Asarco, Incorporated v. Secretary of Labor, and FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0095P (6th Cir.)
File Name: 00a0095p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ASARCO, INCORPORATED ,
Petitioner,
v.
S ECRETARY OF LABOR, and
FEDERAL M INE S AFETY AND
HEALTH R EVIEW
C OMMISSION ,
Respondents,
INTERNATIONAL C HEMICAL
W ORKERS UNION C OUNCIL OF
THE UNITED FOODS AND
C OMMERCIAL W ORKERS
UNION , AFL-CIO,
Intervenor.
;>

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No. 98-4234
On Petition for Review of a Decision from the Federal
Mine Safety and Health Review Commission.
Docket No. 94-362-RM
Argued: January 28, 2000
Decided and Filed: March 17, 2000
Before: KENNEDY, RYAN, and BOGGS, Circuit Judges.

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2 ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234
_________________
COUNSEL
ARGUED: Henry Chajet, PATTON BOGGS, L.L.P.,
Washington, D.C., for Petitioner. Ellen L. Beard, U.S.
DEPARTMENT OF LABOR, OFFICE OF THE
SOLICITOR, SPECIAL APPELLATE & SUPREME
COURT LITIGATION, Washington, D.C., for Respondent.
ON BRIEF: Henry Chajet, David J. Farber, PATTON
BOGGS, L.L.P., Washington, D.C., for Petitioner. Ellen L.
Beard, Allen H. Feldman, Nathaniel I. Spiller, U.S.
DEPARTMENT OF LABOR, OFFICE OF THE
SOLICITOR, SPECIAL APPELLATE & SUPREME
COURT LITIGATION, Washington, D.C., for Respondent.
Randall Vehar, INTERNATIONAL CHEMICAL WORKERS
UNION COUNCIL, Akron, Ohio, for Intervenor.
BOGGS, J., delivered the opinion of the court, in which
KENNEDY, J., joined. RYAN, J. (pp. 9-11) delivered a
separate concurring opinion.
_________________
OPINION
_________________
BOGGS, Circuit Judge. ASARCO petitions this court to
review the denial by the Federal Mine Safety and Health
Review Commission (“the Commission”) of its petition for
review of the decision of an administrative law judge
(“ALJ”). The ALJ held that the Denver laboratory of the
Mine Safety and Health Administration (“MSHA”) employed
flawed and unreliable procedures to analyze the sample of
silica dust taken from a worker’s shift at ASARCO’s zinc
mine, on the basis of which ASARCO had been cited for a
violation of dust safety standards. The ALJ vacated the
citation against ASARCO. However, the ALJ also held that
single-shift sampling is, in principle, a permissible method of
determining compliance with dust standards. ASARCO had
vigorously litigated that issue and wishes to challenge the
No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 11
litigated.” Id. at 242. The Supreme Court held that the court
of appeals had jurisdiction to direct reformation of the decree
to strike the portion relating to the validity of “claim 1”; the
court of appeals did not have jurisdiction to address the
validity of “claim 1” on the merits, however. Id.
ASARCO cannot invoke the Electrical Fittings exception
to achieve the result it seeks here, that is, a review of the
ALJ’s decision on the merits. Electrical Fittings permits only
the more limited remedy of reforming a judgment by deleting
the allegedly erroneous portions. See Deposit Guar., 445 U.S.
at 337; In re DES Litigation, 7 F.3d 20, 25 (2d Cir. 1993).
Finally, ASARCO submits that it has standing to appeal the
ALJ’s decision because it did not obtain all of the relief it
requested. Ordinarily, a party may appeal a decision that
grants only part of the relief requested. Forney v. Apfel, 524
U.S. 266, 271 (1998). Here, however, ASARCO did obtain
all of the relief it requested. Despite its insistence to the
contrary, ASARCO did not request declaratory relief relating
to single-shift sampling. It is true that the ALJ did not accept
both of ASARCO’s alternative arguments, but arguments are
not synonymous with relief. If ASARCO genuinely intended
this to be a “test case” challenging the MSHA’s single-shift
sampling protocol, it has only itself to blame for muddying
the waters with an alternative argument.
For these reasons, as well as those expressed in the lead
opinion, I concur in the judgment dismissing this appeal.

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10 ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234
grant standing where there is an “injury in fact” to an interest
that is arguably within the zone of interests to be protected or
regulated under the applicable statute. Sierra Club v. Morton,
405 U.S. 727, 733 (1972). The parties here dispute whether
ASARCO has suffered any injury from the ALJ’s decision, a
component of both constitutional and statutory standing.
My brother’s opinion recognizes that a prevailing party
generally may not appeal a favorable decision. See Buck v.
Secretary of Health and Human Servs., 923 F.2d 1200, 1203
(6th Cir. 1991). My colleague also identifies a “narrow
exception” to this rule. Indeed, the cases cited by ASARCO
establish multiple exceptions to the general rule. However,
ASARCO fails to satisfy any of these exceptions.
First, I agree that the Deposit Guaranty exception is
inapposite. In Deposit Guaranty, the plaintiffs suffered actual
economic injury from the district court’s judgment denying
class certification because the judgment precluded the
individual plaintiffs from shifting part of the litigation costs
to other class members. Here, in contrast, the only economic
injury that ASARCO suffered as a result of the ALJ’s
decision, as distinguished from the MSHA’s testing
procedure, was its sunk litigation costs. ASARCO is not
seeking to shift any portion of this cost to another party. I
also agree that Vanderbilt is distinguishable.
ASARCO also relies on Electrical Fittings Corp. v.
Thomas & Betts Co., 307 U.S. 241 (1939), a patent
infringement case. The district court ruled in favor of the
defendant and dismissed the lawsuit for failure to prove
infringement, specifically holding that “claim 1” of the patent
was valid but not infringed and that “claim 2” of the patent
was invalid. The defendant appealed that portion of the
district court’s ruling holding “claim 1” valid. Id. at 242. The
court of appeals dismissed the appeal on the grounds that the
defendant had been awarded all relief to which it was entitled.
The Supreme Court reversed. The Court noted that although
the validity of “claim 1” did not influence the disposition, it
nevertheless stood “as an adjudication of one of the issues
No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 3
holding. The Commission refused review on the basis that
the company had prevailed before the ALJ and thus had no
standing to file a review petition. ASARCO then petitioned
this court to review that order. The Commission filed a
motion to dismiss for lack of jurisdiction. We decided to hear
argument first only on whether we had jurisdiction, i.e.,
whether ASARCO has standing. For the reasons that follow,
we hold that ASARCO is not aggrieved by the ALJ’s
decision, and therefore has no standing to petition for review.
The case is accordingly dismissed for lack of jurisdiction.
I
This case began in 1994 when the Secretary of Labor,
acting through the MSHA, cited ASARCO for violation of
dust standards at its Young Mine, an underground zinc mine
in Tennessee. ASARCO successfully argued, before
Administrative Law Judge Roy J. Maurer, that the
Commission’s decision in Keystone Coal Mining Corp., 16
FMSHRC 6, 1994 WL 7394 (“Keystone”), which held that
single-shift sampling of coal dust is an invalid sampling
method, was controlling, and that the citation against
ASARCO should be dismissed, since it was based on a
single-shift sample. The ALJ so ruled. The Commission
granted the Secretary’s petition for discretionary review,
vacated the ALJ’s ruling, and remanded for further
proceedings, holding that Keystone’s invalidation of single-
shift sampling applied only to coal mines, not to ASARCO’s
zinc mine. 17 FMSHRC 1, 1995 WL 29260.
The case was then tried in 1996 before the ALJ, who
rendered an opinion in 1997, granting ASARCO’s contest of
the citation, on the grounds that the laboratory’s analytical
procedures were unstandardized, haphazard, and unreliable.
19 FMSHRC 1097, 1997 WL 314899. ASARCO was
unhappy, however, because the ALJ had first determined the
acceptability in principle of single-shift sampling, a
methodology vigorously opposed by ASARCO, and had ruled
that the contested citation should not be vacated for MSHA’s
employing that disputed methodology, before proceeding to

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4 ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234
vacate it on grounds of the laboratory’s unreliable procedures.
ASARCO therefore petitioned the Commission for review of
the ALJ’s determination of the acceptability of the contested
methodology. In a 4-1 decision issued on Sept. 29, 1998, the
Commission vacated its initial order granting review and
denied the petition, on the ground that ASARCO lacks
standing to seek review of the adverse portion of the ALJ’s
decision in its favor. 20 FMSHRC 1001, 1998 WL 675500.
ASARCO petitions this court to review that final decision of
the Commission, as well as that portion of the ALJ’s ruling
that held single-shift sampling to be a valid technique for
measuring exposure to silica dust.
This court has jurisdiction to review a decision of the
Commission on petition by “[a]ny person adversely affected
or aggrieved by an order of the Commission” regarding a
violation alleged to have occurred in this circuit, pursuant to
30 U.S.C. § 816(a)(1).
In a motion filed November 5, 1998, the Secretary moved
to dismiss the petition for lack of jurisdiction, on the ground
that ASARCO was not “adversely affected or aggrieved” by
the Commission’s refusal to review the ALJ’s decision. On
January 10, 2000, the panel decided first to hear argument on
the date scheduled solely on the issue of its jurisdiction and,
if ASARCO’s petition were to survive the motion to dismiss,
then to hear the substantive aspect of the case at another date.
II
“This court applies a de novo standard of review to
questions of subject matter jurisdiction.” Green v. Ameritech
Corp., 200 F.3d 967, 972 (6th Cir. 2000) (citing Friends of
the Crystal River v. EPA, 35 F.3d 1073, 1077 (6th Cir.
1994)).
It is a well settled principle that a prevailing party cannot
appeal an unfavorable aspect of a decision in its favor. See
New York Telephone Co. v. Maltbie, 291 U.S. 645 (1934). “A
party may not appeal from a judgment or decision in his
favor, for the purpose of obtaining a review of findings he
No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 9
______________________
CONCURRENCE
______________________
RYAN, Circuit Judge, concurring. I agree that ASARCO
lacks standing to appeal the ALJ’s favorable decision, but I
write separately to elaborate on the reasoning that, in my
view, supports the judgment and to address a few of
ASARCO’s arguments that the majority opinion overlooks.
As Judge Boggs observes, ASARCO succeeded in having
the citation vacated, but it is unhappy that the ALJ rejected its
primary argument in challenging the citation—i.e., that
single-shift sampling is inherently unreliable and insufficient
per se to support a citation. ASARCO argues that it satisfies
both the constitutional and statutory requirements for standing
to appeal the ALJ’s decision.
A litigant must satisfy three elements to establish standing
under Article III of the Constitution: (1) he must have
suffered some actual or threatened injury; (2) the injury must
be “fairly traceable” to the challenged action; and (3) there
must be a substantial likelihood that the relief requested will
redress or prevent the injury. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992); Coyne v. American Tobacco
Co., 183 F.3d 488, 494 (6th Cir. 1999). An “injury in fact” is
“an invasion of a legally-protected interest” which is: (1)
concrete and particularized; and (2) actual or imminent, not
conjectural or hypothetical. Lujan, 504 U.S. at 560.
In addition to these constitutional requirements, a party
must satisfy applicable statutory prerequisites for standing.
Under the Federal Mine Safety & Health Act, “[a]ny person
adversely affected or aggrieved” by an ALJ’s decision or by
a Commission order may seek review before the Commission
or a court, respectively. 30 U.S.C. §§ 823(d)(2)(A),
816(a)(1). The Supreme Court has interpreted the identical
“adversely affected or aggrieved” language that appears in the
Administrative Procedures Act (APA), 5 U.S.C. § 702, to

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8 ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234
and the Commission’s refusal to review it, has caused
ASARCO no “distinct and palpable injury,” see ibid.
(quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)), and
ASARCO thus lacks standing to petition this court for review.
ASARCO’s petition is, therefore, DISMISSED for lack of
jurisdiction.
No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 5
deems erroneous which are not necessary to support the
decree.” Electrical Fittings Corp. v. Thomas Betts Co., 307
U.S. 241, 242 (1939). Appellate courts review judgments, not
statements in an opinion. See, e.g., Black v. Cutter
Laboratories, 351 U.S. 297 (1956). As a rule, a court’s
holding on a collateral issue is appealable only when such an
issue undergirds a decision adverse to a party in the case, and
is appealable only by that party. See 15A Charles A.Wright
et al., Federal Practice and Procedure: Jurisdiction 2d § 3902,
text accompanying notes 32-55. The party is the critical
factor here, since analysis of standing focuses not on the
salience of an issue, which may be considerable, but on the
injury to a party who wishes to litigate it. See Valley Forge
Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 484 (1982).
ASARCO seeks to avoid these established principles
through a narrow exception that has been applied by the
Supreme Court in unusual and limited circumstances. The
Chairman of the Commission, dissenting from the denial of
ASARCO’s petition, quoted on the matter a widely-used
treatise:
[I]f a litigated issue was adjudicated expressly adversely
to the party prevailing on the merits, even though it was
immaterial to the final disposition, that party may retain
an interest in the matter sufficient to support appellate
jurisdiction. . . . A “stake in the appeal” exists if the
collateral ruling affects the prevailing party’s rights and
if erroneous would work harm to the prevailing party’s
interest.
19 James W. Moore et al., Moore’s Federal Practice
§ 205.04[1], at 205-42–43 (3d ed. 1998) (quoting Deposit
Guaranty Nat’l Bank of Jackson v. Roper, 445 U.S. 326, 334
(1980)).
In Deposit Guaranty, the Supreme Court upheld the right
of plaintiffs to appeal the denial of certification to a putative
class of 90,000, notwithstanding an entry of judgment in their
favor on the basis of the bank’s tender to plaintiffs of the

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6 ASARCO, Inc. v. Secretary of Labor, et al. No. 98-4234
maximum amount they could have recovered as individuals.
Without the class certification, the cost of litigation could not
be widely spread. In permitting the appeal of the adverse
certification ruling, the Court held:
A party who receives all that he has sought generally is
not aggrieved by the judgment affording the relief and
cannot appeal from it. The rule is one of federal
appellate practice, however, derived from the statutes
granting appellate jurisdiction and the historic practices
of the appellate courts; it does not have its source in the
jurisdictional limitations of Art. III. In an appropriate
case, appeal may be permitted from an adverse ruling
collateral to the judgment on the merits at the behest of
a party who has prevailed on the merits, so long as that
party retains a stake in the appeal satisfying the
requirements of Art. III.
445 U.S. at 333-34 (citations omitted).
This court quoted the last sentence of the preceding
language from Deposit Guaranty in a case concerning a
manufacturer’s appeal of an OSHA decision that its product
contained asbestos fibers, notwithstanding an ALJ’s vacating
of a citation against one of its customers for use of that
product. The decision had been made in an action not against
the manufacturer, but against a company to whom it had
supplied the product. See R.T. Vanderbilt Co. v.
Occupational Safety and Health Rev. Comm., 728 F.2d 815,
817 (6th Cir. 1984). This court held that the manufacturer,
Vanderbilt, could bring an appeal, since there was a sufficient
case or controversy affecting its interests, and that Vanderbilt
did have “a personal stake in the outcome.” Ibid. Although
thereby two-thirds of the way through the courthouse door,
Vanderbilt nonetheless failed to pass the “zone of interests”
test, as established by the Supreme Court in Association of
Data Processing Service Org., Inc. v. Camp, 397 U.S. 150,
153 (1970), since it was neither a regulated party nor a party
on whose behalf there was regulation. We accordingly
dismissed the case for lack of subject matter jurisdiction. 728
No. 98-4234 ASARCO, Inc. v. Secretary of Labor, et al. 7
F.2d at 818. ASARCO, in contrast, clearly is a regulated
party; hence, it contends, it meets more fully than did
Vanderbilt the criteria for standing to appeal.
ASARCO’s situation is, however, distinguishable from
Vanderbilt’s, as well as from that of the prevailing party in
Deposit Guaranty. In the latter case, plaintiffs had been
denied class certification in a suit against the bank over
allegedly usurious credit-card finance charges, and the bank’s
tender, which plaintiffs rejected in an attempt to reserve the
appeal of the denial of certification, was embodied in a final
judgment by the district court over their objections. Unlike
ASARCO, it is hard to see in what, if any, sense the Deposit
Guaranty plaintiffs, who received $889.42 and $423.54 but
bore the cost of litigation, could be construed to have received
all that they had sought, and in any event their case presented
issues unique to class certification, and its denial, on which
the Court focused in its decision.
Vanderbilt was, at least arguably, subject to more damage
by the collateral ruling against its product than is ASARCO.
The ruling on Vanderbilt’s product would not have any
preclusive effect — the citation against the offending
company that had used Vanderbilt’s product was vacated, and
the holding adverse to Vanderbilt was, at best, dicta — but the
economic loss resulting from damage to its product’s
reputation might be substantial. ASARCO does not have
even that much economic stake. Nor will the ruling it dislikes
have preclusive effect; it is not even binding on the
Commission, as the Secretary’s brief points out. Brief for the
Secretary of Labor at 25. The only damage to ASARCO is,
perhaps, the cost it may incur in repeating the litigation of the
single-sampling issue in the future, if it is cited for a violation,
if the citation rests on a single-shift sample, and if the citation
is upheld by an ALJ. This is a highly speculative injury, too
much so to count as the “Article III minima of injury in fact”
required for standing. See Havens Realty Corp. v. Coleman,
455 U.S. 363, 372 (1982). In any event, even that injury
arises not from the underlying ALJ decision, but from the
MSHA’s overall enforcement policy. The ALJ’s decision,

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