# Secretary of Labor v. KC Transport, Inc.

> Court of Appeals for the D.C. Circuit · April 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11311915

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 17, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11311915

## How later opinions describe it (automated extraction)

- discussing 30 U.S.C. § 961(a)

## Opinion text

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
3

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.
6

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.
8

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
11

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
Secr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11311915. Public record. Not legal advice.