Mid-Continent Resources, Inc.

Plain-English summary

Mid-Continent Resources was involved in a dispute over miners' representative access at its Dutch Creek No. 1 Mine. The Commission dismissed the American Mining Congress petition for discretionary review because the organization was not a party below and had not shown a direct, concrete interest adversely affected by the ALJ's decision. The Commission allowed the organization to continue as an amicus on the merits, while denying ASARCO's late motion to file an amicus brief. The Commission's order also addressed the underlying citation and withdrawal-order history without deciding the merits in this release.

Decision snapshot

• Cited standards: 30 C.F.R. § 40.1(b), 30 U.S.C. § 813(f), 30 U.S.C. § 814(b)
• Outcome: The AMC's petition for discretionary review was dismissed, its amicus participation was allowed to continue, and ASARCO's late amicus-filing motion was denied.
• Key point: A nonparty must show a direct and concrete interest adversely affected by an ALJ decision to petition for Commission review.

Full text (FMSHRC public release)

CCASE:
MSHA AND UMWA V. MID-CONTINENT RESOURCES
DDATE:
19891219
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                           December 19, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 and             Docket No. WEST 87-88

UNITED MINE WORKERS OF AMERICA

  v.

MID-CONTINENT RESOURCES, INC.

BEFORE: Ford B. Ford, Chairman; Backley, Doyle, and Lastowka,
Commissioners

               ORDER

BY THE COMMISSION:

 In this civil penalty proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1982)("Mine
Act" or "Act"), the American Mining Congress ("AMC") and Mid-Continent
Resources, Inc. ("Mid-Continent") filed petitions for discretionary
review of a decision by Commission Administrative Law Judge John Morris.
10 FMSHRC 881 (July 1988)(ALJ). The Commission granted both petitions
for review, briefing has been completed in the case, and oral argument
is scheduled for December 21, 1989. After review was directed the
Secretary of Labor filed a motion seeking dismissal of the AMC s petition
for review. In addition, ASARCO, Inc. ("ASARCO") filed a motion requesting
leave to file an amicus curiae brief out of time in support of the AMC's
and Mid-Continent's positions as to the merits of the case. For the
reasons that follow, we grant the Secretary's motion to dismiss the
AMC's petition for discretionary review but conclude that, under the
circumstances, the AMC may continue its participation as an amicus curiae

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and may participate in the scheduled oral argument in this proceeding.
We deny ASARCO's motion requesting leave to file an amicus curiae brief
out of time.

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I.

                Background

This proceeding arises from a citation issued to Mid-Continent by

the Department of Labor's Mine Safety and Health Administration ("MSHA")
on May 13, 1986, charging the operator with a violation of section 103(f)
of the Act, 30 U.S.C. 813(f). The citation alleged that on May 13, 1986,
Mid-Continent had denied Robert Butero, a designated representative of
miners, access to Mid-Continent's Dutch Creek No. 1 Mine near Redstone,
Colorado, for purposes of accompanying an MSHA inspector on walkaround
during the latter's inspection of the mine. About one month earlier,
the United Mine Workers of America ("UMWA") had notified both MSHA and
Mid-Continent, pursuant to the Secretary's regulations at 30 C.F.R.
Part 40, that it had been designated by two employees at the Dutch Creek
No. 1 Mine as these miners' representative under the Mine Act. 1/ The
notification designated Mr. Butero as the specific representative of the
miners. Shortly after issuance of the citation, the inspector issued a
withdrawal order to Mid-Continent, pursuant to section 104(b) of the Act,
30 U.S.C. 814(b), alleging that Mid-Continent had continued to refuse
Butero the right to accompany the inspector during inspection of the mine.

On March 16, 1987, the Secretary filed a civil penalty petition

against Mid-Continent in connection with the citation. Mid-Continent
filed an answer and the matter was assigned to Judge Morris. In October
1987, the judge granted the UMWA party status as an intervenor, and the
AMC was permitted to appear as amicus curiae. On November 23, 1987, the
Secretary filed a motion with the judge seeking to withdraw the civil
penalty petition. The Secretary conceded that one of the two individuals
who had signed the designation form was not an active miner at the time
that the form was filed and, thus, that the designation did not comply with
the requirements of 30 C.F.R. 40.1(b) (see n.1). In response to an order
to show cause why the motion should not be granted, Mid-Continent opposed
the Secretary's motion and moved for declaratory relief. Mid-Continent
argued that a nominal number of employees should not be permitted under
color of 30 C.F.R. Part 40 to designate as the miners representative a
union that did not also represent the employees for collective bargaining
purposes under the National Labor Relations Act ("NLRA"). Mid-Continent
contended that the Mine Act miners' representative process was being
improperly manipulated to facilitate organizational activity for NLRA
purposes.

On July 1, 1988, the judge entered an order of dismissal in which

he granted the Secretary:s motion to withdraw the civil penalty petition,
vacated the proposed penalty, denied declaratory relief, and dismissed the

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proceeding. 10 FMSHRC 881. The Commission received and granted petitions
for discretionary review from both Mid-Continent and the AMC; which, as
noted, had participated as amicus curiae below. The

1/ 30 C.F.R. 40.1(b) defines "representative of miners" as "[a]ny person
or organization which represents two or more miners at a coal or other
mine for the purposes of the Act...."

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AMC also filed a motion to consolidate the two petitions, which the
Commission granted. Briefs of Mid-Continent and the AMC were received
by the Commission on September 16, 1988. Opposing briefs of the UMWA and
the Secretary were received by the Commission on November 1 and 7, 1988,
respectively. On November 7, 1988, the Secretary filed a motion to dismiss
the AMC's petition for discretionary review and, on that same date, ASARCO
filed a motion for leave to file an amicus curiae brief out of time.

 Intervenor UMWA has filed a response in support of the Secretary's

dismissal motion, while the AMC and Mid-Continent have filed oppositions
to the motion. The AMC and Mid-Continent support ASARCO's motion to file
its amicus curiae brief, while the Secretary and the UMWA oppose it. We
turn first to consideration of the Secretary's motion to dismiss the AMC's
petition.

                II.

 AMC's Standing to Petition the Commission for Review

 Section 113(d)(2)(A)(i) of the Mine Act provides that "[a]ny person

adversely affected or aggrieved by a decision of an administrative law
judge, may file and serve a petition for discretionary review by the
Commission...." 30 U.S.C. 823(d)(2)(A)(i) (emphasis added). The specific
question presented is whether, in the circumstances of this case, the AMC
is a "person adversely affected or aggrieved" by Judge Morris' decision
and, hence, possessed of standing to petition for review of that decision.
We answer that question in the negative.

In our view, the Mine Act does not contemplate that any nonparty

dissatisfied with a judge's decision is empowered to seek Commission
review merely by virtue of such dissatisfaction and the fact that the Act
uses the term "person" instead of "party" in section 113(d). We conclude
that, in order to petition the Commission for review under section 113, an
"adversely affected or aggrieved" nonparty must demonstrate a sufficiently
direct and concrete interest in the proceedings below and show that the
interest is adversely affected by the outcome of the proceedings.

Our analysis begins with the language of the Mine Act and the

general federal law of appeal. Section 113(d) uses the term "person"
rather than "party" and the plain meaning of this terminology suggests
that circumstances may obtain where a nonparty may petition the Commission
for review of a judge's decision. Nothing in the text of section 113 or
the scant legislative history on the subject specifically explains the
intended scope of the language in question. However, viewing the Act as
an integral whole, we perceive two prominent statutory themes that guide

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resolution of the issue.

 First, appeals to the Commission from judges' decisions pursuant

to section 113(d) arise in an adjudicative context in which traditional
adversarial litigation, conducted in a two-tiered administrative arena
of trial-type hearings and discretionary review, is the vehicle for

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dispute resolution. Second, the Mine Act throughout mandates efficient
and expeditious litigation and adjudication. Within this general
framework, we discern no warrant for an interpretation of section 113(d)'s
review procedure that is out of line with normal litigation processes or
that is likely to complicate or prolong the resolution of disputes under
the Act.

 The general rule of federal appellate law is that only a litigant

who was a party to the proceedings below and who is aggrieved by the
judgment or order may appeal. E.g., Hispanic Soc v. New York City, 806
F.2d 1147, 1152 (2d Cir. 1986); United States v. LTV Corp., 746 F.2d 51,
53-54 (D.C. Cir. 1984); SEC v. Lincoln Thrift Ass'n, 577 F.2d 600, 602
(9th Cir. 1978). See generally 9 J. Moore, B. Ward & J. Lucas, Moore's
Federal Practice Par. 203.06 (2d ed. 1988). This rule protects both the
litigating parties' normal right to control the direction of litigation,
including appeal, and judicial management of an efficient appellate
process. The primary exception to this general rule is where a non-party
demonstrates a legally recognizable interest adversely affected by the
trial court's judgment. E.g., Hispanic Soc., supra, 806 F.2d at 1152.

 The AMC contends, however, that the Commission should apply to

the administrative appellate review structure of the Act the "zone of
interest" standing test developed by the Supreme Court in Clarke v.
Security Indus. Ass'n, 479 U.S. 388 (1987), and Ass'n of Data Processing
Service Organizations v. Camp, 397 U.S. 150 (1970). Stated simply, this
test requires that, to establish standing to challenge agency action in
the federal courts, a plaintiff must show injury in fact as a result of
the action and that the interest sought to be protected is arguably within
the zone of interests protected or regulated by the statute in question.
E.g., Clarke, supra, 479 U.S. at 394-400. We find this approach inapposite
in the context of section 113(d) of the Mine Act.

As the AMC acknowledges in its response to the Secretary's dismissal

motion, the zone of interest test was developed in the context of the
judicial review provisions of section 10(a) of the APA, 5 U.S.C. 702. 2/
Section 702 addresses judicial review of agency action in the federal
courts in the first instance, often in circumstances where such judicial
review is the only available mechanism for challenge of agency action.
See, e.g., Data Processing, supra, 397 U.S. at 156-58. The test has been
applied, for example, in contexts where the statute at issue specifically
incorporates section 702 within its judicial review structure (e.g.,
Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 921 (D.C. Cir.
1989)); where there is no other avenue of judicial challenge to agency
action, yet Congress did not intend to preclude judicial review (e.g.,
Data Processing, supra); and for a multiplicity

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2/ 5 U.S.C. 702 states:

             A person suffering legal wrong because of agency
  action, or adversely affected or aggrieved by agency
  action within the meaning of a relevant statute, is
  entitled to judicial review thereof.

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of challenges in the first instance to agency legislative-type rulemaking
actions (e.g., Calumet Indus. v. Brock, 807 F.2d 225 (D.C. Cir. 1986)).

The AMC fails to recognize, however, the problems with incorporating

these concepts into the section 113(d) administrative review setting.
First, the Mine Act provides that "[e]xcept as otherwise provided in this
Act, the provisions of sections ... 701-706 of [the APA] shall not apply
to" proceedings under the Act. 30 U.S.C. 956. Section 113(d) of the
Act does not otherwise incorporate section 702 of the APA into the
administrative mechanism of the Act. Thus, the statutory basis underlying
the zone of interest test is expressly excluded from the Mine Act. Second,
section 702 of the APA concerns judicial review of agency action, not
agency review of administrative law judge decisions. Third, many of the
applications of the "zone of interest" principles have occurred in the
legislative rulemaking arena. By their very nature, legislative rules, as
opposed to adjudications of specific enforcement actions, often affect a
universe of interested persons.

In our judgment, allowing all nonparties that might satisfy a

"zone of interest" test to appeal judge's decisions to the Commission
would serve to strip the litigating parties of control of the litigation
in question and encumber the Commission's adjudicative process with
numerous appeals from a wide variety of persons, groups, or associations
"interested" in the development of the law. Accordingly, we find the usual
and general principles of federal appeal, summarized previously, to be a
preferable guide to resolution of the question of nonparty administrative
appeal under section 113(d) of the Mine Act.

Applying these principles to the case at hand, the question is

whether the AMC, a nonparty below, has shown a direct and concrete
interest in this litigation and demonstrated that the outcome below
has had an adverse impact on that interest. We stress at the outset
that not every disagreement with a judge's decision amounts to a
legally recognizable interest that is adversely affected. Rather, more
substantial involvements such as a direct stake in the property or events
that are the subject of the litigation, some concrete involvement in the
controversy between the parties, or some direct effect of the judgment on
a recognizable interest of the nonparty are required.

Here, literally speaking, there is not a "case or controversy"

involving the AMC under the Mine Act in the context of the present
proceeding. Nor has the AMC demonstrated how the judge's dismissal of
the Secretary's enforcement proceeding has had an adverse impact on it.
Instead, the AMC argues that it is "adversely affected or aggrieved"
because it has an interest in the legal principles involved in this

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proceeding, i.e., the questions surrounding the identification of miners'
representatives under the Act. However, every Commission proceeding, to
some extent, involves an interpretation of the Mine Act, a mandatory
standard,@or some legal principle affecting the enforcement or meaning of
the Mine Act. Under the AMC's position, mining trade associations, mine
operators, and miners generally would have a sufficient interest in
Commission proceedings to bestow upon them the

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right to file a petition for review of most administrative law judge
decisions. We are confident that Congress, in enacting the Mine Act
did not intend to create such a potential litigation "free-for-all" in
review proceedings before the Commission. We therefore conclude that
the AMC has not presented a specific and concrete legal interest enabling
it to appeal the judge's decision.

This holding does not preclude the AMC or similar organizations

from participating in the Commission's adjudicatory processes. Amicus
participation is liberally granted in Commission proceedings. We note,
also, that our ruling on the Secretary's dismissal motion deals solely
with the problem of admitting new parties on appeal after trial, and we
intimate no view at this time as to the specific criteria that ought to
control intervention at trial. 3/

In sum, we grant the Secretary's motion to dismiss the AMC's

petition for discretionary review and vacate that part of our Direction
for Review granting the AMC's petition as well as our subsequent order of
consolidation. Mid-Continent's petition remains for review. However, in
the circumstances presented, the AMC may continue in its role as an amicus
and we will permit it to participate in the oral argument on the merits of
this proceeding. The AMC's petition and briefs will be considered as
amicus briefs. AMC's request for oral argument on the Secretary's motion
to dismiss is denied.

               III.

  ASARCO's Motion to File an Amicus Brief Out of Time

 We deny ASARCO's motion for leave to submit an amicus curiae brief

out of time. Although the Commission's rules do not address the time for
filing of an amicus brief, the Commission may properly look for guidance
to Fed. R. App. P. 29 ("Rule 29"). 4/ ASARCO recognizes that

3/ Further, even an intervenor may be required to demonstrate an
"appealable interest" for purposes of seeking administrative or judicial
review in situations where all the other parties have decided not to
appeal. Cf. United States v. Imperial Irrigation Dist., 559 F.2d 509,
521 (9th Cir. 1977).

4/ Rule 29 provides:

   Brief of an Amicus Curiae

   A brief of an amicus curiae may be filed only if

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accompanied by written consent of all parties, or by
leave of court granted on motion or at the request
of the court, except that consent or leave shall
not be required when the brief is presented by the
United States or an officer or agency thereof, or by
a State, Territory or Commonwealth. The brief may
be conditionally filed with the motion for leave. A
motion for leave shall identify the interest of the

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its brief has been tendered out of time. The fourth sentence of Rule 29
states that "[s]ave as all parties otherwise consent, any amicus curiae
shall file its brief within the time allowed the party whose position as to
affirmance or reversal the amicus brief will support unless the court for
cause shown shall grant leave for later filing...." ASARCO's brief was not
submitted until almost two months after the time allowed Mid-Continent (the
party whose position it supports) to file its brief. The Secretary and the
UMWA oppose ASARCO's motion.

We conclude that ASARCO could reasonably have been expected to be

aware of the litigation in this proceeding and to have sought participation
on a more timely basis. Because ASARCO's brief was tendered almost two
months out of time, and both the Secretary and UMWA, parties to the
proceeding, oppose ASARCO+s participation as an amicus, ASARCO's motion is
denied.

  applicant and shall state the reasons why a brief of
  an amicus curiae is desirable. Save as all parties
  otherwise consent, any amicus curiae shall file its
  brief within the time allowed the party whose position
  as to affirmance or reversal the amicus brief will
  support unless the court for cause shown shall grant
  leave for later filing, in which event it shall specify
  within what period an opposing party may answer. A
  motion of an amicus curiae to participate in the oral
  argument will be granted only for extraordinary
  reasons.

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IV.

                Conclusion

 For the reasons explained above, we grant the Secretary's motion

to dismiss the petition for discretionary review filed by the AMC. The
AMC may continue as an amicus on review and may participate in oral
argument on the merits of this proceeding. The caption of this proceeding
is revised to delete the AMC as a party. ASARCO's motion for leave to file
an amicus brief is denied. ASARCO's brief and any reference to the brief
are stricken from the record. 5/

             Richard V. Backley, Commissioner
             Joyce A. Doyle, Commissioner

5/ Commissioner Nelson did not participate in the disposition of these
motions.

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Distribution

Charles W. Newcom, Esq.
Sherman & Howard
3000 First Interstate Tower North
633 Seventeenth St.
Denver, Colorado 80202

Edward M. Green, Esq.
Mark G. Ellis, Esq.
American Mining Congress
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036

Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005

Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Edward Mulhall, Jr., Esq.
Delaney & Balcomb
P.0. Drawer 790
818 Colorado Avenue
Glenwood Springs, Colorado 81602

Henry Chajet, Esq.
Doyle & Savit
919 18th Street, N.W.
Washington, D.C. 20006