In re Howard

• Decision Date: 06 July 2009
• Docket Number: No. 08-5799.,08-5799.
• Citation: 570 F.3d 752
• Parties: In re Scott HOWARD, Petitioner. Hilda S. Solis, Secretary, United States Department of Labor, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

570 F.3d 752

In re Scott HOWARD, Petitioner.

Hilda S. Solis, Secretary, United States Department of Labor, Respondent.

No. 08-5799.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2009.

Decided and Filed: July 6, 2009.

ARGUED: Stephen A. Sanders, Appalachian Citizens Law Center, Whitesburg, Kentucky, for Petitioner. Edward Waldman, United States Department of Labor, Washington, D.C., for Respondent. ON BRIEF: Stephen A. Sanders, Appalachian Citizens Law Center, Whitesburg, Kentucky, Nathan J. Fetty, Appalachian Center for the Economy and the Environment, Buckhannon, West Virginia, for Petitioner. Edward Waldman, United States Department of Labor, Washington, D.C., for Respondent. Thomas C. Means, Daniel W. Wolff, Crowell & Moring LLP, Washington, D.C., for Amicus Curiae.

Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Petitioner Scott Howard, a miner, seeks a writ of mandamus from this court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argues that the present standards are too high and that the Secretary has, therefore, violated her duty under the Mine Act to promulgate "improved" standards to protect the health of miners. Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed.

I.

Howard works as a coal miner in Eastern Kentucky, and has done so since 1979. Howard developed black lung disease, which can be caused by the inhalation of coal mine dust and silica dust. Black lung is a generic term, used to describe a group of lung diseases including pneumoconiosis, silicosis, anthracosis, and progressive massive fibrosis.

The Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. §§ 801 et seq., governs the safety and inspection of U.S. mines. The Act requires the Secretary of Labor "to develop and promulgate improved mandatory health or safety standards to protect the health and safety of the Nation's coal or other miners." Mine Act § 2(g)(1), 30 U.S.C. § 801(g)(1).¹ Such standards include national limits on the amount of respirable coal mine dust and respirable silica allowable in mine atmospheres, also called permissible exposure limits (PELs). The standards set by the Secretary must "most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life." Id. § 10 1(a)(6)(A), 30 U.S.C. § 811(a)(6)(A). The Mine Safety and Health Administration (MSHA), within the Department of Labor, oversees the administration of these provisions on the Secretary's behalf. 29 U.S.C. § 557a.

The Mine Act directs the Secretary to promulgate permanent PELs. Mine Act § 101(a), 30 U.S.C. § 811(a) ("The Secretary shall. . . ."). However, once a PEL is promulgated, the statute gives the Secretary discretion whether to promulgate a new PEL:

Whenever the Secretary . . . determines that a rule should be promulgated in order to serve the objectives of this Act, the Secretary may request the recommendation of an advisory committee appointed under section 102(c). . . . When the Secretary receives a recommendation, accompanied by appropriate criteria, from the National Institute for Occupational Safety and Health [(NIOSH)]² that a rule be promulgated, modified, or revoked, the Secretary must, within 60 days after receipt thereof, refer such recommendation to an advisory committee pursuant to this paragraph, or publish such as a proposed rule pursuant to paragraph (2), or publish in the Federal Register his determination not to do so, and his reasons therefore.

Id. § 101(a)(1), 30 U.S.C. § 811(a)(1) (emphasis added).

The Mine Act also provides the Secretary with discretion to promulgate emergency temporary standards (ETSs), which have immediate effect until a permanent standard is passed. Id. § 101(b)(1), 30 U.S.C. § 811(b)(1). An ETS can be promulgated if the Secretary concludes: "(A) that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and (B) that such emergency standard is necessary to protect miners from such danger." Id. Within nine months of promulgating an ETS, the Secretary must replace it with a permanent PEL. Id. § 101(b)(3), 30 U.S.C. § 811(b)(3).

Congress set the initial PELs for the amount of respirable dust and respirable silica. Mine Act §§ 202(b), 205, 30 U.S.C. §§ 842(b), 845. The initial PEL for respirable dust was 3.0 milligrams of respirable dust per cubic meter of air (3.0 mg/m³), computed as the average concentration of respirable dust in the mine during each shift. Id. § 202(b)(1), 30 U.S.C. § 842(b)(1). The Mine Act required that the PEL be reduced to 2.0 mg/m³ within three years of enactment. Id. § 202(b)(2), 30 U.S.C. § 842(b)(2). The Act did not set a separate PEL for respirable silica. Id. § 205, 30 U.S.C. § 845. Rather, if coal mine dust contains more than five percent silica, the mine operator must reduce the amount of respirable dust according to a schedule. Id. The initial PELs remained in effect until superseded by permanent standards promulgated by the Secretary. Id. §§ 202(b), 205, 30 U.S.C. §§ 842(b), 845. The Mine Act also required HHS to submit to the Secretary a schedule for reducing the respirable dust PEL to a level that "will prevent new incidences of respiratory disease and the further development of such disease in any person." Id. § 202(d), 30 U.S.C. § 842(d).

The Secretary adopted the first and only permanent PEL for respirable dust in 1980. 30 C.F.R. § 70.100(a). That PEL was 2.0 mg/m³, the standard that the Mine Act required be adopted within three years of the Act's passage. 30 U.S.C. § 842(b). The Secretary has not created a separate PEL for respirable silica. Rather, a formula is used to determine the maximum respirable silica exposure level, and the computation is based on the respirable dust standard. This formula creates an "effective" PEL for respirable silica of. 1 mg/m³.

Although new PELs have not been promulgated, the agencies have discussed new standards for fourteen years. In November 1995, NIOSH recommended that the Secretary consider reducing the respirable dust PEL by half to 1.0 mg/m³ and create a separate PEL for silica set at .05 mg/m³, half the level of the "effective" PEL for respirable silica. MSHA stated that it would respond to the recommendations by proposing a rule, but deferred rulemaking until it received a report from a Department of Labor internal advisory committee, established by the Secretary under 30 U.S.C. § 812(c) to review this issue. In November 1996, that committee submitted a report to the Secretary with several recommendations about increasing compliance with the existing limits, but the report did not recommend lowering the respirable dust or respirable silica PELs. The committee did recommend that a separate PEL for respirable silica be created, although it did not specifically recommend that a separate silica PEL be lower than the "effective" PEL of. 1 mg/m³.

In response to these recommendations, MSHA added the development of lower PELs for both respirable dust and respirable silica to its 1998 regulatory agenda. These objectives remained on the regulatory agenda for several years. In 2001, MSHA withdrew the objective of establishing a separate PEL for respirable silica because of "resource constraints" and "changing safety and health regulatory practices." In 2002, MSHA withdrew the objective of establishing a lower respirable dust PEL because MSHA was "developing regulatory alternatives." Both items returned to the MSHA's regulatory agenda: the separate respirable silica PEL in 2004 and the lower respirable dust PEL in 2008.

The Secretary, however, has not initiated rulemaking for new PELs. The Secretary pursued other regulatory avenues to increase compliance with the present PELs and the identification of lung diseases in miners.

Howard filed a mandamus petition in the district court under 28 U.S.C. § 1361, seeking a writ directing the Secretary to promulgate ETSs and final PELs at the levels recommended by NIOSH in 1995. Howard alleged that because the Secretary has failed to promulgate lower limits, Howard is forced to work in a dangerous and unhealthy environment. Howard also included a claim under the Administrative Procedure Act (APA), 5 U.S.C. § 706(1), that the agency's action was withheld or unreasonably delayed. The Secretary moved to dismiss the case under Fed. R.Civ.P. 12(b)(1), on the ground that "[t]he Mine Act, in conjunction with the All Writs Act, vests exclusive jurisdiction in the Courts of Appeals over claims that the Secretary has improperly withheld or unreasonably delayed promulgation of a mandatory standard." In lieu of dismissal, the district court transferred the case to the Sixth Circuit, pursuant to 28 U.S.C. § 1631.

II.

The district court properly transferred the case to this court because jurisdiction for the judicial review sought by Howard lies in this court. In this regard, we follow the thoughtful holdings of the District of Columbia Circuit, which has exercised jurisdiction to review directly agency delays in promulgating PELs under the Mine Act. See Int'l Union, United Mine Workers of Am. v. U.S. Dep't of Labor (UMWA), 358 F.3d 40, 42 (D.C.Cir. 2004); Oil, Chem. & Atomic Workers Int'l Union v. Zeeger (OCAW), 768 F.2d 1480, 1485 (D.C.Cir.1985). As the D.C. Circuit reasoned, "under the All Writs Act, 28 U.S.C. § 1651(a), [the court of appeals has] the authority to compel agency action...