# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2011 Decided June 10 , 2011

No. 10

- 1280

P ERFORMANCE C OAL C OMPANY
,

P ETITIONER

v.

F EDERAL M INE S AFETY AND H EALTH R EVIEW C OMMISSION

AND S ECRETARY OF L ABOR
, R ESPONDENTS

On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission

Patrick J. Slevin argued the cause for petitioner. With
him on the briefs were Peter S. Gould

, Robert D. Luskin , and Benjamin D. Wood

.

Edward Waldman , Attor ney, U.S. Department of Labor, argued the cause for respondent. With him on the brief was
W. Christian Schumann , Counsel. John T. Sullivan , Attorney, Mine Safety and Health Review Commission, entered an

appearance.

Before: S ENTELLE
, Chief Judge

, G INSBUR G and B ROWN
, Circuit Judges

.2

B ROWN
, Circuit Judge : Pursuant to § 105(b)(2) of the Federal Mine Safety and Health Act of 1977 (―the Mine Act‖), 30 U.S.C. § 815(b)(2), Performance Coal Company (―Performance Coal‖) petitioned the Federal Min e Safety and
Health Review Commission (―the Commission‖) for temporary relief from restrictions the Mine Safety and Health Administration (―MSHA‖) imposed on it. The Commission
denied that relief. But w e grant Performance Coal‘s petition for
review because the Commissi on‘s inter pretation of § 105(b)(2 ) is simply untenable

.

I

T his case is the product of catastrophic facts . On April 5, 2010, a mine disaster occurred in Performance Coal‘s Upper Big Branch Mine in West Virginia . Tragically, t wenty

- nine
miners lost their lives. Within hours of the explosion

, MSHA, acting pursuant to its statutory authority

, issued an order
seiz ing control of the mine in an attempt ―to insure the safety of

any person in the coal

. . . mine

. . . .‖ 30 U.S.C. § 813(k) (§ 103(k) of the Mine Act). 1

MSHA‘s original order focused on the rescue of trapped miners; it required Performance Coal to secure the Secretary of
Labor ‘s approval before taking any action to recover or r estore

1 The Mine Act is codified at 30 U.S.C. § 801 et seq. In referring to its various provisions, we will use the Mine Act‘s numbering, although citations themselves are to the U.S. Code. We note, however, that the Mine Act references and their U.S. Code

count erparts are readily interchangeable because Mine Act provisions are numbered § 10X and U.S. Code sections are numbered § 81X, with the ―X‖ being the same in both versions. For example, § 103(k) in the Mine Act correlates to § 813(k) in the U.S.
Code.3

operations in the mine. In the m onths immediately following
MSHA ‘s issuance of the original order, the agency modified that order more than sixty times

— first to rescue and recover trapped miners and then to facilitate inves tigation of the
accident site.

When rescue and recovery efforts were completed

, Performance Coa l, MSHA, and several other entities began preparations for the formal investigat i on, a process that would
entail the collecti on , examination , and document ation of
evidence ; the determination of the accident ‘s cause; and the
assessment of Performance Coal‘s potential criminal liability.
Because this formal investigation required prolonged underground activity, f or several weeks in June 2010,

pre

- investigation teams surveyed the mine to ensure the site‘s safety for the formal investigation t eams who would travel underground.

B efore Performance Coal could begin its formal investigation, however, MSHA again modified the § 103(k) order to incorporate an evidentiary protocol that imposed various restrictions upon Performance Coal, including

pro hibitions on taking or retaining photographs

, collecting and preserving mine dust samples

, employing mine mapping technology , and participating in or objecting to any destructive testing of materials gathered underground. Performance Coal objected to these restrictions, arguing that with all of the traffic created by investigatory teams, the accident site was being altered, depriving the company of potentially exculpatory evidence and the opportunity to observe the site

.

Performance Coal filed an applicat ion with the
Commission seeking, inter alia , temporary relief from the
restrictions pursuant to § 105(b)(2) of the Mine Act, which permits an operator to ―file with the Commission a written4

request that the Commission grant temporary relief from any modification or termination of any order or from any order issued under section [104]

. . . .‖ 30 U.S.C. § 815(b)(2). The Secretary moved to dismiss Performance Coal‘s application

, arguing in part that § 105(b)(2) does not authorize temporary reli ef from § 103(k) orders. The Commission set the case for
resolution before an administrative law judge ( ALJ ) , who ultimately agreed with the Secretary and denied Performance Coal‘s request for temporary re lief. The ALJ explained her

c onclusion, noting in particular, ―[t] he subject order from which Performance seeks temporary relief was issued under section 103(k) of the Act, and not under section 104, i.e. the only section under which temporary relief may b e sought pursuant to [section] 105(b)(2).‖ Performance Coal Co. v. Sec’y of Labor, Mine Safety & Health Admin. , Order Denying Emergency Application to Modify Order and Denying Application for Temporary Relief, reprinted at J.A. 346, 1359.

Performance Coa l then filed a petition for discretionary
review with the Commission. In an order granting discretionary review but denying tempor ary relief, the
Commission held § 105(b)(2) does not offer relief from § 103(k) orders

— or from any other order, except one pur suant to § 104

. Sec’y of Labor , Mine Safety & Health Admin. v. Performance Coal Co.

, 32 FMSHRC 811 , 815 (2010). Two Commissioners dissented, charging the majority with ignoring the plain and unambiguous language of § 105(b)(2). Id. at 820 (Duffy and Young, dissenting)

. Performance Coal now seeks
review from this court

.5

II

A

Before we turn to the interpretive question, we must first address the Secretary‘s a rgument that the case is moot

— a claim that need not detain us long

.

B ecause MSHA modified the order yet again in December 2010, removing the offending protocols, the Secretary suggests

no live controversy remains

. Yet that argument ignores the capable

- of

- repetition

- yet

- evading

- review exception to

mootness

. Under that exception, i f the party seeking to avoid

mootness can establish that the duration of the challenged
action is too short to be litigated fully before it expires and there is a reasonable expectation the party will be subjected to the same action again, its claims are not moot. Del Monte
Fresh Produce v. United States , 570 F.3d 316, 322 (D.C. Cir. 2009).

Performance Coal easily satisfies the first prong of this exception. This court‘s jurisprudence recognizes that agency actions which tend to expire within t wo years are too fleeting to be litigated fully. Pub. Utils. Comm’n v. FERC , 236 F.3d 708, 714 (D.C. Cir. 2001); see also Del Monte

, 570 F.3d at 322

. It is undisputed that § 103(k) orders undergo frequent modifications. In fact, the Secretary does not even address the first prong of this exception, probably because i t is a

non

- starter: in the six weeks immediately following the
accident , the initial order went through sixty iterations

. The inevitability of future modification certainly places the present

co ntroversy within this court‘s two

- year rule for short

- lived agency actions.6

Instead, the Secretary spends the bulk of her argument attempting to persuade this court th at Performance Coal will

not again be subjected to any protocols from which it might seek temporary relief. This court has explained, however, that it is not ―whether the precise historical facts that spawned the plaintiff‘s claims are likely to recur[,]‖ but instead ―whether the legal wrong complained of by t he plaintiff is reasonably likely to recur.‖ Del Monte , 570 F.3d at 324. The question then
is not whether Performance Coal will again be subjected to the precise protocols at issue, but whether it will be subjected to
further modifications from which it wi ll seek temporary relief.

The Secretary is quick to concede this latter point

. A s counsel recognized , Performance Coal remains subject to the § 103(k) order, even i f not the offending protocols. Or. Arg.
14:54

– 59

. C ounsel further admitted it is quite like ly MSHA
will again modify the § 103(k) or der. Or. Arg. 15:22

– 32

. And
Performance Coal claims it might well seek temporary relief from a different modification of the § 103(k) order. Given the

near certainty of further modifications, it is enough for us to rely on Performance Coal ‘s assertions that it is likely to seek temporary relief from an y offending future modification

. See,

e.g. , Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia , 972 F.2d 365, 370

– 71 (D.C. Cir. 1992) ( finding it ―reasonably likely‖ the District would subject the Klan to the same action again based on its leader‘s own

averments

, despite the absence of evidence, testimonial or otherwise, that the Klan had express plans to march in the
District in the futu re).

This case is not moot. Indeed, even the Secretary‘s counsel recognized the near

- frivolity of this argument , and made only a half

- hearted attempt to persuade us. Or. Arg.
17:03

– 25 . But we understand why counsel would cling to an7

anemic claim of mootn ess because Respondents ‘ statutory argument

— to which we now turn

— is even weaker

. 2

B

Section 105(b)(2) of the Mine Act provides:

An applicant may file with the Commission a written request that the Commission grant temporary relief from any modificati on or termination of any order or from any order
issued under section 814 of this title together with a detailed statement giving the reasons for granting such relief. The Commission may grant such relief under such conditions as it may prescribe, if [cert ain other
conditions are satisfied ].

30 U.S.C. § 815(b)(2) (emphasis added). It is the italicized portion of the statute that is at issue in this case.

Applying Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), we conclude Respondents fail at Step One. ―When reviewing an agency‘s construction of the statute it administers, Chevron directs the courts first to ask whether Congress has spoken to the specific question at issue.  ̳If the intent of Congress is clear, th at is the end of the matter; for the court, as well as the agency, must

2 Alt hough the Commission did not file a brief in this case, the statutory argument the Secretary presents on appeal is almost identical to that contained in the Commission‘s decision. See Performance Coal Co. , 32 FMSHRC 811 (2010). Thus, for purposes
of our di scussion, we refer to ― Respondents ‖ collectively even though we remain mindful of this technicality.8

give effect to the unambiguously expressed intent of Congress.‘‖ Meredith v. Fed. Mine Safety & Health Review
Comm’n , 177 F.3d 1042, 1053 (D.C. Cir. 1999) (quoting
Chevron , 467 U.S. at 842)). Because congressional intent is best divined from the statutory language itself, resort to legislative history is inappropriate when the statute is unambiguous. U

nited States ex rel. Totten v. Bombardier Corp ., 380 F.3d 488, 494 (D.C. Cir. 2004). ― [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.‖ Conn. Nat’l Bank v.
Germain , 503 U.S. 249, 253

– 54 (1992). Thus, to defeat application of a statute‘s plain meaning, Respondents must

― show either that, as a matter of historical fact, Congress did not mean what it appears to have said, or that, as a matter of logic and statutory structure, it almost surely could not have meant it.‖ Engine Mfrs. Ass’n v. EPA , 88 F.3d 1075, 1089 (D.C. Cir. 1996 )

.

Looking at § 105 , w e hav e scarcely seen such a ―marvel of
C ongressional clarity ,‖ to borrow a phrase from the dissenting
Commissioners. Performance Coal Co. , 32 FMSHRC at 820 (Duffy and Young, dissenting). In fact, we see no way the
statute could be interpreted other than in the manner proffered by Performance Coal

. Recall, the statute provides for

― temporary relief from any modification or termination of any order or from any order issued under section [104] .‖ 30 U.S.C. § 815 (b)(2)

. Just a plain read ing of that text alone satisfies us that the provision is unambiguous. As we read § 105

, Performance Coal is entitled to seek temporary relief from a
modification or termination of any order , including a § 103
order . We struggle to see how Congress could have intended any other reading of the phrase ―any order

. ‖

Indeed, t he dissent ing Commissioners identified this very question : ―If our colleagues were to assume for argument‘s9

sake that Congress intended to include within the scope of the subsection  ̳any order,‘

. . . [how could it] otherwise have secured that objective

. . . ?‖ Performance Coal Co. , 32
FMSHRC at 820 (Duffy and Young, dissenting). We likewise find the language Congress selected plain, clear, and sim ple
and we refuse to muddy it by finding ambiguity where none
exists.

Respondents argue the term ―under section [104]‖ in the
second phrase actually modifies the words ―any order‖ in the first phrase . This is grammatically improbable

. The language suggests Congress intended temporary relief to be available not only ―from any order issued under section [104]‖ but also
from all modifications and terminations (excluding those expressly excepted). Congress‘s use of the disjunctive ―or‖ to

s eparate modifications and terminations from issuances, and its parallel use of the word ―from‖ to begin each phrase
indicates as much. S ee In re Espy , 80 F.3d 501, 505 (D.C. Cir. 1996) (explaining Congress‘s use of the disjunctive is a persuasive indicator of congressional intent); Chao v. Day , 436 F.3d 234, 236 (D.C. Cir. 2006) (noting that when Congress bifurcated a subsection with the ―parallel inclusion of the verb  ̳exercises‘ at the beginning of each clause‖ this was evidence of Congress‘s intent to avoid ―co m mingl[ing]‖ of the ―textually d istinct provisions of the two clauses‖). We hold that § 105 means what it says: temporary relief is available
from any modification or termination of any order or from any issuance of an order under § 104

.

No matter how you parse it

, § 105 is a model of

near

- perfect clarity. Indeed, it is hard to imagine a clearer expression of congressional language. While it may be true that Congress often chooses plausible deniability over linguistic precision , there is no reason to manufacture10

ambiguity when, as in th is case, the legislative prose is pellucid

.

III

For the foregoing reasons, the petition for review is granted and the Commission‘s order is set aside

.

So ordered.