Gms Mine Repair v. Federal Mine Safety

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2023 Decided July 7, 2023
No. 22-1143
GMS MINE REPAIR,
PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
AND SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENTS
On Petition for Review of a Decision of the
Federal Mine Safety and Health Review Commission
James P. McHugh argued the cause for petitioner. With
him on the briefs was Christopher D. Pence.
Robert S. Wilson, Attorney, U.S. Department of Labor,
argued the cause for respondent Secretary of Labor. With him
on the brief was Emily Toler Scott, Counsel for Appellate
Litigation.
Before: HENDERSON, MILLETT and CHILDS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge CHILDS.

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CHILDS, Circuit Judge: In this petition for review, a mine
operator and the Secretary of Labor dispute the meaning of a
regulation that governs which safety and health violations are
counted as part of an operator’s history when that operator
violates federal standards and must be assessed penalties. We
conclude that the regulation at issue is ambiguous, the
Secretary’s interpretation is reasonable, and that interpretation
is entitled to deference. Therefore, we deny this petition.
I
A
The Federal Mine Safety and Health Act of 1977 (Mine
Act or Act) charges the Secretary of Labor (Secretary) with
establishing and enforcing safety and health standards for the
operation of the nation’s mines. W. Oilfields Supply Co. v.
Sec’y of Labor and Fed. Mine Safety & Health Rev. Comm’n,
946 F.3d 584, 586 (D.C. Cir. 2020). The Mine Act intended to
remedy the shortcomings of two prior laws, the Federal Metal
and Non-Metallic Mine Safety Act of 1966 and the Federal
Coal Mine Health and Safety Act of 1969. S. REP. NO. 95-181,
at 6–9 (1977). As the Senate identified in 1977, these two laws
failed to protect miners from hazards, slowed the federal
response time to emerging dangers, provided for penalties that
were “much too low, and paid much too long after the
underlying violation,” and created sanctions that were
“insufficient to deal with chronic violators.” Id. at 8.
To address these deficiencies, the Mine Act required the
Secretary, through the Department of Labor’s Mine Safety and
Health Administration (MSHA), to investigate accidents and
conduct frequent inspections at mines throughout the calendar
year. 30 U.S.C. § 813; see also Donovan v. Dewey, 452 U.S.
594, 596 (1981). The Act also authorized the Secretary to

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promulgate mandatory standards and issue citations to
operators who violate these standards. 30 U.S.C. §§ 811(a),
814(a)–(b) and (d). An independent commission, the Mine
Safety and Health Review Commission (the Commission),
then assigns an administrative law judge (ALJ) to review
contested citations and, where appropriate, impose proposed
penalties against operators.1 30 U.S.C. §§ 820(a)–(c),
823(d)(1). A five-person board constituting the Commission
may, in its discretion, review an ALJ’s determination;
otherwise, the ALJ’s determination becomes the final decision
of the Commission. 30 U.S.C. § 823(d)(1).
Ultimately, the penalties assessed by the MSHA must
account for, among other things, “the operator’s history of
previous violations . . . .” 30 U.S.C. § 820(i). The MSHA sets
forth how it accounts for this history in Section 100.3(c) of its
regulations, which considers violations “in a preceding 15-
month period” that “have been paid or finally adjudicated, or
have become final orders of the Commission . . . .” 30 C.F.R.
§ 100.3(c); see also III MSHA, Program Policy Manual 97
(June 2012). Since 1982, the practice has been to include the
violation “in an operator’s history as of the date it becomes
final.” Criteria and Procedures for Proposed Assessment of
Civil Penalties, 72 Fed. Reg. 13,592, 13,604 (Mar. 22, 2007)
(Preamble).
B
GMS Mine Repair and Maintenance, Inc. (GMS) is a
mining contractor that provides “specialized services” to mines
1 An “operator” is “any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any
independent contractor performing services or construction at
such mine.” 30 U.S.C. § 802(d).

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in North America. Petitioner’s Br. iii. GMS provided contract
services at the Mountaineer II Mine in West Virginia on April
20 and 27, 2021, during which time the MSHA issued several
citations against it. Although GMS stipulated to the “findings
of gravity and negligence,” it contested the $7,331 proposed
penalty. J.A. 75–76. Thereafter, GMS went before an ALJ to
dispute the MSHA’s method of calculating the penalty,
because it disagreed with “what precisely gets counted as the
operator’s violation history . . . .” J.A. 78.
The Secretary, representing the MSHA, argued that all
citations and orders that have become final during the
15-month look-back period are counted toward an operator’s
history of violations, “regardless of when [the citations or
orders] were issued.” J.A. 78. In opposition to this view, GMS
argued that only violations whose citations or orders were both
issued during the look-back period and were finalized during
that period could count toward an operator’s history of
violations. The ALJ deferred to the Secretary’s reading,
deeming the regulation ambiguous “[o]n its face.” J.A. 78.
GMS petitioned the Commission to review the ALJ’s
determination, and when the Commission did not act, the
ALJ’s determination became the final decision. Had the
Commission accepted GMS’s reading, the company’s
penalties would have been $3,268—roughly half the amount
assessed. GMS timely petitioned this Court for review.
II
A
GMS raises factual arguments that we quickly reject
before considering the remainder of its petition. GMS argues
that the ALJ “misinterpreted certain material facts” and made

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an inappropriate “policy pronouncement” in the underlying
decision. Petitioner’s Br. 41, 44. These arguments are
meritless because the ALJ accurately summarized GMS’s
position on which violations may be counted in an operator’s
history of violations, and the ALJ could factor into the analysis
a sampling of cases provided by the Secretary that reflected
common timelines for resolving penalty contests. J.A. 78–79.
B
The Secretary has consistently maintained that violations
that become final within the 15-month look-back period are to
be included in an operator’s history of violations, but GMS’s
position has been far less stable.2 At times, GMS alternatively
argues for the inclusion of only:
1. Violations that occurred during the preceding
15-month period. See Petitioner’s Br. 21 (“The
language is clear and only refers to violations in
the preceding 15 months. There is no reference
to violations before 15 months as the Secretary
assert[s].”);
2. Citations that were issued and finalized during
the preceding 15-month period. See
Petitioner’s Br. 21 (“Any citation issued more
than 15 months prior to the citation in dispute
will not count because . . . only the citations
issued in the preceding 15 months are part of the
2 “When calculating an operator’s violation history for
purposes of proposing a penalty amount, the Secretary
considers the 15-month period immediately preceding the issue
date of the citation/order that is being assessed.” J.A. 30.

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universe of relevant citations in this first step of
the process.”); see also J.A. 76, ¶ 22; or
3. Violations that occurred and whose citations
were issued and finalized during the preceding
15-month period. Oral Arg. Tr. 7:4–9 (agreeing
that “violation and citation and finalization . . .
[must happen] all within 15 months”).
GMS’s shifting interpretations might arise from its error
of conflating a violation with a citation. It declares, without
support, that it is “obvious[] a violation does not become a
‘violation’ for purposes of [Section 100.3(c)] until a citation is
issued.” Petitioner’s Br. 23. But that is untrue. Violations are
the unlawful acts of an operator, while citations are the
sanctions that the Secretary imposes as a result of those
unlawful acts. See 30 U.S.C. § 814(a). These two words
describe distinct events that take place at different points in the
enforcement process—violations occur before citations are
issued.3
Notwithstanding the shifting interpretations, we take it
that GMS asks for us to adopt its second reading, which is for
an operator’s history to include only citations that were both
3 At oral argument, GMS continued to misuse these terms,
referring to violations as occurring and being issued. Compare
Oral Arg. Tr. 4:15–18 (asserting that “violation . . . means an
occurrence under Webster’s . . . .”) (emphasis added), with
Oral Arg. Tr. at 22:14–16 (“Nowhere in the Secretary’s
argument does the Secretary explain where in the regulation it
says that you can include violations that were issued four
years ago.”) (emphasis added); cf. Petitioner’s Br. 23 (referring
to “‘violations’ issued”).

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issued and finalized during the preceding 15-month period.
This reading reflects GMS’s most consistent position. Unlike
the other interpretations, GMS made this argument before the
ALJ as well as in its briefs in support of its petition. Moreover,
GMS equates a violation with a citation, which aligns with its
second interpretation requiring that a citation be issued and
finalized during the look-back period.
III
Our analysis of Section 100.3(c) is guided by the Supreme
Court’s opinion in Kisor v. Wilkie, 139 S. Ct. 2400, 2415
(2019), which provided clear instructions about how courts are
to evaluate agency interpretations of regulations.
First, courts must determine whether the regulation is
“genuinely ambiguous” by “exhaust[ing] all the ‘traditional
tools’ of construction.” Kisor, 139 S. Ct. at 2415 (quoting
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843, n.9 (1984)). These traditional tools include the “text,
structure, history, and purpose of [the] regulation.” Id.
Second, even if a regulation is genuinely ambiguous, “the
agency’s reading must fall ‘within the bounds of reasonable
interpretation.’” Id. at 2416 (quoting City of Arlington v. FCC,
569 U.S. 290, 296 (2013)). To this end, the work that courts
do reviewing the text, structure, history, and purpose form the
“outer bounds” of what is reasonable. Id. Lastly, courts must
take a third step and identify the existence of “important
markers for . . . [when] deference is . . . appropriate.” Id. What
should persuade a court is the “character and context” of the
agency interpretation—namely, the authoritativeness of the
position asserted, implication of the agency’s substantive
expertise, and whether the interpretation reflects the agency’s
“fair and considered judgment.” Id. at 2416–17 (quoting

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Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155
(2012)).
For the reasons below, we conclude that Section 100.3(c)
is genuinely ambiguous, and the Secretary offers a permissible
reading that is also entitled to deference.
A
1
Of the tools that we must employ, “[t]he most traditional
tool, of course, is to read the text[.]” Engine Mfrs. Ass’n v.
EPA, 88 F.3d 1075, 1088 (D.C. Cir. 1996). Section 100.3(c)
states, in relevant part:
100.3(c) History of Previous Violations
An operator’s history of previous violations is
based on both the total number of violations and
the number of repeat violations of the same
citable provision of a standard in a preceding
15-month period. Only assessed violations that
have been paid or finally adjudicated, or have
become final orders of the Commission will be
included in determining an operator’s history.
An “assessed” violation is one for which the Secretary has
formally determined a civil penalty amount. See 30 U.S.C.
§ 820(a)(1).
GMS contends that Section 100.3(c) includes only
citations that were both issued within the preceding 15-month
period and became final during that period as well. In GMS’s
view, the first sentence of Section 100.3(c) “clear[ly]” refers to

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only citations in the preceding 15 months, because it omits any
discussion of citations that may have occurred before this
period. Petitioner’s Br. 21. Even more, the only qualification
appears in the second sentence and restricts the scope of
citations to ones that have also been finalized during that
period.
Seeing it differently, the Secretary argues that Section
100.3(c) is not as clear as GMS asserts. The Secretary
interprets Section 100.3(c) to apply to any violation that
becomes final within the relevant 15-month period, regardless
of when the violation occurred or when its citation was issued.
To the Secretary, the first sentence of Section 100.3(c)
establishes the relevant look-back period (15 months), and the
second sentence merely clarifies that the field of violations to
be considered must have become final during these 15 months.
Between the two, the Secretary has the better argument.
Section 100.3(c) speaks of only a look-back period and that the
violations to be considered must have become final during that
time. The regulation does not spell out the sequencing needed
to compute an operator’s history (i.e., violation, citation,
assessment, final order) and when each thing must occur. This
lack of detail makes the regulation susceptible to competing
interpretations, as seen in this dispute, which is why, based on
the text alone, no single correct reading of the regulation
emerges.
2
Congress built into the Act a deliberate process for
assessing and adjudicating violations; this process takes time
to complete. Among its many provisions, the Mine Act permits
inspections and investigations, 30 U.S.C. § 813(a); issuance of
citations and follow-up orders; see, e.g., id. § 814(a)–(b), (d);

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procedures for enforcing those citations and orders, see
generally id. § 815; injunctions, id. §§ 818(a)(1)–(2); and
judicial review, see generally id. § 816. Clearly Congress was
aware that each of these steps could take time, which it
provided for in various other provisions of the Act. See, e.g.,
30 U.S.C. §§ 815, 823.
Despite these provisions, the statutory deadlines contained
within them still do not account for the normal hindrances and
happenstance that often prolong adjudicatory proceedings.
The procedural history of this petition provides a case in point.
Roughly two weeks after receiving the briefing schedule from
our Court, GMS filed an unopposed motion for an extension of
time to file its opening brief. We granted that unopposed
motion a few days later. Similarly, GMS requested to
reschedule oral argument, and we likewise obliged. These
types of scheduling changes are as common during
administrative proceedings as they are in courts of law. One
can expect that such run-of-the-mill realities might easily push
a contest outside of the 15-month timeframe that GMS argues
must include all aspects of the process owed before a penalty
is imposed.4
4 Although we concluded that GMS asks this Court to adopt its
second and most consistent reading of the regulation, we pause
to comment on GMS’s position at oral argument. There, GMS
argued that a violation, citation, and final adjudication must all
occur within 15 months. Oral Arg. Tr. 7:4–9. As the
Commission highlighted, pre-citation investigations can take
longer than 15 months to complete. The Upper Big Branch
mining disaster on April 5, 2010, cost the lives of twenty-nine
miners and remains one of the deadliest mining accidents in
recent history. Press Release, U.S. Dep’t of Lab., Statement by
Sec’y of Lab. Marty Walsh on the Anniversary of the Upper
Big Branch Explosion (Apr. 5, 2021), available at

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Given the amount of process afforded by the Mine Act, it
is difficult to conclude that the process must be completed
within 15 months of a citation being issued, or else a prior
violation cannot be considered as part of an operator’s history.
As such, the structure of the Mine Act favors the Secretary’s
reading, because the Secretary’s reading does not restrict the
process afforded to a fairly short 15 months.
3
The history of the regulation also favors the Secretary’s
reading. The Preamble reveals that the MSHA “anticipate[d]
[the] issue” the Secretary now raises as to GMS’s proposed
reading: the reading would encourage contests and thwart the
Secretary’s ability to include violations in an operator’s
https://perma.cc/R92S-ZD7T (last visited June 26, 2023). The
MSHA did not issue contributory citations for this disaster
until it released its findings from the extensive investigation on
December 6, 2011—twenty months after the disaster occurred.
U.S. Dep’t of Lab., Proposed Assessment and Statement of
Account, 1–2, Att. Narrative Findings for a Special
Assessment (Dec. 6, 2011), available at
https://perma.cc/QEZ9-EPA4 (last visited June 26, 2023).
Under GMS’s reading, operators, such as those who committed
the serious violations leading to the Upper Big Branch disaster,
would never have their violations counted towards their
history, because the Secretary issued the citations after an
investigation that required more than 15 months to complete.
So, though it might go without saying, GMS’s proposed
reading could let operators escape accountability for even the
most egregious violations of federal mine safety and health
standards.

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history. Kisor, 139 S. Ct. at 2412; see also Preamble, 72 Fed.
Reg. at 13,604. In 2007, the MSHA explained its intention to
continue a longstanding practice of “us[ing] only violations
that have become final orders of the Commission” and to
include those violations “in an operator’s history as of the date
[they] become[] final.” Preamble, 72 Fed. Reg. at 13,604.
While the 2007 regulation shortened the look-back period
from 24 to 15 months, the MSHA remained keen on
“retain[ing] the final order language” and a decades-long
practice of a violation becoming a part of an operator’s history
on the date that it became final. Id. at 13,604. Understanding
this desire, the Secretary’s reading of the regulation comports
with the regulation’s history as it reinforces the importance of
finality rather than the lesser concerns—in this instance—of
when the violation occurred or when the citations were issued.
4
Congress enacted coal mining legislation keeping in mind
“its most precious resource—the miner.” 30 U.S.C. § 801(a).
The 1977 amendments expressly declared that the law intended
“to prevent recurring disasters in the mining industry.” Fed.
Mine Safety and Health Act of 1977, Pub. L. No. 95-164, 91
Stat. 1290 (1977). And to this end, Congress placed the
“primary responsibility” on mine operators to prevent unsafe
conditions and practices. 30 U.S.C. § 801(e).
GMS’s reading might capture some routine violations
where the operator pays the proposed penalty, but not contested
violations or violations requiring special assessments. J.A. 42–
43; see also Oral Arg. Tr. 14:23–15:8. These latter violations
require longer to finalize, and under GMS’s restrictive reading
operators could avoid future consequences by prolonging
penalty contests. An interpretation leading to this result would

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be “insufficient to deal with chronic violators” and could
hardly protect miners in the way Congress intended. S. REP.
NO. 95-181, at 8.
B
Having reviewed the text, structure, history, and purpose,
we can conclude that Section 100.3(c) is genuinely ambiguous.
While the structure, history, and purpose favor the Secretary’s
reading, the text lacks useful detail. Nevertheless, the
Secretary’s proposed interpretation falls within the “zone of
ambiguity” created by our analysis of the regulation. Kisor,
139 S. Ct. at 2416.
The Secretary’s interpretation cares only about when the
violation becomes final, which comports with the text. This
interpretation falls within the zone of ambiguity, under which
the second sentence (that discusses finality) merely clarifies the
first sentence (that establishes the look-back period). These
two sentences say nothing further about when the underlying
violation must have occurred or been cited. Notably, like the
regulation, the Secretary’s interpretation does not consider
when the violation occurred or was cited. GMS’s reading, by
contrast, requires us to infer an intention for citations to have
been issued during the look-back period in addition to those
citations being finalized during that period. We are not
required to accept GMS’s reading, nor should we be inclined
to infer the presence of terms that fail to make an appearance
in the regulation’s plain text (here, the “issuance” of a
“citation”). See Newman v. FERC, 27 F.4th 690, 698–99 (D.C.
Cir. 2022) (declining to accept an interpretation that required
our Court to infer the word “directly” as part of a regulation’s
intended meaning).

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Equally, the Secretary’s reading also comes within the
zone of ambiguity considering the structure, history, and
purpose. The Secretary’s interpretation allows for operators to
receive full process before being forced to pay penalties. Yet,
it fulfills the purpose of the Act and implementing regulation
by holding operators accountable for health and safety failures
when determining an operator’s history of violations. The
Secretary’s interpretation is thus reasonable and within our
established bounds.
C
Finally, we decide whether the Secretary’s interpretation
warrants deference. Kisor, 139 S. Ct. at 2414. In other words,
we examine “whether the character and context of the agency
interpretation entitles it to controlling weight.” Id. at 2416. To
do so, the interpretation must be the agency’s “authoritative or
official position;” “implicate its substantive expertise;” and
“reflect [its] ‘fair and considered judgment’” rather than evince
an afterthought or litigation position. Id. at 2416–17 (citation
and internal quotation marks omitted). The Secretary’s
interpretation satisfies these criteria.
First, as the Preamble outlines, the Secretary’s
interpretation reflects its official and steadfast practice (circa
1982) of including a violation in an operator’s history as of the
date the violation becomes final. See Kisor, 139 S. Ct. at 2416
(citation omitted); see also Preamble, 72 Fed. Reg. at 13,604.
The Preamble states that the MSHA included the phrase “final
orders of the Commission” to clarify its intended continuance
of this longstanding practice. Preamble, 72 Fed. Reg. at
13,604. In presenting us with a policy followed for over four
decades, the Secretary certainly does not offer a post-hoc
rationalization or “convenient litigating position.” Kisor, 139
S. Ct. at 2417 (quoting Christopher, 567 U.S. at 155). GMS

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and other operators have been familiar with the Secretary’s
practice for quite some time.
Second, the subject matter of the regulation is within the
Secretary’s wheelhouse and implicates the Secretary’s
expertise. Congress tasked the Secretary with developing
regulations for mine safety as well as the methods used to
enforce those regulations. As such, imposing penalties for
violations and ensuring compliance with federal mine health
and safety standards is neither “distan[t] from the agency’s
ordinary duties,” nor does it “fall within the scope of another
agency’s authority.” Kisor, 139 S. Ct. at 2417 (first alteration
in original, second alteration omitted) (quoting Arlington, 569
U.S. at 309). GMS counters that imposing sanctions does not
implicate technical expertise because it is a procedural matter,
which “[c]ourts deal with . . . far more than executive
agencies.” Petitioner’s Br. 17. But Congress did not give
courts the authority to determine when and how to assess mine
safety violations. It delegated that authority to the Secretary.
See 30 U.S.C. § 801 et seq. Besides, this may be one instance
in which even “more prosaic-seeming questions . . . [still]
implicate policy expertise,” which lies with the agency. Kisor,
139 S. Ct. at 2417.
IV
For the foregoing reasons, we deny this petition.
So ordered.

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