Secretary of Labor v. Morton Salt, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued Morton Salt a pattern-of-violations notice after identifying 82 S&S citations in a 12-month period, including 45 involving loose-ground hazards. Morton Salt asked the Commission to review MSHA's decision-making process and mitigating-circumstances analysis behind the notice. The Commission majority held that the Mine Act does not give it jurisdiction to review the Secretary's charging decision or internal process for issuing the notice. It explained that the notice alone has no immediate legal consequence and that Morton Salt can challenge the alleged pattern when contesting a later section 104(e) withdrawal order. In that proceeding, the Secretary must prove both the pattern and the subsequent violation. The case returned to the ALJ for that adjudication; Commissioners Althen and Rajkovich dissented from the jurisdictional holding.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.3200 and 104.2; 30 U.S.C. §§ 814(e) and 815(d)
• Outcome: Direct review of the pattern notice was rejected, and the underlying withdrawal-order case continued before the ALJ.
• Key point: The Commission reviews whether a pattern actually exists through a contested withdrawal order, not MSHA's internal decision to issue the initial notice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) : Docket
No. CENT 2023-0120

:

v.
:

:

MORTON
SALT, INC. :

BEFORE: Jordan, Chair; Althen,
Rajkovich, Baker and Marvit, Commissioners

DECISION

BY: Jordan, Chair; Baker and Marvit, Commissioners

This case arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)
(“Mine Act” or “Act”) and is before the Commission pursuant to our grant of
interlocutory review.[1] The case arose
when Morton Salt, Inc. (“Morton Salt”) received a notification under section
104(e) of the Act that it had engaged in a pattern of violations which could
significantly and substantially contribute to mine health or safety hazards.[2]

Any operator so notified is
subject to an order requiring the immediate withdrawal of miners, if an
inspection within 90 days discovers any additional significant and substantial

violations
at the operator’s mine. Any subsequent inspections that reveal significant and substantial
violations will result in further withdrawal orders, until the mine achieves an
inspection with no such violations. 30 U.S.C. §§ 814(e)(2), (3).[3]

It is the Secretary’s initial
written notification to an operator that a pattern of violations exists which is
the subject of the instant appeal. Specifically, the question the Commission
unanimously certified for interlocutory review is “whether the Commission has
authority to review the Secretary’s decision to issue a notice of pattern of
violations.” 45 FMSHRC 1023, 1024 (Dec. 2023). For the reasons set forth herein, we conclude that the Commission lacks
such jurisdiction.

I.

Background

A.
Pattern of Violations
History

In 1977, following a series of
fatal mine disasters, Congress took steps to strengthen the existing 1969 Coal Mine
Health and Safety Act.[4]
The resulting 1977 Mine Act included a new enforcement tool: a “pattern of
violations” provision which was designed to improve compliance

in
mines that had demonstrated recurrent significant and substantial (“S&S”) violations
of mandatory health and safety standards.[5]

It was not until 1990 that
MSHA issued regulations implementing the Mine Act’s pattern of violations
provisions. 55 Fed. Reg. 31128 (July 31, 1990). However, after the Upper Big
Branch mine disaster on April 5, 2010, that killed 29 miners, the U.S.
Department of Labor’s Office of the Inspector General audited MSHA’s Pattern of
Violations program and found that MSHA had not considered that mine’s recurrent
history of violations. The Inspector General’s Report uncovered a litany of
deficiencies within the program and recommended that MSHA revise the
implementing regulations. See Office of Audit, Office of Inspector
General, U.S. Dep’t of Labor, Rep. No. 05-10-005-0-001, In 32 Years MSHA Has
Never Successfully Exercised its Pattern of Violations Authority (2010). Therefore,
in 2013, MSHA revised those regulations. 78 Fed. Reg. 5056-74 (Jan. 23, 2013). MSHA
determined that its 1990 regulations contained too many processes, limiting the
“effective use of [section 104(e)], resulting in delays in taking action
against chronic violators and depriving miners of necessary safety and health
protections.” Id. at 5056. MSHA’s revised regulation simplifies some
procedures. For example, prior to the changes, MSHA issued mine operators
intermediate notices that their mine had an elevated history of non-compliance
and there was a potential that MSHA would later issue a Notice of
Pattern of Violations. Under the new rules, MSHA provides operators with the
ability to self-monitor their own compliance history with an online Monthly
Monitoring Tool.

Under the revised rule, at
least once each year, MSHA reviews certain compliance records for every mine in
order to determine if the mine meets the screening criteria for a pattern of
violations. 30 C.F.R. § 104.2. The regulations describe eight categories of
information that are relevant to a pattern determination. Id.[6] Each category has been reduced to a specific
numerical screening criterion. These numerical screening criteria are posted on
MSHA’s website and are subject to periodic revision. Id. § 104.2(b). The
website explains that the Secretary will use two alternate methods of applying
the screening criteria to make an initial determination of a pattern of
violations designation. Any mine identified as meeting either set of criteria is
subjected to further review by MSHA personnel. Pattern of Violations,
MSHA (Apr. 2021), www.msha.gov/compliance-and-enforcement/pattern-violations-pov.
Under this process, mine operators can proactively monitor the website to determine
if their mine’s violation history puts it at risk of a pattern designation.

If any mine
meets MSHA’s screening criteria, the agency Administrator issues a memorandum
to the appropriate MSHA District Manager, who is asked to determine whether
there are mitigating circumstances that justify postponing or declining to issue
a pattern Notice.[7] Pattern
of Violations Procedures Summary, MSHA (Apr. 2021), https://www.msha.gov/pattern-violations-pov-procedures-summary.
An MSHA panel reviews the information provided by the District Manager, along
with any additional information deemed necessary, and makes a recommendation to
the Administrator. The Administrator then determines
whether to issue a Notice of Pattern of Violations to the mine operator.

B.
Morton Salt’s Alleged Pattern of
Violations

According
to the Secretary, in the 12-month period from September 1, 2021, to August 31,
2022, Morton Salt received 82 citations describing significant and substantial
violations, 45 of which involved loose-ground hazards in violation of 30 C.F.R.
§ 57.3200.[8]
Sec’y Mot. for Summ. J. at 1. Loose ground conditions such as “scales” (a bulge
of salt) expose miners to potentially fatal injuries if the scale were to fall
while miners are in the area.[9]

On December 1,
2022 (after engaging in the above-described protocol) MSHA issued Morton Salt,
a notice alleging that 45 citations represent a pattern of violating safety
standards relating to “loose ground hazards on ceilings and/or ribs throughout
the mine.” Notice of Pattern of Violations No. 9679401.

After serving
this notice, MSHA inspectors observed additional significant and substantial
violations which, pursuant to section 104(e), resulted in the issuance of withdrawal
orders. In the proceeding before the Judge, Morton Salt is challenging the
violations that prompted the withdrawal orders, and also seeks to contest the
Secretary’s prior notice that Morton Salt had a pattern of violations.

The Secretary moved
for summary decision, seeking an order affirming the validity of the Notice of Pattern
of Violations. The Judge denied the Secretary’s motion, concluding that the Secretary had failed to show there is
“no genuine issue as to any material fact and that it is entitled to summary
decision as a matter of law, particularly concerning how the Respondent’s
mitigating circumstances factored into the decision to issue the [Notice of
Pattern of Violations].” Order at 2 (Dec. 5, 2023). The Secretary then filed a
motion requesting that the Judge certify the case for interlocutory review. Following
the Judge’s certification, the Commission granted interlocutory review as to
whether the Commission has the authority to review the Secretary’s decision to charge
an operator with a Notice of Pattern of Violations.

Before the
Commission, the Secretary maintains that her decision to issue or not issue a
Notice of Pattern of Violations is an exercise of her prosecutorial discretion
and therefore unreviewable. No matter the outcome of this interlocutory appeal,
the Secretary will bear the burden of proving before the Judge that a pattern
of violations existed at the mine, and the operator will have every opportunity
to defend itself by providing mitigating circumstances and challenging the
citations that constitute the alleged pattern.

II.

Disposition

A.
The Secretary’s Decision to
Issue a Notice of Pattern of Violations is a Decision Committed to the Agency’s
Discretion and is Not Subject to Commission Review.

The Commission is an agency
created under the Mine Act with certain defined and limited administrative and
adjudicative powers. See, e.g., Kaiser Coal Corp., 10 FMSHRC
1165, 1169-70 (Sept. 1988); Old Ben Coal Co., 1 FMSHRC 1480, 1484 (Oct.
1979); Rushton Mining Co., 11 FMSHRC 759, 764 (May 1989). The Commission
cannot exceed the jurisdictional authority granted to it by Congress; it does
not possess plenary authority to review all actions taken in accordance with
the Mine Act. Pocahontas Coal Co., LLC, 38 FMSHRC 157, 159 (Feb. 2016); Kaiser
Coal, 10 FMSHRC at 1169; see also Santa Fe Indus., Inc. v. Green,
430 U.S. 462, 472-73 (1977); Civil Aeronautics Board v. Delta Airlines,
367 U.S. 316, 322 (1961).

Several provisions of the
Mine Act grant subject matter jurisdiction to the Commission. Section 105(d) authorizes
the Commission to review citations and orders issued by the Secretary when she
determines that a violation of a safety standard has occurred. The Commission
can also review challenges to the penalty proposed for the associated
violation. 30 U.S.C. § 815(d). Nowhere in the Mine Act is the Commission
granted authority to review the Secretary’s issuance of a “notice” alleging a
pattern of violations.

Instead, consistent with the
Mine Act and Commission caselaw, when a section 104(e) withdrawal order is
contested, the Secretary carries the burden of proving that an operator engaged
in a pattern of violations. Brody Mining, LLC, 37 FMSHRC 1914, 1931
(Sept. 2015) (“Brody II”). In Pocahontas Coal Co., 38 FMSHRC 176,
183-84 (Feb. 2016), we explained that while an operator cannot directly contest
a Notice of Pattern of Violations with the Commission, the operator can seek
Commission review, pursuant to section 105(d), of any subsequently issued
section 104(e) withdrawal order. In essence, that means that the operator must
simply wait until there is immediate legal consequence before seeking
Commission review. In exercising our jurisdiction pursuant to section 105(d) to
review a contested section 104(e) withdrawal order, the Commission can require
the Secretary to demonstrate that the operator has engaged in a pattern of
violations. Id. Section 105(d) lists the various remedial actions the
Commission can order and also “unambiguously sets forth a broad grant of the
Commission authority to direct ‘other appropriate relief.’” Id. Nothing
in this decision diminishes the operator’s ability to challenge the alleged
pattern of violations using the process set forth in Pocahontas Coal Co.
and Brody II.

In Brody II, the
Commission defined a pattern of violations as “an
inspection history of recurrent S&S violations of a nature and relationship
to each other such that the violations demonstrate a mine operator’s disregard
for the health or safety of miners.” 37 FMSHRC at 1924. An operator
challenging a section 104(e) withdrawal order can dispute the existence of the
specific violation described in the order, but that operator can also challenge
the existence of a pattern of violations. The burden remains on the Secretary
to demonstrate the existence of the pattern to the satisfaction of the
Commission Judge.

The Secretary must
demonstrate the pattern based upon the specific S&S citations and orders
listed in the previously issued pattern notice. See id. at 1931. No
particular number of violations is necessarily indicative of a pattern. Id.
at 1925. If the Secretary demonstrates the pattern to the Judge, and also
proves the subsequent violation of the cited mandatory safety standard, the
section 104(e) order is affirmed.[10]
Conversely, if the Secretary fails to demonstrate that the citations and orders
considered cumulatively demonstrate a disregard for the health and safety of
miners, the associated Notice of Pattern of Violations is vacated and the
contested section 104(e) order is modified to a section 104(a) citation.[11]
Indeed, in the instant case, Morton Salt is actively engaged in this process
before the Judge below.[12]

The Commission’s ability to
consider whether a pattern of violations exists must be distinguished from our
lack of jurisdiction to review how or why the Secretary decided to charge
an operator with a pattern notice. Section 105(d) does not provide the
Commission with jurisdiction to review the Secretary’s internal decision-making
processes related to her decision to charge an operator. Id. at 1928-29 (“evidence
should not be developed, nor should discovery be permitted, regarding MSHA’s
prosecutorial discretion in issuing a POV notice.”). The determination of
whether a pattern of violations exists is an exercise of prosecutorial
discretion.[13]
Following the panel recommendations and analysis of the screening criteria, the
Secretary retains the discretion to determine whether the operator has engaged
in a pattern of violations which could significantly and substantially
contribute to mine health or safety hazards. Pattern of Violations, 78
Fed. Reg. 5056, 5065 (Jan. 23, 2013). Once the Secretary has determined that a
pattern of violations exists, the purely ministerial task of issuing the notice
is mandatory.

Notably, the mine operator faces
no immediate consequence when issued a pattern notice. Only if an
inspector observes a significant and substantial violation within the next 90
days—i.e., if the operator is found to be in further violation of the law—will
MSHA issue an order withdrawing affected miners from the area. 30 U.S.C. §
814(e)(1). The operator may contest that withdrawal order before the
Commission. Moreover, if an inspection of the mine reveals no S&S
violations, the pattern notice expires.

The distinction between the
jurisdiction to consider citations and orders as compared to a decision to
charge an operator is not novel. In fact, in Sec’y of Labor v. Twentymile
Coal Co., 456 F.3d 151 (D.C. Cir. 2006), the D.C. Circuit reversed a
Commission attempt to review the Secretary’s charging decision. Id. at
161 (“like a court, the Commission is not as a general matter authorized to
review the Secretary’s exercise of prosecutorial discretion”). The Court held
that the Commission had no statutory authority to review the Secretary’s
decision to charge both the contractor and the mine operator for safety
violations committed by the contractor.[14]
The D.C. Circuit rationalized that under the Mine Act, “the Secretary’s
charging discretion is as uncabined as that of a United States Attorney under
the Criminal Code.”[15]
Id. at 157. The Court chastised the Commission’s attempt to review a charging
decision and “substitute its views of enforcement policy for those of the
Secretary, a power . . . the Commission does not possess.” Id. at 158. Our
colleagues make a similar mistake today.[16]
The Mine Act and associated caselaw are clear; we lack jurisdiction to review
the Secretary’s internal processes related to her exercise of discretion.

B.
The Administrative
Procedures Act Does Not Provide a Meaningful Standard for Review of the
Secretary’s Decision to Issue a Pattern of Violations Notice.

Our dissenting colleagues
tacitly recognize that the Mine Act does not provide the Commission with
jurisdiction to review the Secretary’s decision-making processes concerning
whether or not to issue a Pattern of Violations Notice. Instead, the dissents
would ground review of the Secretary’s enforcement decisions in section
706(2)(A) of the Administrative Procedure Act (“APA”), which requires setting
aside agency action that is arbitrary, capricious, or an abuse of discretion. Slip
op. at 22-23 (Althen dissent); Slip op. at 25-30 (Rajkovich dissent).[17]

However, under section 704 of
the APA, agency actions are only reviewable if that review is provided for by
statute or if there is a final agency action for which there is no other
adequate remedy in court. 5 U.S.C. § 704. As noted above, nothing in the Mine
Act states that the Secretary’s decision-making process in issuing a Pattern of
Violations Notice is subject to review. Therefore, the Secretary’s actions here
are only reviewable under the APA if final.

The issuance of a Notice of Pattern
of Violations is not a final agency action. The Supreme Court has stated that to
be “final,” an agency action must satisfy two criteria. First, the action must
mark the consummation of the agency’s decision-making process—it must not be
tentative or interlocutory in nature. Bennett v. Spear, 520 U.S. 154,
177-178 (1997). Second, the action must be “one by which ‘rights or obligations
have been determined,’ or from which ‘legal consequences will flow.’” Id.
at 178 (citations omitted).

We note that under this
definition, the agency action at issue here is not final. A review of section
104.2, 30 C.F.R. § 104.2, shows that it describes an interlocutory or
intermediate step of the Secretary’s deliberative process, not the final agency
action. As described supra, the Secretary’s analysis of the screening
criteria under section 104.2 does not dictate a decision, let alone a final
one. Following the analysis under section 104.2, the Secretary must still
convene a Pattern of Violations panel that must review the evidence (including
mitigating circumstances) and, ultimately, make the decision whether to issue a
Pattern of Violations Notice. Even after the Notice of Pattern of Violations is
issued, it is at least arguable that legal consequences do not yet attach. Only
after an inspection occurs, where an S&S violation is discovered, and the
Secretary issues withdrawal orders pursuant to the Pattern of Violations
Notice, is a final agency action committed. At that time, the operator can
challenge the withdrawal order, as well as the underlying Pattern of Violations
Notice. In short, the Secretary’s consideration of mitigating circumstances
pursuant to section 104.2(a) is not the consummation of the decision-making
process, it is a discrete step in that process.

Even if we found that the
Notice of Pattern of Violations was a final agency action, it would still not
be reviewable under the exceptions provided by the Court. When review is
precluded by statute, or when “agency action is committed to agency discretion
by law” no review is available. Bennett, 520 U.S. at 175, citing
5 U.S.C. § 701(a). The first exception obviously does not apply here, as nothing
in the Mine Act expressly precludes review of the Secretary’s decision to issue
a Pattern of Violations Notice and, thus, we need not consider it further. With
respect to the second exception, an action is committed to agency discretion in
instances where “statutes are drawn in such broad terms that in a given case
there is no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 410 (1971), quoting S. Rep. No. 752, 79th Cong., 1st
Sess., 26 (1945).

The interlocutory review at
issue here was precipitated by the Judge’s decision to deny the Secretary’s
motion for summary decision and his ruling that he would conduct a hearing on
the material factual disputes “concerning how the Respondent’s mitigating
circumstances factored into the [Secretary’s] decision to issue the NPOV.” Order.
at 2 (Dec. 5, 2023). The Secretary considers mitigating circumstances when evaluating
mines for a pattern of violations pursuant to 30 C.F.R. § 104.2. More
specifically, after a mine is identified as meeting the screening criteria, the
Secretary considers whether there are any mitigating circumstances which would
make issuance of a Pattern of Violations Notice to that mine inappropriate. 78
Fed. Reg. at 5063 (“There may be extraordinary occasions when a mine meets the
POV criteria, but mitigating circumstances make a POV notice inappropriate.”). Therefore,
the question before us is whether the Secretary’s consideration of alleged
mitigating circumstances under section 104.2 is committed to the Secretary’s
discretion when she considers whether to charge an operator by issuing a notice
of pattern of violations. We believe that it is.

In essence, the Pattern of
Violations regulations and screening criteria function as a sieve, allowing the
Secretary to identify mines with acute compliance problems for further scrutiny.They also provide notice to the public and the regulated community about the
kinds of information the Secretary may consider during internal deliberations
on whether to issue a Pattern of Violations Notice. The fact that the Secretary
explains her sifting procedures and the kinds of information she will consider
to the public does not change the fact that the Secretary decides, in her
discretion, whether to issue a Pattern of Violations Notice. It also does not
necessarily open the substance of the Secretary’s deliberations to the
Commission’s scrutiny. See Wayte, 470 U.S. at 607 (“the decision
to prosecute is particularly ill-suited to judicial review”).

As we have previously
determined, even after the Secretary applies the screening criteria, she has
discretion in determining whether a particular mine exhibits a pattern of
violations and therefore should be issued a Pattern of Violations Notice. Brody
Mining, LLC, 36 FMSHRC 2027, 2050-51 (Aug. 2014) (“Brody I”).
Specifically, “the screening criteria set forth language that indicates that
even if a mine meets the criteria, MSHA still exercises discretion in
determining whether a POV notice should be issued to the mine.” Id. at
2049. Because the Secretary engages in further, internal deliberations after
using the regulations and the screening criteria, neither the Mine Act nor 30
C.F.R. § 104.2 provide a standard of review for analyzing how the Secretary
considers the relevant data. That is, there is no law to apply to the
Secretary’s deliberations.

As the D.C. Circuit
recognized in Twentymile, the Mine Act does not provide a meaningful
standard upon which to judge MSHA’s exercise of charging discretion. 456 F.3d
at 157. While Twentymile concerned MSHA’s discretion in issuing a
citation to a mine operator pursuant to section 104(a) of the Mine Act, section
104(e) is similarly constructed and silent as to a standard by which review
could be conducted. Cf. 30 U.S.C. § 814(a) (“If upon inspection or
investigation, the Secretary or his authorized representative believes that an
operator of a coal or other mine . . . has violated this chapter . . . he
shall, with reasonable promptness, issue a citation to the operator.”); 30
U.S.C. § 814(e)(1) (“If an operator has a pattern of violations of mandatory
health or safety standards in the coal or other mine . . . he shall be given
written notice that such pattern exists.”).

The instant case demonstrates
why 30 C.F.R. § 104.2 cannot fill the Mine Act’s silence and provide the
meaningful standard against which the Secretary’s notice decision can be
measured. Here, the Judge sought to hold a hearing to determine how the
Secretary considered the operator’s alleged mitigating circumstances. The
question posed by the Judge was not “were there mitigating circumstances
present here?” That is a judicial question, and the kind Commission Judges
regularly answer in cases involving sections 104(a) and (d) of the Act, 30
U.S.C. §§ 814(a), (d). Instead, the question was, “how did the Secretary
consider the alleged mitigating circumstances when deciding to issue the Pattern
of Violations Notice?”

We find it impossible to
conceptualize a legal analysis that asks whether the Secretary sufficiently
analyzed certain material. How would we determine whether the Secretary
properly utilized the factors in 30 C.F.R. § 104.2 in reaching her decision to
issue a Notice of Pattern of Violations? What are the metrics against which the
Secretary’s actions would be compared? It is not a legal question, but instead
a question into the nature of the Secretary’s internal deliberations.

From a practical perspective,
it is hard to understand what our review would encompass. If the issue is
simply whether the Secretary had access to the alleged mitigation before
issuing a Pattern of Violations Notice, then the issue here is moot. The
Secretary provided in discovery several memoranda and internal documents, with
only minor redactions, that set forth which mitigating circumstances she
reviewed. See Sec’y Mot. for Summ. J. Ex. A,
Attachs. 4 & 5.[18]
Further, we note that any mitigating circumstances that the Secretary has
access to would, necessarily, have come from the operator. As a result, the
operator would also be aware of what alleged mitigation the Secretary had
access to and when the Secretary received it.[19]

If the question is anything
beyond whether the Secretary had access to the alleged mitigation, it would
necessarily raise questions as to how the Secretary used that information: what
weight did the Secretary give the alleged mitigation? How did the Secretary
consider the alleged mitigation in light of the other factors? How did
mitigation play into the totality of the circumstances that the Secretary
considered before issuing a Pattern of Violations Notice? All of those
questions go to the heart of the Secretary’s deliberative process and are not
subject to our review.

One of our dissenting
colleagues argues that the Secretary’s action here has no room for discretion
because section 104(e) of the Act provides that “[i]f an operator has a pattern
of violations of mandatory health or safety standards . . . he shall be given
written notice that such pattern exists.” 30 U.S.C. § 814(e)(1). That is,
because the statute includes the imperative phrase “shall” that the Secretary must
provide notice if there is a pattern of violations. Slip op. at 28 (Rajkovich
Dissent). In our colleague’s interpretation, this is not a judgment call:
either there is or is not a pattern of violations and the Secretary is bound to
take one action or the other, and then we can review that action to see if the
Secretary met the standard in 30 C.F.R. § 104.2.

We do not believe that to be
a reasonable interpretation of the Mine Act. There is no question that there is
unanimity among the Commissioners that the word “shall” denotes an imperative.[20]
However, it is necessary to look to the context of the Act itself to see what
Congress has demanded from the Secretary, and how our dissenting colleague
conflates two distinct matters—one discretionary and one mandatory—to arrive at
an incorrect answer. The Secretary’s review of the screening criteria and panel
recommendations, including mitigating circumstances, is used to make the
determination of whether a pattern of violations exists. This deliberation and
its outcome—that is, whether a mine has exhibited a pattern of violations—is
discretionary. If the Secretary determines that a mine has exhibited such a
pattern of violations then it shall issue a notice of pattern of
violations. This second action is mandatory and ministerial. However, simply
because the Secretary must notify the operator when it has been determined that
its mine has exhibited a pattern of violations, does not open up the prior
discretionary deliberations for review.

Section 104(e) of the Act describes
a ministerial action that must occur after the Secretary has exercised
her prosecutorial discretion and determined a pattern of violations exists. It
is similar to section 104(a), which gives the Secretary discretion to determine
when a violation exists, but then mandates that the Secretary issue a citation
if she determines that such a violation exists.[21]
This section does not imply the Secretary has no prosecutorial discretion to
determine what is, or is not, a violation of a mandatory health standard. Obviously,
an inspector is exercising his/her judgment at all times during an inspection
and using delegated discretion to determine whether a given condition is a
violation requiring a citation. The Act merely directs the Secretary to
complete the ministerial task of issuing the citation to provide notice to the
operator after that discretion has been exercised. In the same way, section
104(e) in no way diminishes the Secretary’s discretion to determine when a Pattern
of Violations Notice should be issued, she is simply required to serve the
notice once she deems it necessary.

C.
Commission Review of the
Secretary’s Discretionary Enforcement Decisions Would Encourage Piecemeal
Litigation.

In addition to our lack of statutory authority, there
are practical and policy considerations which counsel against Commission review
of the Secretary’s decision to issue a Notice of Pattern of Violations. These
considerations can be most clearly illustrated by considering what a hearing on
this issue would look like, and the number of insurmountable issues stemming
from such a hearing.

In Fed. Trade Comm’n v. Standard Oil Co. of
California, 499 U.S. 232 (1980), the Supreme Court set forth several analogous
practical concerns that would arise by allowing a respondent to challenge the
validity of the government’s decision to bring an enforcement action. For
example, the Court stated that the effect of judicial review on the validity of
the government’s determination that there was “reason to believe” a respondent
had violated the law:

is likely to be interference with the proper
functioning of the agency and a burden for the courts. Judicial intervention
into the agency process denies the agency an opportunity to correct its own
mistakes and to apply its expertise. Weinberger v. Salfi, 422 U.S. 749,
765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975). Intervention also leads to
piecemeal review which at the least is inefficient and upon completion of the
agency process might prove to have been unnecessary. McGee v. United States,
402 U.S. 479, 484, 91 S.Ct. 1565, 1568, 29 L.Ed.2d 47 (1971); McKart
v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194
(1969). Furthermore. . . judicial review to determine whether the Commission
decided that it had the requisite reason to believe would delay resolution of
the ultimate question whether the Act was violated. Finally, every respondent
to a Commission complaint could make the claim that [the Respondent] had made.
Judicial review of the averments in the Commission's complaints should
not be a means of turning prosecutor into defendant before adjudication
concludes.

Id. at
242-43 (emphasis added).

The Court’s concerns about inefficient, piecemeal
litigation are amply demonstrated by the procedures that would be required to
provide the review sought by Morton Salt. After the issuance of a Notice of Pattern
of Violations and consequent withdrawal orders, an operator would bring a
challenge to the Commission. A Commission Judge would then trifurcate the
proceeding. First, the Judge would consider whether the Notice was validly
issued based on an assessment of whether the Secretary had properly considered
the various factors contained in 30 C.F.R. § 104.2.[22]
In this inquiry, it is not clear what, if any, evidence or testimony concerning
internal deliberations the Secretary would be required to produce under
well-established privileges. Presumably, the Judge would be looking at, for
example, whether the Secretary had considered mitigating circumstances and
assessing whether the Secretary had given that factor appropriate weight as
compared to other considerations. It is not clear to the Commission how the
Judge would be expected to make such a determination since the Pattern of
Violations rule only states that the Secretary will consider such factors, but
provides no requirements for the relative weight of each factor.[23]

If the Judge determined that the Secretary had validly
issued the Notice, she would then turn to consider whether there was, in fact,
a pattern of violations. This would be looking at the same evidence that had
been presented in the previous portion of the hearing but would presumably
consider whether the Secretary had established sufficient evidence to prove the
existence of a pattern. See Brody II, 37 FMSHRC at 1924 (“an inspection
history of recurrent S&S violations of a nature and relationship to each
other such that the violations demonstrate a mine operator’s disregard for the
health or safety of miners”). In essence there would be an entire hearing on
the sufficiency of the Secretary’s deliberations and then a second hearing on
the fruit of those deliberations using the same evidence. Of course, the Judge
may also be hearing contests of the underlying citations and their associated
civil penalties. Then, only if the Judge determined that the Secretary had
appropriately deliberated on the Notice and that a pattern of violations was,
in fact, present, would the Judge then turn to the third portion of the hearing
and consider the merits of the contested withdrawal order.[24]
All of this complicated, redundant, and ad hoc judicial review of the
Secretary’s internal processes would often occur while the mine at issue was
continuing to receive withdrawal orders.

The process outlined above, with all of
its attendant procedural hurdles and opportunities for interlocutory review
would delay resolution of the ultimate question of whether Morton Salt in fact engaged
in a pattern of violating mandatory health or safety standards. This would
create a new procedural hurdle with no basis in the law or regulations. In
essence, the practical impact of the review proposed by our dissenting
colleagues would be to make the Secretary the defendant, forcing her to defend
her decision-making processes rather than demonstrate that 45 loose-ground
hazards represent a pattern of violations. For these reasons, the Commission
should not review the Secretary’s decision to issue the Notice of Pattern
of Violations, but instead center its review on whether the Secretary has
proven the existence of a pattern of violations.

III.

Conclusion

In summary, the Commission
does not have jurisdiction to review the Secretary’s decision to issue a Notice
of Pattern of Violations. The case should proceed before the Judge so that he
may determine whether the Secretary can demonstrate that Morton Salt has
engaged in a pattern of violating mandatory health or safety standards.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z Marvit, Commissioner

Commissioner Althen,
dissenting:

We review a purely legal
question. The legal issue taken by the Commission is “whether the Commission has authority to review the
Secretary’s decision to issue a notice of pattern of violations.” 45 FMSHRC
1023, 1024 (Dec. 2023). Had the majority
answered this question correctly, we would have returned the case for action by
the Administrative Law Judge to determine whether the Secretary abused her
discretion under the particular facts of this case. However, the majority has
found that the Commission is powerless to review the issuance of a Notice of a
Pattern of Violations (“POV Notice”). Therefore, the Commission essentially
holds that the Secretary has unfettered discretion to issue a POV Notice even
if she does not comply with her own regulations in finding a pattern of
violation exists. That finding is clearly and dangerously incorrect.

As demonstrated below, there
is a specific legislative rule governing MSHA’s review for a pattern of
violations. That rule incorporates specific screening criteria. The majority’s
decision of absolute discretion erroneously insulates MSHA from the obligation
to follow the legislative rule promulgated by the Secretary, herself.[25] With this
answer, the Secretary may ignore section 104.2(a) that requires consideration
of specific enumerated elements, and the pattern criteria incorporated into the
regulation under section 104.2(b). 30
C.F.R. §§ 104.2(a), (b). The majority do not deny that erroneous result; they
embrace it.

I.

BACKGROUND

Due to the vagueness of section
104(e) of the Mine Act, 30 U.S.C. § 814(e), it was ignored for many years after
the passage of the Act. In 1990, the Secretary published an initial regulation.
Pattern of Violations, 55 Fed. Reg. 31128 (July 31, 1990). Years later,
during the Obama Administration, the Secretary undertook a path toward
enforcement. In 2011, the Secretary proposed a new regulation for enforcement
of the pattern of violations section. 76 Fed. Reg. 5719 (Feb. 2, 2011). MSHA
held many public meetings regarding the proposal and received a substantial
number of public comments. The Secretary then published a final rule on January
23, 2013.[26] 78 Fed. Reg. 5056 (Jan. 23, 2013). The regulation is
found at 30 C.F.R. Part 104.

Surprisingly, the pattern of
violations regulation does not define a pattern of violations. In subsequent
litigation, the Commission defined a pattern of violations as “an inspection
history of recurrent S&S violations of a nature and relationship to each
other such that the violations demonstrate a mine operator’s disregard for the
health or safety of miners.” Brody Mining, LLC, 37 FMSHRC 1914, 1924
(Sept. 2015) (“Brody II”). Therefore,
the test of whether a group of violations constitutes a “pattern” for purposes
of Part 104 is the nature and relationship of the grouping of violations and
whether that nature and relationship prove a “disregard” for the health or safety of miners.

According to Black’s
Law Dictionary, the term “disregard” means “[t]he action of ignoring or treating without proper respect or
consideration . . . [t]he quality, state, or condition of being ignored or
treated without proper respect or consideration.” Disregard, Black’s
Law Dictionary (12th ed. 2024). In other words, the test under Part 104 is
whether the violations show that the operator “ignored or disrespected” safety.
To determine whether an operator has “disregarded” safety, an Administrative
Law Judge must review all evidence, unfavorable and favorable, related to an
operator’s safety record and concern for safety matters. This consideration
will include all areas identified in the Secretary’s regulation at 30 C.F.R. §
104.2 and any other evidence bearing upon the issue.[27]

Part 104 contains substantive
provisions and issues that must be examined for enforcement. Section 104.2(a)
identifies eight specific criteria that MSHA must review once every year to
identify any mines with a pattern of violations. The attributes are:

(1) Citations for S&S violations;

(2) Orders under section 104(b) of the Mine Act for not
abating S&S violations;

(3) Citations and withdrawal orders under section 104(d) of
the Mine Act, resulting from the mine operator’s unwarrantable failure to
comply;

(4) Imminent danger orders under section 107(a) of the Mine
Act;

(5) Orders under section 104(g) of the Mine Act requiring
withdrawal of miners who have not received training and who MSHA declares to be
a hazard to themselves and others;

(6) Enforcement measures, other than section 104(e) of the
Mine Act, that have been applied at the mine;

(7) Other information that demonstrates a serious safety or
health management problem at the mine, such as accident, injury, and illness
records; and

(8) Mitigating circumstances.

30 C.F.R. § 104.2(a).

The above listing is a
discrete list of issues that, by rule, the Secretary must consider before
making a POV determination. These are not mere guidelines, interpretive rules,
policy statements, or agency precedents regarding a pattern of violations;
these are matters that must be considered. This is a legislative rule
created by the Secretary of Labor with express authorization from Congress. See
30 U.S.C. § 814(e)(4) (delegating authority to MSHA to establish criteria for
determining when a pattern of violations exists). These rules carry the force
of law and are binding on the agency. United States v. Nixon, 418 U.S.
683, 695 (1974) (superseded by statute on other grounds) (rule binding on
agency because it had “the force of law”).

The pure legal question
before the Commission is not whether the Secretary followed her rules. That is
in the contest between the parties. The question posed by the Commission here
is whether the Secretary may ignore the requirements of Part 104 so that she
has absolute discretion to issue a Notice of a Pattern of Violations
notwithstanding the rules. Absolute discretion would exempt the Secretary from
following her own legislative rule.

Section 104.2(a)
identifies specific criteria that must be reviewed. Section 104.2(b) obligates
MSHA to create specific pattern criteria. In turn, the criteria must be posted
on MSHA’s website. 30 C.F.R. §§ 104.2(a), (b). The obligations of section 104.2
are mandatory, and MSHA must comply by reviewing the criteria of section
104.2(a) and creating and posting under section 104.2(b) the specific criteria
for determining a mine’s pattern violator status.

Pursuant to section
104.2(b), MSHA created threshold criteria for consideration of a pattern of
violation status. See Pattern of Violations (POV), MSHA (Apr.
2021), https://www. msha.gov/compliance-and-enforcement/pattern-violations-pov.
Under MSHA’s scheme for determining pattern violator status, an operation that
does not meet the criteria cannot be found to be in a pattern of violation
status. If the wording of section 104.2(b) does not make that clear, MSHA’s
application of the criteria does.

MSHA created, and it
should be commended for this, a calculator tool that allows an operator to
determine how close it is to pattern violator status under the pattern criteria
promulgated by MSHA and incorporated by section 104.2(b). POV Calculator,
MSHA, https://www.msha.gov/data-and-reports/data-sources-and-calculators/pov-calculator
(last visited Aug. 27, 2023). Having created that tool in conjunction
with the issuance of the criteria and having assured operators they may rely
upon MSHA’s calculation of compliance, MSHA would/should not be heard to argue
that it may whimsically disregard the criteria in determining a mine’s pattern
of violation status.[28]

with this background, we turn to the issue on review. Does
the Secretary have unfettered discretion to issue a Notice of a Pattern of
Violations without regard to analyzing the factors required by her legislative
rule?[29]

II.

DISCUSSION

We can make short work of
the purely legal issue before the Commission: May the Commission review the
Secretary’s decision to issue a Notice of Pattern of Violations or, stated
differently, does the Secretary have discretion to find a pattern of violations
without consideration of the factors in her legislative rule for determining a
pattern of violations? The answer is clear: She does not.[30]

As set forth above, the
Secretary proposed a substantive rule and accepted extensive public comments;
the Secretary published a final rule reflecting consideration of the comments;
the Secretary’s final rule obligates the Secretary to an annual review of all
mines to find any pattern violators; that annual review must include eight
specifically identified areas, including mitigating circumstances; the
Secretary published on its website the specific minimum criteria for
consideration of pattern violator status; the Secretary created a public
“calculator” to permit operators to determine whether they are close to pattern
violator status; and the Secretary affirmatively states that the criteria are a
minimum threshold.

Federal agencies must
comply with their own legislative rules. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954) (superseded
by statute on other grounds). The Accardi principle is rock-solid
law when applied to legislative rules. Perez v. Mortg. Bankers
Ass’n, 575 U.S. 92, 96 (2015) (“Rules issued through the notice-and-comment process are often
referred to as ‘legislative rules’ because they have the ‘force and effect of
law.’”); Brock v. Cathedral Bluffs Shale Oil Co., 796
F.2d 533, 536 (D.C. Cir. 1986) (“It
is axiomatic that an agency must adhere to its own regulations.”); see also Chrysler Corp. v. Brown,
441 U.S. 281, 295 (1979); Vitarelli
v. Seaton, 359 U.S. 535, 539-40 (1959); Service v. Dulles, 354 U.S. 363, 372 (1957); Blackwell as Tr. of Gary Blackwell
Revocable Living Tr. v. Tennessee Valley Auth., 622 F.Supp.3d 543, 550 (W.D.
Ky 2022); Pitman
v. United States Citizenship and Immigr. Serv., 485 F.Supp.3d 1349,
1352 (D. Utah 2020).

Indeed, in Samirah v.
Holder, 627 F.3d 652 (7th Cir. 2010), the United States Court of Appeals
for the Seventh Circuit held that
“even if the applicable statutes confer complete discretion on agency actors,
if those actors have the authority to constrain their discretion by
promulgating legislative rules, and they choose to do so, they have created law
that can serve as the basis for judicial review.” Id. at 665, quoting
Thomas W. Merrill, The Accardi Principle, 74 Geo.
Wash. L. Rev. 569, 605 (2006); see also §
4.22 Binding effect on the agency, 1 Admin. L. & Prac. § 4.22 (3d ed.)
(“One of the most firmly
established principles in administrative law is that an agency must obey its
own rules.”)

The United States Court of Appeals for the Tenth Circuit
states this principle in New Mexico Farm and Livestock Bureau v. United States Dep’t of Interior:

Turning
to the merits of the issue, we have held that “[a]gencies are under an
obligation to follow their own regulations, procedures, and precedents, or
provide a rational explanation for their departure.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152,
1165 (10th Cir. 2002). When
an agency does not comply with its own regulations, it acts arbitrarily and
capriciously. Id. at 1178; see
also Cherokee Nation of Okla. v. Norton,
389 F.3d 1074, 1078 (10th Cir. 2004) (“[The APA] require[s] agencies, on pain of being found to have
acted arbitrarily and capriciously, to comply with their own regulations.”)

952
F.3d 1216, 1230-31 (10th Cir. 2020).

Going further, the Administrative Procedure Act codifies
the nature and principles of judicial review of agency actions. Sec’y
of Labor v. Twentymile Coal Co., 456 F.3d 151, 159 (D.C. Cir. 2006). Agency
actions will be set aside when an agency does not observe procedures required
by law. 5 U.S.C. § 706(2)(D). The Commission has affirmed the use of section
706 principles for review of the Secretary’s actions. See Mach Mining, LLC,
34 FMSHRC 1784, 1790, 1790 n.11 (Aug. 2012).

The Secretary promulgated a legislative rule governing the
determination of a mine’s pattern of violation status. The Secretary must
follow her rule in making that determination. Whether the Secretary did so must
be determined by an Administrative Law Judge.

The Secretary’s legislative rule requires:

At least once each year, MSHA will review the compliance and
accident, injury, and illness records of mines to determine if any mines meet
the pattern of violation criteria.

30
C.F.R. § 104.2(a).

The rule then lists eight
specific factors that the review must include. These are factors one would
expect, and the Secretary requires, to go into a pattern of violations
determination. The Secretary does
not have “prosecutorial discretion” to ignore the factors required for review
by the rule. These duties undercut any claim to unfettered discretion to find a
pattern of violations without making the necessary analyses. The Secretary
could not justly claim that she decided to look at factors (i) through
(iv) but decided to ignore factors (v) through (viii).

Failure to make the review required by section 104.2 and to
apply all elements is arbitrary and capricious and an abuse of discretion. The
Secretary’s right to find a pattern of violations is not wholly discretionary. She
is constrained by case law, statute, and regulations setting forth elements
that must be reviewed before an adverse finding.

Charging a pattern of violations is not akin to a citation in
which an inspector armed with education and experience must make an on-the-spot
determination of whether a particular circumstance constitutes a violation. A
determination of POV status is a studied determination that must be made on
factors explicitly identified in the Code of Federal Regulations.

III.

CONCLUSION

If an Administrative Law Judge finds that the
Secretary did not make the examinations required by her own rules, the Notice
of a Pattern of Violations should be vacated and returned to the Secretary for
compliance with the rules. The majority decision erases any chance of that
fundamental right arising from basic notions of due process, settled case law, and Administrative Procedure Act
principles.

As a practical matter, the majority’s erroneous decision
should not affect the outcome of the Secretary’s claim. The Secretary bears the
burden of proving by a preponderance of the evidence that, considering the
inter-relationship among S&S violations and the operator’s concern for
safety, the actions of the operator show a disregard for health and safety. Both
parties may introduce evidence on all the factors in 30 C.F.R. § 104.2 and any
other evidence relevant to the issue of whether the operator disregarded
safety. The Administrative Law Judge will then decide whether the operator
disregarded safety.

I respectfully dissent
from the majority’s unwarranted grant of absolute discretion to the Secretary.

/s/
William I. Althen

William
I. Althen, Commissioner

Commissioner
Rajkovich, dissenting:

My colleagues in the majority
hold that, because the Commission lacks subject matter jurisdiction over the
Secretary’s decision to issue a Notice of a Pattern of Violations (“POV Notice”),
that decision is an entirely unreviewable exercise of prosecutorial discretion.
I dissent. For the reasons discussed below, I believe the Supreme Court’s test
in Heckler v. Chaney, 470 U.S. 821, 828-30 (1985), provides the
proper framework for determining whether acts of prosecutorial discretion are
reviewable. I would further hold that the
Secretary’s decision to issue a POV Notice is bound by limited but meaningful
standards, therefore once subject-matter jurisdiction properly attaches
through the contest of a related withdrawal order issued pursuant to 30 U.S.C.
§ 814(e)(1), the Commission may conduct a limited review of the Secretary’s
issuance decision to determine whether it was arbitrary and capricious.

A.
The majority incorrectly
frames this interlocutory review as a question of subject matter jurisdiction.

The primary legal basis for
the majority’s holding is that the Commission cannot exceed its defined grants
of subject matter jurisdiction, and we have not been explicitly granted such
jurisdiction over the Secretary’s decision to issue a POV Notice. See Slip
op. at 6-9. I would find the majority’s analysis insufficient to answer the
question on review and inconsistent with our prior decision in Pocahontas Coal Co., 38 FMSHRC 176 (Feb. 2016).

In Pocahontas, we held
that the Commission lacks subject matter jurisdiction to review direct
challenges to POV Notices. However, we also held that once jurisdiction
properly attaches through the contest of a related withdrawal order, the
Commission has the authority to review the underlying POV Notice to “dispose
fully” of the case. Id. at 181-84. Here, Morton Salt has properly
contested the relevant withdrawal orders. As part of that contest, the operator
challenges the validity of the underlying POV Notice on various grounds,
including the Secretary’s consideration of mitigating circumstances when
deciding to issue the POV Notice. The Judge noted genuine issues of material
fact on that point, and the Secretary sought interlocutory review as to whether
the Secretary’s decision was reviewable. Functionally, the question on
interlocutory review is whether, in attempting to fully dispose of the case
properly before him, the Judge below may review the Secretary’s
decision-making process in issuing the POV Notice.

I agree with the majority
that we lack the jurisdiction to review direct challenges to the Secretary’s
decision to issue a POV Notice. However, the question before us is whether we
may review the Secretary’s issuance decision in order to fully dispose of a
case for which we already have subject-matter jurisdiction. For the reasons
below, I would hold that once subject matter jurisdiction attaches through
the contest of a related section 104(e) withdrawal order, the Commission may
conduct review as necessary to fully dispose of the case, including determining

whether
the Secretary’s action in issuing a POV Notice complied with the minimum
procedural requirements in 30 C.F.R. Part 104.[31]

B.
The Secretary’s claim of
unreviewable discretion must be rejected under the Supreme Court’s Heckler
Test.

As described in further
detail below, the Supreme Court has provided a framework for determining
whether exercises of prosecutorial discretion are reviewable. The Secretary
claims that her decision to issue a POV Notice is an unreviewable enforcement
decision that has been committed to the Secretary’s discretion by law. Specifically,
she asserts that the decision to issue a POV Notice is a presumptively
unreviewable exercise of prosecutorial discretion, and that no meaningful
standard of review exists. Sec’y Br. at 7, 9-10. I would find that any
presumption of unreviewability is overcome, because the Act and the Secretary’s
regulations provide sufficiently meaningful standards to allow limited review.

1. Legal Framework

As a general rule, agency actions are reviewable under the
arbitrary and capricious standard unless Congress has expressed an intent to
preclude review or the action is “committed to agency discretion by law.”[32] 5 U.S.C. §§ 702, 706; Heckler,
470 U.S. at 828-30; Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971); see also Speed Mining,
Inc. v. Fed. Mine Safety & Health Review Comm’n, 528 F.3d 310, 316-17 (4th Cir. 2008).
With respect to the second exception, the Supreme Court has explained that decisions not to prosecute or enforce are
generally committed to an agency’s absolute discretion, and are therefore
presumptively unreviewable.[33]
Heckler, 470 U.S. at 831. However, this presumption of
unreviewability may be overcome if the relevant statute “has indicated an
intent to circumscribe agency enforcement discretion, and has provided
meaningful standards for defining the limits of that discretion.” [34] Id. at 834.

In determining whether a meaningful standard of review exists,
courts may look to agency regulations or policies that create binding norms. Robbins v. Reagan, 780 F.2d 37, 45-46 (D.C. Cir. 1985); Steenholdt
v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003). The key inquiry is the extent to which the agency remains “free to exercise its discretion to follow
or not to follow that

general policy.” Nat’l Mining
Ass’n v. Sec’y of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009)
(citation omitted).

With respect to POVs, the potentially relevant materials are
comprised of Section 104(e) of the Mine Act, Section 104 of the Secretary’s
Regulations, and MSHA’s website.

Section 104(e) of the Act provides that “[i]f an operator has a pattern of violations of mandatory health
or safety standards . . . he shall be given written notice that such pattern
exists,” and directs the Secretary to “make such rules as [s]he deems necessary
to establish criteria for determining when a pattern of violations . . .
exists.” 30 U.S.C. §§ 814(e)(1), (e)(4).

The Secretary accordingly
promulgated a regulation which “establishes the criteria and procedures for
determining whether a mine operator has established a pattern of significant
and substantial (S&S) violations at a mine.” 30 C.F.R. §104.1. The
regulation states:

(a) At least once each year, MSHA will review the
compliance and accident, injury, and illness records of mines to determine if
any mines meet the pattern of violations criteria. MSHA's review to identify
mines with a pattern of S&S violations will include:

(1) Citations
for S&S violations;

(2) Orders under section 104(b) of the Mine Act
for not abating S&S violations;

(3) Citations and withdrawal orders under section
104(d) of the Mine Act, resulting from the mine operator's unwarrantable
failure to comply;

(4) Imminent danger orders under section 107(a)
of the Mine Act;

(5) Orders under section 104(g) of the Mine Act
requiring withdrawal of miners who have not received training and who MSHA
declares to be a hazard to themselves and others;

(6) Enforcement measures, other than section
104(e) of the Mine Act, that have been applied at the mine;

(7) Other information that demonstrates a serious
safety or health management problem at the mine, such as accident, injury, and
illness records; and

(8) Mitigating
circumstances.

(b) MSHA
will post the specific pattern criteria on its Web site.

30
C.F.R. § 104.2.

MSHA’s website currently
provides two sets of pattern criteria. Mines that meet all the criteria in
either set will be “further considered” to determine whether the operator
should be issued a POV Notice, with specific consideration of an operator’s
MSHA-approved Corrective Action Program as a “mitigating circumstance” that may
justify postponing or not issuing the POV notice. See Pattern of Violations
(POV), MSHA (Apr. 2021), https://www.msha.gov/
compliance-and-enforcement/pattern-violations-pov.

In
other words:

(1) If a mine has a pattern
of violations, the Secretary must issue a POV Notice. 30 U.S.C. §
814(e)(1); see also 30 C.F.R. § 104.3(a).

(2) The Secretary’s
procedures for determining whether a pattern exists require the
Secretary to conduct a review which must include eight categories of
information. 30 C.F.R. §§ 104.1, 104.2. This includes mitigating circumstances.

(3) MSHA’s website provides
baseline requirements for some of the categories listed in 30 C.F.R. § 104.2. If
a mine meets the baseline requirements, MSHA will give the mine further
consideration and determine whether to issue a notice, i.e., whether a pattern
exists.

Notably,
the Commission has previously reviewed elements of the Secretary’s POV
Regulations under the arbitrary and capricious standard, but held that the
website criteria were non-binding. Brody Mining, LLC, 36 FMSHRC
2027, 2035-38, 2047-51 (Aug. 2014) (“Brody I”).

2. Congress has expressed an intent to circumscribe the
   Secretary’s discretion in issuing a POV Notice.

The Mine Act provides that “[i]f an operator has a pattern of violations of mandatory health or safety standards . . . he shall
be given written notice that such pattern exists.” 30 U.S.C. § 814(e)(1)
(emphasis added). In Heckler, the Supreme Court explicitly
differentiated statutes which require the Secretary to act from statutes
which authorize her to act. The Court stated that a statute under which
the Secretary “shall” bring a civil action if she finds probable cause to
believe a violation has occurred “quite clearly withdrew discretion from the
agency and provided guidelines for exercise of its enforcement power.” 470 U.S.
at 833-34. Under the Mine Act, if the Secretary finds a pattern of violations,
she must issue a notice. The decision has not been left entirely to the
Secretary, i.e., the Mine Act has expressed an intent to circumscribe the
Secretary’s discretion.

3. The Mine Act and the Secretary’s regulations create a
   meaningful standard by which the Commission may review elements of the
   Secretary’s decision to issue a POV Notice.

A review of the Mine Act and
the Secretary’s regulations establishes that, while the Secretary retains
significant discretion as to the details, there are baseline standards against
which to compare her actions: In issuing a POV Notice, (1) the Secretary must
have concluded that there was a pattern of violations, and (2) in concluding
that there was a pattern of violations, the Secretary must have conducted a
review that was consistent with Part 104.

Both the Mine Act and the
Secretary’s regulations require the Secretary to issue a notice if there is a
pattern of violations. 30 U.S.C. § 814(e)(1); 30 C.F.R. § 104.3(a). Accordingly,
the first meaningful standard of review is simply: Is there a pattern?

The Secretary has also
established criteria and procedures for determining whether a pattern exists.[35]
The question is whether these criteria and procedures create binding norms, or
whether the Secretary remains free to exercise her discretion. See Nat’l
Mining Ass’n, 589 F.3d at 1371 (citation omitted). The Commission has
already found the POV criteria posted on MSHA’s website to be non-binding.[36]
Brody I, 36 FMSHRC at 2049-51. However, the Secretary’s POV regulations
clearly create binding norms. Section 104.2 states that MSHA “will review”
various mine records to determine if any mines meet the pattern criteria, and
that the review “will include” eight listed factors. 30 C.F.R. § 104.2. These
procedural requirements must be met if the Secretary is to properly determine
that a pattern exists and that a notice should be issued. While these
requirements are not particularly stringent, they are requirements that the
Secretary has bound herself to follow.

The Secretary claims her
rules are merely meant to “guide” determinations as to whether to issue a POV
Notice. Sec’y Br. at 12-13. That is broadly true—Part 104 and the website are
structured so that the criteria generally indicate whether a mine may have
a pattern, leaving the Secretary with some discretion to determine whether the
mine in fact has a pattern and therefore must be issued a POV Notice. Mines
that meet the website criteria are not automatically issued a notice but
instead receive “further consideration” by MSHA personnel, who retain
discretion to consider additional information and may choose not to
issue a sanction.

However, the Secretary also
chose to institute, through notice-and-comment rulemaking, minimum
regulatory procedural requirements in determining whether a pattern exists.
It is “axiomatic” that an agency must adhere to its own regulations. Drummond
Co., 14 FMSHRC 661, 677 (May 1992), citing Brock v. Cathedral Bluffs
Shale Oil Co., 796 F.2d 533, 536 (D.C. Cir. 1986). The Secretary cannot
bind herself to procedural requirements and then claim her actions are entirely
unreviewable. At the very least, the Commission may review the Secretary’s
decision to determine whether the Secretary considered the factors listed in
section 104.2(a), and whether a pattern of violations exists.[37]
If not, then the issuance was not “in accordance with” the relevant statutes
and regulations and may be arbitrary and capricious.[38] 5 U.S.C. §
706(2)(A). The scope of the Commission’s review may be limited, but it serves
the important function of ensuring that the Secretary adheres to its
regulations.

The “mere fact that a statute
grants broad discretion to an agency” does not render the agency’s actions
unreviewable “unless the statutory scheme, taken together with other relevant
materials, provides absolutely no guidance as to how that discretion is to be
exercised.” Robbins, 780 F.2d at 44-45. Here, there is minimal but clear
guidance as to how the Secretary’s discretion is to be exercised: in deciding
to issue a POV Notice, the Secretary must determine whether a pattern exists,
which in turn requires the Secretary to conduct a review that includes certain
types of records and eight specific factors. These requirements, though limited, sufficiently constrain the
Secretary’s actions to create a meaningful standard of review against which to judge those actions: If the
Secretary fails to determine that the mine has met the pattern criteria, or in
making that determination fails to conduct a proper review in accordance with
Part 104, then any resulting POV Notice may be arbitrary and capricious. I
would dissent from the majority and find that the Secretary’s decision to issue
a POV Notice is not unreviewable.

C. The Secretary’s right to invoke the deliberative
process privilege does not invalidate the Commission’s review authority.

Nothing in this opinion is
intended to revoke the protections afforded by the deliberative process
privilege. As the Judge recognized here,
the privilege protects against inquiries that “go[] beyond factual matters into
internal deliberations, including the weight given to different pattern
criteria and the thoughts and opinions of the agency’s employees.” Order at 2 (Nov.
13, 2023). If any line of questioning in a legal proceeding impinges
upon the Secretary’s internal deliberations, the Secretary may raise the
privilege and challenge that line of questioning.

However, the existence of the
privilege does not revoke the Commission’s review authority. Deliberative
process is a privilege that may be asserted by the Secretary, not a
limitation on the Commission’s authority. See Privilege, Black’s Law
Dictionary (11th ed. 2019) (“A privilege grants someone the
legal freedom to do or not to do a given act”). The Secretary’s right to assert
the deliberative process privilege is a separate legal issue from the
Commission’s authority to review the Secretary’s decision. Rather than serving
as a blanket prohibition against inquiry regarding the Secretary’s decision to
issue a POV Notice, it should be raised on a case-by-case basis where the issue
arises.

Nor does the privilege
eliminate all potential lines of questioning as a practical matter.

The
privilege applies to information that is deliberative and pre-decisional.[39]
See In re: Contests of Respirable Dust Sample Alteration Citations, 14
FMSHRC 987, 992-94 (June 1992). The Secretary’s decision to issue a POV
Notice is inherently a final determination rather than a pre-decisional
deliberation. More practically, an operator seeking to challenge (or a Judge
reviewing the validity of) a POV Notice will logically be most interested in
determinations reflected in that final issuance, rather than preliminary
analyses that may not have even been adopted: The details of how an MSHA
employee weighed a particular factor when considering whether to propose a mine
for POV status would be of less interest than whether the Secretary considered
that factor when she made the final decision to issue the POV Notice. While
lines of questioning may (even accidentally) stray into pre-decisional matters,
they would not naturally be the focus of review.[40]
And, as noted, in the event a line of questioning does stray into
pre-decisional deliberations, the Secretary may assert the deliberative process
privilege.

D.
Limited review by the
Commission would not unduly disrupt litigation.

The majority asserts that
Commission review of the Secretary’s decision to issue a POV Notice would
require a separate hearing, resulting in a “trifurcate[d]” proceeding and
imposing unduly burdensome procedural hurdles and delays. Slip op. at 13-15. No
such “trifurcation” has been suggested, nor is it necessary. I note that POV
litigation is already routinely bifurcated: this case was bifurcated on
September 5, 2023, with one proceeding to adjudicate the substantive citations
and one to adjudicate the POV Notice. Adjudication of a POV Notice already
permits some review of the Secretary’s rationale in deciding that a pattern of
violations exists. Brody II, 37 FMSHRC at 1928 (the Secretary is
“ordinarily required to disclose [her] theory” underlying the pattern). The
increased scope of review proposed in this opinion would merely allow an
operator to raise, and a Judge to address, limited additional arguments during
the existing POV Notice proceeding. Any “delays” arising from these
additional arguments, for example, the need to take further testimony or
address deliberative process objections, would be no more time-consuming than
normal complications arising during litigation, and would not be sufficient
justification to abrogate our responsibility of ensuring that the Secretary
abides by her binding regulations.

E.
Conclusion

The Commission’s role in Mine
Act adjudication is to render proper review of actions taken under the statute.
I would find that Commission review of the Secretary’s decision to issue a POV
Notice is authorized under the Mine Act, at least with respect to certain
procedural

requirements
that bind the Secretary’s exercise of prosecutorial discretion. Accordingly, I
respectfully dissent.

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Donna Vetrano Pryor, Esq.

Husch Blackwell LLP

1801 Wewatta Street, Suite 1000

Denver, CO 80202

[email protected]

R. Brian Hendrix, Esq.

Husch Blackwell LLP

1801 Pennsylvania Ave., NW, Suite 1000

Washington, DC 20006

[email protected]

Rebecca W. Mullins, Esq.

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Mullins.Rebecca.W.dol.gov

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Administrative Law Judge David P. Simonton

Federal Mine Safety and Health Review Commission

Office of the Chief Administrative Law Judge

721 19th Street, Suite 443

Denver, CO 80202-2500

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety and Health Review Commission

Office of the Chief
Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520 N

Washington, DC 20004-1710

[email protected]

[1] The Judge below first certified the issue, finding
that: (a) his ruling involves a controlling issue of law and (b) immediate
review will materially advance the final disposition of the proceeding. 29
C.F.R. § 2700.76(a).

[2] Section 104(e) of the Mine Act provides that “[i]f an
operator has a pattern of violations of
mandatory health or safety standards . . . 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, he shall be given written notice
that such pattern exists.” 30 U.S.C. § 814(e)(1).

[3] Section 104(e)(2) provides, in pertinent part, that
“a withdrawal order shall be issued by . . . the Secretary who finds upon any
subsequent inspection the existence in such mine of any violation of a
mandatory health or safety standard which could significantly and substantially
contribute to the cause and effect of a coal or other mine health or safety
hazard. The withdrawal order shall remain in effect until . . . such violation
has been abated.” 30 U.S.C. § 814(e)(2).

Section 104(e)(3)
provides, in pertinent part, that “[i]f, upon an inspection of the entire coal
or other mine, an authorized representative of the Secretary finds no [significant
and substantial] violations of mandatory health or safety standards . . . the
pattern of violations that resulted in the issuance of a notice under paragraph
(1) shall be deemed to be terminated and the provisions of paragraphs (1) and
(2) shall no longer apply.” 30 U.S.C. §
814(e)(3).

[4] These disasters included the Sunshine Silver Mine
where, in 1972, 91 miners died of carbon monoxide asphyxiation. At Buffalo
Creek, in 1972, 125 persons died when a dam burst. At Blacksville, in 1972,
nine miners died in a mine fire. At Scotia, in 1976, 23 miners and three
inspectors died in two explosions of accumulated methane gas. At the Potter
Tunnel mine, in 1977, nine miners died when water inundated active workings. As
the Supreme Court recognized in Thunder Basin Coal Co. v. Reich:

The House and Senate Committee Reports observed that
these accidents resulted from hazards that were remediable and that in many
cases already had been the object of repeated enforcement efforts. See
generally Leg. Hist. 362, 371, 592-93, 637. The 1972 Buffalo Creek
disaster, for example, occurred after the mine had been assessed over $1.5
million in penalties, “not one cent which had been paid.” Id. at 631. Sixty-two
ventilation violations were noted in the two years prior to the Scotia gas
explosions, but the imposed penalties failed to coerce compliance. Id.
at 629-30.

510 U.S. 200, 210 n.12 (1994).

[5] The Senate
Subcommittee on Labor stated that the “pattern of violations” authority was
intended to “to protect miners when the operator demonstrates his disregard for
the health and safety of miners . . . .” S.
Rep. No. 95-181 at 32, reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of
1977 (1978) (“Legis. Hist.”).

[6] According to 30 C.F.R. § 104.2 the eight listed
elements include:

(1) Citations for S&S violations;

(2) Orders under section 104(b) of the Mine Act for not
abating S&S violations;

(3) Citations and withdrawal orders under section 104(d)
of the Mine Act, resulting from the mine operator’s unwarrantable failure to
comply;

(4) Imminent danger orders under section 107(a) of the
Mine Act;

(5) Orders under section 104(g) of the Mine Act requiring
withdrawal of miners who have not received training and who MSHA declares to be
a hazard to themselves and others;

(6) Enforcement measures, other than section 104(e) of the
Mine Act, that have been applied at the mine;

(7) Other information that demonstrates a serious safety
or health management problem at the mine, such as accident, injury, and illness
records; and

(8) Mitigating circumstances.

[7] MSHA’s website provides the following Appendix regarding
mitigating circumstances:

For mitigating circumstances to be considered, the
mine operator will have to establish such circumstances with MSHA before the
Agency issues a POV notice. The types of mitigating circumstances that could
justify a decision to not issue a POV notice, or to postpone the issuance of a
POV notice to reevaluate conditions in the mine, may include, but are not
limited to, the following:

• An approved and implemented corrective action
program containing concrete, meaningful measures specifically tailored to
address the repeated S&S violations accompanied by positive results in
reducing S&S violations;

• A bona fide change in mine ownership that resulted
in demonstrated improvements in compliance;

• MSHA verification that the mine has become inactive;

• The amount of time the corrective action program has
been in place

• Other factors affecting the accuracy with which the
corrective-action program verifies reductions in S&S violations;

No one mitigating circumstance necessarily shall be
determinative, and all mitigating circumstances shall be weighed together on a
case-by-case basis.

Pattern of Violations Procedures Summary, MSHA (Apr. 2021), www.msha.gov/pattern-violations-pov-procedures-summary.

[8] Section 57.3200 requires that ground conditions that
create a hazard to persons shall be taken down or supported before other work
or travel is permitted in the affected area.

[9] See e.g., Citation 9674895. Sec’y Pet. Ex. A.

[10] The underlying pattern notice will automatically be terminated,
pursuant to the statute, after an MSHA inspector performs an inspection of the
mine and finds no further S&S violations. 30 U.S.C. § 814(e)(3).

[11] The Secretary’s decision to charge a mine operator
with a pattern of violations is based upon all issued citations (final
and non-final). Accordingly, at a hearing on the contest of a section 104(e)
order, the Secretary may also need to engage in associated litigation involving
contested non-final citations and orders relied upon by the Secretary in
concluding that a pattern exists. See Brody Mining, LLC, 37
FMSHRC 1914, 1929-30 (Sept. 2015) (“Brody II”).

[12] We are treating Notices of Pattern of Violations as
we would any other charging decision under the Act. In the same way, we do not
allow challenges to the Secretary’s decision-making process in issuing a 104(a)
citation, but the Secretary maintains the burden of proving the existence of a
violation.

[13] Our dissenting colleague, Commissioner Rajkovich,
makes the argument that the Commission necessarily has subject matter
jurisdiction over the Secretary’s deliberative process preceding the issuing of
the Notice of Pattern of Violations. In doing so, he mis-states the majority’s
argument as one concerning lack of subject matter jurisdiction. Slip op. at 24.
The majority repeatedly states that the Commission has jurisdiction to review
the pattern of violations once there is a final order. This jurisdiction,
however, does not extend to the Secretary’s deliberative process concerning her
prosecutorial discretion. By framing both issues as being about subject matter
jurisdiction, our dissenting colleague extends the bounds of that concept
beyond where the courts have permitted the Commission to tread.

[14] The Mine Act defines an “operator” to mean “any
owner, lessee, or other person who operators, controls, or supervises a . . .
mine or any independent contractor performing services . . . at such mine.” 30
U.S.C. § 814(a).

[15] “[W]ith respect to criminal charging decisions, the
Supreme Court has made clear that the government’s decision ‘as to whom to
prosecute’ is generally unreviewable.” Sec’y of Labor v. Twentymile Coal Co.,
456 F.3d 151, 156-57 (D.C. Cir 2006) (citing Wayte v. United States, 470
U.S. 598, 607 (1985)).

[16] Then-Judge Scalia, writing for the majority, stated
in Brock v. Cathedral Bluff’s Shale Oil Co.:

[A]n agency's exercise of its enforcement discretion
[is] . . . an area in which the courts have traditionally been most reluctant
to interfere. See, e.g., Heckler v. Chaney, 470 U.S. 821, 105
S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985); Moog Indus., Inc. v. FTC, 355
U.S. 411, 413, 78 S.Ct. 377, 379, 2 L.Ed.2d 370 (1958) (per curiam); United
States v. Leggett & Platt, Inc., 542 F.2d 655, 658 (6th Cir.1976),
cert. denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977). We think the
policies underlying that restraint 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. At the very least the
Commission [ ] must be reluctant to find a secretarial commitment to refrain
from enforcement where none clearly appears.

796 F.2d 533, 538 (D.C. Cir. Jul. 1986).

[17] We note that the Commission is expressly not bound by
the APA in conducting its review. See 30 U.S.C. § 956. Nonetheless,
Courts have previously looked to the APA for guidance in Mine Act proceedings. See
Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151, 159 (D.C. Cir.
2006) (holding that principles codified in the APA may be binding in Mine Act
proceedings, even if the APA itself is not); and Speed Mining, Inc. v.
FMSHRC, 528 F.3d 310, 316 n* (4th Cir. 2008).

[18] In his dissent, Commissioner Rajkovich states that
this is the scope of the information sought, arguing “[t]he details of how an
MSHA employee weighed a particular factor when considering whether to propose a
mine for POV status would be of less interest than whether the Secretary
considered that factor when she made the final decision to issue the POV
Notice.” Slip op. at 31. In this case, that issue has already been answered in
the affirmative. The Secretary considered the alleged mitigation submitted by
the operator.

Commissioner Althen’s
dissent appears to be built entirely around a misconception that this
information was not provided.

[19] The operator may also introduce “mitigating
circumstances” during the case on the merits before the Judge in order to rebut
the Secretary’s assertion that it acted with “disregard for the health or
safety of miners.”

[20] See Nat’l Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 661-62 (2007), citing Lopez v. Davis, 531
U.S. 230, 241 (2001) (noting Congress’ “use of a mandatory ‘shall’ . . . to
impose discretion-less obligations”); Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall’ . . . normally
creates an obligation impervious to judicial discretion”); Ass’n of Civilian
Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) (“The word ‘shall’
generally indicates a command that admits of no discretion on the part of the
person instructed to carry out the directive.”); Shall, Black’s Law
Dictionary 1375 (6th ed. 1990) (“[a]s used in statutes . . . this word is
generally imperative or mandatory”).

[21] “If, 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, or any mandatory health
or safety standard, rule, order, or regulation promulgated pursuant to this
chapter, he shall, with reasonable promptness, issue a citation to the
operator.” 30 U.S.C. § 814(a)(1).

[22] Commissioner Althen contends that the Judge here
should also determine whether 30 U.S.C. 814(e) and 30 C.F.R. § 104.2 provide
the Secretary with the authority to consider non-final violations when deciding
to issue a Pattern of Violations Notice. Slip op. at 17 n.1, 20 n.4. This issue
has previously been considered and decided by the Commission in Brody I,
36 FMSHRC at 2039-49 (“we find no abuse in the Agency's decision to rely on
non-final issuances [in deciding to issue the Notice] even though some S&S
designations may later be changed in adjudication”) (citation omitted).

[23] In his dissenting opinion, Commissioner Althen would
require the Secretary to submit her application of the pattern criteria in 30
C.F.R. § 104.2 for Commission review before permitting the Secretary to attempt
to demonstrate that an operator has engaged in a pattern of violating the Mine
Act. In effect, Commissioner Althen would flip the Secretary’s role at the
outset of a pattern hearing, requiring the Secretary to defend her
decision to issue the notice instead of prosecute, a tactic which the Supreme
Court found to be inappropriate at least in Fed. Trade Comm’n v. Standard
Oil Co. of California, 449 U.S. 232 (1980).

In seeking to require
Commission review, Commissioner Althen implies that the Secretary may have ignored
mitigating circumstances presented by Morton before deciding to issue the
notice. However, the record before us demonstrates that the Secretary
considered specific mitigating circumstances, including Morton’s change in
ownership, change in management, additional staffing, change in organizational
structure and the implementation of a corrective action program, prior to
issuing Morton a pattern notice. See Sec’y Mot. for Summ. J. Ex. A,
Attachs. 4 & 5.

[24] It is significant that the Secretary’s current
process for issuing a Pattern of Violations Notice was created, at least in
part, in reaction to an audit by the Department of Labor’s Inspector General finding
that its previous process, which included more intermediary steps (including
the so-called PPOV (“potential pattern of violation” notice)) was never
effectively implemented. See Brody I, 36 FMSHRC at 2029-30 (citing Office
of Audit, Office of Inspector General, U.S. Dep’t of Labor, Rep. No.
05-10-005-0-001, In 32 Years MSHA Has Never Successfully Exercised its Pattern
of Violations Authority (2010)) (other citations omitted).

[25] There is still room for initial review. The operator
contends that the statute and legislative rule do not permit the use of
unproven citations in considering whether a pattern of violations exist. The
Commission has previously ruled that the Secretary may use non-final citations.
Brody Mining, LLC, 36 FMSHRC 2027, 2036-47 (Aug. 2014) (“Brody I”).
At some point, that incorrect decision may become ripe for reversal by a
circuit court. It is useful, therefore, for the Judge below to determine if
removal of non-final citations would cause the Secretary’s findings to fall
below the requirements of the screening criteria thereby causing the initial
notice to fall for lack of compliance with the Secretary’s regulation when
applied only to violations.

[26] In the preamble to the publication of the final
regulation, MSHA commented that, although the Mine Act requires a pattern of
“violations,” Congress did not “explicitly” forbid use of non-final citations,
so MSHA may use non-final citations. Pattern of Violations, 78 Fed. Reg.
5056, 5060 (Jan. 23, 2023). Under the Secretary’s odd logic, if one person
tells another what he can do, that permission to perform some acts grants the
other person the right to do anything that he has not been explicitly told he
cannot do.

[27] One of the arguments between the parties in the
substantive case below involves the issue of mitigation. Section 104.2(a) of
the Secretary’s rule includes mitigation as an element for whether a pattern
exists. 30 C.F.R. § 104.2(a)(8). At least one of the operator’s arguments
against a pattern finding is that it mitigated concerns over the number of
violations or safety issues. The outcome of the mitigation issue is not before
us. Using mitigation as an example, the question in this limited case is not
whether the operator mitigated its conduct or whether the Secretary did a
sufficient job of taking mitigation into account. The Commission here is
reviewing whether the Commission may review the issuance of a notice of a
pattern of violations—that is, may the Secretary ignore the part of her
legislative rule requiring consideration of mitigation. When the case goes to
hearing, the regulation will permit the parties to introduce any evidence
bearing upon mitigation—one of the elements identified in section 104.2(a) of
the rules. Without speculating at all on any outcome, the operator may attempt
to show mitigating circumstances that offset a finding that the operator
“disregarded” miner safety. If so, then the operator is not in a pattern of
violations within the Commission’s definition. It will not be MSHA’s judgment
that controls the outcome; it will be the Administrative Law Judge’s
determination after reviewing any mitigation evidence.

[28]
As noted above, the parties dispute whether MSHA may include citations—that is,
unproven allegations—in its pattern analysis. The title of section 104(e) of
the Act is “Pattern of violations; abatement; termination of pattern.” 30
U.S.C. § 814(e). There is no reference in the Mine Act or regulations to a
pattern of “allegations.” If the Administrative Law Judge below refuses to
accept citations when the case is returned to him, then, depending upon the
facts, the POV notice may fall on summary judgment.

[29] The majority mischaracterizes many aspects of this
dissent. They say this dissent implies that the Secretary may have ignored
mitigating circumstances. Slip op. at 14-15 n. 23. This dissent is not
concerned with the facts of this case. The Commission does not consider here
whether the Secretary abused her discretion. We decide only whether the
Secretary is exempt from a review of whether she followed her own rules. The
issue of whether the Secretary complied with her rules in this particular case
is not before us.

The majority states that issuance
of a Notice of Pattern of Violations is a discretionary charging decision. See
Slip op. at 7 n.12. That is true. However, if the Secretary does not apply
the Mine Act or her own rules in making an otherwise discretionary charging
decision, the Secretary’s decision will be set aside. For example, under
section 103(j) of the Mine Act, 30 U.S.C. § 813(j), in the event of any accident in a mine, the Secretary
has the discretionary authority,
where rescue and recovery work are necessary, to take action she deems
appropriate to protect the life of any person. Such discretion may only be
exercised when rescue and recovery work is necessary. If the Secretary does not
comply with that requirement, the Commission will set aside the Secretary’s
action. Big Ridge, Inc., 37 FMSHRC 1860 (Sept. 2015).

The
majority says this dissent would require
the Secretary to submit her application of the pattern criteria for Commission
review before permitting the Secretary to attempt to demonstrate that a pattern
exists. Slip op. at 14 n. 23. This is akin to the majority’s groundless
complaint about piecemeal litigation. Slip op. at 13-15. The defenses need not
be made or considered seriatim. A defense of an abuse of discretion allegation
should not suspend discovery or other aspects of prosecuting the case.

[30] Commissioner Rajkovich demolishes the majority’s
mistaken position that the issuance of a Notice of a Pattern of Violations is
not a final decision within the meaning of the Administrative Procedure Act, 5
U.S.C. §§ 500 et seq. Slip op. at 25-26 n.4. We do not seek to embellish upon
his compelling discussion.

[31] The majority states that I frame the issue on appeal
as a matter of subject matter jurisdiction, and that I would grant the
Commission “subject matter jurisdiction over the Secretary’s deliberative
process preceding the issuing of the notice of pattern of violation.” Slip op.
at 7 n.13. To the contrary, as clearly stated above, I argue that the majority
incorrectly frames the issue as one of subject matter jurisdiction, and I
only claim for the Commission the authority to review the Secretary’s POV
issuance decision once subject matter jurisdiction over a related withdrawal
order properly attaches. I make no claims of expanded subject matter
jurisdiction.

[32] The relevant provisions of the Administrative Procedure Act were
not conceived of in “jurisdictional terms.” Califano v. Sanders, 430
U.S. 99, 106 (1977). Reviewability under the framework described herein does
not convey, or remove, subject matter jurisdiction.

[33] There is some question as to whether this presumption
of unreviewability applies to all exercises of prosecutorial discretion,
or only to decisions not to prosecute or enforce. See, e.g., Lincoln
v. Vigil, 508 U.S. 182, 191-92 (1993); Wayte v. United States, 470
U.S. 598, 607 (1985); Robbins v.
Reagan, 780 F.2d 37, 44-45 (D.C. Cir.
1985). If it is the latter, then the
Secretary’s decision to issue a POV Notice would not fall under the Heckler framework
and would be presumptively reviewable. Regardless, I would find that any
presumption of unreviewability is rebutted in this instance.

[34] The majority asserts that this framework does not
apply here because the agency action at issue is not final. Slip op. at 9-10, citing
5 U.S.C. § 704. An agency action is final if it marks the consummation of
the agency’s decision-making process and if legal consequences flow from the
action. Bennett v. Spear, 520 U.S. 154, 177-78 (1997). My colleagues
reasonably find that the Secretary’s preliminary screening, which subjects a
mine to further review and precedes the ultimate decision to issue a POV
Notice, is not a final action. However, the question before us is whether we
have “authority to review the Secretary’s decision to issue a notice of a
pattern of violations.” Slip op. at 2. The agency action at issue is the ultimate
decision to issue the notice, not the preliminary screening analysis that
precedes it. The Secretary’s decision to issue a POV Notice reflects her final
determination that a pattern exists at a mine, and subjects that mine to
enhanced penalties for future violations of mandatory health or safety
standards. 30 U.S.C. § 814(e)(1). In other words, it marks the consummation of
the decision-making process and results in legal consequences. The Secretary’s
decision to issue a POV Notice is a final agency action.

The majority appears to
directly conflate 30 C.F.R. § 104.2 with the agency action at issue. Slip op.
at 9 (“A review of section 104.2, 30 C.F.R. § 104.2, shows that it describes an
interlocutory or intermediate step . . . not the final agency action.”). As
discussed in detail below, I would find that the requirements in section 104.2
are necessary but insufficient elements of the Secretary’s decision to issue a
POV Notice. Section 104.2 provides binding norms with which the Secretary must
comply when taking the relevant final agency action, but does not fully
define the scope of that action.

[35] The Secretary
emphasizes that Congress delegated the creation of such criteria and procedures
to her. 30 U.S.C. § 814(e)(4). However, having discretion to make rules is not
the same as making a discretionary rule. See Brody I, 36 FMSHRC at
2035-36 (noting the express delegation of rulemaking authority in section
104(e)(4) and reviewing the resulting regulations under the arbitrary and
capricious standard). The question is whether the rules, once made,
impose binding norms on the Secretary’s behavior.

[36] The Secretary claims the Commission has also already
found the Secretary’s issuance of a POV Notice to be an unreviewable exercise
of prosecutorial discretion. Sec’y Br. at 9, citing Brody Mining, LLC,
37 FMSHRC 1914, 1928-29 (Sept. 2015) (“Brody II”). In context, the
Commission’s reference to prosecutorial discretion in Brody II—which we
did not call unreviewable—was simply part of a procedural discussion regarding
development of the record. More significantly, we held that the Judge had
jurisdiction to review the validity of the POV Notice and that “[t]he Secretary
is ordinarily required to disclose his theory” of the pattern. Id. at
1928-29. These are not consistent with unreviewable discretion.

[37] While the scope of our review is narrow, I would be
wary of imposing a bright line rule regarding “permissible” questions. As an
obvious example, Judges are not limited to asking solely “if” a pattern of
violations existed. Rather, the Secretary is “ordinarily required to disclose
[her] theory of how the groupings in a POV notice constitute one or more
patterns of violations.” Brody II, 37 FMSHRC at 1928. More
practically, almost any question can be phrased as a matter of if, how,
or why a choice was made, or an action taken. Rather than a list of
permissible questions, the Commission and its Judges have the authority to ask questions
as necessary to determine whether the Secretary complied with the
binding requirements in her regulations. If the Secretary believes a question
exceeds our scope of review or impinges on her deliberative process
protections, she may raise that issue on a case-by-case basis.

[38] I do not suggest that any procedural inadequacy would
inherently invalidate the resulting POV Notice. As noted, agency actions are
generally reviewable under the arbitrary and capricious standard. 5 U.S.C. §

706. If the Commission were to conduct a review and conclude that the Secretary
     failed to comply with a procedural requirement, we would then determine whether
     that failure was arbitrary and capricious. For example, if the Secretary failed
     to consider a section 104.2 factor, the POV Notice may still be valid if the
     other factors so overwhelmingly supported the issuance of a POV Notice that the
     Secretary’s decision to issue the notice was not arbitrary or capricious.

[39] There may also be an exception to the privilege “if a
party can clearly show that the decision resulted from bias, bad faith,
misconduct, or illegal or unlawful action.” Privilege – Deliberative Process
(1), Black’s Law Dictionary (11th ed. 2019).

[40] Questions
regarding the Secretary’s consideration of mitigating circumstances, as at
issue here, may be particularly likely to stray into internal deliberations
(for example, questions as to why a particular circumstance was not given more
weight). Notably, however, the Judge in this case phrased the issue as a
dispute regarding how the circumstances “factored into” the issuance of the
Notice. Order at 2 (Dec. 5, 2023). This could be interpreted as questioning the
Secretary’s post-decisional “theory of the pattern” rather than pre-decisional
deliberations. Regardless, questions regarding the Secretary’s consideration of
mitigating circumstances should not be inherently prohibited, as
consideration of mitigating circumstances is a procedural requirement in
section 104.2(a). While the Secretary’s frustration with this line of
questioning is understandable, I do not believe the Judge erred as a legal
matter in finding the Secretary’s consideration of mitigating circumstances
“material” to the case.