Secretary of Labor v. KC Transport, Inc.

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, MINE SAFETY AND HEALTH

ADMINISTRATION,

PETITIONER

v.

KC TRANSPORT, INC. AND FEDERAL MINE 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.

2

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, WALKER, and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Concurring Opinion filed by Circuit Judge PAN.

Dissenting Opinion filed by Circuit Judge WALKER.

WILKINS, 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

4

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

5

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).

7

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.

9

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.

10

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

12

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

13

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,

14

[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 &

15

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

16

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

17

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

18

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

19

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

20

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”).

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

22

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

23

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

24

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

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)).

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.

27

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

28

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

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).

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.

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

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).

33

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

34

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.

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.

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.

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))).

38

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

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

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”). .

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,

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

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.

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).

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.”).

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

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

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.

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.

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).

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.”).

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.

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.”).

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.

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

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).

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).

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).

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

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

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.

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”).

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.

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”).

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.”).

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

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”

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.

20

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.

21

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).

22

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.

23

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).

24

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.”).

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).

26

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.

27

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.

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).

29

“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).

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.

31

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)).

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).

33

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.

34

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”).

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).

36

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”).

37

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

38

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.

39

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).

40

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).

41

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 subpa

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