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May 28, 1980

RAY MARSHALL, Secretary of Labor, United States Department of Labor

The opinion of the court was delivered by: HUYETT


I. Findings of Fact

 1. The stipulation of uncontested facts, a copy of which is attached hereto as Appendix A, is adopted and incorporated herein as if set out in full.

 2. Defendants have been given an opportunity for a hearing in regard to each citation and order issued.

 3. Defendants' refusal to permit an authorized representative of the Secretary of Labor to enter upon and to conduct an inspection of their mine constitutes a continuing threat to the health and safety of miners and interferes with, hinders, and delays the Secretary and his authorized representative in carrying out the provisions of the Act.

 4. Defendants' failure to comply with the citations and orders of withdrawal listed in the stipulation constitutes a continuing hazard to the health and safety of miners and other persons in or about the mine.

 II. Discussion

 This action was instituted by the Secretary of Labor pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq., to enjoin defendants from operating their mine in violation of withdrawal orders issued pursuant to the Act and from denying entry to authorized representatives of the Secretary. The issue was tried to the Court on February 22, 1980. The vast majority of relevant facts are uncontested. See Finding of Fact No. 1. Although defendants concede that they denied entry to Federal Coal Mine Inspector Scheib and that they have continued to extract coal from their mine following the issuance of orders of withdrawal, they contend that for a variety of reasons the Secretary is not entitled to the permanent injunction he seeks. The majority of defendants' arguments, however, have clearly been determined to be without merit in this Circuit. A federal mine inspector is not required to procure a search warrant before conducting an inspection under the Act. Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 665, 62 L. Ed. 2d 644 (1980); Marshall v. Donofrio, 465 F. Supp. 838 (E.D.Pa.1978), aff'd, 605 F.2d 1196 (3d Cir. 1979), cert. denied, 444 U.S. 1102, 100 S. Ct. 1067, 62 L. Ed. 2d 787 (1980). The provisions of the Act apply to defendants, even though only owner-operators work the mine. Marshall v. Kraynak, 604 F.2d 231 (3d Cir. 1979), cert. denied, 444 U.S. 1014, 100 S. Ct. 664, 62 L. Ed. 2d 643 (1980); Marshall v. Donofrio, supra.

 Defendants' argument that the injunction the Secretary seeks will further no public interest is equally without merit. In its findings and declaration of purpose, Congress explicitly recognized the importance of insuring safety in the mining industry. See 30 U.S.C. § 801. Contrary to defendants' contentions, the Congressional findings and purposes that motivated the Act are applicable even in a case in which only owner-operators venture into the mine. Because owner-operators who work the mine are "miners" within the meaning of the Act, Marshall v. Kraynak, supra, they fall within the category of persons whose safety Congress desired to protect. Moreover, the disruption of coal production that may result from unsafe conditions in owner-operated mines can burden commerce in the same manner as similar disruptions in other mines. See 30 U.S.C. § 801(f). Although these and similarly situated owner-operators may question the wisdom of the particular regulatory system that Congress has devised to implement its goals, those concerns are political in nature and are properly addressed to Congress, not to the courts.

 The major thrust of defendants' case has focused on the contention that "the penalty provisions of the Act violate the due process clause of the fifth amendment to the United States Constitution." Before addressing the merits of this contention, we must determine if we should in fact consider this issue. The Secretary argues that defendants, who have not pursued any of the review procedures established by the Act, have failed to exhaust their administrative remedies and are therefore not entitled to a ruling on their due process claim at this time. "Exhaustion is grounded in a concept of judicial self-restraint, admonishing courts that constitutional issues should not be decided, and legislation should not be invalidated, if a controversy may be resolved on some other ground." Babcock and Wilcox Co. v. Marshall, 610 F.2d 1128, 1137 (3d Cir. 1979) (footnote omitted). However, exhaustion is not required in all cases. For example, "exhaustion of administrative remedies has not been required when the administrative procedure itself is alleged to violate a constitutional right e.g., when an administrative procedure violates due process by not affording a claimant prior notice and a hearing . . . ." Id. at 1138 (footnote omitted). Consistent with this approach, the court in Southern Ohio Coal Co. v. Marshall, 464 F. Supp. 450 (S.D.Ohio 1978), required the plaintiff to exhaust administrative remedies on the question whether temporary reinstatement of a foreman allegedly discharged because of concern about mine safety could ever be constitutional, but declined to require exhaustion on the question whether due process was denied by failing to afford a hearing prior to ordering temporary reinstatement. Our decision whether exhaustion is required in this case is complicated by the broad-brushed and somewhat imprecise nature of defendant's attack upon the "penalty provisions." However, as we understand defendants' position, we believe that exhaustion is not required. We shall therefore consider the merits of defendants' contentions.

 Defendants rely primarily upon Virginia Surface Mining and Reclamation Ass'n v. Andrus, 483 F. Supp. 425 (W.D.Va.1980), in which the court held, inter alia, that certain provisions of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328, violate procedural due process. In this case, defendants argue that the Act violates procedural due process by permitting the summary issuance of citations, "proposed fines," and orders of withdrawal without a prior hearing. Defendants characterize these issues as "solely legal." Respondents' reply to petitioner's brief at 2.

 Defendants correctly point out that the Act permits the issuance of citations and withdrawal orders without a prior hearing. See 30 U.S.C. §§ 814(a) & (b). However, elaborate review procedures are also provided. See 30 U.S.C. §§ 815(d), 816. The Federal Mine Safety and Health Review Commission ("the Commission") has interpreted the Act to permit an operator to contest a citation immediately upon its issuance. Energy Fuels Corp., 1 MSHC 2013, 2019 (1979). He may also, of course, contest, inter alia, an order of withdrawal issued under 30 U.S.C. § 814, a proposed assessment of a penalty, or the reasonableness of the length of abatement time fixed in a citation. 30 U.S.C. § 815(d). If the operator contests, the Commission must afford an opportunity for a hearing in accordance with 5 U.S.C. § 554. The applicable regulations require that Judges give due regard to the convenience and necessity of the parties in determining hearing sites. 29 C.F.R. § 2700.51 (1979). A party may request expedited proceedings. Id. § 2700.52. In addition, an operator may request temporary relief from any order issued under 30 U.S.C. § 814. 30 U.S.C. § 815(b)(2). Moreover, an operator aggrieved by an order of the Commission may obtain review in a United States court of appeals. 30 U.S.C. § 816. These review procedures have been described as "the safeguard provided by Congress against arbitrary action or abuse of discretion by administrators in carrying out their responsibilities under federal statutes." Bernitsky v. United States, 620 F.2d 948, 956 (3d Cir. 1980).

 These procedures clearly provide operators with a full opportunity to be heard. The sole remaining question is whether due process is offended by providing for these elaborate hearings only after the Secretary has acted. "Due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). "In a wide variety of situations, it has long been recognized that where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing." R. A. Holman & Co. v. SEC, 112 U.S. App. D.C. 43, 299 F.2d 127, 131 (D.C. Cir.), cert. denied, 370 U.S. 911, 82 S. Ct. 1257, 8 L. Ed. 2d 404 (1962). An order requiring the cessation of mining activities clearly implicates important private interests. However, in this case significant public concerns are also present. As discussed above, Congress has manifested its deep concern for the safety of miners. In our balancing of competing interests, this determination is entitled to great weight. Although serious economic consequences can follow a withdrawal order, the situation faced by the operators is far different from that of the welfare recipient in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), who faced loss of the last line of support. Moreover, the governmental interest in this case is more pressing than the desire to protect public funds. Under the circumstances, we hold that due process is not offended by not granting defendants a hearing prior to the issuance of citations and orders. This decision, we believe, is consistent with prior caselaw. See, e.g., Sink v. Morton, 529 F.2d 601 (4th Cir. 1975); Lucas v. Morton, 358 F. Supp. 900 (W.D.Pa.1973); cf. In re Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C.1978). To the extent that Virginia Surface Mining and Reclamation Ass'n v. Andrus, supra, which was decided under a similar but distinct statutory framework, suggests the contrary result, we decline to follow that case. First of all, we believe that in the case of this Act, the balancing of competing private and public interests compels a different result. Secondly, we note that the regulations concerning coal mine health and safety, see 30 C.F.R. Chap. I, Subchapter 0 (1979), are quite detailed. Their specificity appears reasonably calculated to protect against erroneous deprivations. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).

 For all of the foregoing reasons, we find the defendants' due process challenge to the Act to be without merit. It is conceivable, of course, that an operator may be able to show that the procedural protections of the Act were applied in a manner violative of his due process rights. These defendants have made no such showing, however. First of all, they have chosen not to pursue their administrative remedies; therefore, there is no basis for finding that the procedural protections were not applied in a fair manner. Nor have defendants produced any testimony or affidavits that suggest any reason for believing that the procedures would not have been properly applied in their case. Although defendants contend, without supporting affidavits, that they may be required to attend hearings several hundred miles from their mines in order to avail themselves of the protection of the Act, this contention is refuted by an uncontradicted affidavit of James A. Broderick, Chief Administrative Law Judge of the Federal Mine Safety and Health Review Commission. Exhibit D to petitioner's brief.

 III. Conclusions of Law

 1. This court has jurisdiction over the parties and the subject matter of this action.

 3. Owner-operated mines that have no non-owner employees are subject to the provisions of the Act.

 4. A search warrant is not required for an inspection conducted pursuant to the Act.

 5. All citations and orders issued to defendants were duly issued pursuant to ...

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