PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SPEED MINING, INCORPORATED,
Petitioner,
v.
FEDERAL MINE SAFETY AND HEALTH No. 07-2090
REVIEW COMMISSION; SECRETARY OF
LABOR; MINE SAFETY AND HEALTH
ADMINISTRATION,
Respondents.
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission.
(WEVA 2005-20-R; WEVA 2005-21-R; WEVA 2005-22-R;
WEVA 2005-23-R; WEVA 2005-24-R; WEVA 2005-25-R;
WEVA 2005-97)
Argued: May 14, 2008
Decided: June 11, 2008
Before WILKINSON and KING, Circuit Judges,
and Jackson L. KISER, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge King and Senior Judge Kiser joined.
COUNSEL
ARGUED: Daniel William Wolff, CROWELL & MORING, LLP,
Washington, D.C., for Petitioner. Robin Ann Rosenbluth, UNITED
2 SPEED MINING v. FEDERAL MINE SAFETY
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents. ON BRIEF: Timothy M. Biddle, Natalia R. Medley,
CROWELL & MORING, LLP, Washington, D.C., for Petitioner.
Gregory F. Jacob, Solicitor of Labor, Edward P. Clair, Associate
Solicitor, W. Christian Schumann, Counsel, Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Office of the Solic-
itor, Washington, D.C., for Respondents.
OPINION
WILKINSON, Circuit Judge:
Speed Mining, Inc. ("SMI"), an owner-operator of a coal mine in
West Virginia, petitions for review of a final decision of the Federal
Mine Safety and Health Review Commission. SMI argues that it was
wrongly cited for violations committed by an independent contractor
it had engaged, because the Secretary of Labor lacks the authority to
cite an owner-operator for an independent contractor’s violations. In
the alternative, SMI contends that the Secretary abused her discretion
in issuing the citations.
We reject both of SMI’s arguments. It is settled law in this and
other circuits that the Secretary possesses the discretionary authority
to cite owner-operators, independent contractors, or both for safety
violations committed by independent contractors. Moreover, there are
no manageable standards in the Mine Act that enable us to review the
Secretary’s discretionary exercise of her enforcement authority.
I.
A.
Congress enacted the Federal Mine Safety and Health Act, 30
U.S.C. §§ 801-964 (the "Mine Act"), in order to protect the mining
industry’s "most precious resource — the miner." 30 U.S.C. § 801(a)
(2000). To that end, the Mine Act directs the Secretary of Labor, act-
ing through the Mine Safety and Health Administration ("MSHA"),
SPEED MINING v. FEDERAL MINE SAFETY 3
to develop and promulgate "mandatory health and safety standards"
for the mining industry. See id. § 811.
In order to ensure compliance with these safety standards, the Act
further directs the Secretary to inspect mines, see id. § 813(a), and
issue citations to any mine "operators" the Secretary believes have
"violated [the Mine Act], or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to [the Mine Act]," id.
§ 814(a). The Secretary is also required to propose and assess civil
penalties against any operators who violate the Act or MSHA stan-
dards. See id. §§ 815, 820(a).
An operator may contest a citation or civil penalty before the Fed-
eral Mine Safety and Health Review Commission (the "Commis-
sion"). See id. §§ 815(d), 823. The Commission is an independent
agency responsible for adjudicating disputes arising under the Mine
Act. See id. § 823. The Commission appoints administrative law
judges ("ALJs") to review claims in the first instance in trial-like
administrative hearings, see id. § 823(d)(1), and the Commission
exercises discretionary appellate review over ALJ decisions, see id.
§ 823(d)(2)(A)(i). Any person "adversely affected or aggrieved" by
the Commission’s decision may then seek judicial review in the Court
of Appeals of either the D.C. Circuit or the circuit where the violation
is alleged to have occurred. Id. § 816(a)(1).
B.
Speed Mining, Inc., owns and operates American Eagle Mine ("the
Mine"), an underground coal mine in Dry Branch, West Virginia. In
2004, SMI engaged Cowin and Company, Inc. ("Cowin"), to sink an
elevator shaft at the Mine. SMI did not check Cowin’s history with
regard to employee injuries or mine safety violations, even though
such data was readily available on MSHA’s website. In fact, Cowin’s
injury rate was substantially above — four to ten times higher than
— the national average for the eight preceding years.
SMI’s contract with Cowin gave the latter almost complete discre-
tion to sink the shaft as it saw fit. To this end, the contract stated that
Cowin was an "independent contractor" and not an "agent" of SMI,
and that Cowin "maintain[ed] complete control at all times over its
4 SPEED MINING v. FEDERAL MINE SAFETY
employees and any Subcontractors, Vendors, or others working
under" Cowin’s supervision. Moreover, the contract granted Cowin
"full power and authority to select the means, manner, and method of
[its performance] without control or direction by" SMI. Cowin was
also responsible for complying with "all laws, rules, orders, and regu-
lations, federal, state, and local," applicable to the sinking of the mine
shaft.
In August 2004, Cowin began constructing the elevator shaft. On
August 31, September 2, and September 13, a MSHA official
inspected Cowin’s shaft-sinking site. Each time, the inspector found
violations of MSHA safety standards. Over this two week period, the
inspector issued four citations to Cowin.
On the same dates, the MSHA inspector also visited an electrical
substation at the Mine. SMI had retained American Electrical, Inc.
("AEI"), another independent contractor, to install equipment at the
substation. On August 31, the inspector discovered that AEI had vio-
lated a MSHA regulation, and he thus issued AEI a citation. The
inspector also twice determined that SMI had failed to provide hazard
training for AEI employees, despite being compelled to do so under
MSHA regulations. See 30 C.F.R. § 46.12 (2007). The inspector cited
SMI for these violations.
On September 29, 2004, an accident occurred at Cowin’s shaft-
sinking site: a crane hoist failed and, as a result, a six-ton bucket fell
and landed next to the mine shaft opening. Although no one was seri-
ously injured during the accident, the free-falling bucket presented a
severe safety risk. If the bucket had fallen a few feet to the side (over
the mine shaft), it would have seriously injured, and possibly killed,
the five Cowin employees working in the shaft at the time of the acci-
dent.
After investigating the accident, MSHA determined that six viola-
tions of MSHA safety standards had occurred: failure to correct
defects in the crane; failure to adequately train the crane operator;
failure to comply with the MSHA-approved shaft sinking plan (two
separate violations); failure to remove the crane from service, despite
the fact that two safety switches were not functional; and failure to
perform an adequate pre-operational check on the crane. The Secre-
SPEED MINING v. FEDERAL MINE SAFETY 5
tary thus issued both Cowin and SMI citations for each of these six
violations. The citations received by Cowin and SMI were nearly
identical in every respect, except for the fact that SMI was charged
with a lower degree of negligence.
SMI subsequently contested the citations arising from the crane
hoist accident. Before an ALJ, SMI claimed that the Secretary abused
her discretion in citing SMI "for violations for which an independent
contractor alone was responsible." SMI’s arguments were largely
based on the Commission’s decision in Twentymile Coal Co., 27
FMSHRC 260 (2005). In Twentymile, the Commission held that the
Secretary abused her discretion in citing an owner-operator for viola-
tions committed by an independent contractor.
Relying on this decision, the ALJ agreed with SMI and held that
the Secretary had abused her discretion in citing SMI in connection
with the September 29, 2004 accident. The Secretary subsequently
appealed the ALJ’s decision. The Commission granted the Secretary’s
appeal, and then stayed the case pending the D.C. Circuit’s review of
Twentymile.
In July 2006, the D.C. Circuit reversed the Commission’s Twen-
tymile decision. See Sec’y of Labor v. Twentymile Coal Co., 456 F.3d
151 (D.C. Cir. 2006). The D.C. Circuit held that the Secretary pos-
sessed discretionary authority to "cite owner-operators, their indepen-
dent contractors, or both for safety violations committed by the
independent contractors," and that the Commission lacked the author-
ity to review these discretionary decisions made by the Secretary. Id.
at 161.
In light of the D.C. Circuit’s Twentymile decision, the Commission
remanded SMI’s case to the ALJ for reconsideration. Upon remand,
the ALJ affirmed all of the Secretary’s citations and assessed penal-
ties for SMI’s violations. The Commission declined review, and the
ALJ’s decision thus became a final order of the Commission and sub-
ject to judicial review. 30 U.S.C. § 823(d)(1) (2000).
On October 30, 2007, SMI filed a timely appeal to this court. In
its appeal, SMI argues that the Mine Act bars the Secretary from cit-
ing an owner-operator for violations committed by an independent
6 SPEED MINING v. FEDERAL MINE SAFETY
contractor. In the alternative, SMI contends that, even if the Secretary
does have such discretionary authority, she abused her discretion in
this case. We review each claim in turn.
II.
We first consider SMI’s argument that the Mine Act bars the Sec-
retary from citing an owner-operator for violations committed by an
independent contractor.
The Mine Act places the "primary responsibility" for preventing
unsafe mining conditions on mine "operators." 30 U.S.C. § 801(e)
(2000). The Act defines an "operator" as "any owner, lessee, or other
person who operates, controls, or supervises a coal or other mine or
any independent contractor performing services or construction at
such mine." Id. § 802(d).
In order to encourage operator compliance, the Act provides the
Secretary with numerous regulatory tools. For example, the Mine Act
grants the Secretary the following power to cite mine operators:
If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator . . . has
violated [the Act], or any mandatory health or safety stan-
dard, rule, order, or regulation promulgated pursuant to [the
Act], he shall, with reasonable promptness, issue a citation
to the operator.
Id. § 814(a) (the "citation provision"). The Mine Act also gives the
Secretary the power to assess civil penalties against the "operator of
a coal or other mine in which a violation . . . of a mandatory health
or safety standard" occurs. Id. § 820(a) (the "civil penalty provision").
SMI centers its claim on the text of the Mine Act’s citation provi-
sion. SMI contends that the Mine Act’s use of the definite article
"the" before the provision’s second use of the word "operator" indi-
cates that the Secretary only has the statutory authority to cite "the
operator that ‘has violated [the Mine] Act’ or any safety standard pro-
mulgated under the Mine Act." Brief of Appellant at 17 (quoting 30
SPEED MINING v. FEDERAL MINE SAFETY 7
U.S.C. § 814(a) (2000)). Given this, SMI argues that the Secretary
lacks the statutory authority to cite mine owners, such as SMI, when
their independent contractors, such as Cowin, are the ones who vio-
late the Mine Act.
In response, the Secretary argues that SMI’s "exclusive reliance"
on the Mine Act’s citation provision leads to a "fundamentally
flawed" interpretation of the statute. Brief of Appellee at 25. Accord-
ing to the Secretary, reading § 814(a) in the context of the Mine Act
as a whole clearly establishes that the Secretary possesses the discre-
tionary authority to "cite both the owner-operator . . . and the inde-
pendent contractor for violations committed by the independent
contractor." Id. at 27-28 (emphasis in original).
We find that the Secretary’s reading of the statute is not only rea-
sonable under Chevron USA, Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-45 (1984), but also correct. Based
on the text and purposes of the Mine Act, as well as uncontradicted
precedent, we conclude that 30 U.S.C. § 814(a) grants the Secretary
the discretionary authority to "cite the independent contractor, the
owner, or both" for any violations of the Mine Act committed by an
independent contractor. Cyprus Indus. Minerals Co. v. Fed. Mine
Safety and Health Review Comm’n, 664 F.2d 1116, 1119 (9th Cir.
1981).
The textual analysis conducted by this court in Bituminous Coal
Operators’ Association v. Secretary of Interior, 547 F.2d 240 (4th
Cir. 1977) ("BCOA"), remains sound. In BCOA, this court held that,
under the statutory precursor to the Mine Act, the Federal Coal Mine
Health and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742 (the
"Coal Act"), mine owner-operators could be held liable for health and
safety violations committed by independent contractors. See BCOA,
547 F.2d at 245-47.
The court in BCOA based its holding on two separate determina-
tions, both grounded in the text of the Coal Act. First, the court con-
sidered the Coal Act’s definition of operator: "‘any owner, lessee, or
other person who operates, controls, or supervises a coal mine.’" See
id. at 246 (citing 30 U.S.C. § 802(d) (1976)). Because the entities
listed in this definition were not mutually exclusive — for instance,
8 SPEED MINING v. FEDERAL MINE SAFETY
an independent contractor may "control" or "supervise" all or part of
a mine that has a completely separate "owner" — the court reasoned
that multiple "operators" could be present at a single coal mine simul-
taneously. See BCOA, 547 F.2d at 246-47.
Second, the court found that the Coal Act’s civil penalty and com-
pensation provisions — identical in all relevant part to the same pro-
visions found later in the Mine Act — operated without regard to
fault. Id. In particular, the court noted that an operator could face civil
penalties if a violation merely occurred at its mine, and that an opera-
tor is liable to compensate idled coal miners regardless of whether it
caused the safety conditions that prompted the Secretary to mandate
a work stoppage. Id. (discussing the Coal Act’s civil penalty, 30
U.S.C. § 819 (1976), and compensation, id. § 820, provisions).
Taken together, these two determinations — that multiple operators
may be present at a single mine simultaneously, and that those opera-
tors can be held liable without regard to fault — led the court in
BCOA to the conclusion that the owner of a mine may be held "jointly
and severally liable for violations committed by" its independent con-
tractor. BCOA, 547 F.2d at 247.
The continuing relevance of BCOA is unsurprising, as the Coal Act
provisions relied on by the court in BCOA are largely unchanged in
the Mine Act. Indeed, the Mine Act’s only material change to the pro-
visions relied on in BCOA is the specific inclusion of "independent
contractors" in the definition of "operator." See 30 U.S.C. § 802(d)
(2000). Furthermore, the "Senate Report accompanying the bill that
became the Mine Act stated that the purpose of this amendment was
to give statutory expression to the doctrine of BCOA." Brock v.
Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 535 (D.C. Cir. 1986);
see also Int’l Union, United Mine Workers of America v. Fed. Mine
Safety and Health Review Comm’n, 840 F.2d 77, 82 (D.C. Cir. 1988)
("UMWA").
Our holding is likewise consistent with the purposes of the Mine
Act, as evidenced by its text — ensuring the health and safety of min-
ers. See, e.g., 30 U.S.C. § 801(a) (2000). Precluding owner-operator
liability for independent contractor violations would encourage own-
ers to use contractors as a means of insulating themselves from safety
SPEED MINING v. FEDERAL MINE SAFETY 9
regulations. Owner-operators are "generally in continuous control of
[mine] conditions" and thus "more likely to know the federal safety
and health requirements." Cyprus Indus., 664 F.2d at 1119 (emphasis
omitted). It is difficult to see how miner safety is encouraged by
allowing a mine owner to "‘exonerate itself from its statutory respon-
sibility for the safety and health of miners merely by establishing a
private contractual relationship.’" Id. at 1120 (quoting Republic Steel
Corp., 1 FMSHRC 5, 11 (1979)).
Moreover, owner-operators possess ultimate authority over inde-
pendent contractors — retaining, supervising, and even dismissing
them, if necessary. Adopting SMI’s interpretation of the Mine Act
would encourage owner-operators to remain willfully blind to the
safety histories of their independent contractors. Conversely, holding
owner-operators liable for independent contractor violations encour-
ages owners to consider the safety records of companies before con-
tracting, something SMI neglected to do in this case. With the Mine
Act, Congress recognized that safety sometimes requires additional
expense, and that the temptation to cut costs is often great. But the
Act does not leave mine owners free to sacrifice miner safety in the
name of project cost. Doing so would only jeopardize the health and
safety of the mining industry’s "most precious resource — the miner."
30 U.S.C. § 801(a) (2000).
Our decision should hardly be surprising. Indeed, it is consistent
with the rulings of every court that has considered the precise ques-
tion before us concerning the Secretary’s citation authority. See Sec’y
of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006)
(holding that the Secretary has the authority "to cite owner-operators,
their independent contractors, or both for safety violations committed
by the independent contractors"); Harman Mining Corp. v. Fed. Mine
Safety and Health Review Comm’n, 671 F.2d 794, 797 (4th Cir.
1981); Cyprus Indus., 664 F.2d at 1119. In fact, an unbroken string
of courts has found that an owner-operator and an independent con-
tractor are "jointly liable" for any Mine Act violations. UMWA, 840
F.2d at 83; see also Twentymile, 456 F.3d at 154-55; Harman Mining,
671 F.2d at 797; Cyprus Indus., 664 F.2d at 1119. Congress recog-
nized the dangers inherent in coal mining, the potential both above
and below ground for mishaps to occur, and the tragic consequences
to miners and their families resulting from the loss of limb or life.
10 SPEED MINING v. FEDERAL MINE SAFETY
See, e.g., 30 U.S.C. § 801(b) (2000). We do no more than respect that
legislative judgment here.
III.
SMI next argues that the Secretary abused her discretion in citing
SMI for the violations arising from the crane hoist accident. In
response, the Secretary contends that her decision to cite SMI is unre-
viewable as a matter of law. Since we would lack the authority to con-
sider SMI’s abuse of discretion claim if the Secretary’s decision is
unreviewable, we first consider the Secretary’s argument.
A.
Although there is a "strong presumption" in favor of judicial
review of agency action, Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667, 670 (1986); see also Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Twentymile, 456 F.3d
at 156; ElectriCities of N.C., Inc. v. S.E. Power Admin., 774 F.2d
1262, 1266 (4th Cir. 1985), such action has traditionally been consid-
ered unreviewable if it is "committed to agency discretion by law,"*
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 (1987)
(internal quotations omitted); see also Heckler v. Chaney, 470 U.S.
821, 832 (1985). In Overton Park, the Supreme Court held that
agency action is "committed to agency discretion . . . in those rare
instances where statutes are drawn in such broad terms that in a given
case there is no law to apply." Overton Park, 401 U.S. at 410 (internal
quotations omitted). In other words, judicial review is unavailable if
*The Supreme Court has noted that section 701(a)(2) of the Adminis-
trative Procedure Act ("APA") "codifies the nature and attributes of judi-
cial review, including the traditional principle of its unavailability ‘to the
extent that . . . agency action is committed to agency direction by law.’"
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 (1987)
(quoting 5 U.S.C. § 701(a)(2)). This makes clear that the principles
underlying APA § 701(a)(2) are applicable even if the APA itself is not.
See Twentymile, 456 F.3d at 159. Thus, the fact that the Mine Act states
that sections 701 to 706 of the APA "shall not apply" to any Mine Act
review proceedings, 30 U.S.C. § 956 (2000), does not preclude the "com-
mitted to agency discretion" exception from applying in this case.
SPEED MINING v. FEDERAL MINE SAFETY 11
a statute provides "no judicially manageable standards . . . for judging
how and when an agency should exercise its discretion." Heckler, 470
U.S. at 830.
In determining whether a "meaningful standard" for reviewing
agency discretion exists, id., courts consider the particular language
and overall structure of the statute in question, see Webster v. Doe,
486 U.S. 592, 600-01 (1988), as well as "the nature of the administra-
tive action at issue," Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002);
Twentymile, 456 F.3d at 156. Though actions "committed to agency
discretion by law" constitute a "very narrow exception" to the pre-
sumption favoring judicial review, Overton Park, 401 U.S. at 410, the
Supreme Court and other courts have found numerous administrative
decisions unreviewable under this standard, see, e.g., Lincoln v. Vigil,
508 U.S. 182, 192-93 (1993) (decision to discontinue program fund-
ing); Heckler, 470 U.S. at 837-38 (decision not to institute enforce-
ment proceedings); Swift v. United States, 318 F.3d 250, 252-53 (D.C.
Cir. 2003) (decision to dismiss an action); Baltimore Gas & Electric
Co. v. FERC, 252 F.3d 456, 461-62 (D.C. Cir. 2001) (decision to set-
tle an action); Sierra Club v. Larson, 882 F.2d 128, 132 (4th Cir.
1989) (decision not to institute enforcement proceedings).
B.
Applying these principles, we hold that the Secretary’s discretion-
ary decision to cite SMI for the crane hoist accident is "committed to
agency discretion by law," and therefore unreviewable.
To begin, the relevant provisions of the Mine Act provide no mean-
ingful standard for review. As discussed earlier, the Mine Act’s cita-
tion provision states that if the Secretary "believes that an operator . . .
has violated [the Mine Act]," the Secretary shall "issue a citation to
the operator." 30 U.S.C. § 814(a) (2000). Likewise, the Mine Act
defines "operator" to mean "any owner, lessee, or other person who
operates, controls, or supervises a . . . mine or any independent con-
tractor performing services . . . at such mine." Id. § 802(d).
Given that multiple jointly-liable operators may be working at any
given mine, these provisions provide the Secretary with no direction
as to which operator or operators to cite in a particular case. See
12 SPEED MINING v. FEDERAL MINE SAFETY
Twentymile, 456 F.3d at 157. Indeed, the Mine Act is entirely silent
on this point. This lack of "guidelines against which to measure [the
Secretary’s] exercise of its enforcement discretion" leaves this court
with no manageable standard to apply. Baltimore Gas, 252 F.3d at
460.
The potential standards proposed by SMI do nothing to change this
assessment. Indeed, a quick review of some of SMI’s proposals only
confirms our determination that the Secretary’s citation authority is
generally unreviewable. For example, SMI argues that the Secretary’s
own Enforcement Guidelines "would provide an objective framework
for reviewing the Secretary’s actions." Brief of Appellant at 40. How-
ever, as SMI itself recognizes, these Guidelines are non-binding, and
the Secretary is not required to observe them. See Cathedral Bluffs,
796 F.3d at 539. It is thus difficult to see how the Guidelines could
form a workable standard for reviewing the Secretary’s action.
SMI also proposes that we review the Secretary’s enforcement
decisions by looking at "more objective standards, such as whether
there is a factual basis for holding [an owner-operator] vicariously lia-
ble under traditional tort principles, or whether the [owner-operator]
. . . could be held liable under an employer/employee or princi-
pal/agent analysis." Brief of Appellant at 41. This standard is also
unsuitable. As stated earlier, owner-operators are jointly and sever-
ally liable for their independent contractor’s violations under the Act.
It would thus directly contradict the Mine Act’s text to limit owner-
operator liability based on the standards SMI suggests.
Finally, SMI asks us to consider whether the Secretary is enforcing
the Mine Act in a manner "consistent with [its] purpose and policies."
Brief of Appellant at 41 (internal quotations omitted). This is the pre-
cise standard the D.C. Circuit rejected in Twentymile, and we too find
it wanting. Not only is the standard "nowhere to be found in the
[Mine] Act itself," Twentymile, 456 F.3d at 158, but it also threatens
to render the principles of nonreviewability discussed earlier null and
void. Indeed, since all legislation has purposes and policies, adopting
this standard would in essence "hold all agency decisions under all
statutes reviewable." Id. Thus, this standard, like all of the standards
SMI proposes, only confirms our conclusion that there is no manage-
able standard for us to apply in this case.
SPEED MINING v. FEDERAL MINE SAFETY 13
Moreover, the "nature of the administrative action at issue" further
supports our conclusion that the Secretary’s actions are unreviewable.
Drake, 291 F.3d at 70. It is difficult to think of a category of adminis-
trative action less prone to review than the Secretary’s exercise of her
exclusive authority to enforce the Mine Act. See Sec’y of Labor v.
Mutual Mining, Inc., 80 F.3d 110, 113-14 (4th Cir. 1996). Indeed, an
"agency’s exercise of its enforcement discretion" is "an area in which
the courts have traditionally been most reluctant to interfere." Cathe-
dral Bluffs, 796 F.2d at 538.
The discretionary decision as to which operator to cite for a Mine
Act violation rests on a "complicated balancing of a number of factors
which are peculiarly within" the Secretary’s expertise:
whether a violation has occurred, . . . whether agency
resources are best spent on this violation or another, whether
the agency is likely to succeed if it acts, whether [a] particu-
lar enforcement action . . . best fits the agency’s overall poli-
cies, and, indeed, whether the agency has enough resources
to undertake the action at all.
Heckler, 470 U.S. at 831. As the Supreme Court noted in Heckler, the
Secretary is "far better equipped than the courts" to balance these fac-
tors and determine its enforcement priorities. Id. at 831-32. This is
true for both presumptively unreviewable decisions not to enforce,
such as in Heckler, and presumptively reviewable decisions to
enforce, such as the Secretary’s discretionary decision to cite SMI in
this case.
Furthermore, the factors that guide the Secretary’s citation deci-
sions are not dissimilar from the considerations that guide a prosecu-
tor’s exercise of his discretion. See Wayte v United States, 470 U.S.
598, 607 (1985) (discussing the factors that influence a prosecutor’s
charging decision, including "the strength of the case, the prosecu-
tion’s general deterrence value, the Government’s enforcement priori-
ties, and the case’s relationship to the Government’s overall
enforcement plan"). Courts have long held that the government’s
exercise of prosecutorial discretion is "particularly ill-suited to judi-
cial review," id.; see also United States v. Armstrong, 517 U.S. 456,
464 (1996); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), and
14 SPEED MINING v. FEDERAL MINE SAFETY
a number of courts have found that the "traditional nonreviewability
of prosecutorial charging decisions" applies to certain discretionary
administrative enforcement decisions. Twentymile, 456 F.3d at 157;
see also Drake, 291 F.3d at 71; Beverly Health & Rehab. Servs., Inc.
v. Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1996).
Finally, the fact that the Mine Act explicitly grants aggrieved par-
ties the right to seek the Commission’s review if a "necessary legal
conclusion is erroneous" or if a "substantial question of law, policy,
or discretion is involved," see 30 U.S.C. § 823(d)(2)(A)(ii)(II), (IV)
(2000), does not alter our analysis. While the Commission’s authority
is broad, it does not extend to reviewing the Secretary’s policy-based
enforcement decisions.
This court has previously considered the scope of the Commis-
sion’s review authority under 30 U.S.C. § 823(d) in Secretary of
Labor v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir. 1996). In that
decision, we noted that the Commission’s statutory role is to "oper-
ate[ ] as a ‘neutral arbiter’ that possesses ‘nonpolicy-making adjudica-
tory powers.’" Id. at 114 (quoting Martin v. OSHRC, 499 U.S. 144,
154, 155 (1991)). In other words, while the Commission clearly has
the authority to "review[ ] cases involving questions of policy," it is
not "the final arbiter of such policies." Mutual Mining, 80 F.3d at 114
n.3. We think the principles established by Mutual Mining control in
this case. Courts should not infer, absent clear evidence to the con-
trary, "that Congress expected the Commission to use its adjudicatory
power to play a policymaking role." See Martin, 499 U.S. at 154
(emphasis omitted). As discussed earlier, the Secretary’s discretionary
exercise of her exclusive enforcement authority is a complicated,
policy-based decision — precisely the sort of determination on which
the Commission must defer to the Secretary’s expertise. Mutual Min-
ing, 80 F.3d at 114 (noting that the Secretary develops "policymaking
expertise" in enforcing the Mine Act (internal quotations omitted)).
Moreover, allowing the Commission to review the Secretary’s
enforcement choices would make every citation decision, however
routine, the potential subject of a lengthy administrative and judicial
appeal. There is no evidence in the Mine Act that Congress desired
this outcome. In sum, while the Commission plays a vital role in
ensuring that the Secretary’s enforcement actions are supported by
fact and consistent with the Mine Act’s text, it does not have the
SPEED MINING v. FEDERAL MINE SAFETY 15
authority to second-guess the Secretary’s policy-based choice of
defendant.
IV.
To summarize, we hold that the Secretary possesses the discretion-
ary authority under the Mine Act to cite an owner-operator, an inde-
pendent contractor, or both for independent contractor violations. We
also hold that the Secretary’s citation decisions are "committed to
agency discretion by law" and, therefore, unreviewable. We reach this
latter conclusion because no "meaningful standard" in the Mine Act
exists for reviewing the Secretary’s exercise of her discretionary
enforcement authority.
The Commission’s decision is therefore
AFFIRMED.