Section 109(a)(1) of the Federal Coal Mine Health and Safety Act
of 1969 requires the Secretary of the Interior, in determining the
amount of the civil penalty against a coal mine operator for
violations of the Act, to consider the history of previous
violations, the appropriateness of the penalty to the size of the
business, whether the operator was negligent, the effect on his
ability to continue in business, the gravity of the violation, and
the operator's good faith in attempting to comply after
notification of a violation. Section 109(a)(3) requires that the
penalty be assessed only after the operator
"has been given an opportunity for a public hearing and the
Secretary has determined, by decision incorporating his findings of
fact therein, that a violation did occur, and the amount of the
penalty which is warranted."
Respondent mine operators protested assessed penalties but did
not request formal adjudication, and after they refused to pay the
assessments, the Secretary brought suits against them in the
District Court seeking enforcement of the assessments. The District
Court entered judgments in favor of respondents on the ground that
the assessments were not supported by adequate findings of fact,
and was upheld by the Court of Appeals.
Held: Section 109(a)(3) does not compel the Secretary
to support each penalty assessment order with express findings of
fact concerning the violation and the amount of the penalty, absent
a request by the mine operator for an administrative hearing.
National Independent Coal Operators' Assn. v. Kleppe, ante
p.
423 U. S. 388. Pp.
423 U. S.
407-411.
(a) A protest against a penalty assessment, as opposed to a
request for a hearing, does not necessarily trigger an
administrative review, but the amount of the penalty is subject to
de novo review in the district court whether or not a
hearing was held. Pp.
423 U. S.
407-408.
(b) It is not significant that the proposed assessment orders
contained merely
pro forma recitations that the six
factors specified
Page 423 U. S. 404
in § 109(a)(1) had been considered, or that the Secretary's
final orders did not mention such factors, but merely set forth his
finding that a violation did, in fact, occur. Although express
findings are generally required for judicial review of an
administrative determination based on a substantial evidence test,
here the operators can contest the amount of the penalty without a
hearing by refusing to pay it, thus, invoking the right to a
de
novo trial in the district court; moreover, when an operator
is informed as to the details of a violation, § 105's
administrative procedures come into play, and appellate review is
available. Pp.
423 U. S.
408-409.
495 F.2d 38, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which all
Members joined except STEVENS, J., who took no part in the
consideration or decision of the case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case and consolidated it for
argument with No. 73-2066,
National Independent Coal Operators'
Assn. v. Kleppe, ante p.
423 U. S. 388,
decided today, to resolve an apparent conflict between the two
Circuits.
Page 423 U. S. 405
In 1971 and January, 1972, inspectors from the Bureau of Mines
entered and inspected the coal mines owned respectively by Delta
Mining, Inc., G.M.W. Coal Co., Inc., and a partnership of Edward
ears and others known as the M.Y. Coal Co. The inspectors detected
a number of violations of the Federal Coal Mine Health and Safety
Act of 1969, 83 Stat. 742, 30 U.S.C. § 801
et seq., or
regulations and served each mine operator with notices of the
infractions. [
Footnote 1] Each
notice stated that the violations were to be abated by a specified
date. The inspectors returned on that date and furnished the mine
operators with a notice that the violations had been abated. The
local office of the Bureau of Mines sent copies of the notice of
violation and abatement to the Bureau's central office. There an
assessment officer reviewed the notices and sent proposed penalty
assessment orders to the mine operators. The orders contained a
list of the violations, the dates of their occurrence, the
regulations violated, and the amounts of the proposed
penalties.
The proposed order of assessment to Delta was issued on April
11, 1972. It referred to six violations with civil penalties for
each ranging from $30 to $90 for a total of $375. In December,
1971, and January and May, 1972, G.M.W. was issued proposed
assessment orders for violations occurring from May to December,
1971. Ten of the violations were assessed civil penalties from $25
to $100, totaling $525. G.M.W. also received an imminent danger
withdrawal order on November 24, 1971,
Page 423 U. S. 406
identified as a fire hazard from loose coal in exces of three
feet deep and was assessed a fine of $5,000. For violations
occurring in 1971 and 1972, Mears received assessments with fines
for 16 violations ranging from $25 to $100 and a 17th at $200, for
a total of $1,000. It also received a withdrawal order for failure
to abate a violation of the respirable dust concentration standard
with a fine of $1,000.
Each of the operators protested the proposed assessments. Delta
argued, among other things, that it was a newly opened, small mine
and the fines would affect its ability to stay in business. G.M.W.
protested that the loose coal was wet, and therefore not a fire
hazard. Without explanation as to how, if at all, the information
in the protest letters was considered, the assessment officer
reissued the proposed orders. One of G.M.W.'s penalties was reduced
from $100 to $50. The operators were again informed that they had
15 working days from the receipt of the reissued proposed order
"to accept the amended or reissued order, whereupon it shall
become the final assessment order of the Secretary, or to request
formal adjudication with opportunity for hearing."
None of the operators requested formal adjudication.
The mine operators did not pay the assessments. The Secretary
filed complaints against each of them in October and November,
1972, seeking enforcement of the assessments. Attached to the
complaints were the proposed orders of assessment and preprinted
forms reciting that the assessment officer found, in fact, that the
violations had occurred. These forms were dated several months
after the proposed assessment orders. The mine operators each
answered, denying liability.
While the cases were awaiting trial, the United States District
Court for the District of Columbia enjoined the Secretary from
utilizing or enforcing the assessment procedures
Page 423 U. S. 407
of 30 CFR pt. 100 (1972), concluding that § 109(a)(3) of the
Federal Coal Mine Health and Safety Act, 30 U.S.C. § 819(a)(3),
requires the Secretary to prepare a decision incorporating findings
of fact in all penalty assessment determinations, whether or not a
hearing is requested.
National Independent Coal Operators'
Assn. v. Morton, 357 F.
Supp. 509 (1973).
On the basis of that decision, G.M.W. moved for summary
judgment, contending that the Secretary's assessment orders were
unenforceable, since there had been no "decision incorporating . .
. findings of fact." The District Court for the Western District of
Pennsylvania, relying on the National Independent decision, decided
that the penalty assessments sought to be enforced by the Secretary
did not meet the requirements of § 109(a)(3) of the Act, because
they were not supported by adequate findings of fact. The court
entered judgment in favor of the respondent mine operators in all
three cases.
While the cases were pending on appeal, the Court of Appeals for
the District of Columbia Circuit reversed the decisions on which
the trial court here relied.
National Independent Coal
Operators' Assn. v. Morton, 161 U.S.App.D.C. 68, 494 F.2d 987
(1974). The Court of Appeals for the Third Circuit, however,
declined to follow the District of Columbia Circuit decision, and
held that § 109(a)(3) compels the Secretary to support each
assessment order with express findings of fact concerning the
violation and the amount of the penalty, without regard to whether
or not the operator requests a hearing. 495 F.2d 38 (1974). We have
today affirmed
National Independent, which holding governs
this case. Two remaining issues raised by the Third Circuit holding
require discussion.
The Court of Appeals first distinguished the District of
Columbia Circuit holding on the ground that the
"operators'
Page 423 U. S. 408
failure to request a hearing in no way suggests that the
appropriateness of the penalty amount went undisputed. In each
instance, the operators lodged protests. . . ."
495 F.2d at 44. This overlooks the fact that, while a protest
does not necessarily trigger administrative review, a request for a
hearing does. Here, the party against whom a penalty is assessed
has deliberately foregone the opportunity for a full, public,
administrative hearing from which findings of fact can be made.
Here, too, the amoung of the penalty is subject to
de novo
review in the district court whether or not a hearing was held.
The Court of Appeals next distinguished the holding of the
District of Columbia Circuit on the ground that the proposed
assessment orders at issue "contained
no "information"
other than
pro forma recitations that the six criteria [of
§ 109(a)(1) of the Act] had been considered." (Emphasis in
original.)
Ibid. The court was concerned that the proposed
assessment orders were on "preprinted forms which recited, in some
instances, that the six factors set out in the statute had been
considered" and that the final orders of the Secretary did not
mention the six criteria, but "merely set forth the Secretary's
finding that a violation
did, in fact, occur.'" Id. at
40. [Footnote 2] The court then
held that
"each final decision of
Page 423 U. S. 409
the Secretary must be accompanied by findings of fact,
concerning both the fact of violation and the magnitude of the
penalty."
Id. at 44.
The court noted the general proposition that judicial
"review of a final administrative determination . . . is
rendered practically impossible, or at least vastly more difficult,
where the agency's decision is not accompanied by express
findings."
Id. at 42. We agree with the general proposition when
judicial review is based on a substantial evidence test. Here,
however, if an operator wishes to contest the amount of the penalty
without a hearing, that can be done by refusing to pay the penalty,
thus, invoking the right to a
de novo trial in the
district court, with a jury if desired. When a violation is noticed
the operator is informed as to the details of the nature and
location of that violation; the administrative procedures of § 105
of the Act, 30 U.S.C. § 815, with provision for a public hearing on
request, come into play and appellate review is available.
In light of our holding in
National Independent Coal
Operators' Assn. v. Kleppe, ante p.
423 U. S. 388, the
judgment of
Page 423 U. S. 410
the Court of Appeals for the Third Circuit is reversed, and the
case is remanded for further proceedings consistent herewith.
Reversed and r'emanded.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
The operators protest that these notices are not part of the
record below. Since the issue before this Court is the validity of
the regulations, not whether the regulations were properly complied
with, for purposes of this case we will assume the notices were
properly served. We note, however, that the mine operators do not
contend that they were not given ample notice of the violations
charged by the mine inspectors.
[
Footnote 2]
The Third Circuit found support for its concern in a Comptroller
General's report which stated that the Comptroller was "
unable
to determine the adequacy of the consideration given to the six
factors [of § 109(a)(1)] and the basis for the penalties assessed
in [400] sample cases.'" 495 F.2d at 43. However, the Secretary's
method of assessing penalties has been changed in a way that
largely meets this objection. The regulations now in force contain
formulas to be used by the assessment officers in considering the
six § 109(a)(1) criteria. 30 CFR § 100.3 (1975). The Secretary
represented to the Court of Appeals for the District of Columbia
Circuit that the assessment formula is to be retained. National
Coal Operators' Assn. v. Morton, 161 U.S.App.D.C. 68, 70 n.
12, 494 F.2d 987, 989 n. 12 (1974). These regulations were not in
effect when the penalties at issue here were levied. Use of the
current regulations is preferable to the apparent ad hoc
consideration given the criteria in this case. But a trial de
novo is available to the mine operators on the amount of the
penalty, so the Secretary's failure to promulgate the best
regulations in the first instance does not render all penalties
assessed under the prior regulations unenforceable. Although
explication by the assessment officer and an examiner might be of
some aid to the district judge who is called upon to consider the
penalty, the provision for a de novo trial on the amount
of the penalty places squarely on the court the task of evaluating
the penalty. The six criteria of § 109(a)(1) can be argued to the
district court. The Third Circuit is undoubtedly correct that the
more information a mine operator has, the better the operator will
be able to determine whether to challenge the penalty. The issue,
however, was whether the new procedures were mandated by the
statute.