UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: October 2, 1975.
OLD BEN COAL CORPORATION, PETITIONER,
INTERIOR BOARD OF MINE OPERATIONS APPEALS, UNITED STATES DEPARTMENT OF INTERIOR, AND ROGER C. B. MORTON, SECRETARY OF THE INTERIOR, RESPONDENTS
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 that the matter be reheard en banc is Denied.
PETITION FOR REHEARING DENIED. SUGGESTION FOR REHEARING EN BANC DENIED.
PELL, Circuit Judge, dissenting.
The cases which were before this court were petitions for review of three decisions of the Interior Board of Mine Operations Appeals to whom authority had been delegated by the Secretary of the Interior.
When the consolidated petitions were originally considered by the three-judge panel of this court, the Government clearly and unequivocally took the position that the burden of proof, without qualification, in the administrative hearings subsequent to the summary closures by the inspectors was on the mine operator not upon the Government.
Thus, beginning at page 27 of the Government's brief the issue is stated, " THE SECRETARY PROPERLY ASSIGNED THE BURDEN OF PROOF TO THE PETITIONER DURING THE ADMINISTRATIVE PROCEEDINGS PURSUANT TO SECTION 105(a)(1)."
The brief justified placing the burden of proof on the mine operator by stating: "It is, after all, his mine and the condition of it is best in his knowledge." (Page 30) "To place the burden on the Secretary would seriously frustrate the Act. Accordingly, the Board's assignment of the burden of proof pursuant to Section 105(a)(1) of the Act is entirely consistent with this Congressional intent." (page 31)
In its response to the petition for rehearing, seizing upon my observation in my dissenting opinion that, at the very least, the duty should rest upon the Government to establish a prima facie case to support its position, the Government asserts that this "is the duty which the Board in the past has consistently placed on MESA and the duty it will continue to place on MESA in the future," citing the case of Zeigler Coal Company, 4 IBMA, 88,101, 3 Emp. S. H. Guide (CCH), para. 19,478 at 23,247 (1975). Other than this bald assertion there is no support in the record that this policy was pursued in the three proceedings here under review. These three cases were decided in July 1974 based on ALJ hearings in 1973. Zeigler was decided in March 1975. While the Government's response to the petition to rehearing would suggest that it had assumed the burden of prima facie proof consistently in the past, the Board in its decision in Zeigler, "because of the apparent confusion over the application of the burden of proof rule," deemed it necessary to clarify the Board's position on the burden of proof issue. There is conspicuously absent from the decision any reference to the procedure announced in Zeigler as having been the theretofore accepted procedure.
The petitioner here if denied due process in its hearing by having the burden not only of ultimate proof but prima facie as well can find little solace in a subsequently announced change of procedure.
While it is not clear what approach was utilized by the ALJ in one of the three cases insofar as prima facie proof is concerned, there is no question that the prima facie burden of proof was placed on the operator in the other two. In Appeal No. 74-1654, the company put on its testimony at the beginning of the ALJ hearing. At the conclusion of the testimony, "the Applicant rested his case, and counsel for the United Mine Workers moved for dismissal of the case on the ground that Applicant failed to carry his burden of proof." One cannot resist commenting that it is indeed unorthodox for the party having the prima facie burden to put on its evidence after the party not having that burden has proceeded to do so. In any event, the Union motion was taken under advisement and the Government then called its witnesses. At the conclusion of his discussion of the evidence, the ALJ observed that "in a review proceeding concerning a 104(a) imminent danger order, the burden of proof lies with the Applicant." In his Conclusions of Law this phrase was repeated followed by the conclusion that the "Applicant in this proceeding has not met his burden of establishing that the condition or practice recited in the subject order did not constitute imminent danger."
In appeal No. 74-1656, the operator again had to put its testimony on first, including in this instance calling the inspector as an adverse witness. In this case, it was MESA which at the conclusion of the operator's presentment moved for summary dismissal of the application. This was taken under advisement. The Government proffered no witnesses but put into evidence the testimony of an expert who had testified in a previous case.
I have addressed myself to the position now taken by the Government which position I cannot find supports the decisions in the cases before us. For this reason alone, it is my opinion that the petition for rehearing should have been granted and the cases remanded for proper due process proceedings. Even of greater significance, however, in my opinion, is the fact that the Government still adamantly insists that the ultimate burden of proof in the post-summary-closing administrative hearings should be on the one whose mine has been closed. This attitude basically is: "We took your property without notice or hearing and if you think we were wrong, prove it." This in my opinion is not good government and is violative of what is still regarded as a basic Constitutional precept.
For the reasons expressed in my dissenting opinion on the matter of where the ultimate burden of proof should rest, I dissent from the denial of rehearing.*fn1 The cases should be remanded for further proper and appropriate proceedings. The end result may well be the same. Irrespective of what the end result may be in these particular cases, the more significant aspect is the establishment of fairness of procedure which, as Mr. Justice Frankfurter observed, is due process in the primary sense. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 95 L. Ed. 817, 71 S. Ct. 624 (1951).
That this matter is not just an inconsequential "tempest" is graphically demonstrated by the quotation from Zeigler that if the trier of fact should determine that the evidence is equally balanced, "or in equipoise," the operator's request for relief must be denied because it has failed to sustain its burden of proof that a Government agent has improperly closed its mine, a subjective determination made without hearing or notice. I find it shocking that the Government should not ultimately have to prove justification by a fair preponderance of the evidence.