# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2023 Decided July 7, 2023

No. 22

- 1143

GMS M INE R EPAIR

, P ETITIONER

v.

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

AND S ECRETARY OF L ABOR

, M INE S AFETY AND H EALTH

A DMINISTRATION (MSHA),

R ESPONDENTS

On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission

James P. McHugh argued the cause for petitioner. With

him on the briefs was Christopher D. Pence

.

Robert S. Wils on , Attorney, U.S. Department of Labor, argued the cause for respondent Secretary of Labor. With him

on the brief was Emily Toler Scott , Counsel for Appellate Litigation.

Before: H ENDERSON

, M ILLETT and C HILDS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge C HILDS

.2

C HILDS

, Circuit Judge : In this petition for review, a mine operator and the Secretary of Labor dispute the meaning of a regulation that governs which safety and health violations are counted as part of a n operator’s history when that operator

violates federal standards and must be assessed penalties. We conclude that the regulation at issue is ambiguous, the Secretary’s interpretation is reasonable, and th at interpretation is entitled to deference. Therefore, we deny this petition.

I

A

The Federal Mine Safety and Health Act of 1977 (Mine Act or Act) charges the Secretary of Labor (Secretary) with establishing and enforcing safety and health standards for the operation of the nation’s mines. W. Oilfields Supply Co. v. Sec’y of Labor and Fed. Min e Safety & Health Rev

. Comm’n

, 946 F.3d 584, 58 6 (D.C. Cir. 2020). The Mine Act intended to remedy the shortcomings of two prior laws, the Federal Metal

and Non

- M etallic Mine Safety Act of 1966 and the Federal Coal Mine Health and Safety Act of 1969

. S

. R EP

. N O

. 95

- 181,

at 6

– 9 (1977). As the Senate identified in 1977, these two laws failed to protect miners from hazards, slowed the federal response time to emergi ng dangers, provided for penalties that were “much too low, and paid much too long after the underlying violation,” and created sanctions that were

“insufficient to deal with chronic violators.” Id. at 8.

To address these deficiencies, the Mine Act re quired the Secretary, through the Department of Labor’s Mine Safety and Health Administration (MSHA), to investigate accidents and conduct frequent inspections at mines throughout the calendar year. 30 U.S.C. § 813; see also Donovan v. Dewey , 452 U.S.

594 , 596 (1981). The Act also authorized the Secretary to3

promulgate mandatory standards and issue citations to operators who violate these standards. 30 U.S.C. § § 811 (a), 814(a)

– (b) and (d) . An independent commission, the Mine Safety and Health Review Commission (the Commission),

then assigns an administrative law judge (ALJ) to review contested citations and, where appropriate, impose proposed penalties against operators. 1 30 U.S.C. §§ 8 20(a)

– (c), 823(d)(1). A five

- person board co nstituting the Commission may, in its discretion, review an ALJ’s determination; otherwise, the ALJ’s determination becomes the final decision of the Commission. 30 U.S.C. § 823(d)(1).

Ultimately, the penal ties assessed by the MSHA must account for, among other things, “the operator’s history of previous violations

. . . . ” 30 U.S.C. § 820(i). The MSHA sets forth how it accounts for this history in Section 100.3(c) of its regulations , which considers viola tions “in a preceding 15

- month period” that “have been paid or finally adjudicated, or

have become final orders of the Commission

. . . . ” 30 C.F.R. § 100.3(c); see also III MSHA, Program Policy Manual 97 (June 2012). Since 1982, the practice has been t o include the violation “in an operator’s history as of the date it becomes final.” Criteria and Procedures for Proposed Assessment of Civil Penalties, 72 Fed. Reg. 13,592, 13,604 (Mar. 22, 2007) (Preamble)

.

B

GMS Mine Repair and Maintenance, Inc. (GMS) is a mining contractor that provides “specialized services” to mines

1 An “operator” is “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine.” 30 U.S.C. § 802 (d)

.4

in North America. Petitioner’s Br. iii. GMS provided contract services at the Mountaineer II Mine in West Virginia on April 20 and 27, 2021, during which time the MSHA issued several

c itations against it. Although GMS stipulated to the “findings of gravity and negligence,” it contested the $7,331 proposed penalty. J.A. 7 5

– 7 6. Thereafter, GMS went before an ALJ to dispute the MSHA’s method of calculating the penalty,

because it disagr eed with “what precisely gets counted as the operator’s violation history

. . . . ” J.A. 78.

The Secretary, representing the MSHA, argued that all citations and orders that have become final during the

15

- month look

- back period are counted toward an op erator’s history of violations, “regardless of when [the citations or orders] were issued.” J.A. 78. In opposition to this view, GMS argued that only violations whose citations or orders were both

issued during the look

- back period and were finalized dur ing

th at period could count toward an operator’s history of violations. The ALJ deferred to the Secretary’s reading, deeming the regulation ambiguous “[o]n its face.” J.A. 78.

GMS petitioned the Commission to review the ALJ’s

determination

, and w hen the Commission did not act, the
ALJ’s determination became the final decision. Had the Commission accepted GMS’s reading, the company’s penalties would have been $3,268

— roughly half the amount assessed. GMS timely petitioned this Court for review.

II

A

GMS raises factual arguments that we quickly reject before considering the remainder of its petition. GMS argues

that the ALJ “misinterpreted certain material facts” and made5

an inappropriate “policy pronouncement” in the underlying

decision. Peti tioner ’ s Br. 41 , 44. T hese arguments are meritless because the ALJ accurately summarized GMS’s position on which violations may be counted in an operator’s history of violations, and the ALJ could factor into the analysis

a sampling of cases provided by t he Secretary that reflected

common timelines for resolving penalty contests. J.A. 78

– 79.

B

The Secretary has consistently maintained that violation s that become final within the 15

- month look

- back period are to be included in an operator’s history of violations, but GMS’s position has been far less stable. 2 At times, GMS alternatively argues for the inclusion of only:

1. Violations that occurred during the preceding

15

- month period. See Petitioner’s Br. 21 (“The language is clear and only r efers to violations in the preceding 15 months. There is no reference

to violations before 15 months as the Secretary assert[s]. ”) ;

2. Citations that were issued and finalized during

the preceding 15

- month period

. See
Petitioner’s Br. 21 (“Any citation issued more than 15 months prior to the citation in dispute will not count because . . . only the citations issued in the preceding 15 months are part of the

2 “ When calculating an operator’s violati on history for purposes of proposing a penalty amount, the Secretary

considers the 15

- month period immediately preceding the issue date of the citation/order that is being assessed.” J.A. 30.6

universe of relevant citations in this first step of the process .” ); see also J .A. 76

, ¶ 2 2; or

3. Violations that occurred and whose citations

were issued and finalized during the preceding

15

- month period

. Oral Arg. Tr. 7:4

– 9 (agreeing
that “violation and citation and finalization . . . [must happen] all within 15 months”).

GMS’s shifting interpretations might arise from its error of conflating a violation with a citation. It declares, without support, that it is “obvious[] a violation does not become a ‘violation’ for purposes of [Section 100.3 (c) ] until a citation is

issue d.” Petitioner’s Br. 23. But that is untrue. Violations are the unlawful acts of an operator, while citations are the sanctions that the Secretary i mposes as a result of those

unlawful acts. See 30 U.S.C. § 814(a). These two words

describe distinct ev ents that take place at different points in the enforcement process

— violations occur before citations are

issued. 3

No twithstanding the shifting interpretations , we take it

that GMS ask s for us to adopt its second reading, which is for an operator’s his tory to include only citations that were both

3 At oral argument, GMS continued to mis use these terms

, ref erring to violations as occurring and being issued

. Compare Oral Arg. Tr. 4:15

– 18 (asserting that “violation . . . means an

occurrence under Webster’s . . . .”) (emphasis added)

, with Oral Arg. Tr. at 22:14

– 16 (“Nowhere in the Secretary’s argument does the Secretary explain where in the regulation it says that you can include violations that were issued four years ago.”) (emphasis ad ded) ; c f. Petitioner’s Br. 23 (referring to “‘violations’ issued”).7

issued and finalized during the preceding 15

- month period.

This reading reflects GMS’s most consist ent position. Unlike the other interpretations, GMS made this argument before the

A L J as well as in its brief s in support of its petition

. Moreover,

GMS equates a violation with a citation , which a lign s with its second interpretation requiring that a citation be issued and finalized during the look

- back period

.

III

O ur analysis of Section 100.3(c) is guided by the Supreme Court’s opinion in Ki sor v. Wilkie , 139 S. Ct. 240 0 , 2415 (2019) , which provided clear instructions about how courts are

to evaluat e agency interpretation s of regulation s

.

First, courts must determine whether the reg ulation is “genuinely ambiguous” by “exhaust[ing] all the ‘traditional

tools’ of construction.” Kisor , 139 S. Ct. at 2415 (quoting

Chevron U.S.A. , Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843, n.9 (1984)). These traditional tools include the “ text, structure, history, and purpose of [the] regulation.” Id. Second, even if a regulation is genuinely ambiguous, “the agency’s reading must fall ‘within the bounds of reasonable interpretation.’” Id. at 2416 (quoting City of Arlington v. FCC

, 569 U.S. 290, 296 (2013)). To this end, the work that courts

do reviewing the text, structure, history, and purpose form the
“outer bounds” of what is reasonable. Id. Lastly, courts must take a third step and identify the existence of “important

marke rs for . . . [ when ] deference is . . . appropriate.” Id. What should persuade a court is the “character and context” of the agency interpretation

— namely, the authoritativeness of the position asserted, implication of the agency’s substantive expertise, a nd whether the interpretation reflects the agency’s “fair and considered judgment.” Id. at 2416

– 17 (quoting8

Christopher v. SmithKline Beecham Corp. , 567 U.S. 142, 155 (2012)).

For the reasons below, we conclude that Section 100.3(c)

is genuinely ambigu ous
, and the Secretary offers a permissible reading that is also entitled to deference

.

A

1

Of the tools that we must employ, “[t]he most traditional tool, of course, is to read the text [

. ] ” Engine Mfrs. Ass’n v.

EPA , 88 F.3d 1075, 1088 (D.C. Cir. 1996). Section 100.3(c) states, in relevant part:

100.3(c) History of Previous Violations

An operator’s history of previous violations is

based on both the total number of violations and the number of repeat violations of the same citable provision of a standard in a preceding

15

- month period. Only assessed violations that have been paid or finally adjudicated, or have

become final orders of the Commission will be included in determining an operator’s history

.

An “assessed” violation is one for which the Secretary has formally determined a civil penalty amount. See 30 U.S.C. § 820(a)(1).

GMS contends that Section 100.3(c) includes only citations that were both issued within the preceding 15

- month period and be came final during that period as well. In GMS’s view, the first sentence of Section 100.3(c) “clear[ly]” refers to9

only citations in the preceding 15 months, because it omits any discussion of citations that may have occurred before this period. Petition er’s Br. 21. Even more, the only qualification appears in the second sentence and restricts the scope of citations to ones that have also been finalized during that period.

Seeing it differently , the Secretary argues that Section 100.3(c) is not as cle ar as GMS asserts

. The Secretary interprets Section 100.3(c) to apply to any violation that

becomes final within the relevant 15

- month period, regardless

of when the violation occurred or when its citation was issued

. To the Secretary, the first sentence of Section 100.3(c)

establishes the relevant look

- back period (15 months), and the second sentence merely clarifies that the field of violations to be considered must have become final during th ese 15 months

.

Between the two , the Secretary has the bett er argument. Section 100.3(c) speaks of only a look

- back period and that the violations to be considered must have become final during that time. The regulation does not spell out the sequencing needed to compute an operator’s history (i.e., violation, c itation, assessment, final order) and when each thing must occur. This lack of detail makes the regulation susceptible to competing interpretations, as seen in this dispute , which is why, b ased on the text alone, no single correct reading of the regulati on

emerges

.

2

Congress built into the Act a deliberate process for assessing and adjudicating violations ; this process takes time to complete. Among its many provisions, the Mine Act permits inspections and investigations, 30 U.S.C. § 813(a); issuance of

citations and follow

- up orders; see
, e.g. , id. § 814(a)

– (b), (d);10

procedures for enforcing those citations and orders, see generally id. § 815; injunctions, id. §§ 818(a)(1)

– (2); and judicial review, see generally id. § 816. Clearly Congress was aware that each of these steps could take time , which it provided for in various other provisions of the Act. See, e.g.

, 30 U.S.C. §§ 815 , 823.

Despite these provisions , the statutory deadlines contained

within them still do not account for the normal hindrances and happenstance that often prolong adjudicatory proceedings.

T he procedural history of this petition provides a case in point. Roughly two weeks after receiving the briefing schedule from our Court, GMS filed an unopposed motion for an extension of time to file its opening brief. We granted that unopposed

motion a few days later. Similarly, GMS requested to reschedule oral argument, and we likewise obliged

. These types of scheduling changes are as common during administrative proceedings as they are in courts of law. One can expect that such run

- of

- the

- mill reali ties might easily push

a contest outside of the 15

- month timeframe that GMS argues must include all aspects of the process owed before a penalty is imposed

. 4

4 Although we concluded that GMS asks this Court to adopt its second and most consistent reading of the regulation , we pause to comment on GMS’s position at oral argument. There, GMS argued that a violation, citation, and final adjudication must all

o ccur within 15 months

. Oral Arg. Tr. 7:4

– 9. As the Commission highlight ed

, pre

- citation investigations can take longer than 15 months to complete

. The Upper Big Branch mining disaster on April 5, 2010, cost the lives of twenty

- nine

miners and remains o ne of the deadliest mining accidents in recent history. Press Release, U.S. Dep’t of Lab., Statement by Sec’y of Lab. Marty Walsh on the Anniversary of the Upper Big Branch Explosion (Apr. 5, 2021), available at11

Given the amount of process afforded by the Mine Act, it is difficult to conclude that the proc ess must be completed within 15 months of a citation being issued, or else a prior violation cannot be considered as part of an operator’s history.

As such , the structure of the Mine Act favors the Secretary’s reading, because the Secretary’s reading does not restrict the process afforded to a fairly short 15 months.

3

T he history of the regulation also favors the Secretary’s reading. The Preamble reveals that the MS H A “anticipate[d] [the] issue” the Secretary now raises as to GMS’s proposed reading: the reading would encourage contests and thwart the Secretary’s ability to include violations in an operator’s

https://perma.cc/R92S

- ZD7T (last visited June 26 , 2023). The MSHA did not issue contributory citations for th is disaster

until it released its findings from the extensive investigation on

December 6, 2011

— twenty months after the disaster occurred. U.S. Dep’t of Lab., Proposed Asse ssment and Statement of Account, 1

– 2, Att. Narrative Findings for a Special Assessment (Dec. 6, 2011), available at https://perma.cc/QEZ9

- EPA 4 (last visited June 26 , 2023).

Under GMS’s reading, operators , such as those who committed

the serious violations leading to the Upper Big Branch disaster

, would never have their violations counted towards their history

, because the Secretary issued the citations after an investigation that required more than 15 months to complete

. So

, though it might go without say ing, GMS’s proposed reading could let operators escape accountability for even the most egregious violations of federal mine safety and health

standards.12

history. Kisor , 139 S. Ct. at 2412; see also Preamble , 72 F ed. Reg. at 13,604. In 2007, the MSHA explained its intention to continue a longstanding practice of “us[ing] only violations
that have become final orders of the Commission” and to include those violations “in an operator’s history as of the date [they] become[] final.” Preamble, 72 Fed. Reg. at 13,60 4

.

W hile the 2007 regulation shortened the look

- back period

from 24 to 15 months , the MSHA remained keen on “retain[ing] the final order language” and a decades

- long practice of a violation becoming a par t of an operator’s history

on the date that it became final. Id. at 13,604. Understanding this desire, the Secretary’s reading of the regulation comports with the regulation’s history as it reinforces the importance of finality rather than the lesser co ncerns

— in this instance

— of

when the violation occurred or when the citations were issued.

4

Congress enacted coal mining legislation keeping in mind “its most precious resource

— the miner.” 30 U.S.C. § 801(a). The 1977 amendments expressly declared that the law intended “to prevent recurring disasters in the mining industry.” Fed

. Mine Safety and Health Act of 1977, Pub. L. No. 95

- 164, 91 Stat. 1290 (1977)

. And t o this end , Congress placed the “primary responsibility” on mine operators to prevent unsafe conditions and practices. 30 U.S.C. § 801( e ).

GMS’s reading might capture some routine violations where the operator pays the proposed penalty, but not contested violations or violations requiring special assessments. J.A. 42

– 43; see also Oral Arg. Tr. 14:23

– 15:8

. These latter violations require longer to finalize, and under GMS’s restrictive reading
operators could avoid future consequences by prolonging penalty contests. An interpretation leading to th is result would13

be “insufficient to deal with chronic violators” and could hardly protect miners in the way Congress intended. S

. R EP

. N O

. 95

- 181, at 8

.

B

Having reviewed the text, structure, history, and purpose

, we can conclude that Section 100.3(c) is genuinely ambiguous.

While the structure

, history , and purpose favor the Secretary’s reading, the text lacks useful detail. Nevertheless , the Secretary’s proposed interpretation falls within the “zone of ambiguity” created by our analysis of the regulation. Kisor

, 139 S. Ct. at 2416.

The Secretary’s interpretati on cares only about when the

violation becomes final , which comports with the text

. This interpretation falls within the zone of ambiguity , under which

t he s econd sentence (that discuss es finality ) merely clarif ies the

first sentence (that establishes the look

- back period ) . These two sentences say nothing further about when the underlying

violation must have occurred or been cited

. Notably, l ike the regulation, the Secretary’s interpretation does not consider

when the violation occurred or was cited

. GMS’s reading, by contrast, requires us to infer an intention for citations to have been issued during the look

- back period in addition to those citations being finalized during that period . We are not required to accept GMS’s reading, nor sh ould we be inclined to infer the presence of terms that fail to make an appearance in the regulation’s plain text (here, the “issuance” of a “citation”). See Newman v

. FERC , 27 F.4th 690, 698

– 99 (D.C. Cir. 2022) (declining to accept an interpretation that required our Court to infer the word “directly” as part of a regulation’s intended meaning).14

Equally , the Secretary’s reading also come s within the zone of ambiguity considering the structure, history, and purpose. The Secretary’s interpretation allow s for operators to receive full process before being forced to pay penalties. Yet, it fulfills the purpose of the Act and implementing regulation by holding operators accountable for health and safety failures when determining an operator’s history of vio lations. The Secretary’s interpretation is thus reasonable and within ou r established bounds

.

C

Finally , w e decide whether the Secretary’s interpretation

warrants deference. Kisor , 139 S. Ct. at 2414. In other words,

we examine “whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416. To

do so , the interpretation must be the agency’s “authoritative or official position;” “implicate its substantive expertise;” and

“reflect [its] ‘fair and considered judgment’” rather than evince an afterthought or litigation position. Id. at 2416

– 17 (citation and internal quotation marks omitted). The Secretary’s interpretation satisfies these criteria.

First, as the Preamble outlines, t he Secretary’s interpretation reflects its official and steadfast practice (circa 1982) of including a violation in an operator’s history as of the

date the violation becomes final. See Kisor , 139 S. Ct. at 2416 (citation omitted); see also Preamble , 72 F ed. Reg. at 13,604. The Preamble states that the MSHA included the phrase “final orders of the Commission” to clarify its intended continuance of this longstanding practice. Preamble , 72 Fed. Reg. at 13,604. In presenting us with a policy followed for o ver four decades, the Secretary certainly does not offer a post

- hoc rationalization or “convenient litigating position.” Kisor , 139

S. Ct. at 2417 (quoting Christopher , 567 U.S. at 155). GMS15

and other operators have been familiar with the Secretary’s

pra ctice for quite some time.

Second, the subject matter of the regulation is within the Secretary’s wheelhouse and implicates the Secretary’s expertise. Congress tasked the Secretary with developing regulations for mine safety as well as the methods used to enforce those regulations. As such, imposing penalties for violations and ensuring compliance with federal mine health and safety standards is neither “distan[t] from the agency’s ordinary duties,” nor does it “fall within the scope of another agency’s authority.” Kisor , 139 S. C t. at 2417 (first alteration in original, second alteration omitted) (quoting Arlington , 569 U.S. at 309). GMS counters that imposing sanctions does not implicate technical expertise because it is a procedural matter, which “[c]ourts deal with

. . . far more than executive agencies.” Petitioner’s Br. 17. But Congress did not give courts the authority to determine when and how to assess mine safety violations. It delegated that authority to the Secretary.

See 30 U.S.C. § 801 et seq. Besides, this may be one instance in which even “more prosaic

- seeming questions

. . . [still] implicate policy expertise,” which lies with the agency

. Kisor

, 1 3 9 S. Ct. at 2417.

IV

For the foregoing reasons, we deny this petition.

So ordered.