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Senator RANDOLPH. Mr. Chairman, I am not, as you are, a practicing attorney. But I think, insofar as possible, those of us who understand the law in its broad terms should be given every opportunity to have the record so complete that, as we study it, we can come to our individual conclusions. That is why I have been attempting here this afternoon to have the attorneys for the United Mine Workers of America spell out their feeling about what the circuit court actually did in this matter. That is all I want to say.
Senator WILLIAMs. I appreciate that. I will say that the fact that some of us have law degrees does not mean that everything will be crystal clear. I went through the transcript rapidly of the first day of the trial in Pittsburgh. I will say the judge and many lawyers were quite in the dark as to what the case was all about until it was crystalized, and the crystalization, for the record, was read by Mr. Feder, that is, Mr. Yablonski's statement of what the case was about. It came down to the complaint against the lack of enforcement of the Coal Mine Health and Safety Law. Mr. Yablonski at one point expressed sympathy for everybody until he had the opportunity to crystalize what the workers were complaining about. It was their complaint against lack of enforcement.
At this morning's meeting, Mr. Mittelman was ready for questions in connection with the Abington, Va., case. Now, we have time.
Mr. MITTELMAN. Turning to the suit by the operators in Abingdon, Va., you testified this morning, Mr. Carey, the union had decided not to intervene in that case. Would you just restate why the union made this decision?
Mr. CAREY. I gave two reasons: First, I said that the matter of intervention is not a matter of right. It is matter of privilege, which is excercised by the district court, who, in this case, issued a temporary restraining order and subsequently the preliminary injunctions. The only time intervention is tolerated is when it is felt that there is inadequate representation as far as the participants are concerned.
Now, I don't for a moment challenge the competency of the Department of Justice to represent the Secretary of the Interior in this particular suit. I think the lawyers of the Department of Justice are competent lawyers, and I must assume that they will pursue and defend this suit with all the vigor and intellectual competence they can summon.
Mr. MITTELMAN. Mr. Carey, stop right there.
I have rule 24 of the Federal Rules of Procedure before me. You alluded to that this morning. Rule 24 provides for two types of inter vention, one is mandatory, rule 24(a), as of right. That section does relate to the inadequacy of representation by existing parties.
Rule 24 (b) covers permissive intervention.
Do you see anything in that section of the rule where it is shown that your interest is inadequately represented ?
Mr. CAREY. No, but I think you must take into consideration we discussed 24 (a), you must also consider that which is contained in 24 (b).
Mr. MITTELMAN. Mr. Carey, do you have any doubt in your mind that the union would have been permitted to intervene in that case?
Mr. Carey. Yes, I do have a doubt. I certainly do have a doubt. But that is not the main strategem that we decided upon. I don't think intervention would have achieved any greater result than will be achieved by the Department of Justice. I don't impugn the integ
rity of the Department of Justice. I don't impugn their intelligence, I think the Department of Justice will defend this suit with all the the vigor it can summon.
Mr. MITTELMAN. Do you think it has done that to date?
Mr. CAREY. As far as I know, yes, because I think I have been informed indirectly that it has been worked out that the Secretary of the Interior is going to issue regulations very imminently on the basis of taking that suit away from the plaintiffs.
That being true, at the time the case is scheduled for trial, in November, the matter will be moot.
Mr. MITTELMAN. Let us go back to when the injunction was first issued and the later proceeding that was held in which the injunction was modified and expanded. Did you have a representative present?
Mr. CAREY. No, because I was not aware when these hearings were set.
Mr. MITTELMAN. There was nobody from the United Mine Workers there?
Mr. CAREY. Because we did not know. We were told the hearing was going to be held September 1st but the hearing on the preliminary injunction was held in July sometime without any knowledge on our part.
Mr. MITTELMAN. I am not talking about the hearing on the merits; I am talking specifically about the hearing in which some testimony was taken relating to a modification of the injunction—at which evidence was presented, for example, that there equipment and personnel were not available to permit all of the sections of the act to be enforced.
Mr. CAREY. As I understand it, the Department of Justice was not aware of the fact that the temporary restraining order was issued. The U.S. attorney in that district represented the Government and if my information is correct the Department of Justice learned of the issuance of that temporary restraining order subsequent to its issuance.
Mr. MITTELMAN. That is when the restraining order was first issued. Mr. CAREY. April 21.
Mr. FEDER. The Department of Justice did appear prior to the issuance of the restraining order. They appeared the morning the order was issued, argued the case for 3 hours before the issuance of the restraining order on April 3d.
Mr. CAREY. I was informed that the U.S. attorney handled that case at the time of the issuance of the temporary restraining order. I may be misinformed. The best information I have is that our Department of Justice from Washington, D.C., was not present. But, obviously, the U.S. attorney in that district is an agent of the Department of Justice. I am talking about the Department of Justice in Washington, D.C., which will handle that facet of the case as I understand it. That is what I made reference to.
Mr. MITTELMAN. As I understand it, the original temporary restraining order related to the enforcement of the new regulations that have been issued by the Department of the Interior. There was a later proceeding, I am sorry that I don't have the exact date before me. there was a later proceeding in which that injunction was modified so as to expand it to preclude it was April 30—there was an open
hearing in court relating to modification of that temporary restraining order, to expand it to preclude not only enforcement of the regulations but enforcement of the act, itself, where equipment and personnel were not available. That was one of the ways in which that order was modified. Did you have a representative present at that hearing?
Mr. Carey. I told you I did not have anyone present, sir; because I was not aware of it. I cannot expect to be a clairvoyant unless I am informed.
Mr. MITTELMAN. Did you have occasion to review the transcript of the hearing?
Mr. Carey. No; I have not seen the transcript of that, but I do have the order issued by the court.
Mr. MITTELMAN. You have not seen the transcript of that hearing? Mr. CAREY. That is correct.
Mr. MITTELMAN. It was not of enough interest to you to look at the transcript of that hearing?
Mr. CAREY. We intended to be present at the time when the hearing was going to be held, the hearing on the merits, which is the important thing. But the thing you people are missing completely is this: You are talking about a petition for a temporary restraining order and a preliminary injunction. But the thing to keep in mind and keep in mind at all times is this, that there was a petition filed for a three-man court in order to test the constitutionality of this act. That would hold everything in abeyance as I see it. Now, the three-man court was not appointed for approximately a month or 6 weeks after the petition was filed. Chief Justice Haynesworth of the Fifth Circuit did appoint a three-man court. That will determine the constitutionality of the statute. I think that is the most important thing, one of the most important things to worry about. The fact that the order was issued, the temporary restraining order and the preliminary injunction, is the thing that has probably frustrated the Secretary of the Interior. He has given it a very narrow construction, but he is restricted because of that injunction issued in Abingdon, Va., by the district court. He may be correct in that. I have serious doubt that he is correct. But it is one of those legal arguments that you and I could continue interminably because I don't know and you don't know whether an injunction issued against the Secretary of the Interior in Abingdon, Va., is nationwide as far as the Secretary is concerned in enforcing the statute or whether it is restricted to the State of Virginia.
Mr. MITTELMAN. That is precisely the next subject I want to go into. You are aware of the fact that the Secretary of the Interior or the Department personnel responsible for enforcing the act have decided to obey the injunction on that issue on a nationwide basis.
Mr. CAREY. That is correct. That is my understanding. I don't know, in fact, reluctantly, most reluctantly I am inclined to think he may be correct. I think if an injunction issued against a Cabinet officer involving a specific statute passed by the Congress of the United States, even though it may be issued in Timbuctoo or Paducah, Ky., or Tallahassee, Fla., I am inclined to think that Cabinet officer is restrained, wherever he may try to enforce that act. That is my interpretation of the injunction, that his hands are tied probably nationwide. As I said, reluctantly I must almost agree that he may be correct,
as much as I dislike agreeing with him because he may get himself into a contemptuous situation as far as the court is concerned because an injunction as you know, is notice to the world in many instances.
Mr. MITTELMAN. Mr. Carey, I don't want to get into a legal argument. As far as I am concerned, there was no legal compunction on the Department to obey the injunction nationwide until it was so broadened.
Mr. CAREY. I certainly hope you are correct.
Mr. MITTELMAN. What concerns me is the fact that as far as I am aware there were no witnesses put on by the Government at any stage of this proceeding. There was no motion made by the Government to modify this injunction, notwithstanding all the confusion that it created in the coal fields of which you are presumably well aware. It would seem to me that from the standpoint of the union interested in having this law enforced and in view of the drastic effect on the health and safety of your thousands of members that you would want to be at least a party to the case, if only for the purpose of receiving notice of what was going on. You testified, I think, this morning that this hearing had been—I am sorry, perhaps you didn't, but there was some statement this morning to the effect that the hearing which was originally scheduled for September is now put off until November and you did not even know about it.
Mr. CAREY. Yes; I did know about it. I told you I heard about it.
Mr. MITTELMAN. You heard about it. Had you been a party you might have been able to object to it.
Mr. Carey. I made inquiries to the Department of Justice and found out it was continued to November 1. I don't speak lightly, sir. When I said that this morning, I knew it to be a fact.
Mr. MITTELMAN. My point is had you been a party to that case you would have been in a position to object to continuing the case to November 1 from September.
Mr. CAREY. You give me more prestige than I am willing to accept. I don't think we would have been successful in resisting continuance because of the fact that the Department of Justice through the Secretary of the Interior has worked out arrangements where these regulations are going to be issued imminently, have been told, and if this be true, then I would say that matter becomes moot.
Mr. MITTELMAN. We hope it will be.
Mr. CAREY. I hope to God it does, too. No one hopes more than I do about that particular matter.
Mr. MITTELMAN. Has the union been satisfied with the way in which the act has been enforced under the injunction ?
Mr. CAREY. No; absolutely not. I think President Boyle so testified and the Director of Safety Evans also testified. Certainly we are not satisfied with the act as it is presently being enforced. I think it could be enforced with more vigor, more industry, more dynamics but it is not being done. How can you place the onus on us? As I said this morning, I think the Senate of the United States, the Congress of the United States which passed this statute, worked hard to make it a statute which is desirable, not the perfect statute but it is a tremendous improvement over prior statutes, I think that they have a tremendous interest.
Mr. Nader, you heard him testify this morning, he thought it was an ancillary duty, as it were, on the part of the Senate of the United States or the Congress of the United States to institute litigation. I think a suit filed in the District of Columbia or anywhere today would be set aside on the basis of the fact that an injunction has been issued and priority has been assumed in the Virginia court. I don't know any court would entertain a suit today because they say, “We will wait until we see what happens in Virginia because they have preempted the field.”
Mr. MITTELMAN. Mr. Carey, you already went through the fact that this injunction does remain in effect until the final hearing under the United States Code provisions applicable to three judge courts. It is possible, is it not, for a motion to be made in that case to modify the injunction ?
Mr. CAREY. When the regulations are issued, as I am informed they will be imminently, and I hope my information is correct, then I think is the proper time to go in and say to the court the Secretary of the Interior has now complied with the requirements of the statute. He has issued them in the Federal Register. We now say there should be a modification and this temporary injunction should be removed.
Mr. MITTELMAN. That injunction was issued in its present form about May 8. We have had 3 months when the Department has been required to operate under this injunction, it has been treating it nationwide. I personally have read the injunction. I think it is very difficult to understand.
Mr. CAREY. It is, I agree.
Mr. MITTELMAN. What I am wondering is whether the union has given serious thought to going in or at least even asking the Justice Department or the Interior Department to initiate proceedings to modify that injunction to at least make it understandable in his 3-month period. You seem to have indicated here you are willing to place complete faith in the Justice Department and the Interior Department to do what is right under the new law. I am surprised that you have so much faith in governmental institutions.
Mr. CAREY. It is a sad commentary, coming from a lawyer, to hear that you don't have faith in democratic institutions. I have faith in the U.S. Senate. I have faith in the House of Representatives. But I am not going to impugn the integrity of the Attorney General of the United States or any of his assistants until I have evidence to establish some basis for impugning him. Why would you make any charge of that kind?
Mr. MITTELMAN. I am not impugning anyone's integrity. You testified you did not even read the transcript of the hearing.
Mr. CAREY. I didn't think it was necessary to read the transcript because I got the order. I know what it holds.
Mr. MITTELMAN. I suggest, Mr. Carey, you read the transcript.
Mr. CAREY. You may make the suggestion, but I will make my own decision, sir.
Mr. FEDER. Mr. Carey, the membership of this subcommittee probably houses the greatest friends of the American workingman, I know you will agree, in the whole Congress. There is no group of people in the Senate or in the House that works harder for the workingman.
The day after the judge in Virginia modified his restraining order and broadened it in the process, the committee chairman directed the staff to immediately meet with the Government, the Department of