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Elk Run Coal Company, Inc., et al v. United States Department of Labor

August 18, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiffs are six underground coal mine operators who, among them, operate at least fourteen mines. They have brought this action against, inter alia, the Mine Safety and Health Administration, claiming MSHA has violated their constitutional rights. More specifically, Plaintiffs assert that they are being denied due process by MSHA's lack of appropriate procedures to resolve disputes over mine-ventilation plans. In now moving to dismiss the case, Defendants stress the Court's lack of jurisdiction to hear claims arising from the Federal Mine Safety and Health Act's exclusive administrative enforcement regime. Concluding jurisdiction does exist, the Court will permit certain pattern-and-practice claims to proceed, while granting Defendants' Motion in regard to Plaintiffs' facial constitutional challenge and other ancillary causes of action.

I.Factual Background

A. The Mine Act

In enacting the Federal Mine Safety and Health Act of 1977 (Mine Act), Congress declared, "[T]he first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource -- the miner," and "the existence of unsafe and unhealthful conditions and practices in the Nation's coal or other mines is a serious impediment to the future growth of the coal or other mining industry and cannot be tolerated." 30 U.S.C. §§ 801(a) and (d). Congress thus passed the Mine Act to, in part, establish "mandatory health and safety standards" and require that "each operator of a coal or other mine and every miner in such mine comply with such standards." §§ 801(g)(1)-(2).

The Mine Act "vests broad authority in the Secretary of Labor to promulgate regulations governing the mining industry and to investigate and remedy safety concerns." Kerr-McGee Coal Corp. v. Federal Mine Safety and Health Review Commission, 40 F.3d 1257, 1259 (D.C. Cir. 1995). The Act is administered by the Mine Safety and Health Administration (MSHA), a subdivision of the Department of Labor. MSHA "regulates mine operation in two ways. First, it promulgates pursuant to [30 U.S.C. § 811] regulations that establish general and mandatory standards with which all mine operators must comply. Second, it requires mine operators to compile comprehensive plans" containing individualized regulations tailored to specific components of each mine. United Mine Workers of America, Int'l Union v. Dole, 870 F.2d 662, 667 (D.C. Cir. 1989).

Among the Act's requirements are that a mine operator submit and obtain approval of a ventilation plan for each operated mine. 30 U.S.C. § 863(o). Section 863(o) provides:

A ventilation system and methane and dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine and approved by the Secretary shall be adopted by the operator and set out in printed form within ninety days after the operative date of this subchapter. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each working face, and such other information as the Secretary may require.

A mine's ventilation plan must also be reviewed by MSHA every six months. Id.

Once a mine-ventilation plan has been approved by MSHA and adopted by the mine operator, the plan becomes enforceable as a mandatory health and safety standard under the Act. Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); UMWA, 870 F.2d at 667. MSHA enforces the Act's mandatory health and safety standards through the issuance of citations that carry civil or criminal penalties. When the Secretary believes that a mine operator has violated the terms of "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).

The Mine Act also prescribes the procedures a mine operator must follow to contest the issuance of a citation or unfavorable order. See 30 U.S.C. §§ 815, 816, 823. Such disputes are adjudicated by an independent body -- the Federal Mine Safety and Health Review Commission -- created by the Act for this purpose. §§ 823, 815(d). The operator must contest the citation or order within 30 days of receiving it by notifying the Secretary. § 815(d). Upon receiving such notification, the Secretary "shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing." Id. This initial hearing may be before an administrative law judge appointed by the Commission. § 823(d). A mine operator may appeal the ALJ's decision to the Commission as a whole. Id. A mine operator "adversely affected or aggrieved by an order of the Commission issued under this chapter may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or in the United States Court of Appeals for the District of Columbia Circuit . . . ." § 816(a)(1).

While the Mine Act prescribes the enforcement and appeal procedures governing the relationship between MSHA and a mine operator operating a mine with an approved ventilation plan, the Act does not explicitly outline the procedures that govern a pre-adoption/approval dispute between a mine operator and MSHA. Perhaps in recognition of this fact, MSHA has published two documents that describe the Agency's recommended practices: the Mine Ventilation Plan Approval Handbook No. PH92-V-6 (available at and MSHA's Program Policy Manual, Reference V.G-4, Mine Plan Approval Procedures, "Contest of Mine Plan Approval Actions" (available at: (Policy Manual).

Because the existence and sufficiency of the ventilation-plan dispute-resolution process described in the Policy Manual is at the heart of the dispute in the present case, the Court will reproduce the relevant portions at some length:

In those situations when MSHA can no longer accept a provision of an approved plan, cannot approve a provision in a new plan, or cannot approve a proposed change to an approved plan, operators should be afforded the opportunity to contest MSHA's denial of approval. Where the operator disagrees with MSHA and indicates the desire to seek a citation to contest before the Federal Mine Safety and Health Review Commission, a citation should be issued.

Id. at 4. When MSHA determines that a plan is no longer adequate, it may revoke approval of the plan:

Upon revocation of approval, a citation must be issued for operating without an approved mine plan. Abatement can then be accomplished by the operator adopting a plan provision satisfying MSHA's concern. It may be appropriate for the operator to have this acceptable plan provision prepared before the citation is issued so that prompt abatement occurs. With this approach, there is no need to operate in violation of the mine's approved plan, and the violation would be "technical" in nature.


In the case of an operator-proposed change to an existing approved mine plan, if approval of the change is denied, the operator could notify the District that, as of a certain date, the mine's existing approved plan is no longer adopted by the operator, and that the operator intends to adopt the proposed change which is not approved. On that date, a 104(a) citation would be issued for the operator's failure to have and adopt an approved plan. Abatement would be achieved by the operator promptly adopting the provisions of the most recently approved plan for the mine. Again, there need not be any changes made in the actual mining procedures, and the violation would be "technical" in nature.

Id. at 4-5.

The case of a new mine plan with a provision that cannot be approved could be handled in a similar manner. The operator could indicate that mining operations will begin on a particular date, using the plan that contains the provision which is not approved. On the date indicated for starting operations, a citation would be issued for failure to adopt and follow an approved plan, as required by the applicable standard. Abatement would be achieved by the operator promptly adopting provisions that satisfy MSHA's previously documented concerns. . . .

In each of these cases, the operator would have the option of contesting the citation issued and presenting to an administrative law judge the reasons why the disputed plan provision should have been approved.


B. The Current Action

As the operators of underground coal mines, Plaintiffs are regulated by the Mine Act as enforced by the Secretary of Labor and MSHA. Compl., ¶ 2. On June 22, 2010, Plaintiffs filed this action against the Department of Labor, MSHA, and three MSHA officials in both their official and individual capacities. Id., ¶¶ 18-22. Plaintiffs assert claims under the Due Process Clause of the Fifth Amendment, the Declaratory Judgment Act, and the Administrative Procedure Act. Id., ¶ 1.

Plaintiffs' suit centers around the Mine Act's ventilation-plan approval process. Plaintiffs complain first that the Mine Act is facially unconstitutional because it "does not provide any dispute-resolution mechanism in the event an operator and MSHA cannot agree on the terms of a ventilation plan." Id., ¶ 4. "Nor does the Mine Act or regulations promulgated by MSHA set any limit on the time for MSHA to review and approve or deny a submitted ventilation plan." Id. Thus, Plaintiffs allege, "[o]perators are therefore dependent on MSHA to act objectively and in good faith in the plan-approval process. When MSHA fails to act in good faith -- either through unreasonable delay in its consideration of a ventilation plan or by conditioning approval on some demand that is not reasonably related to the safety or health of miners at the operator's mine -- an operator has no recourse under the Mine Act and is denied due process of law as guaranteed by the Fifth Amendment to the U.S. Constitution." Id.

As separate counts, Plaintiffs further allege that MSHA has applied the Act in a manner that denies them procedural and substantive due process under the Fifth Amendment. In particular, Plaintiffs contend that "Defendants have through a pattern and practice repeatedly failed to afford the Plaintiffs the process due under the Mine Act inasmuch as [they have] systematically, and without regard to the conditions and mining system of the individual mines, disapproved or failed to approve the Plaintiffs' ventilation plans unless and until the Plaintiffs have implemented the Defendants' demands that, inter alia, they not use scrubbers at their mines, [and] they only use exhausting ventilation systems . . . ." Id., ¶ 74. "Defendants have deprived the Plaintiffs of such interests without affording the Plaintiffs the necessary opportunity to be heard," which, Plaintiffs allege, "has left Plaintiffs with having to choose between refusing to implement the Defendants' demands, in which case they cannot operate and their employees must be put out of work, or implementing the Defendants' demands and obtaining approval of ventilation plans that are less protective of the safety and health of their miners." Id., ¶¶ 74-75; see also, id., ¶¶ 81-83.

Finally, Plaintiffs allege that if the Mine Act, including Defendants' enforcement of it, is constitutional, Defendants have nonetheless acted in excess of their statutory authority (and therefore ultra vires), or, in the alternative, arbitrarily and capriciously in violation of the Administrative Procedure Act. Id., ¶¶ 78, 85-86.

On August 24, 2010, Defendants filed this Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim.*fn1

II.Legal Standard

In evaluating Defendants' Motion to Dismiss, the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendants' Motions under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader"); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted).

To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of proving that the Court has subject matter jurisdiction to hear their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) ("given the present posture of this case -- a dismissal under Rule 12(b)(1) on ripeness grounds -- the court may consider materials outside the pleadings").

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.


Defendants argue as a threshold matter that Plaintiffs' Complaint must be dismissed because, under the Mine Act's exclusive administrative enforcement regime, this Court lacks jurisdiction over each of Plaintiffs' claims. Even if jurisdiction is proper, Defendants contend, Plaintiffs have failed to plead facts sufficient to survive this Motion. The Court will first address Plaintiffs' constitutional claims. Before discussing the merits, however, the Court will resolve Defendants' jurisdictional argument.

A. Due Process Claims 1. Rule 12(b)(1)

According to Defendants, Plaintiffs' claims are nothing more than pre-enforcement challenges that, under ยงยง 814, 815, and 816, are subject to the Mine Act's administrative review process and thus the exclusive initial jurisdiction of the Federal Mine Safety and Health Review Commission. Plaintiffs respond that their claims may not properly be classified as either enforcement or pre-enforcement, arguing that they "arise entirely outside ...

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