Secretary of Labor v. M-Class Mining, LLC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2021 Decided June 11, 2021

No. 20-1369

SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER

v.

M-CLASS MINING, LLC 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

Susannah M. Maltz, Attorney, U.S. Department of Labor,
argued the cause for petitioner. With her on the briefs were
Emily Toler Scott, Acting Counsel for Appellate Litigation, and
Archith Ramkumar, Counsel for Appellate Litigation.

Justin K. Chandler argued the cause for respondent
M-Class Mining, LLC. With him on the briefs was
Christopher D. Pence.

Before: HENDERSON and ROGERS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.
 2
KAREN LECRAFT HENDERSON, Circuit Judge: The United
States Secretary of Labor (Secretary) petitions for review of its
Federal Mine Safety and Health Review Commission’s
(Commission or FMSHRC) vacatur of an order (Order) issued
pursuant to section 103(k) of the Federal Mine Safety and
Health Act of 1977 (Mine Act), 30 U.S.C. §§ 801 et seq. 1 After
a miner fell ill at one of M-Class Mining’s (M-Class) mines
and a doctor attributed the miner’s illness to carbon monoxide
(CO) poisoning, a Mine Safety and Health Administration
(MSHA) inspector issued the Order to close part of the mine
for an investigation. After a few hours of investigation, the
MSHA Inspector allowed mine operations to resume and
subsequently limited the Order to a single piece of equipment.
MSHA eventually terminated the modified Order but M-Class
still sought vacatur, arguing MSHA had erroneously issued the
Order. After an administrative law judge (ALJ) upheld the
Order, the Commission vacated it, concluding substantial
evidence—including information MSHA did not know at the
time the Order issued—did not support a finding that an
accident had occurred. Because the case is moot, we dismiss
the petition, vacate the Commission decision and the Order
consistent with Tennessee Gas Pipeline Co. v. Federal Power
Commission, 606 F.2d 1373 (D.C. Cir. 1979) and A.L.
Mechling Barge Lines, Inc. v. United States, 368 U.S. 324

1
As we have explained in the past, although the Mine Act is
codified at 30 U.S.C. §§ 801 et seq. and our citations are to the U.S.
Code, we use the Mine Act’s numbering to refer to its various
provisions. Performance Coal Co. v. Fed. Mine Safety & Health
Rev. Comm’n, 642 F.3d 234, 236 n.1 (D.C. Cir. 2011). “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.” Id.
 3
(1961), and remand for proceedings consistent with this
opinion.

I. BACKGROUND

M-Class operates an underground coal mine in
Macedonia, Illinois. During operations to repair a gap in the
mine roof, one miner experienced dizziness and a light
headache that progressed into chest pains and difficulty
breathing. The miner was removed from the mine and taken to
a local hospital, where a physician examined him. Shortly
thereafter, the physician notified the police that a miner was
suffering from CO poisoning and recommended that the mine
be shut down. The police called the MSHA hotline and relayed
the physician’s diagnosis and recommendation, which the
MSHA hotline employees used to draft an escalation report.2
The report was then sent to the local MSHA office. After
receiving the escalation report, the local MSHA office
supervisor notified a senior M-Class official at the mine and—
although the M-Class official told the MSHA supervisor that
he had been working in the same area that day and that his
personal gas spotter 3 did not detect any elevated CO level—
sent a MSHA inspector to investigate.

After reviewing the escalation report, the MSHA Inspector
arrived at the mine that night. Based on the report, he issued
the Order under section 103(k) of the Mine Act to suspend
operations in the affected area of the mine. Section 103(k) of
the Mine Act provides that “[i]n the event of any accident
occurring in a . . . mine, an authorized representative of the

2
An escalation report summarizes the information provided by
a caller to the MSHA hotline.
3
A personal gas spotter is a device that records CO levels.
Combined with a system that tracks a miner’s location within the
mine, his location during each recorded CO level can be identified.
 4
Secretary, when present, may issue such orders as he deems
appropriate to insure the safety of any person in the . . . mine.”
30 U.S.C. § 813(k). Before entering the mine, the MSHA
Inspector reviewed a report based on the mine’s gas detectors
as well as data from one miner’s personal gas spotter—both of
which indicated no elevated CO level. Approximately one
hour after issuing the Order, the MSHA Inspector entered the
mine and detected no elevated CO level. He then modified the
Order to allow mining operations to resume in the suspended
area. All told, mine operations in the area stopped for about
2.5 hours total. The MSHA Inspector also started the diesel air
compressor—a piece of equipment that had been running in the
vicinity of the ill miner—and detected no elevated CO level
from that device at that time. Returning to the mine a day later,
the MSHA Inspector modified the Order to remove the diesel
air compressor from service pending an investigation because
it was the only variable the ill miner had not been regularly
exposed to. The MSHA Inspector interviewed the ill miner and
other miners who worked with him but did not uncover
evidence of any elevated CO level.

MSHA examined and tested the diesel air compressor over
the next six weeks but ultimately found no evidence that it was
the source of the miner’s illness. During this period, MSHA
initially insisted that M-Class submit an action plan governing
diesel air compressor use in the mine before the Order would
be terminated. After MSHA rejected M-Class’s submission
and the parties could not agree on a plan, M-Class filed a notice
of contest and moved for an expedited hearing before an ALJ.
The ALJ shortly thereafter denied M-Class’s expedition
motion and a few days later MSHA terminated the Order.
Approximately two and one-half months after terminating the
Order, the Secretary moved to dismiss the case for lack of
jurisdiction and mootness because the Order had been
terminated. The ALJ denied the motion, concluding his
 5
jurisdiction continued and the case was not moot. After a
hearing, the ALJ concluded “the Secretary ha[d] proven by a
preponderance of the evidence that an accident [had] occurred
and that the [terminated] Order was appropriate to ensure the
safety of other miners until the investigation . . . was
completed.” M-Class Mining, LLC v. Sec’y of Labor, 41
FMSHRC 1, 10 (2019) (ALJ). M-Class timely petitioned the
Commission for review of the ALJ’s decision. In a 3–2
decision, the Commission affirmed the ALJ in part and
reversed in part. The Commission majority concluded that the
case was not moot but vacated the terminated Order because it
determined substantial evidence did not support MSHA’s
finding that an accident occurred. 4 The Secretary timely
petitioned for review of the Commission decision.

II. ANALYSIS

We have jurisdiction to review the Commission decision
under 30 U.S.C. § 816(b). We review the Commission’s legal
conclusions de novo, Sec’y of Labor v. Twentymile Coal Co.,
456 F.3d 151, 156 (D.C. Cir. 2006), and the Commission’s
factual findings under the substantial evidence standard,
“meaning that we determine whether there is such relevant
evidence as a reasonable mind might accept as adequate to
support the judge’s conclusion,” Am. Coal Co. v. Fed. Mine
Safety & Health Rev. Comm’n, 796 F.3d 18, 23 (D.C. Cir.
2015) (internal quotations omitted). The case presents three

4
A fourth member, Commissioner Jordan, dissented because
she concluded the case was moot and did not satisfy the “capable of
repetition but evading review” exception. A fifth member,
Commissioner Traynor, concurred in part and dissented in part,
concluding that the case met the “capable of repetition but evading
review” exception and therefore could be reviewed but that the Order
should have been affirmed because MSHA did not abuse its
discretion in issuing the Order.
 6
issues: (i) whether the case is moot and, if so, whether the
“capable of repetition but evading review” exception applies;
(ii) how MSHA’s decision to issue the Order should be
reviewed and (iii) whether the Order was properly issued. 5 We
begin our analysis with the first issue and, accordingly, assess
whether the case is moot and, if so, whether the “capable of
repetition but evading review” exception applies. As the case
is moot and the exception does not apply, our analysis begins
and ends with the first issue.

A. Mootness

Article III of the United States Constitution limits our
review to “only actual, ongoing controversies.” J.T. v. District
of Columbia, 983 F.3d 516, 522 (D.C. Cir. 2020) (quoting
McBryde v. Comm. to Rev. Cir. Council Conduct, 264 F.3d 52,
55 (D.C. Cir. 2001)). We cannot decide a case “if ‘events have
so transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future.’” Id. (quoting Clarke v. United
States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)). MSHA
terminated the challenged Order over three years ago. Apart
from the speculative, the Order no longer poses a risk of
continuing legal consequences: no actual controversy remains
for us to review and the case is accordingly moot.

Neither M-Class nor the Commission identified
non-speculative harms. That a member of the public could
look at M-Class’s compliance history, notice that there was a
terminated § 103(k) order and conclude “something occurred
at that mine that affected the health and safety of miners,” Sec’y

5
The parties initially briefed only the second and third issues
but we ordered supplemental briefing to address mootness. Per
Curiam Order at 1, Sec’y of Labor v. M-Class Mining, LLC,
No. 20-1369 (D.C. Cir. Mar. 3, 2021).
 7
of Labor v. M-Class Mining, LLC, 42 FMSHRC 491, 496
(2020) (emphasis in original), is no more than a thinly-veiled
reputational harm argument. Reputational harm, however,
does not provide us with jurisdiction here. “Reputational harm
may constitute an ongoing, redressable injury where it derives
directly from an unexpired and unretracted government
action,” Pulphus v. Ayers, 909 F.3d 1148, 1153 (D.C. Cir.
2018) (internal quotations omitted); for example, if “a
governmental designation directly harmed the plaintiff’s
professional reputation because the designation was inherently
stigmatizing,” id. In other words, “when injury to reputation is
alleged as a secondary effect of an otherwise moot action, we
have required that some tangible, concrete effect remain,
susceptible to judicial correction.” Id. at 1154 (internal
quotations omitted). Any reputational harm to M-Class is tied
to the possibility that someone might check M-Class’s history
of accidents and might draw a negative conclusion because of
the terminated Order. Compared to the reputational harms
discussed in Pulphus, M-Class’s alleged reputational harm is
distinguishable based both on no inherent stigmatization and
on the uncertainty of reputational harm. Id. That the Order
indicates “something” occurred in M-Class’s mine, without
assignment of fault or causation, differs greatly from an act of
the Congress embodying a determination that an individual was
a child abuser and danger to his own daughter, Foretich v.
United States, 351 F.3d 1198, 1213 (D.C. Cir. 2003), the Fifth
Circuit Judicial Council’s “characterization” of a federal judge
as engaging in a pattern of abusive behavior for years,
McBryde, 264 F.3d at 54–57, or the United States Department
of Justice’s identification of certain films as political
propaganda under the Foreign Agents Registration Act
deterring a state senator from exhibiting those films, Meese v.
Keene, 481 U.S. 465, 473–74 (1987). Here, any “claims of
reputational injury [are] too vague and unsubstantiated to
preserve [the] case from mootness.” McBryde, 264 F.3d at 57.
 8
Further, neither the Mine Act nor the precedent cited by
the Commission and M-Class indicates that a § 103(k) order,
once terminated, can serve as the basis for a later citation or
enforcement action or be modified after termination. As noted
by Commissioner Jordan in her dissent, “the Secretary does not
factor the issuance of a section 103(k) order into any of the
progressive enforcement mechanisms under the Mine Act . . .
[and] the issuance of such an order is not considered in a mine’s
history of violations for purposes of MSHA’s future proposed
penalty assessments.” M-Class Mining, LLC, 42 FMSHRC at
509 (Jordan, dissenting) (citing 30 U.S.C. §§ 814(e), 820
(Sections 104 and 110, respectively)). Section 110 provides
penalties for violations of “mandatory health or safety
standard[s]” or “any other provision of this chapter,” 30 U.S.C.
§ 820(a)(1), but makes specific reference to a penalty for a
violation of Section 103(j) only—requiring timely notification
to the Secretary within 15 minutes of a death or injury or
entrapment that “has a reasonable potential to cause death” at
the mine, id. § 813(j). There might be a penalty under § 110 if
a mine operator violated an active safety order under
§ 103(k)—for example, if M-Class had resumed mine
operations in the closed area before the MSHA Inspector had
issued the first modification—but there is no basis to impose a
penalty based on a terminated safety order under § 103(k).
Section 104(e), governing a pattern of violations, is even more
limited to “a pattern of violations of mandatory health or safety
standards in the coal or other mine which are of such nature as
could have significantly and substantially contributed to the
cause and effect of coal or other mine health or safety hazards.”
Id. § 814(e)(1). M-Class can point to no statutory authority
 9
supporting the conclusion that a terminated § 103(k) order can
serve as the basis for a later citation or enforcement action. 6

The Commission and M-Class also rely on two FMSHRC
decisions to support the proposition that a § 103(k) order can
be modified after termination: Secretary of Labor v. Wyoming
Fuel Co., 14 FMSHRC 1282, 1288–89 (1992), and Secretary
of Labor v. Ten-A-Coal Co., 14 FMSHRC 1296, 1298 (1992).
Wyoming Fuel Co. and Ten-A-Coal Co. indicate that a citation
issued under § 104 of the Mine Act can be modified after
termination, not that a § 103(k) safety order can be so modified.
We agree with the Secretary that § 104 citations—and
withdrawal orders—are distinguishable from § 103(k) safety
orders. Pet’r’s Suppl. Br. 3–5. Termination of a § 104(a)
citation signifies that the violative condition has abated and that
the mine operator is no longer subject to a § 104(b) withdrawal
order for failure to abate but “not that the citation itself no
longer exists for other legal purposes . . . [such as] subsequent
contest and civil penalty proceedings.” Wyoming Fuel Co., 14
FMSHRC at 1288. There are no analogous citations or penalty
proceedings under § 103(k). The functional difference
between termination and vacatur in the context of a § 104
citation does not mean a terminated § 103(k) safety order—
rather than a vacated § 103(k) safety order—threatens
non-speculative legal consequences for the mine operator.
Neither the Commission nor M-Class has identified any
statutory basis for conversion of a § 103(k) safety order to a

6
M-Class cites 30 C.F.R. § 50.10 and § 50.20, Resp’t’s Suppl.
Br. 3, but § 50.10 requires that an operator provide notification of an
accident “within 15 minutes” to MSHA and § 50.20 requires that an
operator mail a completed accident report form to MSHA within ten
working days after an accident, 30 C.F.R. §§ 50.10, 50.20. But
M-Class has not argued it failed to comply with these reporting
requirements.
 10
§ 104 citation or withdrawal order. 7 That MSHA—while
investigating an accident after issuing a § 103(k) safety order—
could note a health or safety violation and issue a citation under
§ 104 does not mean that a terminated § 103(k) safety order can
serve as the basis for a later citation or be modified after
termination.

In sum, M-Class’s challenge of the terminated Order is
moot and we now assess whether an exception to mootness
applies.

7
Another case cited by the Commission, Westmoreland, did
not address “conversion” of a § 103(k) safety order or its use as the
basis for a § 104 citation. Loc. Union 1889, Dist. 17 v. Westmoreland
Coal Co., 8 FMSHRC 1317 (1986). In Westmoreland, the
Commission—in the context of assessing miners’ entitlement to
compensation under 30 U.S.C. § 821—concluded that a § 107(a)
“imminent danger” order need not itself cite “the violative conditions
causing or underlying the issuance of the” § 107(a) order and
indicated that a nexus could be drawn between a § 107(a) imminent
danger order and a § 104 citation. Westmoreland, 8 FMSHRC at
1328–30. Westmoreland did not state that a § 107(a) order could be
converted to or modified into a § 104 citation after termination. The
§ 104 citations in Westmoreland were issued before the § 107(a)
order was terminated. Westmoreland, 8 FMSHRC at 1320.
Westmoreland, at most, acknowledges that it is “procedurally
possible” for the Secretary to modify an active § 107(a) order and
after “completion of further investigation,” cite violations under that
modified order instead of “separately issu[ing an] allegation of
violation under section 104.” Westmoreland, 8 FMSHRC at 1328.
In reaching this conclusion, Westmoreland relied on the final
sentence of § 107(a), which provides that the issuance of a § 107(a)
order “shall not preclude the issuance of a citation under” § 104. 30
U.S.C. § 817(a). To repeat, the Order was issued under § 103(k) and
§ 103(k) does not have language analogous to § 107(a) regarding a
§ 104 citation; further, the Order has been terminated and no § 104
citation has issued.
 11
B. The “Capable of Repetition But Evading Review”
Exception

The “capable of repetition but evading review” exception
does not apply. We recently explained that “[t]he capable of
repetition but evading review exception applies if (1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would
be subjected to the same action again.” J.T., 983 F.3d at 523
(internal quotations omitted). As the party invoking the
exception, M-Class has the burden to establish its applicability.
Id. The first prong is satisfied, as the Secretary concedes,
because MSHA terminated the Order within 40 days of its
issuance. Joint Appendix 221; Pet’r’s Suppl. Br. 7. Turning to
the second prong, we explained in J.T. that:

This prong requires that the same parties will
engage in litigation over the same issues in the
future. The party invoking the exception must
show a reasonable degree of likelihood that the
issue will be the basis of a continuing controversy
between the two parties. The relevant inquiry,
however, is not whether the precise historical
facts that spawned the plaintiff’s claims are likely
to recur. Rather, the wrong that is, or is not,
capable of repetition must be defined in terms of
the precise controversy it spawns, to wit, in terms
of the legal questions it presents for decision.

J.T., 983 F.3d at 524 (internal quotations omitted) (alterations
adopted). Vital to our analysis, then, is how the legal wrong is
defined. “The opportunities for manipulation are great. The
more broadly we define the wrongful conduct, the more
numerous are the possible examples, and the greater the
 12
likelihood of repetition.” Clarke, 915 F.2d at 703.
Importantly, “we have made clear [that] a legal controversy so
sharply focused on a unique factual context will rarely present
a reasonable expectation that the same complaining party
would be subjected to the same actions again.” J.T., 983 F.3d
at 524 (internal quotations omitted) (alterations adopted). Put
another way, we must ask whether “the case before us is highly
dependent upon a series of facts unlikely to be duplicated in the
future.” People for the Ethical Treatment of Animals, Inc. v.
Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005). This case falls
well within our caution: it presents a legal controversy
regarding the validity of the terminated Order’s issuance that is
“so sharply focused” and “highly dependent upon a series of
facts unlikely to be duplicated” that M-Class is not reasonably
likely to face the same actions again. 8

The Commission and M-Class rely on our decision in
Performance Coal Co. But Performance Coal Co. is plainly
distinguishable. In Performance Coal Co., we were asked to
review a § 103(k) order that remained in effect, having been
modified over sixty times, and the Secretary admitted that
MSHA would likely modify the order again. 642 F.3d at 235–
37. On the contrary, the M-Class Order was modified twice
and terminated. Further, Performance Coal Co. involved a
clear question of statutory interpretation: whether § 105(b) of
the Mine Act allows an operator to seek temporary relief from
a § 103(k) order. Performance Coal Co., 642 F.3d at 238–39.
Granted, there is a statutory element to the issues here, but only
in the context of whether, on these unusual facts, MSHA
properly issued the now-terminated Order. Performance Coal
Co., then, does not control and M-Class has failed to
8
Although M-Class has been subject to several other § 103(k)
orders (14 in 2018 and 10 in 2019), M-Class Mining, LLC, 42
FMSHRC at 510 n.3, it has not identified one in which it disputes an
accident in fact occurred.
 13
demonstrate that this case otherwise falls within the “capable
of repetition but evading review” exception. 9

Because the case is moot and does not fit the exception,
we are without jurisdiction to review the Commission decision
and, accordingly, we dismiss the petition. As we explained in
Tennessee Gas Pipeline Co., “the appropriate disposition of
moot administrative orders” is vacatur of the administrative
order we are without authority to review. 606 F.2d at 1382
(citing A.L. Mechling Barge Lines, Inc., 368 U.S. at 329).

For the foregoing reasons, we dismiss the petition, vacate
the Commission decision and the Order and remand to the
Commission for proceedings consistent with this opinion.

So ordered.

9
We do not hold, however, that a challenge to a terminated
§ 103(k) order will be moot or fail to satisfy an exception to mootness
in every instance.