Secretary of Labor, Mine Safety and Health Administration v. Kc Transport , Inc. and Federal Mine Safety and Health Review Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 24, 2025 Decided April 17, 2026
No. 22-1071
SECRETARY OF LABOR, M INE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER
v.
KC TRANSPORT , I NC. AND FEDERAL M INE SAFETY AND
HEALTH REVIEW COMMISSION ,
RESPONDENTS
On Remand from the Supreme Court of the United States
Susannah M. Maltz, Attorney, U.S. Department of Labor,
argued the cause for petitioner. With her on the briefs were
Emily Toler Scott, Counsel for Appellate Litigation, and
Michael S. Raab and Sean R. Janda, Attorneys.
Harold Craig Becker was on the brief for amicus curiae
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) in support of petitioner.
James P. McHugh and Aditya Dynar argued the causes for
respondents. With them on the briefs were Christopher D.
Pence and Damien M. Schiff. Thaddeus J. Riley entered an
appearance.

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Thomas Berry and Ilya Shapiro were on the brief for amici
curiae Manhattan Institute and Cato Institute in support of
respondents.
J. Marc Wheat was on the brief for amici curiae
Advancing American Freedom, et al. in support of respondents.
John B. McCuskey, Attorney General, Office of the
Attorney General for the State of West Virginia, Michael R.
Williams, Solicitor General, Treg Taylor, Attorney General,
Office of the Attorney General for the State of Alaska, Steve
Marshall, Attorney General, Office of the Attorney General for
the State of Alabama, Tim Griffin, Attorney General, Office of
the Attorney General for the State of Arkansas, James
Uthmeier, Attorney General, Office of the Attorney General for
the State of Florida, Chris Carr, Attorney General, Office of
the Attorney General for the State of Georgia, Raul Labrador,
Attorney General, Office of the Attorney General for the State
of Idaho, Theodore E. Rokita, Attorney General, Office of the
Attorney General for the State of Indiana, Brenna Bird,
Attorney General, Office of the Attorney General for the State
of Iowa, Liz Murrill, Attorney General, Office of the Attorney
General for the State of Louisiana, Lynn Fitch, Attorney
General, Office of the Attorney General for the State of
Mississippi, Andrew Bailey, Attorney General, Office of the
Attorney General for the State of Missouri, Michael T. Hilgers,
Attorney General, Office of the Attorney General for the State
of Nebraska, Drew Wrigley, Attorney General, Office of the
Attorney General for the State of North Dakota, Dave Yost,
Attorney General, Office of the Attorney General for the State
of Ohio, Gentner Drummond, Attorney General, Office of the
Attorney General for the State of Oklahoma, Alan Wilson,
Attorney General, Office of the Attorney General for the State
of South Carolina, Marty Jackley, Attorney General, Office of

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the Attorney General for the State of South Dakota, Jonathan
Skrmetti, Attorney General and Reporter, Office of the
Attorney General for the State of Tennessee, and Ken Paxton,
Attorney General, Office of the Attorney General for the State
of Texas, were on the brief for amici curiae State of West
Virginia and 19 Other States in support of respondents.
Before: WILKINS , W ALKER, and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge W ILKINS.
Concurring Opinion filed by Circuit Judge PAN.
Dissenting Opinion filed by Circuit Judge W ALKER.
W ILKINS , Circuit Judge: Congress affirmed the
importance of regulating effective health and safety standards
within the mining industry when it enacted the Federal Mine
Safety and Health Amendments Act of 1977 (“Mine Act”),
Pub. L. No. 95-164, 91 Stat. 1290 (codified as amended at 30
U.S.C. §§ 801–966). The Mine Act reaches every “coal or
other mine” (hereinafter, “mine”), which the statute defines as
coal extraction sites; the roads appurtenant to those sites; and
the places, “facilities,” and things “used in, or to be used in, or
resulting from,” mining activity. 30 U.S.C. § 802(h)(1). This
dispute concerns how broadly we construe the last category.
KC Transport is an independent trucking company that
provides various hauling services for mining and other
companies. When the events at issue occurred, KC Transport
operated a maintenance facility for its haul trucks about a mile
from one of its client’s active mines. A Mine Safety and Health
Administration (“MSHA”) inspector visited the facility, after
having inspected a nearby mine, and observed two of KC

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Transport’s trucks undergoing maintenance. Both trucks were
raised and unblocked from motion, and one truck had a person
standing underneath it. Because the trucks’ conditions violated
federal safety standards, the MSHA inspector cited KC
Transport.
In an administrative proceeding, KC Transport contested
the citations, arguing that MSHA had no jurisdiction over its
maintenance facility or the trucks parked there. An
administrative law judge (“ALJ”) held that MSHA had
jurisdiction because KC Transport’s facility is a mine and the
trucks, at least while parked at the facility, are equipment “used
in” mining-related activity and thus are “mine[s]” under the
Mine Act. KC Transport appealed to the Federal Mine Safety
and Health Review Commission (“Commission”), which held
that no facility or truck used in mining is a “mine” under the
Mine Act unless it is located at an extraction site or a road
appurtenant thereto. Because neither the cited trucks nor the
facility where they were parked were located on land where
mineral extraction occurs or on roads appurtenant to such land,
the Commission held that none constituted a “mine” and
vacated the citations.
The Secretary of Labor (“Secretary”), acting through
MSHA, petitioned our Court for review of the Commission’s
decision. See 30 U.S.C. § 816(b). The Secretary submits that
KC Transport’s facility and trucks are mines because they were
“used in” mining activity. See id. § 802(h)(1)(C); Pet. Br. 42–
44. 1
1 KC Transport also argued before the Commission that it was not an
“operator” under the Mine Act. In 2023, we held that the
Commission lacked jurisdiction to consider that question, which KC
Transport had not pressed before the ALJ. Sec’y of Lab. v. KC

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In an opinion issued in 2023, we held that the term “mine”
under the Mine Act was ambiguous and recognized that such
ambiguity generally would warrant deference to the
Secretary’s reasonable interpretation under Chevron U.S.A.
Inc. v. NRDC, Inc., 467 U.S. 837 (1984). Sec’y of Lab. v. KC
Transp., Inc., 77 F.4th 1022, 1025, 1028 (D.C. Cir. 2023). But
because the Secretary’s position failed to grapple with several
textual clues undermining her position, we vacated and
remanded the Commission’s decision, permitting the Secretary
an opportunity to interpret the statute’s ambiguous text. Id. at
1025, 1028–33.
KC Transport sought Supreme Court review. Petition for
Writ of Certiorari, KC Transp., Inc. v. Su, 144 S. Ct. 2708
(2024) (mem.) (No. 23-876), 2024 WL 645391. Shortly after,
the Supreme Court overruled Chevron. Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 411–12 (2024). The Supreme Court
then granted KC Transport’s petition, vacated our judgment,
and remanded the case for further consideration in light of
Loper Bright. KC Transp., Inc., 144 S. Ct. at 2708.
We now reconsider the Secretary’s petition in accordance
with the mandate to “exercise [our] independent judgment,”
employing “the traditional tools of statutory construction . . . to
resolve statutory ambiguities” and determine “whether an
agency has acted within its statutory authority.” Loper Bright,
603 U.S. at 401, 412. Reviewing the statute de novo and
Transp., Inc., 77 F.4th 1022, 1025, 1033–34 (D.C. Cir. 2023). When
KC Transport petitioned for certiorari, it did not raise this issue. See
generally Petition for Writ of Certiorari at i., KC Transp., Inc. v. Su,
144 S. Ct. 2708 (2024) (mem.) (No. 23-876), 2024 WL 645391, at
*i. Accordingly, whether KC Transport is an operator is not before
us on remand.

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without deference, we conclude that KC Transport’s facility is
a mine within the meaning of the Mine Act.
I.
A.
The Mine Act provides for mandatory health and safety
standards that govern the mining of coal, metals, and non-
metals.2 See Sec’y of Lab. v. Excel Mining, LLC, 334 F.3d 1, 3
(D.C. Cir. 2003) (discussing 30 U.S.C. § 961(a)). In it,
Congress affirmed that “the first priority and concern of all in
the coal or other mining industry must be the health and safety
of its most precious resource—the miner.” 30 U.S.C. § 801(a).
Congress also aimed “to provide more effective means and
measures for improving the working conditions” in American
mines and “to prevent death[,] . . . serious physical harm,
and . . . occupational diseases.” Id. § 801(c).
Under the Mine Act’s regulatory scheme, the Secretary
“develop[s]” and “promulgate[s] . . . improved mandatory
health or safety standards for the protection of life” in mines.
Id. § 811(a). MSHA enforces these standards by conducting
regular inspections and issuing citations for any discovered
violations. See id. §§ 813(a), 813(g), 813(k), 815(a).
Violations are subject to civil penalties that the Secretary is
authorized to assess and assign. Id. § 820(a).
2 For a brief history of the catastrophic injuries and fatalities that
prompted federal regulation of mine safety, see Patrick C. McGinley,
With a Wink and a Nod: How Politicians, Regulators, and Corrupt
Coal Companies Exploited Appalachia, 57 U. Rich. L. Rev. 899,
905–08 (2023).

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The Commission “is an independent agency charged with
adjudicating disputes under the Mine Act.” Sec’y of Lab. v.
Twentymile Coal Co., 456 F.3d 151, 152 (D.C. Cir. 2006); 30
U.S.C. §§ 815, 823. It is a multi-member body3 “appointed by
the President by and with the advice and consent of the Senate.”
30 U.S.C. § 823(a). The Commissioners serve staggered six-
year terms and are removable only for “inefficiency, neglect of
duty, or malfeasance.” Id. § 823(b). The Commission may
appoint ALJs to hear disputes arising under the Mine Act in the
first instance. See id. § 823(d)(1). Anyone aggrieved by an
ALJ’s decision may seek the Commission’s discretionary
review, id. § 823(d)(2)(A)(i), and any person aggrieved by an
order of the Commission may obtain review in this Court, id.
§ 816(a)(1). The Secretary is also authorized to seek review or
enforcement of any final order of the Commission in this Court.
Id. § 816(b).
Whether a facility is subject to the Mine Act’s obligations
depends upon whether the facility constitutes a “mine.” Under
the Mine Act, a “mine” is defined as:
(A) an area of land from which minerals are
extracted in nonliquid form or, if in liquid form,
are extracted with workers underground,
(B) private ways and roads appurtenant to such
area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment,
machines, tools, or other property including
3 By statute, the Commission “shall consist of five members.” 30
U.S.C. § 823(a). But Congress provided that it may delegate all of
its powers to a group of “three or more” Commissioners. Id.
§ 823(c). At the time this dispute was before the Commission, there
were three Commissioners.

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impoundments, retention dams, and tailings
ponds, on the surface or underground, used in,
or to be used in, or resulting from, the work of
extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form,
with workers underground, or used in, or to be
used in, the milling of such minerals, or the
work of preparing coal or other minerals, and
includes custom coal preparation facilities.
Id. § 802(h)(1). In short, the statute’s jurisdiction over
“mine[s]” covers: (1) extraction sites; (2) the “private ways
and roads appurtenant” thereto; and (3) a list of items and
places, including “facilities,” that are “used in,” “to be used
in,” or “resulting from” mining-related activity. Id. (emphasis
added).
B.
The material facts are undisputed. See J.A. 4–13 (Joint
Stipulations). KC Transport is an independent trucking
company that provides hauling services to various businesses
for different materials (e.g., coal, earth, and gravel) and
operates truck maintenance and storage facilities. The at-issue
events took place at KC Transport’s facility located in Emmett,
West Virginia.
One of KC Transport’s clients is a coal mine operator
known as Ramaco Resources (“Ramaco”), which maintains
five mines near the Emmett facility. Ramaco’s representatives
informed KC Transport that it could use the facility for
maintenance, as Ramaco had no plans to operate a coal mine
there. Thereafter, KC Transport began using the facility as its
“maintenance area/shop.” J.A. 7.

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At the time in question, the facility included only a parking
area and two maintenance shipping containers. The facility
was a “convenient centralized maintenance facility . . . for KC
Transport,” J.A. 7, and KC Transport used it to operate about
35 trucks. Ramaco’s coal processing plant—the Elk Creek
Preparation Plant—is about one mile away; its deep mines are
about four to five miles away; and its strip mines are about six
miles away. An estimated “60% of the [facility’s] services”
supported Ramaco’s five nearby mines, and the remaining 40%
of services aided other companies, like “American Electric
Power . . . and other coal operators.” Id. The types of trucks
at the facility were a mix of (1) off-road trucks, providing
haulage for Ramaco’s five nearby mines; and (2) on-road
trucks used in earth, coal, and gravel haulage for non-Ramaco
customers.
The only way to access the facility is by entering through
a gate on Right Hand Fork Road, which is located just off the
haulage road that runs past Elk Creek Plant and dead ends on
the other side of the facility. The facility is about 1,000 feet
from the haulage road, and while the road leading “into the KC
Transport facility is not a coal haulage road[,] [it] does branch
off from a haulage road.” J.A. 6. While part of the haulage
road is public, everything past the gate is reserved for
authorized persons. On the day the trucks were cited, the gate
was open because it was broken.
On March 11, 2019, an MSHA coal mine inspector visited
Ramaco’s nearby Elk Creek Plant.4 Upon completing the Elk
Creek Plant inspection, the inspector went “looking for trucks”
that MSHA had previously cited, with the intent to terminate
4 Although MSHA had never inspected or attempted to inspect KC
Transport’s trucks at the facility, MSHA regularly inspected KC
Transport’s trucks at the Elk Creek Plant and along the haulage road.

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those citations. J.A. 5; see 30 U.S.C. § 814(e)(3). The
inspector traveled over a mile along the haulage road, turned
onto Right Hand Fork Road, continued for about 1,000 feet,
and reached the facility.
Upon arriving, the inspector observed KC Transport’s
trucks undergoing maintenance. According to MSHA safety
regulations, “[r]epairs or maintenance shall not be performed
on machinery until the power is off and the machinery is
blocked against motion, except where machinery motion is
necessary to make adjustments.” 30 C.F.R. § 77.404(c) (2019).
Two of KC Transport’s trucks, however, were unblocked.
Notably, because these particular trucks “were not licensed to
haul products over public roads,” they were “only being
operated on private land,” J.A. 10, and were “regularly used to
haul coal from the five Ramaco mines to the Elk Creek prep
plant,” J.A. 8. At the time of inspection, the first truck was
“jacked up with the wheels and tires off both back axles,” and
“[w]ork [was] being preformed [sic] on the brakes located on
the back axles of the truck.” J.A. 53. The second truck was
raised and a miner was underneath it, “standing on the frame of
the truck.” J.A. 55; see also J.A. 58. Because neither of the
two trucks were “blocked against motion,” the inspector found
KC Transport in violation of 30 C.F.R. § 77.404(c), and issued
Citations Nos. 9222038 and 9222040.
C.
KC Transport contested the two citations, and both the
Secretary and KC Transport filed cross-motions, requesting
summary decision. The ALJ rejected the parties’
interpretations of subsection (C) but ultimately ruled in the
Secretary’s favor, upholding the two citations as a proper
exercise of the Mine Act’s jurisdiction. In the ALJ’s view, the

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facility and the mining-related equipment (here, the trucks)
located therein were too connected to the mining process to be
excluded from the Mine Act’s jurisdiction. Thus, the ALJ held
that the facility constituted a “mine” under subsection (C)’s
plain meaning, “and because the trucks were used in mining
and parked at the facility,” they qualified as “equipment” under
subsection (C). J.A. 84.
On appeal, a divided Commission reversed the ALJ’s
finding of jurisdiction and vacated the two contested citations.
According to the majority, 30 U.S.C. § 802(h)(1)
unambiguously limits the “mine” definition to extraction sites
and lands appurtenant thereto. Thus, the Commission held
“that an independent repair, maintenance, or parking facility
not located on or appurtenant to a mine site and not engaged in
any extraction, milling, preparation, or other activities within
the scope of subsection 3(h)(1)(A) is not a mine within the
meaning of section 3(h) of the Mine Act.” J.A. 168. One
commissioner dissented, taking an even broader view than the
ALJ, and argued that regardless of the facility, the trucks
constituted mines as they were “used in” mining and are
“essential and integral” to that process. J.A. 176. The
Secretary petitioned for review of the Commission’s decision.
30 U.S.C. § 816(b).
II.
This case turns on whether the facility or the trucks
constituted a “mine” under 30 U.S.C. § 802(h)(1)(C) of the
Mine Act, such that MSHA had jurisdiction to cite KC
Transport for violating safety regulation 30 C.F.R. § 77.404(c).
If the Mine Act applies, the parties agree both citations should
be upheld and KC Transport owes a penalty fee of $3,908
regarding citation No. 9222038, and $4,343 regarding citation

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No. 9222040. J.A. 12–13. Because we hold that the facility is
a mine, we do not reach whether the trucks were also
independently jurisdictional “mines” at the time they were
cited.
A.
Before reaching the merits, we address the threshold issue
of justiciability.
KC Transport argues that resolving this dispute
“necessitate[s] a course of action that violates the Vesting,
Take Care, and Opinion Clauses of Article II.” Resps. Third
Suppl. Br. 10. We construe KC Transport’s attack based on
Article II as a structural constitutional objection seeking to
preserve the separation of powers between the three branches.
See Freytag v. Comm
’r, 501 U.S. 868, 878–79 (1991)
(resolving an Appointments Clause challenge). These types of
challenges are “nonjurisdictional” and “thus not subject to the
axiom that jurisdiction may not be waived.” Intercollegiate
Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 756
(D.C. Cir. 2009) (citations omitted). Indeed, the Secretary
agrees that KC Transport’s Article II attack—raised nearly
three years after it filed its opening brief—is non-jurisdictional
and forfeited. Pet. Supp. Br. 2, 11. Had this Court not invited
briefing on the Article II issue through its own motion, we
would likely agree. But given that KC Transport raised this
dilatory argument at our request, we exercise our discretion to
resolve it. See Freytag, 501 U.S. at 878–79.
1.
As a practical matter, calling this petition an intra-
Executive dispute is more theoretical than real. The Secretary
named KC Transport as the lead respondent, and KC Transport

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has been the only real litigant participating in the proceeding as
an adversary to the Secretary. Granted, the Secretary also listed
the Commission as a respondent as ostensibly required by
Federal Rule of Appellate Procedure 15 (“Rule 15”), see Fed.
R. App. P. 15(a)(2)(B), but after the Secretary filed his opening
brief in our Court, the Commission notified us that “[p]ursuant
to the Commission’s discretionary policy in appellate court
proceedings involving review of its decisions, the Commission
will not be participating as an active litigant in the proceeding.”
Commission Letter, Dkt. No. 1963198 (Sept. 12, 2022). Rather
than litigate, the Commission announced that it “will stand on
the decision it issued in its adjudicative capacity.” Id. In sum,
the Commission bowed out of this dispute even before seeing
KC Transport’s brief in opposition to the Secretary, and we
have not heard from it since in any substantive capacity. Thus,
this is an intra-Executive dispute in name only. The real
adversaries litigating this petition are the Secretary and KC
Transport.
One would think that if our resolution of this dispute truly
intrudes upon the prerogatives of the “unitary Executive,” then
the Executive would say so. But the Commission has said
nothing at all, and the Secretary denies that there is any
constitutional problem whatsoever. According to the
Secretary, “[i]n all relevant constitutional respects, this
proceeding is an ordinary civil enforcement action between the
Secretary and a regulated entity. Such an enforcement action
does not implicate Article III’s jurisdictional limits or Article
II’s provision of authority to the President.” Pet. Supp. Br. 1.
To put a finer point on the matter, the present statutory
scheme does not undermine the unitary Executive because it
does not prevent the President from resolving the alleged intra-
branch dispute if he so desired. As explained by the Secretary,

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[O]n the merits, the critical point for Article II
purposes is that the President must have the
option of resolving disputes among his
subordinates. He is not required, however, to
exercise that authority in every circumstance,
and, when he chooses not to resolve a particular
dispute, his subordinates may act according to
their own independent authorities. Congress’s
choice to permit the Secretary to seek judicial
review in such a circumstance does not offend
Article II, because that option does not
effectively preclude the President from
exercising his supervisory authority if he so
chooses.
* * *
The Secretary’s option of seeking judicial
review does not preclude the President from
exercising his supervisory authority; for
example, if the President agreed with the
Commission's understanding of the Secretary’s
jurisdiction, he could have directed the
Secretary not to pursue judicial review. But in
the face of the President's choice not to review
the dispute, the Secretary’s availing herself of
the statutory right to seek judicial review does
not violate Article II.
Pet. Supp. Br. 2–3, 13.
One might say that “[c]onsequently, the specific legal
issue the [dissent] chooses to address is, at this time, nothing
more than a tempest in a teapot.” See Nat'l Cable &

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Telecommunications Ass'n, Inc. v. Gulf Power Co., 534 U.S.
327, 348 (2002) (Thomas, J., dissenting).
As the Supreme Court has observed, “[t]he mere assertion
of a claim of an ‘intra-branch dispute,’ without more, has never
operated to defeat federal jurisdiction; justiciability does not
depend on such a surface inquiry.” United States v. Nixon, 418
U.S. 683, 693 (1974). Looking beyond the surface, we see that
enforcement of the Mine Act is the sole duty of the Secretary,
so the Secretary is the party that is actually adverse to the mine
company. The adjudicatory Commission simply does not have
a stake in the dispute. See Cuyahoga Valley Ry. Co. v. United
Transp. Union, 474 U.S. 3, 7 (1985) (“The [analogous
Occupational Safety and Health Review] Commission’s
function is to act as a neutral arbiter and determine whether the
Secretary’s citations should be enforced over employee or
union objections.”). Without true adversity between the
Secretary and the Commission, the justiciability challenge is
without merit. Article III of the Constitution implicates only
“actual controversies arising between adverse litigants,” and
“no case or controversy exists” between a litigant and the
judges (here, the commissioners) adjudicating the dispute.
Whole Woman’s Health v. Jackson, 595 U.S. 30, 39–40 (2021)
(citation modified); see also id. at 40–41 (noting that all
members of the Court agree that state court judges are not
proper parties to a challenge to a state law). We therefore hold
that the Commission’s role in this litigation as merely a
nominal respondent does not create a case or controversy
sufficient to implicate Article III justiciability concerns.
2.
Even if we are incorrect that the Commission’s role as a
nominal respondent is sufficient to foreclose the justiciability

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challenge, we alternatively hold that the separation of powers
objection is strongly rebutted by our constitutional history and
our precedent. Indeed, several actions taken by the First,
Second, Third, and Fourth Congresses powerfully refute it.
One of the first laws enacted by the First Congress was the
Collection Act. In it, the First Congress authorized the
Comptroller of the Treasury to sue customs surveyors for the
amount of their bond “upon any breach” of the condition of
“faithful discharge” of their duties. An Act to Regulate the
Collection of the Duties, ch. 5, § 28, 1 Stat. 29, 44 (1789). The
First Congress expanded this provision the next year, by
authorizing the Comptroller to “put in suit” the performance
bonds of customs collectors, naval officers, and surveyors who
breach their duties. An Act to Provide More Effectually for the
Collection of the Duties, ch. 35, § 52, 1 Stat. 145, 171 (1790).
When adjudicating cases over payments of these performance
bonds, Executive officers ended up on both sides of disputes.
See, e.g., Sthreshley v. United States, 8 U.S. 169, 169 (1807)
(describing “an action of debt, brought by the United States in
the district court of Kentucky district for the penalty of an
official bond given by Sthreshley, with Obannon as his
surety”); United States v. Giles, 13 U.S. 212, 213 (1815) (“It
was an action of debt brought by the United States against
Giles, late marshal of the district of New York, and his sureties,
upon his official bond . . . .”). The Supreme Court never
questioned the justiciability of these early intra-Executive bond
lawsuits authorized by the First Congress.
Continuing the trend, the Second Congress authorized
additional intra-Executive lawsuits. When establishing the
Post Office, the Second Congress provided that if deputy
postmasters or others failed to render their accounts, “it shall
be the duty of the Postmaster General, to cause a suit to be

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commenced against the person or persons so neglecting or
refusing.” An Act to Establish the Post-Office and Post Roads
Within the United States, ch. 7, § 24, 1 Stat. 232, 238–39
(1792).
The trend continued in the Third Congress. When it
passed more extensive legislation expanding and regulating the
Post Office, the Third Congress retained the provision
requiring the Postmaster General to sue deputy postmasters and
other officials who failed to render their documentation in a
timely fashion. See An Act to Establish the Post-Office and
Post-Roads Within the United States, ch. 23, § 24, 1 Stat. 354,
364–65 (1794). In similar fashion, the Third Congress enacted
legislation authorizing the Comptroller of the Treasury, “at
[his] discretion,” to sue “any person who has received monies
for which he is accountable to the United States” and fails to
render account statements and vouchers in a timely manner.
An Act for the More Effectual Recovery of Debts Due from
Individuals to the United States, ch. 48, §1, 1 Stat. 441, 441
(1795).
Similarly, the Fourth Congress provided that if revenue
officers failed to remit receipts, “it shall be the duty of the
comptroller, and he is hereby required to institute suit for the
recovery of the same.” An Act to Provide More Effectually for
the Settlement of Accounts Between the United States, and
Receivers of Public Money, ch. 20, § 1, 1 Stat. 512, 512 (1797).
None of these early statutes distinguished between current
and former executive officials in their text––either were subject
to suit. Contra Dissenting Op. 25–27 (suggesting that these
early statutes only applied to former officials). In Walton v.
United States, 22 U.S. 651, 655 (1824), the Court described the
Comptroller of the Treasury legislation as providing for “an

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impartial trial. . . [,] and if the Court and jury, before whom the
cause is tried, should be of the opinion that any item of [the
revenue officer’s] account has been improperly rejected, it is
restored to his credit.” In other words, the Third Congress
provided that a court and a jury, rather than the President,
should settle the disagreements between a receiver of public
monies and the Auditor and Comptroller. Similarly, in
Postmaster General of the U.S. v. Early, 25 U.S. 136 (1827),
the reporter described the lawsuit brought under the Postmaster
legislation as an action “in the name of the Post Master General
of the United States,” and when referring to the lead defendant,
it said “Eleazer Early . . . is Post Master at Savannah.” 25 U.S.
at 136 (emphasis added).
Postmaster General v. Early is significant for another
reason: the Court rejected an Article III jurisdictional
challenge to the statute. Mr. Early challenged the jurisdiction
of the Court, arguing that Article III, Section 2 applied to
“controversies to which The United States is a party,” while the
statute required the lawsuit to be brought in the name of the
Postmaster General, rather than in the name of the United
States. 25 U.S. at 137–39. Writing for the Court, Chief Justice
Marshall rejected the argument, explaining that even though
the suit was brought in the name of the Postmaster General, the
United States was the real party in interest. Id. at 146. The
Court noted that prior versions of the statute specified that these
lawsuits were to be brought in the name of the United States,
and that the 1810 amendment directing the naming of the
Postmaster General should not be construed as an intent to
“relinquis[h]” the jurisdiction of the federal courts. Id. As the
Court put it, “[t]hat construction[,] which will produce a
consequence so directly opposite to the whole spirit of our
legislation, ought to be avoided, if it can be avoided without a
total disregard of those rules by which Courts of justice must

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be governed.” Id. Thus, just as we held above, the Court
rejected an Article III challenge based on the identity of the
nominal party by identifying the real party in interest. See
supra at 14. Even more importantly, the Court held that the
jurisdiction of a lawsuit by the Postmaster General against
another Executive official “is unquestionable.” Id. at 147.
The actions of these early Congresses are compelling
authority that intra-Executive suits authorized by Congress do
not contradict the Framers’ understanding of the separation of
powers. As the Supreme Court has explained,“[w]hat
is . . . decisive as to th[e] intent in the Constitution is the action
on it by the second Congress, only a few years after, and of
which some were members who aided in framing the
Constitution itself.” Luther v. Borden, 48 U.S. 1, 73 (1849);
see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S.
53, 57 (1884) (“The construction placed upon the constitution
by the first act of 1790 and the act of 1802, by the men who
were contemporary with its formation, many of whom were
members of the convention which framed it, is of itself entitled
to very great weight . . . .”); United States v. Watson, 423 U.S.
411, 420 (1976) (using acts of the Second Congress to interpret
the scope of the Fourth Amendment).
The dissent relies upon some early correspondence written
by then-Chief Justice John Jay and then-Attorney General
Edmund Randolph to argue that intra-Executive lawsuits are
unconstitutional because a President cannot “delegate his
decisions to the federal Judiciary.” See Dissenting Op. 13–16.
However, we respectfully submit that the force of the dissent’s
citations pale in comparison to the authoritative heft of the
multiple pieces of actual legislation referenced above, passed
by both chambers of the early Congresses, signed into law by

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George Washington and John Adams,5 and construed
favorably by the Supreme Court.
In addition to the actions of these early Congresses, we
have helpful precedent from the Supreme Court regarding more
modern-era statutes. Significantly, the Court has held that a
suit by the United States against the Interstate Commerce
Commission and intervenor railroads was justiciable. See
United States v. ICC, 337 U.S. 426, 430–31 (1949). Our
dissenting colleague claims that ICC is off point because the
Secretary was merely in the position of a regulated party.
Dissenting Op. 19–21. While this characterization of the
Secretary’s role is accurate, it is not dispositive of the question
before us. After all, the intra-Executive lawsuits authorized by
the early Congresses did not involve Executive officials
occupying the same role as regulated parties.
Furthermore, while the Cabinet Secretary was a regulated
party in ICC, the Court later found justiciability in a dispute
between a Cabinet Secretary and a commission acting in an
adjudicatory capacity, where the Secretary’s interest was not as
a regulated party, but as a party with a special interest—
recognized by Congress—in ensuring the proper interpretation
and implementation of a statute. See Udall v. Fed. Power
Comm’n, 387 U.S. 428, 439–40 (1967). Udall originated in
our Court due, in part, to a petition filed by the Secretary of the
Interior for review of orders of the Federal Power Commission.
See Washington Pub. Power Supply Sys. v. Fed. Power
Comm'n, 358 F.2d 840, 848 (D.C. Cir. 1966), rev'd and
remanded sub nom. Udall v. Fed. Power Comm'n, 387 U.S. 428
5 See generally, Christine Kexel Chabot, Interring the Unitary
Executive, 98 Notre Dame L. Rev. 129, 133 (2022) (analyzing the
unitary executive theory “[b]y scouring every public act passed by
the First Congress”).

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21
(1967). Our Court denied the Secretary’s petition. When
reversing our Court and granting the Secretary’s petition, the
Supreme Court explained that “the Secretary . . . comes to the
Federal Power Commission with a special mandate from
Congress, a mandate that gives him special standing to appear,
to intervene, to introduce evidence on the proposed river
development program, and to participate fully in the
administrative proceedings.” Udall v. Fed. Power Comm’n,
387 U.S. at 439–40.
In sum, while the Court has cautioned that it would be
“inappropriate” to “put the federal courts into the regular
business of deciding intrabranch and intraagency policy
disputes,” Dir., Off. of Workers’ Comp. Programs v. Newport
News Shipbuilding & Dry Dock Co., 514 U.S. 122, 129 (1995),
the Court has nonetheless recognized that Congress possesses
the authority to designate an agency official as a “party
aggrieved” that has standing to challenge the action of another
Executive official, id. at 127–30. Thus, “without benefit of
specific authorization to appeal, an agency, in its regulatory or
policy-making capacity” will not generally be considered to be
a party “‘adversely affected’ or ‘aggrieved’” with standing to
sue under the Administrative Procedure Act or other statutory
review provisions. Id. at 127 (emphasis added). Thus, in
Newport News, the Court held that the Director of the Office of
Worker’s Compensation Programs did not have standing to
appeal a decision of the Labor Department’s Benefit Review
Board because the judicial review provision, 33 U.S.C.
§ 921(c), was “silen[t]” regarding the Director’s authorization
to appeal, and thus did not confer standing. Id. at 129–30.
However, in doing so, the Court distinguished 29 U.S.C.
§ 660(b), which expressly grants the Secretary of Labor
authority to seek review of orders by the Occupational Safety
and Health Review Commission, an adjudicatory body, and the

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Court held up that statute as an example of Congress
designating an agency official as a “party aggrieved” in a
statute. Id. at 130.
Indeed, the Court in Newport News went so far as to state
that “Congress could have conferred standing upon the
Director without infringing Article III of the Constitution”—it
just did not do so. Id. at 133 (emphasis in original). In other
words, the Court explained that Congress can confer standing
upon an Executive official to sue another Executive official
pursuant to its authority to prescribe the “judicial Power” of the
inferior courts, U.S. Const. art. III, § 1, and “the judicial
Power . . . extend[s] to all Cases . . . arising under . . . the Laws
of the United States . . . [and] to Controversies to which the
United States shall be a Party,” id. § 2.
Two years later, the Court adopted the reasoning of
Newport News in a jurisdictional holding in Ingalls
Shipbuilding, Inc. v. Dir., Off. of Workers’ Comp. Programs,
519 U.S. 248 (1997). In that case, Ingalls filed a petition for
review of a decision by the Benefits Review Board, in which
the Board ruled that the widow of a shipfitter was entitled to
death benefits under the Longshore and Harbor Workers'
Compensation Act. See generally 33 U.S.C. § 901, et seq.
After the Director of the Office of Workers’ Compensation
Programs (“Director”) appeared and filed a brief defending the
award, Ingalls moved to strike the brief, arguing that the
Director did not have an interest in the dispute and therefore
lacked standing. See Ingalls Shipbuilding, Inc. v. Dir., Off. of
Workers' Comp. Programs, U.S. Dep't of Lab., 65 F.3d 460,
463 n.2 (5th Cir. 1995), aff'd sub nom. Ingalls Shipbuilding,
Inc. v. Dir., Off. of Workers' Comp. Programs, Dep't of Lab.,
519 U.S. 248, (1997). The court of appeals rejected the
challenge. Id. Ingalls renewed the standing argument in the

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Supreme Court, where the Court also rejected it. As the Court
explained, “[w]here there is already a case or controversy
between parties properly before a court, as there is in this case
between Ingalls and Mrs. Yates who properly appear pursuant
to 33 U.S.C. § 921(c), that court's jurisdiction is not extended
by the inclusion of an additional party whose presence is also
consistent with Article III.” Ingalls Shipbuilding, 519 U.S. at
266 (emphasis added).
As part of the basis for its holding in Ingalls Shipbuilding
that the Director’s “presence” in the case as a respondent does
not violate Article III, the Court reiterated that “[a]s we stated
in Newport News, although the Director had no statutory
authorization to petition the Court of Appeals [to challenge a
decision of an agency benefits review board], ‘Congress could
have conferred standing upon the Director without infringing
Article III of the Constitution.’” 519 U.S. at 264 (emphasis
removed) (quoting Newport News, 514 U.S. at 133). Thus,
while an agency or Executive official “acting in [their]
governmental capacity” will not ordinarily be considered a
party aggrieved with an injury sufficient to establish Article III
standing, the Court explained that Congress can nonetheless
expressly confer such standing without “[a]ny
impediment . . . of [a] constitutional origin.” Id. at 263–64
(quoting Newport News, 514 U.S. at 130). Because this
reasoning from Newport News undergirds the Article III
holding in Ingalls Shipbuilding, it is binding upon us. See
Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 67 (1996) (“When
an opinion issues for the Court, it is not only the result but also
those portions of the opinion necessary to that result by which
we are bound.”); United States v. Duvall, 740 F.3d 604, 609
(D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of
rehearing en banc) (“[O]nce a rule, test, standard, or
interpretation has been adopted by the Supreme Court, that

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same rule, test, standard, or interpretation must be used by
lower courts in later cases.”)
Like its decision in Postmaster General v. Early, the Court
in Ingalls Shipbuilding acknowledged Congress’s power to
define the “cases and controversies” subject to Article III
jurisdiction by specifying which Executive officers or agencies
may appear as parties. Accordingly, we are duty-bound to
follow the statements and reasoning in Newport News and
Ingalls Shipbuilding.
The statements in Newport News relating to a petition
brought pursuant to the Occupational Safety and Health Act
(“OSH Act”) are particularly apt, since “the Mine Act’s review
process was written to conform to the review process of the
OSH Act.” Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 873
(D.C. Cir. 2002); see also Twentymile Coal Co., 456 F.3d at
161 & n.12 (citing cases describing the similarities between the
Mine Act and the OSH Act). Hence, the Newport News citation
to 29 U.S.C. § 660(b) in the OSH Act as an example of an
instance when Congress has appropriately conferred standing
on the Secretary of Labor to challenge an adjudicatory
commission provides strong support in favor of justiciability
here. That is so because the language of Section 660(b) and of
30 U.S.C. § 816(b), the Mine Act’s judicial review provision,
is identical in all material respects. That is more than sufficient
to settle the issue.6
6 Using similar reasoning, our Court held long ago that the
Department of Justice, on behalf of the United States, had standing
to challenge an order of the Federal Maritime Commission, and that
such a dispute was justiciable. See United States v. Fed. Mar.
Comm’n, 694 F.2d 793, 794–95 (D.C. Cir. 1982) (en banc) (per
curiam) (reinstating the standing and justiciability sections of the

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25
Despite the observations of our dissenting colleague about
tenure protections of agency commissioners, see Dissenting
Op. 22–24, none of this is contingent upon the soundness of the
holding of Humphrey’s Executor. See Humphrey
’s Ex
’r v.
United States, 295 U.S. 602 (1935). The reasoning of the early
Congresses, Postmaster General v. Early, Newport News, and
Ingalls Shipbuilding had nothing to do with whether either
Executive official involved in an intra-Executive lawsuit had
tenure protection or other indicia of “independence” from the
President. Instead, the reasoning was based on the text and
original understanding of Article II and Article III.
The dissent and KC Transport invite us to reject the
understanding of several early Congresses and express
Supreme Court guidance. We decline.
3.
But that is not all. Even if we are incorrect in holding that
the Commission’s presence in this case as a nominal
respondent is insufficient to establish an Article III
justiciability challenge, and even if we are incorrect in holding
that any such justiciability challenge fails, we hold that it would
be appropriate to obviate the constitutional issue by removing
the Commission as a respondent in this appeal. We therefore
strike the Commission as a respondent to the petition.
We followed this course of action in the analogous case of
Oil, Chemical & Atomic Workers International Union v.
panel opinion); see also id. at 810 (reproduction of panel opinion)
(“Assuming arguendo that the real parties in interest are the
Department [of Justice] and the Commission, as intervenors contend,
we hold that United States v. Nixon, 418 U.S. 683 (1974) disposes of
this issue in favor of the Department.” (citation modified)).

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26
Occupational Safety & Health Review Commission (“OCAW”),
671 F.2d 643 (D.C. Cir. 1982). In OCAW, the labor union,
pursuant to the OSH Act, 29 U.S.C. § 660(a), petitioned this
Court to review a decision of the Occupational Safety and
Health Review Commission (“OSHRC”). The labor union
named OSHRC a respondent pursuant to Rule 15(a), but we
held that OSHRC is an adjudicatory agency and could not
participate in judicial proceedings before this Court. Id. at 652.
We thus granted the union’s motion to amend the petition and
struck OSHRC from the caption, leaving the regulated entity
(the employer) as “the proper respondent.” Id. at 653. We
noted that OSHRC, like the Commission here, is an adjudicator
that “settle[s] disputes between” private parties “and the
Secretary of Labor over citations issued by the Secretary’s
inspectors”; and that it “has no enforcement power,” “no duty
or interest in defending its decision on appeal,” and “no stake
in the outcome of the litigation.” Id. at 652. That reasoning
applies equally in this case, and therefore we strike the
Commission from the caption, leaving the Secretary of Labor
and KC Transport as the adverse parties to the appeal. See id.;
see also Hinson v. NTSB, 57 F.3d 1144, 1147 n.1 (D.C. Cir.
1995) (extending OCAW to the National Transportation Safety
Board and removing the Board as a respondent because “the
Board’s role is purely adjudicatory, and there is sufficient
adversity between the real parties in interest to ensure proper
litigation of all the issues”). Though no party here moved to
strike the Commission from the caption, we have sua
sponte reformed a caption before. See Brown v. NHTSA, 673
F.2d 544, 544 n.* (D.C. Cir. 1982) (per curiam). Furthermore,
as we noted above, striking the Commission as a respondent
has no real practical effect, because the Commission has not
participated substantively in this action.

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Our dissenting colleague argues that the relevant statute
requires the Secretary to name the Commission as a
respondent. Dissenting Op. 10. However, no such explicit
mandate appears in the text. The statute provides: “The
Secretary may also obtain review or enforcement of any final
order of the Commission by filing a petition for such relief in
the United States court of appeals for the circuit in which the
alleged violation occurred or in the Court of Appeals for the
District of Columbia Circuit, and the provisions of subsection
(a) shall govern such proceedings to the extent applicable.” 30
U.S.C. § 816(b) (emphasis added). The provision does not
specify who, if anyone, must be named as a respondent when
the Secretary files a petition for review. Congress knows how
to be specific. For instance, the Hobbs Act, the most broadly
applicable agency review statute, provides that in petitions to
review filed in a court of appeals, “[t]he action shall be against
the United States.” 28 U.S.C. § 2344. In the Administrative
Procedure Act, Congress specified that “[i]f no special
statutory review proceeding is applicable, the action for
judicial review may be brought against the United States, the
agency by its official title, or the appropriate officer.” 5 U.S.C.
§ 703; see also 5 U.S.C. § 7703(a)(2) (regarding judicial
review of Merit Systems Protection Board in the courts of
appeals, “[t]he Board shall be named respondent in any
proceeding brought pursuant to this subsection”). No such
explicit language about who must be named as a respondent
appears in 30 U.S.C. § 816(b), the judicial review provision
relied upon by the Secretary in this case.
The best that the dissent can do is point to subsection (a)
of the statute, which pertains to petitions filed by a “person,”
other than the Secretary, who is “adversely affected or
aggrieved” by an order of the Commission. Dissenting Op. 10,
n.38. Subsection (a) contains language implying that the

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Commission is a party to a proceeding pursuant to such a
petition for review filed in a court of appeals. See 30 U.S.C.
816(a) (“A copy of such petition shall be forthwith transmitted
by the clerk of the court to the Commission and to the other
parties . . . .”). Even if this language is best interpreted to mean
that the Commission can be considered a party to such a
judicial review proceeding, nothing in the text says that the
Commission must be named as a respondent in every single
instance, unlike the Hobbs Act and the other statutes noted
above.
Further, and even more to the point, subsection (a) is only
applicable to petitions for review filed by the Secretary “to the
extent applicable.” 30 U.S.C. § 816(b). Thus, even if the best
reading of subsection (a) were that the Commission must be
named as a respondent when a party other than the Secretary
files a petition, the exception in subsection (b), combined with
the doctrine of constitutional avoidance, compels us to construe
subsection (b) to hold that any requirement to name the
Commission as a respondent in subsection (a) is “not
applicable” when the Secretary is the petitioner. Just as the
Court in Postmaster General v. Early, we do not believe that
Congress intended to defeat federal court jurisdiction when it
created a system of review in the federal courts, and we find it
appropriate to construe the statute to prevent that anomalous
result. See 25 U.S. at 146. See also Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568, 577 (1988) (“[W]here an otherwise acceptable
construction of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid such
problems unless such construction is plainly contrary to the

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29
intent of Congress.”).7 In addition, to the extent that Rule 15
requires the Commission to be named as a respondent when the
Secretary files a petition, see Fed. R. App. P. 15(a)(2)(B), we
can, on our “own . . . motion, . . . suspend any provision of
these rules in a particular case and order proceedings as [we]
direct[]” for “good cause.” Fed. R. App. P. 2(a); see also
Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988)
(“More broadly, Rule 2 gives courts of appeals the power, for
‘good cause shown,’ to ‘suspend the requirements or
provisions of any of these rules in a particular case on
application of a party or on its own motion.’”); United States v.
Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (“Insofar as the
failure of the appellant to make application to the district court
creates any obstacle, we note that under Federal Rule of
Appellate Procedure 2, we have the authority to ‘suspend any
provision of’ the Rules of Appellate Procedure, including Rule
22(b)(1) except in limited instances not here relevant. We
therefore exercise that authority and proceed.”). We find good
cause to suspend any requirement in Rule 15 to name the
Commission as a respondent here, to the extent any such
naming creates a justiciability issue. See Ortiz v. Fibreboard
Corp., 527 U.S. 815, 842 (1999) (adopting a limiting
construction of Federal Rule of Civil Procedure 23 to “avoid[]
serious constitutional concerns”); Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 510 (1989) (construing Federal Rule
7 The same result would obtain if we found that subsection (a) clearly
required the Secretary to name the Commission as a respondent and
that such a result violated the Constitution, because we would
employ the Act’s severability clause to strike the language in
subsection (b) that makes subsection (a) applicable to petitions filed
by the Secretary. See 30 U.S.C. § 801 historical note (describing the
severability provision of the Federal Coal Mine Health and Safety
Act of 1969, which was untouched by the 1977 amendments and is
still in effect).

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30
of Evidence 609 to avoid due process concerns, “[n]o matter
how plain the text of the Rule may be”); see also 28 U.S.C.
§ 2072(b) (providing that the federal rules of procedure “shall
not abridge, enlarge or modify any substantive right”).
Lastly, this Court has held that the Secretary’s
interpretation of the Mine Act takes precedence over any
interpretation by the Commission. See, e.g., Sec’y of Lab. v.
Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (citing Sec’y
of Labor, ex rel. Bushnell v. Cannelton Indus., Inc., 867 F.2d
1432, 1435 (D.C. Cir. 1989); RAG Cumberland Res. LP v. Fed.
Mine Safety & Health Rev. Comm’n, 272 F.3d 590, 596 (D.C.
Cir. 2001); Sec’y of Lab. v. Fed. Mine Safety & Health Rev.
Comm’n, 111 F.3d 913, 920 (D.C. Cir. 1997)). The Mine Act
itself demonstrates that Congress intended that the Secretary
should have the power to challenge the Commission’s
interpretations. See 30 U.S.C. § 816(b). Therefore, it makes
no sense to construe the Mine Act to require that the
Commission be named as a respondent if the result of such a
construction is to prevent the Secretary from obtaining judicial
review of the Commission’s interpretation of the Mine Act.
Otherwise, there would be no way to adhere to Congress’s
intent and our precedent that the Secretary’s interpretation
should have preference, because the Secretary could never
bring such a challenge. Even if we are no longer compelled to
give deference to the Secretary’s interpretation, see Loper
Bright, 603 U.S. at 411–12, we decline to construe the Mine
Act in a way that altogether prevents the Secretary from
advancing its position in court, particularly where the
Secretary’s position should have preference over the
Commission’s position.

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31
B.
As to the merits, we review the Commission’s legal
conclusions de novo. See Peabody Midwest Mining, LLC v.
Sec’y of Lab., 70 F.4th 602, 607 (D.C. Cir. 2023). We begin
with the statute’s text, affording the words their “ordinary
meaning at the time Congress adopted them.” Niz-Chavez v.
Garland, 593 U.S. 155, 160 (2021). But we do not interpret
statutes “in a vacuum.” Torres v. Lynch, 578 U.S. 452, 459
(2016) (quoting Abramski v. United States, 573 U.S. 169, 179
(2014)). Instead, we zoom out and consider the text “in the
context of the entire statute.” Noble v. Nat’l Ass’n of Letter
Carriers, 103 F.4th 45, 50 (D.C. Cir. 2024). Finally, we may
consider the text in light of its statutory and legislative history.
Id.; United States v. Hite, 769 F.3d 1154, 1160 (D.C. Cir.
2014). Employing this comprehensive perspective and
applying “all the textual and structural clues” pertinent to the
task, Wis. Cent. Ltd. v. United States, 585 U.S. 274, 283 (2018),
we seek to ascertain the text’s “best meaning,” Loper Bright,
603 U.S. at 400.
Recall that § 802(h)(1) defines a “mine” as: (1) an
extraction site, under subsection (A); (2) any “private ways and
roads appurtenant to” that extraction site, under subsection (B);
and (3) the places, “facilities,” and items “used in,” “to be used
in,” or “resulting from” the work of extraction, milling, or
preparation of minerals, under subsection (C). This case
concerns the jurisdictional reach of subsection (C).
The bulk of the parties’ arguments turn on how much, if at
all, location matters. The Secretary argues that subsection
(C)’s reach depends primarily on function—i.e., whether the
place or thing is “used in, or to be used in, or resulting from”
mining activities is all that matters, and there is thus no

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32
locational limit whatsoever. KC Transport and the dissent
argue that the Secretary has jurisdiction over a subsection (C)
facility only when it is “located at an extraction site, processing
plant, or an appurtenant road at the time the violation occurs.”
Resps. Second Suppl. Br. 23–24; see Dissenting Op. 33–40.
We conclude that the dissent and KC Transport’s proposed
construction is not the best reading of subsection (C). Rather,
the Secretary’s proposed construction is more aligned with the
text, though we need not reach the question of whether
subsection (C) has no locational limit whatsoever.
1.
We begin with the statutory text of subsections (A)
through (C), which state that the following are considered a
“mine”:
(A) an area of land from which minerals are
extracted in nonliquid form or, if in liquid form, are
extracted with workers underground, (B) private
ways and roads appurtenant to such area, and (C)
lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other
property including impoundments, retention dams,
and tailings ponds, on the surface or underground,
used in, or to be used in, or resulting from, the work
of extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form, with
workers underground, or used in, or to be used in,
the milling of such minerals, or the work of
preparing coal or other minerals, and includes
custom coal preparation facilities.
30 U.S.C. § 802(h)(1) (emphases added).

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This case concerns whether KC Transport’s “facilit[y]”
was “used in, or to be used in, or resulting from” mining
activities. The statute does not define this phrase, so we
typically adopt “its ordinary meaning.” Taniguchi v. Kan Pac.
Saipan, Ltd., 566 U.S. 560, 566 (2012). Though the word “use”
is “variously defined,” it is “most sensibly read to mean active
employment . . . and not merely a passive, passing or past
connection.” Jones v. United States, 529 U.S. 848, 855 (2000)
(citation modified); Use (v.), Black’s Law Dictionary (4th rev.
ed. 1968) (“To make use of, to convert to one’s service, to avail
one’s self of, to employ.”).
2.
Read in isolation, then, subsection (C) might reach
“facilities” actively employed in the process of extracting,
milling, or preparing minerals. But accounting for “to be used
in” and “resulting from,” 30 U.S.C. § 802(h)(1)(C), the
ordinary meaning stretches to potentially gargantuan lengths
that could lead to absurd results. For instance, according to the
Secretary, a subsection (C) item that has not been used for
mining for the past thirty years but is “to be used” for mining
five years from now would be a mine. That limitless reach is
belied by the “context” of subsection (C)’s “overall statutory
scheme,” see Turkiye Halk Bankasi A.S. v. United States, 598
U.S. 264, 275 (2023) (quoting Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989)), which focuses on
protecting persons presently engaged in mining activities, see
30 U.S.C. § 801.8 The dissent agrees that the Secretary’s
8 We have no need to resolve the outer bounds of “used in, or to be
used in, or resulting from” in this case, because there is no dispute

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position that there is only a functional limit is untenable, and
for the dissent, this alone is enough to import an overly narrow
geographical limit into subsection (C). See Dissenting Op.
section III.A. But such a narrow locational restriction is also
belied by the context of subsection (C)’s overall statutory
scheme, as we describe below.
3.
“Construing statutory language is not merely an exercise
in ascertaining the outer limits of a word’s definitional
possibilities”; it demands we seek to distill the meaning that
“produces a substantive effect that is compatible with the rest
of the law.” Sackett v. EPA, 598 U.S. 651, 676 (2023) (citation
modified); see also Sturgeon v. Frost, 577 U.S. 424, 438 (2016)
(“Statutory language cannot be construed in a vacuum.”
(citation modified)). With that in mind, we consider whether
the plain meaning of a subsection (C) “mine” comports with
§ 802(h)(1) as a whole.
Looking at all three subsections, KC Transport urges us to
follow the Sixth Circuit in discerning from subsections (A) and
(B) a locational limit that requires any subsection (C) item to
be “adjacent to []or part of a working mine.” Resps. Second
Suppl. Br. 7 (quoting Maxxim Rebuild Co. v. Fed. Mine Safety
& Health Rev. Comm’n, 848 F.3d 737, 739 (6th Cir. 2017)).
To KC Transport, a “working mine” includes only the area of
extraction, any roads appurtenant to that land, and any
preparation site. We disagree. The text of subsection (C)
imposes no strict adjacency or “on location” restriction. For its
that the trucks and repair facility at issue were actively used to
support extraction at the time of the inspection.

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35
part, the dissent marshals a series of canons of interpretation,
i.e., the noscitur canon, the whole act rule, the rule against
surplusage, and the absurdity canon, see Dissenting Op. 35–40,
to create a veneer of textualism, yet in reality a locational limit
simply does not exist in the text of subsection (C).
It cannot be the case that a subsection (C) facility is a mine
only when it is located on or adjacent to an extraction site
because such a reading would fail to give independent effect to
subsection (C). Consider one type of place that appears in both
subsections (A) and (C): “land.” 30 U.S.C. § 802(h)(1).
Reading subsection (C) “lands” to be mines only when such
lands are located on or adjacent to an extraction site duplicates
the coverage of subsection (A), which defines a “mine” as “an
area of land from which minerals are extracted . . . .” Id. Such
redundancy violates the rule against surplusage. See Williams
v. Taylor, 529 U.S. 362, 364 (2000) (“[It is a] cardinal principle
of statutory construction that courts must give effect, if
possible, to every clause and word of a statute.”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 174 (2012) (“If possible, every word and every
provision is to be given effect . . . . None should needlessly be
given an interpretation that causes it to duplicate another
provision or to have no consequence.”).9 The dissent argues
that “an item in subparagraph (C) must be at an extraction site
or processing plant.” Dissenting Op. 43. However, the
dissent’s construction does not persuasively explain why
subsection (C) applies to items only when located at an
9 We suppose that defining “mine” to include “facilities” that are
“adjacent” to an extraction site eliminates some surplusage, but the
word “adjacent” appears nowhere in the text of statute.

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36
extraction site or processing plant, when Congress included
within that subsection “lands . . . or other property . . . used in,
or to be used in, or resulting from, the work of extracting such
minerals . . . [or] the milling of such minerals, or the work of
preparing coal or other minerals.” 30 U.S.C. § 802(h)(1)(C)
(emphasis added). Land and property can “be used in”
extraction or “result from” extraction even when that land or
property is not located at an extraction site, a milling site, or a
processing plant.
Application of the rule against surplusage gives clear
meaning to the “lands” covered in subsection (C): Those lands
that are “used in, . . . to be used in, or resulting from” mining
activity are mines, even if they are not located on the “area of
land” where extraction or preparation occurs, or on roads
appurtenant to such land. If that is true for “lands” defined by
subsection (C), it must also be true for the “facilities” defined
by subsection (C). See S.D. Warren Co. v. Me. Bd. of Env’t
Prot., 547 U.S. 370, 378 (2006) (“A word is known by the
company it keeps . . . .” (citation modified)); Beecham v.
United States, 511 U.S. 368, 371 (1994) (“That several items
in a list share an attribute counsels in favor of interpreting the
other items as possessing that attribute as well.”). We thus
understand the text to permit MSHA to exercise jurisdiction
over facilities even when those facilities are not located on an
area of extraction, any roads appurtenant to that land, or a
preparation site.

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37
4.
Legislative history further confirms10 that subsection (C)
covers more than facilities “adjacent to []or part of a working
mine.” Resps. Second Suppl. Br. 7 (quoting Maxxim, 848 F.3d
at 739). Congress enacted the Mine Act’s predecessor, the
Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”),
with the purpose of “improv[ing] mandatory health or safety
standards to protect the health and safety of the Nation’s coal
miners.” Pub. L. No. 91-173, § 2(g), 83 Stat. 742, 743. As our
nation’s use of mines accelerated, so too did the occurrence of
mining-related incidents. For example, 226 miners tragically
died from unexpected mine explosions in West Virginia, Ohio,
and Pennsylvania in 1940 alone. J. Davitt McAteer, The
Federal Mine Safety and Health Act of 1977: Preserving a
Law that Works, 98 W. Va. L. Rev. 1105, 1113 (1996).
Additional incidents also took the lives of 119 miners in Illinois
in 1951; 78 miners in West Virginia in 1968; 91 miners in
Idaho in 1972; and 26 miners in Kentucky in 1976. Id.
Because several forms of mine-related property were not
enumerated in the Coal Act’s mine definition, incidents like the
collapse of a retention dam left confusion as to whether the
Coal Act’s protections applied. This uncertainty put the Act’s
jurisdictional bounds in question, prompting congressional
action. Indeed, upon enacting the more comprehensive 1977
Mine Act, Congress cited the 1972 collapse of the Buffalo
Creek, West Virginia retention dams—“result[ing] in a large
10 Though “legislative history is not the law,” it can be helpful in
confirming or reinforcing what the text shows. Azar v. Allina Health
Servs., 587 U.S. 566, 579 (2019) (citation modified); Delaware v.
Pennsylvania, 598 U.S. 115, 138–39 (2023) (recognizing “that clear
evidence of congressional intent may illuminate ambiguous text”
(quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011))).

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number of deaths, and untold hardship to downstream
residents”—as a reason to amend the “mine” definition.
S. Rep. No. 95-181, at 14 (1977) (“[T]he Committee [was]
greatly concerned that at th[e] time [of the 1972 dam incident],
the scope of the authority of the Bureau of Mines to regulate
such structures under the Coal Act was questioned.”).
The Coal Act’s jurisdiction turned on location alone, and
Congress intended to change that with the Mine Act. The Coal
Act applied to “an area of land and all structures,
facilities, . . . and other property . . . placed upon, under, or
above the surface of such land.” 30 U.S.C. § 802(h)(2) (1976)
(emphases added); see also J.A. 161–62 (“[T]he coverage
reached and applied only to personal or real property related to
extracting coal in that land.” (emphasis in original)). In order
to clarify its intention to more broadly protect miners, Congress
replaced the location requirement in the Coal Act—where
property is placed—with a function requirement in the Mine
Act—how property is used. The Coal Act did not specifically
extend to “lands, excavations, shafts, slopes, and other
property, including impoundments, retention dams, and
tailings ponds.” S. Rep. No. 95-181, at 14. So, in the Mine
Act, Congress added subsection (C) to reach those items and
“express [its] intention that . . . [subsection (C) items] be
included in the definition of mine and subject to regulation
under the Act.” Id.
By reaching outside the location-limited boundaries in the
Coal Act, the Mine Act’s boundaries are less predictable than
the Coal Act’s. But where doubts concerning the Secretary’s
jurisdiction arose, Congress expressed an “intention that what
is considered to be a mine and to be regulated under this Act be
given the broadest possibl[e] interpretation,” and “that doubts
be resolved in favor of inclusion of a facility within the

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39
coverage of the Act.” Id. The Committee was “greatly
concerned” that the authority to regulate the dams at Buffalo
Creek, West Virginia was questioned prior to the 1972 collapse
of the three dams, and the Committee made clear that such
dams should be within the Mine Act’s jurisdiction. Id.
Notably, the closest of the three failed Buffalo Creek dams was
over 0.6 miles from the coal preparation plant which fed them
with wastewater. See Staff of S. Subcomm. on Lab. of the
Comm. on Lab. & Pub. Welfare, 92d Cong., Buffalo Creek (W.
Va.) Disaster, 1972 at 50 (Comm. Print 1972).
This history further supports our conclusion that
subsection (C) was necessary—at least in part—to ensure the
Mine Act’s jurisdiction extended to places that may not be
located at (or even adjacent to) an extraction, milling, or
processing site, even though they are necessarily connected
with the use and operation of a mine. Limiting jurisdiction in
the manner the Commission did would exclude the very
facilities, such as the Buffalo Creek retention dams, that
Congress expressly intended to cover.
The dissent gives lip service to this legislative history,
agreeing that retention dams and tailings ponds fall within the
definition of a mine under the Mine Act. See Dissenting Op.
37–38 & n.147. But our dissenting colleague nonetheless
remains steadfast that nothing, including a retention dam or a
tailings pond, can be a “mine” unless it is located “at” an
extraction site or a processing plant. Id. at 33–40. That is so,
even though there is no textual basis in the Mine Act to treat
retention dams and tailings ponds any differently than the
“facilities,” “tools,” “lands” or other items listed in subsection
(C), and the dissent concedes that retention dams and tailings
ponds are covered by the Mine Act, even when located miles

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40
away.11 The dissent therefore tries to reconcile its narrow,
location-specific construction of the Act with the fact that
retention dams and tailings ponds are usually miles away from
extraction or processing sites. To do so, the dissent rationalizes
that retention dams and tailings ponds are mines within the
meaning of subsection (C) because they can be construed as
part of a “unified mineral processing operation.” Dissenting
Op. 38, n.147 (quoting Donovan v. Carolina Stalite Co., 734
F.2d 1547, 1551 (D.C. Cir. 1984)).
The dissent’s reliance on Carolina Stalite to salvage its
strained interpretation gives away the game. In that case, we
relied on the facility’s “physical proximity and operational
integration” with the extraction site to find that the facility was
part of a “unified mineral processing operation” and thus a
mine within the meaning of subsection (C). See Carolina
Stalite, 734 F.2d at 1551. The Carolina Stalite “physical
proximity and operational integration” test looks a lot more like
11 Retention dams and tailings ponds are often located several miles
away from the nearest processing plant. See Coeur Alaska, Inc. v.
Se. Alaska Conservation Council, 557 U.S. 261, 267 (2009)
(proposed tailings pond was “located some three miles from the
mine”); Chevron Mining Inc. v. United States, 863 F.3d 1261, 1268–
69 (10th Cir. 2017) (mine tailings transported to tailings ponds nine
miles away from the open-pit mine); Molycorp, Inc., Site In New
Mexico Proposed To Federal Superfund List, 2000 WL 34430085
(tailings pond was six miles west of the mine); Michael R. Lee v.
Genesis, Inc., 32 FMSHRC 1392, 1394, 2010 WL 4037727, at *2
(distance from mill to tailings pond was “several miles”); Sec’y of
Labor, Mine Safety and Health Administration v. Fred Chismar, 22
FMSHRC 81, 82, 2000 WL 235729, at *1 (tailings pond was “about
two and a half miles outside the main gate of the mine”). .

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41
our construction of the statute: a facility is a mine when it is
“necessarily connected with the use and operation of
extracting, milling, or processing coal,” see infra Section III,
than the dissent’s interpretation: a facility is a mine only when
it is “at” an extraction, milling or processing site, see
Dissenting Op. 36–37.
III.
Construing 30 U.S.C. § 802(h)(1) as a whole, we conclude
that the best reading of the statute based on its text, structure,
context, and history defines a “facility” as a “mine” under
subsection (C) when it is necessarily connected with the use
and operation of extracting, milling, or processing coal and
other minerals. KC Transport and the dissent offer a parade of
horribles about trucks located hundreds of miles from an
extraction site or equipment that has not been used for mining
in years, but we are not compelled to define the outer limit of
the definition of “mine” with respect to movable objects or
items used long ago to decide this case.
The parties stipulated that the trucks at issue were
inspected while located at a “facility,” and the parties further
agreed that the trucks being inspected were used to haul coal
from nearby mines to a nearby coal preparation plant. See J.A.
5–8. Though there may be tough calls on the margins, these
and other stipulated facts make this one easy. The facility is
located less than 1,000 feet from Ramaco’s private haul road,
about a mile from its coal processing plant, and less than five
miles from its nearest extraction site. Id. at 6, 9. The facility
was constructed there at Ramaco’s permission. Id. at 7. Sixty
percent of the services KC Transport provided at the facility
were for Ramaco. Id. Those trucks servicing Ramaco
exclusively operated on Ramaco’s haul road, extraction sites,

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42
and preparation plant. Id. at 10. The cited trucks were actively
being used to haul coal from the Ramaco extraction site to the
preparation plant. Id. In fact, MSHA had previously inspected
the cited trucks while they were at the extraction sites and
preparation plant. Id. Under the best reading of the statute, a
facility that is this close to extraction sites and a preparation
plant and used to service trucks that routinely haul coal
between those locations, and which is built specifically for this
purpose is a “mine.” Indeed, KC Transport’s facility is closer
to an extraction site and a preparation plant than some retention
dams and tailings ponds. See supra at 39–40. Such a facility,
particularly when the majority of its services are for trucks used
by a coal mining company, is necessarily connected with
extracting and preparing coal; it is a “facilit[y] . . . used
in . . . the work of extracting . . . [and] preparing coal.” 30
U.S.C. § 802(h)(1)(C).
Admittedly, the statute’s text does not provide a
framework from which regulated parties can perfectly predict
the scope of MSHA’s jurisdiction with respect to all movable
objects that are, have been, or could be used in mining. While
that may be frustrating for KC Transport and similar businesses
servicing mines, we have no need to reach all of those questions
today. “Not every principle essential to the effective
administration of a statute can or should be cast immediately
into the mold of a general rule. Some principles must await
their own development, while others must be adjusted to meet
particular, unforeseeable situations.” Sec. & Exch. Comm'n v.
Chenery Corp., 332 U.S. 194, 202 (1947). Further, it is not our
job to question the prudence of Congress’s statutory scheme.
Feliciano v. Dep’t of Transp., 145 S. Ct. 1284, 1296 (2025).
We must enforce statutes as they are written. Epic Sys. Corp.
v. Lewis, 584 U.S. 497, 523 (2018). So doing, we hold that KC

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43
Transport’s facility is a mine pursuant to 30 U.S.C.
§ 802(h)(1)(C).
* * *
For the foregoing reasons, we vacate the Commission’s
decision and affirm the Secretary’s citations.
So ordered.

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PAN, Circuit Judge, concurring:
I join the majority opinion in full. I write separately to
express my view that a purely adjudicatory body — like the
Federal Mine Safety and Health Review Commission (the
“Commission”) — is not a proper party when this court reviews
one of its decisions. I also note that, because the court strikes
the Commission from the case caption here, the jurisdictional
arguments raised by the dissent are largely academic.
I begin with what should be common ground: A court
generally is not a proper party when a litigant seeks review of
one of its decisions.1 That is because “[j]udges sit as arbiters
without a personal or institutional stake on either side of the
[underlying] controversy.” In re Justs. of Sup. Ct. of P.R., 695
F.2d 17, 21 (1st Cir. 1982) (Breyer, J.). Because Article III of
the Constitution limits our jurisdiction to actual cases or
controversies, and adversity does not exist for a party with no
interest in the outcome of the proceedings, a district court may
not appear before us to defend a judgment that it has entered.
Cf. Pulliam v. Allen, 466 U.S. 522, 538 n.18 (1984) (stating that
there is “no [Article III] case or controversy between a judge
who adjudicates claims under a statute and a litigant who
attacks the constitutionality of the statute”).
That logic extends to other purely adjudicatory entities.
As the Supreme Court has explained, “[t]o require [an
executive-branch] adjudicator to appear before the courts of
appeals” to defend its decisions “makes little sense because that
adjudicator has no more interest or stake in defending its orders
in the courts of appeals than does a district court.” Ingalls
1 Narrow exceptions exist when a party seeks extraordinary
relief from a judge’s allegedly unlawful actions, see Ex parte Fahey,
332 U.S. 258, 259–60 (1947) (writs of mandamus), or when a court
fills a nonadjudicatory role, see Sup. Ct. of Va. v. Consumers Union
of U.S., Inc., 446 U.S. 719, 736 (1980).

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2
Shipbuilding, Inc. v. Dir., Off. of Workers’ Comp. Programs,
Dep’t of Lab., 519 U.S. 248, 268 (1997). Similarly, we have
held that the purely adjudicatory Occupational Safety and
Health Review Commission (“OSHRC”) cannot appear before
us as a party because it, “like a district court, has no duty or
interest in defending its decision on appeal.” Oil, Chem. &
Atomic Workers Int’l Union v. OSHRC (“OCAW”), 671 F.2d
643, 652 (D.C. Cir. 1982).
Like OSHRC, the Commission has a function that is
exclusively adjudicatory. See Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 215 (1994) (“[The Commission was]
established exclusively to adjudicate Mine Act disputes.”). In
the Federal Mine Safety and Health Act of 1977 (the “Act”),
“Congress place[d] adjudicatory authority” in the Commission,
and housed it “outside the agency charged with administering
and enforcing the statute.” Ingalls, 519 U.S. at 267. Under that
statutory scheme, the Secretary of Labor, “acting through” the
Mine Safety and Health Administration (“MSHA”),
administers and enforces the Act; and the Secretary and MSHA
appear as parties before the Commission and before courts of
appeals in their enforcement capacity. Sec’y of Lab., MSHA v.
Westfall Aggregate & Materials, Inc., 69 F.4th 902, 906 (D.C.
Cir. 2023). The Commission, meanwhile, fulfills its
adjudicatory function by “settl[ing] disputes between [private
parties] and the Secretary.” OCAW, 671 F.2d at 652. The
Commission, like OSHRC, “has no stake in the outcome” of
petitions for review of its decisions, and, accordingly, it “may
not participate in this court [upon] review [of its] decision as a
party respondent in proceedings initiated by any party to [its]
hearing.” Id. Our reasoning in OCAW applies here and
confirms that the Commission “should never be considered a
proper statutory respondent under” the Act. Id.; accord Jeroski
v. FMSHRC, 697 F.3d 651, 653 (7th Cir. 2012) (Posner, J.)
(“The [Commission] is the equivalent of a court.”).

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3
Despite the holdings of Ingalls, OCAW, and Jeroski, it is
not uncommon to find the Commission listed as a party in case
captions, like the one at bar. Perhaps some litigants have
treated the Commission as a party because they believe they
must do so under 30 U.S.C. § 816 (the judicial-review
provision of the Act) and Federal Rule of Appellate Procedure
15(a)(2)(B). But in my view, neither provision requires
petitioners to name the Commission as a respondent.
30 U.S.C. § 816 enumerates the procedures through which
parties can seek review of Commission decisions. Under
§ 816(a), once a party petitions a court to review a Commission
order, the clerk of the court must transmit “[a] copy of such
petition . . . to the Commission and to the other parties, and
thereupon the Commission shall file in the court the record in
the proceeding as provided in [28 U.S.C. § 2112].” My
dissenting colleague reads “to the Commission and to the other
parties” as implying that the Act considers “the Commission to
be a party.” Dissenting Op. 10. He argues that “[t]hose parties
would not be ‘other parties’ if the Act did not require the
Commission to be a party.” Id. (emphasis in original).
But that is not the most natural reading of § 816(a). When
that provision requires the clerk to transmit a copy of the
petition “to the Commission and to the other parties,” the word
“other” differentiates between the party that filed the petition
for review, and the other parties to the case. Admittedly, that
meaning would have been clearer if Congress had drafted
§ 816(a) differently, e.g., by directing the clerk to provide
copies “to the other parties and to the Commission.” But the
text’s meaning is illuminated by the way in which § 816(a) and
the cross-referenced § 2112 describe the Commission’s role.
Those two sections do not treat the Commission as a party, but
instead assign it tasks that should fall to a neutral arbiter, such
as requiring the Commission to “file in the court the record in

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4
the proceeding,” 30 U.S.C. § 816(a); enabling limited remands
for the Commission to engage in further factfinding, see id.;
and empowering the Commission to coordinate with the
judicial panel on multidistrict litigation, see 28 U.S.C.
§ 2112(a)(3).
Rule 15(a)(2)(B), meanwhile, instructs that a petition for
review of an agency decision “name the agency as a
respondent.” The dissent contends that this rule “requires the
Commission to participate in this suit” as a respondent.
Dissenting Op. 31. But our case law forecloses that argument.
Here, we consider a “split-function regime” in which
“Congress place[d] adjudicatory authority outside the agency
charged with administering and enforcing the statute.” Ingalls,
519 U.S. at 267; see also 30 U.S.C. §§ 811, 823. The
Commission’s purely adjudicatory role in a split-function
statutory scheme distinguishes it from agencies in which “a
single entity wears the hats of adjudicator and
litigator/enforcer,” and for which the application of Rule 15(a)
is therefore “straightforward.” Ingalls, 519 U.S. at 267. By
contrast, we held in OCAW that when a party petitions for
review of an adjudicator’s decision in a split-function regime,
“[t]he rationale of Federal Rule of Appellate Procedure 15(a)
which mandates that each petition for review of an agency
order shall name the agency as respondent is inapplicable.”
671 F.2d at 652–53. That holding binds us, especially given
the Supreme Court’s express decision to withhold judgment on
that very issue in Ingalls. See 519 U.S. at 267–68.2
2 I respectfully disagree with my dissenting colleague, who
asserts that OCAW’s logic is “in tension with recent Supreme Court
precedent.” Dissenting Op. 11 n.41. The cases he cites did not
address the propriety of naming an exclusively adjudicatory body as
a respondent: Garland v. Ming Dai held only that the word “appeal”
in the Immigration and Nationality Act does not cover a “petition for

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5
The erroneous inclusion of the Commission as a named
party does not always require us to take corrective action. See,
e.g., Otis Elevator Co. v. Sec’y of Lab., 921 F.2d 1285 (D.C.
Cir. 1990) (Thomas, J.) (adjudicating a case in which a private
petitioner named the Commission and the Secretary as
respondents). When a private petitioner seeking review under
§ 816(a) includes the Commission as a respondent alongside
the Secretary, MSHA, and/or an intervenor-respondent, an
Article III case or controversy exists between that petitioner
and the other listed respondents. Under such circumstances,
the Commission’s nominal — albeit wrongful — inclusion in
the case caption does not eliminate the requisite adversity of
interests. While a court may choose to strike or dismiss the
Commission, see, e.g., Jeroski, 697 F.3d at 653, it need not do
so under those circumstances.
As for § 816(b) petitions — i.e., petitions filed by the
Secretary/MSHA — I agree with the court’s holding that the
Secretary and MSHA do not violate the Constitution by naming
the Commission as a nominal respondent alongside a private
respondent. Where no party objects to such an arrangement —
and where true adversity exists between the Secretary and the
private respondent — a court need not implement corrective
measures. See, e.g., Westfall, 69 F.4th 902; Sec’y of Lab.,
MSHA v. Knight Hawk Coal, LLC, 991 F.3d 1297 (D.C. Cir.
2021); Sec’y of Lab., MSHA v. Consolidation Coal Co., 895
F.3d 113 (D.C. Cir. 2018); Sec’y of Lab., MSHA v. FMSHRC,
111 F.3d 913 (D.C. Cir. 1997); Sec’y of Lab., MSHA ex rel.
review” in a court of appeals. 593 U.S. 357, 366–67 (2021). And
United States v. Arthrex, Inc. simply analyzed the constitutional
source of executive-branch adjudicatory authority. See 594 U.S. 1,
17 (2021). Because neither of the cited cases discussed the issue at
hand or even mentioned the scope of Rule 15(a) in this or any other
context, those decisions did not undermine the holding in OCAW.

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6
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432 (D.C. Cir.
1989) (R.B. Ginsburg, J.).
But where, as here, a party argues that the presence of
executive-branch entities on opposite sides of a case raises
constitutional questions, the court can cure the captioning
deficiency — and thus entirely avoid those questions — by
striking or dismissing the Commission. And we can take that
step either upon a party’s motion, see, e.g., OCAW, 671 F.2d at
653; Hinson v. NTSB, 57 F.3d 1144, 1147 n.1 (D.C. Cir. 1995),
or sua sponte, see, e.g., Brown v. NHTSA, 673 F.2d 544, 544
n.* (D.C. Cir. 1982).3 By striking the Commission from the
case caption here, the court has eliminated the theoretical
constitutional concerns addressed by the dissent.
3 Rare situations may require other fixes. If, for example, a
petitioner names the Commission as the sole respondent, a court
must add the proper respondent (and may strike or dismiss the
Commission) to maintain a case or controversy. See OCAW, 671
F.2d at 653.

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WALKER, Circuit Judge, dissenting:
The Executive Branch’s history is replete with internal
conflict. Think Jefferson versus Hamilton.1
Or Calhoun versus Eaton.2
Or Seward versus Chase.3
Or Stimson versus Morgenthau.4
Or Marshall versus Clifford.5
1 Re: France; Debt; Federalism. See John Ferling, Jefferson and
Hamilton: The Rivalry That Forged a Nation 246 (2013) (France);
Ron Chernow, Alexander Hamilton 326–31 (2004) (federal
assumption of state debts); Stanley Elkins & Eric McKitrick, The Age
of Federalism 4 (1993) (federalism).
2 Re: Eaton’s wife. See John F. Marszalek, The Petticoat Affair:
Manners, Mutiny, and Sex in Andrew Jackson’s White House 66, 179
(1997) (controversy over Secretary of War John Eaton’s wife led to
dissolution of Andrew Jackson’s cabinet).
3 Re: Chase’s ego. See Shelby Foote, The Civil War: A Narrative:
Fredericksburg to Meridian 110 (Vintage Books 1986) (1963) (“In
general [Seward and Chase] were diametrically opposed. . . . Chase,
who was jealous of Seward’s position as the President’s chief
advisor, wanted not only the seat closest to the one at the head of the
table, but also, as time would show, the principal seat itself.”).
4 Re: Germany. See David McCullough, Truman 403 (1992) (debate
over Morgenthau’s proposal to de-industrialize Germany after World
War II).
5 Re: Israel. Recognition of Israel, Harry S. Truman Library &
Museum (accessed Aug. 1, 2025), https://perma.cc/SN5X-4RW3
(disagreement over whether to recognize Israel).

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2
Or Kissinger versus Rumsfeld.6
Or Baker versus Meese.7
Or Rubin versus Reich.8
Or Powell versus Rumsfeld (back again).9
Or Biden and Gates versus Panetta.10
The intra–Executive Branch dispute in today’s case is
hardly the stuff of history. A century from now, no “Team of
Rivals” tale will recount the Secretary of Labor’s conflict with
the Mine Safety and Health Review Commission over whether
an obscure auto shop in West Virginia is somehow a “mine.”
But though history is unlikely to dwell on that dispute, the
Constitution limits who can resolve it.
6 Re: Détente. See Donald Rumsfeld, Known and Unknown: A
Memoir 215–16 (2011).
7 Re: Conservatism. See H. W. Brands, Reagan: The Life 241–43
(2015) (pragmatism versus philosophical consistency).
8 Re: Liberalism. See Robert E. Rubin, In an Uncertain World 152–
53 (2003) (disagreement over the direction of the Democratic Party
after the 1994 election).
9 Re: Iraq. See Rumsfeld, supra, at 650 (disagreement over military
strategy).
10 Re: Killing bin Laden. See Barack Obama, A Promised Land 686
(2020) (“Joe also weighed in against the raid.”); Zeke J. Miller, Biden
Contradicts Earlier Account of Bin Laden Raid, Time (Oct. 20,
2015), https://perma.cc/AGL2-YAE3 (Gates “weighed in . . . in
opposition and . . . Panetta in favor”). Of course, Gates and Biden
had their own disagreements. See Robert Gates, Duty: Memoirs of a
Secretary at War 288 (2015) (On Biden: “I think he has been wrong
on nearly every major foreign policy and national security issue over
the past four decades.”).

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3
Under our Constitution, the resolution of an intra–
Executive Branch dispute belongs to the one “who alone
composes” the entire Executive “branch” — the President.11
Sure, he can delegate to subordinates when he lacks the time or
inclination to make a decision. But as a general matter, he
cannot delegate decisions with the force of law to anyone
outside the Executive Branch, especially not to an Article III
court.12
Those courts can decide only “Cases” and “Controversies”
between adverse parties. So Pepsi might sue Coca-Cola, but
Pepsi cannot sue Pepsi. Likewise the Executive might sue
Coca-Cola, but the Executive cannot sue the Executive.13
Today’s suit pits the Executive Branch against itself. That
is not a “Case” or “Controversy.” It therefore has no place in
a federal court.
I. Background
KC Transport is not a coal company. It does not mine coal,
mill coal, or process coal. Rather, KC contracts with Ramaco
Resources to haul coal for Ramaco in and around Emmett,
West Virginia.
11 Trump v. United States, 603 U.S. 593, 610 (2024) (quoting Trump
v. Mazars USA, LLP, 591 U.S. 848, 868 (2020)).
12 SEC v. FLRA, 568 F.3d 990, 997 (D.C. Cir. 2009) (Kavanaugh, J.,
concurring) (“legal or policy disputes between two Executive Branch
agencies are typically resolved by the President or his
designee — without judicial intervention”).
13 There are narrow exceptions established by precedent inapplicable
here for the reasons discussed in Part II.C below.

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4
Ramaco lets KC use a patch of land off a private road near
the mines to maintain KC’s trucks. KC built a parking lot on
the land and installed two shipping containers and two service
trucks to use as a repair shop. The shop is more than a mile
away from Ramaco’s coal-processing plant and about four or
five miles away from Ramaco’s nearest extraction site.
The trucks KC services at the shop transport more than
Ramaco’s coal. KC also uses the trucks for other customers
that don’t mine coal (or anything else). For instance, KC has a
“large earth moving project” for a different company.14
On March 11, 2019, Inspector John M. Smith, a coal-mine
inspector from the Mine Safety and Health Administration, a
subagency within the Department of Labor responsible for
enforcing the Federal Mine Safety and Health Act, was
inspecting Ramaco’s coal-processing plant. After finishing the
inspection, Inspector Smith wandered more than a mile along
a haulage road, down another road, across a creek, and through
an open gate, until he ended up at KC’s repair shop.
Thereupon, Inspector Smith launched into the Mine Safety and
Health Administration’s first-ever inspection related to KC’s
facility — despite the fact that if the facility were a “mine,”
there should have been at least two inspections a year.15 During
that inspection, Inspector Smith concluded that KC had not
taken sufficient precautions to prevent two trucks from moving
during maintenance.16 So he fined KC twice, once for each
truck.
14 JA 7.
15 30 U.S.C. § 813(a); see also JA 85 n.9.
16 30 C.F.R. § 77.404(c) (“Repairs or maintenance shall not be
performed on machinery until the power is off and the machinery is
blocked against motion, except where machinery motion is necessary
to make adjustments.”).

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5
Rather than pay the fines, KC challenged them before the
Mine Safety and Health Review Commission, a separate
Executive Branch agency charged with reviewing citations
issued by the Mine Safety and Health Administration. To
oversimplify a bit, KC argued that its repair shop is not a
“mine,” and the Mine Safety and Health Administration can
fine only “an operator of a coal or other mine.”17 The initial
administrative law judge who heard the dispute rejected KC’s
challenge, concluding that the repair shop was a “mine.”
On petition for discretionary review to the Commission,
the Commission reversed the administrative law judge.
Because KC’s shop was “distant from a mine site, owned by an
independent company, and used for parking and repairing its
vehicles,” the Commission said that KC’s shop was not a
“mine.”18 So the Commission concluded that the Mine Safety
and Health Administration lacked jurisdiction to issue the two
citations.
That decision created a conflict within the Executive
Branch. The Secretary of Labor thought KC’s shop was a
mine. The Commission thought it was not.
At that point, one of three things should have happened:
1. The Secretary of Labor, acting through the Mine
Safety and Health Administration, could have
stood down and allowed the Commission to block
KC’s fine.
2. The Commission could have reconsidered.
17 Id. § 814(a).
18 JA 164.

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6
3. Least likely of all, the President could have
intervened to resolve the intra-branch conflict.19
Instead, the Secretary of Labor and the Mine Safety and
Health Administration invited this court to resolve the intra–
Executive Branch dispute.
This court (sort of) accepted that invitation. It held that the
term “mine” was ambiguous, even though no party thought that
it was.20 Then, instead of determining the best reading of the
Mine Act, the court remanded for the Secretary to “reconsider
its position” in light of the Mine Act’s ambiguity and to
“adopt[ ] a reasonable interpretation of” the Mine Safety and
Health Administration’s jurisdiction.21
I dissented. I did not — and do not — believe that KC’s
repair shop is a “mine” as defined in the Mine Act.22 In
passing, as then-Judge Kavanaugh and Judge Rao had said in
similar cases, I observed that a “‘constitutional quandary is
raised by a federal court resolving a lawsuit,’ like this one,
‘between two Executive Branch agencies.’”23 “‘Such disputes
19 The nature of that intervention could have taken any number of
forms, limited by any number of practical considerations. Despite
those practical limitations, it is unlikely that any legal impediment
would have ultimately prevented the President from resolving the
conflict. Cf. infra, at 22–24 (explaining that the Commission’s
removal protections are likely unconstitutional).
20 Secretary of Labor v. KC Transport, Inc., 77 F.4th 1022, 1029
(D.C. Cir. 2023).
21 Id. at 1035.
22 See id. (Walker, J., dissenting); see also infra, Part III.
23 KC Transport, 77 F.4th at 1036 n.1 (Walker, J., dissenting)
(quoting USPS v. Postal Regulatory Commission, 963 F.3d 137, 143

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7
do not appear to constitute a case or controversy for purposes
of Article III,’ because ‘agencies involved in intra–Executive
Branch disputes are not adverse to one another (rather, they are
both subordinate parts of a single organization headed by one
CEO).’”24 But like Judges Kavanaugh and Rao, I understood
“[o]ur precedents” to “allow such suits to proceed,” at least in
the circumstances at hand.25
KC sought certiorari. After that, the Supreme Court
decided Loper Bright Enterprises v. Raimondo, which held that
courts deciding a case or controversy may not defer to agencies
“when faced with a statutory ambiguity,” but must instead
independently “determine the best reading of the statute.”26 In
light of Loper Bright, the Supreme Court granted cert, vacated
this court’s judgment, and remanded for us to reconsider the
petition for review.27
We asked for supplemental briefing on the effect of Loper
Bright. After that, we held an oral argument, which included
some questioning about the petition’s justiciability. We then
requested briefing on justiciability, among other things.
(D.C. Cir. 2020) (Rao, J, concurring)) (cleaned up); see also SEC,
568 F.3d at 997 (Kavanaugh, J., concurring).
24 KC Transport, 77 F.4th at 1036 n.1 (Walker, J., dissenting)
(quoting SEC, 568 F.3d at 997 (Kavanaugh, J., concurring)) (cleaned
up).
25 Id.; see also SEC, 568 F.3d at 998; Postal Regulatory Commission,
963 F.3d at 144.
26 603 U.S. 369, 400 (2024).
27 KC Transport, Inc. v. Su, 144 S. Ct. 2708 (2024).

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8
II. This Intra–Executive Branch Dispute Is Not Justiciable
“Before turning to the merits, we must assure ourselves of
our jurisdiction.”28 Article III limits our jurisdiction to “Cases”
and “Controversies.”29 That means the plaintiff or petitioner
must demonstrate an “actual controvers[y] arising between
adverse litigants.”30
In today’s case, one part of the Executive Branch — the
head of an agency (the Secretary of Labor) and a subagency
(the Mine Safety and Health Administration) — has
challenged the decision of another part of the Executive Branch
(the Mine Safety and Health Review Commission). That
makes this an intra–Executive Branch dispute, not a conflict
between adverse litigants.
We should therefore dismiss the petition for review. As a
general matter, an intra–Executive Branch dispute is not a
justiciable case or controversy in which the plaintiff or
petitioner has standing to sue. Though I once read our
precedents to preclude a dismissal on that ground, those
precedents can and should be distinguished.
A. This Is an Intra–Executive Branch Dispute
Despite the presence of an executive agency on opposing
sides of this case’s caption, the Secretary of Labor argues that
28 Students for Fair Admissions, Inc. v. President and Fellows of
Harvard College, 600 U.S. 181, 198 (2023).
29 U.S. Const. art. III, § 2.
30 Muskrat v. United States, 219 U.S. 346, 361 (1911).

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9
this suit “is not properly considered an intra–Executive Branch
dispute.”31 She makes two arguments. Neither persuades.
First, the Secretary argues that this case “is in substance a
dispute between the Secretary and KC Transport,” so “the
nominal presence” of the Commission as a respondent “does
not deprive the courts of Article III jurisdiction.”32
But it was the Commission, not KC, that enjoyed the legal
authority to stop the Secretary from citing KC. So the
Secretary’s actual dispute is with the Commission, not KC. In
standing terms, the Secretary’s asserted injury of being unable
to enforce the Mine Act as she sees fit — the injury that a
judgment “modifying” or “setting aside” the Commission’s
order would most naturally redress33 — is “fairly traceable” to
the Commission’s decision, not to any “challenged action”
taken by KC.34
31 Secretary Second Supplemental Br. 2.
From here on, for simplicity, I will say “the Secretary” when I refer
to the Secretary of Labor and the Mine Safety and Health
Administration in the context of their mutual legal arguments.
32 Id. at 6, 8; cf. United States v. ICC, 337 U.S. 426, 430 (1949)
(“courts must look behind names that symbolize the parties to
determine whether a justiciable case or controversy is presented”).
33 30 U.S.C. § 815(a)(1) (“Upon” the “filing” of a petition for review
of the Commission’s order, “the court . . . shall have power to make
and enter . . . a decree affirming, modifying, or setting aside . . . the
order of the Commission . . . .”); id. § 815(b) (“The Secretary may
also obtain review . . . of any final order of the Commission . . . .”).
34 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(cleaned up).

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10
Second, the Secretary argues that “the Commission is
likely not a proper respondent in this proceeding” at all.35 She
relies on Oil, Chemical and Atomic Workers International
Union v. Occupational Safety and Health Review
Commission.36 In that case applying the Occupational Safety
and Health Act, this court held that the Occupational Safety and
Health Review Commission was not a proper respondent
during judicial review of its orders.37
Oil Workers dealt with a different statute and does not
control this case. To be sure, the Occupational Safety and
Health Act and the Mine Act are similar, but there are good
reasons not to extend Oil Workers to the Mine Act. For one
thing, the Mine Act’s plain text refers to “the Commission”
when describing who will participate in judicial review.38 It
instructs the relevant circuit court clerk to transmit a filed
petition “to the Commission and to the other parties.”39 Those
parties would not be “other parties” if the Act did not require
the Commission to be a party.40 For another, the Federal Rules
35 Secretary Second Supplemental Br. 10.
36 671 F.2d 643 (D.C. Cir. 1982).
37 Id. at 651–53.
38 30 U.S.C. § 816(a)(1).
39 Id.
40 Id. (emphasis added).
The Article III adversariness problem this causes does not grant us
permission to re-write this statute under the guise of severability
doctrine and pretend the Mine Act doesn’t make the Commission a
party. But see Maj. Op. 29 n.7. Statutory provisions often result in
a lack of constitutional jurisdiction. See, e.g., Hayburn’s Case, 2
U.S. (2 Dall.) 408, 410 n.† (1792). That doesn’t mean we get to re-
write those statutes to give ourselves jurisdiction. See Muskrat, 219
U.S. at 350, 360–61 (failing to use severability analysis to confer

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11
of Appellate Procedure require petitioners to “name the agency
as a respondent.”41
jurisdiction upon itself when a statute created adversity problems).
Instead, we dismiss. Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506,
514 (1869) (“Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.”). Thus, the Supreme
Court has done just that when faced with mandatory-joinder rules
that lead to jurisdictional problems. See Minnesota v. United States,
305 U.S. 382 (1939) (dismissing for lack of jurisdiction a suit
brought against several individuals because the United States was a
mandatory party and possessed sovereign immunity). That is the
proper course here.
41 Fed. R. App. P. 15(a)(2)(B). To be sure, in Oil Workers, this court
said that the “rationale” for Rule 15(a) was “inapplicable” to judicial
review of Occupational Safety and Health Review Commission
orders. 671 F.2d at 652–53. And upon motion of a party, it
dismissed the OSHRC and struck it from the caption. Id. at 653; see
also Hinson v. National Transportation Safety Board, 57 F.3d 1144,
1147 n.1 (D.C. Cir. 1995) (striking a similar agency’s brief upon
motion by the petitioner). But Oil Workers doesn’t govern on this
point either.
We should read Oil Workers in light of its distinctive context.
After all, the logic of Oil Workers is in tension with recent Supreme
Court precedent. In Oil Workers, our court reasoned that Rule 15
was “inapplicable” because “requir[ing] the OSHRC to appear as a
party would parallel requiring a district court to appear and defend
its decision upon direct appeal.” Id. at 653. But that logic has been
undermined by two strands of precedent: First, the Supreme Court
has now made clear that even if Rule 15 treats “collateral judicial
review of executive action as ‘an appeal,’ . . . that does not make it
an ‘appeal’ akin to that taken from the district court to the court of
appeals.” Garland v. Ming Dai, 593 U.S. 357, 367 (2021). That is
true even when decisions of adjudicatory bodies, like the Board of
Immigration Appeals in Ming Dai or the Commission here, are

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12
If anyone is an unlikely respondent, it’s KC. When
petitioners (like the Secretary and the Mine Safety and Health
Administration) seek review of an agency action (like the
Commission’s), the agency responsible for the reviewable
action ordinarily appears as the respondent, and only after the
suit is filed do affected third parties ordinarily have the
opportunity to intervene.42 Here, KC’s role is analogous to a
third-party intervenor, whose presence is not typically
required.
In short, the Secretary’s “beef in this Court” is with the
Commission, not KC.43 Therefore, this petition presents an
intra–Executive Branch dispute.
“appeal[ed]” to a federal court. Id. Second, even if “[t]he activities
of” the Commission “may take . . . ‘judicial’ forms, . . . they are
exercises of — indeed, under our constitutional structure they must
be exercises of — the ‘executive Power,’ for which the President is
ultimately responsible.” United States v. Arthrex, Inc., 594 U.S. 1,
17 (2021) (cleaned up). So I would not read Oil Workers to render
Rule 15 inapplicable here. And so I would decline to exercise the
majority’s amorphous sua-sponte-party-dismissal-and-caption-
reformation power.
42 See, e.g., Center for Biological Diversity v. FERC, 67 F.4th 1176
(D.C. Cir. 2023) (environmental groups as petitioners, FERC as
respondent, and pipeline developer as intervenor); Alphabet Workers
Union-Communication Workers of America, Local 9009 v. NLRB,
134 F.4th 1217 (D.C. Cir. 2025) (union as petitioner, NLRB as
respondent, and employers as intervenors).
43 KC Second Supplemental Br. 6.

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13
B. Intra–Executive Branch Disputes Are
Traditionally Nonjusticiable
Intra–Executive Branch lawsuits violate “the long-
recognized general principle that no person may sue himself.”44
Here, the Secretary of Labor, the Mine Safety and Health
Administration, and the Mine Safety and Health Review
Commission are “subordinate parts of a single organization
headed by one CEO” — the President.45 Put another way,
because the President is the Executive Branch,46 and those who
serve in the Executive Branch serve only as his “alter ego[s],”47
this dispute is in constitutional contemplation just President v.
President. Therefore, the parties — or really the party — “are
not adverse to one another,” and their dispute over how to
interpret the Mine Act does not “constitute a case or
controversy for purposes of Article III.”48
“This analysis is uncontroversial” in most contexts.49 For
example, no one expects a federal court to resolve a foreign-
policy conflict between the Secretary of State and the Secretary
of Treasury — if only because the Supreme Court disclaimed
jurisdiction over exactly that shortly after the Founding.50
44 ICC, 337 U.S. at 430.
45 SEC, 568 F.3d at 997 (Kavanaugh, J., concurring).
46 Trump v. United States, 603 U.S. at 610.
47 Myers v. United States, 272 U.S. 52, 133 (1926).
48 SEC, 568 F.3d at 997 (Kavanaugh, J., concurring).
49 Id.
50 Cf. Sprint Communications Co., LP v. APCC Services, Inc., 554
U.S. 269, 274 (2008) (“history and tradition offer a meaningful guide
to the types of cases that Article III empowers federal courts to
consider”).

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14
In that dispute, George Washington’s cabinet disagreed
about the best response to “late-eighteenth-century European
hostilities that had spilled into North America.”51 Secretary of
State Thomas Jefferson thought that certain treaties obligated
the United States to aid France.52 Conversely, Secretary of
Treasury Alexander Hamilton thought that France’s
subsequent revolution provided grounds to suspend the
treaties.53
Washington decided to call on the Supreme Court for
assistance. At Washington’s direction, Jefferson sent a letter
to Chief Justice John Jay requesting the Court’s opinion on
twenty-nine legal questions.54
In the famed Correspondence of the Justices, Jay declined
to “extrajudicially decid[e] the questions alluded to.”55 In a
letter to Washington, Jay explained that a judicial advisory
opinion would violate “[t]he lines of separation drawn by the
Constitution between the three Departments of Government.”56
He added that “the Power given by the Constitution to the
President of calling on the Heads of Departments for opinions,
51 William Baude, Jack Goldsmith, John F. Manning, James E.
Pfander, & Amanda Tyler, Hart & Wechsler’s The Federal Courts
and the Federal System 66 (8th ed. 2025).
52 Thomas Jefferson, Opinion on the Treaties with France (April 28,
1793), https://perma.cc/BPA7-6YZ6.
53 Alexander Hamilton, Enclosure: Answer to Question the 3d.
Proposed by the President of the UStates (May 2, 1793),
https://perma.cc/M6HW-SGEK.
54 See Hart & Wechsler, supra, at 67–68.
55 Letter from the Justices of the Supreme Court to President George
Washington (Aug. 8, 1793), https://perma.cc/D3MW-NP5X.
56 Id.

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15
seems to have been purposely as well as expressly limited to
executive Departments.”57
Since then, intra–Executive Branch disputes usually get
resolved in one of three ways.
1. The President decides the question.58
2. The President designates someone else in the
Executive Branch to decide the question, subject
to the President’s supervision.59
3. The President defers any definitive resolution of
the dispute.60
57 Id.
58 Doris Kearns Goodwin, Team of Rivals: The Political Genius of
Abraham Lincoln 335-37, 340 (2005) (Lincoln siding with cabinet
officials who wanted to resupply Fort Sumter over cabinet officials
who didn’t want to); cf. Secretary Second Supplemental Br. 13 (“if
the President agreed with the Commission’s understanding of the
Secretary’s jurisdiction, he could have directed the Secretary not to
pursue judicial review”).
59 Exec. Order No. 12,146, Management of Federal Legal Resources,
44 Fed. Reg. 42657, 42658 (July 18, 1979) (“Whenever two or more
Executive agencies are unable to resolve a legal dispute between
them, including the question of which has jurisdiction to administer
a particular program or to regulate a particular activity, each agency
is encouraged to submit the dispute to the Attorney General.”); 28
U.S.C. § 512 (“The head of an executive department may require the
opinion of the Attorney General on questions of law arising in the
administration of his department.”); 28 C.F.R. § 0.25(a) (The Office
of Legal Counsel is responsible for “[p]reparing the formal opinions
of the Attorney General” and “rendering informal opinions and legal
advice to the various agencies of the Government.”).
60 David Halberstam, The Best and the Brightest 350 (Fawcett 1973)
(1972) (“he did not want to rush too quickly, to split his
Administration unnecessarily”).

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16
What the President generally cannot do is what Chief
Justice Jay read Article II and Article III of the Constitution to
proscribe — delegate his decisions to the federal Judiciary.
That’s because Article II vests all of the “executive Power” in
the President, and Article III limits courts’ jurisdiction to the
“Cases” and “Controversies” of adverse parties.61
C. No Exception Renders This Dispute Justiciable
Against this backdrop, courts have found intra–Executive
Branch disputes justiciable only in narrow circumstances.
Beginning primarily in the mid-twentieth century, courts began
hearing intra–Executive Branch disputes (1) when an agency
asserts an interest in its corporate, rather than sovereign,
capacity, or (2) when Congress has purported to provide the
agency with independence from the President. That second
exception is a relic of the Humphrey’s Executor era when the
administrative state haunted American public law as a
“headless Fourth Branch”62 — an era that has not survived the
Supreme Court’s decisions in Free Enterprise Fund,63 Seila
Law,64 Collins,65 and Trump v. United States,66 to name just a
few.
61 U.S. Const. art. II, § 1, cl. 1; id. art. III, § 2.
62 Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 921
(1991) (Scalia, J., concurring in part and concurring in the
judgment); see also Humphrey’s Executor v. United States, 295 U.S.
602 (1935).
63 Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010).
64 Seila Law LLC v. CFPB, 591 U.S. 197 (2020).
65 Collins v. Yellen, 594 U.S. 220 (2021).
66 603 U.S. at 610 (“The President” is “the only person who alone
composes a branch of government.”).

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17
In today’s case, the first exception does not apply because
no agency is asserting an interest in its corporate capacity. And
even if the second exception has survived the Supreme Court’s
recent cases, it does not apply here because the Secretary has
forfeited any argument that any agency in this case is
independent of the President. That forfeiture is understandable
in light of the current administration’s position that
Humphrey’s Executor was wrongly decided.67
1. Nongovernmental Interest
Precedents allow courts to adjudicate some intra–
Executive Branch disputes when the plaintiff-agency asserts a
nongovernmental interest — for example, if it sues in its
capacity as a regulated entity68 or as a market participant.69 In
these types of cases, the plaintiff-agency acts “as a private party
would” — that is, as “a beneficiary of [a] regulatory
scheme” and not as a sovereign attempting to enforce the law
against private parties.70 When acting in this “corporate
67 Letter from Sarah M. Harris, Acting Solicitor General, to Richard
J. Durbin, Ranking Member, Senate Committee on the Judiciary, Re:
Restrictions on the Removal of Certain Principal Officers of the
United States (Feb. 12, 2025), https://perma.cc/LE2W-4MFT.
68 See e.g., IRS v. FLRA, 494 U.S. 922 (1990) (IRS challenge to
FLRA order requiring IRS to bargain with union); Postal Regulatory
Commission, 963 F.3d at 138 (Postal Service challenge to regulator’s
order requiring “disclosure of certain financial information”).
69 ICC, 337 U.S. at 428 (challenge to railroad shipping rates charged
to government); United States v. FCC, 707 F.2d 610, 612 n.2 (D.C.
Cir. 1983) (challenge on behalf of several executive agencies in their
“consumer interests” to AT&T’s telephone rates).
70 Michael Herz, United States v. United States: When Can the
Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 959–
60 (1991); see also Director, Office of Workers’ Compensation

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18
capacity,” agencies have been permitted to assert a
nongovernmental “interest against another agency.”71
By contrast, when an agency sues another agency in its
“status . . . as [a] regulator or administrator,” it asserts a
sovereign interest.72 Because “[t]here is but one federal
sovereign,” there can be but one sovereign interest.73 So “[i]f
both sides assert an interest as a sovereign,” then they “are
asserting the same interest, and there is no controversy.”74
Programs, Department of Labor v. Newport News Shipbuilding &
Dry Dock Co., 514 U.S. 122, 128 (1995) (intra–Executive Branch
suits may be permissible when an agency sues in “its non-
governmental capacity — that is, in its capacity as a member of the
market group that the statute was meant to protect”).
71 Joseph W. Mead, Interagency Litigation and Article III, 47 Ga. L.
Rev. 1217, 1258 (2013).
72 Newport News, 514 U.S. at 128.
73 Mead, supra, at 1260.
74 Id. at 1255.
The distinction between the Government’s capacity as a sovereign
and as a marketplace participant is recognized in other areas of the
law. For example, the Foreign Sovereign Immunities Act protects
foreign governments from suits related to their sovereign activities,
but not related to their activities as market participants. 28 U.S.C.
§ 1605(a)(2) (“A foreign state shall not be immune . . . in any
case . . . in which the action is based upon a commercial activity
carried on in the United States by the foreign state . . . .”). Similarly,
the antitrust state-action doctrine contemplates that states may not be
immune from federal antitrust laws when acting as market
participants, even though the antitrust laws generally do not cover
state regulatory actions. See City of Columbia v. Omni Outdoor
Advertising, Inc., 499 U.S. 365, 379 (1991) (“with the possible
market participant exception, any action that qualifies as state action
is ipso facto exempt from the operation of the antitrust laws”

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19
No doubt, agencies may disagree about how to exercise the
United States’s sovereign powers in enforcing the law against
third parties. But those disputes are for the President to resolve.
To involve the federal courts would be to ask them to decide
“intrabranch and intraagency policy disputes — a role that
would be most inappropriate.”75
The Secretary’s principal authority, United States v. ICC,
does not help the Secretary. Instead, it provides a paradigmatic
example of the nongovernmental-interest exception and shows
why this case does not fit into that exception.
ICC involved railroad tariffs charged to the War
Department during World War II.76 After the Government took
control of piers in Norfolk, Virginia, it took responsibility for
transporting goods between railcars and piers.77 But the
Government alleged that the railroads continued to charge for
that service even though they were no longer providing it.78 So
it filed a complaint with the Interstate Commerce Commission
seeking to recover the alleged overcharges.79 The Commission
denied relief, and the Government brought an action in federal
court challenging the unfavorable order.80
(cleaned up)). And finally, the Dormant Commerce Clause permits
states to discriminate against out-of-state businesses when acting as
market participants but not when acting as regulators. See Reeves,
Inc. v. Stake, 447 U.S. 429, 436–37 (1980).
75 Newport News, 514 U.S. at 128–29.
76 337 U.S. at 428; see also United States v. ICC, 78 F. Supp. 580,
581 (D.D.C. 1948).
77 ICC, 337 U.S. at 428.
78 Id.
79 Id. at 428–29.
80 Id. at 429.

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Although the United States was on opposing sides of the
caption, the Supreme Court held that the case was justiciable
because the Government had challenged the ICC order in its
capacity as a market participant.81 According to the Court, “the
Government” was “not less entitled than any other shipper to
invoke administrative and judicial protection” to determine
whether it was overcharged.82
The Secretary reads ICC for the proposition that “[w]here
there is an actual case or controversy between a federal agency
and private party, the nominal presence of another federal
agency does not deprive the courts of Article III jurisdiction.”83
But that reading is contrary to the Supreme Court’s
understanding of its own precedent. As that Court has
explained, the key takeaway from ICC is that “the status of the
Government as a statutory beneficiary or market participant
must be sharply distinguished from the status of the
Government as regulator or administrator.”84 Thus, ICC’s
justiciability turned not on “the presence of the railroads” as
private parties, but on “the presence of a nongovernmental
interest on the part of the United States.”85
This court, too, has heard intra–Executive Branch disputes
involving nongovernmental interests. For example, in United
81 Id. at 430; see also Newport News, 514 U.S. at 128 (explaining that
ICC dealt with a suit by the Government “in its capacity as a member
of the market group that the statute was meant to protect”).
82 ICC, 337 U.S. at 430 (emphasis added).
83 Secretary Second Supplemental Br. 8.
Even if this understanding of ICC were correct, it wouldn’t help
the Secretary because the Commission’s presence isn’t “nominal” in
any sense of the word. See supra, Part II.A.
84 Newport News, 514 U.S. at 128 (discussing ICC, 337 U.S. 426).
85 Herz, supra, at 959.

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States v. FCC, executive agencies challenged the “rate of
return” set by the FCC for AT&T’s interstate and international
telephone services.86 The Department of Justice brought the
challenge on behalf of the “Department of Defense, the General
Services Administration, and other federal executive agencies”
to vindicate their “consumer interests.”87 In other words, the
agencies sued the FCC in their corporate capacities as
telephone ratepayers, not in their sovereign capacities as
enforcers of the law.
This petition is not like ICC or FCC. The Secretary has
not challenged the Commission’s order as a market participant
or as a regulated entity. Instead, the Secretary is suing “as [a]
regulator or administrator”88 seeking to vindicate its sovereign
interest “in [the] enforcement of the laws.”89 So this suit does
not fall under the nongovernmental-interest exception.
2. Presence of an “Independent Agency”
Courts have also held that intra–Executive Branch disputes
involving so-called independent agencies — that is, agencies
whose heads purport to enjoy removal protection — are
86 707 F.2d at 612; see also In the Matter of American Telephone &
Telegraph Co., 86 F.C.C.2d 257, 258 (1981).
87 FCC, 707 F.2d at 612 n.2.
88 Newport News, 514 U.S. at 128.
89 Secretary Second Supplemental Br. 2.
The Secretary also asserts an interest in collecting a civil penalty
from KC. Id. Although money is at stake, the Secretary here is not
acting as a market participant seeking to recoup overcharges, unlike
in ICC. Instead, the Secretary seeks to collect the civil penalty in her
sovereign capacity, and any penalty collected would “accrue to the
United States” “for deposit into the Treasury.” 30 U.S.C. § 820(j).

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justiciable.90 The theory goes that because independent
agencies “operate with some (undefined) degree of substantive
autonomy from the President in a kind of extra-constitutional
Fourth Branch,” they “can be sufficiently adverse to a
traditional executive agency to create a justiciable case.”91
That theory might have made sense on the logic of
Humphrey’s Executor, which upheld removal restrictions on
members of the Federal Trade Commission in 1935 on the
grounds that the FTC “occupie[d] no place in the executive
department” at all.92 Under that logic, there would not even be
an intra-branch dispute if an independent agency is involved.
Today, Humphrey’s Executor is a shell of itself.93 The
Supreme Court has emphasized that Humphrey’s Executor’s
“conclusion that the FTC did not exercise executive power has
not withstood the test of time.”94 And the Court has interpreted
90 SEC, 568 F.3d at 997 (Kavanaugh, J., concurring).
91 Id. United States v. FMC, 694 F.2d 793 (D.C. Cir. 1982), is best
understood as falling within this category. See SEC, 568 F.3d at 997
(Kavanaugh, J., concurring) (reading FMC that way). To be sure,
the majority’s opinion in FMC obscured more than it illuminated.
Just 10 days after it was written, another panel explained that FMC
held the dispute at issue justiciable simply because it “raise[d] issues
that courts traditionally resolve and the setting assure[d] . . . concrete
adverseness.” United States v. FMC, 655 F.2d 247, 252 (D.C. Cir.
1980). That’s not much of an explanation. So in making FMC fit
with the entire body of precedent, the best reading would seem to be
that the dispute ensured “sufficient adversity” for the reason the
Department of Justice in that case suggested: the Commission was
“an independent agency.” FMC, 694 F.2d at 810.
92 Humphrey’s Executor, 295 U.S. at 627–28.
93 See Harris v. Bessent, 160 F.4th 1235, 1248 (D.C. Cir. 2025)
(“[V]ery little remains of Humphrey’s Executor.”).
94 Seila Law, 591 U.S. at 216 n.2.

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the decision as a narrow exception to the baseline rule that the
President may remove executive officers at will.95 Under the
modern Court’s rule, removal restrictions are permissible only
for the heads of “a multimember body of experts, balanced
along partisan lines, that perform[s] legislative and judicial
functions” and that does “not wield substantial executive
power.”96
95 Id. at 216–17; Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025) (the
President “may remove without cause executive officers who
exercise that power on his behalf, subject to narrow exceptions
recognized by our precedents” (citing Seila Law, 591 U.S. at 215–
18)); see also Severino v. Biden, 71 F.4th 1038, 1050 (D.C. Cir.
2023) (Walker, J., concurring) (“[L]ittle to nothing is left of the
Humphrey’s exception to the general rule that the President may
freely remove his subordinates.”).
96 Seila Law, 591 U.S. at 216, 218.
The Supreme Court has also upheld restrictions on the President’s
power to remove “inferior officers with limited duties and no
policymaking or administrative authority,” id. at 218, such as the
independent counsel in Morrison v. Olson, 487 U.S. 654 (1988).
Unlike the FTC in Humphrey’s Executor, the independent counsel in
Morrison was understood to be part of the Executive Branch. See
Morrison, 487 U.S. at 691–92; Seila Law, 591 U.S. at 217–18. But
like the FTC, the independent counsel was still deemed, well,
independent. See Morrison, 487 U.S. at 691–92. That lies in tension
with the Court’s more recent teaching that the President “alone
composes” the entire executive “branch.” Trump v. United States,
603 U.S. at 610. Still, while Morrison remains on the books, it may
mean that intra–Executive Branch disputes involving independent
counsel investigations cannot be properly characterized as President
v. President. Cf. SEC, 568 F.3d at 997 (Kavanaugh, J., concurring)
(explaining that intra–Executive Branch disputes have been treated
as permissible when “Presidents cannot (or at least do not) fully
control” the Executive Branch officials). Accordingly, they may
present sufficient adversity to be justiciable. See United States v.
Nixon, 418 U.S. 683, 692–97 (1974).

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The Secretary has not argued that the Commission satisfies
that test. Nor has the Secretary argued that this petition is
justiciable based on the Commission’s status as an independent
agency. Therefore, the Secretary “forfeited reliance on” any
independent-agency exception, and we need not “consider
it.”97
In any event, I doubt that the Commission’s removal
protections are constitutional.98 For one thing, the Commission
may represent itself in court, even if it sometimes elects not to
substantively participate in litigation. It may petition courts to
enforce its subpoenas, including by holding individuals in
contempt.99 And it exists as a permanent body.100 These are
likely among the reasons that one member of the Supreme
Court has already concluded that the Commission “exercis[es]
substantial executive authority,”101 which disqualifies it from
the Humphrey’s Executor exception to the President’s power
to remove principal officers at will.102
In short, the Secretary does not assert, and the
Constitution, even under current Supreme Court precedent,
97 Clevinger v. Advocacy Holdings, Inc., 134 F.4th 1230, 1235 (D.C.
Cir. 2025).
98 See 30 U.S.C. § 823(b)(1) (commissioners removable “by the
President for inefficiency, neglect of duty, or malfeasance in office”).
99 Id. § 823(e).
100 Cf. Wiener v. United States, 357 U.S. 349, 350 (1958) (“The
Commission was to wind up its affairs not later than three years after
the expiration of the time for filing claims . . . .”).
101 PHH Corp. v. CFPB, 881 F.3d 75, 173 (D.C. Cir. 2018) (en banc)
(Kavanaugh, J., dissenting).
102 See Seila Law, 591 U.S. at 218 (Humphrey’s Executor exception
applies only “for multi-member expert agencies that do not wield
substantial executive power.”).

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25
likely does not allow, the Commission to exist outside of
Article II in a supposed “Fourth Branch” of government.103 It
is a subordinate Executive Branch agency. So it is not legally
adverse to other parts of the Executive Branch — just as the
Chief Executive is not legally adverse to himself.
D. The Majority’s Counterarguments
The majority offers three main counterarguments. It
argues (1) intra–Executive Branch disputes are justiciable
because early congresses blessed that practice; (2) my two
purported exceptions are too narrow, because Supreme Court
precedent establishes that adversity exists between the
President and himself whenever Congress says so; and (3) this
case does not need to be an intra–Executive Branch dispute at
all, because Federal Rule of Appellate Procedure 2(a) lets us
disregard Federal Rule of Appellate Procedure 15’s
requirement that the Commission be joined as respondent. All
three fail.
1. Early Congressional Practice
The majority starts by pointing to a few statutes from the
first four congresses. But these statutes don’t mean what the
majority thinks they mean.
The majority’s own cases prove as much. Walton v.
United States, for example, was not an early intra-Executive
lawsuit because it involved a suit against an apparent former
government official.104 So, naturally, the suit was “against
[Walton] in his individual capacity,” not his official
103 SEC, 568 F.3d at 997 (2009) (Kavanaugh, J., concurring).
104 See 2 U.S. (9 Wheat.) 651, 652 (1824).

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capacity.105 So too with Sthreshley v. United States, another
suit brought against an individual who no longer even occupied
the office.106
This all makes sense if one just zooms out a bit. The whole
point of the statutes the majority cites was that the United
States would receive money when certain officials failed to
uphold their legal responsibilities.107 Thus, the suits brought
under these statutes must have been brought against private
individuals. If it were otherwise, judgment would have run
against the office, meaning the Government would have had to
pay itself — a pointless enterprise, even by government
105 Id. at 653; see also id. at 651, 656.
106 8 U.S. (4 Cranch) 169, 171 (1807).
107 E.g., An Act to Establish the Post-Office and Post Roads Within
the United States, ch. 7, § 24, 1 Stat. 232, 238–39 (1792) (providing
that the Postmaster General should “cause a suit to be commenced”
against “any deputy postmaster or other person,” who “refuse[d] to
render his accounts, and pay over to the Postmaster General, the
balance by him due, at the end of every three months” and if he failed
to do so, “the balances due from every such delinquent” would “be
charged to, and recoverable from the Postmaster General”); see also
Mead, supra, at 1236 (discussing this law); Postmaster-General of
the United States v. Early, 25 U.S. (12 Wheat.) 136, 144–45 (1827)
(discussing this law and its successors); id. at 145 (“The suit is
brought for money due to the United States . . . .”). To the extent any
of the remaining statutes authorized suits for something other than
money, they authorized suits only against private individuals. For
example, the Act for the More Effectual Recovery of Debts Due from
Individuals to the United States authorized “suits” to “be
commenced” against either “any person” or “the executor or
administrator of such person, if he be deceased.” Ch. 48, § 1, 1 Stat.
441, 441 (1795). It did not authorize suit against any office, nor
provide for suit against an officer’s successor-in-office after the old
officer left. Id.

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standards. Moreover, the claims alleged that the defendants
had failed to uphold their duties under federal law. But “when
a government official exceeded his legal authority, he did not
act in his official capacity, but as a private individual.”108 Thus,
he was liable to suit just as was any other individual.109 In other
words, the suits weren’t intra-branch at all.
2. Supreme Court Precedent
Next, the majority points to three Supreme Court cases,
claiming they show adversity exists so long as Congress
authorizes the President to sue himself. That is wrong.
First, Udall v. Federal Power Commission.110 The
majority claims that Udall held an intra–Executive Branch
dispute justiciable. It did not. Udall just recounted that an
executive official, the Secretary of the Interior, had been
granted by statute “special standing to appear, to intervene, to
introduce evidence on [a] proposed river development
program, and to participate fully in the administrative
proceedings.”111 So, sure, the Secretary of the Interior had
special “standing” to raise his concerns before the Federal
Power Commission. But that tells us nothing about the
adversariness requirement of Article III.
Second, Newport News. The majority notes that Newport
News said Congress can “confer[] standing upon” agencies to
108 Thomas Koenig & Christopher D. Moore, Of State Remedies and
Federal Rights, 75 Cath. U. L. Rev. (forthcoming) (manuscript at
10), https://ssrn.com/abstract=4462807.
109 Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804); see also
Philadelphia Co. v. Stimson, 223 U.S. 605, 619–20 (1912).
110 387 U.S. 428 (1967).
111 Id. at 439–40.

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28
sue other agencies “without infringing Article III of the
Constitution.”112 But in context, the Court was just explaining
the power of an executive official to sue to vindicate “the
public’s interest,” not the power of the Executive Branch to sue
itself.113 Thus, the Court pointed to four precedents, none of
which spoke to intra–Executive Branch suits.114 So Newport
News may say something about the sorts of interests the
Executive may sue over. But it says nothing about whom the
Executive may sue.
To make matters worse, this statement from Newport News
was dictum. That matters. For more than 200 years, courts
have recognized that dicta should “be respected,” but they
112 Maj. Op. 22 (quoting Newport News, 514 U.S. at 133).
113 Newport News, 514 U.S. at 132.
114 The first was a suit by the United States against two grantees “to
cancel” some “conveyances of allotted lands” on behalf of Indian
tribes. Heckman v. United States, 224 U.S. 413, 415–16 (1912); see
also Newport News, 514 U.S. at 133. The second included a singular
dictum in a suit by some Indian tribes and their members against two
Montana county sheriffs that the United States “would have” had
“standing” to bring a “pre-emption claim on behalf of the” tribes,
too. Moe v. Confederated Salish and Kootenai Tribes of Flathead
Reservation, 425 U.S. 463, 474 n.13 (1976); see also Newport News,
514 U.S. at 133 (explaining that this statement was dictum);
Confederated Salish and Kootenai Tribes of Flathead Reservation,
Montana v. Moe, 392 F. Supp. 1297, 1300 (D.Mont. 1974). The third
was a suit by some high school students in California and their
parents against the Pasadena Unified School District “and several of
its officials,” in which the United States intervened. Pasadena City
Board of Education v. Spangler, 427 U.S. 424, 427 (1976). The
fourth was a suit by the Equal Employment Opportunity Commission
against a telephone company, its subsidiary, and a union. See
General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318,
320–21 (1980).

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“ought not to control the judgment.”115 True, our court has at
times said that “carefully considered language of the Supreme
Court, even if technically dictum, generally must be treated as
authoritative.”116 But we have never said that every single
word in more than 600 volumes of the U.S. Reports binds us.
If so, we would be in trouble. As Justice Jackson explained
almost 300 volumes ago, “some printed judicial word” could
“be found to support almost any plausible proposition.”117
Recognizing that, we have said that “the Supreme Court ‘does
not decide important questions of law by cursory dicta inserted
in unrelated cases.’”118 And we have refused to treat
“expansive dicta in decisions from the Supreme Court,” like
the dicta in Newport News, as binding authority.119
Third and finally, Ingalls Shipbuilding, Inc v. Director,
Office of Workers’ Compensation Programs, Department of
Labor.120 The majority mistakenly claims that Ingalls ties our
hands because it quoted the dictum from Newport News.
In Ingalls, the Benefits Review Board awarded Maggie
Yates, the widow of a former employee of Ingalls
Shipbuilding, Inc., certain benefits under the Longshore and
115 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall,
C.J.); see also Pierre N. Leval, Judging Under the Constitution:
Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1250 (2006).
116 Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003).
117 Robert H. Jackson, Decisional Law and Stare Decisis, 30 A.B.A.
J. 334, 334 (1944).
118 United States v. Askew, 529 F.3d 1119, 1148 (D.C. Cir. 2008) (en
banc) (Griffith, J., concurring) (quoting In re Permian Basin Area
Rate Cases, 390 U.S. 747, 775 (1968)).
119 United States v. Burwell, 690 F.3d 500, 505 (D.C. Cir. 2012) (en
banc).
120 519 U.S. 248 (1997).

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30
Harbor Workers Compensation Act after her husband died.121
Ingalls filed a petition for review in the Fifth Circuit.122 The
Director of the Office of Workers’ Compensation Programs in
the Department of Labor joined Yates as a respondent.123 The
case made its way to the Supreme Court, where the parties were
Ingalls (private party) versus the Director (agency) and Yates
(private party).124 The Supreme Court explained that no
“constitutional” “impediment” blocked “the Director’s
appearance as a respondent.”125 As support, it relied on the
statement in Newport News that “Congress could have
conferred standing upon the Director without infringing Article
III of the Constitution.”126 Thus, “Article III . . . pose[d] no bar
to the Director’s participation as a respondent.”127
In context, then, all these statements in Ingalls can stand
for is the proposition that Article III adversity exists when a
private party sues the Executive Branch. I agree. But I do not
see what that has to do with the Executive Branch suing itself.
121 Ingalls Shipbuilding, Inc. v. Director, Office of Workers’
Compensation, Department of Labor, 65 F.3d 460, 461–62 (5th Cir.
1995).
122 Id. at 462.
123 Id.
124 See Petition for Writ of Certiorari, Ingalls Shipbuilding, Inc. v.
Director, Office of Workers’ Compensation Programs, No. 95-1081,
1996 WL 33413828. Ingalls was joined by American Mutual
Liability Insurance Co. See id.
125 Ingalls, 519 U.S. at 264.
126 Id. (quoting Newport News, 514 U.S. at 133).
127 Id.

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3. Rule 2(a)
Failing all that, the majority claims we need not treat this
as an intra–Executive Branch dispute at all. Even though
Rule 15 requires the Commission to participate in this suit, the
majority argues, we should suspend that requirement under
Rule 2(a). I disagree. Rule 2(a) provides that the court, “[o]n
its own or a party’s motion, . . . may — to expedite its decision
or for other good cause — suspend any provision of these rules
in a particular case and order proceedings as it directs.” I would
not invoke that provision here.
For starters, I see no reason to exercise our discretionary
power under Rule 2 to “suspend” Rule 15. As Rule 2’s text
makes clear, we “may” suspend a provision like Rule 15, but
we need not.128 I would not exercise our discretion to suspend
Rule 15 when the primary use of Rule 2(a)’s good-cause
provision has long been “to relieve litigants of the
consequences of default where manifest injustice would
otherwise result.”129
In comparison, the majority’s use of Rule 2 is out of the
ordinary. First, I doubt any manifest injustice would result to
the Secretary if she were left to take up her disagreement with
another agency. For centuries, such disputes have been left to
the Executive Branch to settle internally. And I doubt that the
128 Fed. R. App. P. 2(a) (emphasis added); see also Fogerty v.
Fantasy, Inc., 510 U.S. 517, 533 (1994) (“The word ‘may’ clearly
connotes discretion.”).
129 Fed. R. App. P. 2(a) advisory committee’s note to original rule
(1967); see also Charles Alan Wright et al., 16A Federal Practice
and Procedure Jurisdiction § 3948 (5th ed.) (relieving litigants of
the consequences of default has long been the primary use of Rule
2(a)).

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32
entire history of Executive Branch (and federal court) practice
reflects a never-ending series of injustices wrought against the
heads of the departments. Second, there was no “default.”130
The Secretary complied with Rule 15.
Of course, just because Rule 2(a) typically serves to
forgive errors like default does not mean that is all it does. Still,
it makes sense to restrict Rule 2(a)’s “good cause” language to
errors like default (which depend on the particular facts of
particular cases) rather than read “good cause” to mean we can
suspend a rule for any reason that strikes us as
sensible (including apparently that the rule has consequences
we don’t like across a class of cases). After all, Rule 2(a)
provides for suspension only “in a particular case.”131 It “does
not authorize any general suspension of any rules as applied to
all cases or any class of cases.”132
That “contrast[s] with Rule 2(b),” which authorizes
wholesale suspension of a rule across a class of cases.133 But
on the majority’s logic, we shouldn’t just suspend Rule 15’s
application in this case. We should suspend it across a whole
class of cases dealing with the Secretary and the Commission.
Rule 2(a) doesn’t appear to be an appropriate vehicle for that
type of suspension.
* * *
To sum up, this petition presents an intra–Executive
Branch dispute. As a general matter, that precludes judicial
130 Fed. R. App. P. 2(a) advisory committee’s note to original rule
(1967).
131 Fed. R. App. P. 2(a).
132 Wright, supra, at § 3948.
133 Id.; see also Fed. R. App. P. 2(b)(5)(A).

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review. And the Secretary has not met her burden of showing
that an exception applies.134
To be clear, I express no view as to whether the
Government may be able to establish jurisdiction on occasion
in different, future intra–Executive Branch disputes involving
these or other agencies. But because the Secretary has not done
so here, I would dismiss the petition as nonjusticiable.
III. KC’s Auto Shop Is Not a “Mine”
This court lacks jurisdiction because the Secretary’s
petition presents a nonjusticiable intra–Executive Branch
dispute. But even if this court had jurisdiction, I would deny
the petition.
The Mine Safety and Health Administration’s authority
extends only to a “mine.” The Mine Act generally limits a
“mine” to extraction sites and processing plants. Because KC
Transport’s repair shop is located at neither of those places, the
Mine Safety and Health Administration has no authority over
the repair shop.
A. The Mine Act’s Definition of “Mine” Has
Geographic Limits
The Mine Act tasks the Secretary of Labor with setting
health-and-safety standards for mines.135 To enforce those
standards, the Mine Safety and Health Administration must
“make frequent inspections and investigations” of “mines.”136
134 Cf. Lujan, 504 U.S. at 561 (“The party invoking federal
jurisdiction bears the burden of establishing” standing.).
135 30 U.S.C. § 811.
136 Id. § 813(a); see 29 U.S.C. § 557a.

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It may issue citations to mine operators that fail to meet the
agency’s safety standards.137
Because the Mine Safety and Health Administration may
inspect and cite only “mines,” its jurisdiction depends on the
Mine Act’s definition of “coal or other mines.” Here, we must
decide if a repair shop that sometimes fixes mining trucks is a
“mine.”
To count as a “mine,” a facility must meet the criteria in at
least one of these three subparagraphs:
(A) an area of land from which minerals are
extracted in nonliquid form or, if in liquid form,
are extracted with workers underground,
(B) private ways and roads appurtenant to such area,
and
(C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other
property including impoundments, retention
dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or
resulting from, the work of extracting such
minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers under-
ground, or used in, or to be used in, the milling
of such minerals, or the work of preparing coal
137 30 U.S.C. § 814; id. § 802(d) (a mine “operator” “operates,
controls, or supervises a . . . mine”).

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35
or other minerals, and includes custom coal
preparation facilities.138
Though the Mine Act’s definition of “mine” has no
express geographic limit, the statute’s “carefully calibrated
scheme” confirms that one exists.139 Two subparagraphs have
express geographic limits: subparagraph (A) extends only to
excavation sites, covering “area[s] of land from which minerals
are extracted,” and subparagraph (B) includes “roads
appurtenant to such area[s].”140
That leaves us with subparagraph (C). It’s a catch-all list
of additional things that may count as mines if they are “used
in” “extracting,” “milling,” or “preparing.”141 That list breaks
down into three categories:
1. Structures found at excavation sites:
“excavations, underground passageways, shafts,
slopes, tunnels and workings.”
138 Id. § 802(h)(1) (emphases added); see Secretary of Labor v.
National Cement Co. of California, Inc., 573 F.3d 788, 795 (D.C.
Cir. 2009) (each subprovision independently defines “mine”).
139 Cf. Turkiye Halk Bankasi AS v. United States, 598 U.S. 264, 273
(2023) (looking to the statutory scheme to cabin the reach of a
seemingly broad statutory provision); Antonin Scalia, A Matter of
Interpretation 24 (1997) (“the good textualist is not a literalist”).
140 30 U.S.C. § 802(h)(1).
141 Id. § 802(h)(1)(C).

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2. Structures found at processing plants:
“impoundments, retention dams, and tailings
ponds.”142
3. Generic items: “lands, . . . structures, facilities,
equipment, machines, [and] tools.”
Because words “are known by their companions,” it makes
sense to read the generic items in light of the two other
categories in the list.143 Doing so suggests that lands,
structures, facilities, and equipment must either be at an
excavation site or at a processing plant to count as “mines”
under the Act.144
Reading the Act that way reveals a geographic limit that
neatly mirrors the Act’s express functional limit. Under the
Act’s functional limit, no item on the list in subparagraph (C)
142 “Tailings” are a waste product generated by coal processing.
They are a “residue separated in the preparation of various products
(such as grain or ores).” Tailing (def. 1), Merriam-Webster (2025).
“[I]mpoundments, retention dams, and tailings ponds” are all
structures used to store tailings. 30 U.S.C. § 802(h)(1)(C). An
“impoundment” is a generic term for a structure used to “retain
tailings.” U.S. EPA, Technical Report: Design and Evaluation of
Tailings Dams 5 (1994), https://perma.cc/68LA-UJRF. A “retention
dam” is a method of storing tailings in which the “dam[ ] [is]
constructed at full height at the beginning of the disposal.” Id. at 6.
(In other retention designs the height of the embankment is increased
as tailings are added. See id.) And a tailings “pond” is a body of
wastewater held in by a dam or impoundment. See id. at 30.
143 Gutierrez v. Ada, 528 U.S. 250, 255 (2000).
144 Cf. Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1548, 1552
(D.C. Cir. 1984) (subparagraph (C) “does not require that”
processing facilities “be located on property where . . . extraction
occurs,” so a processing facility “immediately adjacent to a quarry”
was a “mine”).

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counts as a “mine” unless it is “used in, or to be used in, or
resulting from, the work of extracting . . . minerals . . .
or . . . the milling of such minerals, or . . . preparing coal or
other minerals.”145 Because milling is a type of coal
preparation, the Act’s functional test boils down to asking
whether an item on the list is used in extracting or processing
coal.146 Similarly, the Act’s geographic limit asks whether an
item is at an extraction site or a processing plant.147
145 30 U.S.C. § 802(h)(1)(C).
Milling involves grinding coal into smaller chunks so that it is
commercially usable. See Peter T. Luckie & Leonard G. Austin,
Coal Grinding Technology, Dep’t Energy (1980),
https://perma.cc/EW37-MDVA (describing how several types of
coal mills operate). Coal preparation involves separating coal from
the raw material extracted at a mine site. See 30 U.S.C. § 802(i)
(defining the “work of preparing the coal” as covering the gamut of
coal processing: “breaking, crushing, sizing, cleaning, washing,
drying, mixing, storing, and loading”).
146 I focus on coal simply because of the facts of this case. I do not
mean to suggest the Act is limited to coal.
147 To the extent the Buffalo Creek incident provides relevant
historical context in interpreting the Act, it doesn’t defeat my
analysis. Although the majority notes that the dams there appear to
have been more than a half mile from the main part of the processing
facility, see Maj. Op. 39, the dams may well be best understood as
part of the larger processing facility.
After all, the tailings stored in dams are a natural product of coal
processing. See Society for Mining, Metallurgy & Exploration, What
are Tailings (accessed on Mar. 18, 2026), https://perma.cc/4AP6-
ZENJ. And although at first coal processors would “discharge[]”
tailings “into the nearest stream or river,” soon “heightened
environmental awareness and public pressure” led “coal operators to
construct” certain structures “to contain” the tailings. See Stanley J.
Michalek et al., Accidental Releases of Slurry and Water from Coal

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Now consider the Secretary’s literal reading of the statute.
The Secretary contends that the Mine Safety and Health
Administration’s jurisdiction depends only on function, not
location.148 In the Secretary’s view, any “piece of equipment”
or “facility” can be a mine, no matter where it is located.149
The rest of the statute shows why that reading doesn’t
work. Many of the Act’s provisions assume that a “mine” has
Impoundments Through Abandoned Underground Coal Mines,
MSHA, Pittsburgh Safety & Health Technology Center 2 (1996). So
these storage structures may be seen as an integral part of the larger
processing operations.
The intimate connection between these storage structures and
processing facilities may be seen in the case of Buffalo Creek. There,
the tailings from the processing facility were apparently “pumped”
by pipes from the facility “into” a river “above” the retention dams,
such that the tailings would “flow[] into the impoundment.” Senate
Subcommittee on Labor of the Committee on Labor & Public
Welfare, 92d Cong., Buffalo Creek (W. Va.) Disaster, 1972, at 12
(1972); see also Michalek, supra, at 2 (explaining that historically,
tailings were “piped from the preparation plant to the
impoundment”); U.S. EPA, supra, at 30 (“Generally, tailings slurry
is transported through pipelines from the mill to the tailings
impoundment for deposition.”). “Other pipes” would take the
“discharge of clear water from” the lower dams and “direct[]” it to
“a small impoundment.” Senate Subcommittee, supra, at 12. Then,
it was “pumped back to the preparation plant for further use in the
washing process.” Id. In other words, the dams formed part of a
closed-loop system that dealt with the processing of coal. So given
“[t]he physical proximity and the operational integration of” the
processing facility–pipe–retention dam combination, it might have
been “a unified mineral processing operation.” Carolina Stalite, 734
F.2d at 1551.
148 Secretary Br. 16.
149 Id.

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a readily identifiable location. For example, a mine “operator”
must “file with the Secretary” its mine’s “name and
address.”150 And at “each . . . mine” there must be “an office
with a conspicuous sign designating it as the office of such
mine.”151 Similarly, the Mine Safety and Health
Administration must annually inspect each “coal or other
mine[ ].”152
Those requirements would make no sense if a mine’s
location were unfixed.
Take an example. An independent contractor uses his
truck for a mining job each Wednesday. The rest of the week
he drives his truck 200 miles away for use at a construction site.
Even when it’s 200 miles away, that truck is a “mine” on a
literal reading of the statute: It is a “machine[ ]” that is “used
in, or to be used in, . . . the work of extracting . . . minerals.”153
Yet that result clashes with the Act’s commands to install “an
office with a conspicuous sign” and to file a mine’s “name and
address.”154
The literal reading’s problems only deepen from there.
The Act covers “independent contractor[s]” when they are
“performing services or construction at [a] mine.”155 And a
contractor’s tools and machinery are “used in, or to be used in”
150 30 U.S.C. § 819(d).
151 Id. § 819(a).
152 Id. § 813(a).
153 Id. § 802(h)(1).
154 Id. § 819(a), (d); see also Maxxim Rebuild Co., LLC v. Federal
Mine Safety & Health Review Commission, 848 F.3d 737, 742 (6th
Cir. 2017) (noting that “other definitions in the Mine Act portray a
mine as a place”).
155 30 U.S.C. § 802(d).

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extraction wherever they are.156 So if the Act has no
geographic limit, the agency could inspect contractors
anywhere they go — including at their homes.
The Secretary insists that we can sidestep these
difficulties: Because KC’s trucks were located at a physical
location covered by the Mine Act, we need not decide whether
the trucks would be “mines” if located elsewhere.157
As a threshold matter, the Secretary’s premise that KC’s
shop is covered by the Mine Act is mistaken for the reasons I
just explained. Putting that aside, the Secretary offers no
geographic limiting principle for future cases where a
moveable item is not on land covered by the Mine Act. The
Secretary tells us only that geography might be “relevant” in
its “fact-intensive” inquiry as to whether an item is “used in”
mining.158 So how do we know if a moveable object is a
“mine”? The Secretary’s answer is, in effect, “trust us.”
The better approach is to read the definition of “mine” in
context, which shows that an item listed in subparagraph (C)
must be located at an extraction site or a processing plant to
count as a “mine” under the Act.
B. Processing Plants Fall Within the Geographic Limits
The Commission and the Sixth Circuit both held, as I
would, that the Act has a geographic limit. But they interpreted
that limit to cover only extraction sites. I part company with
156 Id. § 802(h)(1)(C) (emphasis added).
157 Secretary Supplemental Br. 21.
158 Supplemental Oral Arg. Tr. 32, 33, 35; see also id. at 15, 32–35
(Counsel for the Secretary: a pickax used for mining remains a
“mine” even when transported 5,000 miles from the extraction site).

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them there. Textual clues suggest that the Act covers both
extraction sites (where ore is dug out of the ground) and
processing plants (where ore is made into a usable product).
In Maxxim Rebuild, the Sixth Circuit held that “facilities
and equipment” count as “mines” under the Act only “if they
are in or adjacent to — in essence part of” an extraction site.159
The court reasoned that the list in subparagraph (C) reads as if
the “author went to a mine and wrote down everything he saw
in, around, under, above, and next to the mine.”160 The
Commission adopted the Sixth Circuit’s interpretation in its
decision in this case.
But subparagraph (C)’s list reads more like the “author
went to a mine [and a processing plant] and wrote down
everything he saw.”161 That’s because three items on the
list — “impoundments, retention dams, and tailings
ponds” — are associated with coal processing, not coal
extraction.162
The rest of § 802(h)(1)(C) confirms that processing plants
are included in the Act’s geographic sweep. Any item in the
list counts as a “mine” if it is “used in, or to be used in . . . the
work of preparing coal.”163 And the list ends by expressly
stating that a “mine” “includes custom coal preparation
facilities.”164
159 848 F.3d at 740.
160 Id.
161 Id.
162 30 U.S.C. § 802(h)(1)(C); see supra, note 142, 147.
163 30 U.S.C. § 802(h)(1)(C) (emphasis added).
164 Id.

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Plus, because many preparation plants are not located at
extraction sites, the Sixth Circuit’s reading would produce an
odd regulatory checkerboard. Some processing plants would
be covered and others not, depending on how close they are to
an extraction site.165 That outcome is hard to square with
Congress’s express view that “coal preparation facilities” are
covered by the Act.166
Finally, interpreting § 802(h)(1)(C) to cover processing
plants avoids surplusage. If subparagraph (C) were limited to
items at an extraction site, it would largely collapse into
subparagraph (A), which covers “area[s] of land from which
minerals are extracted.”167 But reading subparagraph (C) to
include processing plants gives it a distinct role in the statutory
scheme.
C. KC’s Shop Is Not A “Mine”
Though I read the Mine Act’s definition of “mine”
differently than does the Commission, I agree with its bottom-
line conclusion.168 KC’s repair shop is not a “mine” under the
Act because it is not at an extraction site or processing plant.
So I would deny the Secretary’s petition for review.
Today’s majority thankfully refuses to embrace the
Secretary’s geography-agnostic approach. But it also refuses
165 See Standards of Performance for Coal Preparation and
Processing Plants, 74 Fed. Reg. 51950, 51961 (Oct. 8, 2009) (coal-
preparation plants may be at “mine sites” or other “industrial sites”).
166 30 U.S.C. § 802(h)(1)(C).
167 Id. § 802(h)(1)(A).
168 See Calcutt v. FDIC, 598 U.S. 623, 630 (2023) (we may affirm an
agency, despite disagreeing with its reasoning, if the agency “was
required to take [the] action” at issue (cleaned up)).

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to reject it. And it also unfortunately refuses to say anything at
all about the contours of the functional test it seems to favor.
Instead of adopting the straightforward rule that an item in
subparagraph (C) must be at an extraction site or processing
plant, the majority opts for an “I know it when I see it”
approach to what a “mine” is.169 Auto-body shop located
decently close to a mine with trucks that transport coal to and
from an extraction site pretty often? That is a mine (I think).
Pair of boots bought by a guy for use in his new mining job
starting six months from now at a mine 1,200 miles away?
Those boots are possibly not a “mine.” But really, who knows?
Not the miner. Nor the owner of the boot factory. Nor the
inspector. Nor the Commission. Nor the Secretary. Nor the
court. So the majority offers an interpretation that leaves
“regulated parties” in the “frustrating” position of not being
able to “perfectly predict the scope of [the Administration’s]
jurisdiction.”170 And in so doing, the majority forfeits its duty
under Loper Bright (and Marbury171) to interpret the term
“mine” at all, preferring to point out those things that possess
sufficient mine-ness on a case-by-case basis.
Nor is the majority’s approach the only one that accords
with Congress’s remedial goals for the Mine Act. Mine (pun
intended) does, too. To the extent Congress enacted the Mine
Act to ensure the Administration would have jurisdiction over
retention dams,172 such structures are expressly covered in
169 Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
concurring).
170 Maj. Op. 42.
171 And Article III.
172 See Maj. Op. 38–39 (explaining that Congress sought to eliminate
jurisdictional uncertainty over retention dams following a
catastrophic dam collapse in West Virginia); see also supra, note 147
(discussing this example).

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subparagraph (C).173 And to the extent a facility like KC’s shop
falls outside the Mine Safety and Health Administration’s
jurisdiction, other regulators like the Occupational Safety and
Health Administration may step in.174
* * *
To count as a “mine” under the Mine Act, a “facility,” like
KC’s repair shop, must be located at an extraction site or a
processing plant. KC’s repair shop is not. So the Mine Safety
and Health Administration lacks jurisdiction over it.
IV. Conclusion
The court lacks jurisdiction to adjudicate this dispute
between two parts of the Executive Branch. So the petition
should be dismissed.
If we had jurisdiction, I would deny the petition.
Because the majority disagrees, I respectfully dissent.
173 30 U.S.C. § 802(h)(1)(C).
174 See Supplemental Oral Arg. Tr. 10 (Secretary’s counsel
explaining that the Mine Safety and Health Administration and the
Occupational Safety and Health Administration coordinate the
boundaries of each agency’s regulatory authority through an
“interagency agreement”).

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