       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.

                            1
2   ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234        No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 11

                    _________________                             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
10 ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234          No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 3

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
4   ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234         No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 9

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
8   ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234      No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 5

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
6    ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234         No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 7

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,
