Asarco, Inc. v. Secretary of Labor

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0095P (6th Cir.) File Name: 00a0095p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  ASARCO, INCORPORATED,  Petitioner,   No. 98-4234 v.  > SECRETARY OF LABOR, and    FEDERAL MINE SAFETY AND

 HEALTH REVIEW

Respondents,  COMMISSION,    WORKERS UNION COUNCIL OF  INTERNATIONAL CHEMICAL

  THE UNITED FOODS AND

 COMMERCIAL WORKERS  UNION, AFL-CIO, Intervenor.  1 On Petition for Review of a Decision from the Federal Mine Safety and Health Review Commission. Docket No. 94-362-RM Argued: January 28, 2000 Decided and Filed: March 17, 2000 Before: KENNEDY, RYAN, and BOGGS, Circuit Judges.

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_________________ litigated.” Id. at 242. The Supreme Court held that the court of appeals had jurisdiction to direct reformation of the decree COUNSEL to strike the portion relating to the validity of “claim 1”; the court of appeals did not have jurisdiction to address the ARGUED: Henry Chajet, PATTON BOGGS, L.L.P., validity of “claim 1” on the merits, however. Id. Washington, D.C., for Petitioner. Ellen L. Beard, U.S. DEPARTMENT OF LABOR, OFFICE OF THE ASARCO cannot invoke the Electrical Fittings exception SOLICITOR, SPECIAL APPELLATE & SUPREME to achieve the result it seeks here, that is, a review of the COURT LITIGATION, Washington, D.C., for Respondent. ALJ’s decision on the merits. Electrical Fittings permits only ON BRIEF: Henry Chajet, David J. Farber, PATTON the more limited remedy of reforming a judgment by deleting BOGGS, L.L.P., Washington, D.C., for Petitioner. Ellen L. the allegedly erroneous portions. See Deposit Guar., 445 U.S. Beard, Allen H. Feldman, Nathaniel I. Spiller, U.S. at 337; In re DES Litigation, 7 F.3d 20, 25 (2d Cir. 1993). DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR, SPECIAL APPELLATE & SUPREME Finally, ASARCO submits that it has standing to appeal the COURT LITIGATION, Washington, D.C., for Respondent. ALJ’s decision because it did not obtain all of the relief it Randall Vehar, INTERNATIONAL CHEMICAL WORKERS requested. Ordinarily, a party may appeal a decision that UNION COUNCIL, Akron, Ohio, for Intervenor. grants only part of the relief requested. Forney v. Apfel, 524 U.S. 266, 271 (1998). Here, however, ASARCO did obtain BOGGS, J., delivered the opinion of the court, in which all of the relief it requested. Despite its insistence to the KENNEDY, J., joined. RYAN, J. (pp. 9-11) delivered a contrary, ASARCO did not request declaratory relief relating separate concurring opinion. to single-shift sampling. It is true that the ALJ did not accept both of ASARCO’s alternative arguments, but arguments are _________________ not synonymous with relief. If ASARCO genuinely intended this to be a “test case” challenging the MSHA’s single-shift OPINION sampling protocol, it has only itself to blame for muddying _________________ the waters with an alternative argument. BOGGS, Circuit Judge. ASARCO petitions this court to For these reasons, as well as those expressed in the lead review the denial by the Federal Mine Safety and Health opinion, I concur in the judgment dismissing this appeal. Review Commission (“the Commission”) of its petition for review of the decision of an administrative law judge (“ALJ”). The ALJ held that the Denver laboratory of the Mine Safety and Health Administration (“MSHA”) employed flawed and unreliable procedures to analyze the sample of silica dust taken from a worker’s shift at ASARCO’s zinc mine, on the basis of which ASARCO had been cited for a violation of dust safety standards. The ALJ vacated the citation against ASARCO. However, the ALJ also held that single-shift sampling is, in principle, a permissible method of determining compliance with dust standards. ASARCO had vigorously litigated that issue and wishes to challenge the

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grant standing where there is an “injury in fact” to an interest holding. The Commission refused review on the basis that that is arguably within the zone of interests to be protected or the company had prevailed before the ALJ and thus had no regulated under the applicable statute. Sierra Club v. Morton, standing to file a review petition. ASARCO then petitioned 405 U.S. 727, 733 (1972). The parties here dispute whether this court to review that order. The Commission filed a ASARCO has suffered any injury from the ALJ’s decision, a motion to dismiss for lack of jurisdiction. We decided to hear component of both constitutional and statutory standing. argument first only on whether we had jurisdiction, i.e., whether ASARCO has standing. For the reasons that follow, My brother’s opinion recognizes that a prevailing party we hold that ASARCO is not aggrieved by the ALJ’s generally may not appeal a favorable decision. See Buck v. decision, and therefore has no standing to petition for review. Secretary of Health and Human Servs., 923 F.2d 1200, 1203 The case is accordingly dismissed for lack of jurisdiction. (6th Cir. 1991). My colleague also identifies a “narrow exception” to this rule. Indeed, the cases cited by ASARCO I establish multiple exceptions to the general rule. However, ASARCO fails to satisfy any of these exceptions. This case began in 1994 when the Secretary of Labor, acting through the MSHA, cited ASARCO for violation of First, I agree that the Deposit Guaranty exception is dust standards at its Young Mine, an underground zinc mine inapposite. In Deposit Guaranty, the plaintiffs suffered actual in Tennessee. ASARCO successfully argued, before economic injury from the district court’s judgment denying Administrative Law Judge Roy J. Maurer, that the class certification because the judgment precluded the Commission’s decision in Keystone Coal Mining Corp., 16 individual plaintiffs from shifting part of the litigation costs FMSHRC 6, 1994 WL 7394 (“Keystone”), which held that to other class members. Here, in contrast, the only economic single-shift sampling of coal dust is an invalid sampling injury that ASARCO suffered as a result of the ALJ’s method, was controlling, and that the citation against decision, as distinguished from the MSHA’s testing ASARCO should be dismissed, since it was based on a procedure, was its sunk litigation costs. ASARCO is not single-shift sample. The ALJ so ruled. The Commission seeking to shift any portion of this cost to another party. I granted the Secretary’s petition for discretionary review, also agree that Vanderbilt is distinguishable. vacated the ALJ’s ruling, and remanded for further proceedings, holding that Keystone’s invalidation of single- ASARCO also relies on Electrical Fittings Corp. v. shift sampling applied only to coal mines, not to ASARCO’s Thomas & Betts Co., 307 U.S. 241 (1939), a patent zinc mine. 17 FMSHRC 1, 1995 WL 29260. infringement case. The district court ruled in favor of the defendant and dismissed the lawsuit for failure to prove The case was then tried in 1996 before the ALJ, who infringement, specifically holding that “claim 1” of the patent rendered an opinion in 1997, granting ASARCO’s contest of was valid but not infringed and that “claim 2” of the patent the citation, on the grounds that the laboratory’s analytical was invalid. The defendant appealed that portion of the procedures were unstandardized, haphazard, and unreliable. district court’s ruling holding “claim 1” valid. Id. at 242. The 19 FMSHRC 1097, 1997 WL 314899. ASARCO was court of appeals dismissed the appeal on the grounds that the unhappy, however, because the ALJ had first determined the defendant had been awarded all relief to which it was entitled. acceptability in principle of single-shift sampling, a The Supreme Court reversed. The Court noted that although methodology vigorously opposed by ASARCO, and had ruled the validity of “claim 1” did not influence the disposition, it that the contested citation should not be vacated for MSHA’s nevertheless stood “as an adjudication of one of the issues employing that disputed methodology, before proceeding to

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vacate it on grounds of the laboratory’s unreliable procedures. ______________________ ASARCO therefore petitioned the Commission for review of the ALJ’s determination of the acceptability of the contested CONCURRENCE methodology. In a 4-1 decision issued on Sept. 29, 1998, the ______________________ Commission vacated its initial order granting review and denied the petition, on the ground that ASARCO lacks RYAN, Circuit Judge, concurring. I agree that ASARCO standing to seek review of the adverse portion of the ALJ’s lacks standing to appeal the ALJ’s favorable decision, but I decision in its favor. 20 FMSHRC 1001, 1998 WL 675500. write separately to elaborate on the reasoning that, in my ASARCO petitions this court to review that final decision of view, supports the judgment and to address a few of the Commission, as well as that portion of the ALJ’s ruling ASARCO’s arguments that the majority opinion overlooks. that held single-shift sampling to be a valid technique for measuring exposure to silica dust. As Judge Boggs observes, ASARCO succeeded in having the citation vacated, but it is unhappy that the ALJ rejected its This court has jurisdiction to review a decision of the primary argument in challenging the citation—i.e., that Commission on petition by “[a]ny person adversely affected single-shift sampling is inherently unreliable and insufficient or aggrieved by an order of the Commission” regarding a per se to support a citation. ASARCO argues that it satisfies violation alleged to have occurred in this circuit, pursuant to both the constitutional and statutory requirements for standing 30 U.S.C. § 816(a)(1). to appeal the ALJ’s decision. In a motion filed November 5, 1998, the Secretary moved A litigant must satisfy three elements to establish standing to dismiss the petition for lack of jurisdiction, on the ground under Article III of the Constitution: (1) he must have that ASARCO was not “adversely affected or aggrieved” by suffered some actual or threatened injury; (2) the injury must the Commission’s refusal to review the ALJ’s decision. On be “fairly traceable” to the challenged action; and (3) there January 10, 2000, the panel decided first to hear argument on must be a substantial likelihood that the relief requested will the date scheduled solely on the issue of its jurisdiction and, redress or prevent the injury. Lujan v. Defenders of Wildlife, if ASARCO’s petition were to survive the motion to dismiss, 504 U.S. 555, 560-61 (1992); Coyne v. American Tobacco then to hear the substantive aspect of the case at another date. Co., 183 F.3d 488, 494 (6th Cir. 1999). An “injury in fact” is “an invasion of a legally-protected interest” which is: (1) II concrete and particularized; and (2) actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560. “This court applies a de novo standard of review to questions of subject matter jurisdiction.” Green v. Ameritech In addition to these constitutional requirements, a party Corp., 200 F.3d 967, 972 (6th Cir. 2000) (citing Friends of must satisfy applicable statutory prerequisites for standing. the Crystal River v. EPA, 35 F.3d 1073, 1077 (6th Cir. Under the Federal Mine Safety & Health Act, “[a]ny person 1994)). adversely affected or aggrieved” by an ALJ’s decision or by a Commission order may seek review before the Commission It is a well settled principle that a prevailing party cannot or a court, respectively. 30 U.S.C. §§ 823(d)(2)(A), appeal an unfavorable aspect of a decision in its favor. See 816(a)(1). The Supreme Court has interpreted the identical New York Telephone Co. v. Maltbie, 291 U.S. 645 (1934). “A “adversely affected or aggrieved” language that appears in the party may not appeal from a judgment or decision in his Administrative Procedures Act (APA), 5 U.S.C. § 702, to favor, for the purpose of obtaining a review of findings he

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and the Commission’s refusal to review it, has caused deems erroneous which are not necessary to support the ASARCO no “distinct and palpable injury,” see ibid. decree.” Electrical Fittings Corp. v. Thomas Betts Co., 307 (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)), and U.S. 241, 242 (1939). Appellate courts review judgments, not ASARCO thus lacks standing to petition this court for review. statements in an opinion. See, e.g., Black v. Cutter Laboratories, 351 U.S. 297 (1956). As a rule, a court’s ASARCO’s petition is, therefore, DISMISSED for lack of holding on a collateral issue is appealable only when such an jurisdiction. issue undergirds a decision adverse to a party in the case, and is appealable only by that party. See 15A Charles A.Wright et al., Federal Practice and Procedure: Jurisdiction 2d § 3902, text accompanying notes 32-55. The party is the critical factor here, since analysis of standing focuses not on the salience of an issue, which may be considerable, but on the injury to a party who wishes to litigate it. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 484 (1982). ASARCO seeks to avoid these established principles through a narrow exception that has been applied by the Supreme Court in unusual and limited circumstances. The Chairman of the Commission, dissenting from the denial of ASARCO’s petition, quoted on the matter a widely-used treatise: [I]f a litigated issue was adjudicated expressly adversely to the party prevailing on the merits, even though it was immaterial to the final disposition, that party may retain an interest in the matter sufficient to support appellate jurisdiction. . . . A “stake in the appeal” exists if the collateral ruling affects the prevailing party’s rights and if erroneous would work harm to the prevailing party’s interest. 19 James W. Moore et al., Moore’s Federal Practice § 205.04[1], at 205-42–43 (3d ed. 1998) (quoting Deposit Guaranty Nat’l Bank of Jackson v. Roper, 445 U.S. 326, 334 (1980)). In Deposit Guaranty, the Supreme Court upheld the right of plaintiffs to appeal the denial of certification to a putative class of 90,000, notwithstanding an entry of judgment in their favor on the basis of the bank’s tender to plaintiffs of the

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maximum amount they could have recovered as individuals. F.2d at 818. ASARCO, in contrast, clearly is a regulated Without the class certification, the cost of litigation could not party; hence, it contends, it meets more fully than did be widely spread. In permitting the appeal of the adverse Vanderbilt the criteria for standing to appeal. certification ruling, the Court held: ASARCO’s situation is, however, distinguishable from A party who receives all that he has sought generally is Vanderbilt’s, as well as from that of the prevailing party in not aggrieved by the judgment affording the relief and Deposit Guaranty. In the latter case, plaintiffs had been cannot appeal from it. The rule is one of federal denied class certification in a suit against the bank over appellate practice, however, derived from the statutes allegedly usurious credit-card finance charges, and the bank’s granting appellate jurisdiction and the historic practices tender, which plaintiffs rejected in an attempt to reserve the of the appellate courts; it does not have its source in the appeal of the denial of certification, was embodied in a final jurisdictional limitations of Art. III. In an appropriate judgment by the district court over their objections. Unlike case, appeal may be permitted from an adverse ruling ASARCO, it is hard to see in what, if any, sense the Deposit collateral to the judgment on the merits at the behest of Guaranty plaintiffs, who received $889.42 and $423.54 but a party who has prevailed on the merits, so long as that bore the cost of litigation, could be construed to have received party retains a stake in the appeal satisfying the all that they had sought, and in any event their case presented requirements of Art. III. issues unique to class certification, and its denial, on which the Court focused in its decision. 445 U.S. at 333-34 (citations omitted). Vanderbilt was, at least arguably, subject to more damage This court quoted the last sentence of the preceding by the collateral ruling against its product than is ASARCO. language from Deposit Guaranty in a case concerning a The ruling on Vanderbilt’s product would not have any manufacturer’s appeal of an OSHA decision that its product preclusive effect — the citation against the offending contained asbestos fibers, notwithstanding an ALJ’s vacating company that had used Vanderbilt’s product was vacated, and of a citation against one of its customers for use of that the holding adverse to Vanderbilt was, at best, dicta — but the product. The decision had been made in an action not against economic loss resulting from damage to its product’s the manufacturer, but against a company to whom it had reputation might be substantial. ASARCO does not have supplied the product. See R.T. Vanderbilt Co. v. even that much economic stake. Nor will the ruling it dislikes Occupational Safety and Health Rev. Comm., 728 F.2d 815, have preclusive effect; it is not even binding on the 817 (6th Cir. 1984). This court held that the manufacturer, Commission, as the Secretary’s brief points out. Brief for the Vanderbilt, could bring an appeal, since there was a sufficient Secretary of Labor at 25. The only damage to ASARCO is, case or controversy affecting its interests, and that Vanderbilt perhaps, the cost it may incur in repeating the litigation of the did have “a personal stake in the outcome.” Ibid. Although single-sampling issue in the future, if it is cited for a violation, thereby two-thirds of the way through the courthouse door, if the citation rests on a single-shift sample, and if the citation Vanderbilt nonetheless failed to pass the “zone of interests” is upheld by an ALJ. This is a highly speculative injury, too test, as established by the Supreme Court in Association of much so to count as the “Article III minima of injury in fact” Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, required for standing. See Havens Realty Corp. v. Coleman, 153 (1970), since it was neither a regulated party nor a party 455 U.S. 363, 372 (1982). In any event, even that injury on whose behalf there was regulation. We accordingly arises not from the underlying ALJ decision, but from the dismissed the case for lack of subject matter jurisdiction. 728 MSHA’s overall enforcement policy. The ALJ’s decision,