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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 31, 2003 Decided February 20, 2004
No. 02-1356
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA,
PETITIONER
v.
UNITED STATES DEPARTMENT OF LABOR,
MINE SAFETY AND HEALTH ADMINISTRATION,
ELAINE CHAO, SECRETARY OF LABOR, AND
DAVE LAURISKI, ASSISTANT SECRETARY OF LABOR FOR
MINE SAFETY AND HEALTH,
RESPONDENTS
On Petition for Review of an Order of the
Mine Safety and Health Administration
Judith Rivlin argued the cause for petitioner. With her on
the brief was Grant Crandall.
Ellen L. Beard, Senior Appellate Attorney, U.S. Depart-
ment of Labor, argued the cause for respondents. With her
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
on the brief were Allen H. Feldman, Associate Solicitor of
Labor, and Nathaniel I. Spiller, Deputy Associate Solicitor.
Mark S. Flynn, Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The United Mine Workers of
America petitions for review of a final decision of the Mine
Safety and Health Administration (MSHA), a component of
the Department of Labor, to withdraw its proposed Air
Quality rule. The Union argues the agency’s action was
contrary to the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 811, and arbitrary and capricious, in violation of
the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Be-
cause we conclude the MSHA failed to provide an adequate
explanation for its decision, we grant the Union’s petition and
remand this matter to the agency for further proceedings.
I. Background
The Mine Safety and Health Act authorizes the Secretary
of Labor to promulgate health standards ‘‘dealing with toxic
materials or harmful physical agents’’ in order to protect
miners from any ‘‘material impairment of health or functional
capacity.’’ 30 U.S.C. § 811(a)(6)(A). Pursuant to this author-
ity, in 1989 the MSHA proposed a comprehensive rule that
would: (1) ‘‘establish lists of hazardous substances that may
adversely affect health and TTT require control of exposure to
such substances’’; (2) ‘‘establish permissible exposure limits
[PELs] and delineate the methods and frequency of monitor-
ing to evaluate exposure’’; and (3) ‘‘revise requirements for
respiratory protection programs for metal/nonmetal mines
and establish similar requirements for coal mines.’’ Air
Quality, Chemical Substances, and Respiratory Protection
Standards, Proposed Rule, 54 Fed. Reg. 35760, 35761/2 (Aug.
29, 1989). The rule would have, among other things, estab-
lished PELs for more than 600 chemical substances that
might be present in a mine, 165 of which substances would
3
have been regulated for the first time. See id. at 35766/3,
Table 2. As explained in the proposal:
The effect of these substances may range from allergic
reactions to systemic toxicity. Some of them are capable
of causing cancers, central and peripheral neuropathies,
lung disease, liver and kidney damage, birth defects, and
other systemic effects.
54 Fed. Reg. at 35761/1.
When it proposed the rule, the MSHA ‘‘believe[ed] that the
health evidence form[ed] a reasonable basis for proposing
revisions to [current exposure] levels.’’ Id. Accordingly, the
agency conducted public hearings, solicited and received com-
ments, and in 1994 adopted one phase of the rule. See Air
Quality: Health Standards for Abrasive Blasting and Drill
Dust Control, Final Rule, 59 Fed. Reg. 8318 (Feb. 18, 1994),
codified at 30 C.F.R. §§ 58.610–.620, 72.610–.630; see also Air
Quality Proposed Rule, 54 Fed. Reg. at 35776/1–77/1.
In September 2002, however, the MSHA decided to with-
draw the remainder of the proposed rule. 67 Fed. Reg. 60611
(Sept. 26, 2002). By way of explanation, the agency said its
decision to withdraw the proposed rule ‘‘was the result of
changes in agency priorities and the possible adverse effect
TTT of the decision in AFL-CIO et. al. v. OSHA,’’ id. at
60611/2, in which the Eleventh Circuit had invalidated an
OSHA rule that set new PELs for 428 toxic substances, see
965 F.2d 962 (1992). The MSHA also noted it had been
‘‘more than 13 years since the proposal was published and
more than 12 years since the comments were received.’’ 67
Fed. Reg. at 60611/2.
II. Analysis
The Union first argues the MSHA’s withdrawal of the
proposed Air Quality rule was contrary to the Mine Safety
and Health Act. We review the MSHA’s interpretation of the
Act according to the familiar standards in Chevron U.S.A.
Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837,
842–44 (1984). The Union also contends the MSHA’s action
4
was arbitrary and capricious, in violation of the Administra-
tive Procedure Act, 5 U.S.C. § 706(2)(A).
A. Jurisdiction
We note at the outset that the source of our jurisdiction to
entertain the Union’s petition, though the parties did not
question it, is far from obvious. We therefore raised the
issue ourselves and directed the parties to address it at oral
argument. See Citizens for Abatement of Aircraft Noise, Inc.
v. Metro. Wash. Airports Auth., 917 F.2d 48, 53 (D.C. Cir.
1990) (‘‘a court of appeals must first satisfy itself of its own
jurisdiction, sua sponte if necessary, before proceeding to the
merits’’).
The Mine Safety and Health Act grants the court of
appeals jurisdiction to entertain challenges only to any ‘‘man-
datory health or safety standard promulgated under’’ the Act.
30 U.S.C. § 811(d).* The Union’s petition, however, chal-
lenges the withdrawal, rather than the promulgation, of a
proposed rule; the Act does not grant this court jurisdiction
to review such a challenge. It is equally clear the APA does
not confer jurisdiction upon this (or any) court. See Califano
v. Sanders, 430 U.S. 99, 104–05 (1977) (holding the APA does
not ‘‘provide a distinct basis of jurisdiction’’).
Under the All Writs Act, 28 U.S.C. § 1651(a), however, we
have the authority to compel agency action unreasonably
withheld or delayed if the putative agency action, once forth-
coming, would be reviewable in this Court. See Telecomm.
Research & Action v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984)
(TRAC); Oil, Chemical & Atomic Workers Int’l Union v.
* 30 U.S.C. § 811(d) reads in relevant part:
Any person who may be adversely affected by a mandatory
health or safety standard promulgated under this section may,
at any time prior to the sixtieth day after such standard is
promulgated, 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.
5
Zegeer, 768 F.2d 1480, 1483–85 (D.C. Cir. 1985) (OCAW)
(asserting jurisdiction pursuant to TRAC to entertain claim of
unreasonable delay by MSHA). As we stated the matter in
TRAC: ‘‘Because the statutory obligation of a Court of
Appeals to review on the merits may be defeated by an
agency that fails to resolve disputes, a Circuit Court may
resolve claims of unreasonable delay in order to protect its
future jurisdiction.’’ 750 F.2d at 76.
This case, however, does not fall squarely under any circuit
precedent because it is not a claim of unreasonable delay.
See id. at 74; OCAW, 768 F.2d at 1485. The logic of TRAC
nonetheless supports our jurisdiction over the present case:
like the unreasonable delay in promulgating a rule alleged in
OCAW, the withdrawal of a proposed rule defeats this Court’s
prospective jurisdiction. As in TRAC and OCAW, therefore,
we may properly exercise jurisdiction in order ‘‘to support
[our] ultimate power of review, even though it is not immedi-
ately and directly involved’’ at this time. TRAC, 750 F.2d at
76.
Because the Mine Safety and Health Act expressly pro-
vides for review of promulgated standards in the court of
appeals, one might infer that the court of appeals is without
jurisdiction to review the Secretary’s decision not to promul-
gate a standard. If § 811(d) were construed by negative
implication to preclude such review in the court of appeals,
however, then an adversely affected party would have to seek
review of the agency’s action, if at all, in the district court,
pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).
It would be anomalous, however, for the district court to
review claims of arbitrary and capricious withdrawal while
the court of appeals entertains claims of unreasonable delay,
considering that the latter type of claim is at least as likely as
the former to involve issues of fact. Our jurisdiction over
claims of delay having been established in TRAC, that is, our
authority to hear the Union’s claim that the proposed rule
was unlawfully withdrawn seems to follow as a necessary
implication. And so to the merits.
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B. Statutory Authority
The Union first argues the MSHA’s decision to withdraw
the proposed rule was contrary to the Mine Safety and
Health Act itself: ‘‘once the Secretary identified the need to
promulgate an air quality rule, she had the affirmative duty
to complete it.’’ This argument need not detain us long, for it
is perfectly clear the Secretary may withdraw a proposed
‘‘health or safety standard [if he] publish[es] his reasons for
his determination’’ not to promulgate it. 30 U.S.C.
§ 811(a)(4)(C). Thus, the Congress ‘‘has directly spoken to
the precise question at issue,’’ Chevron, 467 U.S. at 842, and
we are bound to ‘‘give effect to [its] unambiguously expressed
intent,’’ id. at 843, with the result that the Union’s first
argument fails.
C. The Administrative Procedure Act
The Union next argues the MSHA’s decision to withdraw
its proposed rule was not a reasoned one. We review the
agency’s action under the deferential ‘‘arbitrary and capri-
cious’’ standard of the APA. See Nat’l Mining Ass’n v.
MSHA, 116 F.3d 520, 527 (D.C. Cir. 1997). In applying this
standard, we give more deference to an agency’s decision to
withdraw a proposed rule than we give to its decision to
promulgate a new rule or to rescind an existing one. See
Williams Natural Gas Co. v. FERC, 872 F.2d 438, 443–44
(D.C. Cir. 1989).
Although the MSHA’s publication of the proposed Air
Quality rule certainly did not obligate it to adopt that rule (or,
for that matter, any rule), the agency ‘‘was not free to
terminate the rulemaking for no reason whatsoever.’’ Id. at
446. Because ‘‘[t]he grounds upon which an administrative
action must be judged are those upon which the record
discloses that [the] action was based,’’ SEC v. Chenery Corp.,
318 U.S. 80, 94 (1943) (‘‘Chenery I’’), the MSHA must ‘‘pro-
vide an explanation that will enable the court to evaluate [its]
rationale at the time of the decision.’’ Pension Benefit
Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990); see
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (‘‘Chenery
II’’) (‘‘a reviewing court TTT must judge the propriety of
7
[agency] action solely by the grounds invoked by the agency,’’
and ‘‘that basis must be set forth with such clarity as to be
understandable’’). Here the MSHA fell short of its obli-
gation.
The MSHA purported to rest its decision upon three
seemingly independent grounds: a ‘‘change in agency priori-
ties’’; the ‘‘possible adverse effect’’ of AFL-CIO v. OSHA, 965
F.2d 962 (11th Cir. 1992); and the staleness of the record.
The MSHA’s statement that there was a ‘‘change in agency
priorities,’’ without explanation, is not informative in the least;
it is merely a reiteration of the decision to withdraw the
proposed rule. As for the staleness of the record, that is
reason enough for an agency to hesitate before promulgating
a proposed rule, but not for abandoning it altogether: ‘‘If [the
agency] regarded the information in its record as out-of-date,
then it might more reasonably have chosen to supplement the
record rather than terminate the docket.’’ Williams, 872
F.2d at 449.
We are left with the MSHA’s claim that, in the wake of
AFL-CIO v. OSHA, ‘‘a comprehensive approach to rulemak-
ing’’ is ‘‘no longer a viable means’’ of addressing the health
risks it had sought to remedy with the proposed Air Quality
rule.* 67 Fed. Reg. at 60611/2. In AFL-CIO v. OSHA, the
MSHA explained, the court of appeals invalidated an OSHA
rule because the agency had ‘‘not met its statutory burden in
establishing the PELs for each of the 428 contaminants
regulated by the standard.’’ Id. The case is indeed a caution
for an agency embarking upon the regulation of exposure to
numerous substances. That is why the MSHA, in 1996, said
it was ‘‘exploring issuing the final [Air Quality] rule in phas-
es’’; at that time it apparently believed it could thereby meet
the requirements elaborated by the Eleventh Circuit. Dep’t
of Labor (Mine Safety & Health Administration) Unified
* We do not express an opinion with regard to whether ‘‘a
comprehensive approach to rulemaking’’ is still viable in light of
AFL-CIO v. OSHA. Cf. Troy Corp. v. Browner, 120 F.3d 277 (D.C.
Cir. 1997) (distinguishing AFL-CIO and upholding most of EPA
rule adding 286 substances to the Toxic Release Inventory).
8
Agenda, 61 Fed. Reg. 23261/3 (May 13, 1996). Yet, in later
withdrawing the proposed Air Quality rule, the MSHA did
not explain why it came to deem the Eleventh Circuit decision
fatal to that effort. Nor did the agency address certain data
submitted by the American Conference of Governmental In-
dustrial Hygienists (ACGIH), which the Union suggests
would have aided the agency in crafting a rule that met the
Eleventh Circuit’s standard.
Even if the agency had not raised the possibility of going
forward in a manner designed to cope with the decision of the
Eleventh Circuit, however, we would still have to remand this
matter to the agency for further consideration. Two of the
three reasons it gave still would not support its decision, and
we do not know—nor are we free to guess—what the agency
would have done had it realized that it could not justify its
decision by conclusorily asserting that agency priorities had
changed or by observing that the record had become stale.
See Chenery I, 318 U.S. at 88 (‘‘If an order is valid only as a
determination of policy or judgment which the agency alone is
authorized to make and which it has not made, a judicial
judgment cannot be made to do service for an administrative
judgment’’).
In sum, the MSHA failed to provide an adequate explana-
tion for its decision to withdraw the Air Quality proposal.
Absent such an explanation, the agency’s action was arbitrary
and capricious.
III. Conclusion
For the foregoing reasons, we grant the Union’s petition
for review and remand this matter to the Mine Safety and
Health Administration so that it may either proceed with the
Air Quality rulemaking or give a reasoned account of its
decision not to do so.
So ordered.