 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 4, 2018                      Decided July 10, 2018

                         No. 17-1219

     SECRETARY OF LABOR, MINE SAFETY AND HEALTH
                   ADMINISTRATION,
                     PETITIONER

                               v.

CONSOLIDATION COAL COMPANY AND FEDERAL MINE SAFETY
          AND HEALTH REVIEW COMMISSION,
                   RESPONDENTS


        On Petition for Review of a Decision of the
     Federal Mine Safety & Health Review Commission


        Emily C. Toler, Attorney, Department of Labor, Office
of the Solicitor, argued the cause for petitioner. With her on
the briefs was Ali A. Beydoun, Counsel, Appellate Litigation.

      John T. Sullivan, Attorney, Mine Safety and Health
Review Commission, entered an appearance.

       Billy R. Shelton argued the cause and filed the brief for
respondent.

       Before: SRINIVASAN, MILLETT and KATSAS, Circuit
Judges.
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     MILLETT, Circuit Judge: After a rock extraction caused a
roof to collapse in a mining tunnel where miners sometimes
work, the Federal Mine Safety and Health Administration cited
the Consolidation Coal Company for excavating an excess
amount of rock from the tunnel, in violation of what the
company’s roof plan allowed. An administrative law judge
later reduced the citation fine, concluding that Consolidation
Coal’s breach of its roof control plan, with the resulting roof
collapse, was not a “significant and substantial” safety
violation. On administrative review, the Federal Mine Safety
and Health Review Commission deadlocked two-to-two on the
issue, leaving the administrative law judge’s decision as the
final agency decision. Because the administrative law judge’s
decision relied critically on types of evidence long foreclosed
by Commission precedent, we vacate the decisions of the
Commission and the administrative law judge and remand for
further proceedings.

                               I

     The Federal Mine Safety and Health Act of 1977 (“Mine
Act”), as amended, 30 U.S.C. § 801 et seq., authorizes the
Secretary of Labor to promulgate mandatory mining safety
standards, to inspect mines, and to issue citations and civil
penalties for violations of those safety standards. If, in the
course of issuing such a citation, an inspector finds that a
violation of “any mandatory health or safety standard” is “of
such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health
hazard” and resulted from an “unwarrantable failure” of the
mine operator “to comply” with those standards, the inspector
shall include this finding in the citation report. Id. § 814(d).
Such “significant and substantial” violations can trigger
enhanced penalties and, if repeated within a specified time
period, can require inspectors to order an evacuation of the
mining area until the operator abates the hazard. Id. § 814(d),
                                  3




(e); 30 C.F.R. § 100.3(a).

     The Commission has long broken the test for a “significant
and substantial” violation into four parts: (1) the violation of
a mandatory safety standard; (2) “a discrete safety hazard—that
is, a measure of danger to safety—contributed to by the
violation;” (3) “a reasonable likelihood that the hazard
contributed to will result in an injury;” and (4) “a reasonable
likelihood that the injury in question will be of a reasonably
serious nature.” Secretary of Labor v. Mathies Coal Co., 6
FMSHRC 1, 3–4 (1984). 1

     To effectuate the policies of the Mine Act, the Mine Safety
and Health Administration has promulgated a number of
mandatory mine safety standards. As relevant here, the
Administration’s rules require mine operators to ensure that the
tunnels in mines have adequate roof support “where persons
work or travel” in order to “protect persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts.”
30 C.F.R. § 75.202(a). Relatedly, mine operators must submit
and abide by a “roof control plan” approved by the
Administration’s District Manager. Id. § 75.220.

                                  II

     In the early morning of July 2011, an Administration mine

1
  This court has yet to endorse the Mathies test. We need not do so
in this case because, as in past cases, the parties have not challenged
its application. See Mach Mining, LLC v. Secretary of Labor, 809
F.3d 1259, 1263, 1267 (D.C. Cir. 2016) (“Mach does not dispute that
whether a violation is serious enough to be ‘significant and
substantial’ is governed by the four-element test in Mathies Coal
Co.”); Cumberland Coal Res., LP v. Federal Mine Safety & Health
Review Comm’n, 717 F.3d 1020, 1027 (D.C. Cir. 2013) (“In
addressing this argument, we do not intend to imply that we are
adopting the Mathies test, the validity of which is not challenged
here.”).
                                4




inspector, Gregory Ratliff, came to Buchanan Mine #1 to
investigate a complaint about water leakage. While there,
Ratliff noticed that a portion of the mine’s roof had collapsed
in a crosscut between two entry points. According to the
mine’s foreman, the roof had collapsed while they were cutting
a piece of rock from the area, dislodging “a couple of [roof]
bolts” and breaking the mining machine’s conveyor chain.
J.A. 113. Because the roof in this portion of the mine
contained several pre-existing cracks, the mine’s roof control
plan limited miners to a cut of no more than 20 feet at a time.
On closer inspection, Ratliff noticed that the cut of rock from
this area appeared to exceed 20 feet—the maximum depth
permitted under such adverse roof conditions.

     By the time Ratliff discovered the collapse, the miners
were already in the process of bolting the unsupported roof
down. When they finished, Ratliff measured the cut and, as
suspected, found that it exceeded the permissible 20-foot depth,
measuring 23.5 feet from the last row of roof bolts. Based on
this evidence, Ratliff issued a citation to the Consolidation Coal
Company, the mine’s owner and operator, for violation of the
mine’s roof control plan. Because the violation “expose[d]
miners to the hazards associated with roof falls,” the inspector
also concluded that the violation was “significant and
substantial” and set a fine of $3,405. J.A. 40, 127–128.

     Consolidation Coal contested the citation in a hearing
before an administrative law judge (“ALJ”). The ALJ agreed
with Inspector Ratliff that the cut exceeded the depth permitted
under the company’s approved roof control plan and so violated
a mandatory safety standard. But the ALJ also ruled that the
resulting hazard was not “significant and substantial” because,
in her view, it was not reasonably likely to result in injury, as
required by the third prong of the Mathies test. The judge
rested her finding of no reasonable likelihood of injury on four
factual findings:
                               5




    1)    Miners were unlikely to access the area of
    unsupported roof because “they work a substantial
    distance back” and “are not permitted to enter the ‘red
    zone’ beyond the next-to-last row of bolts.” J.A. 42.

    2) The miners that did access this area would only do so
    under the protection of coal excavation equipment (in the
    case of employees working on the mine’s ventilation) or
    an Automated Temporary Roof Support (ATRS) system
    (in the case of miners installing additional roof bolts).
    J.A. 42.

    3) The mine employed a tighter roof bolting pattern in
    the area, decreasing “the likelihood that a roof fall
    originating in the extended cut would be able to spread into
    or significantly affect the bolted roof areas behind it.”
    J.A. 42.

    4) Miners were already bolting the unsupported roof
    when the inspector arrived, leaving mine employees
    subject to the hazard for only a short period of time. J.A.
    43.

    Based on those findings, the ALJ reduced the fine from
$3,405 to $1,500.

     When the Secretary sought administrative review of this
decision, the Federal Mine Safety and Health Review
Commission came to an impasse. Two Commissioners
concluded that there was substantial evidence to support the
ALJ’s findings. And two Commissioners voted to reverse,
concluding that the ALJ impermissibly relied on Consolidation
Coal’s compliance with other, different safety measures, rather
than focusing on the hazard resulting specifically from the roof
plan violation. They also concluded that the ALJ had ignored
record evidence about miners who needed to enter the area
potentially affected by the roof collapse.
                                6




     The two-to-two division of the Commissioners made the
ALJ’s ruling the final agency decision. The Secretary then
petitioned this court for review, arguing that the ALJ
impermissibly relied on redundant safety measures and miner
precaution in concluding that the violation was not “significant
and substantial.” 2

                                A

     At the outset, we are met with Consolidation Coal’s
argument that we cannot entertain the Secretary’s objections
because they were not argued before the ALJ, but instead were
raised for the first time on appeal to the Commission. Both
law and logic foreclose that argument.

     As a matter of logic, the Secretary’s objections speak to
alleged flaws in the ALJ’s decision itself. The Secretary
argues that, in finding no significant and substantial safety
violation, the ALJ relied on legally irrelevant factual findings.
Having not been warned in advance by Consolidation Coal’s
arguments that the ALJ might run afoul of Commission
precedent in her analysis, the Secretary could hardly be
expected to point out the legal errors in the ALJ’s decision
before that decision issued.

     Fortunately, the law here points in that same logical
direction. The Mine Act limits this court to objections raised
“before the Commission.” 30 U.S.C. § 816(a)(1). The statute
says nothing about judicial review of objections not raised
before the ALJ.

     To be sure, the Mine Act generally limits discretionary
petitions for Commission review to questions of fact or law
upon which the ALJ has “been afforded an opportunity to pass,”
2
  Both parties agree that we review the reasoning of the ALJ in the
event of a divided Commission decision. We assume “without
deciding” that this is the proper focus of our review.
                               7




unless the petitioning party can show “good cause” for failing
to raise the issue below. 30 U.S.C. § 823(d). But the
Commission also retains the right to review an ALJ’s decision
sua sponte if the judge acts “contrary to law or Commission
policy” or the decision raises “a novel question of policy.” Id.
§ 823(d)(2)(B). That sua sponte review requires the vote of
only two Commissioners, id., which functionally occurred in
this case when the two Commissioners favoring reversal
pointed to the ALJ’s erroneous reliance on redundant safety
measures and miner caution. Given that, our review comports
with the statutory requirements.

     On top of all that, ALJs have an independent obligation “to
apply Commission precedent to the legal issue raised”
regardless of whether the Secretary expressly directs them to it.
Secretary of Labor v. San Juan Coal Co., 29 FMSHRC 125,
129 (2007) (“To conclude that the judge was bound to consider
only the factors that the Secretary explicitly discussed in her
brief, even where the evidence clearly demonstrates the
relevance of other factors, would impermissibly constrain the
judge’s responsibility to apply Commission precedent to the
legal issue raised on the facts developed in the record.”). The
ALJ’s failure to walk the correct legal path is subject to
Commission review as long as the misstep is “implicitly” raised
or is “so intertwined with an element tried” that “it may
properly be considered on appeal.” Id. at 130. Like the ALJ’s
refusal to consider one prong of the applicable test in San Juan
Coal Company, the relevance in this case of alternative safety
measures and miner precaution was inherently bound up in the
Secretary’s argument that the roof control violation was likely
to result in injury.

                               B

     The Secretary’s objection that the ALJ, in finding no
reasonable likelihood of injury, impermissibly relied on
redundant safety measures is well taken. The ALJ’s critical
                               8




fact findings involved Consolidation Coal’s compliance with
other required safety standards, such as the ATRS system.
The ALJ also relied on miners to protect themselves by
avoiding the area under the unsecured roof.

      Ample Commission precedent holds that such
considerations are irrelevant to the likelihood-of-injury
analysis. That is because the third prong of the Mathies test
focuses on the risk of injury created by the safety violation
itself. See, e.g., Secretary of Labor v. Black Beauty Coal Co.,
38 FMSHRC 1307, 1313–1314 (2016) (“[T]he methane
monitor, fire suppression system and devices, water sprays, CO
monitors, fire brigade, breathing devices and turnout gear for
firefighters are the sort of safety measures that we, and the
appellate courts, have held to be irrelevant to the [significant
and substantial] analysis under the Act.”); Secretary of Labor
v. Brody Mining, LLC, 37 FMSHRC 1687, 1691 (2015)
(“When deciding whether a violation is [significant and
substantial], courts and the Commission have consistently
rejected as irrelevant evidence regarding the presence of safety
measures designed to mitigate the likelihood of injury resulting
from the danger posed by the violation.”). The Commission
itself has characterized this rule as “well settled.” Black
Beauty Coal Co., 38 FMSHRC at 1312.

     The same is true of miner precaution. Because the safety
standards are there to protect miners, the hope or expectation
that miners will protect themselves “is not relevant under the
Mathies test.” Secretary of Labor v. Newtown Energy Inc., 38
FMSHRC 2033, 2044 (2016); see also Secretary of Labor v.
Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (1992) (“We reject
the judge’s conclusion that the ‘exercise of caution’ may
mitigate the hazard.”); Secretary of Labor v. United States Steel
Mining Co., 6 FMSHRC 1834, 1838 (1984) (dismissing
argument that the violation of a cable marking requirement was
not reasonably likely to cause injury because miners could
determine the identity of cables by process of elimination);
                               9




Secretary of Labor v. Great W. Elec. Co., 5 FMSHRC 840, 842
(1983) (considering miner skill “ignores the inherent vagaries
of human behavior”). As the Commission has pointed out,
while “miners should, of course, work cautiously, that
admonition does not lessen the responsibility of operators,
under the Mine Act, to prevent unsafe conditions.” Eagle
Nest, Inc., 14 FMSHRC at 1123. This reading also has the
benefit of advancing the stated purpose of the Mine Act, which
gives “the first priority and concern” to the “health and safety
of its most precious resource—the miner,” in view of “an urgent
need to provide more effective means and measures for
improving the working conditions and practices in the Nation’s
coal or other mines in order to prevent death and serious
physical harm.” 30 U.S.C. § 801(a), (c).

     This court’s precedent is of the same mind. In Secretary
of Labor v. Federal Mine Safety & Health Review Commission
(Jim Walter Resources, Inc.), 111 F.3d 913 (D.C. Cir. 1997),
this court held that the Commission could not rely on
aggravating facts external to a safety violation to conclude that
the violation was of such nature as to significantly and
substantially contribute to a hazard, id. at 915. The Secretary’s
reading of Mathies relies on this same principle in reverse:
that circumstances external to a violation cannot be used to
reduce the likelihood that harm will ensue.

      Likewise, in Cumberland Coal Resources, LP v. Federal
Mine Safety & Health Review Commission, 717 F.3d 1020
(D.C. Cir. 2013), this court again interpreted the statutory text
to focus on the “nature” of “the violation” rather than any
surrounding circumstances. More to the point, the court held
that “consideration of redundant safety measures,”—that is,
“preventative measures that would have rendered both injuries
from an emergency and the occurrence of an emergency in the
first place less likely”—“is inconsistent with the language of
[Section] 814(d)(1).” Id. at 1028–1029.
                              10




     As with other administrative bodies, the Commission errs
when its decisions depart from its own “directly on point”
precedent without supplying a reasoned basis for the change.
See Lone Mtn. Processing v. Secretary of Labor, 709 F.3d 1161,
1164 (D.C. Cir. 2013). In this case, extensive Commission
precedent precluded reliance on the very type of facts on which
the ALJ founded her finding of no likelihood of injury. Once
the ATRS system and miner self-protection are backed out of
the ALJ’s analysis, the only the remaining factors cited by the
ALJ for finding no substantial or significant violation were the
tighter roof bolting system and the short duration of the hazard.
Given the inherent risk in a roof collapse, with miners in the
area and potentially underfoot, we are in no position to brush
off the reasonable possibility of injury. The ALJ decision,
with the impermissible considerations removed, cannot be
sustained on this record.

     Consolidation Coal points to other evidence to show that
there was not a reasonable likelihood of injury. There is one
problem: The ALJ did not rely on the vast majority of the
evidence cited by Consolidation Coal. See Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (“We may not supply a reasoned basis for the agency’s
action that the agency itself has not given.”) (citing SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947)). In fact, she never
even mentioned it. The two-affirming Commissioners, to be
sure, recited that additional evidence as support for the ALJ’s
ruling. But Consolidation Coal agrees that the decision under
review is that of the ALJ, not the reasoning of just one-half of
an equally divided Commission. Respondent’s Br. 9. And in
any event, the Commission has no authority to supplement the
factual record on its own. See 30 U.S.C. § 823(d)(2)(C) (“If
the Commission determines that further evidence is necessary
on an issue of fact[,] it shall remand the case for further
proceedings before the [ALJ].”).

    We note, in conclusion, that this case does not present the
                             11




question of whether redundant safety measures or miner
precaution could be relevant at any other step of the Mathies
inquiry. The ALJ rooted her decision in the likelihood-of-
injury prong. That was error under settled Commission
precedent. For that reason, we vacate the ALJ’s and
Commission’s decisions, and remand for further proceedings
consistent with this decision.

                                                 So ordered.
