review of the Commission’s decision. The Secretary of Labor moved to dismiss the petition on the ground that a remand order is not a reviewable final order. We conclude that the petition for review is premature and grant the motion to dismiss.

The Act grants “[a]ny person adversely affected or aggrieved by an order of the Commission” review in a court of appeals. 30 U.S.C. § 816(a)(1) (1980 Supp.). A related provision, § 816(b), states: “The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals ... . ” The Senate report explains: “Persons adversely affected by the Commission’s final order may obtain a review of such order in any appropriate U. S. court of appeals. The Secretary may also obtain review or enforcement of any final order to [sic] the Commission in any appropriate U. S. court of appeals.” S.Rep.No.95-181, 95th Cong., 1st Sess., at 13 (1977), U.S.Code Cong. & Admin.News 1977, pp. 3401, 3413, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of The Federal Mine Safety and Health Act of 1977, at 601. The statute, amplified by this legislative history, demonstrates congressional intent that only final Commission orders should be reviewed. Our conclusion is consistent with orders of two other courts of appeals that have dis[293]*293missed as premature petitions for review of the Commission’s remand orders.¹

We have previously decided that an order of remand in an enforcement proceeding is not a reviewable final order. See Fieldcrest Mills, Inc. v. Occupational Safety and Health Review Commission, 545 F.2d 1384 (4th Cir. 1976).² Here, as in Fieldcrest, Monterey has not exhausted its administrative remedies. Monterey has not yet been found liable for any violation of the Act. During proceedings on remand, Monterey will have the opportunity to contest the existence of the alleged violations. The decision of the Commission that Monterey is a proper respondent is a preliminary step in the final disposition of this case on its merits.

Bituminous Coal Operators’ Association v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977), does not require a contrary result. That case, an appeal from a declaratory judgment of a district court, upheld the Secretary’s authority, under an earlier version of the Act, to cite coal mine operators and construction companies for violations of the Act. Jurisdiction was not predicated on 30 U.S.C. § 816(a)(1). Instead, the jurisdictional question involved the propriety of pre-enforcement review in accordance with the criteria explained in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

The petition is dismissed without prejudice to Monterey’s right to seek review of the issue raised if it is aggrieved by the Commission’s final order.

DISMISSED.

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635 F.2d 291, 1980 CCH OSHD 24,938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monterey-coal-co-v-federal-mine-safety-health-review-commission-ca4-1980.

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