MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Plaintiffs, Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc., for a preliminary injunction [DN 14], on a motion by Defendants, United States Department of Labor, Mine Safety and Health Administration, Jim W. Langley, William Cook, III, and Wendell Crick, to dismiss this action [DN 16], and on a motion by Plaintiffs for a hearing [DN 21]. Fully briefed, these matters are now ripe for decision.
On September 4, 2012, Plaintiffs, Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc., filed the instant action seeking declaratory and injunctive relief against the United States Department of Labor; Mine Safety and Health Administration (hereinafter "MSHA"); Jim W. Langley, District Manager for MSHA Coal District 10; William Cook, Supervisor of MSHA's Beaver Dam, Kentucky Field Office; and Wendell Crick, an MSHA inspector. Plaintiffs Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc. are sister companies with Armstrong Energy, Inc. being the parent company. Armstrong Coal owns the Parkway Mine in Muhlenberg County, Kentucky, and Armstrong Fabricators owns the Fabricator Shop, a repair shop adjacent to Armstrong Coal Company's Parkway preparation plant. Plaintiffs seek "declaratory and injunctive relief to remedy provisions of the Mine Act violative of the Plaintiffs' Due Process Rights under the Fifth Amendment to the U.S. Constitution, Defendants' pattern and practice of depriving Plaintiffs of their Due Process Rights under the Fifth Amendment to the U.S. Constitution, and Defendants' violations of the Administrative Procedure Act (the "APA"), the Mine Act, and other ultra vires conduct." (Complaint at ¶ 1.)
Plaintiffs allege that on February 28, 2012, after receiving an anonymous complaint regarding allegedly hazardous conditions, MSHA conducted an inspection of the Fabricator Shop. (Id. at ¶ 48.) Armstrong Fabricators permitted MSHA to conduct the inspection under protest. MSHA found no hazardous conditions. (Id. at ¶ 49.) Plaintiffs represent that Armstrong Fabricators permanently idled and abandoned the Fabricator Shop on August 12, 2012, and placed a sign on the gate of the Fabricator Shop property stating "Fab Shop Closed." (Id. at ¶ 50.) Plaintiffs claim that since August 12, 2012, no activity related to mining or reclamation has been done at the Fabricator Shop. On August 28, 2012, MSHA Inspector Wendell Crick appeared for the purpose of conducting a general inspection of the Fabricator Shop. (Id. at ¶ 52.) Armstrong Fabricators informed Inspector Crick that the Fabricator Shop had been permanently abandoned and that MSHA did not have jurisdiction over the Shop. Plaintiffs allege that Crick threatened to shut down the Fabricator Shop and the Parkway Mine if Armstrong Fabricators refused to permit the inspection. (Id. at ¶¶ 53-55.) Armstrong Fabricators permitted Crick to inspect the Fabricator Shop under protest. (Id. at ¶ 55.)
Following the inspection, Inspector Crick issued 24 citations alleging violations of MSHA's mandatory health and safety standards at the Fabricator Shop. (Id. at ¶57, 62; 30 U.S.C. § 814(a).) Inspector Crick issued the citations to Armstrong Coal Company. MSHA directed that the conditions described in six of the citations be abated within three days of the investigation and fifteen of the citations be abated by September 7, 2012. (Id. at ¶ 61.) Abatement of the remaining three citations occurred on the same day the citations were written. (Id.)
In their Complaint, Plaintiffs argue that MSHA was not entitled to inspect the Fabricator Shop because "it was not and has not been a 'coal or other mine' subject to MSHA jurisdiction, at a minimum, since August 12, 2012." (Complaint at ¶¶ 50-51.) Plaintiffs request declaratory and injunctive relief preventing Defendants from "asserting jurisdiction over the Fabricator Shop, issuing unwarranted abatement orders, or issuing abatement orders for areas which MSHA does not have jurisdiction." (Id. at 35(K), ¶¶ 125-144.) Plaintiffs also seek a declaration that the Fabricator Shop is "not covered by the Mine Act, and thus is not subject to MSHA jurisdiction under the Mine Act." (Id. at 35(J).) Specifically, Plaintiffs claim that the Mine Act is violative of the Plaintiffs' due process rights under the Fifth Amendment to the United States Constitution because it does not provide any pre- or post-deprivation process sufficient to make Plaintiffs whole for wrongful assertions of jurisdiction and inspection authority by Defendants over Plaintiffs' property (id. at ¶¶ 66-78), for Defendants' wrongful issuance of abatement orders for areas over which Defendants have no jurisdiction, or for the deprivation of constitutionally protected liberty and property interests resulting from such conduct (id. at ¶¶ 79-91). (See also id. at ¶2.) Additionally, Plaintiffs claim that Defendants' conduct also violates the Plaintiffs' due process rights because Defendants have engaged in a pattern and practice of wrongfully asserting jurisdiction and inspection authority over Plaintiffs' property (id. at ¶¶ 92-104) and wrongfully issuing abatement orders for areas over which Defendants have no jurisdiction (id. at ¶¶ 105-117). (See also id. at ¶ 3.) Plaintiffs also assert that Defendants violated the Administrative Procedure Act (id. at ¶¶ 118-122), engaged in ultra vires conduct (id. at ¶¶ 122-24), and exceeded the statutory jurisdiction granted to them in the Mine Act by acting in excess of their statutory jurisdiction, authority, or limitations. (Id. at ¶¶ 4-6.)
On October 5, 2012, Plaintiffs filed a motion for a preliminary injunction prohibiting Defendants from (1) asserting jurisdiction over Armstrong Fabricators' Fabricator Shop, (2) issuing and enforcing abatement orders to Plaintiffs for conditions observed in the Fabricator Shop, and (3) issuing and enforcing withdrawal orders to Plaintiffs for any alleged failure to abate conditions observed in the Fabricator Shop without due process of law. On October 26, 2012, Defendants filed a motion to dismiss for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The Court will first address Defendant's motion to dismiss for lack of jurisdiction.
Federal Rule of Civil Procedure 12(b)(1) provides that a party may file a motion asserting "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). "Subject matter jurisdiction is always a threshold determination," American Telecom Co., L.L.C. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998)), and "may be raised at any stage in the proceedings," Schultz v. General R.V. Center, 512 F.3d 754, 756 (6th Cir. 2008). "A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists." DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). "A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading." Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Here, the Defendants' motion to dismiss raises a Rule 12(b)(1) facial attack on Plaintiffs' jurisdictional allegations. Coxco Realty, LLC v. United States Army Corps of Engineers, 2008 WL 640946, *2 (W.D. Ky. March 4, 2008).
A. Federal Mine Safety and Health Act
Congress enacted the Federal Mine Safety and Health Act of 1977 (hereinafter "Mine Act") "to protect the health and safety of the Nation's coal or other miners." 30 U.S.C. § 801(g). In enacting the law, Congress recognized 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[.]" 30 U.S.C. § 801(c); North Fork Coal Corp. v. Federal Mine Safety and Health Review Com'n, 691 F.3d 735, 738 (6th Cir. 2012). Under the Mine Act, Congress adopted a "split-enforcement" regime where issues of policy and enforcement are delegated to the Secretary of Labor and issues of adjudication are addressed by an independent review body known as the Federal Mine Safety and Health Review Commission ("the Mine Commission") and the federal court of appeals. North Fork Coal Corp., 691 F.3d at 741; Sec'y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir.1996).
The Mine Act charges the Secretary of Labor to "develop, promulgate, and revise . . . mandatory health or safety standards for [all] coal or other mines." 30 U.S.C. § 811(a).*fn1 "The Secretary develops these standards by rulemaking . . . and enforces them by conducting inspections, issuing citations and proposing civil penalties for violations." North Fork, 691 F.3d at 742 (citing 30 U.S.C. §§ 813, 814(a), 815(a), 820(a)). Specifically, "[t]he Act requires the Secretary of Labor or his representative to conduct periodic, unannounced health and safety inspections of the Nation's mines." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202-203 (U.S. 1994). "Underground mines must be inspected at least four times a year, and surface mines must be inspected at least twice annually." Id. at 203 n. 1 (citing 30 U.S.C. § 813(a)). The Mine Act also grants inspectors "a right of entry to, upon, and through any coal or other mine." 30 U.S.C. § 813. "The Secretary has broad authority to compel immediate compliance with Mine Act provisions through the use of mandatory civil penalties, discretionary daily civil penalties, and other sanctions." Thunder Basin, 510 U.S. at 204. As noted by the United States Supreme Court, the Mine Act provides that in the event a violation occurs, the Secretary shall issue citations for violations of MSHA regulations, "recommend assessment of a civil penalty of up to $50,000 against any mine operator believed to have violated the Act," and specify a reasonable time for abatement. Id at 204 n. 4 (citing 30 U.S.C. §§ 814(a), 815(a), and 820(a)). If an operator fails to abate the violation within the time allotted, the Secretary may assess additional daily civil penalties. Id. (citing 30 U.S.C. § 820(b)). The Secretary may also "issue a 'withdrawal order,' directing all individuals to withdraw from the affected mine area, §§ 814(b) and (d), or pursue criminal penalties, § 820(d)." Id.
The Mine Act "establishes a detailed structure for reviewing violations of 'any mandatory health or safety standard, rule, order, or regulation promulgated' under the Act. § 814(a)." Thunder Basin, 510 U.S. at 207. "A mine operator has 30 days to challenge before the Commission any citation issued under the Act, after which time an uncontested order becomes 'final' and 'not subject to review by any court or agency.'" Id. (quoting 30 U.S.C. §§ 815(a) and ...