ELK RUN COAL COMPANY, INC. et al v. UNITED STATES DEPARTMENT OF LABOR et al

Filing 23

MEMORANDUM OPINION AND ORDER granting in part and denying in part 13 Motion to Dismiss. The Court ORDERS that: (1) Counts I, II, IV, and VI are DISMISSED; and (2) Defendants shall file an answer to the remaining counts on or before September 1, 2011. Signed by Judge James E. Boasberg on 8/18/2011. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELK RUN COAL COMPANY, INC., et al.,
Plaintiffs,
v.

Civil Action No. 10-1056 (JEB)

UNITED STATES DEPARTMENT OF
LABOR, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
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

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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.
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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

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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
http://msha.gov/READROOM/HANDBOOK/PH92-V-6.pdf) and MSHA’s Program Policy
Manual, Reference V.G-4, Mine Plan Approval Procedures, “Contest of Mine Plan Approval
Actions” (available at: http://www.msha.gov/REGS/COMPLIAN/PPM/PMMAINTC.HTM)
(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.
Id.
In the case of an operator-proposed change to an existing approved
mine plan, if approval of the change is denied, the operator could
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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.
Id.
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

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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.

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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.1
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).
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The Court has reviewed Plaintiffs’ Complaint, Defendants’ Motion to Dismiss, Plaintiffs’ Opposition, and
Defendants’ Reply. In addition, the Court held a hearing on July 22, 2011.

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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

8

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.
III.

Analysis
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 §§ 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 of the enforcement
scheme” and are thus not subject to the Act’s exclusive administrative review process. Opp. at 6.

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Instead of seeking this Court’s review of any particular ventilation-plan dispute, Plaintiffs
challenge the constitutionality of the administrative review process for ventilation-plan disputes
as a whole – claims over which Plaintiffs assert this Court has jurisdiction.
To determine whether a court’s jurisdiction is limited by an administrative review
process, that court must consider first, whether the statute at issue in fact provides an exclusive
administrative review scheme, and second, whether the claims at issue are of the type that
Congress intended to fall within that scheme. See Sturm, Ruger & Company, Inc. v. Chao, 300
F.3d 867, 871 (D.C. Cir. 2002) (citing Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212
(1994)). As a general matter, “when Congress creates procedures ‘designed to permit agency
expertise to be brought to bear on particular problems,’ those procedures ‘are to be exclusive.’”
Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3138, 3150
(2010) (quoting Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379
U.S. 411, 420 (1965)). As the Supreme Court reaffirmed last year, however, “[p]rovisions for
agency review do not restrict judicial review unless the ‘statutory scheme’ displays a ‘fairly
discernible’ intent to limit jurisdiction, and the claims at issue ‘are of the type Congress intended
to be reviewed within th[e] statutory structure.” Id. (quoting Thunder Basin, 510 U.S. at 207,
212 (1994) (internal citations omitted)). “Whether a statute is intended to preclude initial
judicial review is determined from the statute’s language, structure, and purpose, its legislative
history, and whether the claims can be afforded meaningful review.” Thunder Basin, 510 U.S. at
207 (internal citations omitted). Courts “presume that Congress does not intend to limit
jurisdiction if ‘a finding of preclusion could foreclose all meaningful judicial review’; if the suit
is ‘wholly collateral to a statute’s review provisions’; and if the claims are ‘outside the agency’s

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expertise.” Free Enterprise Fund, 130 S. Ct. at 3150 (quoting Thunder Basin, 510 U.S. at 212-13
(internal citations omitted)).
Neither party disputes, and the language of the statute along with the Supreme Court’s
decision in Thunder Basin make clear, that the Mine Act creates an exclusive administrative
review procedure for ordinary pre- and post-enforcement challenges to the Act. Section 814
requires the Secretary of Labor to issue a citation “with reasonable promptness” whenever he
“believes that an operator of a coal . . . mine . . . has violated this chapter, or any mandatory
health or safety standard, rule, order, or regulation promulgated pursuant to this chapter . . . .”
Upon receiving a citation, a mine operator must, within 30 days, decide whether to contest the
citation. § 815(a). After 30 days, an uncontested “citation and the proposed assessment of
penalty shall be deemed a final order of the Commission and not subject to review by any court
or agency.” Id. A mine operator wishing to contest a citation must notify the Secretary of his
intent to do so, after which “the Secretary shall immediately advise the Commission of such
notification, and the Commission shall afford an opportunity for a hearing.” § 815(d). Appeals
from the Commission are made directly to the U.S. Court of Appeals. § 816(a)(1).
In Thunder Basin, the Supreme Court considered an attempt by a mine operator to
circumvent the Mine Act’s administrative review process by seeking an injunction against
MSHA’s enforcement of § 813 before the agency issued a citation for the operator’s violation of
the Act. The Supreme Court held that “the statutory-review scheme in the Federal Mine Safety
and Health Amendments Act of 1977 . . . prevents a district court from exercising subject-matter
jurisdiction over a pre-enforcement challenge to the Act.” 510 U.S. at 202. “The Act’s
comprehensive review process does not distinguish between preenforcement and

11

postenforcement challenges,” the Supreme Court found, “but applies to all violations of the Act
and its regulations.” Id. at 208-09 (citing § 815(a)).
Not all claims relating to the Mine Act, however, necessarily fall within the Act’s
administrative review scheme. The Supreme Court reaffirmed in Thunder Basin that district
courts retain jurisdiction “over claims considered ‘wholly “collateral”’ to a statute’s review
provisions and outside the agency’s expertise, . . . particularly where a finding of preclusion
could foreclose all meaningful judicial review.” Id. at 212-13 (internal citations omitted).
A fundamental dispute in the present case is whether Plaintiffs’ claims “are of the type
Congress intended to be reviewed within [the Mine Act’s] statutory scheme,” or whether they are
wholly collateral to that scheme. Id. at 212. Defendants contend that Plaintiffs’ claims are
“garden-variety” pre-enforcement challenges to the Act and thus within the Commission’s
exclusive jurisdiction. Reply at 9. As the facts of this case should not be distinguished from
those underlying the decision in Thunder Basin, Defendants argue, this Court must similarly
dismiss Plaintiffs’ claims for want of jurisdiction.
Thunder Basin involved a dispute over § 813(f) of the Mine Act and a corresponding
regulation, which permit employees of a mine to select a representative to accompany the
Secretary of Labor during inspections of the mine and to obtain certain health and safety
information. 510 U.S. at 203. Once the mine employees designate their representative, the mine
operator is required, under 30 CFR § 40.4, to post at the mine information regarding these
designees. Id. at 203-04. When Thunder Basin Coal Company’s non-union employees selected
two non-employee members of the United Mine Workers of America as their representatives, the
Company refused to post the information about these designees. Id. at 204. The MSHA district
manager issued the Company a letter instructing it to post the miners’ designated representatives.

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Id. Before MSHA could issue a citation for the violation, the Company filed suit in U.S. District
Court seeking pre-enforcement injunctive relief, on the ground that the designation of nonemployee UMWA representatives violated the Company’s rights under the National Labor
Relations Act. Id. at 205. The Company argued that “requiring it to challenge the MSHA’s
interpretation of 30 U.S.C. § 813(f) and 30 CFR pt. 40 through the statutory-review process
would violate the Due Process Clause of the Fifth Amendment, since the company would be
forced to choose between violating the Act and incurring possible escalating daily penalties, or,
on the other hand, complying with the designations and suffering irreparable harm.” Id.
In determining that the district court lacked jurisdiction over Thunder Basin’s claim for
injunctive relief, the Supreme Court considered the legislative history of the Mine Act, with
special attention to the 1977 amendments: “Congress expressed particular concern that under the
previous Coal Act mine operators could contest civil-penalty assessments de novo in federal
district court once the administrative review process was complete, thereby ‘seriously
hamper[ing] the collection of civil penalties.’” Id. at 210-11 (citation to the Mine Act’s
legislative history omitted). “We consider the legislative history and these amendments to be
persuasive evidence that Congress intended to direct ordinary challenges under the Mine Act to a
single review process.” Id. at 211 (emphasis added).
The procedural posture of Plaintiffs’ claims can be distinguished from Thunder Basin’s
claim for injunctive relief. Sections 814 and 815 provide that mine operators who violate the Act
receive citations that they must contest, if at all, before the Commission. As Plaintiffs point out,
they have not committed a violation of the Act at all, let alone received a citation for violating it.
See Opp. at 11. They will not, consequently, receive the citation that would allow them access to
the Commission and the hearing that they seek, thus foreclosing “‘meaningful judicial review.’”

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Thunder Basin, 510 U.S. at 213 (quoting McNary v. Haitian Refugee Center, Inc., 498 U.S. 479,
496 (1991)). Defendants argue that all Plaintiffs need do to receive a hearing is to ask for a
citation; such “technical violation” of the Act would, according to them, trigger the
Commission’s jurisdiction. Mot. at 18. This implies that Plaintiffs’ suit here refers to particular
unresolved disputes or redress for a specific mine-ventilation plan. On the contrary, through
Counts I, III, and V, Plaintiffs ask the Court not to resolve individual plan disputes, but to answer
broad constitutional questions about whether the Commission’s review process itself affords
them the process they are due under the Fifth Amendment. As Plaintiffs do not contest any civil
penalty or order of the Agency, furthermore, this Court’s review of Plaintiffs’ constitutional
claims would not hamper the collection of civil penalties or the Agency’s enforcement of the
Act.
A finding of jurisdiction, moreover, would be consistent with decisions since Thunder
Basin from the Supreme Court and our Court of Appeals, which have upheld district court
jurisdiction over broad constitutional challenges to other statutes with exclusive administrative
enforcement regimes. While the outcomes in cases like these rest largely on the language of the
statutes at issue, the precedents are nevertheless instructive.
Free Enterprise Fund presented a clear example of a “wholly collateral” challenge to the
Sarbanes-Oxley Act of 2002. 130 S. Ct. 3138. That act created the Public Company Accounting
Oversight Board, comprised of members appointed by the Securities and Exchange Commission,
with broad administrative and enforcement powers to, for example, promulgate rules, conduct
investigations, initiate disciplinary proceedings, and impose sanctions for violations of the
Securities Exchange Act of 1934. See id. at 3147-48. The Sarbanes-Oxley Act also established
an administrative review structure that empowered the SEC to review Board-issued rules and

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sanctions. See id. at 3150. Final orders of the Commission could be appealed directly to the
federal courts of appeals. Id. Free Enterprise Fund challenged the Sarbanes-Oxley Act on the
grounds that it contravened separation of powers by conferring wide-ranging executive power on
Board members without subjecting them to Presidential control and that it violated the
Appointments Clause of the Constitution. Id. at 3149.
The government argued lack of jurisdiction, claiming that Free Enterprise Fund should
have challenged the constitutionality of the Board by seeking Commission review of “the
Board’s ‘auditing standards, registration requirements, or other rules,’” or by incurring a sanction
by ignoring Board requests for documents and testimony in order to appeal the sanction to the
Commission. Id. at 3150-51. In upholding district court jurisdiction, the Supreme Court rejected
both of the government’s suggestions, observing that Free Enterprise Fund “object[s] to the
Board’s existence, not to any of its auditing standards” and concluding that its “general challenge
to the Board is ‘collateral’ to any Commission orders or rules from which review might be
sought.” Id. at 3150. The Court further found, “[W]e do not consider this a ‘meaningful avenue
of relief,’” noting, “We normally do not require plaintiffs to ‘bet the farm . . . by taking the
violative action’ before ‘testing the validity of the law.” Id. at 3151 (quoting MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 129 (2007)).
General Electric Company v. EPA, 360 F.3d 188 (D.C. Cir. 2004) (GE I), involved a
challenge to the Comprehensive Environmental Response, Compensation, and Liability Act’s
(CERCLA) unilateral administrative order (UAO) regime, through which the EPA can order a
potentially responsible party to clean up a hazardous site, without benefit of a pre-clean-up
hearing and with sanctions for noncompliance, and only afterward seek to recoup its costs. Id. at
189-90. CERCLA § 113(h) “divests federal courts of jurisdiction to entertain ‘any challenges to

15

removal or remedial action selected [by the EPA under CERCLA § 104] or to review any order
issued under [§ 106(a)].” Id. at 191 (quoting 42 U.S.C. § 9613(h)). GE sought a “declaratory
judgment that the provisions of CERCLA relating to the unilateral administrative orders regime,
namely §§ 106(a), 107(c)(3), and 113(h), are unconstitutional under the Due Process Clause of
the Fifth Amendment.” Id. at 190. GE alleged that “the combination of the absence of preenforcement review and massive penalties for noncompliance with a UAO ‘imposes a classic
and unconstitutional Hobson’s choice: Either do nothing and risk severe punishment without
meaningful recourse or comply and wait indefinitely before having any opportunity to be heard
on the legality and rationality of the underlying order.’” Id.
The D.C. Circuit found that the language of § 113(h) did not bar GE’s challenge to
CERCLA in district court. Id. at 191. In enacting § 113(h), Congress, the court found, had only
limited federal court jurisdiction over two enumerated types of claims – challenges to § 104
actions and § 106 orders. Id. The court concluded: “GE’s due process challenge to CERCLA’s
administrative orders regime is not a challenge to the way in which EPA is administering the
statute in any particular removal or remedial action or order, but rather is a challenge to the
CERCLA statute itself. As such, GE’s facial constitutional challenge does not fit within the
plain text of § 113(h)’s reference to ‘any challenges . . . .’” Id. (emphasis added).
In finding the district court had jurisdiction over GE’s facial constitutional challenge, the
D.C. Circuit went further, opining, “Even if § 113(h) were ambiguous regarding constitutional
challenges, our holding that GE’s constitutional challenge is not barred by § 113(h) would
comport with precedent distinguishing between facial, or ‘systematic,’ and as-applied, or
particularized challenges.” Id. at 192 (citing Johnson v. Robison, 415 U.S. 361, 373-74 (1974)

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(provision barring review of individual veterans’ benefit determinations did not bar
constitutional challenge to statute itself)).
In General Electric Company v. Jackson, 610 F.3d 110 (D.C. Cir. 2010) (GE II), the D.C.
Circuit expanded its ruling in GE I to include GE’s “pattern and practice” claim – that “EPA’s
policies and procedures for issuing UAOs exacerbate CERCLA’s constitutional deficiencies.”
Id. at 116. The D.C. Circuit drew its distinction between “collateral and particularized claims.”
Id. at 126. The court wrote: “Section 113(h) is quite clear: it only prohibits district courts from
reviewing UAOs before enforcement or reimbursement proceedings have been initiated.
Nothing in the provision bars a pattern and practice challenge that seeks no relief with respect to
any particular UAO. To be sure, as EPA emphasizes, the district court did calculate a UAO error
rate. But significantly for the section 113(h) issue before us, GE sought no relief with respect to
individual UAOs, nor did the district court grant any.” Id. at 125.
GE II, the D.C. Circuit found, was controlled by the Supreme Court’s decision in
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991). Id. at 125. In McNary, the
Supreme Court held that “the plain language of the immigration statute [at issue] – which barred
review ‘of a determination respecting an application’ for special agricultural worker (SAW)
status, 8 U.S.C. § 1160(e)(1) – referred only to judicial review of ‘a single act rather than . . . a
practice or procedure employed in making decisions’ . . . . Thus, although the statute prohibited
courts from reviewing denials of individual applications for SAW status, district courts could
nonetheless consider ‘general collateral challenges to unconstitutional practices and policies used
by the agency in processing applications.’” Id.
The D.C. Circuit rejected EPA’s reading of McNary to require that “plaintiffs like GE
who seek to bring pattern and practice challenges first show that the statute provides no

17

meaningful judicial review for their claims.” Id. at 125. “Properly read,” the court concluded,
“McNary’s conclusion that the immigration statute’s jurisdiction-stripping provision presented
no bar to a pattern and practice suit did not depend on the unavailability of alternative means of
judicial review. Instead, it rested entirely on the Court’s analysis of the jurisdictional provision’s
text: ‘Given Congress’ choice of statutory language, we conclude that challenges to the
procedures used by INS do not fall within the scope of [the jurisdictional bar]. Rather, we hold
that [that provision] applies only to review of denials of individual SAW applications.’” Id. at
126.
Plaintiffs are correct that their constitutional due process claims in the present case, like
those in Free Enterprise Fund, McNary, and GE I and II, present broad facial and systemic
challenges that fall outside the Mine Act’s statutory review scheme. Section 815 describes the
review procedure a mine operator must follow to contest “the issuance or modification of an
order[,] . . . citation[,] . . . notification of proposed assessment of a penalty[,] . . . or the
reasonableness of the length of abatement time fixed in a citation,” in connection with a
“violation” of the Act. Nothing in the language of §§ 814, 815, 816, or 823 precludes broad
constitutional due process challenges to the facial validity of the Mine Act’s procedures for
adjudicating ventilation-plan disputes, or to MSHA’s polices and practices for administering
these procedures, divorced from any individual ventilation-plan dispute.
For these reasons, the D.C. Circuit’s decision in Sturm, Ruger & Company, Inc. v. Chao,
300 F.3d 867 (D.C. Cir. 2002), provides Defendants no support. Sturm Ruger involved the
comprehensive administrative review structure created by the Occupations Safety and Health Act
(OSHA). OSHA propounded a survey designed to collect information about workplace health
and safety, which Sturm Ruger completed. Id. at 869. Based on the information provided in the

18

survey, OSHA sent inspectors to a Sturm Ruger facility, where they were denied entrance. Id.
OSHA obtained a warrant and later issued Sturm Ruger citations for violations of safety and
health standards discovered during the ensuing inspection. Id. Sturm Ruger challenged the
citations through OSHA’s administrative review scheme and moved to suppress the evidence
obtained during the inspection, “arguing that no regulation authorized OHSA to collect the
survey data that it used to target employers for inspection, and that the use of the data violated
the Fourth Amendment.” Id. at 870. While Sturm Ruger’s administrative challenge was still
pending before the Occupational Safety and Health Review Commission, the company filed a
parallel action in federal district court seeking “both a declaratory judgment and an injunction
barring OSHA from compelling compliance with the DCI survey, from conducting inspection
programs that rely on survey data, and from ‘pursuing enforcement proceedings under the
unlawful targeting inspection programs.’” Id. (citation omitted).
Significantly and unlike Plaintiffs in the present case, Sturm Ruger did “‘not suggest[]
that its claims [could not] be adequately adjudicated in the . . . anticipated enforcement
proceeding.’” Id. at 869. Instead, like Thunder Basin, the D.C. Circuit found that Sturm Ruger
sought to short-circuit the administrative process through the vehicle of a district court
complaint. Id. at 876 (distinguishing Sturm Ruger from National Mining Ass’n v. Department of
Labor, 292 F.3d 849 (D.C. Cir. 2002), holding that, notwithstanding the rule of Thunder Basin, a
district court had jurisdiction to hear a “generic” challenge to regulations issued under the Black
Lung Benefits Act).
In finding jurisdiction here, the Court does not deny that the Commission may
occasionally address constitutional questions in individual enforcement proceedings, see
Thunder Basin, 510 U.S. at 215, such as where a mine operator contests a citation on the ground

19

that the regulation he was cited for violating was unconstitutional. In addition, the presence of a
constitutional claim alone will not convert an enforcement dispute under the Mine Act into a
federal case. The Supreme Court in Thunder Basin, however, was careful to note that “petitioner
expressly disavows any abstract challenge to the Mine Act’s statutory review scheme, but limits
its due process claim to the present situation where the Act allegedly requires petitioner to
relinquish an independent statutory right.” Id. at 218 n.22.
Unlike Sturm Ruger and Thunder Basin, Plaintiffs in the present case, through their facial
and pattern-and-practice due process claims, present broad, systemic constitutional challenges to
the Mine Act and MSHA’s administration of it that are not tied to any individual enforcement
challenges and through which Plaintiffs do not seek redress for any individual ventilation-plan
disputes. The language of the statute does not prohibit Plaintiffs from bringing these claims in
this Court; they are not claims of the type that Congress intended to be heard exclusively through
the Mine Act’s administrative review process; and, if Plaintiffs are correct that the Mine Act
provides no dispute-resolution process when their ventilation-plan negotiations are at an impasse,
they are claims for which Plaintiffs will be denied all judicial review if this Court lacks
jurisdiction. As a result, jurisdiction over Plaintiffs’ constitutional challenges in Counts I, III,
and V is proper. The Court will now turn to the merits of those claims.
2.

Rule 12(b)(6)

In addition to contesting jurisdiction, Defendants have also vigorously disputed the merits
of Plaintiffs’ constitutional claims. Plaintiffs here have brought both a facial constitutional
challenge, as well as as-applied or pattern-and-practice challenges. The Court will consider them
separately.

20

a.

Facial Challenge (Count I)

Although the parties did not agree whether jurisdiction was proper here, they do concur
that if jurisdiction exists for Count I – Plaintiffs’ facial constitutional challenge to the Mine Act –
the question is now ripe for this Court’s review and no discovery is necessary. Hearing Tr. at
11:24-25. Plaintiffs’ facial challenge is brought under the Fifth Amendment and asserts a denial
of procedural due process. More concretely, Plaintiffs point to the absence of dispute-resolution
procedures for ventilation-plan disputes.
A “‘facial challenge to a legislative Act is, of course, the most difficult challenge to
mount successfully.’” GE II, 610 F.3d at 117 (quoting United States v. Salerno, 481 U.S. 739,
745 (1987)). “Although the precise standard for facial challenges remains ‘a matter of dispute,’
United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 1587 (2010), to prevail [a plaintiff] must
establish either ‘“that no set of circumstances exists under which [the Mine Act’s disputeresolution procedures] would be valid,” or that [those provisions] lack [ ] any “plainly legitimate
sweep.”’” Id. (quoting Salerno, 481 U.S. at 745, and Washington v. Glucksberg, 521 U.S. 702,
740 n.7 (1997) (Stevens, J., concurring in the judgments) (citations omitted)).
The Due Process Clause of the Fifth Amendment mandates, “No person shall . . . be
deprived of life, liberty, or property, without due process of law.” The first inquiry in every due
process challenge is “whether the plaintiff has been deprived of a protected interest in ‘liberty’ or
‘property.’ Only after finding the deprivation of a protected interest do we look to see if the
[government’s] procedures comport with due process.’” GE II at 117 (quoting Amer. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). At this second step, “we apply the now-familiar
Matthews v. Eldridge balancing test, considering (1) the significance of the private party’s
protected interest, (2) the government’s interest, and (3) the risk of erroneous deprivation and

21

‘the probable value, if any, of additional or substitute procedural safeguards.’” Id. (quoting
Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).
The parties hotly contest the question of whether Plaintiffs have adequately pled a
protected property interest. In their Complaint, Plaintiffs allege: “When in the course of a
ventilation plan approval process MSHA refuses to approve the Plaintiffs’ ventilation plans, or
conditions approval of such plans on arbitrary grounds, the Plaintiffs are deprived of their
constitutionally protected interests in a safe and healthy workforce, the economic viability of
their operations, and the right to develop and implement ventilation plans suitable to their
particular mine.” Compl., ¶ 61. Although the Supreme Court has suggested that mine operators
may possess some private property interests, see Thunder Basin, 510 U.S. at 217 n.21, as in other
highly regulated industries, “Congress’ interest in regulating the mining industry may justify
limiting the private property interests of mine operators.” Id.
The Court need not decide now whether Plaintiffs have in fact suffered a deprivation of a
protected property interest. Even if they could so prove, they cannot show that there exists no set
of circumstances in which the government’s procedures for resolving and reviewing mineventilation-plan disputes comport with due process.
In Count I, Plaintiffs allege one primary due process deficiency with the Mine Act’s
ventilation-plan approval process – namely, that the “Mine Act does not provide for any disputeresolution procedure with respect to ventilation plan approvals in the event the Plaintiffs and
MSHA reach an impasse regarding one or more plan provisions[,] . . . or MSHA refuses to
approve a submitted plan or adopts an arbitrary position with respect to the plan that is based on
generic beliefs unrelated to the specific conditions or mining system at the mine . . . .” Compl., ¶
62.

22

Defendants dispute Plaintiffs’ assertion that mine operators have access to no disputeresolution process to redress their grievances stemming from MSHA’s conduct during the
ventilation-plan approval process. When a mine operator and MSHA “reach an impasse
concerning one or more ventilation plan provisions[,] . . . the operator may initiate the
administrative review process [§§ 815 and 816] by refusing to adopt the plan and requesting that
the Secretary issue a citation for what is known as a ‘technical violation.’” Mot. at 5. By
seeking a “technical citation” from the agency, Plaintiffs can convert a dispute over a mineventilation plan into an enforcement action in order to obtain administrative and, eventually,
judicial review.
Plaintiffs respond that the “technical violation” avenue to review in ventilation-plan
disputes is “a fiction” that cannot provide meaningful relief. Opp. at 23-24. They suggest three
primary arguments for why MSHA’s technical-violation review procedures fail to comport with
due process. First, Plaintiffs argue that because the Mine Act itself does not explicitly authorize
the Commission to hear ventilation-plan disputes, these disputes are outside the Commission’s
jurisdiction. Id. at 26. Plaintiffs “recognize that the Commission has, on occasion, assumed
jurisdiction over ‘plan disputes’ through the ‘technical violation’ process described by MSHA.”
Id. (citing C.W. Mining, 18 FMSHRC 1740, 1747 (Oct. 1996)). “But that only means,”
Plaintiffs argue, that “the practice has not been subjected to judicial scrutiny.” Id. Here
Plaintiffs are wrong.
Although not explicitly considering whether they comport with the Due Process Clause,
the D.C. Circuit has referred with approval to MSHA’s ventilation-plan approval and review
procedures, and, describing the path to administrative review very like MSHA’s “technical
violation” option, determined that the Mine Act strikes an appropriate balance in ventilation-plan

23

negotiations between a mine operator and MSHA. In Zeigler Coal Co., that court considered
whether permitting MSHA to enforce ventilation plans as mandatory health and safety standards
would allow the Agency to circumvent the rigorous procedures it must follow under § 101 to
pass such standards. In other words, the Plaintiff there challenged MSHA’s ability to simply
insist on the inclusion of the new standards in the various mine plans operators must adopt. 536
F.2d at 407. The D.C. Circuit dismissed the plaintiffs’ fears of “mine inspectors run riot,
ignoring the § 101 procedures and simply insisting that newly formulated standards be included
in one or another of the plans each operator must adopt.” Id. at 406. “Because we read the
statute as placing quite narrow limits on the subject matter properly treated in ventilation plans,
and because the operator has a mechanism available to assure that plans do not exceed these
limits, we conclude that enforcing duly adopted ventilation plans poses no threat to the continued
vitality of § 101.” Id. (emphasis added).
The Zeigler Court described the limits on MSHA’s control over the content of mineventilation plans, as well as an appeal mechanism like the one Defendants point to in the present
case: “While the plan must also be approved by the Secretary’s representative, who may on that
account have some significant leverage in determining its contents, it does not follow that he has
anything close to unrestrained power to impose terms. For even where the agency representative
is adamant in his insistence that certain conditions be included, the operator retains the option to
refuse to adopt the plan in the form required.” Id. at 406-07. “The agency’s recourse to such a
refusal to adopt a particular plan appears to be the invocation of the civil and criminal penalties
of [§ 814], which require an opportunity for public hearing and, ultimately, appeal to the courts.”
Id. at 407. An “[a]ttempted inclusion of [particular plan provisions] could be successfully
contested by the operator in an enforcement action brought by the Secretary.” Id. “Thus an

24

operator might contest an action seeking to compel adoption of a plan, on the ground that it
contained terms relating not to the particular circumstances of his mine, but rather imposed
requirements of a general nature which should more properly have been formulated as a
mandatory standard, under the provisions of [§ 811].” Id.
While Zeigler supports Defendants’ argument that there has been judicial scrutiny,
Defendants also maintain that current practice demonstrates that due process is afforded. They
point to numerous cases before the Commission and on appeal before the D.C. Circuit, in which
parties followed MSHA’s recommended course of action in this case: incurring a citation for
operating a mine without an approved plan for just long enough to contest the resulting citation
and then seeking relief in the underlying plan dispute from the Commission.
For example, in Secretary of Labor v. Carbon County Coal Co., 7 FMSHRC 1367 (1985),
the Commission observed:
The requirement that the Secretary approve an operator’s mine
ventilation plan does not mean that an operator has no option but to
acquiesce to the Secretary’s desires regarding the contents of the
plan. Legitimate disagreements as to the proper course of action are
bound to occur. In attempting to resolve such differences, the
Secretary and an operator must negotiate in good faith and for a
reasonable period concerning a disputed provision. Where such
good faith negotiation has taken place, and the operator and the
Secretary remain at odds over a plan provision, review of the
dispute may be obtained by the operator’s refusal to adopt the
disputed provision, thus triggering litigation before the
Commission.
Id. at 1371. The Commission there reviewed the facts of the parties’ negotiations, the
ventilation-plan proposals, and the particular circumstances present at the mine in question,
ultimately determining that “MSHA’s decision . . . was not based upon particular circumstances
at the [mine], but rather was imposed as a general rule applicable to all mines.” Id. at 1375.
Thus, the Commission found, “MSHA’s insistence upon the [additional] provision, MSHA’s
25

revocation of Carbon County’s ventilation plan, and MSHA’s subsequent citation of Carbon
County for a violation of section 75.316 were not in accord with applicable Mine Act
procedure.” Id.
Similarly, in Secretary of Labor v. Peabody Coal Co., 18 FMSHRC 686 (1996), when the
Secretary refused to approve a ventilation plan for Peabody’s mine that did not contain a
particular provision, Peabody apparently continued to operate its mine without an approved plan.
Id. at 687-88. MSHA then issued Peabody a citation for so operating. Id. at 688. Peabody
“submitted, under protest, a plan containing the provision required by the Secretary” and then
“filed a notice of contest and a hearing was held.” Id. The Commission concluded that
“substantial record evidence supports the [administrative law] judge’s finding that the previously
approved plan was unsuitable and the new provision was suitable to conditions at the Martwick
Mine.” Id. at 691.
Peabody appealed the Commission’s ruling to the District of Columbia Circuit. Peabody
Coal Co. v. Federal Mine Safety and Health Review Commission, 111 F.3d 963 (D.C. Cir.
1997). The D.C. Circuit described the posture of the case thus: “Petitioner Peabody Coal
Company seeks review of the decision of the Federal Mine Safety and Health Review
Commission accepting the Mine Safety and Health Administration’s decision not to approve any
ventilation plan for the Martwick mine . . . that did not provide for ventilation during roof
bolting.” Id. at 963. Peabody alleged that “the MSHA imposed this requirement without
affording adequate consideration to whether the requirement is ‘suitable’ to the particular
conditions in the mine[, and] . . . contend[ed] that the agency instead based its decision upon
conditions and considerations that are common to all mines and should therefore have initiated a
rulemaking.” Id. The D.C. Circuit observed that “the MSHA is free to regulate in an

26

adjudicatory proceeding a risk that may be common to a large number of mines provided that an
identifiable attribute of the particular mine being regulated is shown to give rise to that risk,” and
applied the APA, 5 U.S.C. § 706(2)(A), to find that MSHA did not act arbitrarily or capriciously
when deciding to apply that requirement to Peabody’s mine. Id. The D.C. Circuit’s decisions in
Zeigler and Peabody thus indicate that the Commission can and does hear mine-ventilation-plan
disputes in the context of enforcement actions.
Plaintiffs’ second argument relates to the manner in which disputes are resolved. They
argue that they cannot be required to violate the law – as they must at least declare their intent to
do in order to receive a citation under MSHA’s “technical violation” procedures – so that they
may get their grievance heard by the Commission. Opp. at 24 (citing Free Enterprise Fund, 130
S. Ct. at 3150). Free Enterprise Fund, Plaintiffs argue, stands for the proposition that an
administrative regime that requires them to incur a citation in order to challenge the validity of a
statute does not afford meaningful review. Id.; 130 S. Ct. at 3150-51 (quoting MedImmune, Inc.,
549 U.S. at 129; Thunder Basin, 510 U.S. at 212)).
In MedImmune Inc., the Supreme Court explained: “Our analysis must begin with the
recognition that, where threatened action by government is concerned, we do not require a
plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat –
for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action
(or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but
nonetheless does not eliminate Article III jurisdiction.” 549 U.S. at 128-29 (emphasis deleted).
Free Enterprise Fund and MedImmune derive from the Supreme Court’s long standing
holding in Ex Parte Young, 209 U.S. 123 (1908). “Under Ex Parte Young and its progeny, a
statutory scheme that imposes penalties on those seeking judicial review is unconstitutional if

27

‘the penalties for disobedience are by fines so enormous . . . as to intimidate the company and its
officers from resorting to the courts to test the validity of the legislation.’” General Electric Co.
v. Jackson, 595 F. Supp. 2d 8, 17 (D.D.C. 2009) (quoting 209 U.S. at 147). “Statutes prescribing
significant penalties for violators are not per se unconstitutional, however. Rather, if a party
challenging a penalty or a statute in ‘good faith’ may not be penalized, then the statute may be
constitutional under Ex Parte Young.” Id. (citing Reisman v. Caplin, 375 U.S. 440, 446-47
(1964)).
In the present case, Ex Parte Young does not render MSHA’s technical-violation review
process for mine-ventilation-plan disputes unconstitutional. Plaintiffs conceded that for a mine
operator who obtains a technical citation to obtain review of a plan dispute, but ultimately loses
before the Commission and the Court of Appeals, because “it’s been a cooperative process [with
MSHA], the penalties probably usually are fairly small. It is not meant to be punitive.” Hearing
Tr. at 9:6-9. Plaintiffs do not suggest that, for those mine operators who succeed in obtaining
technical violations, “the penalties for [refusing to adopt MSHA’s suggested plan provisions] are
by fines so enormous . . . as to intimidate the company” from seeking review. Ex Parte Young,
209 U.S. at 147.
But even if the fines were sufficiently large to raise concerns under Ex Parte Young, as
Plaintiffs suggest they might be if the citation is not for a “technical violation,” but rather for an
intentional violation of the Mine Act, the Supreme Court in Thunder Basin explicitly addressed
and dismissed this concern on the ground that the statute afforded mine operators sufficient
procedural safeguards. See 510 U.S. at 218. The Thunder Basin Court first explained the
procedures in that case:
Nor will petitioner face any serious prehearing deprivation if it
refuses to post the designations while challenging the Secretary’s
28

interpretation [of § 813]. Although the Act’s civil penalties
unquestionably may become onerous if petitioner chooses not to
comply, the Secretary’s penalty assessments become final and
payable only after full review by both the Commission and the
appropriate court of appeals. 30 U.S.C. §§ 820(i) and 816. A mine
operator may request that the Commission expedite its proceedings,
§ 815(d), and temporary relief of certain orders is available from the
Commission and the court of appeals. §§ 815(b)(2) and 816(a)(2).
Id. at 217-18. The Supreme Court then concluded, “[T]his case does not present the situation
confronted in Ex Parte Young, . . . in which the practical effect of coercive penalties for
noncompliance was to foreclose all access to the courts. Nor does this approach a situation in
which compliance is sufficiently onerous and coercive penalties sufficiently potent that a
constitutionally intolerable choice might be presented.” Id. at 218. It is equally true in this case
that the technical-violation citation procedure does not result in coercive penalties or deprive
Plaintiffs of court access.
Plaintiffs’ third and final complaint is that the technical-citation process is found only in
MSHA’s policy guidelines and is not codified in any statute or regulation; it is thus not binding
on the Agency. Opp. at 27 (citing Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537
(D.C. Cir. 1986)). Given its non-binding status, Plaintiffs assert that they cannot rely on the
technical-citation procedure as an avenue of review. Id. Because “MSHA will only issue a
citation for a ‘technical violation’ if it agrees with the operator that negotiations are at an
impasse,” a mine operator cannot always reach the Commission in an expeditious manner
without incurring steeper penalties for a “willful” violation. Id. at 28-29.
This argument, however, does not belong in Plaintiffs’ facial challenge, as it raises
factual questions about how the Agency actually administers the Mine Act – questions that are
more properly considered in an as-applied challenge. Plaintiffs must show that “no set of
circumstances exists” in which the Mine Act’s review procedures for ventilation-plan disputes
29

are constitutional; as such, they cannot carry their burden by proving that in some circumstances
MSHA refuses to follow its policy of giving citations for “technical violations” or prevents a
mine operator from timely reaching the Commission.
Because the Court therefore finds that the Mine Act is facially constitutional, Count I will
be dismissed.
b.

Pattern-and-Practice Challenge (Counts III and V)

Although the Court finds that the Mine Act is facially constitutional, Plaintiffs maintain,
in the alternative, that MSHA has a pattern and practice of administering the Act in such a way
as to deny them procedural and substantive due process. Plaintiffs identify these claims as asapplied constitutional challenges, but stress that they are “broader than just a single one-off plan
dispute,” and instead concern “how the agency interfaces with the regulated community”
“consistently throughout dealings with plan disputes.” Hearing Tr. at 13:14-25. As with Count
I, Defendants move to dismiss the pattern-and-practice claims under Rule 12(b)(6) on the
grounds that Plaintiffs fail to plead both the deprivation of any protected property interest and the
actual denial of due process. Mot. at 21, 27.
In evaluating Defendants’ challenge to Counts III and V, the Court must accept all wellpled facts in Plaintiffs’ Complaint as true and give them the benefit of all reasonable inferences
that can be drawn therefrom. To support their allegations that they have been deprived of a
protected property interest in Counts III and V, Plaintiffs plead the same facts as in Count I.
Specifically, Plaintiffs allege: “When in the course of a ventilation plan approval process MSHA
refuses to approve the Plaintiffs’ ventilation plans, or conditions approval of such plans on
arbitrary grounds, the Plaintiffs are deprived of their constitutionally protected interests in a safe
and healthy workforce, the economic viability of their operations, and the right to develop and

30

implement ventilation plans suitable to their particular mine.” Compl., ¶ 61; see also, id., ¶¶ 59,
70, 81.
As Plaintiffs point out, the “‘types of interests protected as property are varied and, as
often as not, intangible, relating to the whole domain of social and economic fact.’” Opp. at 33
(quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 430-31 (1982)). Given the liberal
pleading requirements of Rule 8, and the fact-based nature of the inquiry, this Court cannot say
now, as a matter of law, that Plaintiffs have failed to plead the deprivation of a protected
property interest. After discovery and a further factual fleshing out of the issue, the Court will be
better able to determine whether MSHA has deprived them of a legitimate protected property
interest.
Plaintiffs have similarly pled sufficient facts in support of their contention that MSHA’s
procedures do not “comport with due process” to survive Defendants’ Motion to Dismiss and
reach discovery regarding MSHA’s alleged pattern and practice of unconstitutionally
administering their ventilation-plan dispute-resolution polices. See GE II, 610 F.3d at 117.
Plaintiffs plead that “Defendants have through a pattern and practice repeatedly failed to afford
the Plaintiffs the process due under the Mine Act inasmuch as it has 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 complain that Plaintiffs do not plead more specific facts about individual
ventilation plans that they believe MSHA negotiated unlawfully: “Noticeably absent from the
Complaint are any specific allegations of fact concerning Defendants’ supposed violations of

31

Plaintiffs’ rights. The Complaint does not identify by date, case number, or any other descriptor
the submissions allegedly submitted by Plaintiffs to which the Complaint is supposed to relate.”
Mot. at 9-10. If Plaintiffs sought relief from the Court with respect to any of these individual
ventilation-plan disputes, the Court could well find the lack of specificity in Plaintiffs’
Complaint concerning. But Plaintiffs notably seek no such relief; rather, they seek only a
declaratory judgment that Defendants’ general handling of Plaintiffs’ ventilation plans denies
them due process.
With respect to the process Plaintiffs claim they are due, they plead that generally, “‘due
process’ requires that a party be given a hearing before being deprived of a liberty or property
interest by the federal government. . . . Such process typically means a hearing at which the
legal basis for the government’s action can be evaluated, challenged, and judged, and the
aggrieved party made whole if it prevails.” Compl., ¶ 71. “The Mine Act,” Plaintiff allege,
“affords no such protections to operators with respect to the ventilation plan approval process
and any disputes arising from that process between the operator and MSHA.” Id., ¶ 72.
Defendants argue that the premise of Plaintiffs’ claims alleging the “lack of a disputeresolution procedure under the Mine Act” for ventilation-plan disputes is “verifiably incorrect.”
Mot. at 17-18. They chide Plaintiffs for failing to acknowledge in their Complaint the ability of
mine operators to obtain administrative review from the Commission in a ventilation-plan
dispute by “simply request[ing] entry of a technical violation.” Id. at 18. Plaintiffs respond that
as the “technical violation” procedure is described only in MSHA’s Policy Manual – and not
codified in statute or regulation – it cannot provide meaningful relief because “MSHA is not
bound to comply with its policy.” Opp. at 27-28. More significantly, they claim MSHA
routinely does not comply.

32

This Court granted Defendants’ Motion to Dismiss Count I because there exist
circumstances in which the Mine Act can be applied constitutionally – for example, when
MSHA responds to a dispute with a mine operator over a ventilation plan by issuing a citation
and giving the operator access to the Commission and then judicial review. See, e.g., Zeigler,
536 F.2d at 407-08. Yet Plaintiffs’ pattern-and-practice claims allege that, as a matter of course,
MSHA fails to apply the Mine Act in such a constitutional manner.
At the hearing, counsel for Plaintiffs conceded, “[I]f I accept for the sake of argument
that we have the right to go to the Commission to be heard on these disputes, then we lose.”
Hearing Tr. at 38:14-16. “But,” he argued, “that has to be a guaranteed right. And the absence
of the guaranteed right is the l[i]nchpin to our case.” Id. at 38:14-18. Nothing in the
administrative review scheme described in §§ 815, 816, and 823 of the Act, Plaintiffs plead in
their Complaint, provides a “dispute resolution procedure to resolve disputes over ventilation
plans submitted for approval or recourse if MSHA acts arbitrarily, unlawfully, or ultra vires with
respect to such plans,” because “MSHA is free, over the mine operator’s objection, to do literally
nothing in response to a ventilation plan submitted for its approval, or may adopt a blanket and
arbitrary position that does not take into consideration the specific conditions” at an individual
mine. Compl., ¶ 42.
From the facts pled in Plaintiffs’ Complaint, this Court can reasonably infer that Plaintiffs
are claiming, as they suggested at the hearing, that “because there is nothing that compels MSHA
to issue that [technical] citation, if they don’t feel that you are at an impasse” in the plan
negotiation process, they can – and consistently do – decline to issue a technical citation,
resulting in Plaintiffs being denied the process they are due. Hearing Tr. at 10:5-10.

33

As Plaintiffs point out in their Opposition, “the balance of the classic due process
analysis set out in Matthews v. Eldridge is fact-dependent and cannot be decided at this
juncture.” Opp. at 41. The Court does not attempt to apply this test at the present time, but finds
only that, viewing the Complaint in the light most favorable to Plaintiffs, they have alleged facts
sufficient to survive Defendants’ Motion to Dismiss their pattern-and-practice claims.2
B.

The APA and Ultra Vires Conduct (Counts VI and IV)

Plaintiffs also allege two counts not based on the Due Process Clause of the Fifth
Amendment – claims that Defendants have violated the Administrative Procedure Act, 5 U.S.C.
§ 701, et seq., and acted ultra vires, in excess of their statutory authority. Defendants move to
dismiss both these counts as well on the grounds that Thunder Basin precludes this Court’s
jurisdiction over them and that Plaintiffs have failed to allege facts sufficient to support their
claims.
Section 706 of the APA empowers courts to “(1) compel agency action unlawfully
withheld or unreasonably delayed” and “(2) hold unlawful and set aside agency action, findings,
and conclusions found to be – (A) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; or
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right . . . .”
In order to properly state a claim under the APA, however, Plaintiffs must first identify
the final agency action being challenged. 5 U.S.C. § 704 (judicial review is limited to agency
action made reviewable by statute and “final agency action for which there is no other adequate
remedy in court”). The APA defines “agency action” as including “the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”
2

Because the Court denies Defendants’ Motion with respect to Counts III and V, Plaintiffs’ corresponding
Declaratory Judgment Act claim, Count VII, also survives.

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§ 551(13). Final agency action must “mark the consummation of the agency’s decision-making
process, and must either determine rights or obligations or occasion legal consequences.” Alaska
Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 482 (2004) (internal quotations omitted).
Defendants argue that Plaintiffs’ APA claim must be dismissed because it fails to identify
one or more final agency actions that Plaintiffs ask this Court to review under § 706. Mot. at 32.
Defendants are correct that, “[u]nder the terms of the APA, [Plaintiffs] must direct [their] attack
against some particular ‘agency action’ that causes [them] harm,” rather than seeking “wholesale
improvement” of an agency program “by court decree, rather than in the offices of the [agency]
or the halls of Congress, where programmatic improvements are normally made.” Lujan v.
National Wildlife Federation, 497 U.S. 871, 891 (1990) (emphasis deleted).
In support of their APA claim, Plaintiffs allege that “[e]ach instance of the Defendants . .
. denying the Plaintiffs the right to ventilate their respective mines in a manner consistent with
prudent mining engineering and safety and health practices suitable to the conditions and mining
systems at those mines constitutes a final agency action reviewable by this Court under the APA,
5 U.S.C. § 706.” Compl., ¶ 85. Plaintiffs further allege that “Defendants have repeatedly and
systematically refused to consider the conditions and mining systems of the Plaintiffs’ mines in
prohibiting the Plaintiffs from[, for example,] using scrubbers at their mines, [and] prohibiting
the Plaintiffs from using blowing ventilation systems.” Id., ¶ 86. Plaintiffs assert first, that
“[s]uch a generic, one-size-fits all approach to ventilation plan review is arbitrary, capricious, an
abuse of discretion”; second, that “the Defendants actions are unconstitutional and in excess of
statutory jurisdiction (i.e., ultra vires)”; and third, “Defendants’ actions fail to comply with the
plan-approval criterion required by law, i.e., they rely on a generic view of ventilation plans

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without regard to the conditions and the mining system of the coal mine for which the plan has
been submitted, as required by the Mine Act.” Id.
While these complaints may describe what Plaintiffs believe to be “programmatic”
deficiencies with MSHA’s ventilation-plan review-and-approval process, they do not identify
any discrete, final agency actions that this Court can review. Plaintiffs’ allegations that
“Defendants have refused to approve ventilation plans providing for the use of scrubbers based
on reasons that have nothing to do with the specific conditions or circumstances at the given
mine,” and that Plaintiffs have “been denied the right to use scrubbers” in a number of their
mines similarly fail to allege facts showing a final agency action. Id., ¶ 50.
While “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, Twombly, 550 U.S. at 555, Plaintiffs must put forth “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (internal quotation omitted). Plaintiffs’ broad allegations that MSHA
“refused to consider” or “refused to approve” mine-ventilation plans that include the use of,
among other things, scrubbers fall short of identifying a discrete Agency decision to deny a
particular ventilation plan proposed by Plaintiffs during the negotiation process. Plaintiffs’
assertion that Defendants “have been denied the right to use scrubbers” is similarly vague: it
includes no identifying facts such as when or by what agency action such denials issued. While
this type of claim may appropriately challenge Defendants’ pattern and practice, see Section
III.A.2.b., supra, it does not suffice for an APA claim.
For these same reasons, the Court cannot find Defendants acted in excess of their
statutory authority (ultra vires) during the ventilation-plan approval process. Relying for support
on the same general allegations as in Count VI, Plaintiffs in Count IV assert merely that

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“Defendants are not authorized by any provision of the Mine Act to deny the Plaintiffs their right
. . . to . . . use scrubbers” in their mines, and have therefore acted in excess of their statutory
authority. Compl., ¶ 78. Plaintiffs’ claims that Defendants engaged in ultra vires conduct is thus
similarly too vague to survive under Iqbal.
At the hearing on this Motion, Plaintiffs requested that, in the event the Court found their
APA and ultra vires claims insufficiently pled, they be granted leave to amend their complaint to
more specifically allege final agency action. Hearing Tr. at 43:2-10. To allow such amendment
would be futile, however, because neither count could withstand a motion to dismiss under Rule
12(b)(1). See James Madison Ltd. v. Ludwig, 82 F.2d 1085, 1099 (D.C. Cir. 1996) (court can
deny motion to amend complaint as futile if proposed claim would not survive motion to
dismiss).
Plaintiffs’ APA and ultra vires claims both articulate, in slightly different ways,
complaints that MSHA unlawfully denied them the use of scrubbers and other specific mineventilation devices, without regard to the individual conditions of their mines. Counts IV and VI
thus present fact-based, particularized disputes over mine-ventilation plans themselves, rather
than the higher-level procedural questions about the ventilation-plan approval-and-review
process encapsulated in Plaintiffs’ constitutional claims. See GE II, 360 F.3d at 192
(distinguishing between facial, or “systematic,” and as-applied, or particularized, challenges).
During the hearing, Plaintiffs described their pattern-and-practice due process claim as being
“broader than just a single one-off plan dispute. . . . [T]his is their modus operandi.” Hearing
Tr. at 13:20-22. In contrast, Plaintiffs conceded their “APA claim is actually not a pattern and
practice claim. The APA claim is basically individual APA claims which we certainly pled as a

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single complaint for efficiency reasons but each one of my clients could have brought separate
APA claims.” Id. at 15:15-19.
The Court must thus conclude that Plaintiffs’ APA and ultra vires claims are not wholly
collateral to the Mine Act’s administrative review regime. As a result, they fall within the
Commission’s exclusive jurisdiction under Thunder Basin. Questions such as whether a
particular ventilation device is appropriate for the conditions of an individual mine are well
within the Commission’s expertise and are the type of questions that the Commission has
frequently resolved in the past. See, e.g., Peabody Coal Co., 111 F.3d 963. Unlike broad
constitutional questions about the sufficiency of the Mine Act or MSHA’s administration of it,
fact-based disputes over individual mine-ventilation plans “are of the type [of claims] Congress
intended to be reviewed within th[e] statutory structure.” Thunder Basin, 510 U.S. at 212. As
this Court would lack jurisdiction over Counts IV and VI, even if amended to allege finality,
Defendants’ Motion to Dismiss should be granted as to them.
IV.

Conclusion
The Court, therefore, ORDERS that:
1) Defendants’ Motion is GRANTED IN PART and DENIED IN PART;
2) Counts I, II, IV, and VI are DISMISSED; and
3) Defendants shall file an answer to the remaining counts on or before September 1,
2011.

SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 18, 2011

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