SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION v. M-CLASS MINING, LLC AND FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
No. 20-1369
United States Court of Appeals, District of Columbia Circuit
June 11, 2021
Argued March 22, 2021
On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission
Susannah M. Maltz, Attorney, U.S. Department of Labor, argued the cause for petitioner. With her on the briefs were Emily Toler Scott, Acting Counsel for Appellate Litigation, and Archith Ramkumar, Counsel for Appellate Litigation.
Justin K. Chandler argued the cause for respondent M-Class Mining, LLC. With him on the briefs was Christopher D. Pence.
Before: HENDERSON and ROGERS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
(1961), and remand for proceedings consistent with this opinion.
I. BACKGROUND
M-Class operates an underground coal mine in Macedonia, Illinois. During operations to repair a gap in the mine roof, one miner experienced dizziness and a light headache that progressed into chest pains and difficulty breathing. The miner was removed from the mine and taken to a local hospital, where a physician examined him. Shortly thereafter, the physician notified the police that a miner was suffering from CO poisoning and recommended that the mine be shut down. The police called the MSHA hotline and relayed the physician‘s diagnosis and recommendation, which the MSHA hotline employees used to draft an escalation report.2 The report was then sent to the local MSHA office. After receiving the escalation report, the local MSHA office supervisor notified a senior M-Class official at the mine and—although the M-Class official told the MSHA supervisor that he had been working in the same area that day and that his personal gas spotter3 did not detect any elevated CO level—sent a MSHA inspector to investigate.
After reviewing the escalation report, the MSHA Inspector arrived at the mine that night. Based on the report, he issued the Order under section 103(k) of the Mine Act to suspend operations in the affected area of the mine. Section 103(k) of the Mine Act provides that “[i]n the event of any accident occurring in a . . . mine, an authorized representative of the
Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the . . . mine.”
MSHA examined and tested the diesel air compressor over the next six weeks but ultimately found no evidence that it was the source of the miner‘s illness. During this period, MSHA initially insisted that M-Class submit an action plan governing
jurisdiction continued and the case was not moot. After a hearing, the ALJ concluded “the Secretary ha[d] proven by a preponderance of the evidence that an accident [had] occurred and that the [terminated] Order was appropriate to ensure the safety of other miners until the investigation . . . was completed.” M-Class Mining, LLC v. Sec‘y of Labor, 41 FMSHRC 1, 10 (2019) (ALJ). M-Class timely petitioned the Commission for review of the ALJ‘s decision. In a 3-2 decision, the Commission affirmed the ALJ in part and reversed in part. The Commission majority concluded that the case was not moot but vacated the terminated Order because it determined substantial evidence did not support MSHA‘s finding that an accident occurred.4 The Secretary timely petitioned for review of the Commission decision.
II. ANALYSIS
We have jurisdiction to review the Commission decision under
issues: (i) whether the case is moot and, if so, whether the “capable of repetition but evading review” exception applies; (ii) how MSHA‘s decision to issue the Order should be reviewed and (iii) whether the Order was properly issued.5 We begin our analysis with the first issue and, accordingly, assess whether the case is moot and, if so, whether the “capable of repetition but evading review” exception applies. As the case is moot and the exception does not apply, our analysis begins and ends with the first issue.
A. Mootness
Article III of the United States Constitution limits our review to “only actual, ongoing controversies.” J.T. v. District of Columbia, 983 F.3d 516, 522 (D.C. Cir. 2020) (quoting McBryde v. Comm. to Rev. Cir. Council Conduct, 264 F.3d 52, 55 (D.C. Cir. 2001)). We cannot decide a case “if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative
Neither M-Class nor the Commission identified non-speculative harms. That a member of the public could look at M-Class‘s compliance history, notice that there was a terminated § 103(k) order and conclude “something occurred at that mine that affected the health and safety of miners,” Sec‘y
of Labor v. M-Class Mining, LLC, 42 FMSHRC 491, 496 (2020) (emphasis in original), is no more than a thinly-veiled reputational harm argument. Reputational harm, however, does not provide us with jurisdiction here. “Reputational harm may constitute an ongoing, redressable injury where it derives directly from an unexpired and unretracted government action,” Pulphus v. Ayers, 909 F.3d 1148, 1153 (D.C. Cir. 2018) (internal quotations omitted); for example, if “a governmental designation directly harmed the plaintiff‘s professional reputation because the designation was inherently stigmatizing,” id. In other words, “when injury to reputation is alleged as a secondary effect of an otherwise moot action, we have required that some tangible, concrete effect remain, susceptible to judicial correction.” Id. at 1154 (internal quotations omitted). Any reputational harm to M-Class is tied to the possibility that someone might check M-Class‘s history of accidents and might draw a negative conclusion because of the terminated Order. Compared to the reputational harms discussed in Pulphus, M-Class‘s alleged reputational harm is distinguishable based both on no inherent stigmatization and on the uncertainty of reputational harm. Id. That the Order indicates “something” occurred in M-Class‘s mine, without assignment of fault or causation, differs greatly from an act of the Congress embodying a determination that an individual was a child abuser and danger to his own daughter, Foretich v. United States, 351 F.3d 1198, 1213 (D.C. Cir. 2003), the Fifth Circuit Judicial Council‘s “characterization” of a federal judge as engaging in a pattern of abusive behavior for years, McBryde, 264 F.3d at 54–57, or the United States Department of Justice‘s identification of certain films as political propaganda under the Foreign Agents Registration Act deterring a state senator from exhibiting those films, Meese v. Keene, 481 U.S. 465, 473–74 (1987). Here, any “claims of reputational injury [are] too vague and unsubstantiated to preserve [the] case from mootness.” McBryde, 264 F.3d at 57.
Further, neither the Mine Act nor the precedent cited by the Commission and M-Class indicates that a § 103(k) order, once terminated, can serve as the basis for a later citation or enforcement action or be modified after termination. As noted by Commissioner Jordan in her dissent, “the Secretary does not factor the issuance of a section 103(k) order into any of the progressive enforcement mechanisms under the Mine Act . . . [and] the issuance of such an order is not considered in a mine‘s history of violations for purposes of MSHA‘s future proposed penalty assessments.” M-Class Mining, LLC, 42 FMSHRC at 509 (Jordan, dissenting) (citing
supporting the conclusion that a terminated § 103(k) order can serve as the basis for a later citation or enforcement action.6
The Commission and M-Class also rely on two FMSHRC decisions to support the proposition that a § 103(k) order can be modified after termination: Secretary of Labor v. Wyoming Fuel Co., 14 FMSHRC 1282, 1288–89 (1992), and Secretary of Labor v. Ten-A-Coal Co., 14 FMSHRC 1296, 1298 (1992). Wyoming Fuel Co. and Ten-A-Coal Co. indicate that a citation issued under § 104 of the Mine Act can be modified after termination, not that a § 103(k) safety order can be so modified. We agree with the Secretary that § 104 citations—and withdrawal orders—are distinguishable from § 103(k) safety orders. Pet‘r‘s Suppl. Br. 3–5. Termination of a § 104(a) citation signifies that the violative condition has abated and that the mine operator is no longer subject to a § 104(b) withdrawal order for failure to abate but “not that the citation itself no longer exists for other legal purposes . . . [such as] subsequent contest and civil penalty proceedings.” Wyoming Fuel Co., 14 FMSHRC at 1288. There are no analogous citations or penalty proceedings under § 103(k). The functional difference between termination and vacatur in the context of a § 104 citation does not mean a terminated § 103(k) safety order—rather than a vacated § 103(k) safety order—threatens non-speculative legal consequences for the mine operator. Neither the Commission nor M-Class has identified any statutory basis for conversion of a § 103(k) safety order to a
§ 104 citation or withdrawal order.7 That MSHA—while investigating
In sum, M-Class‘s challenge of the terminated Order is moot and we now assess whether an exception to mootness applies.
B. The “Capable of Repetition But Evading Review” Exception
The “capable of repetition but evading review” exception does not apply. We recently explained that “[t]he capable of repetition but evading review exception applies if (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” J.T., 983 F.3d at 523 (internal quotations omitted). As the party invoking the exception, M-Class has the burden to establish its applicability. Id. The first prong is satisfied, as the Secretary concedes, because MSHA terminated the Order within 40 days of its issuance. Joint Appendix 221; Pet‘r‘s Suppl. Br. 7. Turning to the second prong, we explained in J.T. that:
This prong requires that the same parties will engage in litigation over the same issues in the future. The party invoking the exception must show a reasonable degree of likelihood that the issue will be the basis of a continuing controversy between the two parties. The relevant inquiry, however, is not whether the precise historical facts that spawned the plaintiff‘s claims are likely to recur. Rather, the wrong that is, or is not, capable of repetition must be defined in terms of the precise controversy it spawns, to wit, in terms of the legal questions it presents for decision.
J.T., 983 F.3d at 524 (internal quotations omitted) (alterations adopted). Vital to our analysis, then, is how the legal wrong is defined. “The opportunities for manipulation are great. The more broadly we define the wrongful conduct, the more numerous are the possible examples, and the greater the
likelihood of repetition.” Clarke, 915 F.2d at 703. Importantly, “we have made clear [that] a legal controversy so sharply focused on a unique factual context will rarely present a reasonable expectation that the same complaining party would be subjected to the same actions again.” J.T., 983 F.3d at 524 (internal quotations omitted) (alterations adopted). Put another way, we must ask whether “the case before us is highly dependent upon a series of facts unlikely to be duplicated in the future.” People for the Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005). This case falls well within our caution: it presents a legal controversy regarding the validity of the terminated Order‘s issuance that is “so sharply focused” and “highly dependent upon a series of facts unlikely to be duplicated” that M-Class is not reasonably likely to face the same actions again.8
The Commission and M-Class rely on our decision in Performance Coal Co. But Performance Coal Co. is plainly distinguishable. In Performance Coal Co., we were asked to review a § 103(k) order that remained in effect, having been modified over sixty times, and the Secretary admitted that MSHA would likely modify the order again. 642 F.3d at 235–37. On the contrary, the M-Class Order was modified twice and terminated. Further, Performance Coal Co. involved a clear question of statutory interpretation: whether § 105(b) of the Mine Act allows an operator to seek temporary relief from a § 103(k) order. Performance Coal Co., 642 F.3d at 238–39. Granted, there is a statutory element to the issues here, but only in the context of whether, on these unusual facts, MSHA properly issued the now-terminated Order. Performance Coal Co., then, does not control and M-Class has failed to
demonstrate that this case otherwise falls within the “capable of repetition but evading review” exception.9
Because the case is moot and does not fit the exception, we are without jurisdiction to review the Commission decision and, accordingly, we dismiss the petition. As we explained in Tennessee Gas Pipeline Co., “the appropriate disposition of moot administrative orders” is vacatur of the administrative order we are without authority to review. 606 F.2d at 1382 (citing A.L. Mechling Barge Lines, Inc., 368 U.S. at 329).
For the foregoing reasons, we dismiss the petition, vacate the Commission decision and the Order and remand to the Commission for proceedings consistent with this opinion.
So ordered.