Michael K. McN Ary v. Federal Mine Safety and Health Review Commission , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2020 Decided March 2, 2021
No. 20-1049
MICHAEL K. MCN ARY ,
PETITIONER
v.
FEDERAL M INE SAFETY AND H EALTH REVIEW COMMISSION ,
ET AL .,
R ESPONDENTS
On Petition for Review of a Final Order of the
Federal Mine Safety and Health Review Commission
Tony Oppegard argued the cause for petitioner. With him
on the briefs was Wes Addington.
Christopher V. Bacon argued the cause and filed the brief
for respondent Alcoa World Alumina, LLC.
Before: R OGERS, M ILLETT and W ILKINS , Circuit Judges.
PER CURIAM: Michael McNary petitions for review of a
decision by the Federal Mine Safety and Health Review
Commission to affirm the dismissal of his complaint against
Alcoa World Alumina, LLC (“Alcoa”) alleging discrimination
and interference under section 105(c) of the Federal Mine
Safety and Health Act of 1977 (the “Mine Act”). Because

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McNary fails to show that the court can redress his injury, he
does not have standing under Article III of the Constitution to
petition the court and the petition must be dismissed for lack of
jurisdiction.
I.
McNary worked as a “gland manager” and miners’
representative in the digestion department of Alcoa’s Bayer
Alumina Plant in Point Comfort, Texas. On January 8, 2014,
while performing his daily safety rounds, McNary observed
“hot slurry” spewing out of a pump valve, indicating the valve
was malfunctioning. Concerned about miner safety, McNary
arranged for the plant’s environmental health and safety
manager to be notified. His supervisor, Steve Emig, had also
asked for the manager’s assistance. This led to a heated
exchange that ended with Emig threatening McNary with
removal from his department, the plant, and his position as
miners’ representative. Emig claimed that McNary spoke in a
way that suggested he intended to challenge Emig’s authority
rather than discharge his duties as a miners’ representative.
McNary denied that he said anything to challenge Emig’s
authority, instead framing his conversation with Emig as one
he initiated in his capacity as a miners’ representative out of
concern for the safety of miners in the affected area.
McNary was neither disciplined nor terminated as a result
of the incident with Emig. But in June 2016, as part of a plant
reorganization, McNary was laid off when Alcoa temporarily
stopped production of alumina at the Point Comfort plant.
McNary does not challenge that layoff decision.
Previously, on January 24, 2014, McNary had filed a
complaint against Alcoa with the Mine Safety and Health
Administration (“MSHA”), alleging discrimination in

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violation of section 105(c)(1) of the Mine Act. After MSHA
advised that it would not pursue charges, McNary filed a
complaint to the same effect with the Commission on March 2,
2015. 30 U.S.C. § 815(c)(3). As remedies, McNary sought a
posting at the plant of a notice of violation of the Mine Act and
an order requiring management personnel to undergo training
on miners’ rights. After an ALJ granted Alcoa’s motion for
summary decision, McNary petitioned for, and the
Commission granted, discretionary review. On March 28,
2017, the Commission vacated the decision and remanded for
further proceedings, because the ALJ “failed to view the record
and to draw inferences in a light most favorable to McNary,
and because Alcoa was not entitled to summary decision as a
matter of law.” McNary v. Alcoa World Alumina, LLC, 39
FMSHRC 433, 440 (Mar. 28, 2017). On remand, after an
evidentiary hearing, the ALJ dismissed McNary’s case by
decision dated December 21, 2017, upon crediting Emig’s
version of events. McNary v. Alcoa World Alumina LLC, 39
FMSHRC 2083, 2112, 2131 (Dec. 21, 2017). The Commission
affirmed. McNary v. Alcoa World Alumina, LLC, 42 FMSHRC
9, 2020 WL 508743, at *1 (Jan. 22, 2020).
On February 21, 2020, McNary filed his petition for
judicial review. Beforehand, on December 16, 2019, Alcoa
had announced that it would permanently close the Point
Comfort plant, after initially hoping that economic conditions
would improve as to justify resuming production of alumina.
II.
The court has an independent obligation to satisfy itself
that it has jurisdiction, here whether McNary has Article III
standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94–95 (1998); Am. Library Ass’n v. FCC, 401 F.3d 489,
492 (D.C. Cir. 2005). To meet the “constitutional minimum”

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for standing, McNary must have suffered an injury in fact —
concrete and particularized, and actual or imminent — that is
fairly traceable to the challenged conduct and likely to be
redressed by a favorable decision. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). “When considering
standing, we assume the validity of the petitioner’s merits
argument.” Delaware Dep’t of Nat. Res. & Envtl. Control v.
EPA, 785 F.3d 1, 7 (D.C. Cir. 2015).
Typically, “the petitioner ‘bears the burden of averring
facts in [his] opening brief’ that establish standing.” Id. at 8
(quoting Texas v. EPA, 726 F.3d 180, 198 (D.C. Cir. 2013)).
The court, however, retains “discretion to . . . consider material
submitted later if the petitioner ‘reasonably believed [his]
standing [wa]s self-evident.’” Id. (second alteration in
original) (quoting Am. Library, 401 F.3d at 492). In that vein,
the court may “seek supplemental submissions on standing to
fulfill [its] obligation . . . to determine whether the
requirements of Article III have been met.” Ams. for Safe
Access v. DEA, 706 F.3d 438, 444 (D.C. Cir. 2013).
Prior to oral argument, the court instructed the parties to
be prepared to address “whether this dispute presents a live
‘case or controversy’ within the meaning of Article III of the
U.S. Constitution, including specifically whether McNary’s
asserted injuries are redressable by the remedies he seeks.” Per
Curiam Order, Dec. 11, 2020. Both injury and causation were
self-evident from the record: McNary alleged that Alcoa had
interfered with protected rights when Emig, his supervisor, had
threatened him with termination, which McNary challenged as
discriminatory.
As to redressability, counsel for Alcoa revealed at oral
argument that what was intended as a temporary suspension of
production in 2016 became permanent in December 2019 when

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Alcoa announced it would close the Point Comfort plant for
good. See Oral Arg. Tr. 16:14–17:14. Counsel added that
shortly before McNary filed his petition for judicial review,
MSHA “deactivated” the Point Comfort plant, removing it
from MSHA jurisdiction. See id. at 17:10–14. Subsequently,
at the court’s request, Alcoa filed a sworn declaration of the
plant manager corroborating Alcoa’s counsel’s account. See
Kevin Riggs Decl. ¶¶ 2–5, Dec. 15, 2020.
At oral argument, counsel for McNary argued that
McNary’s injuries are nonetheless redressable because
(1) Alcoa runs other facilities where a notice of violation could
be posted; (2) a cease and desist order “to stop threatening
miners’ reps who raise safety issues with management” and a
training order could be directed at Alcoa management rather
than individuals at the Point Comfort plant; and (3) “Emig
could be ordered to undergo management training” assuming
he is still employed by Alcoa. See Oral Arg. Tr. 8:13–15,
31:15–32:5. Emig no longer works for Alcoa and has not
worked at the Point Comfort plant since 2016. Kevin Riggs
Decl. ¶ 8. McNary’s counsel also invoked the civil penalty the
Secretary of Labor would have to assess against Alcoa if
McNary were to prevail, see 30 U.S.C. §§ 815(c)(3), 820(a)(1);
29 C.F.R. § 2700.44(b). Oral Arg. Tr. 4:14–5:6.
None of these remedies “establish[] [McNary’s] personal
interest in what,” if anything, “remains of this dispute.” Sands
v. NLRB, 825 F.3d 778, 782 (D.C. Cir. 2016). When the plant
temporarily closed in 2016, the possibility existed that McNary
would be recalled to his post under his union contract, see Oral
Arg. Tr. 16:18–21, leaving open a channel for redressability.
But Alcoa’s decision to shutter the plant in 2019 — before
McNary petitioned this court for review — extinguished that
possibility and, with it, McNary’s standing to seek judicial
review of the Commission’s decision. See City of Orrville v.

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FERC, 147 F.3d 979, 984 n.5 (D.C. Cir. 1998). Although the
remedies McNary’s counsel identified at oral argument may
benefit current Alcoa employees not before this court, they
cannot redress McNary’s injury, which is what Article III
standing requires. Cf. Sands, 825 F.3d at 783. As for the
Secretary’s civil penalty, “citizen suitors lack standing to seek
civil penalties for violations that have abated by the time of
suit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 187 (2000) (citing Steel Co., 523 U.S. at 106–
07). As McNary’s counsel made clear at oral argument,
McNary seeks redress for a past, rather than ongoing, violation:
“We’re not saying something could happen down the road.
We’re saying Mr. McNary was threatened.” Oral Arg. Tr.
10:10–12.
Accordingly, the court must dismiss the petition for lack
of jurisdiction.

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