In National Mining Association v. Secretary of Labor , the Sixth Circuit evaluated consolidated challenges to the promulgation of a new pattern of violations regulation by the Mine Safety and Health Administration and the Secretary of Labor.  However, the Court never reached the merits of the challenge because it concluded that it lacked subject matter jurisdiction.  The Mine Act sets forth a somewhat complicated scheme for judicial review of various regulations.  This confusion prompted different results between DC federal courts and the Sixth Circuit on the question of jurisdiction.

According to the Sixth Circuit, the Mine Act vests jurisdiction in the federal appellate courts in only two situations: (1) a party cited for violation of the Mine Act may challenge the citation before the agency and then seek judicial review in the appropriate United States Court of Appeals; and (2) any person adversely affected by a mandatory health or safety standard may likewise challenge the standard in the appropriate federal appellate court.  The petitioners, relying on authority from a DC district court (as amplified by subsequent cases following it) argued that the federal appellate courts may review all substantive rule making pursuant to the Mine Act.  In reviewing this authority, the Sixth Circuit essentially concluded that those courts did not fairly address the question of broader appellate jurisdiction or did so in relatively loose dicta.  Because the regulation at issue was not a mandatory health or safety standard, the Sixth Circuit accordingly concluded that it lacked jurisdiction.

In light of that finding, it begs the question of whether a federal district court would have jurisdiction.  The Secretary took the position that the federal district court may not have jurisdiction, but the petitioners requested, in the alternative, transfer of the case to an appropriate federal district court under 28 U.S.C. § 1631.  However, because there was no clarity as to which district court the matter should be transferred to (in addition to the lack of clarity as to whether the federal district court would have jurisdiction at all) the Sixth Circuit declined an invitation to transfer.

This opinion certainly is a cautionary tale about challenges to agency regulations where the path for judicial review is not a portrait of clarity.  The Sixth Circuit compared this regime to that under the Occupational Safe and Health Act, and parties seeking judicial review under either act should certainly carefully review both the statutory structure as well as this opinion.