concurring in judgment:
I concur generally in Judge MacKinnon’s opinion on the merits. I concur in the judgment that the District Court had jurisdiction in this case to hear the complaint of the Association of Bituminous Contractors, Inc. (hereafter “Association”). But my approach differs from Judge MacKinnon’s.
One of the difficulties with this jurisdictional issue is that it was raised cursorily in the government’s brief in this court. In fact, it turns out to be a prickly question, which required much judicial research. I can understand that the Secretary may be more interested in the merits, but I should have thought some of the reasons for centralizing court presentation in the Department of Justice were a greater awareness of the importance and complexity of jurisdictional issues and a readiness to devote the time required for their sound resolution.
With that preamble, I present my views on the jurisdictional issue.
1. There are special provisions for judicial review under the Federal Coal Mine Health and Safety Act of 1969 (hereafter “Act”). The plaintiff Association (appellee) did not bring this suit under those provisions.
What plaintiff invoked was the District Court’s more general jurisdiction, under 28 U.S.C. §§ 1331, 1337, 2201 (1970). That is not available as to any controversy fairly within the contemplation of the special review provisions of the Act. As this court recently observed in Investment Company Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App.D.C. 311, 320, 551 F.2d 1270, 1279 (1977), “an impressive line of authority supports the . proposition that, even where Congress has not expressly conferred exclusive jurisdiction, a special review statute vesting jurisdiction in a particular court cuts off other courts’ original jurisdiction in all cases covered by the special statute.” The Administrative Procedure Act itself states that *86“[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute,” except where such review would be inadequate.1
2. That brings us to a close examination of the special review provisions of the Act and their contemplated scope. Section 106(a) of the Act, 30 U.S.C. § 816(a) (1970), provides that “any order or decision” issued by the Secretary (or the Interior Board of Mine Operations Appeals)2 shall be subject to review in an appropriate court of appeals.3
We must consider the possibility that the pertinent decision of the Secretary, here reviewed in the district court, is one actually subject to review exclusively in the court of appeals under § 816(a). That provision pertains to “any order or decision issued by the Secretary.” The only exception is an order or decision under § 819(a), which involves the assessment of penalties by the Secretary. Section 819(a)(4) is a special provision for judicial review of penalty assessments.4 It provides for suit by the Secretary in the district court to enforce the collection of a civil penalty imposed for violation of a mandatory health or safety standard.
A petition under § 816 must be filed by a “person aggrieved”, but certainly the bituminous contractors comprising the plaintiff Association, and the Association suing in behalf of its members, were “aggrieved” as that term is understood under current principles of administrative law.5
*87Although there is no other explicit qualification to the scope of § 816(a), it is implicit in the structure of the section that Congress contemplated review by the court of appeals on the basis of an administrative record developed prior to the decision of the Secretary or the Interior Board of Mine Operations Appeals (Board), which acts under delegation by the Secretary.6 Undoubtedly the chief work envisioned for the court of appeals under § 816(a) was that of reviewing challenges to withdrawal orders (orders closing mines because of imminent danger due to safety or health violations) and challenges to abatement orders (requiring correction of a violation within an allotted time) after those challenges had been passed on by the Board.7
One panel of the Fourth Circuit has stated that such appeals delimit the full scope of § 816.8 That conclusion in the Bituminous Coal Operators’ opinion reflects, I think, a hasty reading of the statute. The provision for judicial review of “any order or decision issued by the Secretary,” extends, in my view, to an order promulgating health or safety standards.9 The Act calls *88for notice of such proposed standards, receipt of data and comments thereon, and then some kind of public hearing if formal objections are filed. The final promulgation of health and safety standards is, in my opinion, subject to judicial review in the court of appeals.10
Another indication that review by the court of appeals under § 816 is broader than that set forth by the Fourth Circuit in the Bituminous Coal Operators ’ opinion appears from the provision in § 816 for judicial review of “any order or decision issued . by the Panel.”11 The duties given to the Panel by the Act relate to the approval of permits for noncompliance with certain interim standards. See, e.g., 30 U.S.C. § 865(a) (1970).
I am by no means clear as to the correctness of the Fourth Circuit’s ruling in Bituminous Coal Operators’ that the district court had jurisdiction of the controversy. The question is not an easy one. There was a “decision by the Secretary,” that he would hold the operators to the standards of the Act even as to construction work done by independent contractors. True, it was not entered on the basis of a record. But the question arises whether that is a necessary condition to § 816 review by a court of appeals. In other instances, the familiar provisions for review by a court of appeals of an adverse agency decision have established jurisdiction in the court of appeals even though the agency treated the issue as one purely of law, without any provision for evidentiary hearing.12 When a “decision” is not directed to a particular party, but is an interpretative ruling, does the issue of review under § 816 come to depend on whether the Secretary has conducted a notiee- and-comment proceeding? Arguments may be made both ways.
In this case, however, we have an unusual situation that excludes review under § 816 because the crucial departmental ruling— the Board’s decision in Affinity Mining Company — was a decision on an appeal, under § 819, from the Secretary’s imposition of a civil penalty. And a decision arising under § 819(a) is explicitly excluded from § 816 review.
3. That brings up the question whether plaintiff Association, unable to proceed under § 816(a) in a court of appeals, validly invoked the general equitable jurisdiction of the district court.
I think the answer is yes — because the contractors had no other route for review of the Department’s Affinity ruling that contractors were liable, no route short of waiting for enforcement proceedings and meanwhile facing withdrawal and abatement orders, and possible civil penalty assessments.
*89The Affinity ruling set forth the liability of construction contractors, but it was rendered in a case (a) where no construction contractor was a party, and (b) there was no penalty levied. The Board exonerated the subject of the penalty proceeding, Affinity Mining, a mine operator, while stating that in like circumstances in the future it would hold the mine contractor liable. In that state of facts, the construction contractors were faced with a situation that called for some judicial review yet fell outside the special judicial review provisions of the Act. Therefore the District Court had jurisdiction. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 280-82, 443 F.2d 689, 695-97 (1971).
4. What troubles me about Judge MacKinnon’s opinion is that it goes beyond this simple ground for jurisdiction and makes an observation about the Federal Coal Mine Health and Safety Act that I think is misleading and unnecessary for purposes of disposing of this case. Judge MacKinnon distinguishes this case from Investment Company Institute by arguing that, unlike the Bank Holding Company Act, there is no antipathy to district court review under the Federal Coal Mine Health and Safety Act. As evidence for this proposition, Judge MacKinnon points to § 819(a)(4), the provision for district court enforcement of civil penalties. In such enforcement proceedings, according to Judge MacKinnon, “any and all ‘relevant issues’ are to be reheard de novo by a district court.”
In National Coal Operators’ Association v. Kleppe, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580 (1976), the Supreme Court described review under section 819(a)(4) as follows:
If the operator does not pay the penalty assessed, the Secretary is required, pursuant to § 109(a)(4), 30 U.S.C. § 819(a)(4), to petition for judicial enforcement of the assessment in the district court for the district in which the mine is located. At that stage the court must resolve the issues relevant to the amount of the penalty in a de novo proceeding with a jury trial if requested. The trial de novo with a jury is not available for review of issues of fact which “were or could have been litigated” in the court of appeals under § 106.
Id. at 393, 96 S.Ct. at 812 (footnote omitted). As to the contention that trial de novo is available on the factual basis of the violation as well as on the amount of the penalty, the Supreme Court observed that “the statutory scheme is less than clear,” and declined to reach the issue.13 This court should follow the Supreme Court’s lead and not intimate any views on review under § 819(a)(4). Given the scant presentation by the government, this court simply is not in a good position to expatiate on the scope of that subsection. Section 819(a)(4) gives the district court jurisdiction to determine issues relevant to the penalty, but that should not generate a broad conclusion of hospitality to district court review under the Federal Coal Mine Health and Safety Act. Indeed, § 819(a)(4) expressly excludes from district court review “issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 816.” The scope of district court review, therefore, is dependent on an anterior determination of the scope of court of appeals review. For the present case, that the Association had no opportunity for judicial review under the special review provisions of the Act is enough to establish general district court jurisdiction. That should end the jurisdictional discussion in this case.
*90On the merits, I am in accord with Judge MacKinnon’s exposition.
. APA § 10(b), 5 U.S.C. § 703 (1976).
. The Secretary has delegated his review authority under the Federal Coal Mine Health and Safety Act of 1969 to the Interior Board of Mine Operations Appeals. 43 C.F.R. § 4.500 (1976).
. 30 U.S.C. § 816(a) (1970):
Any order or decision issued by the Secretary or the Panel under this chapter, except an order or decision under section 819(a) of this title, shall be subject to judicial review by the United States court of appeals for the circuit in which the affected mine is located, or the United States Court of Appeals for the District of Columbia Circuit, upon the filing in such court within thirty days from the date of such order or decision of a petition by any person aggrieved by the order or decision praying that the order or decision be modified or set aside in whole or in part, except that the court shall not consider such petition unless such person has exhausted the administrative remedies available under this chapter. A copy of the petition shall forthwith be sent by registered or certified mail to the other party and to the Secretary or the Panel, and thereupon the Secretary or the Panel shall certify and file in such court the record upon which the order or decision complained of was issued, as provided in section 2112 of Title 28.
. 30 U.S.C. § 819(a)(4) (1970):
If the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order, the Secretary shall file a petition for enforcement of such order in any appropriate district court of the United States. The petition shall designate the person against whom the order is sought to be enforced as the respondent. A copy of the petition shall forthwith be sent by registered or certified mail to the respondent and to the representative of the miners in the affected mine or the operator, as the case may be, and thereupon the Secretary shall certify and file in such court the record upon which such order sought to be enforced was issued. The court shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order and decision of the Secretary or it may remand the proceedings to the Secretary for such further action as it may direct. The court shall consider and determine de novo all relevant issues, except issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 816 of this title, and upon the request of the respondent, such issues of fact which are in dispute shall be submitted to a jury. On the basis of the jury’s findings, the court shall determine the amount of the penalty to be imposed. Subject to the direction and control of the Attorney General, as provided in section 507(b) of Title 28, attorneys appointed by the Secretary may appear for and represent him in any action to enforce an order assessing civil penalties under this paragraph.
.See, e.g., Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); K. Davis, Administrative Law Treatise § 22.02 (1970 Supp.). Considerations of ripeness are paramount in cases such as this where a rule of law is the product of an adjudication to which the persons allegedly aggrieved were not a party. But as Judge MacKinnon points out in his discussion of ripeness, the liability rule set out in Affinity Mining Co., 2 IMBA 57, 80 I.D. 229 *87(1973), was clearly addressed to contractors and, unless they chose to defy the law, was necessarily to have an impact on their operations. As the Supreme Court observed in Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1561, 18 L.Ed.2d 681 (1967), “the impact . . . upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.”
. Section 816(a) provides that “the Secretary or the Panel shall certify and file in such court the record upon which the order or decision complained of was issued, as provided in section 2112 of Title 28.” That review under § 816 is predicated on the existence of an administrative record is also implicit in § 816(b), which states that findings of the Secretary or Panel shall be subject to a “substantial evidence” standard of review.
The court shall hear such petition on the record made before the Secretary or the Panel. The findings of the Secretary or the Panel, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The court may affirm, vacate, or modify any order or decision or may remand the proceedings to the Secretary or the Panel for such further action as it may direct.
30 U.S.C. § 816(b) (1970).
. See Lucas Coal Co. v. Interior Bd. of Mine Operations Appeals, 522 F.2d 581 (3d Cir. 1975) (reviewing notice of violation); Freeman Coal Mining Co. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974) (reviewing withdrawal order); Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974) (reviewing withdrawal order).
. Bituminous Coal Operators’ Assn., Inc. v. Secretary of Interior, 547 F.2d 240, 243 (4th Cir. 1977). As Judge MacKinnon notes, this Fourth Circuit case is closely related to the instant appeal. There the Fourth Circuit observed, in an opinion by Judge Butzner:
The complaint alleges that jurisdiction is founded on 28 U.S.C. § 1331 (federal question), 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgment Act), and 5 U.S.C. § 551 et seq. (Administrative Procedure Act). On appeal, the Secretary questioned for the first time the district court’s jurisdiction, contending that orders of the Secretary are reviewable only by a court of appeals, pursuant to 30 U.S.C. § 816(a).
While a literal reading of § 816(a) supports the Secretary, it is apparent, from the context of this section, that the review by the courts of appeals to which it refers deals with citations issued by inspectors and adjudicated by the Board of Mine Operations Appeals.
(Emphasis added.)
Judge Butzner goes on to observe:
Because the Act neither states nor implies that § 816(a) furnishes the exclusive procedure for obtaining judicial review, other procedures are not precluded. Consequently, the Administrative Procedure Act is applicable, and the Secretary’s order is reviewable.
I think that Congress did intend by the plain language of § 816 to make it the exclusive means for judicial review of all issues of law or fact that could have been addressed in a § 816 review.
.30 U.S.C. § 811(a) (1970) provides that the Secretary of Interior shall promulgate health and safety standards. Proposed standards are to be published in the Federal Register and the Secretary shall then receive written data or comments for at least a 30-day period. Id. § 811(e). If formal objections are filed, the Secretary of the Interior, in the case of mandatory safety standards, and the Secretary of HEW, in the case of mandatory health standards, are to issue notice of a public hearing, after which the appropriate Secretary is to make public his findings of fact. Id. § 811(g). Since review under § 816(a) is predicated on exhaustion of administrative remedies, the court of appeals would have the benefit of a record developed through a public hearing.
.In Reliable Coal Corp. v. Morton, 478 F.2d 257 (4th Cir. 1973), the court reviewed under § 816 a decision of the Interior Board of Mine Operations Appeals affirming the denial of Reliable Coal Company’s petitions to modify certain interim mandatory safety standards contained in 30 U.S.C. §§ 863(d)(1), (1) (1970). “These provisions were designed to prescribe immediate mandatory standards without undergoing the lengthy administrative process for a the promulgation of such standards by the Secretary under [§ 811].” 478 F.2d at 262. It stands to reason that if the Act contemplates review under § 816 of the applicability of interim standards to discrete situations, it also contemplates such review of general standards promulgated under § 811.
.The Interim Compliance Panel was established by 30 U.S.C. § 804 (1970). Section 804(f)(1) provides:
It shall be the function of the Panel to carry out the duties imposed on it pursuant to this chapter and to provide an opportunity for a public hearing, after notice, at the request of an operator of the affected coal mine or the representative of the miners of such mine. Any operator or representative of miners aggrieved by a final decision of the Panel may file a petition for review of such decision under section 816 of this title. The provisions of this section shall terminate upon completion of the Panel’s functions as set forth under this chapter. Any hearing held pursuant to this subsection shall be of record and the Panel shall make findings of fact and shall issue a written decision incorporating its findings therein in accordance with section 554 of Title 5.
. See Hess & Clark, Div. of Rhodia, Inc. v. FDA, 161 U.S.App.D.C. 395, 495 F.2d 975 (1974); Marine Space Enclosures, Inc. v. FMC, 137 U.S.App.D.C. 9, 420 F.2d 577 (1969).
. Id. at 393 n.3, 96 S.Ct. at 812. Compare Lucas Coal Co. v. Interior Bd. of Mine Operations Appeals, 522 F.2d 581, 586 (3d Cir. 1975) (fact of violation reviewable in district court in § 819(a)(4) proceeding) with Freeman Coal Mining Co. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741, 743 (7th Cir. 1974) (fact of violation not reviewable) and Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974) (fact of violation not reviewable).