Petition for review of an order of the Interior Board of Mine Operations Appeals. 523 F.2d 25.
Pell, Circuit Judge, Sprecher, Circuit Judge, and Joseph Sam Perry, Senior District Judge.*fn* Pell, Circuit Judge, dissenting.
ON PETITION FOR REHEARING
PERRY, Senior District Judge.
On June 30, 1975 Old Ben filed in this court a petition for rehearing and suggestion of rehearing en banc, to which, on July 24, 1975, respondents filed an answer. In its petition, Old Ben repeats its argument that 43 C.F.R. § 4.587 is directly contrary to section 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d), and that the majority of this panel incorrectly held that the Secretary did not err in assigning the burden of proof to Old Ben. In their answer to the petition for rehearing, respondents point out that Judge Pell, in his dissent from the majority opinion, stated:
Slip Opinion, Nos. 74-1654, 74-1655 and 74-1656, Decided June 13, 1975, at 20.
Respondents contend that this duty has in fact been consistently imposed upon MESA by the Board. In support of their contention, respondents cite the very-recently-decided case of Zeigler Coal Company, 4 IBMA, 88,101, 3 Emp. S. H. Guide (CCH), para. 19,478 and 23,247 (March 31, 1975), where the Board held that the Government is required to bear the initial burden of presenting a prima facie case in the administrative hearings, although the mine owner bears the ultimate burden of proof under 43 C.F.R. § 4.587.*fn1 Respondents contend that in each of the three instant cases the Board thoroughly reviewed the evidence and was not of the opinion that the evidence was left "in equipoise" (to use the words of Zeigler) as to its weight; that in case No. 74-1654 the Board approved the ALJ's finding that MESA had established by a preponderance of the evidence that the conditions and practices cited in the Order existed at the time of the issuance of the Order; and that similar findings were made in the other two cases (74-1655 and 74-1656).
What we said in the section of our slip opinion entitled "Burden of Proof" applies not to the initial burden of going forward, but to the ultimate burden of persuasion. We certainly agree with Judge Pell that the Government should have -- and we conclude that it does have -- the duty to establish a prima facie case to justify the extraordinary action of closing down mining operations through the issuance of imminent danger orders. The Board so held in Zeigler, supra, and we concur in that holding. The Zeigler Board, however, went on to hold that the mine owner bears the ultimate burden of proof, and with this holding, too, we concur. In practice, therefore, the burden of proof is split, with the Government bearing the burden of going forward, and the mine operator bearing the ultimate burden of persuasion. We think that this accords with the intent of Congress as expressed in the following Committee comment on section 7(c) of the Administrative Procedure Act (now codified as 5 U.S.C. § 556(d)):
That the proponent of a rule or order has the burden of proof means not only that the party initiating the proceeding has the general burden of coming forward with a prima facie case but that other parties, who are proponents of some different result, also for that purpose have a burden to maintain. Sen. Doc. No. 248, 79th Cong., 2d Sess., 208, 270 (1946).
Although 43 C.F.R. § 4.587 might have been more artfully drafted, we read it to mean simply that the petitioner who initiates the proceedings -- here Old Ben -- has the ultimate burden of persuasion. We do not think that the regulation was intended to relieve -- nor, indeed, can it relieve -- the proponent of an imminent danger order from the burden of putting forth a prima facie case in the administrative hearings.
We conclude therefore that once the emergency passed, the Government did go forward with proof to justify the extraordinary action of the inspectors in issuing the imminent danger orders in each of the three instant cases. We are persuaded that the Government presented a prima facie case in the administrative hearings in each of the three instant cases; that Old Ben was given ample opportunity, but failed, to rebut the prima facie cases; and that Old Ben thereby failed to sustain its ultimate burden of persuasion.
In sum, we think that once the proponent of an order has presented a prima facie case, it has discharged its burden of proof. See, e.g., National Airlines, Inc. v. Civil Aeronautics Board, 112 U.S. App. D.C. 119, 300 F.2d 711, 715 n. 12 (1962).
Old Ben points out numerous deficiencies of proof. But our function is not to resolve conflicts in the evidence; rather, it is to determine if there was sufficient evidence to support the findings of imminent danger. And, as we have already held, there was substantial evidence to support the Board's findings of imminent danger.
The petition for rehearing is Denied. A majority of the judges in active service who voted on the matter having voted to deny the suggestion of en banc rehearing, the suggestion ...