THUNDER BASIN COAL CO. v. REICH, SECRETARY OF LABOR

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Argument of Wayne S. Bishop

Chief Justice Rehnquist: We'll hear argument next in Number 92-896, Thunder Basin Coal Company v. Robert Reich.

Mr. Bishop, we'll hear from you.

Mr. Bishop: Mr. Chief Justice and may it please the Court:

This is a case of Federal jurisdiction.

To be precise, the question is whether a Federal district court has jurisdiction to hear a preenforcement challenge of a substantive regulation issued by the Mine Safety & Health Administration.

The case is not here on the merits.

The case was decided below on a decision by Federal district court issuing a preliminary injunction.

The Court of Appeals for the Tenth Circuit reversed on the jurisdictional grounds.

Some understanding of the merits of what the case is about is essential to understand the basis of this appeal to this Court.

What the case is about, the substance of it, is the validity of a substantive regulation issued by the Mine Safety & Health Administration that deprived the mine operator of its right to exclude nonemployee union organizers from its premises.

The decision of the Mine Safety & Health Administration in this respect is a regulatory decision.

It was an interpretation of a regulation issued by MSHA several years before.

The case was... or the decision was applied to petitioner.

This is the first opportunity the petitioner had to deal with the issue.

The question here before this Court is whether this regulatory interpretation is properly reviewable in a Federal district court on a preenforcement challenge.

Unknown Speaker: Are you saying there's no way they could have challenged this regulation prior to the proposed enforcement action?

Mr. Bishop: That's right, Justice Souter.

The precise issue here was not decided in the original regulation.

The original regulation was a broad.

The precise issue here of whether a nonemployee union organizer could be designated as a miner's representative under the act was not part of that regulation.

Unknown Speaker: Then, are they in fact challenging the regulation?

Mr. Bishop: It is a direct challenge to the regulation, but to the interpretation of the regulation rather than the regulation as it issued at the time.

The focus on the issue here requires a little bit of understanding of the factual background.

Thunder Basin is a mine operation in Wyoming.

It is a nonunion mine operator.

The Mineworkers Union has tried to organize the mine, unsuccessfully.

It lost an NLRB election several years before.

The United Mineworkers in 1990 adopted as part of its organizing approach a tactic using section 813(f) of the Mine Act, and that tactic was to ask employees of the mine to designate the Mineworkers as a miner's representative under the act.

Section 813(f) of the act--

Unknown Speaker: Mr. Bishop, I just was a little unclear from the papers, the mine representative is the union itself or particular individuals?

Mr. Bishop: --It can be the union or particular individuals.

Unknown Speaker: What is it in this case?

Mr. Bishop: It is the... the designation was for the United Mineworkers and two of its professional organizers who are not employees of the mine, so it's a dual designation, both the union and the professional organizers for the union.

Unknown Speaker: But does the Mine Safety Act contemplate an organization being the... having this authority?

Mr. Bishop: Unfortunately, the Mine Act is not clear on that, Your Honor, and the...,--

Unknown Speaker: It seems a little incongruous to me.

I thought it had to be an individual walking around with the Federal inspector.

Mr. Bishop: --That is the practical effect of it, but the designation was approved by the Mine Safety & Health Administration as the designation of the union and its professional employees.

Unknown Speaker: And that would mean any officer of the union?

Any union representative could perform the function under your view?

Mr. Bishop: As I understand the way the Mine Safety & Health Administration administers the act, that's correct.

Unknown Speaker: I didn't get that out of the papers, but that's--

--In your view, it would not make a difference if it had been only the two individuals who are professional union organizers, you would have the same objection and think that you could equally come into the district court, is that... do I understand that--

Mr. Bishop: That is correct, Your Honor.

Unknown Speaker: --Mr. Bishop, you could have refused to recognize these representatives, I assume, and then stood the risk of having a citation issued?

Mr. Bishop: That's correct.

Unknown Speaker: And then you could have asked for a review by the Commission, which would have gone to an administrative law judge?

Mr. Bishop: That's correct, Your Honor.

Unknown Speaker: And at that time, do you acknowledge that you could have raised the same issue about the validity of the regulation?

Mr. Bishop: It is... that is a procedure that is available under the act, too, is a procedure that the mine operator here chose not to take for very special reasons.

Unknown Speaker: But it's your position that notwithstanding the availability of that scheme, within which... the framework of which you could have raised the challenge, that you can go direct to district court--

Mr. Bishop: That's correct, Justice O'Connor.

Unknown Speaker: --and challenge the validity of the regulation?

Mr. Bishop: We believe that the statute provides that opportunity, and this Court's decision in Abbott Laboratories provides the basis for that approach.

Unknown Speaker: Well, Abbott... Abbott Labs, the challenge to the regulation was a challenge to an inevitable interpretation of the regulation.

There was no doubt that that regulation would have to be interpreted to prevent what the company said could not lawfully be prevented.

In your case, as you've acknowledged, the regulation need not be interpreted that way.

It might have been interpreted ultimately differently.

Mr. Bishop: And we think it should have been interpreted differently.

Unknown Speaker: Well, so you should have waited your turn to assert that.

I mean... or at least as far as Abbott Labs is concerned.

I don't know how you can invoke Abbott Labs.

Mr. Bishop: Well, I don't... my understanding of Abbott Labs is it does not restrict to a choice of a regulation that was not subject to multiple interpretations.

Unknown Speaker: Abbott Labs was part of a trilogy, and it seems to me that your case comes closest to the Toilet Goods decision.

Tell me why not, why you think you fall within the Abbott Laboratories decision and not the Toilet Goods.

Mr. Bishop: Yes, Justice Ginsburg.

I think there's a major difference.

The trilogy... the two cases where preenforcement challenges were allowed, were allowed on the basis of ripeness, which I think is the point that we're getting to here, and in the Toilet Goods v. Gardner case, the Court found the case was not ripe yet.

The reason was in the application of the regulations.

In the two cases, Abbott and the other Toilet Goods situation, the application of that reg caused the companies to have to undergo a change in business practices.

They had to do things immediately.

In addition to that, the failure to follow the suggested compliance approach would subject them to penalties both civil and criminal, and the Court found in those two circumstances that this was sufficient ripeness for the action to happen.

Under the Toilet Goods... Gardner v. Toilet Goods case, the Court found that the application of the regulations there were more general.

They were not... they did not require immediate action.

The regulations were phrased in the turn of the language, "may", rather than "shall".

The application was not felt by the companies immediately, and therefore the Court concluded it was not ripe, while the other two cases were.

In our situation, this was a very ripe decision.

Unknown Speaker: But nothing is happening immediately.

All that's happening is you're posting two names, or maybe three names, if you have to list the union.

Mr. Bishop: Well, that's the first thing that happens.

What happens after that is, those two names of people then have access to records of the mine that they would not have access to before.

They have the ability to participate in mine inspection.

Unknown Speaker: I thought that the administrator said that there would be very circumscribed availability of the records, that they would not be available for any and all purposes but only for this safety purpose.

Mr. Bishop: Even if the records are available for safety purposes, Justice Ginsburg, it causes a major change to the--

Unknown Speaker: But you're speculating on a lot of what may be, as distinguished from the Gardner... Abbott Laboratories, where there wasn't any question about what was going to happen.

Mr. Bishop: --Justice Ginsburg, I don't think it's speculation.

I think it's real life.

These people as designated representative miners, would have the opportunity that they do not have under the National Labor Relations Act in two respects.

The National Labor Relations Act for more than 40 years has had two major principles, 1)... it has many principles, but two that relate here: 1) that employees or nonemployees who are union organizers can be excluded from the premises except for very unusual circumstances not presented here.

Second, the National Labor Relations Act says a representative of employees has to do so only through majority representation.

What happens by this action is, the Mineworkers have an advantage that they don't have under the National Labor Relations Act.

They have access to the plant, access to certain records, and they are a representative of employees, get to actually represent them in matters such as administrative proceedings before MSHA or before the review--

Unknown Speaker: But that's exactly the position you could argue ultimately before the Commission, as has happened in other cases, I understand it has gone that route.

Mr. Bishop: --We could have, and the reason we didn't, Your Honor, is because we were subject to the potential of losing the very right that we wanted to protect, and that was because, in a case that occurred, the neighboring mine to Thunder Basin, just 2 months before, MSHA approached the failure to post the designation and said, we will issue a citation, and we will fine you maximum daily penalties... at that time $1,000 a day, now $5,000 a day... if you do not post it.

Under that circumstance, a mine operator cannot go through the Review Commission and run its risk on 3 or 4 years of litigation.

That case is now before the Court of Appeals for the District of Columbia.

In that case, Kerr-McGee Mine capitulated.

They obeyed it.

They allowed the posting, and have challenged their legal right in the D.C. circuit.

Thunder Basin did not want to capitulate.

It believed its right was a valid right.

It's been on the books for more than 40 years--

Unknown Speaker: Are you saying the cost to that other mine of capitulating compares to the cost to Abbott Laboratories?

Mr. Bishop: --Yes, Your Honor.

Unknown Speaker: It didn't have preenforcement review available to it?

Mr. Bishop: Yes.

The cost to Thunder Basin, if they had been subject to $5,000 a day, which was--

Unknown Speaker: No, I'm talking about the cost of using the route that Congress directed.

You said... we see in this other case they capitulated, and I'm asking whether you have... all the dire consequences that you predicted had occurred in that other case.

Mr. Bishop: --Well, Your Honor, we're dealing with something more than monetary cost.

We're dealing with a very important cost to Thunder Basin, and that is the cost of having to abandon a very important right.

This company has the right under the labor laws as interpreted by this--

Unknown Speaker: Mr. Bishop, can I interrupt, because it's through your brief, now, the right to exclude a stranger from your property is basically a State law right, isn't it?

Mr. Bishop: --It's a common law--

Unknown Speaker: There's nothing in the National Labor Relations Act that gave you that right.

It merely didn't authorize trumping that right.

Mr. Bishop: --It's a common law property right, and in some cases a State--

Unknown Speaker: So if there had never been a National Labor Relations Act, you'd have exactly the same right.

Mr. Bishop: --That's correct, Your Honor.

Unknown Speaker: So you're not relying on a Federal statutory right.

Mr. Bishop: Well, we think we are.

It's not a right that has been written in an act of Congress.

However, over the 40 years that this issue has been debated legally and in Congress, it has always been upheld.

This Court--

Unknown Speaker: It's a limitation on the union's right.

It's a limitation on the worker's right, but the underlying right of the owner is from State property law, as Justice Stevens said.

Mr. Bishop: --It certainly is, but four times this Court, that I can recall, and I think there were other cases, has discussed this employer's right in the context of the full reach of the National Labor Relations Act, and it has declined and refused to allow the other interests under the labor laws to cause diminution of that right.

It is now very much a part of the fabric of the labor laws.

Unknown Speaker: The source of the right is State law.

The National Labor Relations Act deals with the worker's right, and it doesn't give them a right to go as far as to override the property owner's right.

I don't see how you attribute the property owner's right to the national labor laws.

Mr. Bishop: Your Honor, I think after the many cases that that this Court has looked at that right, and looked at the many opportunities and arguments to weaken that right because of other advantages or opportunities or necessities created under the labor laws, that this right now is a recognized part of the full rights under the labor laws.

Unknown Speaker: When a Federal law respects a right under State law, it becomes a Federal law, is that the position you're taking?

Mr. Bishop: It becomes part of the statutory scheme.

If it's not part of the congressional law, it is part of the statutory scheme.

What we're talking about here--

Unknown Speaker: Any time the Federal law doesn't encroach on the State law domain, that State law then becomes Federal law.

That's the position you're taking.

Mr. Bishop: --No, Your Honor, I don't mean to draw it that starkly.

Unknown Speaker: Well then, how does what is a State property law become a Federal law when all the Federal law does is says that the worker's right that this Federal law deals with doesn't go as far as to override the State's property--

Mr. Bishop: The only answer I can give to that, Your Honor, is that it becomes part of the framework and the fabric of the statutory scheme.

It is a part, a recognized part of what we call our labor laws.

This Court has affirmed that on four recent occasions, and all the way back to 1956.

It is not a statutory right, but it is certainly a recognized right in the scheme of the labor laws and how it's affected.

What we have here--

Unknown Speaker: --Mr. Bishop, if the only cost to you were the monetary cost, would you be making the argument for review that... would you be claiming the right to review that you now claim?

Mr. Bishop: --I don't think so.

The issue here is the validity of the right to exclude--

Unknown Speaker: So the $5,000 a day essentially is not your argument, is it?

Mr. Bishop: --Well, no, it is.

What I mean by my response, Justice Souter, is this.

If it were not for the existence of the right to exclude union organizers... nonemployee organizers... from the premises, the company's situation would have been that the abatement cost were very small, and it would not have been faced with the daily penalty.

In other words, it would have litigated the issue before the Review Commission, but the cost of having to give up its right to exclude the union organizers is the major cost here.

That is the cost that causes the company to fight, to go to seek preenforcement challenge in court.

Unknown Speaker: Well, you don't take the position that every time you want to challenge an administrative interpretation and there is a running daily cost against it, that therefore a corporation such as yours should in effect have the nonspecifically statutory review opportunity that you're seeking.

You don't take that broad position, do you?

Mr. Bishop: We don't think the damages or the cost would be sufficiently great to justify it.

Unknown Speaker: Mr. Bishop, let me come back to your contention that unlike Toilet Goods, this case does not involve a "may", that there's a certainty of what would happen.

I understood it to be the case that it was not at all certain that the agency in this case would issue a citation.

It had the option, which your action deprived it of, of proceeding either the citation route, or it could have gone to district court, couldn't it--

Mr. Bishop: Justice Scalia, that--

Unknown Speaker: --to enforce what it wanted, in which case you would have had the same opportunity to make the argument you ultimately made by going the roundabout route to district court?

Mr. Bishop: --Justice Scalia, that's not totally correct.

The statute, the operative statutory section here, section 814(a), provides that when the Mine Safety Health Administration investigates and finds that a rule or regulation or an order of it is not being adhered to, it must... the statute says shall... issue a citation.

There is a certainty of a citation here.

What follows the citation at that point is the MSHA representative comes out again and says, we've issued the citation, have you posted that notice yet?

If Thunder Basin says no, we have not posted it yet, they say, well, we will give you X amount of days or hours... what they suggested to Kerr-McGee was 24 hours... to post that notice, otherwise we will proceed on a penalty case of this amount.

So it is a--

Unknown Speaker: Well, must they proceed on the penalty case?

Do they then have the option to go into district court as opposed to proceeding through administrative penalty?

Mr. Bishop: --Does the... does the agency?

Unknown Speaker: The agency, yes.

Mr. Bishop: Yes.

The agency has an injunctive relief statute that Congress gave them.

Unknown Speaker: So it's not certain that it would proceed by means of administrative penalty rather than action in the district court.

Mr. Bishop: The statute says that MSHA must issue the citation.

Whether it then wishes--

Unknown Speaker: No, what happens after the citation?

Mr. Bishop: --After the citation, what normally happens is that they proceed to go through the Review Commission authorized--

Unknown Speaker: But that is not mandated by statute.

They could go to district court.

Mr. Bishop: --I think what they would do, if they want to use--

Unknown Speaker: No, but legally they could, couldn't they?

Mr. Bishop: --I'm not sure what their answer is, is my hesitancy, but I think they have... the circumstance is I think they would do both.

They would proceed through the Review Commission, but if the issue was sufficiently important, like something that endangered the health of employees on an immediate basis, they would have the right to go to the Federal district court to get a temporary injunction against the practices.

We don't have an issue here that compels, or anything like that.

We have a statutory construction issue, a legal issue.

Unknown Speaker: Nothing happens immediately as a result of the posting.

Nothing then happens until something... until there's an incident at the mine, isn't that so?

Mr. Bishop: That depends on the designee.

They have the right to initiate, or suggest initiation of proceedings.

If there's an inspection at the mine, they proceed with the mine inspector.

They walk around the mine.

Unknown Speaker: But that's... what happens after the posting?

Conceivably nothing could happen, right?

Everything is going along fine at the mine, and there isn't any cause for an inspection.

Mr. Bishop: There are four inspections a year, and there are other reports that have to be submitted by the mine operator.

The mine representative has access to those reports, has access to anything that relates to safety and health that is involved in the functions of the miner's representatives.

They are fully able, fully involved in the mine safety aspects.

That's what Congress intended, except what Congress was focusing on was having mine employees be involved.

Congress did not address the issue of nonemployees.

It certainly did not... and that's a--

Unknown Speaker: I'm just trying to understand what your exposure is, because we all recognize you have conceded that the legal question of whether this is improper interpretation of the regulation that union representatives can be the designees, that that can be settled in... through the ordinary administrative route, so I... your whole case depends on something on the order of an Abbott Laboratories disaster facing you, and I just don't see that.

Mr. Bishop: --Well, Justice Ginsburg, I think the key to understanding that is to be in a position of a mine operator.

The mine operator has a right, under our laws, if he acts legally, to be nonunion, to operate nonunion.

What is happening here by this opportunity, an advantage is being given to the United Mineworkers that is not available under the National Labor Relations Act.

This mine operator wishes very sincerely to be a good employer who is nonunion.

Unknown Speaker: There are so many enterprises that would love to come into district court in the first instance and bypass a cumbersome administrative procedure with ALJs and commissions, and most of them could make out some kind of case that it would be far better if they could, from their point of view, go right into district court.

I just don't see where your case is distinguishable from the great mass of enterprises that would like to avoid the administrative process.

Mr. Bishop: I think the difference, Your Honor, are two things.

One is that by the action taken by the Mine Safety & Health Administration, they are trying to repudiate a legal right that the employer has.

Unknown Speaker: Under State law.

Mr. Bishop: Under State law, if I agree with that.

I think it's broader.

In addition, what has happened here is the Mine Safety & Health Administration has used a tactic that is essentially very, very coercive to force the mine operator to give up that right before a hearing, and that's what makes this case different.

I also believe that Abbott Labs stands for the principle that if the statute does not precisely preclude preenforcement review... I'm sorry, let me rephrase that, because I went too far with it.

If the intention of Congress is not clear that Congress wanted to preclude preenforcement challenges, then the preenforcement challenges--

Unknown Speaker: What decision do you get that from?

Mr. Bishop: --Abbott Laboratories.

Abbott says very precisely that it picks up the presumption of review decisions--

Unknown Speaker: But Abbott Laboratories relied on... I thought Abbott Laboratories relied on what was going to happen immediately.

All the labels were going to have to be changed, all the promotional material had to be thrown out--

Mr. Bishop: --Well, Justice--

Unknown Speaker: --whole stocks would have to destroyed--

Mr. Bishop: --There are two parts to the Abbott decision.

Part 1 is, did Congress preclude preenforcement challenges?

Abbott said if Congress did not preclude preenforcement challenges, then the presumption of review is available.

Point 2, Abbott said, is this case justiciable under traditional principles of jurisdiction, and that is the proposition that you're talking about here.

Unknown Speaker: --That dictum in Abbott Labs doesn't really square very well with Whitney Bank v. New Orleans, does it, which is a case that Abbott Labs did not purport to be overruling.

Mr. Bishop: I think it's completely consistent with Whitney.

I think Whitney stands for the proposition that an administrative agency has certain expertise, and when Congress prescribes an approach to go through that administrative agency, the parties are mandated to do it.

Here, the statute does not preclude preenforcement challenges.

I think Abbott and Whitney are totally consistent.

Unknown Speaker: Well, I don't think it did in Whitney Bank, either, explicitly.

I mean, we're dealing with a situation where there's no explicit preclusion.

Mr. Bishop: The difference is that in Whitney, the court, after thorough analysis, came to the conclusion that Congress did intend this as the only route.

We say, based on--

Unknown Speaker: Not explicitly, however.

Mr. Bishop: --You're correct, it was not explicit, but from the statutory scheme, that was the decision, so--

Unknown Speaker: Mr. Bishop, I'd like to ask you one question, if I may.

There are really two different views between you and your opponents on what the mine inspector will do.

On the one hand you say it will be able to engage in organizing activities, look at records, and so forth.

On the other hand, there's this letter in the Joint Appendix that your opponent, or the district director wrote to you saying he really can't do anything that we won't let him do.

Which view of his authority is it proper for us to assume is the correct one?

Mr. Bishop: --Obviously, we think our view is appropriate, for this reason.

It is the very--

Unknown Speaker: Is there anything in the record that you have that demonstrates that what this Exhibit C says about what he'll do is incorrect?

Mr. Bishop: --No, Your Honor.

That was litigated on the decision on the merits by the district court judge, who granted the permanent injunction.

Unknown Speaker: But did he find as a fact that these mine inspectors, safety inspectors would in fact engage in organizing activities?

Mr. Bishop: Not that they would engage in organizing activities, but that the potential was high, and the opportunity was presented for them to do that.

Unknown Speaker: Does that mean, like, talking to the miners and sort of propagandizing the union, or just finding out facts that will be useful in later... I'm a little puzzled about--

Mr. Bishop: Both of those, and the imprimatur of Government authority placed on the Mineworkers Union by being allowed into the plant with the Federal Government, that's a substantial impact on the will of the voter if it comes to an NLRA election.

Unknown Speaker: --Under your view, would it have been permissible for employees to designate two union members who happened to also be interested in organizing the mine to be the mine inspector, but they were employees?

I assume some of your employees may be union members.

Mr. Bishop: That is totally permissible.

There's no legal argument against that.

Unknown Speaker: They might do exactly the same thing that these people could do.

Mr. Bishop: That's correct, Your Honor.

We'd have no legal argument against that.

Unknown Speaker: Mr. Bishop, is there any concern here about the lack of final agency action?

Mr. Bishop: I think not, Justice O'Connor.

The agency action here... you have to recognize that the statute looked at two different areas, regulations, and enforcement.

MSHA has responsibility for regulations.

This was the final decision of MSHA.

MSHA has, under the regulation here, delegated to the district manager the responsibility under Part 40 of the CFR reg here.

The district manager is the one who made the decision here, but even then the district manager consulted at a higher level before he finalized it, but this is final agency action.

Under the Harrison case of this Court, Harrison v. PPG, this Court says that final agency action is the final word of the agency short of enforcement, and that's where we are.

Thank you very much.

Unknown Speaker: Thank you, Mr. Bishop.

Mr. Wallace, we'll hear from you.

Argument of Lawrence G. Wallace

Mr. Wallace: Thank you, Mr. Chief Justice, and may it please the Court:

The starting point of our submission is the reasoning of this Court in its 1981 decision in Donovan v. Dewey, the one prior occasion on which this Court considered the Federal Mine Safety Act of 1977, and in particular its inspection provisions, and upheld their constitutionality against a Fourth Amendment challenge under Marshall v. Barlows, because no warrants are required for the periodic inspections prescribed by this act.

And in deciding that this was permissible for Congress in treating this industry under this statutory scheme, the Court pointed out at page 602 of Volume 452 U.S. that Congress was plainly aware that the mining industry is among the most hazardous in the country, and that the poor health and safety record of this industry has significant deleterious effects on interstate commerce, and the Court there cited some of the provisions in the pre--

Unknown Speaker: What is the case you're referring to?

Mr. Wallace: --That is Donovan v. Dewey, 452 U.S. 594, the one previous case under this act.

It is cited in the briefs.

Unknown Speaker: And what's the point you're making about it--

Mr. Wallace: I... I'm--

Unknown Speaker: --That this is an important piece of legislation?

Mr. Wallace: --Well, I'm--

Unknown Speaker: We agree with that.

Mr. Wallace: --Well, I'm showing that what this court recognized in the legislative history and legislative structure of the act is highly relevant to analysis of that structure and the congressional purposes as they relate to this case.

Unknown Speaker: You're picking up on a case that's cited, as far as I can see, only at the bottom of footnote 25 of the brief as your featured case?

Mr. Wallace: Well, it is the one case in this Court that dealt with this act, and I'm just using it as a starting point for our explanation of what Congress was doing in revising the remedial provisions from the pre-existing ones, because they was a considerable structural change made in the penalty provisions, and this was based on concerns about... as the preamble of the act said, that this Court pointed to in Donovan v. Dewey, and we've reproduced this provision on page 1A of the appendix to our brief.

The first one that the Court referred to is (c) here, there is an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's coal and other mines in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines.

Part of what Congress did in this legislation was to, for basically the same reasons, replace what it found to be cumbersome, repetitious, and ineffective enforcement mechanisms in the prior law which it complained in the committee reports were allowing protracted litigation while the conditions that were cited by the Secretary of Interior, who was administering at that time, went uncorrected, and it replaced this with a restructured and streamlined enforcement scheme that is the scheme at issue here, and it created the Federal Mine Safety Commission, a new agency independent of the Department of Labor, to hear complaints, and for the first time it included a system of daily penalties that could be imposed for failure to abate a violation after the violation has been cited.

The whole structure and purpose reflected in the legislative history that we cite and that the Court itself cited in Donovan v. Dewey in footnote 7, referring to the pertinent Senate and House reports, was to tilt the balance away from the direction of protracted litigation while the violation remained uncorrected toward a system that would provide incentives to correct the violation and protect the health and safety of the miners and then do the litigating.

Unknown Speaker: This isn't an unsafe condition that's sitting out there ready to kill somebody.

Mr. Wallace: But the question--

Unknown Speaker: It's just the nomination of certain individuals instead of others as inspectors.

Mr. Wallace: --The question in the case goes to the way this scheme will work and whether preenforcement preemptive strikes, as the court of appeals called them, can be brought in the district court to interfere with the statutory process for abating any violation that has been cited by the inspector.

So we must look, in determining how the act should work, beyond the narrow confines of this case, and I don't want to belittle the fact that Congress did think for these inspections to be effective that the miners should have a right to have a representative of their own accompanying the inspector, perhaps pointing out things to the inspector that the inspector would otherwise not have brought to his attention.

A representative of the employer also accompanies the inspector, so the employer's representative is present along with the miner's representative every step of the way and is there to see to it that the miner's representative does not overstep the bounds of the purpose for which he is present, which is to assist--

Unknown Speaker: Mr. Wallace, it's possible, is it not, for nonemployees to be the representatives?

Mr. Wallace: --That is correct.

Unknown Speaker: And if that is so, suppose there's an inspection unannounced?

How do those employee... or, how do those representatives get notice?

Mr. Wallace: They don't get notice, and they therefore do not invariably participate, and that is the reason why, in the designation which appears at pages 29 and 30 of the Joint Appendix, the miners who designated these two men to be their representatives designated themselves, or some of themselves, as the alternates in case these persons were unavailable.

This is part of the reason why there are ripeness problems with the complaint that's being made here.

It's speculative whether these representatives would even participate in an inspection, since there is a criminal prohibition against giving anyone advance notice of the inspection, and--

Unknown Speaker: Well, do you take the position that there's been final agency action here with regard to the issue raised in the district court?

Mr. Wallace: --We take the position that there has not been, because there's never even been a citation issued by the Mine Safety & Health Administration that there has been a violation.

We're at a very anticipatory stage in the bringing of this lawsuit.

An official of the Department of Labor advised the petitioner that these representatives are eligible.

Unknown Speaker: Mr. Wallace, Mr. Bishop told us that there are quarterly inspections, so that there would be periodically inspections, and he also said that with respect to finality the interpretation of the regulation is final.

The adjudication of the validity of that regulation is something else, but why is that any less final than, say, a change in the Federal rules that's put in the rule books but that hasn't been tested in an adjudication?

Mr. Wallace: Well, because the view of the district director of the MSHA will not necessarily prevail if petitioner wants to litigate it through the processes that are channeled in the act for litigating it.

The Commission is an independent agency which may--

Unknown Speaker: Exactly.

Mr. Wallace: --disagree with that interpretation.

Unknown Speaker: It's an independent agency, but so far as the action of the... what you might say the prosecuting agency is concerned, that is final.

It has signed off, hasn't it?

Mr. Wallace: Well, there's--

Unknown Speaker: I mean, in a sense, nothing's ever final until a court... you certainly wouldn't make the argument, when an agency decides something, well, we don't know whether that'll prevail until it gets to the district court, and therefore it's not final.

Mr. Wallace: --As it happens, there has been no citation of the violation issued in this case.

Unknown Speaker: Well, that's a different point.

That's a different point, but why... I don't know why going to a different agency, the independent Commission, to get the validity of the first agency's decision established, the necessity of going there, renders the first agency's decision nonfinal.

Is that the position you're taking, it's not final until the Commission makes an adjudication?

Mr. Wallace: Well, it's not final until the agency has done a citation for a violation--

Unknown Speaker: All right, you say the citation is what renders it final.

Mr. Wallace: --and has proposed a penalty.

Unknown Speaker: The citation is what renders it final.

You agree it would be final when the citation issued, at least.

Mr. Wallace: Well, it certainly would be more final than it is now.

It's not our case.

Unknown Speaker: Mr. Wallace, in terms of where it is now, you used the phrase a moment ago that the agency had advised the Thunder Basin that, I think, as you put it, these individuals are eligible.

Has the agency actually given a final designation to these individuals?

Mr. Wallace: Well, the agency doesn't do the designating under the act.

Unknown Speaker: Who does?

Mr. Wallace: It's just the miners choose their representatives.

Unknown Speaker: Well, the agency... does the agency have a formal act of recognizing the miners' choice?

Mr. Wallace: Well, there's no necessity for that.

It's only because a controversy--

Unknown Speaker: They just show up?

Mr. Wallace: --arose--

Unknown Speaker: Excuse me, the agency doesn't do anything, the day comes, and somebody just gets on the phone and say, let's go over to the mine?

Mr. Wallace: --Well, they... I don't know who would notify the miners' representatives to come.

The agency cannot give anyone advance notice.

Unknown Speaker: Well, somewhere in the records of the agency, there must be some... there must be some administrative act along the lines... along the following lines.

The miners have designated or nominated the following individuals, and we recognize that designation, we accept that designation.

Isn't there some such act as that, and if there is, has that been done yet?

Mr. Wallace: There's nothing in the record on that that I'm aware of.

Unknown Speaker: Well, what should be done under the statute, regardless of what's in the record?

Mr. Wallace: Well, under the statute, and under the procedures that are used by the agency, groups of miners can designate representatives, and they just make the designation to the employer, who is supposed to do a posting of the designation.

Unknown Speaker: It doesn't even go through the agency?

The employers get in touch with the owners directly?

Mr. Wallace: That is my understanding.

I don't think there's any requirement that the designation be made to the agency.

Unknown Speaker: Oh, I see, so that in effect is the reason for your answer to Justice Scalia that the agency doesn't do anything final until it issues a citation.

Mr. Wallace: The employees can designate... that's correct.

The employees can designate to the employer who their representatives will be, and the employer accepts that and posts the notice.

There's no need for the agency to get involved.

It's only because a dispute arose that the agency got involved in this instance.

Unknown Speaker: Mr. Wallace, can there be duplicate designations?

Can there be duplicate designations by--

Mr. Wallace: There can be... there can be duplicate designations.

Unknown Speaker: --Then what happens?

Mr. Wallace: Then the inspector can, if more than one shows up, can choose... can ask them to determine among themselves which one should accompany him, or, if he feels he would be aided by more than one, he can have more than one going along, but the statute says there has to be an equal number of representatives of the employer, so if the employer chooses to have only one representative go along, then only one representative of the employees can go on the inspection.

This--

Unknown Speaker: Mr. Wallace, on this... can you help me understand Exhibit 9 in the Joint Appendix, which is at page 29, which is the letter... I don't know, it's unsigned, but I gather this is the designation, and I gather it was sent in by the union, and it names about half-a-dozen or more people, and--

Mr. Wallace: --Well--

Unknown Speaker: --but it doesn't say the union itself... your adversary said that the union was one of the representatives.

What does this say?

How many representatives are there in this case?

Mr. Wallace: --In this particular instance, there are only the two representatives listed on the exhibit which you mention, which is on page 29.

On page 22, in an earlier designation, they were identified as affiliated with, or associated with the union, but the union has never been named in this instance as a designated representative, although the regulation does allow an organization to be named.

It happens that in this instance it was only the two individuals who are employees of the union who were designated on page 29, and then on page 30, the employees designated themselves as alternative representatives, alternate representatives in case these two people aren't there for the inspection.

The inspections do take place under the statute at least twice a year in this kind of mine, which is a surface mine, but they're not on a regular schedule.

The four times a year requirement is for underground mines, which are much more time-consuming to inspect.

Even in a large surface mine such as this one, the inspection probably would not take more than 2 or 3 days, I'm told, whereas an underground mine could take a month or two, if it's a large facility, there are many problems there of gases and structural problems that need to be looked into.

Unknown Speaker: Mr. Wallace, the... you said in the brief there's an explicit designation of the court of appeals as having exclusive jurisdiction.

It's rather a curious phrase that the statute uses.

It's at section 816, paragraph 8, page 31 of your appendix.

It says, upon... it says that

"The Commission shall file with the court the record in the proceeding. "

and then it says,

"Upon such filing the court shall have. "

--that is, the circuit court...

"Upon such filing, the court shall have exclusive jurisdiction of the proceeding. "

It would seem to indicate that before the filing there can be concurrent jurisdiction with some other court.

Mr. Wallace: Well, I think that is to assure that the review will proceed in only one court of appeals and not in the D.C. circuit and also in the regional circuit.

That is what is--

Unknown Speaker: Well, there's, I guess, various explanations for the phrase.

It indicates that... but it's rather odd to use the phrase, "upon such filing".

In section 1331 we don't say, upon filing there should be jurisdiction, because obviously there can't be any jurisdiction until something's filed.

Mr. Wallace: --I think--

Unknown Speaker: But it's certainly not the way Congress usually acts when it purports to give exclusive jurisdiction to a particular court or set of courts.

Mr. Wallace: --I think it's to be read in conjunction with the fact that the jurisdiction is initially conferred for review either in the Court of Appeals for the District of Columbia Circuit or in the regional court of appeals, but upon filing in one of those courts, then that court's jurisdiction becomes exclusive.

Before that, it would have been concurrent with the other court.

I really think that it's just in the context of that that Congress used this expression, and it's upon the filing in one of the courts that that court becomes the one with the exclusive authority in that case, so that there won't be duplication of proceedings.

Unknown Speaker: Mr. Wallace, the regulations, the underlying regulations here, when they were promulgated, there could have been a facial challenge to the regulations.

There wouldn't have been any finality issue at that point, would there?

Mr. Wallace: Well, I think that is correct, and certainly to the extent that the regulations are legislative in nature.

There is in this act a provision that we refer to in some detail on page 2 of our brief, section 811 of the act, which is not one of the provisions set forth in the appendix, but which is of some significance here in illuminating the kinds of challenges to regulations that are normally authorized.

This is a provision that says that the Secretary by rule shall develop and promulgate improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines.

It's a big legislative rule-making responsibility that has been placed on the Secretary, and there is a subsection (d) there that provides for judicial review of any of those rules by any person who may be adversely affected by one of these new substantive rules.

He may at any time within 60 days of its adoption file a petition challenging the validity of that mandatory standard.

Unknown Speaker: But your position is that an interpretation of those regulations... those regulations we agree are final and subject to a facial attack within, whatever, 60 days, then the administrator interprets one of those regulations.

That, you say, the interpretation doesn't become final until there's an adjudication of the correctness of the interpretation?

Mr. Wallace: Well, that's correct.

That would be a disputed issue, and the method of disputing it is channeled by the statute, and we say that it was designed to be an exclusive method and to eliminate the district court's suits that had been such a problem under the pre-existing scheme, in which--

Unknown Speaker: But that's a different argument from finality.

Justice Ginsburg asked you, you know, whether it was final or not.

It seems to me finality is one thing, and even though it's final, it may be that the scheme of the statute shows that it is not yet challengeable.

Mr. Wallace: --That is correct.

It is a different argument, and our primary argument in the case is that the statute set up an exclusive method for handling of these disputes through an orderly, administrative process, followed by review in the courts of appeals and a centralized agency that would be acting with expertise.

This is precisely what happened in the Kerr-McGee litigation that was decided after this district court complaint was filed, in which the administrative law judge and then the Commission passed on an identical claim that an employee of the union could not be designated as a representative.

Unknown Speaker: Mr. Wallace, Mr. Bishop concedes that he could have gone that way, that his client could have chosen that route, but I think his point is that there is in this regime no counterpart to, say, 405(g) and (h) of the Social Security legislation.

There is nothing that says, and this is the only way.

Mr. Wallace: There's nothing explicit that precludes other remedies, but of course, that was true in the Block case, and in Whitney Bank, and in many other cases.

There's another line of cases, not relied upon in our brief but which I brought to Mr. Bishop's attention yesterday, in which the court has held that detailed remedies in a district court under a particular statute, even though they don't in terms oust other possible remedies, should sometimes be interpreted to be the exclusive remedy provided for the particular kind of complaint being made.

Unknown Speaker: Well, you know, you could say that the same kind of a scheme existed to some extent in Abbott Labs.

You have the provision in the APA, which says that the remedy, if none other is provided, is suit in district court to challenge the regulation after it's applied to you.

Nonetheless, we allowed an exception from that normal scheme because of the severe hardship in that case.

Are you saying never?

Mr. Wallace: It wasn't--

Unknown Speaker: Are you saying never here, or are you saying that hardship isn't enough?

Mr. Wallace: --Well, I... what I think I'm saying, or if... is that hardship is not the sole criterion.

What I'm suggesting about the Abbott Labs trilogy is that while there is no crisp distinction about when a preenforcement review has been recognized, a good deal of light is shed on that by the distinction that does exist in administrative law between legislative regulations in which new substantive standards are being imposed that affect primary conduct, and that is what the Court talked about in Abbott Labs, that primary conduct was being affected by what the agency did in that case.

And in the companion case that was held to be ripe for review, Gardner v. Toilet Goods, the Court referred to what the agency had done as amplifying the statutory standard imposing new standards that will affect the primary conduct of the people who brought the challenge, whereas interpretations, or even interpretive regulations, just purport to state the agency's position about the meaning of the statute that someone can litigate.

Now, typically, when there are provisions for review of the validity of the new legislative regulations, they have to be brought quite promptly.

In this statute itself, there's a 60-day provision.

The suits in Abbott Laboratories were brought within a matter of months.

The regulations there were adopted in June '63, and the suit was filed in September of '63, and in the Toilet Goods case in November of '63 for regulations adopted in June of '63.

Here, the regulation really does not address this issue.

The regulation was issued in 1978.

It's the same issue that arises under the statute, whether the outside representative--

Unknown Speaker: Do we have any cases that say that, that say that if you challenge a regulation facially you have to do so within a certain amount?

I mean, there are statutory provisions that say the challenge must be brought within 60 days, but I had always thought that unless there is such a statutory provision, you can challenge a regulation whenever.

Mr. Wallace: --Well--

Unknown Speaker: Assuming preenforcement challenge is permissible.

Mr. Wallace: --Assuming it's permissible, but certainly laches is a criterion for when it should be permissible.

I can't point to a case in which one has been held untimely on the basis of laches, but I do think that what's involved in this case is the kind of preemptive strike that could undo the whole statutory scheme, because any case before a citation is issued could be diverted into district court on a very similar rationale.

As the court of appeals in this case pointed out, it often can be said that there are other statutory rights or claims made in the guise of constitutional claims that are inconsistent with the agency's application here.

Unknown Speaker: Of course, you'd object even after the citation was issued, wouldn't you?

Mr. Wallace: Well, we would, because the citation--

Unknown Speaker: Perhaps not on finality grounds, on grounds that--

Mr. Wallace: --The citation initiates the statutory process, which is built in with incentives to bring about compliance while the litigation is occurring, but there's no pre-litigation deprivation of anything.

The petitioner's claims can be heard in that process and on judicial review, and--

Unknown Speaker: --Would there be any mechanism whereby during the administrative review the application of the penalty could be suspended, or something?

Is there any temporary relief available?

Mr. Wallace: --That can happen in the administration of whether penalty should be assessed, which is to be determined initially by a proposal by the agency, and then is to be determined independently by the administrative law judge and by the Commission.

In Kerr-McGee itself, the company decided to comply and then just to contest the initial citation, which wound up to be a $300 penalty.

Unknown Speaker: Could the court of appeals, where a review ultimately lies, grant a stay of any of a penalty imposed by... in the administrative process before being final?

Mr. Wallace: Well, it would have jurisdiction under the All Writs Act, and it would require a pretty extreme case.

Unknown Speaker: But you would say that that takes something really extraordinary to come... to use an extraordinary writ you have to have... because your argument... tell me if I don't grasp it correctly.

You've got two points.

You can enter the court 1) the day the regulations come out.

You've got 60 days to challenge the regulations.

After that the administrative process is it, and you get to the court of appeals at the end of that line.

Is that--

Mr. Wallace: That is part of our submission, that is correct, Justice Ginsburg.

Unknown Speaker: --So you can--

Chief Justice Rehnquist: Thank you, Mr. Wallace.

The case is submitted.

Unknown Speaker: The honorable court is now adjurned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 92-896, Thunder Basin Coal Company against Reich will be announced by Justice Blackmun.

Argument of Justice Blackmun

Mr. Blackmun: The petitioner, Thunder Basin Coal Company, is what its name implies a coal mining company.

Its workforce is non union but that force designated two employees of the United Mine Workers, to serve as miners' representatives under a statute, which is in 30 U.S. code section 813(f).

The company refused to post information about this as required by a Department of Labor Regulation and instead it files suit in District Court and obtained an injunction preventing the enforcement of the regulation.

The Tenth Circuit Court of Appeals reversed.

It held that the District Court jurisdiction was precluded by the administrative review scheme of the Mine Act, which provides for a review commission and then further review by the appropriate Court of Appeals.

The company contends that requiring it to challenge the interpretation to the statutory review procedures violates the Due Process Clause.

In an opinion filed with the Clerk today, we affirm the judgment of the Court of Appeals.

We hold that the Mine Act's review scheme precludes a District Court from exercising subject-matter jurisdiction over a pre-enforcement challenge to the Act.

Justice Scalia has filed an opinion concurring in part and concurring in the judgment and has joined therein by Justice Thomas.