Secretary of Labor v. Twentymile Coal Co.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2006 Decided July 7, 2006

No. 05-1124

SECRETARY OF LABOR,
PETITIONER

v.

TWENTYMILE COAL COMPANY AND
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENTS

On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission

Jack Powasnik, Attorney, U.S. Department of Labor,
argued the cause for petitioner. With him on the briefs was W.
Christian Schumann.

Ralph Henry Moore II argued the cause for respondent
Twentymile Coal Company. With him on the brief was Karen
L. Johnston.

Before: RANDOLPH and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.
 2

GARLAND, Circuit Judge: This case represents the first
time in more than twenty years1 that the Federal Mine Safety
and Health Review Commission has overturned a decision by
the Secretary of Labor to cite the owner-operator of a mine, as
well as its independent contractor, for safety violations
committed by the contractor. This court has long recognized the
Secretary’s discretionary authority to cite the owner-operator,
the independent contractor, or both for contractor violations.
Because the Mine Act provides no meaningful standards against
which to judge the Secretary’s decisions regarding which party
to cite, the Commission is generally without authority to review
such decisions. We therefore grant the Secretary’s petition for
review and vacate the Commission’s ruling.

I

The Mine Act requires the Secretary of Labor, acting
through the Mine Safety and Health Administration (MSHA), to
promulgate mandatory safety and health standards for the
mining industry and to conduct regular mine inspections. 30
U.S.C. §§ 811, 813(a). If a MSHA inspector discovers
conditions that violate safety or health standards, § 104 of the
Act directs the Secretary to issue a citation or an order to the
mine’s “operator.” 30 U.S.C. §§ 814(a). The Act defines an
“operator” as “any owner, lessee, or other person who operates,
controls, or supervises a . . . mine or any independent contractor
performing services or construction at such mine.” 30 U.S.C. §

1
See Secretary of Labor v. Twentymile Coal Co., 27
F.M.S.H.R.C. 260, 278 (2005) (Jordan, Comm’r, concurring and
dissenting).
 3

802(d) (emphasis added). (The entities listed before the
italicized “or” are also known as “production-operators.”2)

The Federal Mine Safety and Health Review Commission
(FMSRHC) is an independent agency charged with adjudicating
disputes under the Mine Act, including disputes over whether
safety standards have been violated. See 30 U.S.C. §§ 815, 823.
The Commission appoints administrative law judges (ALJs) to
conduct trial-type proceedings to hear such disputes. See 30
U.S.C. § 823(d)(1). Any person aggrieved by a decision of an
ALJ may request discretionary review by the Commission, see
30 U.S.C. § 823(d)(2)(A)(i), and any person aggrieved by an
order of the Commission may obtain review in this court, see 30
U.S.C. § 816(a)(1).

Twentymile owns and operates the Foidel Creek Mine, an
underground coal mine in Routt County, Colorado. In its
capacity as owner-operator, Twentymile often uses independent
contractors to undertake various projects at the mine. On
August 14, 2001, Twentymile hired Precision Excavating, Inc.,
an independent contractor, to perform work on a refuse pile.

On August 30, 2001, MSHA Inspector Michael Havrilla
conducted an inspection of the surface areas of the Foidel Creek
Mine. During the course of his inspection, Havrilla observed
that the equipment used by Precision’s employees violated six
safety standards. Among the violations were a leaking diesel
fuel tank on a pan scraper, and a ten-by-ten-inch opening on a
service truck’s air compressor that permitted contact with the
drive belts and pulley. When Havrilla discussed the violations
with a Precision employee, he learned that Twentymile had not
examined the contractor’s equipment prior to its use at the mine.

2
See Independent Contractors, 45 Fed. Reg. 44494, 44494 (July
1, 1980).
 4

See Secretary of Labor v. Twentymile Co., 25 F.M.S.H.R.C. 352,
356 (2003) (hereinafter ALJ Decision). Fearing that Precision’s
violations might augur an increase in contractor violations,
Havrilla decided that issuing citations to both Precision and
Twentymile was the best way to guarantee mine safety. See id.
at 356-57.

Precision, the independent contractor, did not contest the
citations and paid the $352 penalty assessed against it by
MSHA. Twentymile, however, contested the citations and the
attendant $900 penalty. In a hearing before an ALJ, Twentymile
stipulated that the conditions described in the citations
constituted violations of the Mine Act, but argued that it was
improper for the Secretary to cite it for violations committed by
Precision. See id. at 353.

On July 7, 2003, the ALJ ruled in the Secretary’s favor.
Citing Commission precedent, the ALJ held that, “in instances
of multiple operators, the Secretary has wide enforcement
discretion and ‘may, in general, proceed against an owner-
operator, his contractor, or both.’” ALJ Decision, 25
F.M.S.H.R.C. at 358 (quoting Secretary of Labor v. Mingo
Logan Coal Co., 19 F.M.S.H.R.C. 246, 249 (1997)). The ALJ
found no abuse of discretion with respect to the Secretary’s
decision to cite Twentymile as well as Precision. See id. at 359.
Although he recognized the nonbinding nature of enforcement
guidelines issued by the Secretary to identify when to charge an
owner-operator, the ALJ found that “the citations easily fit
within” the guidelines. Id. at 359; see id. at 359 n.1 (referring to
Enforcement Policy and Guidelines for Independent
Contractors, App. A to Independent Contractors, 45 Fed. Reg.
44494, 44497 (July 1, 1980) (hereinafter Enforcement
 5

Guidelines)).3 In particular, the ALJ found that “Twentymile’s
failure to inspect the equipment or ensure that the contractor
inspected the equipment was an omission that contributed to the
violations,” and that “Twentymile exercised sufficient control
over the scraper and service truck” to warrant a citation. ALJ
Decision, 25 F.M.S.H.R.C. at 360. The ALJ also credited the
MSHA inspector’s statement that “he was concerned that safety
hazards on contractors’ equipment were not being adequately
addressed” because the “cited conditions were rather obvious,”
and that “by issuing citations to Twentymile, the safety
violations would get more immediate attention than if he only
cited the contractor.” Id. at 359.

Twentymile appealed the ALJ’s decision to the
Commission. See Secretary of Labor v. Twentymile Coal Co.,
27 F.M.S.H.R.C. 260 (2005) (hereinafter Commission Decision).
The company asserted that, under the Mine Act, an owner-
operator is liable only for its own violations, and that the
Secretary was therefore without authority to cite it for the
violations of its independent contractor. See id. at 263. The

3
The Enforcement Guidelines state:

[A]s a general rule, a production-operator may be properly
cited for a violation involving an independent contractor: (1)
when the production-operator has contributed by either an act
or an omission to the occurrence of a violation in the course
of an independent contractor’s work, or (2) when the
production-operator has contributed by either an act or
omission to the continued existence of a violation committed
by an independent contractor, or (3) when the production-
operator’s miners are exposed to the hazard, or (4) when the
production-operator has control over the condition that needs
abatement.

45 Fed. Reg. at 44497.
 6

Secretary responded that court and Commission precedents were
directly to the contrary. See id. She further argued that her
decision to cite Twentymile for Precision’s violations was not
reviewable by the Commission because there was no meaningful
standard against which to review her exercise of charging
discretion. See id. at 265. In the event that the Commission
deemed her enforcement decision reviewable, the Secretary
argued in the alternative that the citation was not an abuse of
discretion. See id. at 266.

The Commission reversed the ALJ’s decision and vacated
the citations issued to Twentymile. See Commission Decision,
27 F.M.S.H.R.C. at 277. Its opinion began by agreeing with the
Secretary’s (and the ALJ’s) view that “the Secretary generally
may proceed against an owner-operator, an independent
contractor, or both, for violations by the independent
contractor.” Id. at 263-64. Nonetheless, the Commission
rejected the Secretary’s contention that her exercise of
enforcement discretion was unreviewable. See id. at 265. And
a majority of the Commission concluded that the Secretary had
abused her discretion by citing Twentymile. See id. at 268.
According to the majority, the Secretary’s decision to cite the
owner-operator was an abuse of discretion because it was not
made for reasons “consistent with the purpose and policies of
the Mine Act.” Id. at 268 (internal quotation marks omitted).
This was so, the Commission said, because: (1) “[t]he record
show[ed] that the independent contractor was in the ‘best’
position to prevent the violations in question,” id. at 268; (2)
“Twentymile did not have a significant, continuing involvement
in the work specifically being performed at the refuse pile,” id.
at 270; (3) Twentymile did not contribute to the violations
“directly” or through a “significant” omission, id. at 270-71; and
(4) none of the criteria listed in the Secretary’s Enforcement
 7

Guidelines was satisfied at “a significant threshold” level, id. at
273.4

The Secretary of Labor now petitions this court for review
of the Commission’s decision to vacate the citations filed
against Twentymile. She contends that the Commission erred
in holding that her decision to cite Twentymile for violations
committed by Precision was reviewable; should we hold
otherwise, the Secretary contends that her decision was not an
abuse of discretion. Twentymile disputes both contentions, and
it further challenges what it describes as the premise of the
Secretary’s nonreviewability argument: that she has authority
to cite an owner-operator for safety violations committed by its
independent contractor. Because the Secretary’s authority is
indeed the premise of her argument, we consider that issue first
and then proceed to examine the issue of reviewability.

II

We can make relatively short work of the question of the
Secretary’s authority to cite owner-operators for violations
committed by their contractors because it is a question that this
circuit has already answered. Indeed, Twentymile concedes that
“decisions from this Court grant the Secretary the discretion to
cite both the production-operator and the independent contractor
for the violation of the independent contractor.” Respondents’
Br. 26. Although Twentymile urges us to rule to the contrary,
such a disposition is plainly beyond the power of a panel of this
court. See, e.g., Ranger Cellular v. FCC, 348 F.3d 1044, 1049-
50 (D.C. Cir. 2003).

4
The Commission relied on the final point notwithstanding its
acknowledgment that “the Enforcement Guidelines are not binding on
the Secretary.” Commission Decision, 27 F.M.S.H.R.C. at 273 n.19.
 8

This circuit’s seminal opinion regarding the authority of the
Secretary is Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
533 (D.C. Cir. 1986) (Scalia, J.). There, the court observed:
“The Mine Act declares that ‘the operators’ of the nation’s
mines have primary responsibility for preventing the existence
of unsafe and unhealthful conditions, 30 U.S.C. § 801(e), and
throughout the Act the entity charged with compliance is
referred to simply as the ‘operator.’” Id. at 535 (citing 30
U.S.C. §§ 814(a), 815(a), 820(a) & (i)). To determine the
meaning of the term “operator,” the court reviewed the
legislative history of the Mine Act, first noting that the Federal
Coal Mine Health and Safety Act of 1969 -- the Mine Act’s
precursor -- defined “‘operator’” as “‘any owner, lessee or other
person who operates, controls, or supervises a coal mine.’” Id.
(quoting 30 U.S.C. § 802(d) (1976)). The court next pointed out
that, in Bituminous Coal Operators Ass’n v. Secretary of
Interior (“BCOA”), 547 F.2d 240 (4th Cir. 1977), the Fourth
Circuit “interpreted that definition of ‘operator’ to include
independent contractors performing services at the
production-operator’s mine, and held that the Secretary had the
power to cite the independent contractor, the operator, or both
for independent contractor violations.” 796 F.2d at 535. The
court then noted that, when Congress enacted the Mine Act, it
amended the definition of “operator” by adding (inter alia) the
italicized phrase:

“[O]perator” means 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[.]

30 U.S.C. § 802(d) (emphasis added); see Cathedral Bluffs, 796
F.2d at 535. Finally, Cathedral Bluffs explained: “The Senate
Report accompanying the bill that became the Mine Act stated
that the purpose of this amendment was to give statutory
 9

expression to the doctrine of BCOA.” 796 F.2d at 535 (citing S.
REP. NO. 181, at 14 (1977)).

Two years after Cathedral Bluffs, in International Union,
United Mine Workers of America v. FMSHRC (“UMWA”), we
observed that “all of the courts that have had occasion to address
the question have held that multiple operators are jointly liable
under the Act[,] [o]r, put differently, the owner of a mine is
liable without regard to its own fault for violations committed or
dangers created by its independent contractor.” 840 F.2d 77, 83
(D.C. Cir. 1988) (citing Cyprus Indus. Minerals Co. v.
FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981); Harman Mining
Corp. v. FMSHRC, 671 F.2d 794, 797 n.2 (4th Cir. 1981);
BCOA, 547 F.2d at 246). We found this holding to be in accord
with both the legislative history (as reviewed in Cathedral
Bluffs) and the statutory language as explained in BCOA:

“Without exemption or exclusion, § 819 makes the
operator of a coal mine in which a violation occurs
subject to a civil penalty . . . . Th[is] section[], when
read with the definition of operator, impose[s] liability
on the owner or lessee of a mine regardless of who
violated the Act . . . .”

Id. at 83 (quoting BCOA, 547 F.2d at 246).5 We therefore
“agree[d]” with those other courts, holding that the Mine Act

5
Section 110 of the Mine Act, which under the Coal Act was 30
U.S.C. § 819 (1976), states:

The operator of a coal or other mine in which a violation occurs
of a mandatory health or safety standard . . . shall be assessed a
civil penalty by the Secretary. . . .

30 U.S.C. § 820(a) (emphasis added).
 10

“assesses liability without regard to the individual operator’s
fault.” Id. at 83-84. Moreover, “[s]ince liability under the Mine
Act is without regard to fault,” we declared that “the argument
that only an operator directly responsible for the violation . . .
can be liable . . . must be rejected.” Id. at 84. And for the same
reason, we must reject Twentymile’s contention that it cannot be
liable for the safety violations committed by Precision.

III

Having concluded that the Secretary of Labor has authority
to cite an owner-operator for safety violations committed by its
contractor, we next consider whether Twentymile may contest
the Secretary’s discretionary decision to do so. Because the
reviewability of the Secretary’s charging decision is a legal
question, we decide the issue de novo. See Secretary of Labor
v. Keystone Coal Mining Corp., 151 F.3d 1096, 1099 (D.C. Cir.
1998).

A

Although there is a strong presumption that agency action
is reviewable, see Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971); Abbott Labs. v. Gardner, 387
U.S. 136, 140 (1967), the Administrative Procedure Act (APA)
codifies the traditional exception that agency action is not
reviewable when it is “committed to agency discretion by law.”
5 U.S.C. § 701(a); see Heckler v. Chaney, 470 U.S. 821, 828
(1985). In Overton Park, the Supreme Court declared that this
exception to the presumption of reviewability applies “in those
rare instances where statutes are drawn in such broad terms that
in a given case there is no law to apply.” 401 U.S. at 410
(internal quotation marks and citations omitted). As the Court
subsequently explained in Heckler v. Chaney, “review is not to
be had if the statute is drawn so that a court would have no
 11

meaningful standard against which to judge the agency’s
exercise of discretion.” 470 U.S. at 830. “In such
circumstances, the courts have no legal norms pursuant to which
to evaluate the challenged action, and thus no concrete
limitations to impose on the agency’s exercise of discretion.”
Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002).

In determining “whether a matter has been committed
solely to agency discretion, we consider both the nature of the
administrative action at issue and the language and structure of
the statute that supplies the applicable legal standards for
reviewing that action.” Drake, 291 F.3d at 70. Both the
Supreme Court and this court have held that certain categories
of administrative decisions are unreviewable. See, e.g., Lincoln
v. Vigil, 508 U.S. 182, 192 (1993); Chaney, 470 U.S. at 831;
Drake, 291 F.3d at 70. In Chaney, for example, the Court held
that agency decisions not to institute enforcement proceedings
are presumptively unreviewable. See 470 U.S. at 831. Contrary
to Twentymile’s view, however, refusals to act are not the only
kinds of administrative determinations that evade review.6

6
See, e.g., Lincoln, 508 U.S. at 192 (holding that an agency’s
“allocation of funds from a lump-sum appropriation is another
administrative decision traditionally regarded as committed to agency
discretion”); Steenholdt v. FAA, 314 F.3d 633, 634 (D.C. Cir. 2003)
(holding that the FAA’s decision not to renew an aircraft examiner’s
authority is nonreviewable); Baltimore Gas & Elec. Co. v. FERC, 252
F.3d 456, 459-60 (D.C. Cir. 2001) (holding that an agency’s decision
to reach a settlement is nonreviewable); In re Sealed Case, 131 F.3d
208, 216 (D.C. Cir. 1997) (holding that a federal prosecutor’s
certification that there is a substantial federal interest in a case,
required to proceed against a juvenile in federal court, “implicates core
prosecutorial judgment and discretion” and thus is normally “not
subject to judicial review”).
 12

Indeed, with respect to criminal charging decisions, the
Supreme Court has made clear that the government’s decision
“as to whom to prosecute” is generally unreviewable. Wayte v.
United States, 470 U.S. 598, 607 (1985). “‘[S]o long as the
prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.’” Id.
(quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)); see
United States v. Armstrong, 517 U.S. 456, 464 (1996) (same); In
re Sealed Case, 131 F.3d 208, 214 (D.C. Cir. 1997) (“In the
ordinary case, the exercise of prosecutorial discretion, at the
very core of the executive function, has long been held
presumptively unreviewable.”). The Court explained the
considerations behind this view in Wayte:

This broad discretion rests largely on the recognition
that the decision to prosecute is particularly ill-suited
to judicial review. Such factors as the strength of the
case, the prosecution’s general deterrence value, the
Government’s enforcement priorities, and the case’s
relationship to the Government’s overall enforcement
plan are not readily susceptible to the kind of analysis
the courts are competent to undertake.

470 U.S. at 607. These considerations apply as well to the
administrative charging decisions of the Secretary of Labor.
And we have previously found the traditional nonreviewability
of prosecutorial charging decisions applicable to administrative
cases. See Drake, 291 F.3d at 71 (holding that the “FAA’s
action in this case was . . . analogous to an exercise of
‘prosecutorial discretion,’” and noting that “when prosecutorial
discretion is at issue, the matter is presumptively committed to
agency discretion by law”); Beverly Health & Rehab. Servs.,
Inc. v. Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1996) (holding
 13

that the NLRB General Counsel’s decision to issue an unfair
labor practice complaint is unreviewable because, inter alia,
review would “invade the realm of prosecutorial discretion”).

Of course, if the Mine Act provided a “meaningful standard
against which to judge the agency’s exercise of discretion,” the
situation would be different. Chaney, 470 U.S. 821, 830 (1985).
If the Act provided such a standard, “whether this case involves
a presumption of nonreviewability under Chaney or, instead, a
presumption of reviewability under Overton Park,” would not
be dispositive. Drake, 291 F.3d at 72. That is because
“Chaney’s presumption against judicial review may be rebutted
where the relevant statute supplies meaningful standards to
cabin the agency’s otherwise plenary discretion,” while Overton
Park’s “presumption of reviewability is lost” where it does not.
Id. at 71; see Lincoln, 508 U.S. at 190; Chaney, 470 U.S. at 832.

But the Mine Act does not provide a meaningful standard.
Under the Act, the Secretary’s charging discretion is as
uncabined as that of a United States Attorney under the Criminal
Code. Section 104(a) simply provides that “[i]f, upon inspection
or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine subject to this
chapter has violated this chapter, . . . he shall, with reasonable
promptness, issue a citation to the operator.” 30 U.S.C. §
814(a). As we have noted, the Act defines “operator” as “any
owner, lessee, or other person who operates, controls, or
supervises a . . . mine or any independent contractor performing
services . . . at such mine.” 30 U.S.C. § 802(d) (emphasis
added). Nothing in this language instructs the Secretary of
Labor which of several jointly-liable operators to charge, any
more than the Criminal Code tells a U.S. Attorney which of
several co-conspirators to prosecute. Rather, the statute is
“utterly silent on the manner in which the [agency] is to proceed
against a particular transgressor.” Baltimore Gas & Elec. Co. v.
 14

FERC, 252 F.3d 456, 461 (D.C. Cir. 2001). And, because of
that silence, the Secretary’s charging decisions are
unreviewable.7

The Commission, however, hears sounds in the silence. In
support of its conclusion that the Secretary’s charging decisions
are reviewable, the Commission purported to discern the
following standard: The Secretary’s decision to cite an owner-
operator, the Commission said, must be “made for reasons
consistent with the purpose and policies of the Mine Act.”
Commission Decision, 27 F.M.S.H.R.C. at 266 (internal
quotation marks omitted). That phrase is nowhere to be found
in the Act itself, nor does it offer a particularly meaningful
standard. Indeed, were we to regard it as one, we would have to
hold all agency decisions under all statutes reviewable, as all
legislation has “purpose[s] and policies.” Cf. Baltimore Gas,
252 F.3d at 461 (holding that a requirement that an agency
should protect “consumer interests” is merely a “boilerplate
truism” and not a “discretion-restricting guideline”); Steenholdt
v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) (rejecting an
argument that the Federal Aviation Act’s “substantial evidence”
provision provides a standard for reviewing the FAA’s refusal
to renew an examiner’s authority because, if it did, “there would
be ‘law to apply’ in every agency action” since the APA’s
substantial evidence standard “applies generally to all agency
action”).

7
See Lincoln, 508 U.S. at 193-94 (holding unreviewable an
agency’s decision to discontinue funding a program where the statute
did “not so much as mention” the program); Swift v. United States,
318 F.3d 250, 253 (D.C. Cir. 2003) (finding nonreviewability where
the statute did nothing to “circumscribe[] the government’s power to
discriminate among issues or cases it will pursue” (internal quotation
marks omitted)).
 15

But the most pernicious aspect of employing this purported
standard as a check on charging decisions is that it invites the
reviewing body to substitute its views of enforcement policy for
those of the Secretary, a power that -- as we discuss in Part III.B
-- the Commission does not possess. In fact, that is precisely
what the Commission did in this case. It found that the
Secretary’s decision to cite the owner-operator was not
“consistent with the purpose and policies of the Mine Act”
because: (1) “the independent contractor was in the ‘best’
position to prevent the violations in question,” Commission
Decision, 27 F.M.S.H.R.C. at 268; (2) “Twentymile did not have
a significant, continuing involvement in the work specifically
being performed at the refuse pile,” id. at 270; (3) Twentymile
did not contribute to the violations “directly” or through a
“significant” omission, id. at 270-71; and (4) none of the criteria
listed in the Secretary’s enforcement guidelines was satisfied at
“a significant threshold” level, id. at 273. Yet, because the Mine
Act subjects an owner-operator to strict liability for its
contractor’s violations, see supra Part II, nothing in the statute
bars the Secretary from charging an owner-operator even if it
was not in the “best” position to prevent a violation, did not
have a “significant, continuing involvement” in the contractor’s
work, and did not contribute “directly” or “significant[ly]” to the
violation. And there is certainly nothing in the Mine Act that
requires the Secretary to impose a “significant threshold” test on
her own enforcement guidelines.

To be sure, “[t]his Court has noted that judicially
manageable standards may be found in formal and informal
policy statements and regulations as well as in statutes.”
Steenholdt, 314 F.3d at 638 (internal quotation marks and
citation omitted). The Commission regarded the Secretary’s
Enforcement Guidelines as such a policy statement. See
Commission Decision, 27 F.M.S.H.R.C. at 272-75 & n.19. But
“[i]n determining whether agency statements create such a
 16

standard,” the operative question is “whether the statements
create binding norms.” Steenholdt, 314 F.3d at 638. And in
Cathedral Bluffs, this court expressly held that the Enforcement
Guidelines do “not establish a binding norm, but merely
announce[] [the Secretary’s] tentative intentions for the future,
leaving himself free to exercise his informed discretion.” 796
F.2d at 538 (internal quotation marks and citation omitted).8

In Cathedral Bluffs, the court -- as we do here -- reversed
the Commission’s dismissal of a citation issued by the Secretary
to an owner-operator for a safety violation committed by its
independent contractor. See id. at 534. As is the case in part
here, the Commission’s dismissal was based on its view that the
Secretary’s decision to cite was inconsistent with the
Enforcement Guidelines. See id. In finding the Guidelines
nonbinding, then-Judge Scalia’s opinion for the court stressed
that the “question pertains to an agency’s exercise of its
enforcement discretion -- an area in which the courts have
traditionally been most reluctant to interfere.” Id. at 538 (citing
Chaney, 470 U.S. 821). “[T]he policies underlying that
restraint,” he declared, “extend as well to interference by a
quasi-judicial agency that has no enforcement responsibilities,
such as the Federal Mine Safety and Health Review
Commission.” Id. Those policies are as pertinent here as they
were in Cathedral Bluffs.

8
As discussed above, see supra note 4, the Commission applied
the Enforcement Guidelines to the Secretary’s decision to charge
Twentymile notwithstanding its acknowledgment that “the
Enforcement Guidelines are not binding on the Secretary.”
Commission Decision, 27 F.M.S.H.R.C. at 273 n.19.
 17

B

The Commission held, and Twentymile asserts, that the
case law regarding nonreviewability does not apply to this
matter because of two specific provisions of the Mine Act. See
Commission Decision, 27 F.M.S.H.R.C. at 265-66.

First, the Commission noted that cases such as Chaney and
its progeny “involve preclusion of review under section
701(a)(2) of the Administrative Procedure Act,” and that
“section 507 of the Mine Act expressly provides that section 701
of the APA does not apply to Commission proceedings.” Id. at
265 (internal citation omitted). Section 507 does indeed state
that, “[e]xcept as otherwise provided in this chapter, the
provisions of . . . sections 701-706 of Title 5 shall not apply to
the making of any order, notice, or decision made pursuant to
this chapter, or to any proceeding for the review thereof.” 30
U.S.C. § 956.

Contrary to the view of the Commission, however, the fact
that § 701(a)(2) itself is inapplicable does not mean that the
principles underlying it are also inapplicable. Rather, as the
Supreme Court has explained, “the Administrative Procedure
Act . . . codifies the nature and attributes of judicial review,
including the traditional principle of its unavailability ‘to the
extent that . . . agency action is committed to agency discretion
by law.’” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S.
270, 282 (1987) (quoting 5 U.S.C. § 701(a)(2)) (emphasis
added). “In Chaney,” the Court said, “we found that the type of
agency decision in question has traditionally been committed to
agency discretion, and . . . that the Congress enacting the APA
did not intend to alter that tradition.” Id. (internal quotation
 18

marks omitted).9 Indeed, this court has rejected the claim that
the “conclusive language of section 701 applies only to bar
review under the APA.” Steenholdt, 314 F.3d at 639.10
Accordingly, the traditional principles of nonreviewability
discussed in Part III.A are applicable here, notwithstanding §
507 of the Mine Act.

Second, the Commission contended that the Mine Act gives
it express authority to review the Secretary’s discretionary
enforcement decisions and to formulate mine safety policy. See
Commission Decision, 27 F.M.S.H.R.C. at 266. The
Commission based this holding on Mine Act § 113, which
provides that any person aggrieved by a decision of an ALJ may
file a petition for Commission review on the ground that “a
substantial question of law, policy or discretion is involved.” 30
U.S.C. § 823(d)(2)(A)(ii)(IV).

This circuit, however, has already rejected the contention
that § 113 gives the Commission authority to determine policy
issues. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457,
463 (D.C. Cir. 1994). In Energy West, we found that § 113
“merely states” the grounds upon which a “petitioner may call
upon the Commission’s power of discretionary review over a
decision of an administrative law judge.” Id. at 464. And we
found nothing in the section to “offer[] a convincing argument

9
See Lincoln, 508 U.S. at 191 (“[W]e have read § 701(a)(2) to
preclude judicial review of certain categories of administrative
decisions that courts traditionally have regarded as committed to
agency discretion.” (internal quotation marks omitted)).
10
See Sierra Club v. Whitman, 268 F.3d 898, 902 (9th Cir. 2001)
(holding that the “presumption of agency discretion recognized in
Chaney has a long history and, contrary to the [plaintiff’s] assertion,
is not limited to cases brought under the APA”).
 19

that Congress intended to deprive the Secretary of the deference
which we [have] previously afforded its interpretations of the
Act.” Id. In Secretary of Labor v. Mutual Mining, Inc., the
Fourth Circuit agreed: “[T]o say that the Commission reviews
cases involving questions of policy is not to say that it is the
final arbiter of such policies. Nor is it to say that the
Commission’s interpretation of the statute trumps a reasonable
interpretation put forth by the Secretary.” 80 F.3d 110, 114 n.3
(4th Cir. 1996) (citing Energy West, 40 F.3d at 463-64).

Both Energy West and Mutual Mining are part of a line of
cases that anticipated, and then followed, the Supreme Court’s
decision in Martin v. Occupational Safety & Health Review
Commission, 499 U.S. 144 (1991).11 Martin involved review
under the Occupational Safety and Health Act (“OSH Act”), in
which, like the Mine Act, “Congress separated enforcement and
rulemaking powers from adjudicative powers, assigning these
respective functions to two different administrative authorities.”
Id. at 151. Under the OSH Act, the former functions are
assigned to the Secretary of Labor and the latter to the
Occupational Safety and Health Review Commission (OSHRC);
under the Mine Act, the former are again assigned to the
Secretary of Labor and the latter to the Federal Mine Safety and
Health Review Commission (FMSHRC). Under this “split
enforcement” structure, the Court held, “enforcement of the Act
is the sole responsibility of the Secretary.” Id. at 151-52
(internal quotation marks omitted). Moreover, since “Congress
did not invest the Commission with the power to make law or
policy by other means, we cannot infer that Congress expected

11
See Cathedral Bluffs, 796 F.2d at 537 n.2; Secretary of Labor
v. Cannelton Indus., Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989); RAG
Cumberland Res. LP v. FMSHRC, 272 F.3d 590, 595-96 (D.C. Cir.
2001); Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 5-6 (D.C.
Cir. 2003); see also Mutual Mining, 80 F.3d at 114-15 & n.3.
 20

the Commission to use its adjudicatory power to play a
policymaking role.” Id. at 154.

We have previously, and repeatedly, applied Martin’s
analysis to the Mine Act.12 We do so here as well. As is true
under the OSH Act, “enforcement of the [Mine] Act is the sole
responsibility of the Secretary,” 499 U.S. at 152 (internal
quotation marks omitted), and the Commission has no
“policymaking role,” id. at 154. Instead, “Congress intended to
delegate to the Commission the type of nonpolicymaking
adjudicatory powers typically exercised by a court in the
agency-review context.” Id. “Under this conception of
adjudication, the Commission is authorized to review the
Secretary’s interpretations only for consistency with the
regulatory language and for reasonableness.” Id. at 154-55.
And, like a court, the Commission is not as a general matter
authorized to review the Secretary’s exercise of prosecutorial
discretion.

IV

We conclude that the Commission is generally without
authority to review the Secretary’s discretionary decisions
regarding whether to cite owner-operators, their independent
contractors, or both for safety violations committed by the
independent contractors. Such decisions are not, of course,
wholly immune from review. The Secretary’s discretion, like
that of a prosecutor, remains “subject to constitutional
constraints,” including those “imposed by the equal protection

12
See, e.g., Secretary of Labor v. Twentymile Coal Co., 411 F.3d
256, 261-62 & n.1 (D.C. Cir. 2005); Excel Mining, 334 F.3d at 167-
68; RAG Cumberland, 272 F.3d at 595-96; Akzo Nobel Salt, Inc. v.
FMSHRC, 212 F.3d 1301, 1303 (D.C. Cir. 2000).
 21

component of the Due Process Clause of the Fifth Amendment.”
Armstrong, 517 U.S. at 464.

Moreover, the Commission retains authority to adjudicate --
subject to the appropriate standard of review13 -- whether safety
violations have in fact occurred. See 30 U.S.C. §§ 815(d),
823(d). In this case, however, Twentymile has stipulated that
the conditions cited by the Secretary constitute violations of
safety standards. See ALJ Decision, 25 F.M.S.H.R.C. at 353.
We therefore grant the Secretary’s petition for review. The
decision of the Commission, which reversed the decision of the
ALJ and vacated the citations issued to Twentymile, is itself
vacated and the citations are reinstated.

So ordered.

13
As we have explained: “Under the statutory scheme, the
Commission is required to accord deference to the Secretary’s
interpretations of the law and regulations. And while it may reverse
a decision by an ALJ for legal error, the Commission must uphold an
ALJ’s factual determinations if they are supported by substantial
evidence.” RAG Cumberland, 272 F.3d at 595 (internal quotation
marks and citations omitted).