Jones Bros., Inc. v. MSHA

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0101p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
JONES BROTHERS, INC.,
│
Petitioner, │
│
v. > No. 21-3498
│
│
SECRETARY OF LABOR, MINE SAFETY AND HEALTH │
ADMINISTRATION; FEDERAL MINE SAFETY AND │
HEALTH REVIEW COMMISSION, │
Respondents. │
┘

On Petition for Review from the Federal Mine Safety & Health Administration.
Nos. SE 2016-0218-RM; SE 2016-0219-RM; SE 2016-0246.

Argued: March 15, 2023

Decided and Filed: May 5, 2023*

Before: CLAY, McKEAGUE, and STRANCH, Circuit Judges.
_________________

COUNSEL

ARGUED: Douglas R. Pierce, KING & BALLOW, Nashville, Tennessee, for Petitioner.
Jennifer Ann Ledig, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Secretary of Labor Respondent. ON BRIEF: Douglas R. Pierce, Michael D. Oesterle, Stephen
C. Stovall, KING & BALLOW, Nashville, Tennessee, for Petitioner. Erik Vande Stouwe,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Secretary of Labor
Respondent.

*This decision was originally filed as an unpublished opinion on May 5, 2023. The court has now
designated the opinion for publication.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 2

_________________

OPINION
_________________

McKEAGUE, Circuit Judge. Petitioner Jones Brothers, Inc. appeals a decision by the
Federal Mine Safety and Health Review Commission (the “Commission”) upholding citations
issued against it by the Federal Mine Safety & Health Administration (the “Administration”) for
violations occurring at a Jones Brothers worksite (the “Site”). Jones Brothers argues that the
Administration did not have jurisdiction over the Site under the Mine Act, as the Site was a
borrow pit subject instead to the jurisdiction of the Occupational Safety and Health
Administration (“OSHA”). The Administrative Law Judge found that the Site did not meet the
required criteria of a borrow pit, and the Commission declined to review and thus upheld that
decision. We find that there was substantial evidence upon which the ALJ concluded that at
least one borrow pit factor was not met, and thus affirm the decision of the Commission.

I.

1. Factual Background

Petitioner Jones Brothers, Inc., a Tennessee-based construction company, contracted with
the Tennessee Department of Transportation (“TDOT”) for a road repair project. Specifically,
TDOT hired Jones Brothers to repair State Route 141 in DeKalb County, which had collapsed.
Part of this project involved Jones Brothers obtaining and using 68,615 tons of “graded solid
rock” for the bottom layer of the new road. Graded solid rock, as defined by TDOT, is:

sound, non-degradable rock with a maximum size of 3' . . . At least 50 percent of
the rock shall be uniformly distributed between 1' and 3' in diameter, and no
greater than 10 percent shall be less than 2" in diameter, and the material shall be
roughly equal dimensional in shape. . . . Thin slabby material will not be
accepted, and contractor shall be required to process the material with an
acceptable mechanical screening process that produces the required gradation.

TDOT’s definition of solid graded rock also requires that the rock reach a certain hardness level.

TDOT contracted to pay Jones Brothers $14.25 per ton of rock, for a total of
$977,763.75. In order to obtain this graded solid rock, Jones Brothers leased an area of land
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 3

(theSite) not far from the roadway, paying the property owner $75,282 for the right to extract
rock there. Testimony from a Jones Brothers employee indicated that Jones Brothers provided a
rock from the Site to TDOT for testing, and that TDOT informed Jones Brothers that the rock
met its requirements. That same witness also testified that Jones Brothers performed core
drilling at the Site to ensure that the rock met TDOT’s requirements and to ensure that the rock
went deep enough into the ground.

On or around August 10, 2015, Jones Brothers started preparing the Site. Jones Brothers
began by removing overburden—dirt and rocks.1 Then, Jones Brothers prepped the area to be
pattern blasted. Jones Brothers subsequently began its extraction of rock at the Site. This
involved pattern blasting the limestone to produce appropriately sized rock pieces, using an
excavator bucket to grab properly sized rock, and using a “shaker” or “slotted” bucket with
7”x11” slots cut out to allow debris to fall away. The appropriately sized rocks were hauled off
to the road repair site. The Site also served as a waste pit for material from the road repair site.

On April 5, 2016, Administration Inspector Danny Williams visited and inspected the
Site and spoke with the Jones Brothers crew. He determined that Jones Brothers had violated
several of the Administration’s standards and issued seven citations and two orders.

2. Procedural History

Proceedings were initiated before the Commission pursuant to section 113(d) of the Mine
Act.2 Administrative Law Judge Margaret Miller ruled that the Site was a mine subject to the
Mine Act, and not, as Jones Brothers argued, a “borrow pit,” which is not subject to the
Administration’s jurisdiction. The Commission declined to review the decision, making the
ALJ’s order final. Brothers appealed, and this Court vacated the decision, finding that ALJ
Miller was not constitutionally appointed. Jones Brothers, Inc. v. Sec’y of Labor, 898 F.3d 669,

1Another company cleared trees off the land.
2 The Commission is an adjudicative agency independent of the Department of Labor and the
Administration; it is charged with reviewing the Administration’s actions. See 30 U.S.C. § 823. The Commission is
a respondent in this case, but declined to file a brief, stating that it will “stand on the decision it issued in its
adjudicative capacity.” App. D. 23. The Secretary of Labor, also a respondent, filed the operative response brief in
this case.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 4

672 (6th Cir. 2018). We remanded the case “for fresh proceedings.” Id. On remand, the
Commission assigned the case to ALJ Pricilla Rae. Jones Brothers alleges that Rae indicated to
all parties on a telephone conference that she had read ALJ Miller’s prior vacated decision; the
Secretary of Labor (the “Secretary”) does not contest this fact. Jones Brothers subsequently
moved for Rae’s recusal, arguing that Rae’s reading of the prior decision violated this Court’s
command that Jones Brothers receive fresh proceedings. ALJ Rae denied the motion.

Following a hearing, ALJ Rae held that the Administration had jurisdiction, determining
that the Site was a mine, not a borrow pit.3 She based this holding on findings that Jones
Brothers (1) did not only use the Site on a one-time basis or only intermittently; (2) engaged in
milling, sizing, and crushing; and (3) did not use the rock more for its use as bulk fill than for its
intrinsic qualities. The Commission denied review of ALJ Rae’s order on May 17, 2021, making
the ALJ order the final order of the Commission. 30 U.S.C. § 823(d). Jones Brothers timely
filed a petition for review with this Court. We have jurisdiction to hear appeals from final orders
of the Commission. 30 U.S.C. § 816(a)(1).

II.

Jones Brothers challenges the ALJ’s decision on two fronts. First, it argues that the Site
is a borrow pit not subject to Administration jurisdiction. Second, it argues that the ALJ violated
this Court’s prior order mandating that Jones Brothers receive “fresh proceedings.” We address
and reject each argument in turn.

1. Jurisdiction: Was the Site a Borrow Pit or a Mine?

Jones Brothers argues that the Site was a borrow pit, falling under OSHA jurisdiction
rather than Administration jurisdiction. Because there is substantial evidence to support the
ALJ’s finding that the Site was a mine rather than a borrow pit, we affirm the Commission’s
determination that the Administration had jurisdiction to issue citations regarding the Site.

3 On appeal, Jones Brothers does not challenge the merits of the citations.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 5

a. Standard of Review

We review the ALJ’s legal conclusions de novo. North Fork Coal Corp. v. Fed. Mine
Safety & Health Review Comm’n, 691 F.3d 735, 739 (6th Cir. 2012). We review her findings of
fact under the substantial evidence standard, whereby we accept her factual findings as long as
they are “supported by substantial evidence on the record considered as a whole.” Kenamerican
Res., Inc. v. United States Sec’y of Labor, 33 F.4th 884, 891 (6th Cir. 2022) (quoting 30 U.S.C.
§ 816(A)(1)). Substantial evidence is that which a “reasonable mind” would find sufficient to
support the factual finding. Id. (quoting Pendley v. Fed. Mine Safety & Health Rev. Comm’n,
601 F.3d 417, 423 (6th Cir. 2010)). “[T]he possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being supported by
substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

Deference is granted towards the decisions of the Secretary when he “makes choices
involving MSHA and OSHA coverage.” Hosea O. Weaver & Sons, Inc., 28 FMSHRC 688, 692
(Jul. 2006). This is in part because “[i]n situations where an entity is deemed to be subject to
either MSHA or OSHA regulations, the Secretary merely engages in an act of ‘adjusting the
administrative burdens between [his] various agencies.’” MSHA v. Jermyn Supply Co., LLC,
39 FMSHRC 1472, 1483 (MSHRC 2017) (quoting Donovan v. Carolina Stalite Co., F.2d 1547
(D.C. Cir. 1984)).

Here, as is generally the case, the party asserting jurisdiction (in this matter, the
Administration/the Secretary) has the burden of proving that jurisdiction exists. See Sec’y of
Labor Mine Safety And Health Admin. v. Bowman Constr. Co. Inc, 36 FMSHRC 683, 688
(MSHRC 2014) (Secretary bears the burden of proving Mine Act jurisdiction); Sec’y of Labor
Mine Safety and Health Admin. v. Duquette, 37 FMSHRC 744, 751 (MSHRC 2015) (same);
Cranesville Aggregate Cos., 2016 OSAHRC LEXIS 14, at *65, n.37 (OSHRC 2016) (noting that
“[w]hen jurisdiction is challenged by a litigant, the ultimate burden of proof rests upon the one
who asserts it rather than the one who challenges it,” and citing cases); cf. Hale v. Morgan
Stanley Smith Barney LLC, 982 F.3d 996, 997 (6th Cir. 2020) (“The party asserting subject-
matter jurisdiction bears the burden of establishing that such jurisdiction exists.”).
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 6

As courts have long acknowledged and applied, the Mine Act’s legislative history
emphasizes that “coal or other mine” must receive a generous interpretation, with any doubts
resolved in favor of jurisdiction:

The [Senate Committee on Human Resources] notes that there may be a need to
resolve jurisdictional conflicts, but it is the Committee’s intention that what is
considered to be a mine and to be regulated under this Act be given the broadest
possible interpretation, and it is the intent of this Committee that doubts be
resolved in favor of inclusion of a facility within the coverage of the Act.

S. Rep. No. 181, 95th Cong., 1st Sess. 1, 14, reprinted in 1977 U.S.C.C.A.N. 3401, 3414. See
also Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 936 (6th Cir. 1997) (“MSHA was intended to
provide a “‘sweeping definition’ of the word ‘mine,’ encompassing much more than the usual
meaning attributed to it.’” (citation omitted)); Watkins Eng’rs & Constructors, 24 FMSHRC 669,
675–76 (July 2002).

b. Background: Mine Act and Interagency Agreement

There is very little precedent regarding borrow pits, and what little there is exists almost
entirely within ALJ/Commission decisions. The Mine Act defines a “coal or other mine” as:

(A) an area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings
ponds, on the surface or underground, used in, or to be used in, or resulting from,
the work of extracting such minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers underground, or used in, or to be used in,
the milling of such minerals, or the work of preparing coal or other minerals, and
includes custom coal preparation facilities. . . .

30 U.S.C. § 802(h)(1). In 1979, the Administration and OSHA entered into an Interagency
Agreement to differentiate between mines, which fall under the Administration’s jurisdiction,
and borrow pits, which fall under OSHA jurisdiction. See 44 Fed. Reg. at 22828 (“Interagency
Agreement”). The Interagency Agreement defined borrow pits as:

[A]n area of land where the overburden, consisting of unconsolidated rock, glacial
debris, other earth material overlying bedrock is extracted from the surface.
Extraction occurs on a one-time only basis or only intermittently as need occurs,
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 7

for use as fill materials by the extracting party in the form in which it is extracted.
No milling is involved, except for the use of a scalping screen to remove large
rocks, wood and trash. The material is used by the extracting party more for its
bulk than its intrinsic qualities on land which is relatively near the borrow pit.

Id. at B(7). Administration interpretive guidelines from 1996 provide further edification:

[I]f earth is being extracted from a pit and is used as fill material in basically the
same form as it is extracted the operation is considered to be a “borrow pit.” For
example, if a landowner has a loader and uses bank run material to fill potholes in
a road, low places in the yard, etc., and no milling or processing is involved,
except for the use of a scalping screen, the operation is a borrow pit. The scalping
screen can be either portable or stationary and is used to remove large rocks,
wood or trash. In addition, whether the scalping is located where the material is
dug, or whether the user of the material from the pit is the owner of the pit or a
purchaser of the material from the pit, does not change the character of the
operation, as long as it meets the other criteria.

I, MSHA, U.S. Dept. Of Labor, Program Policy v. Manual, Section 4, 1.4-3 (1996).

There are thus five general requirements for a borrow pit: (1) the extracted material must
constitute overburden; (2) extraction must be on a one-time basis or intermittent; (3) the
extracted material must not be milled, beyond the use of a scalping screen “to remove large
rocks, wood and trash”; (4) the extracted material must be used more for its bulk as fill than for
the material’s intrinsic qualities; and (5) the extraction site must be relatively near the location
where the extracted materials will be used. As Jones Brothers admits, and as the ALJ noted, a
site must meet all five requirements in order to be considered a borrow pit. See App. p. 541
(citing cases). This definition is “very narrow,” MSHA v. The Creator’s Stone, 43 FMSHRC
241, 250 (MSHRC 2021); see also Jermyn, 39 FMSHRC at 1492, in contrast to the broad
definition of a mine.

Jones Brothers does not argue that the Site does not facially fall into the definition of a
mine under the Mine Act—that it was not an “area of land from which minerals are extracted in
nonliquid form.” Rather, Jones Brothers argues solely that the Site was a borrow pit and thus
excepted from the Mine Act under the Interagency Agreement, falling under the jurisdiction of
OSHA rather than the Administration. The ALJ determined that the Site was not a borrow pit,
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 8

finding that it failed to meet factors 2, 3, and 4. The ALJ did not address factor 1.4 We find that
there was substantial evidence to at least support the ALJ’s conclusions regarding factors 2 and
4, and decline to address the other factors as unnecessary.

c. Borrow Pit Factor #2: Frequency of Extraction

Under the Interagency Agreement, a borrow pit involves extraction on a “one-time only”
or “intermittent[]” basis. B(7). The ALJ determined that the Site did not meet this criterion,
noting that extraction there “occurred up to six days per week over a period of at least several
months.” App. p. 542. The Secretary agrees, alleging that “Jones Brothers mined the State
Route 141 quarry six days a week for approximately a year for more than ten hours per day most
days.” Respondent’s Br. at 22. In response, Jones Brothers argues that the Site was only used
for one job, and that extraction occurred only intermittently, alleging that the Secretary
“presented no evidence concerning how many days Jones Brothers operated the pit to obtain
material.” Petitioner’s Br. at 44–45.

The sparse caselaw on borrow pits does not provide much guidance for interpreting
the Agreement’s one-time/intermittent requirement. In MSHA v. Kerr Enterprises, Inc.,
26 FMSHRC 953, 957 (MSHRC 2004), “full time continuous extraction” failed to satisfy this
requirement. In Drillex, the Commission found that Drillex did not excavate on a one-time or
intermittent basis where it “excavated and processed material approximately three times each
week” for around eight months. MSHA v. Drillex, 16 FMSHRC 2391, 2395 (MSHRC 1994).
On the other end of the spectrum, the excavation in Duquette was found to be intermittent where
the parties stipulated that “Duquette transported its screened bulk material off-site sporadically
(approximately three times in two years).” 37 FMSHRC at 750.

While the record on this issue is murky, there is substantial evidence (which is, as noted,
a relatively low bar) to support the ALJ’s conclusion that extraction at the site occurred more
often than one-time or intermittently. Project Manager Hinson testified that, weather permitting,
employees worked at the Site up to six days a week. Inspector Williams testified that he spoke

4The ALJ found that factor 5 (proximity to the work site) was met, and the Secretary does not argue that it
was not met.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 9

with Jones Brothers employees during his visit to the Site and learned that their schedule
involved a start time of 7:00 am and a typical end time of 5:30 pm. Evidence demonstrated that
work to prepare the Site for extraction began August 10, 2015. Hauling rock from the Site to the
road repair site began at least by October 21, 2015, indicating that extraction at the Site began
earlier. Inspector Williams visited the Site and issued his citations on April 5, 2016, around six
months later. During that time, Jones Brothers was working to extract 68,615 tons of stone.
Excavator operator Kevin Williams testified that he spent “most of [his] day every day” working
at the Site. App. p. 327.

These facts seem to place Jones Brothers’ operation somewhere in between continuous,
full-time extraction such as that found in Kerr, and the very sporadic operation in Duquette.5
The operation here most closely resembles that in Drillex, where excavation occurred a
comparable amount per week (around three times per week) for a comparable amount of time
(around eight months) with a goal of producing a comparable amount of stone (20,000 cubic
meters). 16 FMSHRC at 2395. Based on this case law and the record, under the deferential
standard owed the ALJ’s factual findings, the ALJ was reasonable in drawing the conclusion that
Jones Brothers’ operation was not intermittent.

Jones Brothers’ counterarguments are unavailing. Jones Brothers argues that the
Secretary did not provide enough concrete evidence regarding the specific amount of time that
Jones Brothers spent on extraction, in light of weather and other stoppages and the fact that the
Site was also used as a waste pit. Thus, Jones Brothers argues, the number of days working on
the Site cannot be evidence of the number of days of extraction. But it was reasonable for the
ALJ to infer that a significant portion of the days Jones Brothers worked at the Site involved
extraction, considering the sizable amount of stone Jones Brothers needed to produce under its
contract with TDOT. See Drillex, 16 FMSHRC at 2395 (company working to produce a
comparable amount of stone extracted three times a week for eight months, which was found to
be not intermittent). Further, Kevin Williams testified that he spent “most of [his] day every

5Jones Brothers argues that Duquette involved up to twenty-five days of work, marking such a time period
as one-time/intermittent. Regardless of the truth of this, it has no bearing on the ALJ’s findings, which indicate that
Jones Brothers’ operation far exceeded twenty-five days.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 10

day” working at the Site, and his job as excavator operator appears to be solely or primarily
related to extraction, not waste. App. p. 321, 327 (describing Kevin Williams’ job as involving
loading blasted rock onto the trucks to take to the road repair site). Jones Brothers produces no
contrary evidence concerning the actual amount of extraction that occurred, or the amount of
time spent on extraction versus solely on waste work. Although it is, as discussed previously,
the Secretary’s burden to establish jurisdiction, Jones Brothers’ lack of specific evidence
regarding extraction time weakens its argument that the ALJ erred in her determination.

Jones Brothers also appears to argue that the operation was “one-time” because it was for
one customer and one project. Petitioner’s Br. at 44–45. But this is an overbroad conception of
“one-time,” as evidenced by Drillex, which also involved one customer and one project but was
found to not be one-time/intermittent. 16 FMSHRC at 2392, 2395.

d. Borrow Pit Factor #4: Use of Extracted Materials

Additionally, in order for a site to qualify as a borrow pit, the material extracted from the
site must be used as fill and “more for its bulk than its intrinsic qualities.” Interagency
Agreement, B(7). Jones Brothers argues that it merely used the extracted limestone as bulk fill
in the road repair project, and not for any intrinsic qualities. The ALJ concluded:

[T]he graded solid rock was not used solely as bulk, but was instead used more
for its intrinsic drainage properties—which were essential for the road repair
project Respondent was engaged in. The free-draining and free-flowing nature of
graded solid rock is why TDOT created the specification for that material. I find
that although Respondent used the graded solid rock in bulk to fill in the roadway,
it was selected and used more for its intrinsic properties than as plain bulk fill.

App. p. 542.

There are no clear lines to be drawn from the little precedent on this issue regarding when
extracted material is used “more” for its bulk than for any intrinsic quality, though some rough
parameters can be inferred. In Duquette, the ALJ concluded that material was used more as bulk
fill than for its intrinsic qualities because “the bulk material extracted . . . lacks intrinsic value
because [it] is not uniquely suitable for a particular purpose that can satisfy market
specifications.” 37 FMSHRC at 749. This implies that extracted material which is “uniquely
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 11

suitable for a particular purpose that can satisfy market specifications” may fail to satisfy the
borrow pit standard. And in Drillex, the Commission found that stone which “was not used for
its bulk alone but was sized for its intended use as fill” did not meet the borrow pit criteria,
implying that sizing material indicates that it is being used for intrinsic properties rather than as
bulk fill. 16 FMSHRC at 2395. This statement also highlights that merely being used as fill
does not mean that a material is used more as bulk fill than for its intrinsic properties—material
used as fill may also be used at the same time for its intrinsic properties.

While this is a difficult question, under the deferential standard owed to the ALJ’s
findings of fact, substantial evidence supports the ALJ’s conclusion that the extracted limestone
was used more for its intrinsic properties than for its bulk as fill. First, TDOT maintained
specific requirements for graded solid rock: it had to (1) be of a particular hardness, (2) fall
within a particular size range, and (3) be of a particular shape (not thin/slabby). TDOT required
Jones Brothers to perform core drilling to ensure that the rock would meet its specifications.6
Stephen Wright testified that the graded solid rock requirements were developed by Tennessee
so that the rock would be free-draining. This allows the roads to be sturdier in the face of
Tennessee’s unique geology, which causes water seepage. These requirements are “expensive,”
and Tennessee uses them “more than most other states, but their roads stay there when they do
that.” App. p. 464. Clearly, not any bulk fill would do for this job. The required rock thus met
particular market specifications, raising the strong inference that it was not used more as bulk fill
than for its intrinsic qualities. See Duquette, 37 FMSHRC at 749. While the rock may have
been used as fill, and even as bulk fill, that does not mean it was used more as bulk fill than for
its intrinsic properties. Drillex, 1994 FMSHRC LEXIS at *10.7

6The parties quibble over whether it is difficult or easy to meet TDOT’s requirements for graded solid rock.
However, the ease with which suitable rock may be obtained does not change the purpose for which that rock is
used, and thus has no bearing on the analysis.
7Jones Brothers also points to TDOT representative Ken Flynn’s statement that graded solid rock is
“primarily used for fill material.” App. p. 71–72. However, as stated, use as fill material is not the same thing as
use as bulk fill material, and does not mean a material is being used more as bulk fill than for its intrinsic properties.
Jones Brothers also points out that Wright agreed at the hearing that the rock was used as bulk fill, which Jones
Brothers cites as evidence in its favor. However, the ALJ sustained an objection to the question as leading, and
Wright’s subsequent testimony describes solid graded rock as desirable for its intrinsic drainage properties.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 12

Jones Brothers’ arguments, while having some merit, fall short of the level necessary to
overturn the ALJ’s findings. It is true, as Jones Brothers points out, that testimony from Jones
Brothers’ employees indicated that they viewed the purpose of the extracted rock as being
primarily for bulk fill. It is also true that Inspector Williams testified that graded solid rock
could be obtained from a borrow pit, and that the rock extracted from the site was being “used
for its bulk as fill.” App. p. 183, 206. However, the ALJ was entitled to weigh this (often self-
serving) testimony against the contrary evidence and find it lacking. Cf. Meyer v. Zeigler Coal
Co., 894 F.2d 902, 906 (7th Cir. 1990) (“[T]he ALJ was presented with conflicting evidence
which he was entitled to resolve.”); Myers v. Sec’y of Health & Human Servs., 893 F.2d 840, 846
(6th Cir. 1990) (“Because the ALJ was required to evaluate conflicting testimony from two
witnesses, his opportunity to observe the demeanor of the witnesses warrants deference to his
decision.”). And, as stated, being used in part for bulk fill does not mean that the material is
being used as bulk fill more than for its intrinsic properties—it may be used for both.8 Thus,
these statements are not sufficient to overturn the ALJ’s findings on this matter under the
deferential standard this Court must apply.

Jones Brothers also points to testimony from Jones Brothers bulldozer operator Jimmy
Givens that the extracted rock would have been considered “trash” at other quarries, meaning it
has no intrinsic value. But the ALJ reasonably discredited Givens’ testimony as not credible. 9
And regardless, she was entitled to disbelieve this portion of his testimony when presented with

8Inspector Williams’ statements in particular are slightly troubling; however, Inspector Williams is not the
Secretary or the Commission, and his opinions are not irrefutable fact. Further, it is conceivable that graded solid
rock used for a different purpose (rather than as the base for a repaired roadway) could be used more as bulk fill than
for its intrinsic properties, and thus could be obtained from a borrow pit, meaning that Inspector Williams’ comment
that graded solid rock can be obtained from a borrow pit is irrelevant.
9This Court may only set aside credibility determinations made by an ALJ where it finds those
determinations to be “inherently incredible or patently unreasonable.” Mt. States Contrs., LLC v. Perez, 825 F.3d
274, 282 (6th Cir. 2016) (quoting Absolute Roofing & Constr. v. Sec’y of Labor, 580 Fed. App’x. 357, 360 (6th Cir.
2014)). The ALJ found bulldozer operator Jimmy Givens not credible, stating: “Bulldozer operator Jimmy Givens
agreed with counsel for Respondent’s comparison that ‘what the quarries considered trash is what you guys were
using . . . as the bulk fill material.’ However, on cross-examination, Givens stated that graded solid rock ‘is usually
anything over [two feet] in diameter,’ which highlights his lack of knowledge regarding TDOT’s requirements for
graded solid rock. Further, Givens agreed that he was ‘not someone who was spending much time’ at the excavation
site.” App. pp. 535–36 (internal citations omitted). Givens’ incorrect statement about the size of graded solid rock,
and his admission that he did not spend a lot of time at the Site, were reasonable bases upon which the ALJ found
him not credible.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 13

contrary evidence—i.e., she was entitled to view the fact that TDOT required testing to make
sure the rock complied with specific standards, and was willing to pay a hefty fee for the rock, as
convincing evidence that the rock was not “trash” without intrinsic value in this context.

Further, Jones Brothers’ argument that the contract itself referred to the stone as “borrow
excavation,” and that Tennessee defines graded solid rock under the category of “borrow
excavation,” Petitioner’s Br. at 40–41, is not determinative. The Secretary and the Commission,
along with the courts, determine the meaning of borrow material in the context of the
Interagency Agreement and the Mine Act, not unrelated states or their agencies.

Overall, the evidence on this point was mixed, but there was enough evidence supporting
the ALJ’s conclusion on this issue that it was reasonable and satisfies the substantial evidence
standard.

e. Prior Enforcement

Finally, Jones Brothers makes what appears to be a reliance argument, though it cites to
no case law on the topic. It argues generally that “similar borrow pits for road repairs have not
been subjected to MSHA jurisdiction” and that “[o]ver at least a dozen times Jones Brothers has
extracted graded solid rock from a borrow pit,” Petitioner’s Br. at 46, concluding that “Jones
Brothers should be entitled to rely on this precedent,” Reply Br. at 24. Jones Brothers notes that
at the hearing its president Martin McCulloch “pointed out several similar pits in Tennessee
where he worked over many years and was not advised by MSHA that the borrow pit was a
mine.” Petitioner’s Br. at 46. These allegations might provide some persuasive weight. But the
prior informal activities of the Administration (which were not apparently brought before the
Commission, and are not apparently codified in any manual or interpretive guideline), and the
perceptions of people in the industry, are not enough to overcome the explicit terms of the
Interagency Agreement, the expressed views of the Secretary and the Commission, and the
(albeit sparse) precedent on this issue.

Lax or inconsistent enforcement in the past—especially where, as here, it is ostensibly
easy to escape the Administration’s notice by declining to inform it of one’s activities—does not
on its own constitute binding legal authority to justify deviation from the Agreement and
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 14

precedent, and Jones Brothers points to no case law stating that it is. As the Supreme Court
stated in a similar situation:

It is pointed out that until the present proceeding neither the United States
Maritime Commission nor its predecessor, the United States Shipping Board,
attempted to exercise jurisdiction over forwarders such as the appellees. . . . It is
not to be inferred however that either of those bodies held the view that they were
without such jurisdiction or that, if either did, that fact would be conclusive. An
administrative agency is not ordinarily under an obligation immediately to test the
limits of its jurisdiction. It may await an appropriate opportunity or clear need for
doing so. It may also be mistaken as to the scope of its authority. . . . Although
failure to exercise power may be significant as a factor shedding light on whether
it has been conferred, . . . that fact alone neither extinguishes power granted nor
establishes that the agency to which it is given regards itself as impotent.

United States v. Am. Union Transp., Inc., 327 U.S. 437, 454 n.18 (1946); cf. Reich v. Manganas,
70 F.3d 434, 437 (6th Cir. 1995) (noting that even “[i]nternal operating manuals . . . do not carry
the force of law, bind the agency, or confer rights upon the regulated entity”); Bankamerica
Corp. v. United States, 462 U.S. 122, 131 (1983) (“[T]he mere failure of administrative agencies
to act is in no sense a binding administrative interpretation that the Government lacks the
authority to act.” (citation and internal quotation marks omitted)); NASD v. SEC, 431 F.3d 803,
811 (D.C. 2005) (noting that while it is “noteworthy” if an agency’s past practices conflict with
its current view, “we are not legally bound by [an agency’s] past practices”). And the
Administration does not have jurisdictional discretion, but rather is required under the Mine Act
to exercise jurisdiction over all mines. Kerr, 26 FMSHRC at 957. Thus, this argument fails.

f. Conclusion

Deference is owed to the Secretary in this area, and deference is again owed to the ALJ’s
factual findings in this case. Under that standard, and in light of the case law and the facts in the
record, we conclude that there was substantial evidence to support the ALJ’s conclusion that the
Site failed to meet the borrow pit requirements to (1) extract on a one-time or intermittent basis
and (2) extract material for use more as bulk fill than for its intrinsic qualities. Because failure to
meet any one of the criteria is fatal to Jones Brothers’ argument that the Site was a borrow pit,
we find that the Site was a mine subject to Administration jurisdiction.
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 15

2. “Fresh Proceedings”

Finally, Jones Brothers argues that the fact that ALJ Rae read the prior, vacated ALJ
decision on this matter violated this Court’s directive in its previous opinion, Jones Brothers,
Inc. v. Sec’y of Lab., 898 F.3d 669 (6th Cir. 2018), that the case be given “fresh proceedings,” id.
at 672. This Court did not define “fresh proceedings” in that opinion. We conclude that this
mandate was not violated.

We addressed this general issue quite recently, in Calcutt v. FDIC, 37 F.4th 293 (6th Cir.
2022). There, we noted that an Appointments Clause violation is typically remedied by “a new
hearing before a properly appointed official distinct from the previous ALJ.” Id. at 320 (quoting
Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018)) (internal quotation marks omitted). But we noted
that Lucia does not give specifics regarding what a “new hearing” entails beyond the need for a
new adjudicator, and we emphasized that agencies have wiggle room in shaping the new
proceedings on remand. Id. at 320–22. We stated:

To hold that all adjudications must start from zero after a judicial decision
invalidating ALJ appointments would result in cumbersome, repetitive processes
throughout the executive branch simply to produce findings and orders that would
often be identical the second time around. . . . [A]n “independent evaluation of the
merits” does not require an ALJ to ignore all past proceedings: Independence is
not a synonym for ignorance.

Id. at 321 (quoting Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d. 111, 121-
23 (D.C. Cir. 2015)). This Court found that the analysis should focus on whether the new ALJ’s
consideration of elements of the prior vacated proceeding “showed sufficient continuing taint
arising from the first [proceeding] to demonstrate that the second proceeding was not ‘an
independent, de novo decision.’” Id. (quoting Intercollegiate Broad Sys., Inc., 796 F.3d at 321).
We concluded that such a taint had not been demonstrated in that case, even though the new ALJ
relied on the record of, and stipulations made in, the prior proceeding. Id. at 322–23.

Jones Brothers has not demonstrated a sufficient “continuing taint” in this case. The only
concrete evidence it points to is the fact that ALJ Rae read the previous decision. But, as stated,
this Court does not “require an ALJ to ignore all past proceedings.” Calcutt, 37 F. 4th at 321.
Under Calcutt, the mere fact that an ALJ read the prior vacated decision is not enough to require
 No. 21-3498 Jones Bros., Inc. v. MSHA Page 16

reversal. Cf. Integrity Advance, LLC v. Consumer Fin. Prot. Bureau, 48 F.4th 1161, 1171 (10th
Cir. 2022) (finding that de novo review by a new ALJ of a previous hearing held before an
unconstitutionally appointed ALJ constituted a sufficient “new hearing”); Doolin Sec. Sav. Bank
v. Off. of Thrift Supervision, 139 F.3d 203, 213 (D.C. 1998) (finding that an acting agency
director’s affirmance of an ALJ decision, which was based on a Notice of Charges issued by a
potentially unlawfully appointed former acting agency director, was sufficiently independent of
the Notice, stating: “We have no doubt that Director Retsinas made a detached and considered
judgment in deciding the merits against the Bank. Rather than simply writing a letter or a
memorandum adopting the Notice of Charges as his own, he acted in the normal course of
agency adjudication.”).

And Jones Brothers does not allege that ALJ Rae stated that she was influenced by the
vacated decision in her own decision-making; indeed, Jones Brothers moved for recusal on the
sole basis of her having read the prior decision before she even issued her own decision. The
only other argument Jones Brothers makes on this front is that the ALJ’s supposedly erroneous
conclusions in her order evidence bias from her reading the vacated order. Petitioner’s Br. at 49.
But the mere fact that the ALJ came to conclusions that Jones Brothers disagrees with does not
compel the conclusion that the alleged errors stemmed from bias. ALJ Rae’s conclusions were
not so unreasonable that the only possible conclusion is that she was “unable to independently
consider the merits of [Jones Brothers’] case.” Calcutt, 37 F. 4th at 323. We therefore reject
Jones Brothers’ challenge based on a lack of “fresh proceedings.”

III.

For the reasons stated above, we AFFIRM the order of the Federal Mine Safety and
Health Review Commission.