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Thunder Basin Coal v. Reich (92-896), 510 U.S. 200 (1994).
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[ Blackmun ]
Concurrence
[ Scalia ]
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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES


No. 92-896


THUNDER BASIN COAL COMPANY, PETITIONER v. ROBERT B. REICH, SECRETARY OF LABOR, et al.

on writ of certiorari to the united states court of appeals for the tenth circuit

[January 19, 1994]

Justice Blackmun delivered the opinion of the Court.

Congress adopted the Mine Act "to protect the health and safety of the nation's coal or other miners." 30 U.S.C. § 801(g). The Act requires the Secretary of Labor or his representative to conduct periodic, unannounced health and safety inspections of the Nation's mines. [n.1] Section § 813(f) provides:

"A representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physicalinspection of any coal or other mine . . . for the purpose of aiding such inspection and to participate in pre-or post-inspection conferences held at the mine."

Regulations promulgated under this section define a miners' representative as "[a]ny person or organization which represents two or more miners at a coal or other mine for purposes of the Act." 30 CFR § 40.1(b)(1) (1993).

In addition to exercising these "walk around" inspection rights under §813(f), persons designated as representatives of the miners may obtain certain health and safety information [n.2] and promote health and safety enforcement. [n.3] Once the mine employees designate one or more persons as their representatives, the employer must post-at the mine information regarding these designees. 30 CFR § 40.4.

The Secretary has broad authority to compel immediate compliance with Mine Act provisions through the useof mandatory civil penalties, discretionary daily civil penalties, and other sanctions. [n.4] Challenges to enforcement are reviewed by the Federal Mine Safety and Health Review Commission, 30 U.S.C. §§ 815 and 823, which is independent of the Department of Labor, and by the appropriate United States Court of Appeals, § 816.

Petitioner Thunder Basin Coal Company operates a surface coal mine in Wyoming with approximately 500 nonunion employees. In 1990, petitioner's employees selected two employees of the United Mine Workers of America (UMWA), who were not employees of the mine, to serve as their miners' representatives pursuant to § 813(f). Petitioner did not post-the information regarding the miners' representatives as required by 30 CFR § 40.4 but complained to the Mine Safety and Health Administration (MSHA) [n.5] that the designation compromised its rights under the National Labor Relations Act. App. 31. The MSHA District Manager responded with a letter instructing petitioner to post-the miners' representative designations. Id., at 49.

Rather than post-the designations and before receiving the MSHA letter, petitioner filed suit in the United States District Court for the District of Wyoming forpre enforcement injunctive relief. Id., at 6. Petitioner contended that the designation of non employee UMWA "representatives" violated the principles of collective bargaining representation under the NLRA as well as the company's NLRA rights to exclude union organizers from its property. Id., at 9-10. Petitioner argued then, as it does here, that deprivation of these rights would harm the company irreparably by "giv[ing] the union organizing advantages in terms of access, personal contact and knowledge that would not be available under the labor laws, as well as enhanced credibility flowing from the appearance of government imprimatur." Reply Brief for Petitioner 14.

Petitioner additionally alleged that requiring it to challenge the MSHA's interpretation of 30 U.S.C. § 813(f) and 30 CFR pt. 40 through the statutory review process would violate the Due Process Clause of the Fifth Amendment, since the company would be forced to choose between violating the Act and incurring possible escalating daily penalties, [n.6] or, on the other hand, complying with the designations and suffering irreparable harm. The District Court enjoined respondents from enforcing 30 CFR pt. 40, finding that petitioner had raised serious questions going to the merits and that it might face irreparable harm. [n.7]

The Court of Appeals for the Tenth Circuit reversed, holding that the Mine Act's comprehensive enforcement and administrative review scheme precluded district court jurisdiction over petitioner's claims. 969 F. 2d 970 (1992). The court stated:

"The gravamen of Thunder Basin's case is a dispute over an anticipated citation and penalty . . . . Operators may not avoid the Mine Act's administrative review process simply by filing in a district court before actually receiving an anticipated citation, order, or assessment of penalty." Id., at 975.

To hold otherwise, the court reasoned, "would permit preemptive strikes that could seriously hamper effective enforcement of the Act, disrupting the review scheme Congress intended." Ibid. The court also concluded that the Mine Act's review procedures adequately protected petitioner's due process rights. Ibid.

We granted certiorari on the jurisdictional question, 507 U. S. ___ (1993), to resolve a claimed conflict with the Sixth Circuit Court of Appeals. See Southern Ohio Coal Co. v. Donovan, 774 F. 2d 693 (1985), amended, 781 F. 2d 57 (1986).

In cases involving delayed judicial review [n.8] of finalagency actions, we shall find that Congress has allocated initial review to an administrative body where such intent is "fairly discernible in the statutory scheme." Block v. Community Nutrition Institute, 467 U.S. 340, 351 (1984), quoting Data Processing Service v. Camp, 397 U.S. 150, 157 (1970). Whether a statute is intended to preclude initial judicial review is determined from the statute's language, structure, and purpose, its legislative history, Block, 467 U.S., at 345, and whether the claims can be afforded meaningful review. See, e.g., Board of Governors of Federal Reserve System v. MCorp Financial, Inc., 502 U.S. ___ (1991); Whitney Bank v. New Orleans Bank, 379 U.S. 411 (1965).

Applying this analysis to the review scheme before us, we conclude that the Mine Act precludes district court jurisdiction over the pre-enforcement challenge made here. The Act establishes a detailed structure for reviewing violations of "any mandatory health or safety standard, rule, order, or regulation promulgated" under the Act. § 814(a). A mine operator has 30 days to challenge before the Commission any citation issued under the Act, after which time an uncontested order becomes "final" and "not subject to review by any court or agency." §§ 815(a) and (d). Timely challenges are heard before an administrative law judge (ALJ), § 823(d)(1), with possible Commission review. [n.9] Only the Commission has authority actually to impose civilpenalties proposed by the Secretary, § 820(i), and the Commission reviews all proposed civil penalties de novo according to six criteria. [n.10] The Commission may grant temporary relief pending review of most orders, § 815(b)(2), and must expedite review where necessary, § 815(d).

Mine operators may challenge adverse Commission decisions in the appropriate Court of Appeals, § 816(a)(1), whose jurisdiction "shall be exclusive and its judgment and decree shall be final" except for possible Supreme Court review. Ibid. The Court of Appeals must uphold findings of the Commission that are substantially supported by the record, ibid., but may grant temporary relief pending final determination of most proceedings, § 816(2).

Although the statute establishes that the Commission and the courts of appeals have exclusive jurisdiction over challenges to agency enforcement proceedings, the Act is facially silent with respect to pre-enforcement claims. The structure of the Mine Act, however, demonstrates that Congress intended to preclude challenges such as the present one. The Act's comprehensive review process does not distinguish between pre-and post-enforcement challenges, but applies to all violations of the Act and its regulations. § 814(a). Contrary to petitioner's suggestion, Reply Brief for Petitioner 3, actions before the Commission are initiated not by the Secretary but by a mine operator who claims to be aggrieved. See § 815(a). The Act expressly authorizesdistrict court jurisdiction in only two provisions, §§ 818(a) and 820(j), which respectively empower the Secretary to enjoin habitual violations of health and safety standards and to coerce payment of civil penalties. Mine operators enjoy no corresponding right [n.11] but are to complain to the Commission and then to the Court of Appeals.

The legislative history of the Mine Act confirms this interpretation. At the time of the Act's passage, at least one worker was killed and 66 miners were disabled every working day in the Nation's mines. See S. Rep. No. 95-181, p. 4 (1977), Legislative History of the Federal Mine Safety and Health Act of 1977 (Committee Print prepared for the Subcommittee on Labor of the Senate Committee on Human Resources) Ser. No. 95-2, p. 592 (1977) (Leg. Hist.). Frequent and tragic mining disasters testified to the ineffectiveness of then existing enforcement measures. [n.12] Under existing legislation, [n.13] civil penalties were not always mandatory and were too low to compel compliance, and enforcement was hobbled by a cumbersome review process. [n.14]

Congress expressed particular concern that under the previous Coal Act mine operators could contest civil penalty assessments de novo in federal district court once the administrative review process was complete, thereby "seriously hamper[ing] the collection of civil penalties." [n.15] Concluding that "rapid abatement ofviolations is essential for the protection of miners," Leg. Hist. 618, Congress accordingly made improved penalties and enforcement measures a primary goal of the Act.

The 1977 Mine Act thus strengthened and streamlined health and safety enforcement requirements. The Act authorized the Secretary to compel payment of penalties and to enjoin habitual health and safety violators in federal district court. See Leg. Hist. 627; 30 U.S.C. §§ 820(j) and 818(a). Assessment of civil penalties was made mandatory for all mines, and Congress expressly eliminated the power of a mine operator to challenge a final penalty assessment de novo in district court. Cf. Whitney Bank, 379 U. S., at 420 (1965) (that "Congress rejected a proposal for a de novo review in the district courts of Board decisions" supports a finding of district court preclusion). [n.16] We consider the legislative history and these amendments to be persuasive evidence that Congress intended to direct ordinary challenges under the Mine Act to a single review process.

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), is not to the contrary. In that case, this Court held that statutory review of certain provisions of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended by the Drug Amendments of 1962, 76 Stat. 780, 21 U.S.C. § 301 et seq., did not preclude district court jurisdiction over a pre-enforcement challenge to regulations promulgated under separate provisions of that Act. In so holding, the Court found that the presence of a statutory saving clause, see 387 U. S., at 144, and the statute's legislative history demonstrated "rather conclusively that the specific review provisions were designed to give an additional remedy and not to cut down more traditional channels of review." Id., at 142. It concluded that Congress' primary concern in adopting the administrative review procedures was to supplement review of specific agency determinations over which traditional forms of review might be inadequate. Id., at 142-144. Contrary to petitioner's contentions, no comparable statutory language or legislative intent is present here. Indeed, as discussed above, the Mine Act's text and legislative history suggest precisely the opposite. The prospect that federal jurisdiction might thwart effective enforcement of the statute also was less immediate in Abbott Laboratories, since the Abbott petitioners did not attempt to stay enforcement of the challenged regulation pending judicial review, as petitioner did here. Id., at 155-156.

We turn to the question whether petitioner's claims are of the type Congress intended to be reviewed within this statutory structure. This Court previously has upheld district court jurisdiction over claims considered "wholly `collateral' " to a statute's review provisions and outside the agency's expertise, Heckler v. Ringer, 466 U.S. 602, 618 (1984), discussing Mathews v. Eldridge, 424 U.S. 319 (1976), particularly where a finding ofpreclusion could foreclose all meaningful judicial review. See Traynor v. Turnage, 485 U.S. 535, 544-545 (1988) (statutory prohibition of all judicial review of Veterans Administration benefits determinations did not preclude jurisdiction over an otherwise unreviewable collateral statutory claim); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 678-680 (1986); Johnson v. Robison, 415 U.S. 361, 373-374 (1974); Oestereich v. Selective Service Bd., 393 U.S. 233, 237-238 (1968); Leedom v. Kyne, 358 U.S. 184, 190 (1958) (upholding injunction of agency action where petitioners had "no other means within their control . . . to protect and enforce that right"). In Mathews v. Eldridge, for example, it was held that 42 U.S.C. § 405(g), which requires exhaustion of administrative remedies before the denial of Social Security disability benefits may be challenged in district court, was not intended to bar federal jurisdiction over a due process challenge that was "entirely collateral" to the denial of benefits, 424 U. S., at 330, and where the petitioner had made a colorable showing that full postdeprivation relief could not be obtained, id., at 331.

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), similarly held that an alien could bring a due process challenge to Immigration and Naturalization Service amnesty determination procedures, despite an Immigration and Nationality Act provision expressly limiting judicial review of individual amnesty determinations to deportation or exclusion proceedings. See 8 U.S.C. § 1160(e). This Court held that the statutory language did not evidence an intent to preclude broad "pattern and practice" challenges to the program, 498 U. S., at 494, 497, and acknowledged that "if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review," id., at 496.

An analogous situation is not presented here. Petitioner pressed two primary claims below: that the UMWA designation under § 813(f) violates the principles of collective bargaining under the NLRA and petitioner's right "to exclude nonemployee union organizers from [its] property," Lechmere, Inc. v. NLRB, 502 U. S. ___, ___ (1992), and that adjudication of petitioner's claims through the statutory review provisions will violate due process by depriving petitioner of meaningful review. Petitioner's statutory claims at root require interpretation of the parties' rights and duties under § 813(f) and 30 CFR pt. 40, and as such arise under the Mine Act and fall squarely within the Commission's expertise. The Commission, which was established as an independent review body to "develop a uniform and comprehensive interpretation" of the Mine Act, Hearing on the Nomination of Members of the Federal Mine Safety and Health Review Commission before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 1 (1978), has extensive experience interpreting the walk around rights [n.17] and recently addressed the precise NLRA claims presented here. [n.18] Although the Commission hasno particular expertise in construing statutes other than the Mine Act, we conclude that exclusive review before the Commission is appropriate since "agency expertise [could] be brought to bear on" the statutory questions presented here. Whitney Bank, 379 U. S., at 420.

As for petitioner's constitutional claim, we agree that "[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies," Johnson v. Robison, 415 U. S., at 368, quoting Oestereich v. Selective Service Bd., 393 U.S. 233, 242 (1968) (Harlan, J., concurring in result); accord, Califano v. Sanders, 430 U.S. 99, 109 (1977). This rule is not mandatory, however, and is perhaps of less consequence where, as here, the reviewing body is not the agency itself but an independent commission established exclusively to adjudicate Mine Act disputes. See Secretary v. Richardson, 3 F.M.S.H.R.C. 8, 18-20 (1981). The Commission has addressed constitutional questions in previous enforcement proceedings. [n.19] Even if this were not the case, however, petitioner's statutory and constitutionalclaims here can be meaningfully addressed in the court of appeals. [n.20]

We conclude that the Mine Act's comprehensive enforcement structure, combined with the legislative history's clear concern with channeling and streamlining the enforcement process, establishes a "fairly discernible" intent to preclude district court review in the present case. See Block v. Community Nutrition Institute, 467 U. S., at 351. Petitioner's claims are "pre enforcement" only because the company sued before a citation was issued, and its claims turn on a question of statutory interpretation that can be meaningfully reviewed under the Mine Act. Had petitioner persisted in its refusal to post-the designation, the Secretary would have been required to issue a citation and commence enforcement proceedings. See 30 U.S.C. §§ 815(a) and 820 (1988 ed. and Supp. IV). Nothing in the language and structure of the Act or its legislative history suggests that Congress intended to allow mine operators to evade the statutory review process by enjoining the Secretary from commencing enforcement proceedings, as petitioner sought to do here. To uphold the District Court's jurisdiction in these circumstances would be inimical to the structure and the purposes of the Mine Act.

Petitioner finally contends, in the alternative, that due process requires district court review because the absence of pre-enforcement declaratory relief before the Commission will subject petitioner to serious and irreparable harm. We need not consider this claim, however, because neither compliance with, nor continuedviolation of, the statute will subject petitioner to a serious prehearing deprivation.

The record before us contains no evidence that petitioner will be subject to serious harm if it complies with 30 U.S.C. § 813(f) and 30 CFR pt. 40 by posting the designations, and the potential for abuse of the miners' representative position appears limited. As the District Manager of the MSHA stated to petitioner, designation as a miners' representative does not convey "an uncontrolled access right to the mine property to engage in any activity that the miners' representative wants." App. 49-50. Statutory inspections of petitioner's mine need occur only twice annually and are conducted with representatives of the Secretary and the operator. Because the miners' representative cannot receive advance notice of an inspection, the ability of the nonemployee UMWA designees to exercise these limited walk around rights is speculative. See Tr. of Oral Arg. 31; Brief for International Union, UMWA, as Amicus Curiae 11, n. 2. Although it is possible that a miners' representative could abuse his privileges, we agree with the Court of Appeals that petitioner has failed to demonstrate that such abuse, entirely hypothetical on the record before us, cannot be remedied on an individual basis under the Mine Act. See 969 F. 2d, at 976-977, and n. 6; Utah Power & Light Co. v. Secretary of Labor, 897 F. 2d 447, 452 (CA10 1990); Kerr McGee Coal Corp. v. Secretary, 15 F.M.S.H.R.C. 352, 361-362 (1993). [n.21]

Nor will petitioner face any serious prehearing deprivation if it refuses to post-the designation while challenging the Secretary's interpretation. [n.22] Although the Act's civil penalties unquestionably may become onerous if petitioner chooses not to comply, the Secretary's penalty assessments become final and payable only after full review by both the Commission and the appropriate Court of Appeals. 30 U.S.C. §§ 820(i) and 816. A mine operator may request that the Commission expedite its proceedings, § 815(d), and temporary relief of certain orders is available from the Commission and the Court of Appeals. §§ 815(b)(2) and 816(a)(2). Thus, this case does not present the situation confronted in Ex Parte Young, 209 U.S. 123, 148 (1908), in which the practical effect of coercive penalties for non compliance was to foreclose all access to the courts. Nor does this approach a situation in which compliance is sufficiently onerous and coercive penalties sufficiently potent that a constitutionally intolerable choice might be presented.

We conclude that the Mine Act's administrative structure was intended to preclude district court jurisdiction over petitioner's claims and that those claims can be meaningfully reviewed through that structure consistent with due process. [n.23] The judgment of the Court ofAppeals is affirmed.

It is so ordered.


Notes

1 Underground mines must be inspected at least four times a year, and surface mines must be inspected at least twice annually. 30 U.S.C. § 813(a).

2 Miners' representatives are entitled to receive "a copy of any order, citation, notice, or decision" issued by the Secretary to the mine operator, 30 U.S.C. § 819(b), as well as copies of certain mine health and safety records available to the Secretary regarding employee exposure to toxic or other harmful agents, § 813(c), daily mine inspections, 30 CFR § 77.1713 and plans for mine excavation, § 77.1101, roof control, § 75.220, and employee training, §§ 48.3 and 48.23.

3 Miners' representatives, among other things, may inform the Secretary of mine hazards, 30 U.S.C. § 813(g)(2), request immediate additional inspections of the mine when a violation or imminent danger exists, § 813(g)(1), and participate in proceedings before the Federal Mine Safety and Health Review Commission, § 815(d). Representatives may request or challenge certain enforcement actions against a mine operator, §§ 815(d) and 817(e)(1), contest the time an operator is given to abate a Mine Act violation, §§ 815(d), and initiate proceedings to modify the application of health and safety standards, 30 CFR § 44.3.

4 The Secretary must issue a citation and recommend assessment of a civil penalty of up to $50,000 against any mine operator believed to have violated the Act. 30 U.S.C. §§ 814(a), 815(a), and 820(a). If an operator fails to abate the violation within the time allotted, the Secretary may assess additional daily civil penalties of up to $5,000 per day pending abatement. § 820(b). The Secretary's representative also may issue a "withdrawal order," directing all individuals to withdraw from the affected mine area, §§ 814(b) and (d), or pursue criminal penalties, § 820(d).

5 The Mine Safety and Health Administration is established within the Department of Labor and represents the Secretary in enforcing the Mine Act. 91 Stat. 1319, 29 U.S.C. § 557a.

6 Petitioner relied for this proposition on a similar case in which a mine operator refused to post-the designation of a UMWA employee, a citation was issued, and the MSHA ordered abatement within 24 hours and threatened to impose daily civil penalties. See Kerr McGee Coal Corp. v. Secretary, 15 F.M.S.H.R.C. 352 (1993), appeal pending, No. 93-1250 (CADC). Kerr McGee complied but contested the citation. An administrative law judge rejected the operator's claim, and the Commission affirmed, holding that § 813(f) did not violate the NLRA. Id., at 362-363. The Commission eventually fined Kerr McGee a total of $300 for its non compliance.

7 App. to Pet. for Cert. A 24. Before the Court of Appeals ruled on the appeal from the preliminary injunction, the District Court helda trial and entered a permanent injunction in favor of petitioner. See Thunder Basin Coal Co. v. Martin, No. 91-CV 0050-B (D.Wyo. March 13, 1992). The Court of Appeals subsequently denied petitioner's motion to stay appeal of the preliminary injunction and to consolidate the two cases, finding conclusive its holding that the District Court lacked jurisdiction. 969 F. 2d 970, 973, n. 3 (CA10 1992).

8 Because court of appeals review is available, this case does not implicate "the strong presumption that Congress did not mean to prohibit all judicial review." Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 672 (1986), quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975).

9 30 U.S.C. § 823(d)(2). The Commission exercises discretionary review over any case involving, among others, a "substantial question of law, policy or discretion," § 823(d)(2)(A)(ii)(IV), and may review on its own initiative any decision "contrary to law or Commission policy" or in which "a novel question of policy has been presented," § 823(d)(2)(B). Any ALJ decision not granted review by the Commission within 40 days becomes a "final decision of the Commission." § 823(d)(1).

10 The statutory criteria are "the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance." 30 U.S.C. § 820(i).

11 Petitioner points to § 960, which provides that "no justice, judge or court of the United States shall" enjoin enforcement of interim mandatory health and safety standards, and to § 815(a), which provides that citations not contested in a timely manner are "not subject to review by any court or agency," as evidence that Congress expressly prohibited federal jurisdiction when it so intended. Petitioner misconstrues § 960, which bars a certain form of relief but says nothing about the appropriate forum for a challenge. Section 815(a) similarly provides only that failure timely to challenge a citation precludes review before the Commission and court of appeals; it does not suggest that district court review is otherwise available. In light of the Act's other provisions granting district courts jurisdiction over challenges brought only by the Secretary, §§ 818(a) and 820(j), petitioner's argument based on the maxim expressio unius est exclusio alterius is unpersuasive.

12 In February 1972, for example, 125 persons were killed when a mine dam broke at Buffalo Creek in West Virginia. Leg. Hist. 592. See generally G. Stern, The Buffalo Creek Disaster (1976). Ninety one miners died of carbon monoxide asphyxiation in May 1972 atthe Sunshine Silver Mine in Idaho. In July 1972, nine miners were killed in a mine fire in Blacksville, W. Va., and in March 1976, 23 miners and three federal inspectors died in methane gas explosions at the Scotia coal mine in Kentucky. Ibid.

The House and Senate Committee Reports observed that these accidents resulted from hazards that were remediable and that in many cases already had been the object of repeated enforcement efforts. See generally Leg. Hist. 362, 371, 592-593, 637. The 1972 Buffalo Creek disaster, for example, occurred after the mine had been assessed over $1.5 million in penalties, "not one cent of which had been paid." Id., at 631. Sixty two ventilation violations were noted in the two years prior to the Scotia gas explosions, but the imposed penalties failed to coerce compliance. Id., at 629-630.

13 The 1977 Mine Act renamed and amended the Federal Coal Mine Health and Safety Act of 1969 (Coal Act), 91 Stat. 1290, and repealed the Federal Metal and Nonmetallic Mine Safety Act of 1966, 91 Stat. 1322.

14 The Senate Report found it "unacceptable that years after enactment of these mine safety laws . . . [m]ine operators still find it cheaper to pay minimal civil penalties than to make the capital investments necessary to adequately abate unsafe or unhealthy conditions, and there is still no means by which the government can bring habitual and chronic violators of the law into compliance." Leg. Hist. 592; see also, id., at 597.

15 Id., at 633. The Senate Report explained:

"The Committee firmly believes that to effectively induce compliance, the penalty must be paid by the operator in reasonably close time proximity to the occurrence of the underlying violation. A number of problems with the current penalty assessment and collection system interfere with this. Final determinations of penalties are not self enforcing, and operators have the right to seekjudicial review of penalty determinations, and may request a de novo trial on the issues in the U. S. District Courts. This encourages operators who are not pre-disposed to voluntarily pay assessed penalties to pursue cases through the elaborate administrative procedure and then to seek redress in the Courts. Since the District Courts are still reluctant to schedule trials on these cases, and the Department of Justice has been reluctant to pursue such cases in the courts, the matters generally languish at that stage, and the penalties go uncollected." Id., at 604.

16 The Senate Report's citation, see Leg. Hist. 602, of Bituminous Coal Operators' Assn v. Secretary of Interior, 547 F. 2d 240 (CA4 1977) (holding that pre-enforcement district court challenges were not precluded under the 1969 Coal Act), does not support petitioner's claim that Congress intended to preserve district court jurisdiction over pre-enforcement suits. That case was cited for an unrelated proposition and does not constitute a "settled judicial construction" that Congress presumptively preserved. United States v. Powell, 379 U.S. 48, 55, n. 13 (CA3 1964); see also Keene Corp. v. United States, 508 U. S. ___, ___ (1993).

17 See Cyprus Empire Corp. v. Secretary, 15 F.M.S.H.R.C. 10 (1993) (striking workers' entitlement to walk around representation); Council of Southern Mountains, Inc. v. Martin County Coal Corp., 8 F.M.S.H.R.C. 206 (1984), aff'd sub nom. Council of Southern Mountains, Inc. v. FMSHRC, 751 F. 2d 1418 (CADC 1985) (non employee miners' representative entitlement to monitor training courses at the mine); Magma Copper Co. v. Secretary, 1 F.M.S.H.R.C. 1948 (1979), aff'd in part, 645 F. 2d 694 (CA9 1981) (compensation for multiple miners' representatives).

18 See Kerr McGee Coal Corp. v. Secretary, 15 F.M.S.H.R.C. 352 (1993). The Commission concluded that there was "no basis" for limiting the designation of miners' representatives to "member[s] of a union that also represents the miners for collective bargaining purposes under the NLRA," id., at 361, since the "discrete safety and health purposes of the Mine Act . . . render these NLRA principles inapplicable here." Id., at 362. The Commission noted that the preamble to 30 CFR pt. 40 expressly disapproves incorporation ofthe NLRA's majoritarian representation principles, id., at 359, and n. 8, and rejected petitioner's property rights claim, since "Lechmere does not reverse walkaround law as it has developed under the Mine Act." Id., at 362. Cf. Emery Mining Corp. v. Secretary, 10 F.M.S.H.R.C. 276 (1988), aff'd in part and rev'd in part sub nom. Utah Power & Light Co. v. Secretary of Labor, 897 F. 2d 447 (CA10 1990) (construing the Mine Act in light of the NLRA and concluding that a miners' representative may be a nonemployee).

19 See Secretary v. Jim Walter Resources, Inc., 9 F.M.S.H.R.C. 1305, 1306-1307 (1987), aff'd, 920 F. 2d 738 (CA11 1990) (due process); Secretary v. Alabama By Products Corp., 4 F.M.S.H.R.C. 2128, 2129-2130 (1982) (vagueness); Secretary v. Richardson, 3 F.M.S.H.R.C. 8, 21-28 (1981) (equal protection). Kaiser Coal Corp. v. Secretary, 10 F.M.S.H.R.C. 1165 (1988), does not suggest otherwise, but simply held that declaratory relief from the Commission was unavailable for a question already under consideration in the Court of Appeals.

20 Cf. Weinberger v. Salfi, 422 U.S. 749, 762 (1974). This case thus does not present the "serious constitutional question" that would arise if an agency statute were construed to preclude all judicial review of a constitutional claim. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681, n. 12 (1986).

21 Without addressing the merits of petitioner's underlying claim, we note that petitioner appears to misconstrue Lechmere, Inc. v. NLRB, 502 U. S. ___ (1992). The right of employers to exclude union organizers from their private property emanates from state common law, and while this right is not superseded by the NLRA, nothing in the NLRA expressly protects it. To the contrary, this Court consistently has maintained that the NLRA may entitle union employees to obtain access to an employer's property under limited circumstances. See id., at ___; NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). Moreover, ina related context, the Court has held that Congress' interest in regulating the mining industry may justify limiting the private property interests of mine operators. See Donovan v. Dewey, 452 U.S. 594 (1981) (unannounced Mine Act inspections do not violate the Fourth Amendment).

22 We note that petitioner expressly disavows any abstract challenge to the Mine Act's statutory review scheme, but limits its due process claim to the present situation where the Act allegedly requires petitioner to relinquish an independent statutory right. See Brief for Petitioner 31, n. 31.

23 Because we have resolved this dispute on statutory preclusiongrounds, we do not reach the parties' arguments concerning final agency action, a cause of action, ripeness, and exhaustion.