[00:00:00] Speaker 05:
Case number 24-1293, et al.

[00:00:03] Speaker 05:
Secretary of Labor, Mine Safety and Health Administration, petitioner.

[00:00:08] Speaker 05:
Versus Ninehawkel LLC and Federal Mine Safety and Health Review Commission.

[00:00:12] Speaker 05:
And case number 24-1294, et al.

[00:00:16] Speaker 05:
Secretary of Labor, Mine Safety and Health Administration, petitioner.

[00:00:20] Speaker 05:
Versus Crimson Oak Grove Resources, LLC, et al.

[00:00:23] Speaker 05:
Ms.

[00:00:23] Speaker 05:
Maltz for the petitioner.

[00:00:25] Speaker 05:
Mr. Schmidt, amicus curiae for the respondent.

[00:00:28] Speaker 02:
Ms.

[00:00:28] Speaker 02:
Maltz, good morning.

[00:00:29] Speaker 06:
Good morning.

[00:00:31] Speaker 06:
May it please the court.

[00:00:32] Speaker 06:
I'm Susanna Maltz for the Secretary of Labor.

[00:00:34] Speaker 06:
With me at counsel's table is Allie Beydoun, also the secretary's office.

[00:00:39] Speaker 06:
I see that the court is... Oh, I'd like to reserve two minutes for rebuttal, please.

[00:00:44] Speaker 02:
Can you raise that a little bit?

[00:00:46] Speaker 02:
I'm so hard of hearing.

[00:00:47] Speaker 02:
Absolutely.

[00:00:47] Speaker 02:
I'm happy to.

[00:00:48] Speaker 02:
I'm happy to hear what you have to say.

[00:00:49] Speaker 06:
And I'll speak up as well.

[00:00:50] Speaker 02:
Great.

[00:00:50] Speaker 02:
Thank you.

[00:00:52] Speaker 06:
The MINE Act has a split enforcement scheme.

[00:00:57] Speaker 06:
It creates two distinct roles for the secretary and the commission.

[00:00:59] Speaker 06:
The secretary enforces the act and the commission adjudicates disputes.

[00:01:03] Speaker 06:
But the commission now asserts that it has the power to do both and review and approve the secretary's enforcement decisions.

[00:01:09] Speaker 06:
As this court has reminded the commission in the past, that is not its role.

[00:01:14] Speaker 06:
I will address the jurisdictional issues first.

[00:01:19] Speaker 06:
The orders in this case are collateral orders.

[00:01:22] Speaker 06:
They conclusively resolve a disputed issue, an important issue separate from the merits.

[00:01:27] Speaker 06:
This issue is important because it concerns the different roles of the secretary and the commission.

[00:01:31] Speaker 06:
It's analogous to a separation of powers concern.

[00:01:37] Speaker 04:
So it seems to me, though, that you could get this issue resolved after there's the equivalent of a final judgment in the case, right?

[00:01:45] Speaker 04:
Because it seems like if this were remanded to the agency, there would be a hearing and after the hearing, then there could be appellate review.

[00:01:55] Speaker 04:
Why shouldn't it?

[00:01:57] Speaker 04:
That's the norm.

[00:01:58] Speaker 04:
And why shouldn't it be done that way?

[00:01:59] Speaker 06:
That is the norm.

[00:02:00] Speaker 06:
I think it would be very difficult for the secretary to preserve that issue and get review of a decision, particularly if that decision were in her favor.

[00:02:07] Speaker 06:
It's not clear that the secretary would have the authority to appeal a favorable decision.

[00:02:11] Speaker 04:
She can't cross appeal, though, on the settlement issue?

[00:02:14] Speaker 06:
It's not clear that she would be able to do that with this issue.

[00:02:17] Speaker 04:
Have there ever been cross appeals?

[00:02:19] Speaker 06:
There have been cross appeals in general, Your Honor, but I don't know that there have been cross appeals with respect to an issue relevant to the settlement

[00:02:25] Speaker 06:
portion of the case.

[00:02:26] Speaker 04:
Why wouldn't that be a permissible appeal?

[00:02:29] Speaker 04:
Because I guess in the analogous district court context, everything is up for appeal after the final judgment.

[00:02:35] Speaker 04:
And I don't see why this would be any different.

[00:02:37] Speaker 06:
Well, I think the court's decision in Meredith versus Fentrick has some language about

[00:02:43] Speaker 06:
whether or not the secretary can appeal orders from just orders in general, or only orders that she's aggrieved by under Section 106 of the Mine Act.

[00:02:50] Speaker 04:
Well, you certainly think you're aggrieved.

[00:02:53] Speaker 06:
Well, if we came out in trial, I'm sorry to speak over you.

[00:02:57] Speaker 06:
No, not at all.

[00:02:59] Speaker 06:
If these cases were remanded and they went through a trial, but you know, there's possibility that the secretary would win on the merits issues at trial, and it's not clear that she would be able to appeal

[00:03:10] Speaker 04:
She would be a pill in that case, but you've got 11 cases before us.

[00:03:14] Speaker 04:
One of these, either she wouldn't prevail or the other side would appeal and then she could cross appeal.

[00:03:21] Speaker 04:
I just don't see how this issue, which is a legal issue, is going to evade review indefinitely.

[00:03:27] Speaker 06:
I don't concede that we wouldn't win every single one, Judge Pan, but I take your point.

[00:03:32] Speaker 06:
I think the lack of clarity as to whether or not the secretary could ever get review on this, depending on these various different outcomes, demonstrates that that's sufficient to create an effective unreviewability in this case.

[00:03:51] Speaker 00:
You also have that for decades, the secretary has provided some explanation, you know, whether it be for as part of the settlement motions for vacator or the SNS designations.

[00:04:03] Speaker 00:
So why do we consider this when you're thinking about the Cohen factors, you know, particularly second and third prong of Cohen?

[00:04:10] Speaker 00:
Why is this of such importance, you know, that we would overturn, you know, or that it would meet those factors or not meet those factors?

[00:04:17] Speaker 06:
So it's not the case that the secretary's provided explanations for vacatures and SMS removals in her settlement proposed settlement motions.

[00:04:26] Speaker 06:
It is the case that she's provided robust explanations as to changes in the penalty and those speak to the penalty factors under section 110 I of the mine act.

[00:04:35] Speaker 06:
But the secretary has not.

[00:04:37] Speaker 06:
explained her vacatures of citations or her SNS removals typically.

[00:04:45] Speaker 04:
She never has?

[00:04:46] Speaker 06:
No, she has here and there.

[00:04:48] Speaker 06:
There are thousands of cases.

[00:04:54] Speaker 04:
Before you've taken the position here today,

[00:04:59] Speaker 04:
If an ALJ asked the secretary for her reasons for vacating SNS or dismissing a citation, would the secretary have responded?

[00:05:10] Speaker 04:
No.

[00:05:11] Speaker 04:
It seems like this is a new position that you're taking.

[00:05:14] Speaker 06:
No, this is the position that the secretary has taken since mechanics fell and since RBK.

[00:05:18] Speaker 04:
Now, I'm aware I think in RBK... So I want to understand your answer then, because I thought you just said that if in the past,

[00:05:25] Speaker 04:
and ALJ asked the secretary, why have you done this?

[00:05:28] Speaker 04:
She would have responded because now her policy is I can't respond to that or I won't respond to that.

[00:05:33] Speaker 06:
If in the past, I'm sorry, I just want to make sure that I'm answering with clarity.

[00:05:37] Speaker 06:
If in the past, an ALJ, prior to these orders, if an ALJ asks the secretary, justify your reason for vacating a citation or removing an SNS designation from a citation, the secretary would not do that since RBK and since Mechanicsville.

[00:05:50] Speaker 06:
It is the case that the secretary has not justified those decisions.

[00:05:55] Speaker 03:
So she has consistently refused to justify these types.

[00:05:59] Speaker 03:
That's right.

[00:05:59] Speaker 06:
And the commission has, you know, until this until these orders, the commission has accepted that.

[00:06:04] Speaker 06:
And that has that has been the commission has has, you know, re reaffirmed the secretary's enforcement authority and prosecutorial power.

[00:06:12] Speaker 06:
I think in black beauty coal, you know, we've cited some some North American drillers in our in our briefs.

[00:06:18] Speaker 06:
We've cited some cases in the past where the commission has affirmed the secretary's authority to vacate.

[00:06:25] Speaker 06:
and to remove SNF.

[00:06:26] Speaker 04:
She certainly has the authority to do that.

[00:06:28] Speaker 04:
The question is whether she has to explain it so that it can be reviewed under the statute.

[00:06:33] Speaker 04:
And I guess what I'm hearing from you, I had assumed that it was a change of position by the secretary, but you're telling me it was a change of position by the commission.

[00:06:40] Speaker 06:
That's right.

[00:06:41] Speaker 04:
Because the commission used to accept that this was a prosecutorial thing and they never would.

[00:06:45] Speaker 06:
Yes, that's correct.

[00:06:47] Speaker 00:
But is this not the same issue that was brought up and abandoned by the secretary in the American co-litigation?

[00:06:55] Speaker 06:
So I don't know that I understand that relationship.

[00:07:03] Speaker 00:
The American coal litigation from 2016, did this issue not get addressed and then abandoned?

[00:07:09] Speaker 06:
With respect to the secretary's authority.

[00:07:11] Speaker 06:
So my understanding of the American coal litigation is that there was a question as to whether or not the secretary had to justify certain factual circumstances having to do with a penalty

[00:07:24] Speaker 06:
And the secretary agrees that she has to justify the proposed penalty or any changes to the proposed penalty and settlement.

[00:07:31] Speaker 06:
But I don't know that American Coal addressed the secretary's authority to remove SNS or vacate citations without review by the commission.

[00:07:44] Speaker 06:
And I'm certain that that's not the case in American Coal.

[00:07:51] Speaker 04:
So if we can go back to the jurisdictional issue, it just seems that the collateral order doctrine has been really viewed narrowly by the Supreme Court.

[00:08:03] Speaker 04:
And it's only been accepted by the Supreme Court in instances where it seems that

[00:08:09] Speaker 04:
The interest is in just not having to litigate immunity cases, qualified immunity, sovereign immunity, 11th Amendment immunity.

[00:08:18] Speaker 04:
And this is just not that kind of case.

[00:08:20] Speaker 04:
And I know that there is a provision under the third prong of the contest that says finality and then if it's a really important issue, essentially.

[00:08:29] Speaker 04:
And I just don't see how this situation before us fits in

[00:08:34] Speaker 04:
with the other types of situations, but the Supreme Court has approved applying the collateral order doctrine.

[00:08:40] Speaker 06:
So I think we've made the point that it's analogous to a separation of powers concern.

[00:08:43] Speaker 06:
The adjudicatory agency is encroaching on the secretaries.

[00:08:47] Speaker 04:
It's analogous, but you're all in the same branch of the government.

[00:08:49] Speaker 04:
So it isn't really a separation of powers.

[00:08:51] Speaker 06:
I understand.

[00:08:52] Speaker 06:
It is not a constitutional issue, but there is this issue of the adjudicatory

[00:08:57] Speaker 06:
body encroaching on the prosecutorial enforcement authority of an enforcing arm.

[00:09:02] Speaker 04:
I guess that's the best you can do, but that's very different in kind from immunity doctrines, which is what the Supreme Court has approved.

[00:09:09] Speaker 06:
I can't quibble with that, Judge, but these orders here meet the collateral order test, and they are incredibly important in general to the administration, the effective administration of the statute.

[00:09:25] Speaker 06:
if the commission is playing the role of prosecutor and adjudicator.

[00:09:29] Speaker 04:
But why does it need to be decided immediately now?

[00:09:31] Speaker 04:
Back to my first question, you can just litigate this after there's the equivalent of a final judgment.

[00:09:36] Speaker 04:
It's our position that it's not clear that we would be able to do that.

[00:09:39] Speaker 04:
At some point, you would be able to over a course of all of these cases.

[00:09:42] Speaker 04:
I don't say it's a legal issue that applies across many, many cases.

[00:09:46] Speaker 04:
And eventually, you'll get to litigate this.

[00:09:49] Speaker 04:
I don't see what the emergency is.

[00:09:52] Speaker 06:
Insofar as there are practical concerns, I'm happy to speak about the immediacy of those.

[00:09:57] Speaker 06:
The secretary needs to be able to preserve her prosecutorial authority and not allow the commission to make her prosecutorial decisions.

[00:10:03] Speaker 04:
Well, it appears that she has because the commission, this was interesting to me too, because basically my understanding is

[00:10:11] Speaker 04:
Secretary came forward with settlement proposal.

[00:10:15] Speaker 04:
Settlement proposal says we're getting rid of SNS or we're dismissing citations.

[00:10:19] Speaker 04:
ALJ says, why are you doing that?

[00:10:21] Speaker 04:
Secretary says, not telling you.

[00:10:23] Speaker 04:
And then the ALJ says, OK, well, I'll just approve it.

[00:10:27] Speaker 04:
I just won't approve it then because of this.

[00:10:29] Speaker 04:
The secretary has not lost her ability to not give this information because the ALJ, for whatever reason, isn't insisting and isn't

[00:10:38] Speaker 04:
I don't know, whole hearing contempt, whatever the equivalent would be in this context.

[00:10:43] Speaker 04:
But she's not being forced to disclose this information.

[00:10:48] Speaker 04:
The ALGs are just taking it.

[00:10:51] Speaker 06:
But she's not able to settle the cases or to go forward either.

[00:10:54] Speaker 06:
And so that's her concern here is that she's not able to exercise that power.

[00:11:02] Speaker 04:
But then that's a different

[00:11:05] Speaker 04:
interest that you're asserting.

[00:11:07] Speaker 04:
First, you said it was her.

[00:11:08] Speaker 04:
It's really important that she be able to exercise her prosecutorial discretion and not tell.

[00:11:13] Speaker 04:
She's not losing that power because she's not telling.

[00:11:16] Speaker 04:
And then you fall back on, well, now she has to go to trial.

[00:11:19] Speaker 04:
But that's what everybody says about trying to do an interlocutory appeal.

[00:11:23] Speaker 04:
So you have no special interest.

[00:11:25] Speaker 06:
The interest that we are putting forward is her interest in her in preserving her prosecutorial power.

[00:11:31] Speaker 06:
Which she has preserved.

[00:11:32] Speaker 06:
Yes, for now.

[00:11:33] Speaker 06:
And pending a decision from this court.

[00:11:36] Speaker 04:
Right.

[00:11:36] Speaker 04:
But again, I just don't see why you can't go through the normal process and then raise this after the equivalent of a final judgment.

[00:11:43] Speaker 06:
I take your point, Judge Bannon.

[00:11:46] Speaker 06:
It is our position that these are effectively unreviewable.

[00:11:50] Speaker 06:
And we're not clear that we could get review after final order.

[00:11:53] Speaker 04:
I just don't understand why that's the case across all of the cases that you're litigating.

[00:11:58] Speaker 04:
You're not going to get this reviewed.

[00:12:00] Speaker 06:
A certainty that we would be able to appeal from this issue if it were preserved through trial litigation that didn't have to do with the settlement.

[00:12:07] Speaker 06:
And then if we were able to prevail a trial on, imagine that the secretary did not vacate the SNS because she didn't.

[00:12:17] Speaker 06:
So imagine the secretary went through on one of these

[00:12:21] Speaker 06:
citations that she would have vacated and one, it's not clear that she would be able to appeal them that issue.

[00:12:26] Speaker 04:
Why is that unclear?

[00:12:28] Speaker 06:
Well, there's not, we don't have case law that suggests that she would be able to do that.

[00:12:32] Speaker 04:
So you can, you can raise it.

[00:12:34] Speaker 06:
I do, I do concede that we could try.

[00:12:38] Speaker 06:
Um, but it is, you know, what we've, our position is that that is a narrow path.

[00:12:42] Speaker 06:
Um, possibly an impossible path.

[00:12:43] Speaker 04:
I just think the common factors is a very high standard for you.

[00:12:46] Speaker 04:
And I just don't, I'm not hearing from you any urgency here.

[00:12:50] Speaker 04:
There is urgency here.

[00:12:52] Speaker 00:
The Secretary's own admission in response to the rule to show cause, she can raise the issue about the scope of her authority on appeal, right?

[00:13:00] Speaker 06:
She may be able to.

[00:13:01] Speaker 06:
But I think that's our concern is that if we could preserve that issue, the scope of her authority to vacate and without review from the commission in a settlement context, if she then goes through a trial, if she can preserve that issue, then it's not clear that she could appeal that issue, particularly if she, well, especially if she won the case.

[00:13:23] Speaker 06:
We could try.

[00:13:24] Speaker 06:
We could try a novel appeal.

[00:13:26] Speaker 06:
on a favorable order, but it's just not clear that we would be able to get review there.

[00:13:33] Speaker 06:
I say I'm very, very close to my time.

[00:13:34] Speaker 06:
I want to make sure that I don't offend the court by going too far into this, but I'm happy to continue to discuss the

[00:13:46] Speaker 06:
jurisdictional issues or I'll just speak briefly on them.

[00:13:49] Speaker 00:
We can continue talking until we have questions.

[00:13:51] Speaker 06:
All right.

[00:13:52] Speaker 06:
Well, in that case, if there are other questions regarding the collateral orders issue, I'm happy to discuss them.

[00:14:00] Speaker 06:
The parties in this case are adverse.

[00:14:03] Speaker 06:
I'm aware that there's an Article 3 concern.

[00:14:04] Speaker 06:
The parties in this case are adverse.

[00:14:08] Speaker 06:
The secretary has issued citations and the operators have contested them.

[00:14:11] Speaker 06:
So that creates an adversity.

[00:14:13] Speaker 06:
It would be sort of absurd if this court could not give relief for lack of adversity and then the parties returned to the ALJ on remand and then went to trial.

[00:14:23] Speaker 06:
I'm happy to speak more about that or I'll move quickly to our merit positions.

[00:14:29] Speaker 06:
So I think at the heart of this case is the fact that the statute gives the Commission limited review authority over proposed penalties that have been contested under Section 105.

[00:14:40] Speaker 06:
SNS designations and vacatures are not penalties.

[00:14:45] Speaker 06:
I'm very happy to take questions sort of about our merits position, but that is the heart of it.

[00:14:54] Speaker 02:
All right, we'll give you a couple of minutes.

[00:14:56] Speaker 02:
Thank you.

[00:14:59] Speaker 02:
Mr. Schmidt.

[00:15:05] Speaker 01:
Thank you, Judge Henderson.

[00:15:07] Speaker 01:
Soren Schmidt as court appointed amicus with me at council table is Patrick Powers, my colleague with me on the briefs.

[00:15:16] Speaker 01:
Congress created the Federal Mine Safety and Health Review Commission to address a pattern, a disastrous pattern of lenient settlement agreements between mine operators and government enforcers.

[00:15:26] Speaker 01:
In these consolidated appeals, the Secretary seeks an exemption from the reason-giving requirements that Congress created in order to avoid such settlements in the future.

[00:15:36] Speaker 01:
Her appeals are deficient for three reasons.

[00:15:39] Speaker 01:
First, the Commission should be here.

[00:15:41] Speaker 01:
It has a direct stake in the outcome of this appeal, and without it, the remaining parties are not adverse.

[00:15:48] Speaker 01:
Second, these appeals are premature.

[00:15:51] Speaker 01:
The secretary can press her claims of prosecutorial discretion on appeal from a final order of the commission as required by law.

[00:15:59] Speaker 01:
Any delay between now and then will not imperil substantial public interest.

[00:16:04] Speaker 01:
Finally, the secretary's appeals lack merit.

[00:16:07] Speaker 01:
When she removes an SNS designation or vacates a citation in the context of a settlement agreement, contested penalties are compromised by mutual concessions, mitigated in harshness, and ultimately settled by agreement.

[00:16:20] Speaker 01:
That triggers Section 110K's approval requirements three times over.

[00:16:25] Speaker 01:
The secretary's contrary reading would evade the accountability that Congress created to protect mine workers and eviscerate the text of Section 110K.

[00:16:35] Speaker 01:
I welcome the court's questions.

[00:16:38] Speaker 04:
I guess on your argument that the commission needs to be here, I find that a really difficult position for you to support.

[00:16:49] Speaker 04:
Because if it's true that parties are no longer adverse as soon as they've reached a settlement agreement, even before it's been approved, then doesn't the district court lose jurisdiction over every case where there's a settlement or there's a plea agreement?

[00:17:03] Speaker 01:
Not at all, Your Honor.

[00:17:05] Speaker 01:
In district court proceedings, the district court remains jurisdiction.

[00:17:08] Speaker 01:
over the entire controversy, which can include the initial disagreement between the parties and the potential for them to, for example.

[00:17:17] Speaker 01:
What if they've settled the whole thing?

[00:17:18] Speaker 01:
What if they've settled every issue?

[00:17:19] Speaker 01:
So even settling an issue leaves open the possibility of re-opener.

[00:17:23] Speaker 01:
For example, in the digital equipment case from the Supreme Court, that's where a district court had initially approved a settlement in a trademark dispute, but later the parties moved to reopen it.

[00:17:33] Speaker 04:
So it's necessary.

[00:17:34] Speaker 04:
Why is this different from the Mine Act?

[00:17:37] Speaker 01:
So the difference here, Your Honor, is that on appeal, there's a single issue, and on that single issue, the parties are not adverse in any respect.

[00:17:47] Speaker 01:
So the single issue is whether the secretary required approval from the commission in order to remove these.

[00:17:53] Speaker 04:
So if there's an appeal of an issue that involves a settlement in the district court, we wouldn't have jurisdiction of that either?

[00:18:02] Speaker 01:
No, Your Honor, because typically those appeals would be coming from, for example, a final order where there would be an adverse decision one way or another against the parties.

[00:18:12] Speaker 01:
And in that position, they would have the standing to appeal.

[00:18:16] Speaker 01:
They would have adverse interests on appeal.

[00:18:18] Speaker 04:
So what if the district court rejected a plea agreement between the government and the defendant, and both the government and the defendant thinks that plea agreement is good, and they take the same position on appeal?

[00:18:29] Speaker 04:
Do we have jurisdiction over that case?

[00:18:31] Speaker 01:
Yes, you would, Your Honor.

[00:18:32] Speaker 01:
And that's because, for example, as the plea bargain case is cited in our brief show, that case would have eventually gone before the district court onto sentencing.

[00:18:41] Speaker 01:
And from there, there would be grounds to do a final order appeal.

[00:18:44] Speaker 01:
And that final order and the winner and loser before the district court would provide the adversity necessary for the appeal in general.

[00:18:53] Speaker 01:
And then as to the particular issue that they were raising, ventilating about an earlier error of the district court.

[00:19:01] Speaker 04:
our jurisdiction hinges on a case-by-case analysis of what happens in each individual case after a settlement?

[00:19:11] Speaker 01:
No, Your Honor.

[00:19:12] Speaker 01:
I think what I'm saying is looking at, for example, this court's precedent in cases like Cortez, there the court explained that

[00:19:19] Speaker 01:
in order for there to be adversity on appeal, the parties need to have adverse interests, meaning that there's a winner and loser below, so there can be a loser and a winner on appeal.

[00:19:30] Speaker 04:
I just don't see why there's not also a winner and a loser in a Mine Act safety situation, because ultimately they are adverse because there's been a citation issued against the mine or the mine company, and they are ultimately adverse.

[00:19:44] Speaker 04:
Just because they settled it doesn't change that.

[00:19:47] Speaker 01:
That's right, Your Honor.

[00:19:48] Speaker 01:
And it doesn't change that before the commission.

[00:19:50] Speaker 01:
But as to this appeal, where the parties are in total agreement, there is more of an adversity problem.

[00:19:55] Speaker 01:
Because here, just for example, if the secretary succeeds on her merits claim and wins, there won't be any party to seek rehearing or file an appeal or seek cert of that decision.

[00:20:07] Speaker 04:
re-appoint amicus like yourself.

[00:20:09] Speaker 01:
Well, an amicus, to my understanding, Your Honor, can help provide oppositional arguments.

[00:20:13] Speaker 01:
And I'm certainly going to try to do my best there.

[00:20:17] Speaker 01:
But there's a different aspect of adversity, which is the idea of adverse interests.

[00:20:21] Speaker 01:
And that's what, for example, motivates a party who has rights to file an appeal or develop strategic support for the case, things that are beyond the scope of appointment for an amicus.

[00:20:32] Speaker 01:
Here, for example, at least, I'm not aware of any situation where a court has

[00:20:36] Speaker 01:
appointed an amicus to decide whether to seek rehearing or file an appeal of some kind.

[00:20:42] Speaker 01:
Because traditionally, that's a role that's reserved exclusively to parties.

[00:20:46] Speaker 01:
This, by the way, is what distinguishes this case from situations where, for example, the government confesses error below or the Supreme Court's practice of appointing amicus.

[00:20:56] Speaker 01:
Because there, even where the government is confessing error on appeal, they won below and have something to lose on appeal.

[00:21:04] Speaker 01:
And those are the adverse interests that this court explained in Cortez are essential to this court's jurisdiction on appeal.

[00:21:11] Speaker 01:
I will note, though, just to not fight too hard on this, Your Honor, that I think the key distinction between this case and cases like Oil and Hinson is that the commission is in the position of having direct stakes in the outcome of the appeal.

[00:21:26] Speaker 04:
Why does it have direct stakes any more than a district court does?

[00:21:29] Speaker 01:
Because typically, when a district court is ruling on it,

[00:21:33] Speaker 01:
on a case before it, it's resolving a dispute as between the parties themselves, not as dispute about the scope of its own authority as the commission was here.

[00:21:42] Speaker 04:
I think that's true.

[00:21:43] Speaker 04:
I mean, if the district court says I get to approve your appeal or not, and somebody contests that, it's the same as a commission saying I get to approve your appeal or not.

[00:21:54] Speaker 04:
I mean, I just don't see what the difference is.

[00:21:57] Speaker 04:
Neither of them has a personal or, I guess, a party type stake in these proceedings.

[00:22:01] Speaker 04:
They're just ruling on this.

[00:22:02] Speaker 04:
And the parties are challenging whether they ruled correctly or not.

[00:22:06] Speaker 04:
I just don't see how that has anything to do with the commission's own interests or the district court's own interests, rather than, I guess, you like to be affirmed.

[00:22:15] Speaker 04:
But other than that, I just don't see that they have any institutional interest in the outcome of any case.

[00:22:21] Speaker 01:
In run-of-the-mill cases, I believe that's true, Your Honor.

[00:22:24] Speaker 01:
For example, the commission has no interest in whether a particular citation was correctly brought or what the right penalty amount should be, other than, of course, it would like to be affirmed.

[00:22:34] Speaker 01:
But here, it has an institutional interest in the scope of its own authority grant under Section 110K.

[00:22:40] Speaker 04:
The logical alcove of that argument is that district court has a personal or institutional interest whenever it asserts authority to do something that the parties say it can't do.

[00:22:49] Speaker 04:
And that just can't be right.

[00:22:50] Speaker 01:
I think that's true, Your Honor.

[00:22:52] Speaker 01:
There are, I think, rare instances where, for example, a district court's authority is challenged through something like a writ of mandamus, and there the district court judge would be represented on appeal in that not quite personal capacity.

[00:23:06] Speaker 04:
But even aside from the mandamus context, there are countless cases where the district court will assert an authority, and the parties will say you don't have an authority to do that based on a statute, based on a rule, whatever.

[00:23:17] Speaker 04:
District court does not have an interest

[00:23:19] Speaker 04:
institutional interest in being more powerful to do this thing.

[00:23:23] Speaker 04:
It just doesn't.

[00:23:24] Speaker 04:
It's just being challenged.

[00:23:25] Speaker 04:
So I find this whole line of argument really puzzling.

[00:23:29] Speaker 01:
That's fair, Your Honor.

[00:23:30] Speaker 01:
I think my position here is that reading this court's cases in Oil and Hinson is that those are distinguishable for the reasons that I've mentioned.

[00:23:39] Speaker 00:
If we were to decide this case, basically stating that we don't have jurisdiction based on collateral orders doctrine, would you still say the commission is needed to be here to participate?

[00:23:51] Speaker 01:
Not necessarily, Your Honor.

[00:23:53] Speaker 01:
My submission is, of course, that the commission could have and should have been here from the start.

[00:23:57] Speaker 01:
But if this court were to reach a jurisdictional holding, like the collateral order doctrine does not apply, I don't think you would need to reach the issue of whether the commission needs to be here in the interim.

[00:24:07] Speaker 01:
It would probably need to confront that ultimately when the case comes back on final appeal.

[00:24:12] Speaker 01:
But at this time, for order of operations purposes, I don't think it would need to address it.

[00:24:17] Speaker 04:
What's your understanding of the history of this issue?

[00:24:20] Speaker 04:
Because it seemed to me that I thought that the secretary was asserting this type of authority in this context for the first time in these cases when there must have been many, many stuff that came before these cases in which it didn't arise.

[00:24:35] Speaker 04:
And it seems to me that the cases that your friend on the other side settled didn't deal with post settlement dismissals.

[00:24:43] Speaker 04:
And I'm just curious as to why now?

[00:24:45] Speaker 04:
Why is this issue rising now?

[00:24:47] Speaker 01:
Yeah.

[00:24:48] Speaker 01:
My understanding, Your Honor, is that there's a bit of a mixed history over the past couple of decades with some inconsistency about when and if the Secretary is providing explanations for these kinds of changes to contested penalties.

[00:25:00] Speaker 01:
Again, this might be a place where

[00:25:02] Speaker 01:
For example, the commission is better positioned institutionally to give you a more thorough answer.

[00:25:07] Speaker 01:
But I would point you to a couple of cases that I think are illustrative.

[00:25:09] Speaker 01:
So one is the American aggregates commission decision, which is cited in the briefs there.

[00:25:16] Speaker 01:
My understanding is the commission required some form of explanation from the secretary.

[00:25:21] Speaker 01:
for removing SNS designations.

[00:25:23] Speaker 01:
That's a 2020 decision.

[00:25:25] Speaker 01:
What had happened in that case is that the ALJ in the first instance applied a quite rigorous test to the removal of SNS designations.

[00:25:33] Speaker 01:
That went up to the commission.

[00:25:34] Speaker 01:
They said, no, that was too rigorous.

[00:25:36] Speaker 01:
You still need to apply our typical standard, and our approval is required.

[00:25:41] Speaker 01:
But you were just a little too exacting in the scrutiny.

[00:25:44] Speaker 04:
So there was no contest as to

[00:25:46] Speaker 04:
the authority to review it.

[00:25:48] Speaker 04:
It was just the standard that was applied was too rigorous.

[00:25:51] Speaker 01:
That's right.

[00:25:51] Speaker 01:
In the, in the American aggregates case.

[00:25:53] Speaker 04:
Yes.

[00:25:54] Speaker 04:
In that case, then the secretary did provide information about why I'm actually not sure how ultimately that case was resolved.

[00:26:02] Speaker 01:
Your honor.

[00:26:03] Speaker 01:
I mean, even, Oh, even before the commission's decision, because

[00:26:09] Speaker 04:
It seems to me that the issue before us now is if the ALJ wants to approve these settlements, the ALJ might ask, why did you dismiss the SNS?

[00:26:19] Speaker 04:
And the secretary is saying, I don't have to tell you that because I have past control discretion.

[00:26:25] Speaker 04:
There are cases that I've seen where the secretary didn't provide an explanation, and then the ALJ would just say, do the facts support an SNS or not?

[00:26:37] Speaker 04:
Which is not the same as approving a settlement in which the SNS is dismissed, because you could just dismiss an SNS for reasons unrelated to whether it's factually supported.

[00:26:45] Speaker 04:
It could be a give and take.

[00:26:46] Speaker 04:
It could be a bargain.

[00:26:47] Speaker 04:
Totally.

[00:26:48] Speaker 04:
So I guess my question is, in the case that you just cited,

[00:26:51] Speaker 04:
Was it on all fours with this case where the ALJ said, why did you dismiss that SNS?

[00:26:56] Speaker 04:
And did the secretary tell them why?

[00:26:58] Speaker 04:
And then he applied too rigorous a standard.

[00:27:01] Speaker 04:
Or did this ALJ just do that without requiring the secretary to explain herself?

[00:27:06] Speaker 01:
Yeah.

[00:27:06] Speaker 01:
My understanding is the former, Your Honor, where there was some explanation provided, but the ALJ didn't accept that and applied more of a rigorous standard.

[00:27:15] Speaker 01:
I don't have it fully at my fingertips.

[00:27:17] Speaker 04:
But an explanation was provided about the SNS, specifically.

[00:27:20] Speaker 04:
That's right.

[00:27:21] Speaker 04:
That's right.

[00:27:21] Speaker 04:
secretary didn't say, I don't have to tell you anything about why I'm doing this.

[00:27:28] Speaker 01:
At least not to my memory, Your Honor.

[00:27:30] Speaker 01:
I don't want to speak too authoritatively without having refreshed myself.

[00:27:34] Speaker 01:
But that's my recollection, at least.

[00:27:37] Speaker 01:
The other case I would just note along that line is the PC sand and gravel case, which is from 2010.

[00:27:41] Speaker 01:
That's an ALJ decision where the secretary wanted to vacate citations as part of a settlement agreement.

[00:27:50] Speaker 01:
The ALJ said, hey, I'd like some reasons for that.

[00:27:53] Speaker 01:
The secretary initially resisted, but then ultimately did provide those reasons.

[00:27:57] Speaker 01:
So that's another example of where, at least as recently as 2010, the secretary has provided explanation for them.

[00:28:05] Speaker 02:
Thank you.

[00:28:07] Speaker 01:
All right.

[00:28:08] Speaker 01:
All right.

[00:28:09] Speaker 01:
If there's nothing further, thank you, Your Honor.

[00:28:11] Speaker 02:
You were appointed by the court.

[00:28:13] Speaker 02:
Pardon?

[00:28:13] Speaker 02:
You were appointed by the court, and you've done an outstanding job.

[00:28:17] Speaker 02:
And we thank you.

[00:28:18] Speaker 01:
Thank you, Your Honor.

[00:28:18] Speaker 01:
It's my privilege.

[00:28:22] Speaker 02:
All right.

[00:28:22] Speaker 02:
Mrs. Falls, why don't you take two minutes?

[00:28:31] Speaker 06:
Thank you.

[00:28:34] Speaker 06:
So I'd like to just clear up the history of this issue, the question about the history of this issue.

[00:28:38] Speaker 06:
The commission has never required before these orders, the secretary to justify her decision to vacate a citation or her decision to remove SNS.

[00:28:47] Speaker 06:
What about PC standing gravel?

[00:28:49] Speaker 06:
If PC Sand & Gravel is an ALJ case, it's non-precedential.

[00:28:52] Speaker 06:
I'm sorry, I'm not.

[00:28:53] Speaker 04:
I don't have it at my... It's not about non-precedential or not.

[00:28:56] Speaker 04:
You're saying she's never done it before, but your friend on the other side says in this case, she was asked, why are you vacating these?

[00:29:03] Speaker 04:
And she did provide reasons.

[00:29:05] Speaker 06:
Well, if that's the case, then I don't believe that that case holds that she was required to do that.

[00:29:11] Speaker 04:
I think there's a distinction... That wasn't the question I had asked.

[00:29:16] Speaker 04:
have you ever done this before, whether it's required or not?

[00:29:18] Speaker 04:
And you would say, no, she never has.

[00:29:20] Speaker 04:
But apparently, there's a- Well, let me clarify that.

[00:29:22] Speaker 06:
Certainly, at times, it seems that in RBK, for example, the secretary said, we're vacating these citations for lack of jurisdiction.

[00:29:28] Speaker 06:
There have been times where the secretary has included an explanation.

[00:29:32] Speaker 06:
But there's never been a requirement that she do so.

[00:29:36] Speaker 06:
And typically, she does not do so.

[00:29:41] Speaker 04:
But that wasn't the question I had asked you, though.

[00:29:43] Speaker 06:
So I do apologize if I misrepresented that.

[00:29:47] Speaker 06:
The secretary has at times provided an explanation here and there in the thousands and thousands of settlement proposals that she's submitted.

[00:29:55] Speaker 06:
But it's not a requirement.

[00:29:57] Speaker 06:
It's not ever been a requirement of the commission prior to these cases.

[00:30:02] Speaker 06:
Well, I suppose it hasn't been a requirement since RBK and Mechanicsville in the commission's

[00:30:08] Speaker 06:
Uh, you know, in the past 30 years, and when the secretary has provided those explanations, it's not because she's required to, it's just sort of, you know, there's, there's a few anomalous cases where she has included an explanation that she wasn't required to give.

[00:30:21] Speaker 00:
Um, so I are vacators and the SMS, um, designations or redesignations required to be part of the settlement agreement.

[00:30:29] Speaker 06:
So let me see if I'm answering this clearly.

[00:30:34] Speaker 06:
In the settlement proposal, in the motions with the proposed settlement, the secretary includes that she has vacated a citation or that she has removed SNS.

[00:30:45] Speaker 06:
But she does not include typically an explanation about that decision.

[00:30:52] Speaker 06:
But the fact of it is included there.

[00:30:57] Speaker 06:
So again, just to make sure I'm being perfectly clear about the history of this issue, the commission has recognized the secretary's total discretionary authority to vacate a citation without its review in several cases in the past.

[00:31:10] Speaker 06:
I've got a quote from Black Beauty here that I don't want to read to the court, but essentially it says,

[00:31:16] Speaker 06:
that the commission doesn't have review authority over the secretary's enforcement decision to vacate a citation.

[00:31:21] Speaker 06:
And that's been the commission's position.

[00:31:23] Speaker 06:
The commission and the secretary have agreed.

[00:31:25] Speaker 06:
But that's pre-contesting.

[00:31:28] Speaker 06:
No, I believe that's post-contest.

[00:31:31] Speaker 04:
And that's been- I don't think that's right.

[00:31:34] Speaker 04:
I don't think we haven't been able to find any case that addresses this post-contest.

[00:31:38] Speaker 04:
Because, of course, there's prosecutorial discretion.

[00:31:42] Speaker 04:
But there's actually a statutory provision that says after contest,

[00:31:47] Speaker 04:
it has to be approved.

[00:31:48] Speaker 04:
And we haven't found any case on point.

[00:31:50] Speaker 04:
Well, I disagree with the post contest.

[00:31:52] Speaker 06:
I disagree with the point that it has to be that these decisions have to be approved post contest under 110 K.

[00:31:58] Speaker 06:
110 K deals only with proposed penalties, not with fake attorneys.

[00:32:01] Speaker 04:
Penalties can't be separated from the issues that arose with the penalties.

[00:32:07] Speaker 04:
And the language is broad.

[00:32:09] Speaker 04:
It doesn't say just penalties.

[00:32:11] Speaker 04:
It says mitigating all these other things that

[00:32:14] Speaker 04:
deal more than just a monetary up and down.

[00:32:16] Speaker 04:
I disagree.

[00:32:17] Speaker 04:
And other parts of the statute, even cited in your brief, they say monetary penalties.

[00:32:21] Speaker 04:
So when they mean monetary penalties, they say so.

[00:32:24] Speaker 04:
So we don't need to get into, I don't think, these merits, because I tend to think that there's no jurisdiction.

[00:32:29] Speaker 06:
Well, perhaps I should turn.

[00:32:30] Speaker 06:
I don't want to go over my time.

[00:32:32] Speaker 06:
I'm happy to discuss the collateral orders.

[00:32:34] Speaker 06:
Can you repeat that question?

[00:32:35] Speaker 06:
Oh, I'm sorry.

[00:32:36] Speaker 06:
Can you repeat the question that I've left hanging?

[00:32:42] Speaker 04:
Ultimately, I didn't see any cases on point that said post-contest, the secretary has absolute discretion to dismiss things or, you know, et cetera, without approval of the commission, that your argument of discretion doesn't extend to that time period after there's been a contest.

[00:33:04] Speaker 04:
And your argument just seems to hang on

[00:33:08] Speaker 04:
parsing the word penalty in a way that makes very little sense to me.

[00:33:12] Speaker 06:
So I apologize if I misunderstood this, but each of those cases arises in a post-contest.

[00:33:19] Speaker 06:
All of the cases that we've cited, because they are under review by the commission, arise in a post-contest context.

[00:33:25] Speaker 06:
The operators have contested.

[00:33:27] Speaker 04:
Post-contest dismissal and then refusal to

[00:33:34] Speaker 04:
explain.

[00:33:35] Speaker 04:
There are no cases like that.

[00:33:37] Speaker 06:
I believe that that's Mechanicsville and that's American Aggregates and RBK.

[00:33:44] Speaker 06:
And I apologize.

[00:33:45] Speaker 06:
I think I'm just missing something fundamental about your question.

[00:33:47] Speaker 06:
But insofar as the commission doesn't say the secretary has absolute discretion post contest, the literal inclusion of that, I think that that's fair.

[00:34:01] Speaker 06:
But that's what those cases mean.

[00:34:04] Speaker 02:
I understand your position.

[00:34:08] Speaker 02:
All right, no more questions.

[00:34:09] Speaker 02:
Thank you.