Secretary of Labor v. CONSOL Mining Company, LLC

Plain-English summary

CONSOL Mining Company sought dismissal of a civil penalty proceeding at the Itmann No. 5 Mine, arguing that the Mine Act gives it a Seventh Amendment right to a jury trial and that the removal protections for FMSHRC administrative law judges violate the Constitution. Judge Alan G. Paez held that FMSHRC could address the constitutional issues, treated the Mine Act penalty proceeding as within the public-rights framework reflected in Atlas Roofing, and rejected CONSOL’s argument that SEC v. Jarkesy required dismissal. He also held that the statutory removal protections for FMSHRC ALJs were constitutional on the authorities before him. Finally, he found that CONSOL had not shown compensable harm from the alleged removal restriction and denied the motion to dismiss.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815, 820, 823(b)(1), 823(b)(2), and 823(d)(1); 5 U.S.C. § 7521
• Outcome: CONSOL’s motion to dismiss was denied.
• Key point: The ALJ held that the Mine Act civil penalty case could proceed despite the operator’s constitutional challenges to jury trial and ALJ removal protections.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

SECRETARY OF LABOR,

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:    

ADMINISTRATION (MSHA),

:     Docket No. WEVA 2024-0231

Petitioner,

:     A.C. No. 46-09569-594789

:    

v.

:

:

CONSOL MINING COMPANY, LLC

Respondent.

:     Mine: Itmann No. 5

:

ORDER DENYING
RESPONDENT’S MOTION TO DISMISS

This case is before me upon the filing
of the Petition for Assessment of Civil Penalty by the Secretary of Labor
(“Secretary”) against CONSOL Mining Company, LLC (“CONSOL”) located in Wyoming,
West Virginia, before the Federal Mine Safety and Health Review Commission
(hereinafter “FMSHRC” or “the Commission”) pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, as amended (“Mine Act”), 30 U.S.C.
§ 815. On July 17, 2024, Chief Administrative Law Judge Glynn F. Voisin
assigned me this docket and attached a copy of my Prehearing Order. Counsel for
the parties have complied with my Prehearing Order and filed their initial
prehearing reports. This matter is set for a hearing to be held on September 24–25,
2025, in Beckley, West Virginia.

CONSOL filed a Motion to Dismiss on
January 6, 2025. Thereafter, on January 10, 2025, the Secretary filed an
Unopposed Motion to Extend Time to Respond to Motion Dismiss, which I granted,
extending the deadline to file a response to January 31, 2025. On January 29,
2025, the Secretary filed a Second Unopposed Motion to Extend Time to Respond
to Motion to Dismiss, which I granted, extending the deadline to file a
response to February 21, 2025. On February 6, 2025, the Secretary filed her
Opposition to Motion to Dismiss. I chose to wait until after the Supreme Court’s
recent term ended in late June, given the various constitutional issues raised
in CONSOL’s motion.

I.  PARTIES’ CONSTITUTIONAL
ARGUMENTS

CONSOL argues that it has a
constitutional right to a jury trial in the present case. (Resp’t Mot. at 3–7.)
Specifically, CONSOL asserts that like the securities penalties addressed in
the recent Supreme Court decision SEC v. Jarkesy,[1]
the civil penalties the Secretary seeks under the Mine Act are intended to
punish and deter and not to compensate the injured miner. (Resp’t Mot. at 3–4.)
Therefore, CONSOL contends that the remedies sought under the Mine Act are
“legal in nature” and accordingly trigger the Seventh Amendment right to a jury
trial. (Resp’t Mot. at 3–4.) CONSOL adds that, similar to Jarkesy, the
cause of action in this case mirrors the elements of a common law tort claim
which confirms that this proceeding implicates the Seventh Amendment. (Resp’t
Mot. at 4.) In conclusion, CONSOL argues that because it has a constitutional
right to a jury trial and the Commission has no statutory authority to impanel
a jury, this matter must be dismissed. (Resp’t Mot. 6–7.)

CONSOL also argues that the removal
restrictions for FMSHRC Administrative Law Judges (“ALJs”) violate the “take Care”
clause of the Constitution. (Resp’t Mot. at 7–9.) Specifically, CONSOL asserts
that FMSHRC ALJs are inferior officers who can only be removed by FMSHRC Commissioners
if the Merits System Protection Board (“MSPB”) finds there is good cause; FMSHRC
Commissioners may only be removed by the President for inefficiency, neglect of
duty, or malfeasance in office. (Resp’t Mot. at 9.) Accordingly, CONSOL
contends that the Supreme Court decision in Free Enterprise Fund v. Public
Co. Accounting Oversight Board [2] dictates that this
multi-layered protection against removal violates the Constitution. (Resp’t
Mot. at 8–9.) CONSOL concludes that dismissal of this case is necessary to
avoid further constitutional and jurisdictional violations. (Resp’t Mot. at 9.)

In response, the Secretary argues that I lack
the authority to hear the constitutional issues CONSOL raises in its motion to
dismiss, and thus I should deny the motion. (Sec’y Mot. at 1.) Specifically,
the Secretary argues that CONSOL’s Seventh Amendment challenge is a facial
constitutional challenge and therefore the Commission cannot decide it. (Sec’y
Mot. at 2.) In support, the Secretary cites the following language from a Sixth
Circuit decision: “[t]his administrative agency [FMSHRC], like all
administrative agencies, has no authority to entertain a facial constitutional
challenge to the validity of a law. An administrative agency may not invalidate
the statute from which it derives its existence and that it is charged with implementing.”
(Sec’y Mot. at 2 (citing Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d
669, 673 (6th Cir. 2018)).)

II.  PRINCIPLES OF
LAW

FMSHRC’s procedural rules do not specifically address
motions to dismiss. However, FMSHRC Procedural Rule 1(b) directs FMSHRC Judges
to follow the Federal Rules of Civil Procedure for matters not addressed by the
Commission’s Procedural Rules. 29 C.F.R. § 2700.1(b). Here, CONSOL’s
arguments focus on the alleged constitutional defects of the Mine Act’s
failure to provide a jury trial and the removal restrictions for FMSHRC ALJs. Federal
Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of subject-matter jurisdiction
over the subject matter” of claims asserted in the complaint. Fed. R. Civ. P. 12(b)(1).
Thus, under FMSHRC Procedural Rule 1(b) it is appropriate to look to Rule
12(b)(1) for guidance. Under Rule 12(b)(1), a claim is “properly dismissed for
lack of subject-matter jurisdiction . . . when the court lacks the statutory or
constitutional power to adjudicate” the claim. Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).

III.  ANALYSIS

A.        Whether
the Constitutionality of the Mine Act is Within the Jurisdiction of FMSHRC

The United States Court of Appeals for the Sixth
Circuit held in Jones Brothers, Inc. v. Secretary of Labor that FMSHRC,
“like all administrative agencies, has no authority to entertain a facial
constitutional challenge to the validity of a law. An administrative agency may
not invalidate the statute from which it derives its existence and that it is
charged with implementing.” Jones Bros., Inc. v. Sec’y of Labor, 898
F.3d 669, 673 (6th Cir. 2018); see also Carr v. Saul, 593 U.S.
83, 92 (2021) (holding that “agency adjudications are generally ill suited to
address structural constitutional challenges, which usually fall outside the
adjudicators’ areas of technical expertise”); Plaquemines Port, Harbor &
Terminal Dist. v. Fed. Mar. Comm’n, 838 F.2d 536, 544 (D.C. Cir. 1988)
(holding that administrative agencies are entitled to pass on constitutional
claims); Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1115 (D.C.
Cir. 1979) (holding that generally, “the constitutionality of Congressional
enactments is beyond the jurisdiction of administrative agencies”); Califano
v. Sanders, 430 U.S. 99, 109 (1977) (holding that “[c]onstitutional
questions obviously are unsuited to resolution in administrative hearing
procedures”); Matthews v. Diaz, 426 U.S. 67, 76 (1976) (holding that the
constitutionality of the Social Security Act is beyond the Secretary of Health,
Education, and Welfare’s competence); Weinberger v. Salfi, 422 U.S. 749,
765 (1975) (holding that the constitutionality of a statutory requirement of
the Social Security Act is beyond the jurisdiction of the Secretary of Health,
Education, and Welfare to determine); Johnson v. Robinson, 415 U.S. 361,
368 (1974) (quoting Oestereich v. Selective Serv. Bd., 393 U.S. 233, 242
(1968) (Harlan, J. concurring in result)) (holding that the “‘[a]djudication of
the constitutionality of congressional enactments has generally been thought
beyond the jurisdiction of administrative agencies’”). The Sixth Circuit
further held in Jones Brothers that while each of the three branches of
the federal government has an independent obligation to interpret the
Constitution, “only the Judiciary enjoys the power to invalidate statutes
inconsistent with the Constitution.” Jones Bros., Inc., 898 F.3d at 674.

However, the Supreme Court has held that the
general rule disfavoring constitutional adjudication by agencies “is not
mandatory . . . and is perhaps of less consequence where, as here, the
reviewing body is not the agency itself but an independent commission
established exclusively to adjudicate Mine Act disputes.” Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 215 (1994). The Supreme Court also noted that FMSHRC
“has addressed constitutional questions in previous enforcement proceedings.” Id.;
see KenAmerican Res., Inc., 42 FMSHRC 1, 7 (2020), aff’d on other
grounds, 33 F.4th 884 (6th Cir. 2022) (resolving constitutional challenges
raised against the enforcement of the Mine Act); Ala. By–Pro. Corp., 4
FMSHRC 2128, 2129–2130 (1982) (concluding that FMSHRC has the authority to
decide the operator’s constitutional challenge to the validity of the cited
standard); Richardson, 3 FMSHRC 8, 18–21 (1981), aff’d on
other grounds, 689 F.2d 632 (6th Cir. 1982) (holding that “the judicial
role of the Commission . . . appropriately permits the Commission to entertain
constitutional objections to the underlying statute”); Rain for Rent, 40
FMSHRC 1267, 1247–77 (2018) (ALJ), aff’d on other grounds sub nom. W.
Oilfields Supply Co. v. Sec’y of Labor, 946 F.3d 584 (D.C. Cir. 2020) (FMSHRC
ALJ addressing operator’s argument that MSHA inspector violated its Fourth
Amendment rights).

The Sixth Circuit also noted in Jones
Brothers that:

[a]gency actors must continually
interpret and apply their statutory duties in light of constitutional
boundaries . . . That ongoing duty to conform its behavior with our highest law
is inherent in and inseparable from the Executive’s obligation to “take Care
that the Laws be faithfully executed.” U.S. Const. art. II § 3. And it is
re-enforced by the oath each executive officer must stake to “to support this
Constitution.” U.S. Const. art. VI.

Jones Bros., Inc., 898 F.3d at 674–75. See also
Louis L. Jaffe, Judicial Review: Question of Law, 69 Harv. L. Rev. 239,
274–75 (1955) (noting that “the statute under which an agency operates is not
the whole law applicable to its operation. An agency is not an island entire of
itself. It is one of the many rooms in the magnificent mansion of the law. The
very subordination of the agency to judicial jurisdiction is intended to
proclaim the premise that each agency is to be brought into harmony with the
totality of the law; the law as it is found in the statute at hand, the statute
book at large, the principles and conceptions of the ‘common law,’ and the
ultimate guarantees associated with the Constitution”).

The Mine Act broadly directs FMSHRC
ALJs to “hear, and make a determination upon, any proceeding instituted before
the Commission and any motion in connection therewith, assigned to such” ALJ,
and to “make a decision which constitutes his final disposition of the
proceedings.” 30 U.S.C. § 823(d)(1). Additionally, since FMSHRC Judges swear to
uphold the Constitution, they must make determinations and decisions in
accordance with the Constitution. As FMSHRC aptly stated, it “cannot properly
fulfill [its] duty to interpret the law and to apply it constitutionally,
without at the same time deciding whether the law or a portion of it conforms
to the Constitution.” Richardson, 3 FMSHRC at 19. I therefore
reject the Secretary’s assertion that I lack the authority to decide CONSOL’s
Seventh Amendment challenge.

B.        Whether Respondent Is Entitled to a Jury
Trial

1.         The Supreme Court’s decision in
SEC v. Jarkesy

CONSOL relies on the recent Supreme Court
decision SEC v. Jarkesy to argue that because the civil penalties sought
by the Secretary under the Mine Act are “legal in nature,” the Seventh
Amendment right to a jury trial is triggered. (Resp’t Mot. at 4.) In Jarkesy,
the Supreme Court determined the issue of “whether the Seventh Amendment
entitles a defendant to a jury trial when the SEC seeks civil penalties against
him for securities fraud.” SEC v. Jarkesy, 603 U.S. 109, 120 (2024). The
Supreme Court affirmed that the Seventh Amendment right to a jury trial “extends
to a particular statutory claim if the claim is ‘legal in nature.’” Jarkesy,
603 U.S. at 122 (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,
53 (1989)). The Court held that the civil penalties sought by the SEC “are
designed to punish and deter, not to compensate” and “are therefore ‘a type of
remedy at common law that could only be enforced in courts of law.’” Jarkesy,
603 U.S. at 125 (quoting Tull v. United States, 481 U.S. 412, 422
(1987)). The Court added that “[t]he close relationship between the causes of
action in this case and common law fraud confirms” the conclusion that actions brought
by the SEC are “‘legal in nature.’” Jarkesy, 603 U.S. at 125–26 (quoting
Granfinanciera, 492 U.S. at 53).

Accordingly, the Court concluded
that because the claims at issue in Jarkesy implicate the Seventh
Amendment, a jury trial is required unless the “public rights” exception
applies. Jarkesy, 603 U.S. at 127. Under the “public rights” exception,
“Congress may assign the matter for decision to an agency without a jury,
consistent with the Seventh Amendment.” Id. The Court ultimately
concluded that the public rights exception did not apply in Jarkesy but distinguished
and affirmed its holding in Atlas Roofing Co. v. Occupational Safety and
Health Review Commission.[3] Jarkesy, 603 U.S.
at 136–40.

2.         “Public Rights”
Exception in Atlas Roofing

The initial litigation in Atlas
Roofing arose under the Occupational Safety and Health Act of 1970 (“OSH
Act”), 29 U.S.C. §§ 651–678, a federal regulatory regime created to promote
safe working conditions. Atlas Roofing Co. v. Occupational Safety &
Health Review Comm’n, 430 U.S. 442, 444–45 (1977). The OSH Act authorizes
the Secretary to promulgate safety regulations, and if a party violates the
regulations, the Secretary can impose civil penalties. Atlas Roofing Co.,
430 U.S. at 444–46. The OSH Act also empowers the Occupational Safety and
Health Review Commission (“OSHRC”) to adjudicate alleged violations. Id.

In Atlas
Roofing, the Supreme Court rejected two employers’ argument that the
adjudicatory authority of OSHRC violated the Seventh Amendment. Atlas
Roofing Co., 430 U.S. at 461. The Court explained that “Congress found the
common-law and other existing remedies for work injuries resulting from unsafe
working conditions to be inadequate to protect the Nation’s working men and
women. It created a new cause of action, and remedies therefor, unknown to the
common law,” and thus the Seventh Amendment was “no bar to . . . enforcement
outside the regular courts of law.” Atlas Roofing Co., 430 U.S. at 461. Accordingly,
the Court held that “when Congress creates new statutory ‘public rights,’ it
may assign their adjudication to an administrative agency with which a jury
trial would be incompatible, without violating the Seventh Amendment.” Atlas
Roofing Co., 430 U.S. at 455.

3.         Treatment of Atlas
Roofing in Jarkesy

In Jarkesy, the Supreme Court
affirmed its holding in Atlas Roofing, that “Congress could assign the
OSH Act adjudications to an agency because the claims were ‘unknown to the
common law,’” but held that the case did not control because the pertinent
“statutory claim is ‘in the nature of’ a common law suit.” Jarkesy, 603
U.S. at 138 (quoting Atlas Roofing Co., 430 U.S. at 453, 461). The Court
explained that, unlike the antifraud provisions the SEC enforces, the OSH Act
does “not borrow its cause of action from the common law.” Jarkesy, 603
U.S. at 136. Instead, the OSH Act simply commands that “‘[e]ach employer . . .
shall comply with occupational safety and health standards promulgated under
this chapter.’” Jarkesy, 603 U.S. at 137 (quoting 29 U.S.C. §
654(a)(2)). The Court noted that rather than reiterate common law terms of art,
the occupational safety and health standards resemble “a detailed building
code.” Jarkesy, 603 U.S. at 137.

The Court in Jarkesy
explained that the purpose of the OSH Act “was not to enable the Federal
Government to bring or adjudicate claims that traced their ancestry to the
common law,” but rather to “‘develop[] innovative methods, techniques, and
approaches for dealing with occupational safety and health problems.’ In both
concept and execution, the Act was self-consciously novel.” Jarkesy, 603
U.S. at 137 (quoting 29 U.S.C. § 651(b)(5)). The Court further emphasized that
the “novel claims in Atlas Roofing had never been brought in an Article
III court. By contrast, law courts have dealt with fraud actions since before
the founding, and Congress had authorized the SEC to bring such actions in
Article III courts and still authorizes the SEC to do so today.” Jarkesy,
603 U.S. at 140.

CONSOL argues that while the
Supreme Court did not expressly overrule Atlas Roofing in Jarkesy,
the Court indicated that it may already have been overruled by the Court’s
decision in Granfinanciera. (Resp’t Mot. at 5.) CONSOL therefore asserts
that continued reliance upon Atlas Roofing is misplaced and the “public
rights” exception cannot stand in the present case. (Resp’t Mot. at 6.) However,
the Supreme Court explicitly stated in Jarkesy that because Atlas
Roofing did not control, “we need not reach the suggestion made by Jarkesy
and Patriot28 that Tull and Granfinanciera effectively overruled Atlas
Roofing to the extent that case construed the public rights exception to
allow the adjudication of civil penalty suits in administrative tribunals.” Jarkesy,
603 U.S. at 136. Nevertheless, the Court affirmed that the “public rights”
exception applied in Atlas Roofing because actions under the OSH Act
“bring no common law soil with them.” Jarkesy, 603 U.S. at 137. Accordingly,
I give no credence to CONSOL’s argument that Atlas Roofing may have been
overruled, because the Court specifically held in Jarkesy that “Atlas
Roofing does not conflict with our conclusion.” Jarkesy, 603 U.S. at
140.

4.         Whether the “Public
Rights” Exception Applies to FMSHRC

The Mine Act is very similar to the
OSH Act. See generally Petersen, 2 FMSHRC 3404, 3407 (Nov. 1980) (ALJ)
(holding that the Occupational Safety and Health Act “is similar to the Federal
Mine Safety and Health Act of 1977”); Mellot Trucking & Supply, Inc.,
10 FMSHRC 409, 411 (Mar. 1988) (ALJ) (noting that the civil penalty proceeding
before FMSHRC “is similar to the penalty proceeding at issue in the Atlas
case before the Occupational Safety and Health Review Commission”). The Mine
Act establishes a federal regulatory regime, like the OSH Act, “to protect the
health and safety of the Nation’s coal or other miners.” 30 U.S.C. § 801(g);
compare 29 U.S.C. § 651(b) (stating purpose of OSH Act is “to assure so
far as possible every working man or woman in the Nation [has] safe and
healthful working conditions”). The Mine Act also directs the Secretary to
promulgate “improved mandatory health or safety standards for the protection of
life and prevention of injuries in coal or other mines,” and to impose civil
penalties if a party violates the regulations. 30 U.S.C. §§ 811(a), 815(a),

820. Moreover, the Mine Act empowers FMSHRC to adjudicate alleged violations,
     similar to OSHRC. 30 U.S.C. § 815(d); compare 29 U.S.C.
     § 661(e), (j). In fact, because the Secretary administers both the Mine
     Act and the OSH Act, she “determines initially whether a workplace falls under
     the jurisdiction of MSHA, rather than OSHA.” Power Fuels, LLC v. Fed.
     Mine Safety & Health Review Comm’n, 777 F.3d 214, 217 (4th Cir. 2015).

In the Mine Act’s legislative
history, Congress explained that “[t]he hazards involved with the mining of
coal and other materials and the need to provide for the health and safety of
the nation’s miners have long been a matter of Federal law.” S. Rep. No. 95–181, at 3401 (1977). Likewise,
Congress found that common-law remedies for work injuries, diseases, and deaths
resulting from unsafe working conditions in mines to be inadequate to protect
miners—the mining industry’s “most precious resource”—and instead “created a
new cause of action, and remedies therefore, unknown to the common law.” S. Rep. No. 95–181, at 3401–405 (1977);
30 U.S.C. § 801; see Atlas Roofing Co., 430 U.S. at 461. The Mine
Act, like the OSH Act, does “not borrow its cause of action from the common law,”
see Jarkesy, 603 U.S. at 136; rather, the Mine Act requires mine
operators to comply with “any mandatory health or safety standard, rule, order,
or regulation promulgated pursuant to” the Mine Act. 30 U.S.C. § 814(a).

Upon consideration of the relevant
case law, I reject CONSOL’s argument that civil penalty proceedings under the
Mine Act mirror the elements of a common law tort claim. Rather, I determine
that the Mine Act, like the OSH Act, created “a new cause of action, and
remedies therefor, unknown to the common law.” Atlas Roofing Co., 430
U.S. at 461. As such, I conclude that actions brought under the Mine Act fall
under the “public rights” exception. Accordingly, the “Seventh Amendment is no
bar” to FMSHRC, an administrative agency, adjudicating the “public rights”
created by the Mine Act. Atlas Roofing Co., 430 U.S. at 461. Hence, the
remedy sought by CONSOL—i.e., the dismissal of this proceeding to avoid further
constitutional and jurisdictional violations pursuant to Jarkesy—is
therefore unnecessary.

C.        Removal Restrictions for FMSHRC ALJs

CONSOL next relies on the Supreme
Court decision Free Enterprise Fund v. Public Co. Accounting Oversight Board
to argue that the statutory restrictions on the removal of FMSHRC ALJs are
sufficiently onerous such that they violate the “take Care” clause of the
Constitution. (Resp’t Mot. at 9.) CONSOL argues that dismissal of this case is
therefore necessary to avoid further constitutional and jurisdictional
violations. (Resp’t Mot. at 9.)

1.         The Supreme Court’s
decision in Free Enterprise Fund

In Free Enterprise Fund, the Court
considered whether “the President [may] be restricted in his ability to remove
a principal officer, who is in turn restricted in his ability to remove an
inferior officer, even though that inferior officer determines the policy and
enforces the laws of the United States.” Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 483–84 (2010). Specifically, the
Court addressed whether the removal structure of the Public Company Accounting
Oversight Board (“PCAOB” or “Board”) is constitutional. Free Enter. Fund,
561 U.S. at 484–87.

The PCAOB is composed of five
members, who are executive “‘Officers of the United States,’” and who are
appointed by the SEC. Free Enter. Fund, 561 U.S. at 484, 486 (citation
omitted). The Sarbanes-Oxley Act of 2002 “places the Board under the SEC’s
oversight.” Free Enter. Fund, 561 U.S. at 486. However, the SEC “cannot
remove Board members at will, but only ‘for good cause shown,’ ‘in accordance
with’ certain procedures,” and SEC “Commissioners cannot themselves be removed
by the President except under the Humphrey’s Executor standard of ‘inefficiency,
neglect of duty, or malfeasance in office.’” Free Enter. Fund, 561 U.S.
at 486, 487 (citations omitted).

The Court held that “the dual for-cause
limitations on the removal of Board members contravene the Constitution’s
separation of powers.” Free Enter. Fund, 561 U.S. at 492. Specifically, the
Court determined that the President cannot hold the SEC fully accountable for
the PCAOB’s conduct since the SEC cannot remove a PCAOB member at will. Free
Enter. Fund, 561 U.S. at 496. The Court held that under this removal
structure—

[n]either the President, nor anyone
directly responsible to him, nor even an officer whose conduct he may review
only for good cause, has full control over the Board. The President is stripped
of the power our precedents have preserved, and his ability to execute the
laws—by holding his subordinates accountable for their conduct—is impaired.

Free Enter. Fund, 561 U.S. at 496. Therefore,
“[w]ithout the ability to oversee the Board, or to attribute the Board’s
failings to those whom he can oversee, the President is no longer the
judge of the Board’s conduct.” Id. The Court concluded that “[b]y
granting the Board executive power without the Executive’s oversight, this Act
subverts the President’s ability to ensure that the laws are faithfully
executed—as well as the public’s ability to pass judgment on his efforts. The
Act’s restrictions are incompatible with the Constitution’s separation of
powers.” Free Enter. Fund, 561 U.S. at 498.

However, the Court also limited its holding to
the specific facts of the case. The Court distinguished the PCAOB from other
agencies, noting that—

Congress enacted an unusually high
standard that must be met before Board members may be removed. A Board member
cannot be removed except for willful violations of the Act, Board rules, or the
securities laws; willful abuse of authority; or unreasonable failure to enforce
compliance—as determined in a formal Commission order, rendered on the record and
after notice and an opportunity for a hearing.

Free Enter. Fund, 561 U.S. at 503. The Court also
noted that “the Sarbanes-Oxley Act is highly unusual in committing substantial
executive authority to officers protected by two layers of for‑cause removal—including
at one level a sharply circumscribed definition of what constitutes ‘good
cause,’ and rigorous procedures that must be followed prior to removal.” Free
Enter. Fund, 561 U.S. at 505.

Thus, the Court explicitly stated that it was
not deciding the “status of other Government employees.” Free Enter. Fund,
561 U.S. at 506. In fact, in a footnote the Court clarified that—

our holding [] does not address that
subset of independent agency employees who serve as administrative law judges .
. . Whether administrative law judges are necessarily “Officers of the United
States” is disputed . . . And unlike members of the Board, many administrative
law judges of course perform adjudicative rather than enforcement or
policymaking functions, [] or possess purely recommendatory powers.

Free Enter. Fund, 561 U.S. at 507 n.10.[4]
Hence, the Court specifically left open the question of whether two-levels of removal
protections for ALJs is constitutionally permissible. Eight years later in Lucia
v. SEC, the Supreme Court again declined to address the constitutionality
of removal protection for ALJs. See Lucia v. SEC, 585 U.S. 237,
244 n.1 (2018).

2.         Circuit Courts Split on Constitutionality
of ALJs’ Removal Restrictions

The federal courts of appeals are
divided on the constitutionality of removal provisions applicable to ALJs. The
Fifth Circuit struck down the removal restrictions for SEC ALJs, while the
Ninth, Tenth, and Sixth Circuit have upheld the constitutionality of the
removal restrictions for Department of Labor (“DOL”), Drug Enforcement Agency
(“DEA”), Consumer Product Safety Commission (“CPSC”), and Federal Deposit
Insurance Corporation (“FDIC”) ALJs.

In Decker Coal Co. v. Pehringer,
a coal operator petitioned for review of a Benefits Review Board (“BRB”) order
affirming the decision of a DOL ALJ awarding benefits under the Black Lung
Benefits Act (“BLBA”), 30 U.S.C. §§ 901–944, and argued that the removal
process for DOL ALJs is unconstitutional. Decker Coal Co. v. Pehringer,
8 F.4th 1123, 1126 (9th Cir. 2021). The Ninth Circuit ultimately held that “the
President has sufficient control over DOL ALJs to satisfy the Constitution.” Decker
Coal Co., 8 F.4th at 1133. In reaching its holding, the court distinguished
DOL ALJs from the PCAOB members in Free Enterprise Fund on four grounds.
Decker Coal Co., 8 F.4th at 1133–36. First, the court noted that
“[u]nlike the PCAOB members, who exercise policymaking and enforcement
functions,” DOL ALJs perform a purely adjudicatory function. Decker Coal Co.,
8 F.4th at 1133. Second, the court determined that Congress did not
trammel on the President’s executive power, as “[n]o statute mandates that the
DOL employ ALJs in adjudicating BLBA benefit claims.” Id. Third, the
Court noted that the BRB, the body that “hears appeals from the decisions of
ALJs in BLBA compensation cases,” provides the President with meaningful
control over DOL ALJs. Decker Coal Co., 8 F.4th at 1134. The court
explained that “all BRB members serve at the pleasure of the Secretary of Labor
[a]nd because the Secretary of Labor is subject to at-will removal by the
President . . . the President has direct control over BRB members through the
Secretary—his ‘alter ego.’” Decker Coal Co., 8 F.4th at 1135 (citation
omitted). Lastly, the court noted that the “good-cause” standard for ALJ
removal “suggests a lesser impingement on presidential authority than was
present in Free Enterprise Fund.” Decker Coal Co., 8 F.4th at
1135; 5 U.S.C. § 7521.

In Rabadi v. U.S. Drug
Enforcement Administration, the Ninth Circuit also held that the removal
protections for DEA ALJs are constitutional based on its reasoning in Decker
Coal. Rabadi v. U.S. Drug Enf’t Admin., 122 F.4th 371, 376 (9th Cir.
2024). In support, the court first noted that “DEA ALJs perform purely
adjudicatory functions.” Rabadi, 122 F.4th at 375. Second, the court
determined that “Congress does not mandate that the DEA use ALJs as presiding
officers for administrative hearings.” Id. Third, the court emphasized
that “DEA ALJ decisions are reviewed de novo by the DEA Administrator” and the
President may remove the DEA Administrator at will. Id. Additionally,
the court highlighted that “the decisions of DEA ALJs are subject to mandatory
review by the DEA Administrator.” Rabadi, 122 F.4th at 376. Thus, the
Ninth Circuit concluded that “the President can control DEA ALJs through the
DEA Administrator.” Id.

In Leachco, Inc. v. Consumer Product Safety
Commission, the Tenth Circuit held that the removal protections for CPSC
ALJs are constitutional. Leachco, Inc. v. Consumer Prod. Safety Comm’n,
103 F.4th 748, 763 (10th Cir. 2024). The Tenth Circuit found the Ninth
Circuit’s analysis in Decker Coal persuasive, as the CPSC ALJ at issue
also “performed ‘a purely adjudicatory function,’ Congress did not statutorily
require that the CPSC use ALJs for administrative adjudications, and the ‘good
cause’ standard in the provision restricting—but not precluding—ALJs’ removal
is a ‘lesser impingement’ than the standard at issue in Free Enterprise Fund.”
Leachco, Inc., 103 F.4th at 764.

Additionally, in Calcutt v.
Federal Deposit Insurance Corp., the Sixth Circuit held that the removal
restrictions for FDIC ALJs do not violate constitutional separation of powers. Calcutt
v. Fed. Deposit Ins. Corp., 37 F.4th 293, 320 (6th Cir. 2022), rev’d on
other grounds, 598 U.S. 623 (2023)). In support, the court noted that “the
FDIC ALJs perform adjudicatory functions, and they file a recommended decision
that is subject to review by the FDIC Board.” Calcutt, 37 F.4th at 319. The
court also pointed out that “the FDIC must conduct hearings ‘in accordance with
the provisions of [the APA],’ . . . and the APA permits an agency to choose
whether to preside over an adjudication itself, allow one or more members to be
presiding officers, or use an ALJ.” Id.

In contrast, the Fifth Circuit in Jarkesy v.
SEC held that “the statutory removal restrictions for SEC ALJs are
unconstitutional.” Jarkesy v. SEC, 34 F.4th
446, 463 (5th Cir. 2022), aff’d on other grounds, 603 U.S. 109 (2024)
(addressing only petitioners’ argument regarding Seventh Amendment right to jury
trial). In support, the Fifth Circuit noted that the Supreme Court “said in Myers
that ‘quasi[-]judicial’ executive officers must nonetheless be removable by the
President ‘on the ground that the discretion regularly entrusted to that
officer by statute has not been on the whole intelligently or wisely
exercised.’” Jarkesy, 34 F.4th at 464 (quoting Myers v. United States,
272 U.S. 52, 135 (1926)). The court concluded that “SEC ALJs are sufficiently
insulated from removal that the President cannot take care that the laws are
faithfully executed.” Jarkesy, 34 F.4th at 465.

3.         Removal Scheme for
FMSHRC ALJs

Section 113(b)(2) of the Mine Act
provides that the “[a]ssignment, removal, and compensation of administrative
law judges shall be in accordance with sections 3105, 3344, 5362, and 7521 of
Title 5.” 30 U.S.C. § 823(b)(2). Section 7521 of Title 5 states that the agency
which employs the ALJ may remove the ALJ “only for good cause established and
determined by the Merit Systems Protection Board on the record after
opportunity for hearing before the Board.” 5 U.S.C. § 7521. Thus, FMSHRC Commissioners
can only remove FMSHRC ALJs after the MSPB has determined that there is good
cause. Section 113(b)(1) of the Mine Act provides, in relevant part, that
“[a]ny member of the Commission may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office.” 30 U.S.C. §
823(b)(1). Similarly, members of the MSPB “may be removed by the President only
for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. §
1202(d).  

4. Whether FMSHRC ALJs are
   Officers of the United States

CONSOL argues that FMSHRC ALJs serve
sufficiently important executive functions such that they constitute “inferior
officers” of the United States. (Resp’t Mot. at 8.) Applying the reasoning of Lucia
v. SEC, the Sixth Circuit in Jones Brothers held that FMSHRC ALJs
are “inferior officers.” Jones Bros., Inc., 898, F.3d at 679. While the
Sixth Circuit decision is not binding in this case, I determine that the Sixth
Circuit’s reasoning is persuasive and accordingly concur. Since FMSHRC ALJs are
“inferior officers,” the restrictions surrounding their removal must not
unconstitutionally impair the President’s ability to “take Care that the Laws
be faithfully executed.” U.S. Const. art. II, § 3.

5. Whether the Removal
   Restrictions for FMSHRC ALJs are Constitutional

CONSOL argues that the restrictions on the
removal of FMSHRC ALJs are sufficiently onerous such that they violate the
“take Care clause” of the Constitution under Free Enterprise Fund. (Resp’t
Mot. at 8–9.) However, as previously discussed, see discussion supra
Part III.C.1, the Supreme Court explicitly stated in Free Enterprise Fund
that “our holding [] does not address that subset of independent agency
employees who serve as administrative law judges.” Free Enter. Fund,
561 U.S. at 507 n.10 (emphasis added). Contrary to CONSOL’s assertion, Free
Enterprise Fund does not dictate that the removal restrictions for FMSHRC
ALJs are unconstitutional.

In fact, more recently in Lucia
v. SEC, the Supreme Court again declined to address the constitutionality
of removal restrictions for ALJs. See Lucia, 585 U.S. at 244 n.1
(citation omitted); see also Jarkesy, 603 U.S. at 121. The Court
noted that it “ordinarily await[s] ‘thorough lower court opinions to guide our
analysis on the merits,’” but at the time of the decision no circuit court had
addressed whether the statutory restrictions on removing SEC ALJs are
constitutional. Id. As discussed above, see discussion supra
Part III.C.2, a circuit split regarding the constitutionality of removal restrictions
for ALJs has arisen since the Court decided Lucia.

However, neither the Fourth
Circuit, where CONSOL’s Itmann No. 5 mine is located, nor the D.C. Circuit[5]
have weighed in on whether the statutory removal restrictions for ALJs is
constitutional. Additionally, the Supreme Court has repeatedly told the courts
of appeals to follow extant Supreme Court precedent unless and until the Court
itself changes it or overturns it. See Mallory v. Norfolk S. Ry. Co.,
600 U.S. 122, 136 (2023) (quoting Rodriquez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989)) (holding that if a precedent of
the Supreme Court “‘has direct application in a case,’” lower courts “‘should
follow the case which directly controls,” leaving to the Supreme Court “‘the
prerogative of overruling its own decisions” and noting that “[t]his is true
even if the lower court thinks the precedent is in tension with ‘some other
line of decisions’”); see also Agostini v. Felton, 521 U.S. 203, 237
(1997) (“[w]e do not acknowledge, and we do not hold, that other courts should
conclude our more recent cases have, by implication, overruled an earlier
precedent”).

To date, the Supreme Court has not
held that the statutory removal scheme for ALJs under the Administrative
Procedures Act, 5 U.S.C. § 551, et seq. (“APA”) is unconstitutional; rather, it
has explicitly stated that its holding in Free Enterprise Fund “does not
address . . . administrative law judges.” Free Enter. Fund, 561 U.S. at
507 n.10. Thus, in accordance with the longstanding law under the APA and
current Supreme Court precedent, I conclude that the removal restrictions for
FMSHRC ALJs are constitutional.

6.         Remedy

Even if the removal scheme for FMSHRC ALJs is
unconstitutional, the remedy CONSOL requests—i.e. dismissal of its case before
me—is inappropriate. The Supreme Court’s decision in Collins v. Yellen
established that succeeding in a constitutional separation of powers challenge
to a removal provision does not by itself entitle a party to relief. Collins
v. Yellen, 594 U.S. 220, 257–60 (2021). Specifically, the plaintiffs in Collins
sought a judicial declaration invalidating prior actions by the Directors of
the Federal Housing Finance Agency (“FHFA”), whose removal restrictions the
Court determined violated the Constitution. Collins, 594 U.S. at 257. However,
the Court held that while the Act at issue unconstitutionally limited the
President’s authority to remove the FHFA Directors, “there was no
constitutional defect in the statutorily prescribed method of appointment to
that office” and “[a]s a result, there is no reason to regard any of the actions
taken by the FHFA . . . as void.” Collins, 594 U.S. at 257–58.

The Supreme Court in Collins explained
that to invalidate an agency action a plaintiff must demonstrate an
unconstitutional removal provision caused the plaintiff compensable harm—in
other words, the plaintiff must demonstrate that the unconstitutional removal
provision actually affected the agency’s decision or conduct against the
plaintiff. Collins, 594 U.S. at 259. For example, the Court suggested
that the removal provision might harm a plaintiff if the President attempted to
remove a FHFA Director “but was prevented from doing so by a lower court
decision holding that he did not have ‘cause’ for removal.” Id. Here,
CONSOL simply alleges that “[d]ismissal of this case is necessary to avoid
further constitutional and jurisdictional violations.” (Resp’t Mot. at 9.) Accordingly,
I determine that CONSOL has failed to demonstrate that the statutory
protections against my removal as a FMSHRC ALJ have caused CONSOL compensable harm.

I therefore conclude that under Collins
no relief is available to CONSOL based on its lack of showing any compensable
harm.

IV.  ORDER

Accordingly, for the reasons
discussed above CONSOL’s Motion to Dismiss is hereby DENIED.

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution (Via Electronic Mail Only):

Monica W. Hanratty, Esq. &
Mathew R. Epstein, Esq.

U.S. Department of Labor, Office of the Regional Solicitor

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103-2968

([email protected])

([email protected])              

Christopher D. Pence, Esq., Pence Law Firm PLLC

P.O. Box 2548, Charleston, WV 25329-2548

([email protected])

([email protected])

/MEK

[1] SEC v. Jarkesy, 603 U.S. 109 (2024).

[2] Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010).

[3] Atlas Roofing
Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442 (1977).

[4] Similarly, then-Judge
Kavanaugh explained the differences between ALJs and PCAOB members in his
dissent when Free Enterprise Fund was before the D.C. Circuit—

First, an agency has the choice whether to
use ALJs for hearings, see 5 U.S.C. § 556(b); Congress has not
imposed ALJs on the Executive Branch. Second, many ALJs are employees, not
officers . . . Third, ALJs perform only adjudicatory functions that are subject
to review by agency officials, see 5 U.S.C. § 557(b), and that arguably
would not be considered “central to the functioning of the Executive Branch”
for purposes of the Article II removal precedents.

Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 537 F.3d 667, 699 n.8 (D.C. Cir. 2008) (Kavanaugh,
J., dissenting) (citation omitted), aff’d in part, rev’d in part and
remanded, 561 U.S. 477 (2010).

[5] In Fleming v.
U.S. Department of Agriculture, 987 F.3d 1093, 1097–98 (D.C. Cir. 2021),
the D.C. Circuit declined to address the petitioners’ argument that the USDA
ALJs’ dual layers of protection against removal is unconstitutional, because
the petitioners failed to raise the issue before the ALJ or the Judicial Officer
and, therefore, forfeited their argument.