United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2011 Decided June 10, 2011
No. 10-1280
PERFORMANCE COAL COMPANY,
PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
AND SECRETARY OF LABOR,
RESPONDENTS
On Petition for Review of an Order
of the Federal Mine Safety and Health Review Commission
Patrick J. Slevin argued the cause for petitioner. With
him on the briefs were Peter S. Gould, Robert D. Luskin, and
Benjamin D. Wood.
Edward Waldman, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief was
W. Christian Schumann, Counsel. John T. Sullivan, Attorney,
Mine Safety and Health Review Commission, entered an
appearance.
Before: SENTELLE, Chief Judge, GINSBURG and BROWN,
Circuit Judges.
2
BROWN, Circuit Judge: Pursuant to § 105(b)(2) of the
Federal Mine Safety and Health Act of 1977 (―the Mine Act‖),
30 U.S.C. § 815(b)(2), Performance Coal Company
(―Performance Coal‖) petitioned the Federal Mine Safety and
Health Review Commission (―the Commission‖) for
temporary relief from restrictions the Mine Safety and Health
Administration (―MSHA‖) imposed on it. The Commission
denied that relief. But we grant Performance Coal‘s petition for
review because the Commission‘s interpretation of § 105(b)(2)
is simply untenable.
I
This case is the product of catastrophic facts. On April 5,
2010, a mine disaster occurred in Performance Coal‘s Upper
Big Branch Mine in West Virginia. Tragically, twenty-nine
miners lost their lives. Within hours of the explosion, MSHA,
acting pursuant to its statutory authority, issued an order
seizing control of the mine in an attempt ―to insure the safety of
any person in the coal . . . mine . . . .‖ 30 U.S.C. § 813(k)
(§ 103(k) of the Mine Act).1
MSHA‘s original order focused on the rescue of trapped
miners; it required Performance Coal to secure the Secretary of
Labor‘s approval before taking any action to recover or restore
1
The Mine Act is codified at 30 U.S.C. § 801 et seq. In referring to
its various provisions, we will use the Mine Act‘s numbering,
although citations themselves are to the U.S. Code. We note,
however, that the Mine Act references and their U.S. Code
counterparts are readily interchangeable because Mine Act
provisions are numbered § 10X and U.S. Code sections are
numbered § 81X, with the ―X‖ being the same in both versions. For
example, § 103(k) in the Mine Act correlates to § 813(k) in the U.S.
Code.
3
operations in the mine. In the months immediately following
MSHA‘s issuance of the original order, the agency modified
that order more than sixty times—first to rescue and recover
trapped miners and then to facilitate investigation of the
accident site.
When rescue and recovery efforts were completed,
Performance Coal, MSHA, and several other entities began
preparations for the formal investigation, a process that would
entail the collection, examination, and documentation of
evidence; the determination of the accident‘s cause; and the
assessment of Performance Coal‘s potential criminal liability.
Because this formal investigation required prolonged
underground activity, for several weeks in June 2010,
pre-investigation teams surveyed the mine to ensure the site‘s
safety for the formal investigation teams who would travel
underground.
Before Performance Coal could begin its formal
investigation, however, MSHA again modified the § 103(k)
order to incorporate an evidentiary protocol that imposed
various restrictions upon Performance Coal, including
prohibitions on taking or retaining photographs, collecting and
preserving mine dust samples, employing mine mapping
technology, and participating in or objecting to any destructive
testing of materials gathered underground. Performance Coal
objected to these restrictions, arguing that with all of the traffic
created by investigatory teams, the accident site was being
altered, depriving the company of potentially exculpatory
evidence and the opportunity to observe the site.
Performance Coal filed an application with the
Commission seeking, inter alia, temporary relief from the
restrictions pursuant to § 105(b)(2) of the Mine Act, which
permits an operator to ―file with the Commission a written
4
request that the Commission grant temporary relief from any
modification or termination of any order or from any order
issued under section [104] . . . .‖ 30 U.S.C. § 815(b)(2). The
Secretary moved to dismiss Performance Coal‘s application,
arguing in part that § 105(b)(2) does not authorize temporary
relief from § 103(k) orders. The Commission set the case for
resolution before an administrative law judge (ALJ), who
ultimately agreed with the Secretary and denied Performance
Coal‘s request for temporary relief. The ALJ explained her
conclusion, noting in particular, ―[t]he subject order from
which Performance seeks temporary relief was issued under
section 103(k) of the Act, and not under section 104, i.e. the
only section under which temporary relief may be sought
pursuant to [section] 105(b)(2).‖ Performance Coal Co. v.
Sec’y of Labor, Mine Safety & Health Admin., Order Denying
Emergency Application to Modify Order and Denying
Application for Temporary Relief, reprinted at J.A. 346, 1359.
Performance Coal then filed a petition for discretionary
review with the Commission. In an order granting
discretionary review but denying temporary relief, the
Commission held § 105(b)(2) does not offer relief from
§ 103(k) orders—or from any other order, except one pursuant
to § 104. Sec’y of Labor, Mine Safety & Health Admin. v.
Performance Coal Co., 32 FMSHRC 811, 815 (2010). Two
Commissioners dissented, charging the majority with ignoring
the plain and unambiguous language of § 105(b)(2). Id. at 820
(Duffy and Young, dissenting). Performance Coal now seeks
review from this court.
5
II
A
Before we turn to the interpretive question, we must first
address the Secretary‘s argument that the case is moot—a
claim that need not detain us long.
Because MSHA modified the order yet again in December
2010, removing the offending protocols, the Secretary suggests
no live controversy remains. Yet that argument ignores the
capable-of-repetition-yet-evading-review exception to
mootness. Under that exception, if the party seeking to avoid
mootness can establish that the duration of the challenged
action is too short to be litigated fully before it expires and
there is a reasonable expectation the party will be subjected to
the same action again, its claims are not moot. Del Monte
Fresh Produce v. United States, 570 F.3d 316, 322 (D.C. Cir.
2009).
Performance Coal easily satisfies the first prong of this
exception. This court‘s jurisprudence recognizes that agency
actions which tend to expire within two years are too fleeting
to be litigated fully. Pub. Utils. Comm’n v. FERC, 236 F.3d
708, 714 (D.C. Cir. 2001); see also Del Monte, 570 F.3d at
322. It is undisputed that § 103(k) orders undergo frequent
modifications. In fact, the Secretary does not even address the
first prong of this exception, probably because it is a
non-starter: in the six weeks immediately following the
accident, the initial order went through sixty iterations. The
inevitability of future modification certainly places the present
controversy within this court‘s two-year rule for short-lived
agency actions.
6
Instead, the Secretary spends the bulk of her argument
attempting to persuade this court that Performance Coal will
not again be subjected to any protocols from which it might
seek temporary relief. This court has explained, however, that
it is not ―whether the precise historical facts that spawned the
plaintiff‘s claims are likely to recur[,]‖ but instead ―whether
the legal wrong complained of by the plaintiff is reasonably
likely to recur.‖ Del Monte, 570 F.3d at 324. The question then
is not whether Performance Coal will again be subjected to the
precise protocols at issue, but whether it will be subjected to
further modifications from which it will seek temporary relief.
The Secretary is quick to concede this latter point. As
counsel recognized, Performance Coal remains subject to the
§ 103(k) order, even if not the offending protocols. Or. Arg.
14:54–59. Counsel further admitted it is quite likely MSHA
will again modify the § 103(k) order. Or. Arg. 15:22–32. And
Performance Coal claims it might well seek temporary relief
from a different modification of the § 103(k) order. Given the
near certainty of further modifications, it is enough for us to
rely on Performance Coal‘s assertions that it is likely to seek
temporary relief from any offending future modification. See,
e.g., Christian Knights of Ku Klux Klan Invisible Empire, Inc.
v. District of Columbia, 972 F.2d 365, 370–71 (D.C. Cir. 1992)
(finding it ―reasonably likely‖ the District would subject the
Klan to the same action again based on its leader‘s own
averments, despite the absence of evidence, testimonial or
otherwise, that the Klan had express plans to march in the
District in the future).
This case is not moot. Indeed, even the Secretary‘s
counsel recognized the near-frivolity of this argument, and
made only a half-hearted attempt to persuade us. Or. Arg.
17:03–25. But we understand why counsel would cling to an
7
anemic claim of mootness because Respondents‘ statutory
argument—to which we now turn—is even weaker.2
B
Section 105(b)(2) of the Mine Act provides:
An applicant may file with the Commission
a written request that the Commission grant
temporary relief from any modification or
termination of any order or from any order
issued under section 814 of this title together
with a detailed statement giving the reasons
for granting such relief. The Commission
may grant such relief under such conditions
as it may prescribe, if [certain other
conditions are satisfied].
30 U.S.C. § 815(b)(2) (emphasis added). It is the italicized
portion of the statute that is at issue in this case.
Applying Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), we conclude
Respondents fail at Step One. ―When reviewing an agency‘s
construction of the statute it administers, Chevron directs the
courts first to ask whether Congress has spoken to the specific
question at issue. ‗If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
2
Although the Commission did not file a brief in this case, the
statutory argument the Secretary presents on appeal is almost
identical to that contained in the Commission‘s decision. See
Performance Coal Co., 32 FMSHRC 811 (2010). Thus, for purposes
of our discussion, we refer to ―Respondents‖ collectively even
though we remain mindful of this technicality.
8
give effect to the unambiguously expressed intent of
Congress.‘‖ Meredith v. Fed. Mine Safety & Health Review
Comm’n, 177 F.3d 1042, 1053 (D.C. Cir. 1999) (quoting
Chevron, 467 U.S. at 842)). Because congressional intent is
best divined from the statutory language itself, resort to
legislative history is inappropriate when the statute is
unambiguous. United States ex rel. Totten v. Bombardier
Corp., 380 F.3d 488, 494 (D.C. Cir. 2004). ―[C]ourts must
presume that a legislature says in a statute what it means and
means in a statute what it says there.‖ Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992). Thus, to defeat
application of a statute‘s plain meaning, Respondents must
―show either that, as a matter of historical fact, Congress did
not mean what it appears to have said, or that, as a matter of
logic and statutory structure, it almost surely could not have
meant it.‖ Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089
(D.C. Cir. 1996).
Looking at § 105, we have scarcely seen such a ―marvel of
Congressional clarity,‖ to borrow a phrase from the dissenting
Commissioners. Performance Coal Co., 32 FMSHRC at 820
(Duffy and Young, dissenting). In fact, we see no way the
statute could be interpreted other than in the manner proffered
by Performance Coal. Recall, the statute provides for
―temporary relief from any modification or termination of any
order or from any order issued under section [104].‖ 30 U.S.C.
§ 815(b)(2). Just a plain reading of that text alone satisfies us
that the provision is unambiguous. As we read § 105,
Performance Coal is entitled to seek temporary relief from a
modification or termination of any order, including a § 103
order. We struggle to see how Congress could have intended
any other reading of the phrase ―any order.‖
Indeed, the dissenting Commissioners identified this very
question: ―If our colleagues were to assume for argument‘s
9
sake that Congress intended to include within the scope of the
subsection ‗any order,‘ . . . [how could it] otherwise have
secured that objective . . . ?‖ Performance Coal Co., 32
FMSHRC at 820 (Duffy and Young, dissenting). We likewise
find the language Congress selected plain, clear, and simple
and we refuse to muddy it by finding ambiguity where none
exists.
Respondents argue the term ―under section [104]‖ in the
second phrase actually modifies the words ―any order‖ in the
first phrase. This is grammatically improbable. The language
suggests Congress intended temporary relief to be available
not only ―from any order issued under section [104]‖ but also
from all modifications and terminations (excluding those
expressly excepted). Congress‘s use of the disjunctive ―or‖ to
separate modifications and terminations from issuances, and
its parallel use of the word ―from‖ to begin each phrase
indicates as much. See In re Espy, 80 F.3d 501, 505 (D.C. Cir.
1996) (explaining Congress‘s use of the disjunctive is a
persuasive indicator of congressional intent); Chao v. Day, 436
F.3d 234, 236 (D.C. Cir. 2006) (noting that when Congress
bifurcated a subsection with the ―parallel inclusion of the verb
‗exercises‘ at the beginning of each clause‖ this was evidence
of Congress‘s intent to avoid ―commingl[ing]‖ of the
―textually distinct provisions of the two clauses‖). We hold
that § 105 means what it says: temporary relief is available
from any modification or termination of any order or from any
issuance of an order under § 104.
No matter how you parse it, § 105 is a model of
near-perfect clarity. Indeed, it is hard to imagine a clearer
expression of congressional language. While it may be true
that Congress often chooses plausible deniability over
linguistic precision, there is no reason to manufacture
10
ambiguity when, as in this case, the legislative prose is
pellucid.
III
For the foregoing reasons, the petition for review is
granted and the Commission‘s order is set aside.
So ordered.