Nat'l Mining Ass'n v. Sec'y Labor, s. 13–3324

Decision Date19 August 2014
Docket NumberNos. 13–3324,13–3325.,s. 13–3324
Citation763 F.3d 627
PartiesNATIONAL MINING ASSOCIATION, National Stone Sand and Gravel Association, Kentucky Coal Association, Ohio Coal Association, and Portland Cement Association (13–3324); Murray Energy Corporation, Ohio American Energy, Incorporated, American Energy Corporation, Ohio Valley Coal Company, and KenAmerican Resources, Inc. (13–3325), Petitioners, v. SECRETARY OF LABOR, Mine Safety and Health Administration, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED:Henry Chajet, Jackson Lewis LLP, Reston, Virginia, for Petitioners in 3324. John W. McCauley, Dinsmore & Shohl, LLP, Cincinnati, Ohio, for Petitionersin 13–3325. Edward Waldman, United States Department of Labor, Washington, D.C., for Respondent. ON BRIEF:Henry Chajet, Avidan Meyerstein, Jackson Lewis LLP, Reston, Virginia, for Petitioners in 13–3324. John E. Jevicky, Dinsmore & Shohl, LLP, Cincinnati, Ohio, for Petitioners in 13–3325. Edward Waldman, United States Department of Labor, Washington, D.C., for Respondent. Robert Huston Beatty, Jr., Dinsmore & Shohl LLP, Washington, D.C., Jason M. Nutzman, Dinsmore & Shohl LLP, Charleston, West Virginia, Michael P. Abate, Dinsmore & Shohl LLP, Louisville, Kentucky, for Amici Curiae.

Before: MOORE and COOK, Circuit Judges; GWIN, District Judge. *

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case involves a consolidated challenge by petitioners National Mining Association, National Stone Sand and Gravel Association, Portland Cement Association, Kentucky Coal Association, and Ohio Coal Association (NMA petitioners) and petitioners Murray Energy Corporation, Ohio American Energy, Inc., American Energy Corporation, Ohio Valley Coal Company, and KenAmerican Resources, Inc., (“Murray Energy petitioners) to the promulgation of a new pattern of violations regulation by the Mine Safety and Health Administration (MSHA) and Secretary of Labor (Secretary). We conclude that we lack jurisdiction over this challenge and therefore dismiss the case without prejudice.

I. BACKGROUND

The Mine Act was enacted in 1977 in recognition of the “urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's coal or other mines in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines.” 30 U.S.C. § 801(c). The Mine Act authorizes the MSHA to promulgate mandatory health or safety standards, conduct regular inspections of mines, and issue citations and orders for violations of the Mine Act or regulations promulgated pursuant to the Mine Act.

The portion of the Mine Act enforcement structure most relevant to this case is the pattern of violations provision:

If an operator has a pattern of violations of mandatory health or safety standards in the coal or other mine which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards, he shall be given written notice that such pattern exists. If, upon any inspection within 90 days after the issuance of such notice, an authorized representative of the Secretary finds any violation of a mandatory health or safety standard which could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, the authorized representative shall issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c) of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determinesthat such violation has been abated.

30 U.S.C. § 814(e)(1). The statute authorizes the Secretary to “make such rules as he deems necessary to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists.” 30 U.S.C. § 814(e)(4).

The MSHA promulgated the first pattern of violations rule in 1990. Pattern of Violations, 55 Fed.Reg. 31128 (July 31, 1990). MSHA proposed a new pattern of violations rule in 2011. Pattern of Violations, 76 Fed.Reg. 5719 (Proposed Feb. 2, 2011). The final rule was issued on January 23, 2013, and codified at 30 C.F.R. Part 104. Pattern of Violations, 78 Fed.Reg. 5056 (Jan. 23, 2013).

The NMA petitioners filed their challenge to the pattern of violations rule directly in this court on March 19, 2013. The Murray Energy petitioners filed their challenge to the pattern of violations rule directly in this court on March 20, 2013. We granted the Secretary's motion to consolidate the cases. The Secretary then moved to dismiss the challenge for lack of subject-matter jurisdiction. Mot. to Dismiss at 1–11. The petitioners opposed the motion to dismiss. NMA Opp'n to Mot. to Dismiss at 1–20; Murray Energy Opp'n to Mot. to Dismiss at 1–16. The Secretary's motion was referred to this panel for consideration along with the merits of the case.

On November 16, 2013, the NMA petitioners moved for an emergency stay of the implementation of the pattern of violations final rule. As support for the request, the NMA petitioners noted that Brody Mining LLC—an affiliate company of Patriot Coal, which is a member company of NMA—received a pattern of violations notice and would have to undergo substantial and costly changes to comply with the pattern of violations rule. Mot. for Stay at 1, 14. The Secretary opposed the motion for a stay, arguing that NMA was unlikely to prevail on the merits of its challenge and that granting the stay would endanger the public safety. Opp'n to Mot. for Stay at 10–16, 18–20. We denied the motion to stay enforcement of the rule. Stay Order, No. 13–3324, 13–3325 (Dec. 3, 2013).

II. JURISDICTION

The Secretary argues that we lack subject-matter jurisdiction to consider this challenge because the Mine Act vested the United States courts of appeals with jurisdiction to review only a “mandatory health or safety standard,” 30 U.S.C. § 811(d), and the pattern of violations rule is not a mandatory health or safety standard.1 The NMA petitioners and the Murray Energy petitioners argue that we have subject-matter jurisdiction over this case because the Mine Act vests jurisdiction in the United States courts of appeals to review all substantive rulemaking, not only mandatory health or safety standards, or in the alternative, the pattern of violations rule is a mandatory health or safety standard. NMA Opp'n to Mot. to Dismiss at 1–19; Murray Energy Opp'n to Mot. to Dismiss at 1–16. We conclude that the pattern of violations rule is not a mandatory health or safety standard and that we lack subject-matter jurisdiction over this challenge.

We begin with the Mine Act statutory scheme. The Mine Act has an administrative process to review violations of “any mandatory health or safety standard, rule, order, or regulation promulgated” under the Act. 30 U.S.C. § 814(a). The Mine Act explicitly vests the United States district courts with jurisdiction in two circumstances; the Secretary may request an injunction or restraining order, 30 U.S.C. § 818(a)(1), and the Secretary may institute an action to collect civil penalties owed by a mine operator, 30 U.S.C. § 820(j). The Mine Act explicitly vests jurisdiction in the courts of appeals in only two situations. First, a party that is cited for a violation of the Mine Act or its regulations may challenge the citation in a hearing in front of the agency, and then seek judicial review of the agency decision in the United States court of appeals. 30 U.S.C. § 816(a)(1). Second, [a]ny person who may be adversely affected by a mandatory health or safety standard promulgated under this section may ... file a petition challenging the validity of such mandatory standard with the United States Court of Appeals for the District of Columbia Circuit or the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.” 30 U.S.C. § 811(d).

The petitioners argue that the United States courts of appeals may review all substantive rulemaking pursuant to the Mine Act, and that our subject-matter jurisdiction is not limited to review of mandatory health or safety standards. This argument relies heavily on a statement in the decision of the United States District Court for the District of Columbia in Bituminous Coal Operators' Association v. Marshall, 82 F.R.D. 350 (D.D.C.1979). In Bituminous Coal, a mine operator brought “a pre-enforcement challenge to an Interpretative Bulletin” issued by the Secretary. Id. at 351. The district court analyzed the structure of the Mine Act and noted that while the statute permitted judicial review in the United States courts of appeals of mandatory health or safety standards, it vested jurisdiction in the district court for two types of actions brought by the Secretary, not a mine operator. The district court concluded that it lacked jurisdiction over the case because [t]he structure of the Act in this instance makes it quite clear that Congress intended that all legal challenges to the Act, to its enforcement and to any regulations promulgated thereunder be heard by the Federal Courts of Appeals, not by the Federal District Courts.” Id. at 352. However, the district court did not transfer the case to the court of appeals; the district court concluded that the mine operator had to challenge the agency action through the agency review process and then could seek review of the agency decision in the court of appeals. Because the action was not ripe for review, the district court dismissed the complaint. Id. at 353–54. The decision was not appealed.

Bituminous Coal 's broad statement that Congress intended “all” Mine Act challenges to be heard by the courts of appeals, not the district courts, was relied on by the United...

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