United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2011 Decided June 10, 2011

No. 10-1280

PERFORMANCE COAL COMPANY,

PETITIONER

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

AND SECRETARY OF LABOR,

RESPONDENTS

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, Attorney, 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: SENTELLE, Chief Judge, GINSBURG and BROWN, 

Circuit Judges.
2

BROWN, 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 Mine 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 we grant Performance Coal‘s petition for 

review because the Commission‘s interpretation of § 105(b)(2)

is simply untenable. 

I

This 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, twenty-nine 

miners lost their lives. Within hours of the explosion, MSHA, 

acting pursuant to its statutory authority, issued an order 

seizing 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 restore 

 

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 

counterparts 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 months 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 investigation of the 

accident site. 

When rescue and recovery efforts were completed, 

Performance Coal, MSHA, and several other entities began

preparations for the formal investigation, a process that would 

entail the collection, examination, and documentation 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, for several weeks in June 2010, 

pre-investigation teams surveyed the mine to ensure the site‘s

safety for the formal investigation teams who would travel

underground. 

Before 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 

prohibitions 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 application 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 written 
4

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 

relief 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 relief. The ALJ explained her

conclusion, 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 be 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 Coal then filed a petition for discretionary 

review with the Commission. In an order granting 

discretionary review but denying temporary relief, the 

Commission held § 105(b)(2) does not offer relief from 

§ 103(k) orders—or from any other order, except one pursuant 

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 argument that the case is moot—a 

claim that need not detain us long.

Because 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, if 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 two 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 it 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 

controversy 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 that 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 the 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 will seek temporary relief.

The Secretary is quick to concede this latter point. As 

counsel recognized, Performance Coal remains subject to the 

§ 103(k) order, even if not the offending protocols. Or. Arg. 

14:54–59. Counsel further admitted it is quite likely MSHA 

will again modify the § 103(k) order. 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 any 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 future). 

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 an 
7

anemic claim of mootness 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 modification 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 [certain 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, that is the 

end of the matter; for the court, as well as the agency, must 

 

2 Although 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 discussion, 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. United 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, we have scarcely seen such a ―marvel of 

Congressional 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 reading 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, the dissenting Commissioners identified this very 

question: ―If our colleagues were to assume for argument‘s 
9

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 simple 

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 

separate modifications and terminations from issuances, and 

its parallel use of the word ―from‖ to begin each phrase 

indicates as much. See 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 ―commingl[ing]‖ of the 

―textually distinct 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 manufacture 
10

ambiguity when, as in this 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.