                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0194p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 NATIONAL MINING ASSOCIATION, NATIONAL STONE                     ┐
 SAND AND GRAVEL ASSOCIATION, KENTUCKY COAL                      │
 ASSOCIATION, OHIO COAL ASSOCIATION, and                         │
 PORTLAND CEMENT ASSOCIATION (13-3324);                          │         Nos. 13-3324/3325
 MURRAY ENERGY CORPORATION, OHIO AMERICAN                        │
 ENERGY, INCORPORATED, AMERICAN ENERGY                            >
                                                    │
 CORPORATION, OHIO VALLEY COAL COMPANY, and         │
 KENAMERICAN RESOURCES, INC. (13-3325),             │
                                    Petitioners,    │
                                                    │
                                                    │
       v.                                           │
                                                    │
 SECRETARY OF LABOR, MINE SAFETY AND HEALTH │
 ADMINISTRATION,                                    │
                                                    │
                                      Respondent.
                                                    │
                                                    ┘
                      On Petition for Review of a Final Rule of the
               Secretary of Labor, Mine Safety and Health Administration;
                                  No. RIN 1219-AB73.
                                         Argued: January 29, 2014
                                   Decided and Filed: August 19, 2014

               Before: MOORE and COOK, Circuit Judges; GWIN, District Judge.

                                            _________________

                                                 COUNSEL

ARGUED: Henry Chajet, JACKSON LEWIS LLP, Reston, Virginia, for Petitioners in 13-
3324. John W. McCauley, DINSMORE & SHOHL, LLP, Cincinnati, Ohio, for Petitioners in
13-3325. Edward Waldman, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent. ON BRIEF: Henry Chajet, Avidan Meyerstein, JACKSON LEWIS

        
          The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.




                                                       1
Nos. 13-3324/3325           Nat’l Mining Ass’n et al. v. Sec. of Labor        Page 2

LLP, Reston, Virginia, for Petitioners in 13-3324. John E. Jevicky, DINSMORE & SHOHL,
LLP, Cincinnati, Ohio, for Petitioners in 13-3325. Edward Waldman, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent. Robert Huston Beatty, Jr.,
DINSMORE & SHOHL LLP, Washington, D.C., Jason M. Nutzman, DINSMORE & SHOHL
LLP, Charleston, West Virginia, Michael P. Abate, DINSMORE & SHOHL LLP, Louisville,
Kentucky, for Amici Curiae.
                                     _________________

                                             OPINION
                                       _________________

       KAREN NELSON MOORE, Circuit Judge. This case involves a consolidated challenge
by petitioners National Mining Association, National Stone Sand and Gravel Association,
Portland Cement Association, Kentucky Coal Association, and Ohio Coal Association (“NMA
petitioners”) and petitioners Murray Energy Corporation, Ohio American Energy, Inc., American
Energy Corporation, Ohio Valley Coal Company, and KenAmerican Resources, Inc., (“Murray
Energy petitioners”) to the promulgation of a new pattern of violations regulation by the Mine
Safety and Health Administration (“MSHA”) and Secretary of Labor (“Secretary”).             We
conclude that we lack jurisdiction over this challenge and therefore dismiss the case without
prejudice.

                                       I. BACKGROUND

       The Mine Act was enacted in 1977 in recognition of the “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, and in order to prevent
occupational diseases originating in such mines.” 30 U.S.C. § 801(c). The Mine Act authorizes
the MSHA to promulgate mandatory health or safety standards, conduct regular inspections of
mines, and issue citations and orders for violations of the Mine Act or regulations promulgated
pursuant to the Mine Act.

       The portion of the Mine Act enforcement structure most relevant to this case is the
pattern of violations provision:

       If an operator has a pattern of violations of mandatory health or safety standards
       in the coal or other mine which are of such nature as could have significantly and
       substantially contributed to the cause and effect of coal or other mine health or
Nos. 13-3324/3325         Nat’l Mining Ass’n et al. v. Sec. of Labor             Page 3

       safety hazards, he shall be given written notice that such pattern exists. If, upon
       any inspection within 90 days after the issuance of such notice, an authorized
       representative of the Secretary finds any violation of a mandatory health or safety
       standard which could significantly and substantially contribute to the cause and
       effect of a coal or other mine safety or health hazard, the authorized representative
       shall issue an order requiring the operator to cause all persons in the area affected
       by such violation, except those persons referred to in subsection (c) of this
       section, to be withdrawn from, and to be prohibited from entering, such area until
       an authorized representative of the Secretary determines that such violation has
       been abated.

30 U.S.C. § 814(e)(1). The statute authorizes the Secretary to “make such rules as he deems
necessary to establish criteria for determining when a pattern of violations of mandatory health
or safety standards exists.” 30 U.S.C. § 814(e)(4).

       The MSHA promulgated the first pattern of violations rule in 1990.                 Pattern of
Violations, 55 Fed. Reg. 31128 (July 31, 1990). MSHA proposed a new pattern of violations
rule in 2011. Pattern of Violations, 76 Fed. Reg. 5719 (Proposed Feb. 2, 2011). The final rule
was issued on January 23, 2013, and codified at 30 C.F.R. Part 104. Pattern of Violations, 78
Fed. Reg. 5056 (Jan. 23, 2013).

       The NMA petitioners filed their challenge to the pattern of violations rule directly in this
court on March 19, 2013. The Murray Energy petitioners filed their challenge to the pattern of
violations rule directly in this court on March 20, 2013. We granted the Secretary’s motion to
consolidate the cases. The Secretary then moved to dismiss the challenge for lack of subject-
matter jurisdiction. Mot. to Dismiss at 1–11. The petitioners opposed the motion to dismiss.
NMA Opp’n to Mot. to Dismiss at 1–20; Murray Energy Opp’n to Mot. to Dismiss at 1–16. The
Secretary’s motion was referred to this panel for consideration along with the merits of the case.

       On November 16, 2013, the NMA petitioners moved for an emergency stay of the
implementation of the pattern of violations final rule. As support for the request, the NMA
petitioners noted that Brody Mining LLC—an affiliate company of Patriot Coal, which is a
member company of NMA—received a pattern of violations notice and would have to undergo
substantial and costly changes to comply with the pattern of violations rule. Mot. for Stay at 1,
14. The Secretary opposed the motion for a stay, arguing that NMA was unlikely to prevail on
the merits of its challenge and that granting the stay would endanger the public safety. Opp’n to
Nos. 13-3324/3325               Nat’l Mining Ass’n et al. v. Sec. of Labor                      Page 4

Mot. for Stay at 10–16, 18–20. We denied the motion to stay enforcement of the rule. Stay
Order, No. 13-3324, 13-3325 (Dec. 3, 2013).

                                              II. JURISDICTION

         The Secretary argues that we lack subject-matter jurisdiction to consider this challenge
because the Mine Act vested the United States courts of appeals with jurisdiction to review only
a “mandatory health or safety standard,” 30 U.S.C. § 811(d), and the pattern of violations rule is
not a mandatory health or safety standard.1 The NMA petitioners and the Murray Energy
petitioners argue that we have subject-matter jurisdiction over this case because the Mine Act
vests jurisdiction in the United States courts of appeals to review all substantive rulemaking, not
only mandatory health or safety standards, or in the alternative, the pattern of violations rule is a
mandatory health or safety standard. NMA Opp’n to Mot. to Dismiss at 1–19; Murray Energy
Opp’n to Mot. to Dismiss at 1–16. We conclude that the pattern of violations rule is not a
mandatory health or safety standard and that we lack subject-matter jurisdiction over this
challenge.

         We begin with the Mine Act statutory scheme. The Mine Act has an administrative
process to review violations of “any mandatory health or safety standard, rule, order, or
regulation promulgated” under the Act. 30 U.S.C. § 814(a). The Mine Act explicitly vests the
United States district courts with jurisdiction in two circumstances; the Secretary may request an
injunction or restraining order, 30 U.S.C. § 818(a)(1), and the Secretary may institute an action
to collect civil penalties owed by a mine operator, 30 U.S.C. § 820(j). The Mine Act explicitly
vests jurisdiction in the courts of appeals in only two situations. First, a party that is cited for a
violation of the Mine Act or its regulations may challenge the citation in a hearing in front of the
agency, and then seek judicial review of the agency decision in the United States court of
appeals. 30 U.S.C. § 816(a)(1). Second, “[a]ny person who may be adversely affected by a
mandatory health or safety standard promulgated under this section may . . . file a petition

         1
           The Secretary previously took the position that the federal courts of appeals had jurisdiction to review all
regulations promulgated pursuant to the Mine Act, even those regulations that are not mandatory health or safety
standards, but changed his position based on Occupational Safety and Health Act caselaw. Mot. to Dismiss at 8.
However, because “Chevron deference does not apply to an agency’s interpretation of a federal court’s jurisdiction,”
Shweika v. Dep’t of Homeland Sec., 723 F.3d 710, 718 (6th Cir. 2013), the Secretary’s change in position is not
particularly significant.
Nos. 13-3324/3325          Nat’l Mining Ass’n et al. v. Sec. of Labor             Page 5

challenging the validity of such mandatory standard with the United States Court of Appeals for
the District of Columbia Circuit or the circuit wherein such person resides or has his principal
place of business, for a judicial review of such standard.” 30 U.S.C. § 811(d).

       The petitioners argue that the United States courts of appeals may review all substantive
rulemaking pursuant to the Mine Act, and that our subject-matter jurisdiction is not limited to
review of mandatory health or safety standards. This argument relies heavily on a statement in
the decision of the United States District Court for the District of Columbia in Bituminous Coal
Operators’ Association v. Marshall, 82 F.R.D. 350 (D.D.C. 1979). In Bituminous Coal, a mine
operator brought “a pre-enforcement challenge to an Interpretative Bulletin” issued by the
Secretary. Id. at 351. The district court analyzed the structure of the Mine Act and noted that
while the statute permitted judicial review in the United States courts of appeals of mandatory
health or safety standards, it vested jurisdiction in the district court for two types of actions
brought by the Secretary, not a mine operator. The district court concluded that it lacked
jurisdiction over the case because “[t]he structure of the Act in this instance makes it quite clear
that Congress intended that all legal challenges to the Act, to its enforcement and to any
regulations promulgated thereunder be heard by the Federal Courts of Appeals, not by the
Federal District Courts.” Id. at 352. However, the district court did not transfer the case to the
court of appeals; the district court concluded that the mine operator had to challenge the agency
action through the agency review process and then could seek review of the agency decision in
the court of appeals. Because the action was not ripe for review, the district court dismissed the
complaint. Id. at 353–54. The decision was not appealed.

       Bituminous Coal’s broad statement that Congress intended “all” Mine Act challenges to
be heard by the courts of appeals, not the district courts, was relied on by the United States Court
of Appeals for the District of Columbia Circuit in support of that court having jurisdiction to
review the Secretary’s decision to defer implementation of a regulation.             Council of S.
Mountains, Inc. v. Donovan, 653 F.2d 573, 579–80 n.26 (D.C. Cir. 1981). However, the court of
appeals stated that the primary reason that it had jurisdiction was because the deferred regulation
“was in effect an amendment to a mandatory safety standard,” and so jurisdiction was explicitly
vested in the United States court of appeals under 30 U.S.C. § 811(d). Id.
Nos. 13-3324/3325         Nat’l Mining Ass’n et al. v. Sec. of Labor           Page 6

       In Coal Employment Project v. McLaughlin, CIV.A. No. 88-0402-LFO, 1988 WL 16300,
at *1 (D.D.C. Sept. 27, 1988), relying on Bituminous Coal, the District Court for the District of
Columbia concluded that it lacked jurisdiction over a challenge that a regulation was facially
inconsistent with the Mine Act, and transferred the case to the court of appeals pursuant to
28 U.S.C. § 1631.    Id. at *2–3.   After the case was transferred, the petitioners challenged
jurisdiction in the Court of Appeals for the District of Columbia Circuit; that court issued an
extremely brief unpublished order stating that “authority to review regulations promulgated
pursuant to 30 U.S.C. § 927 resides in courts of appeals, not in district courts.” Coal Emp’t
Proj., Unpublished Order (D.C. Cir. Feb. 6, 1989). However, 30 U.S.C. § 927 does not appear to
have existed; presumably this was a typographical error in the order and the statute referred to
was 30 U.S.C. § 957, which provides a general grant of rulemaking authority to the Secretary
and others “to issue such regulations as each deems appropriate to carry out any provision of this
chapter.”

       “Congress is free to ‘choose the court in which judicial review of agency decisions may
occur.’” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting Five Flags Pipe Line Co. v.
Dep’t of Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988)). We are not persuaded that Congress
chose to locate judicial review of all regulations promulgated pursuant to the Mine Act in the
United States courts of appeals. Bituminous Coal’s theory that jurisdiction lies in the United
States courts of appeals even when Congress did not explicitly vest jurisdiction in that court
conflicts with contemporary decisions interpreting the Administrative Procedure Act, which
provides that “[t]he form of proceeding for judicial review is the special statutory review
proceeding relevant to the subject matter in a court specified by statute or, in the absence or
inadequacy thereof . . . in a court of competent jurisdiction.” 5 U.S.C. § 703. “Because district
courts have general federal question jurisdiction under 28 U.S.C. § 1331, the ‘normal default
rule’ is that ‘persons seeking review of agency action go first to district court rather than to a
court of appeals.’” Watts, 482 F.3d at 505 (quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d
1478, 1481 (D.C. Cir. 1994)). “Initial review of agency decisions ‘occurs at the appellate level
only when a direct-review statute specifically gives the court of appeals subject-matter
jurisdiction to directly review agency action.’” Nat’l Auto. Dealers Ass’n v. FTC, 670 F.3d 268,
270 (D.C. Cir. 2012) (quoting Watts, 482 F.3d at 505)). The Mine Act did not “specifically
Nos. 13-3324/3325          Nat’l Mining Ass’n et al. v. Sec. of Labor              Page 7

give[]” or “provide[]” the United States courts of appeals jurisdiction to engage in the initial
review of regulations that are not mandatory health or safety standards.           Accordingly, we
conclude that we do not have jurisdiction over this challenge to the pattern of violations rule
unless it is a mandatory health or safety standard.

       Our conclusion that jurisdiction over initial review of regulations is proper in the district
court when the statute does not explicitly vest jurisdiction in the court of appeals is consistent
with cases interpreting the Occupational Safety and Health Act (OSH Act). The OSH Act is a
useful analogue because the Mine Act review process is modeled on the OSH Act. Sturm, Ruger
& Co. v. Chao, 300 F.3d 867, 873 (D.C. Cir. 2002). Like the Mine Act, “[t]he OSH Act
authorizes the Secretary of Labor to promulgate ‘standards’ and ‘regulations’—two different
types of rules.” Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 (D.C. Cir.
1995). Also like the Mine Act, the OSH Act authorizes a person adversely affected by a
“standard” to seek review in the United States courts of appeals, but is silent on the issue of
judicial review of “regulations” that are not standards. Id. Accordingly, the Court of Appeals
for the District of Columbia Circuit concluded that “a party seeking to challenge a ‘standard,’ as
defined in section 652(8), may petition a court of appeals, but a party seeking to challenge a
‘regulation’ must seek review in the District Court.” Id. See also La. Chem. Ass’n v. Bingham,
657 F.2d 777, 785 (5th Cir. 1981) (“Congress fashioned two entirely different modes of legal
requirements in this statute, with correspondingly distinct methods for review:             standards
addressed to particular hazards already identified receive direct review in the Courts of Appeals;
the important but perhaps less urgent procedures for detection and enforcement must obtain
initial review in the District Courts.”). Like the OSH Act, because the Mine Act does not
explicitly provide for court of appeals jurisdiction for regulations that are not mandatory health
or safety standards, we lack subject-matter jurisdiction over the initial review of a rule that is not
a mandatory health or safety standard.

       We conclude that the pattern of violations rule is not a mandatory health or safety
standard.   The Mine Act defines “mandatory health or safety standard” as “the interim
mandatory health or safety standards established by subchapters II and III of this chapter, and the
standards promulgated pursuant to subchapter I of this chapter.” 30 U.S.C. § 802(l). The pattern
Nos. 13-3324/3325             Nat’l Mining Ass’n et al. v. Sec. of Labor         Page 8

of violations rule was not established by subchapters II or III of Chapter 22 of Title 30, and so
does not satisfy the first clause. The petitioners focus on the second clause in this definition and
argue that the pattern of violations rule is a “standard[] promulgated pursuant to subchapter I of
this chapter,” and thus is a mandatory health or safety standard. We disagree.

       First, the pattern of violations rule is unlike the mandatory health or safety standards.
The interim mandatory health or safety standards in subchapters II and III impose obligations on
mine operators with regard to specifics such as the acceptable levels of dust in the air, 30 U.S.C.
§ 842(b); what type of medical exam must be available to miners, 30 U.S.C. § 843(a); how to
ground high-voltage circuits, 30 U.S.C. § 868; and what information must be included on maps
of the mine, 30 U.S.C. § 872. The pattern of violations rule is nothing like these standards.
Unlike the standards, which impose obligations on the mine operators, the rule is directed at the
Secretary and provides a mechanism to measure mine operators’ compliance with the mandatory
health or safety standards.

       Second, we reject the petitioners’ argument that “standards” in the definition of
mandatory health or safety standards refers to all rulemaking by the Secretary. The Mine Act
does not define “standards.”        However, the usage of the word throughout the Mine Act
demonstrates that “standards” is an abbreviation for “mandatory health or safety standards.” See,
e.g., 30 U.S.C. § 811(c) (emphasis added) (“Upon petition by the operator or the representative
of miners, the Secretary may modify the application of any mandatory safety standard to a coal
or other mine if the Secretary determines that an alternative method of achieving the result of
such standard exists . . . or that the application of such standard to such mine will result in a
diminution of safety to the miners in such mine.”); 30 U.S.C. § 814(a) (emphasis added) (“If,
upon inspection or investigation, the Secretary or his authorized representative believes that an
operator of a coal or other mine subject to this chapter has violated this chapter, or any
mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this
chapter, he shall, with reasonable promptness, issue a citation to the operator. Each citation shall
be in writing and shall describe with particularity the nature of the violation, including a
reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been
violated.”). Thus, “standards” simply means “mandatory health or safety standard,” and does not
Nos. 13-3324/3325             Nat’l Mining Ass’n et al. v. Sec. of Labor                    Page 9

refer to all regulations promulgated by the Secretary pursuant to subchapter I, as the petitioners
argue.

         The petitioners are correct that the pattern of violations rule was promulgated pursuant to
30 U.S.C. § 814(e)(4), which is in subchapter I. However, this does not mean that the rule is
necessarily a “standard[] promulgated pursuant to subchapter I of this chapter” within the
meaning of the mandatory health or safety standard definition, 30 U.S.C. § 802(l). 30 U.S.C.
§ 811(a), which is also within subchapter I, authorizes the Secretary to “develop, promulgate,
and revise as may be appropriate, improved mandatory health or safety standards for the
protection of life and prevention of injuries in coal or other mines.” Thus, the natural reading of
the phrase “standard[] promulgated pursuant to subchapter I of this chapter” is with reference to
mandatory health or safety standards promulgated pursuant to § 811(a).                        The petitioners’
argument that this phrase was also meant to include the pattern of violations rule—a regulation
that does not impose a mandatory health or safety standard and was promulgated pursuant to a
different grant of authority that is also contained in subchapter I—is extremely strained.

         We conclude that the pattern of violations rule is not within the definition of a mandatory
health or safety standard. Accordingly, we conclude that we do not have jurisdiction to engage
in the initial review of this challenge to the pattern of violations rule.

         In his motion to dismiss for lack of jurisdiction, the Secretary argued that we certainly did
not have jurisdiction, and that the federal district court may not have jurisdiction, either. The
Secretary’s motion, submitted prior to briefing, argued that the proper forum for the challenge
depended on the nature of the petitioners’ challenge to the pattern of violations rule. He argued
that the district court would be the proper venue for “an argument that the Secretary failed to
comply with the procedural requirements of the Administrative Procedure Act,” whereas “an
argument that the [pattern of violations] rule exceeds the Secretary’s authority under Section
104(e) of the Mine Act may be ‘of the type Congress intended to be reviewed within [the Mine
Act’s] statutory structure,’ [Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212 (1994)2], and

         2
         In Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the Supreme Court held that the Mine Act’s
comprehensive administrative review process precluded district court jurisdiction over a pre-enforcement challenge
to an MSHA order. Id. at 207–16. The Court held that the text, structure, and legislative history indicated that a
mine operator could not circumvent the administrative review process by challenging an order of the MSHA by
Nos. 13-3324/3325                Nat’l Mining Ass’n et al. v. Sec. of Labor                        Page 10

therefore subject to review only when raised as a defense to an enforcement proceeding brought
by the Secretary before the Commission.” Mot. to Dismiss at 10. The petitioners argued that the
Mine Act does not preclude jurisdiction over this challenge, and both sets of petitioners briefly
stated that if the court of appeals lacks jurisdiction over this appeal, the case should be
transferred to the district court. NMA Opp’n to Mot. to Dismiss at 19–20; Murray Energy Opp’n
to Mot. to Dismiss at 14 n.3.

         When we lack jurisdiction over a civil action, in lieu of dismissing the case we may
transfer the case to the proper court pursuant to 28 U.S.C. § 1631, which provides:

         Whenever a civil action is filed in a court as defined in section 610 of this title or
         an appeal, including a petition for review of administrative action, is noticed for
         or filed with such a court and that court finds that there is a want of jurisdiction,
         the court shall, if it is in the interest of justice, transfer such action or appeal to
         any other such court in which the action or appeal could have been brought at the
         time it was filed or noticed, and the action or appeal shall proceed as if it had been
         filed in or noticed for the court to which it is transferred on the date upon which it
         was actually filed in or noticed for the court from which it is transferred.

28 U.S.C. § 1631.

         Although both sets of petitioners state that if we lack jurisdiction we should transfer the
case to the district court, neither set of petitioners has explained why doing so would be “in the
interest of justice.” Id.; see Cosmichrome, Inc. v. Spectra Chrome, LLC, 504 F. App’x 468, 472
& n.4 (6th Cir. 2012) (holding that the district court’s failure to transfer the case to a different
district court was not an abuse of discretion when “no compelling reason for a transfer was
raised.”). Nor does either set of petitioners identify the district court where “the action or appeal
could have been brought at the time it was filed or noticed.” 28 U.S.C. § 1631. Given that the
petitioners are national trade associations and corporations located across the country, it is far
from clear where this case could have been brought originally.




filing for an injunction in the federal district court; the Court noted that it had “upheld district court jurisdiction over
claims considered wholly collateral to a statute’s review provisions and outside the agency’s expertise, particularly
where a finding of preclusion could foreclose all meaningful judicial review,” id. at 212–13 (internal quotation
marks and citations omitted), but held that Congress intended a suit of this type to proceed through the
administrative review process, id. at 213–16.
Nos. 13-3324/3325         Nat’l Mining Ass’n et al. v. Sec. of Labor        Page 11

       For these reasons, even if the Mine Act administrative review scheme did not preclude
the district court’s jurisdiction, we would nonetheless decline the request to transfer the case
pursuant to 28 U.S.C. § 1631. Consequently, we need not reach the question of whether the
district court’s jurisdiction over this challenge is precluded by the Mine Act administrative
review scheme.

                                     III. CONCLUSION

       For the foregoing reasons, we DISMISS the case without prejudice for want of subject-
matter jurisdiction.
