Cobra Natural Resources, LLC v. Federal Mine Safety & Health Review Commission , 742 F.3d 82 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1406
COBRA NATURAL RESOURCES, LLC,
Petitioner,
v.
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION; SECRETARY
OF LABOR; MINE SAFETY AND HEALTH ADMINISTRATION, on behalf
of Russell Ratliff,
Respondents.
On Petition for Review of an Order of the Federal Mine Safety
& Health Review Commission. (WEVA 2013-368-D)
Argued: October 29, 2013 Decided: January 27, 2014
Before KING, GREGORY, and AGEE, Circuit Judges.
Petition for review dismissed by published opinion. Judge King
wrote the majority opinion, in which Judge Gregory joined.
Judge Agee wrote a dissenting opinion.
ARGUED: William E. Robinson, DINSMORE & SHOHL, LLP, Charleston,
West Virginia, for Petitioner. Nancy E. Steffan, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Mary Catherine Funk, DINSMORE & SHOHL, LLP, Charleston,
West Virginia, for Petitioner. M. Patricia Smith, Solicitor of
Labor, Heidi W. Strassler, Associate Solicitor, W. Christian
Schumann, Appellate Ligation Counsel, UNITED STATES DEPARTMENT
OF LABOR, Arlington, Virginia, for Respondents.
KING, Circuit Judge:
Petitioner Cobra Natural Resources, LLC (“Cobra”), seeks
appellate relief from a decision of the Federal Mine Safety and
Health Review Commission (the “Commission”), temporarily
reinstating a coal miner. In October 2012, Russell Ratliff
filed a discrimination complaint with the Secretary of Labor,
alleging that Cobra had unlawfully retaliated against him under
the Mine Safety and Health Act of 1977 (the “Mine Act”), by
discharging him on the basis of safety concerns he had
articulated with respect to Cobra’s mining operations. After an
Administrative Law Judge (the “ALJ”) determined that Ratliff was
entitled to temporary reinstatement pending a final order on his
complaint, the Commission affirmed the reinstatement order.
Asserting appellate jurisdiction under the collateral order
doctrine, Cobra seeks judicial review of the Commission’s
interlocutory decision. As explained below, we dismiss the
petition for lack of jurisdiction.
I.
A.
In response to what was characterized as the “notorious
history of serious accidents and unhealthful working conditions”
in the coal mining industry, the Mine Act was enacted in 1977 to
establish a comprehensive regulatory scheme concerning mine
2
safety and health in this country. See Donovan v. Dewey, 452
U.S. 594, 603 (1981). The Act contains a whistleblower
provision that prohibits mine operators from discriminating
against coal miners for making complaints “under or related to”
the Act, including any complaint notifying an operator of “an
alleged danger or safety or health violation” in a coal mine.
See 30 U.S.C. § 815(c)(1). 1
Because a complaining coal miner “may not be in the
financial position to suffer even a short period of unemployment
or reduced income pending resolution of the discrimination
complaint,” the Mine Act established the temporary reinstatement
procedure underlying this proceeding. See S. Rep. No. 95-181,
at 37 (1977), reprinted in 1977 U.S.C.C.A.N. 3401 (1977); see
also 30 U.S.C. § 815(c)(2). Pursuant to the Mine Act, the
Secretary receives a miner’s discrimination complaint and
conducts an appropriate investigation; if it is determined that
the complaint was not “frivolously brought,” the Secretary
applies to the Commission for an order temporarily reinstating
1
Section 815(c)(1) of Title 30 specifies, in relevant part,
that a coal operator
shall [not] discharge or in any manner discriminate
against . . . any miner . . . because such miner . . .
has filed or made a complaint under or related to [the
Mine Act] . . . of an alleged danger or safety or
health violation in a coal . . . mine.
3
the miner’s employment, “pending final order on the complaint.”
See 30 U.S.C. § 815(c)(2). If the coal operator disagrees with
the Secretary’s determination, it may request a hearing before
an ALJ.
A reinstatement order does not require that a coal miner
remain employed under any circumstance, but is subject to
“changes that occur at the mine after [the order’s] issuance.”
See Sec’y on behalf of Gatlin v. KenAmerican Resources, Inc., 31
FMSHRC 1050, 1054 (2009). Thus, a coal operator’s temporary
reinstatement obligation can be “tolled” by the occurrence of
certain events, such as a subsequent reduction-in-force that
would have included the miner. See id. An ALJ’s ruling on a
temporary reinstatement issue, including whether the
reinstatement should be tolled, is subject to discretionary
review by the Commission.
Regardless of whether the terminated coal miner is
temporarily reinstated, the Secretary must complete the
discrimination investigation within ninety days of the filing of
the complaint. If it is decided that a violation of the
whistleblower provision has occurred, the Secretary must file a
complaint with the Commission, which conducts a hearing and
issues a final order. If the Secretary instead determines that
a violation has not occurred, the temporary reinstatement ends.
4
See N. Fork Coal Co. v. FMSHRC, 691 F.3d 735, 744 (6th Cir.
2012).
B.
Russell Ratliff, a southern West Virginia coal miner, was
an equipment operator at Cobra’s Mountaineer Mine in Mingo
County until, on October 17, 2012, he was abruptly discharged by
Cobra. Promptly thereafter, Ratliff filed a discrimination
complaint alleging that he had been terminated in retaliation
for engaging in protected activity. The Secretary concluded
that Ratliff’s claim was not frivolous and applied to the
Commission for his temporary reinstatement. Cobra requested a
hearing on the application, contending that Ratliff’s complaint
was frivolous and also asserting a tolling defense. 2
The hearing was conducted before an ALJ on January 7, 2013.
In his January 14, 2013 Decision and Order (the “Reinstatement
Order”), the ALJ agreed with the Secretary that Ratliff’s
discrimination complaint was not frivolously brought. 3 The ALJ
2
In addition to seeking to refute Ratliff’s claim of
retaliatory termination, Cobra relied on a reduction-in-force
that occurred at the Mountaineer Mine in November 2012.
According to Cobra, Ratliff would have been among those who lost
their jobs. As a result, Cobra contended that a temporary
reinstatement, even if granted, should be tolled as of January
15, 2012, the last date the laid-off miners were paid.
3
The Reinstatement Order is found at J.A. 175-94.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.)
5
also rejected Cobra’s tolling contention, concluding that Cobra
had failed to show that “work [was] not available to [Ratliff]”
because of an asserted multi-employee layoff. See Reinstatement
Order 18-19 (citing Gatlin, 31 FMSHRC at 1054-55). The ALJ
directed Cobra to immediately reinstate Ratliff, with the same
hours of work, rate of pay, and benefits received.
Cobra next sought Commission review of the Reinstatement
Order, specifically challenging the ALJ’s analysis of the
tolling issue. By its February 28, 2013 Decision (the
“Commission Decision”), the Commission granted review but
affirmed the Reinstatement Order. 4 On March 27, 2013, Cobra
timely filed the underlying petition for review, summarily
asserting jurisdiction under the collateral order doctrine and
contending that the Commission erroneously denied Cobra’s
tolling defense.
II.
Although Rule 28(a)(4) of the Federal Rules of Appellate
Procedure requires that an opening appellate brief contain a
detailed jurisdictional statement, both parties gave short
shrift to the asserted basis for appellate jurisdiction in this
4
The Commission Decision is found at J.A. 237-43.
6
matter. 5 As a result, prior to oral argument, we obtained
supplemental briefing on the jurisdiction question. Therein,
both parties once again summarily urged us to accept
jurisdiction under the collateral order doctrine. 6 Nevertheless,
“we are obliged to satisfy ourselves of subject-matter
jurisdiction, even where the parties concede it.” United States
v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009) (citing Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).
Mindful of our obligation with respect to jurisdiction, we must
assess whether the Commission Decision is reviewable.
A.
Section 106(a)(1) of the Mine Act authorizes “any person
adversely affected or aggrieved by an order of the Commission”
to seek review in the court of appeals for the circuit in which
the underlying statutory violation is alleged to have occurred.
5
The Secretary, who briefed and argued this matter on
behalf of the Respondents, agrees with Cobra that we possess
jurisdiction under the collateral order doctrine. The
Commission, electing not to participate as an active litigant in
this proceeding, did not file a brief or participate in oral
argument. As it advised the Court, the Commission “remains a
respondent and will monitor the litigation.”
6
In responding to our Order of October 15, 2013, directing
supplemental briefing on jurisdiction, the Secretary simply
referred us, in order “to avoid unnecessary repetition,” to the
summary jurisdictional statement in her opening brief. Put
mildly, we were surprised and somewhat baffled by that
submission.
7
See 30 U.S.C. § 816(a)(1). Although the Act uses the term
“order” rather than “final order,” we have recognized that only
a final Commission order is entitled to review in this Court.
See Monterey Coal Co. v. FMSHRC, 635 F.2d 291, 292-93 (4th Cir.
1980); see also Bell v. New Jersey, 461 U.S. 773, 778-79 (1983)
(“The strong presumption is that judicial review will be
available only when agency action becomes final.”).
The collateral order doctrine was first identified in 1949
in Cohen v. Beneficial Industrial Loan Corp., where the Supreme
Court recognized a “small class [of decisions] which finally
determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review
and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is
adjudicated.” 337 U.S. 541, 546 (1949). 7 The Cohen approach,
7
Our dissenting colleague maintains that the Commission
Decision was a final order for purposes of 30 U.S.C.
§ 815(a)(1), such that we may assume jurisdiction over Cobra’s
petition without resort to the collateral order doctrine. In
support of that assertion, the dissent relies only on some dicta
from other circuits. The dissent’s position conveniently
ignores our own precedent, which establishes that an agency
order is not final if it is a “preliminary step in the final
disposition of [the] case on its merits.” See Monterey Coal,
635 F.2d at 293. That the Commission Decision is just such a
“preliminary step” is evident from § 815(c) of the Mine Act,
which provides for a miner’s reinstatement “pending final order
on the complaint.” This plain language, viewed within the
structure of the Mine Act, shows in a clear, compelling manner
that a temporary reinstatement award is simply interlocutory,
(Continued)
8
limiting collateral order review only to certain exceptional
cases, retains its validity today. Distilling Cohen and its
progeny, the Court requires that an appealable collateral order
must “[1] conclusively determine the disputed question, [2]
resolve an important issue completely separate from the merits
of the action, and [3] be effectively unreviewable on appeal
from a final judgment.” Will v. Hallock, 546 U.S. 345, 349
(2006) (alterations in original) (internal quotation marks
omitted); see also Al Shimari v. CACI Int’l, Inc., 679 F.3d 205(4th Cir. 2012) (en banc) (rejecting collateral order
jurisdiction over, inter alia, law of war defense).
The three requirements for collateral order jurisdiction
are necessarily stringent, and the Supreme Court has emphasized
that the doctrine must “never be allowed to swallow the general
rule that a party is entitled to a single appeal, to be deferred
until final judgment has been entered.” See Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). On
this point, the Court has been consistently unequivocal. As
Justice Souter stressed in Will:
and that the “final order” will be entered subsequently.
Finally, the dissent stands alone in its characterization of a
temporary reinstatement award as a final order: all the parties
here, as well as every court of appeals to consider the issue,
agree that appellate jurisdiction in such a situation must
derive — if at all — from the collateral order doctrine.
9
[W]e have not mentioned applying the collateral order
doctrine recently without emphasizing its modest
scope. And we have meant what we have said; although
the court has been asked many times to expand the
small class of collaterally appealable orders, we have
instead kept it narrow and selective in its
membership.
546 U.S. at 350 (emphasis added) (internal quotation marks
omitted). The Court’s admonitions respecting the limited scope
of the collateral order doctrine “reflect[] a healthy respect
for the virtues of the final-judgment rule.” Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100, 106 (2009). 8 Our distinguished
former colleague Judge Williams urged caution in applying the
collateral order doctrine to administrative decisions, reminding
us that “[i]t is not the place of appellate courts to scrutinize
agency action at every step. . . . Rather, [we] must proceed
cautiously, allowing lower decision-makers thoroughly to resolve
the intricacies of underlying claims.” See Carolina Power &
8
Our good dissenting colleague blithely proceeds as if the
most recent two decades of Supreme Court jurisprudence on the
collateral order doctrine never existed. Overlooking the
Court’s explicit instructions to limit application of the
collateral order doctrine — see Will, 546 U.S. at 350 (“And we
have meant what we have said”) — the dissent would casually
create, under the collateral order doctrine, an entirely new
category of appealable non-final orders. The inescapable result
of its position is that the scope of collateral order
jurisdiction in administrative agency cases would be
dramatically expanded. Such an expansion would constitute an
unjustifiable rejection of the Court’s decisions in Digital
Equipment, Will, and Mohawk.
10
Light Co. v. U.S. Dep’t of Labor, 43 F.3d 912, 918 (4th Cir.
1995). 9
In delineating the boundaries of the collateral order
doctrine, “‘the importance of the right asserted [on appeal] has
always been a significant part’” of the analysis. See Will, 546
U.S. at 352 (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S.
495, 502 (1989) (Scalia, J., concurring)). 10 As the Supreme
Court recently explained, the traditional importance requirement
“finds expression” in both the second and third prongs of the
9
We observe that the Secretary’s expansive view of
collateral order jurisdiction in this proceeding, in addition to
flouting the Supreme Court’s admonitions, is a sharp turn from
the position taken by the Department of Justice as amicus curiae
in our recent en banc decision in Al Shimari. There, the DOJ
relied substantially on Mohawk and Digital Equipment — decisions
the Secretary failed to mention here, even in its supplemental
brief on jurisdiction — and stressed the narrow scope of the
collateral order doctrine. See Br. of the United States as
Amicus Curiae, Al Shimari v. CACI Int’l, Inc., No. 09-1335 (4th
Cir. Jan. 14, 2012), ECF No. 146.
10
For several years we appear to have identified a fourth
collateral order requirement: that the order “present a serious
and unsettled question on appeal.” See, e.g., Carolina Power,
43 F.3d at 916. Later, in Under Seal v. Under Seal, we
articulated the three-part test most frequently employed by the
Supreme Court. See 326 F.3d 479, 483 (4th Cir. 2003). This
semantic shift did not at all abandon the “importance” aspect to
which Justice Scalia refers; the decision simply reorganized it.
More recent Supreme Court decisions have reemphasized that
collateral order jurisdiction remains reserved for exceptional
cases only, where “the justification for immediate appeal [is]
sufficiently strong to overcome the usual benefits of deferring
appeal until litigation concludes.” See Mohawk, 558 U.S. at
107.
11
three-part test. See Mohawk, 558 U.S. at 107. The second prong
insists, quite clearly, on “important questions separate from
the merits.” Id. (internal quotation marks omitted). And “more
significantly,” the third prong — whether a right is
“effectively unreviewable” on appeal from a final judgment —
requires careful judicial balancing that takes into account the
importance of the issue the appellate court might review. See
id.In assessing whether we possess jurisdiction under the
collateral order doctrine, “we do not engage in an
‘individualized jurisdictional inquiry.’” See Mohawk, 558 U.S.
at 107 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473
(1978)). That is, our focus is not on the particular order at
issue, but rather on the “entire category” of orders to which it
belongs. See Digital Equip., 511 U.S. at 868. Thus, the chance
that “the litigation at hand might be speeded” or “a particular
injustice averted” by an immediate appeal does not provide a
basis for jurisdiction under the collateral order doctrine. Id.(internal quotation marks omitted).
B.
Having identified some controlling principles, we restate
the jurisdictional issue: whether a Commission decision
granting temporary reinstatement to a coal miner is immediately
appealable by the coal operator under the collateral order
12
doctrine. Although this issue is one of first impression in our
circuit, two of our sister courts of appeals have confronted the
question and concluded that appellate jurisdiction is
appropriate. Those decisions, however, are of limited
persuasive effect. The Eleventh Circuit’s decision in Jim
Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990),
was rendered more than two decades ago, prior to the Supreme
Court’s more recent, emphatic warnings — made in its Digital
Equipment, Will, and Mohawk decisions — concerning the narrow
and limited scope of the collateral order doctrine. The Seventh
Circuit addressed the issue more recently, but resolved the
jurisdictional inquiry in a somewhat cursory fashion. See
Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 297, 300
(2012) (concluding in single paragraph that collateral order
requirements were satisfied). As a result, those decisions fail
to convince us of the proper jurisdictional course, or even
inform our analysis. Instead, we will assess for ourselves the
requirements of the collateral order doctrine and resolve the
jurisdictional question presented in this proceeding. 11
11
The dissent identifies other decisions where the two
judges in this panel’s majority argued against the creation of a
circuit split. For example, in Wachovia Bank v. Schmidt, I
dissented, arguing that the “creation of a circuit split”
concerning the corporate citizenship of national banks was
erroneous and “unwarranted.” See 388 F.3d 414, 439 (4th Cir.
2004) (King, J., dissenting). Our good dissenting colleague
(Continued)
13
1.
The collateral order doctrine first requires that a
putatively appealable order conclusively determine a disputed
question. This “most basic element” is sometimes presumed
satisfied so long as the district court (or federal agency) has
decided the matter presented on appeal. See 15A Charles Alan
Wright et al., Federal Practice and Procedure § 3911.1 (2d ed.
1992). Nonetheless, there is little justification for
authorizing an immediate appeal under the collateral order
doctrine if there is a “plain prospect” that the lower court
could alter its own ruling. See FTC v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 407 (1st Cir. 1987) (internal quotation
marks omitted). Clearly, if a court or agency expressly holds
open the possibility of reconsideration, a collateral order
appeal should not be authorized. See Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 42 (1995) (declining collateral order
jurisdiction where district court expressly “planned to
here neglects to explain that the Supreme Court ultimately
agreed with my dissent in the Wachovia Bank case, unanimously
and unceremoniously reversing the decision of the Wachovia
majority. See Wachovia Bank v. Schmidt, 546 U.S. 303 (2006).
Put simply, there is nothing wrong with creating a circuit split
when it is justified. At the end of the day, justice is served
by reaching the correct result.
14
reconsider its ruling” on qualified immunity); see also Jamison
v. Wiley, 14 F.3d 222, 230 (4th Cir. 1994) (explaining that “a
tentative and preliminary ruling . . . which plainly holds open
the prospect of reconsideration” is not subject to collateral
order jurisdiction).
Both Cobra and the Secretary, relying on the Jim Walter
Resources opinion, maintain that a Commission order awarding
temporary reinstatement is “a fully consummated decision,” with
“literally no further steps that [an operator] can take to avoid
the Commission’s order at the agency level.” See 920 F.2d at
744 (internal quotation marks omitted). Although such an
assertion might have been correct more than twenty years ago
when Jim Walter Resources was rendered, it is inaccurate today,
thanks to the tolling defense at the heart of Cobra’s petition.
Pursuant to the Commission’s 2009 ruling in its Gatlin case, a
coal operator is entitled, prior to an ALJ’s decision on the
merits, to seek modification of a temporary reinstatement award
on the basis of “a change of circumstances,” such as a
subsequent large-scale reduction-in-force. See Sec’y on behalf
of Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054
(2009). Indeed, the Commission Decision expressly acknowledged
that proposition, recognizing “the possibility that there may be
circumstances in which [the ALJ], prior to the hearing on the
15
merits, may appropriately order an intermediate hearing
regarding changed circumstances.” Commission Decision 5 n.3.
Inasmuch as an order of temporary reinstatement remains
subject to modification during the pendency of a coal miner’s
discrimination complaint, such an order can hardly be
characterized as a conclusive determination. In the volatile
coal mining industry, the prospect that a mine could be idled or
a major layoff occur provides little support for expending the
time and resources of an appellate court on tentative or non-
final agency decisions. And, as the Commission Decision
demonstrates, a ruling on temporary reinstatement can be
expressly held open for the possibility of reconsideration.
Accordingly, an interlocutory Commission ruling awarding
temporary reinstatement to a coal miner such as Ratliff fails to
satisfy the initial requirement of the collateral order
doctrine. 12
12
If an interlocutory order from which a collateral order
appeal is sought “fails to satisfy any [of the three]
requirements, it is not an immediately appealable collateral
order.” S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436, 441
(4th Cir. 2006) (internal quotation marks omitted).
Nonetheless, we are satisfied in this proceeding to also
consider the other collateral order requirements, as they are
independent alternative grounds for dismissal of Cobra’s
petition for appeal. See Dickens v. Aetna Life Ins. Co., 677
F.3d 228, 233-34 (4th Cir. 2012) (addressing all three
collateral order requirements and declining jurisdiction where
two were not satisfied).
16
2.
Second, an appealable collateral order must also “resolve
an important issue completely separate from the merits of the
action.” Will, 546 U.S. at 349. This aspect of the collateral
order doctrine has two subparts: the importance aspect and the
separability aspect. Because importance is a “more
significant[]” part of the third collateral order requirement,
we focus here on whether the issue before the Commission in
assessing a miner’s application for temporary reinstatement is
sufficiently distinct from the merits of the miner’s
discrimination claim. See Mohawk, 558 U.S. at 107.
We have consistently held “that the ‘issues raised in an
interlocutory appeal need not be identical to those to be
determined on the merits to fail under [the second] requirement;
only a threat of substantial duplication of judicial decision
making is necessary.’” Dickens v. Aetna Life Ins. Co., 677 F.3d
228, 233 (4th Cir. 2012) (alteration in original) (quoting S.C.
State Bd. of Dentistry v. FTC, 455 F.3d 436, 441 (4th Cir.
2006)). Expressed differently, “[a]n order is only ‘collateral’
to the merits of a case if it does not ‘involve considerations
that are enmeshed in the factual and legal issues comprising the
plaintiff’s cause of action.’” Bd. of Dentistry, 455 F.3d at
441 (quoting Coopers & Lybrand, 437 U.S. at 469).
17
Both Cobra and the Secretary rely on Jim Walter Resources
in maintaining that, although the temporary reinstatement
analysis “necessarily entail[s] some consideration of the
factual allegations in the miner[’s] complaint[],” it is
“conceptually distinct from a decision on the ultimate merits.”
See Jim Walter Res., 920 F.2d at 744. The substance of this
asserted distinction seems to be that “[t]he temporary
reinstatement hearing merely determine[s] whether the evidence
mustered by the [miner] to date establishe[s] that [his
complaint is] nonfrivolous, not whether there is sufficient
evidence of discrimination to justify permanent reinstatement.”
Id. As a result, the parties contend, a temporary reinstatement
order is adequately separable from the miner’s discrimination
claim itself.
The parties have substantially overstated the distinction
between temporary and permanent relief in a coal miner’s
discrimination proceeding. There is, no doubt, a different
evidentiary burden at each stage: a coal miner applying for
temporary reinstatement need not prove a prima facie case of
discrimination, but must only produce some evidence of
“protected activity, adverse action, and a nexus between the
two.” See Sec’y on behalf of Stahl v. A&K Earth Movers, Inc.,
22 FMSHRC 323, 326 (2000). Thus, an analysis under that lenient
standard differs, to some extent, from that which the ALJ must
18
undertake following a full hearing on the merits. From a
practical standpoint, however, a temporary reinstatement
analysis is simply a highly deferential look at the same basic
facts and factors that ultimately control the outcome of the
miner’s claim. Consider the Commission’s own guidance: in
reviewing an application for temporary reinstatement, “it is
useful to review the elements of a discrimination claim in order
to assess whether the evidence . . . meets the non-frivolous
test.” See Sec’y on behalf of Williamson v. CAM Mining, LLC, 31
FMSHRC 1085, 1088 (2009).
There is simply no doubt that, regardless of any
“conceptual” difference, the considerations involved in the
temporary reinstatement process are deeply enmeshed with the
factual and legal issues comprising the miner’s underlying
discrimination claim. Accordingly, an order awarding temporary
reinstatement plainly fails this aspect of the second
requirement of the collateral order doctrine.
3.
The third and final collateral order requirement is that
the order be “effectively unreviewable on appeal from a final
judgment.” Will, 546 U.S. at 349. An unreviewable order is one
that has significant and irreparable effects. See Johnson v.
Jones, 515 U.S. 304, 311 (1995) (“significant”); Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 376 (1981)
19
(“irreparable”). An order may also be unreviewable if it
“affect[s] rights that would be irretrievably lost in the
absence of an immediate appeal.” See Richardson-Merrell, Inc.
v. Koller, 472 U.S. 424, 430-31 (1985). But even such
irrevocable harm will not alone suffice to trigger collateral
order jurisdiction. See Digital Equip., 511 U.S. at 872.
Whether an order is effectively unreviewable “simply cannot be
answered without a judgment about the value of the interests
that would be lost through rigorous application of a final
judgment requirement” — i.e., an assessment of whether a
sufficiently important interest would be imperiled by our
refusal to provide an immediate appellate review. See Mohawk,
558 U.S. at 107 (internal quotation marks omitted).
Cobra maintains that the impact of the Commission Decision
on temporary reinstatement is significant and irreparable, and
that once a final judgment is entered by the Commission, the
harm to Cobra will “evaporate” and it will “effectively lose any
opportunity for a judicial hearing” of its challenge to the
decision. See Jim Walter Res., 920 F.2d at 745. 13 In our view,
13
Were we to review Cobra’s contention without considering
the importance issue, we would be ignoring Supreme Court
authority. Even when the right asserted in an appeal sought
under the collateral order doctrine would be “positively
destroyed” by postponing appellate review, the Supreme Court has
declined to exercise collateral order jurisdiction on the ground
that the right at issue was “not sufficiently important to
(Continued)
20
the central “harm” to a coal operator arising from a temporary
reinstatement order is that it must reemploy and pay the coal
miner his salary and benefits during the pendency of the
administrative proceedings on his discrimination claim. 14 The
operator’s interest implicated, therefore, is primarily an
economic one. We are thus faced with deciding whether that
economic interest is sufficiently important to demand the
protection of a collateral order appeal.
The Supreme Court has conducted its importance analysis
under the third prong of the collateral order doctrine by first
combing its precedent to identify recurring characteristics that
merit collateral order appealability, and then comparing those
characteristics to the proceeding at hand. See Will, 546 U.S.
overcome the policies militating against interlocutory appeals.”
See Lauro Lines, 490 U.S. at 502-03 (Scalia, J., concurring)
(“to make express what seems . . . implicit” in majority’s
rejection of collateral order jurisdiction over appeal involving
contractual “right not to be sued” in particular forum).
14
The dissent suggests that collateral order jurisdiction
is justified by the possibility that a coal operator will
sustain substantial non-economic harm as a result of being
forced to reinstate a potentially disruptive employee. This
assertion is utterly unpersuasive and entirely speculative, in
that the miner’s reinstatement does not immunize him from the
consequences of his future misbehavior. Any legitimate
misconduct by a reinstated miner unrelated to whistleblowing
activities may justify his dismissal anew. Moreover, as was the
case here, the coal operator and the miner may well enter into
an agreement where the miner is economically — but not
physically — reinstated. See J.A. 228-31.
21
350-54. In Will, the Court examined four of its prior decisions
where the interests at issue were found sufficiently important
to satisfy the “effectively unreviewable” requirement. See id.In Nixon v. Fitzgerald, involving Presidential immunity, the
Court recognized collateral order jurisdiction and identified
“compelling public ends” that were “rooted in the constitutional
tradition of the separation of powers.” See 457 U.S. 731, 758,
770 (1982). In Mitchell v. Forsyth, 472 U.S. 511 (1985), where
an order denying qualified immunity to the Attorney General was
at issue, the Court held that the denial of such immunity was
subject to a collateral order appeal, and “spoke of the
threatened disruption of governmental functions, and fear of
inhibiting able people from exercising discretion in public
service.” See Will, 546 U.S. at 352. The importance of a
State’s dignitary interests steered the analysis of the Eleventh
Amendment immunity question in Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), where
the Court determined that collateral order jurisdiction was
properly invoked. And the double jeopardy claim presented in a
pretrial appeal justified the application of collateral order
jurisdiction in Abney v. United States. See 431 U.S. 651(1977). The common thread in those cases, according to the
22
Court, was a “particular value of a high order,” or a
“substantial public interest.” Will, at 352-53. 15
On the other hand, the Supreme Court has declined to
exercise collateral order jurisdiction in putative appeals
involving, inter alia: a pretrial discovery order that rejected
a claim of attorney-client privilege (Mohawk); a pretrial order
rejecting application of the Federal Tort Claims Act’s judgment
bar (Will); and a court order declining to enforce a settlement
agreement in a trademark case (Digital Equipment). In each of
these decisions, the Court agreed that the interest at stake,
although “important in the abstract,” failed to justify the cost
of expanding the categories of decisions that are appealable
under the collateral order doctrine. See Mohawk, 558 U.S. at
108.
15
The dissent criticizes the panel majority’s analysis of
the collateral order doctrine’s importance requirement,
asserting that we are simply “cataloguing cases.” Post at 42.
The dissent supports its point, ironically enough, with its own
catalog of cases. See post at 42-43. A striking distinction
between the two catalogs is that the dissent’s begins in 1974
and goes back in time to what seems to have been a more
permissive jurisdictional era. Our analysis, on the other hand,
subscribes fully to the Supreme Court’s more recent precedents,
and their narrowing trend concerning application of the
collateral order doctrine. In our view, we are obliged to
carefully adhere to the Court’s persistent admonitions that a
court of appeals should avoid creating new categories of
interlocutory appeals under the collateral order doctrine.
23
In sum, a coal operator’s financial interest in avoiding
wage payments to a reinstated miner who returns to his job in
the coal mines pales in comparison to those interests that have
been deemed sufficiently important to give rise to collateral
order jurisdiction. Frankly, a coal operator’s economic
interests do not begin to approach the importance of several
interests — such as the attorney-client privilege — that the
Supreme Court has deemed insufficient. We readily recognize, of
course, that economic harm suffered by a coal operator may
sometimes be “imperfectly reparable” on final order review. The
collateral order doctrine, however, requires a great deal more.
See Mohawk, 558 U.S. 107. In these circumstances, we are unable
to conclude that failing to apply the collateral order doctrine
to an administrative order temporarily reinstating a coal miner
to his job would imperil a “particular value of a high order” or
a “substantial public interest.” See Will, 546 U.S. at 352-53.
Accordingly, the Commission Decision also fails to satisfy the
third and final collateral order requirement.
III.
Pursuant to the foregoing, the collateral order doctrine
does not permit an interlocutory review of the proceedings
24
below. We are therefore bereft of jurisdiction and must dismiss
Cobra’s petition for review.
PETITION FOR REVIEW DISMISSED
25
AGEE, Circuit Judge, dissenting:
I respectfully dissent because we have jurisdiction to
consider Cobra’s petition for review. Therefore, I would decide
this case on its merits and remand to the Commission for further
proceedings.
I.
The majority first addresses the collateral order doctrine
to find a lack of jurisdiction for appellate review. However,
under settled principles regarding administrative agency
decisions, the Commission’s order is a final, reviewable order,
which affords us jurisdiction to hear and decide the petition
for review.
The Mine Act gives us jurisdiction to hear appeals from the
Commission’s orders, so we must look first to the plain text of
that statute. See Blitz v. Napolitano, 700 F.3d 733, 740 (4th
Cir. 2012) (examining the statute’s plain text to determine
jurisdiction over administrative appeal). “Any person adversely
affected or aggrieved by an order of the Commission under [the
Mine Act]” may obtain review. 30 U.S.C. § 816. We have held
that the statute affords us jurisdiction only over “final”
orders from the Commission. See Eagle Energy, Inc. v. Sec’y of
Labor, 240 F.3d 319, 323 (4th Cir. 2001).
26
Without question, the Commission issued an “order” in this
case. Our task is to determine whether that order qualifies as
“final,” so as to establish our authority to review it under
Section 816.
To determine whether an agency’s action warrants review as
a “final order,” we ask two questions. 1 First, we consider
whether the decision “mark[s] the consummation of the agency’s
decisionmaking process.” Golden & Zimmerman, LLC v. Domenech,
599 F.3d 426, 432 (4th Cir. 2010) (emphasis omitted). Second,
we examine whether the “action [is] one by which rights or
obligations have been determined or from which legal
consequences will flow.” Id. (emphasis omitted). In some
instances, we have rephrased these two questions as four: “(1)
is the agency action a definitive statement of the agency’s
position; (2) does the action have direct and immediate legal
force requiring parties’ immediate compliance with the agency’s
pronouncement; (3) do the challenges to the agency’s actions
involve legal issues fit for judicial resolution; and (4) would
immediate judicial review speed enforcement and promote judicial
1
We use these factors most often in Administrative
Procedure Act cases, which involve review of “final agency
action.” But the principles apply to “final orders” as well.
See, e.g., U.S. W. Commc’ns, Inc. v. Hamilton, 224 F.3d 1049,
1054-55 (9th Cir. 2000); Meredith v. FMSHRC, 177 F.3d 1042, 1047
(D.C. Cir. 1999).
27
efficiency?” Flue-Cured Tobacco Coop. Stabilization Corp. v.
EPA, 313 F.3d 852, 858 (4th Cir. 2002). 2
When these questions are asked and answered, our
traditional administrative finality standards show that we have
jurisdiction over Cobra’s appeal of the temporary reinstatement
order. 3
A.
The Commission’s order marks the end of the decisionmaking
process for purposes of the temporary reinstatement issue.
Nothing more is before the Commission regarding that order, and
2
We do not consider two factors. First, “[a] final order
need not necessarily be the very last order. Courts often
review agency orders issued pending further proceedings
especially where, as here, the agency’s action/inaction could
not be challenged in any subsequent proceeding.” NetCoalition
v. SEC, 715 F.3d 342, 351 (D.C. Cir. 2013) (internal marks and
citations omitted). Second, we focus “not on the label attached
to the action[,] but on the nature of the action.” 1000 Friends
of Md. v. Browner, 265 F.3d 216, 224 (4th Cir. 2001).
3
In considering its jurisdiction to hear a petition for
review from a Mine Act temporary reinstatement order, the
Eleventh Circuit noted that such orders are likely final and
reviewable. See Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738,
744 (11th Cir. 1990) (“Thus, the policies that underlie the
provision for review of district court orders affecting
preliminary injunctive relief in 28 U.S.C. § 1292(a)(1) are
applicable here and suggest that temporary reinstatement orders
should be reviewable.”). Ultimately, that court did not decide
the issue because the collateral order doctrine “directly”
granted the court jurisdiction even if the order under review
were not otherwise deemed “final.” Id.28
Cobra cannot take any further steps within the administrative
process to challenge it. See Monterey Coal Co. v. FMSHRC, 635
F.2d 291, 293 (4th Cir. 1980) (relying in part on party’s
failure to “exhaust[] its administrative remedies” in finding
that Mine Act order was not a reviewable “final order”). 4
The majority notes that the Commission observed that Cobra
might seek relief from the reinstatement order if circumstances
were to change. Then, the majority posits that the “volatile”
mining industry could provide such changed circumstances, and,
therefore, the temporary reinstatement order cannot be “final”
in a jurisdictional sense.
This prospect of reconsideration does not render the
Commission’s order non-final because it is so inherently
4
Contrary to the majority’s characterization, Monterey Coal
does not decide the finality issue. In that case, we held that
an order of the Commission remanding to the ALJ was not a final,
reviewable order. Monterey Coal, 635 F.2d at 292-93. We
reached that decision because the challenged order was only a
“preliminary step in the final disposition of this case on its
merits.” Id. at 293. In contrast, the temporary reinstatement
order at issue here stands separate and apart from the merits of
the case. Although the length of the reinstatement period is
affected by the ultimate outcome of the case, the temporary
reinstatement order itself has no substantive impact on the
ultimate disposition. And, importantly, in Monterey Coal, the
subject of the ALJ order would have been fully reviewable in a
final Commission order. The direct opposite is the case here,
as the payment and employment actions under the temporary
reinstatement order cannot be reversed by a final order on the
merits for the period of time covered by the temporary
reinstatement order. Therefore, the order here cannot be the
type of “preliminary step” addressed in Monterey Coal.
29
speculative. Further, the prospect finds no support in the
record. The Commission recognized its power to reconsider in
limited circumstances, but did not announce any intention to
actually exercise that power in this case. And importantly,
courts generally will review a decision even if unknown future
changed circumstances could affect it. See, e.g., Wis. Pub.
Power, Inc. v. FERC, 493 F.3d 239, 266 (D.C. Cir. 2007); City of
Tacoma, Wash. v. FERC, 331 F.3d 106, 113 (D.C. Cir. 2003);
Sierra Club v. U.S. Nuclear Regulatory Comm’n, 862 F.2d 222, 225
(9th Cir. 1988). Were it otherwise, the possibility of
reconsideration would defeat our jurisdiction in most every
case, agency and non-agency cases alike. For example, in cases
appealed from federal district court, the district court can
often revisit the order under review -- perhaps after a party
moves for relief under Federal Rules of Civil Procedure 59 or
60. However, we have never allowed that speculative possibility
to defeat our jurisdiction to review an otherwise final order.
B.
The Commission’s order also has a direct and immediate
effect because Cobra must allow Ratliff to go back to work now.
There is no intermediate or additional step that would delay the
full force and effect of the temporary reinstatement order.
Indeed, at least one court has compared the temporary
30
reinstatement order to a preliminary injunction. See Jim Walter
Res., 920 F.2d at 744. This close relationship between the
temporary reinstatement order and a preliminary injunction might
sustain jurisdiction in and of itself. See, e.g., Shoreham-
Wading River Cent. Sch. Dist. v. U.S. Nuclear Regulatory Comm’n,
931 F.2d 102, 105 (D.C. Cir. 1991); Massachusetts v. U.S.
Nuclear Regulatory Comm’n, 924 F.2d 311, 322 (D.C. Cir. 1991);
Nev. Airlines, Inc. v. Bond, 622 F.2d 1017, 1020 & n.5 (9th Cir.
1980).
C.
Third, this appeal presents legal issues that courts can
resolve. One issue presents a straightforward legal question
about the burden of proof. The other constitutes a common
substantial evidence challenge. See, e.g., NLRB v. M&B Headwear
Co., 349 F.2d 170, 171 (4th Cir. 1965) (stating that a
“substantial evidence” challenge presented a “familiar
question”). We do not improvidently trespass upon the agency’s
province when it comes to legal questions like these, especially
when, as here, the agency concedes that we possess jurisdiction
and asks us to hear the appeal on its merits. See 16 Charles
Alan Wright, et al., Federal Practice and Procedure § 3942 (2d
ed. 2013 supp.) (“If . . . the agency itself desires present
review, there is little need for concern that review is a
31
judicial intrusion into the agency’s capacity to manage the
course of its own proceedings.”).
D.
Finally, immediate review would speed enforcement and
promote judicial efficiency. Exercising review would not slow
Ratliff’s benefits because he has received those benefits from
the time the ALJ entered his order; however, an immediate appeal
would hasten review of alleged errors in the administrative
process. That review would bring certainty to a standard that
the Commission now employs in other temporary reinstatement
cases. See, e.g., Sec’y of Labor ex rel. Rodriguez v. C.R.
Meyer & Sons Co., No. 2013-618-DM, 2013 WL 2146640, at *3-4
(F.M.S.H.R.C. May 10, 2013).
Immediate review would also avoid creating an unreviewable
harm. Cobra’s claims will be unreviewable absent immediate
appeal because the issue of temporary reinstatement will be moot
by the time the parties resolve the full merits proceeding. As
a result, we will never review the Commission’s use of the
temporary reinstatement standards. That administrative immunity
conflicts with the “‘strong presumption’ in favor of judicial
review of agency action.” Speed Mining, Inc. v. FMSHRC, 528
F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of
Family Physicians, 476 U.S. 667, 670 (1986)).
32
By refusing to review these kinds of orders, we will cause
irreparable harm to both sides. A mine operator will have no
opportunity to seek review should the Commission order the
operator to pay wages to a miner not entitled to them. The
operator will never obtain reimbursement of those wages, no
matter how wrong or irresponsible an erroneous decision was to
award them. As counsel for the Secretary conceded, no procedure
exists that allows an operator to recoup wages paid to a
temporarily reinstated miner for all periods before a final
merits decision. Although the majority labels this harm
“economic” or “financial,” “[a] threat of economic injury has
always been regarded as sufficient . . . for the purpose of
finding an order final and reviewable.” Envtl. Defense Fund,
Inc. v. Ruckelshaus, 439 F.2d 584, 592 (D.C. Cir. 1971); see
also Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 197
F.3d 448, 452 (10th Cir. 1999) (“Our inquiry into harm takes
into account financial . . . consequences flowing from the
agency action.”).
An operator’s harm stems not just from the wages paid.
Without an immediate appeal, mine operators will also have no
way to cope with erroneous decisions that could disrupt the
workplace. In the present case, for instance, the ALJ and
Commission forced Cobra to reinstate a miner at full pay who
allegedly engaged in disruptive acts such as fighting and
33
yelling profanity. Reinstating that kind of an employee can
damage the workplace. 5 See, e.g., NLRB v. Longview Furniture
Co., 206 F.2d 274, 275-76 (4th Cir. 1953) (describing the
disruptive effect of a court order that forces an employer to
reinstate an employee who has “use[d] profane and indecent
language”). Despite this harm, a mine operator now has no
judicial remedy to correct a mistaken agency decision below.
Furthermore, a miner’s appeal from an adverse decision on
temporary reinstatement will also now be foreclosed because the
mine operator and the miner share equal appeal rights. See,
e.g., Meredith, 177 F.3d at 1048 (explaining that Mine Act’s
review provision would apply identically to all persons, as the
legislative history counseled a uniform approach). A future
miner could very well suffer irreparable harm from not receiving
needed wages in the interim period before a final merits
decision. Moreover, as the Secretary has warned, that harm
could defeat the Mine Act’s enforcement mechanisms and, in turn,
the Congressional intent in adopting this legislation. See S.
Rep. No. 95-181, at 37 (1977) (“[T]emporary reinstatement is an
5
This disruption stems not just from the potential that the
employee will repeat his conduct in the future, but also from
the actual act of reinstating him in the first instance. See
Longview Furniture, 206 F.2d at 276 (“The employment of persons
who have been guilty of such conduct toward their fellow
employees has a disruptive effect on the employer’s business as
a result of the feelings and antagonisms thereby engendered.”).
34
essential protection for complaining miners who may not be in
the financial position to suffer even a short period of
unemployment or reduced income pending resolution of the
discrimination complaint.”).
E.
The Seventh Circuit’s decision in Finer Foods, Inc. v.
United States Department of Agriculture, 274 F.3d 1137 (7th Cir.
2001), represents in an analogous agency setting the resolution
of the jurisdictional issue using the same inquiry just
completed. In Finer Foods, the court faced an appeal from (a)
an administrative order, (b) implementing immediate injunctive
relief, (c) against a private party, (d) pending an agency
investigation and proceedings, (e) for an alleged statutory
violation. The agency there contended that the court could not
review the order because the agency had not completed all its
proceedings related to the violation underlying the immediate
relief. Id. at 1139. The Seventh Circuit deemed the agency’s
argument “frivolous” and said it was “surprised and
disappointed” to see the argument made at all. Id. at 1138-39.
We could, and should, end the jurisdictional analysis here,
as the temporary reinstatement order at issue is, under settled
administrative agency jurisprudence, a final order for purposes
of appeal. The majority, however, looks to the collateral order
35
doctrine. Because the Commission’s order is reviewable on
appeal even under the collateral order doctrine, I address that
issue as well.
II.
The collateral order doctrine describes “that small class
[of decisions] which finally determine claims of right separable
from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until
the whole case is adjudicated.” Al Shimari v. CACI Int’l, Inc.,
679 F.3d 205, 213 (4th Cir. 2012). To qualify as a collateral
order under § 1291, a district court decision must “‘[1]
conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the
action, and [3] be effectively unreviewable on appeal from a
final judgment.’” 6 Dickens v. Aetna Life Ins. Co., 677 F.3d 228,
233 (4th Cir. 2012) (quoting Will v. Hallock, 546 U.S. 345, 349
6
The Supreme Court has applied these factors in cases
favored by the majority. See Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 106 (2009); Will, 546 U.S. at 349; Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994).
Therefore, faithful adherence to the three-factor test ensures
that the doctrine is used in only narrow circumstances. That
narrow application in turn respects the Supreme Court’s recent
admonitions to apply the doctrine sparingly.
36
(2006)). Some of these factors overlap with the questions just
asked and answered in the administrative finality inquiry.
As in the administrative finality context, the collateral
order factors indicate that we have jurisdiction. The only two
other circuit courts of appeal to have considered the issue
reached the same conclusion. 7 See Vulcan Constr. Materials, L.P.
v. FMSHRC, 700 F.3d 297, 300 (7th Cir. 2012); Jim Walter Res.,
Inc., 920 F.2d at 744-45.
A.
First, the Commission’s order here conclusively resolved
the issue. Nothing more is to be done before the agency and no
further issues pertaining to temporary reinstatement remain to
be resolved by it. The temporary reinstatement order is a final
and complete agency disposition of the discrete controversy
before it. Accord Vulcan Constr. Materials, 700 F.3d at 300;
Jim Walter Res., Inc., 920 F.2d at 743.
The majority treats the order as inconclusive because the
potential for changed circumstances might allow the Commission
7
Though two courts addressed this issue directly, a third
court heard an appeal from a temporary reinstatement order
without commenting on jurisdiction. See N. Fork Coal Corp. v.
FMSHRC, 691 F.3d 735 (6th Cir. 2012). We should not “disregard
the implications of an exercise of judicial authority assumed to
be proper in previous cases.” Washlefske v. Winston, 234 F.3d
179, 183 (4th Cir. 2000) (internal marks omitted).
37
to reopen the issue. Nevertheless, an order can be conclusive
even if there is some possibility that the tribunal below will
reconsider. See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 12-13 (1983); accord United States v.
Ochoa-Vasquez, 428 F.3d 1015, 1025 n.7 (11th Cir. 2005); Burns
v. Walter, 931 F.2d 140, 145 (1st Cir. 1991); Ortho Pharm. Corp.
v. Sona Distribs., 847 F.2d 1512, 1515 (11th Cir. 1988); In re
Gen. Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1118
(7th Cir. 1979); see also 15A Charles Alan Wright, et al.,
Federal Practice and Procedure § 3911 (2d ed. 2013 supp.) (“The
bare fact that the court has power to change its ruling,
however, does not preclude review. It is enough that no further
consideration is contemplated.”).
A possibility of reconsideration presents a different
situation than those described in other decisions -- like those
that the majority cites –- that deemed orders inconclusive. In
those cases, the decisionmakers expressly indicated that they
would revisit the matter later, regardless of whether
circumstances changed before that later reconsideration. See,
e.g., Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)
(“The District Court planned to consider its ruling . . . before
the case went to the jury.”); Jamison v. Wiley, 14 F.3d 222, 230
(4th Cir. 1994) (finding order inconclusive where district court
“made clear that its decision . . . was a tentative one, made
38
only to return things to the status quo . . ., and that it might
well change its mind . . . after the evidentiary hearing”). In
contrast, neither the ALJ nor the Commission indicated a plan to
return to this issue in Ratliff’s case. The ALJ spoke in
unequivocal terms and ordered Cobra to provide “immediate
reinstatement” to Ratliff.
B.
The Commission’s order also stands separate from the
merits. The seminal collateral order doctrine case, Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949),
explained that an order is “separate” if it “did not make any
step toward final disposition of the merits of the case and will
not be merged in final judgment.” Id.The Commission’s temporary reinstatement decision has no
bearing on the later steps in resolving Ratliff’s employment
status; the case will proceed regardless of whether the miner is
reinstated. On the merits, the case below can continue during
the pendency of this appeal because nothing decided in
adjudicating temporary reinstatement will affect the merits
decision. That ability to continue indicates that the order
under review is “collateral.” See Johnson v. Jones, 515 U.S.
304, 311 (1995).
39
The temporary reinstatement order does not merge with the
final order on Ratliff’s status because any issues related to
the temporary order would be effectively moot by that point.
The mine operator cannot then recover any erroneously awarded
wages, nor cure the workplace disruption that the reinstated
miner caused. Cf. Palmer v. City of Chicago, 806 F.2d 1316,
1319 (7th Cir. 1986) (noting that irreparable harm would result
if party did not receive immediate review of fee award, as fees
could “disappear into insolvent hands”). Conversely, the miner
erroneously denied temporary reinstatement cannot overcome his
financial vulnerability occurring before an eventual final
reinstatement order on the merits. See, e.g., Edwards v.
Director, Office of Workers’ Comp. Programs, 932 F.2d 1325,
1327-28 (9th Cir. 1991) (holding that statute’s anticipation of
immediate relief for financial vulnerable worker called for
collateral order review of order denying that relief); Rivere v.
Offshore Painting Contractors, 872 F.2d 1187, 1190 (5th Cir.
1989) (same).
The majority believes the Commission’s order is not
separate because we must consider some of the same facts at this
stage as we would at the merits stage. However, the Supreme
Court accepts some “factual overlap” in the collateral order
context. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 528-29
(1985) (“[T]he Court has recognized that a question of immunity
40
is separate from the merits of the underlying action for
purposes of the Cohen test even though a reviewing court must
consider the plaintiff’s factual allegations in resolving the
immunity issue.”). Double jeopardy and qualified immunity
collateral appeals most always involve a consideration of many
of the same facts that would be determinative on the merits, yet
we hear those cases nonetheless. Id. at 529 n.10. Likewise,
when a Congressman wished to appeal an order denying him the
protection of the Constitution’s Speech and Debate Clause, the
Supreme Court explained that he should have invoked the
collateral order doctrine. Helstoski v. Meanor, 442 U.S. 500,
508 (1979). The Court did so even though the Congressman’s
defense would necessarily require the Court to consider some of
the same facts in the underlying case, including the nature of
the acts for which the Congressman faced potential criminal
liability. If the Supreme Court wished to avoid any
consideration of any of the facts going to the underlying
dispute, it would not have applied the collateral order doctrine
in such cases.
C.
Finally, this case involves unreviewable and important
interests. An interest is “important” if it is “weightier than
the societal interests advanced by the ordinary operation of
41
final judgment principles.” Digital Equip. Corp., 511 U.S. at
879. The interests implicated by this case are appropriately
recognized as important.
A mine operator appeals a temporary reinstatement order
because it faces the prospect of paying unjustified money to a
miner, reinstating a problematic worker, or facing legally
unsustainable procedures below. Where the miner appeals, 8 he
wishes to vindicate his right to much-needed contemporary
payment and a fair process below. If a miner doubts that an ALJ
will order his immediate reinstatement after an employer
retaliatorily terminates him, then the miner will hesitate to
make safety complaints and risk termination.
Thus, a Mine Act temporary reinstatement appeal raises
important systemic issues about the balance between aggressive
safety enforcement, which supports reinstatement, and the rights
of the employer to define its workforce, which may
counterbalance reinstatement. The Supreme Court has observed
that “[w]here statutory . . . rights are concerned,
irretrievable loss can hardly be trivial.” Digital Equip.
Corp., 511 U.S. at 879 (internal marks omitted).
8
We must consider the interests of the miner in a temporary
reinstatement proceeding because the Supreme Court has
instructed us to look to “the entire category [of cases] to
which a claim belongs.” Digital Equip. Corp., 511 U.S. at 868.
42
In contrast, the interests that normally counsel for
deferred review are not as strong. The underlying case is not
delayed by resolution of the temporary reinstatement order
appeal. Review does not impose significant costs. In so much
as the temporary reinstatement decision has no impact on the
later stages of Ratliff’s case, our decision cannot be expected
to create incoherence in the proceedings. And our decision will
impact this case and future cases like it.
The majority evaluates the interests at stake in this case
by comparing them to a catalog of previous collateral order
doctrine cases. Cataloguing cases presents an inadequate
measure of “importance,” as is well illustrated by noting the
number of collateral order cases that the majority neglected to
examine and which permitted appellate review. Indeed, several
Supreme Court cases applied the collateral order doctrine to
review collateral orders of arguably less importance than the
case at bar. 9 See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 172 (1974) (order that 90% of class action notice costs be
9
To list such cases is not to suggest that cataloguing is
the right approach. This list reveals the deficiencies in the
majority’s application of its chosen approach even assuming that
the approach were the correct one. And though the majority
feels these cases are too old to consider, “[l]ower courts have
repeatedly been warned about the impropriety of preemptively
overturning Supreme Court precedent.” West v. Anne Arundel
Cnty., 137 F.3d 752, 760 (4th Cir. 1998). We must account for
these cases given that they remain good law.
43
imposed on one party); Brown Shoe Co. v. United States, 370 U.S.
294, 309 (1962) (order contemplating future divestiture in
antirust action); Stack v. Boyle, 342 U.S. 1, 4 (1951) (order on
motion for reduction of bail); Swift & Co. Packers v. Compania
Columbiana Del Carbie, S.A., 339 U.S. 684, 689 (1950) (order
dissolving attachment of naval vessel); Cohen, 337 U.S. at 546(order declining to compel plaintiff in derivative action to
post a bond). These cases often involved “financial interests,”
and we have also applied the collateral order doctrine in cases
involving such interests. See, e.g., In re Looney, 823 F.2d
788, 791 (4th Cir. 1987) (applying collateral order doctrine to
order extending automatic stay in bankruptcy case).
The majority cites the issue of attorney-client privilege
as an example of a “more important” issue that the Supreme Court
has declined to consider under the collateral order doctrine.
However, the Supreme Court did not reject collateral review of
attorney-client privilege-related orders because those orders
were unimportant. Instead, the attorney-client privilege order
was not immediately appealable because the aggrieved party had a
variety of other options available by which it could safeguard
its rights. 10 See Mohawk Indus., 558 U.S. at 108 (“Because . . .
10
A post-judgment appeal, for instance, could remedy the
effect of an improper disclosure at trial by “vacating an
adverse judgment and remanding for a new trial.” Mohawk Indus.,
(Continued)
44
collateral order appeals are not necessary to ensure effective
review of orders adverse to the attorney-client privilege, we do
not decide whether the other Cohen requirements are met.”); see
also id. at 117 (Thomas J., concurring) (“[T]he Court’s Cohen
analysis does not rest on the privilege order’s relative
unimportance[.]”). Mohawk Industries and the attorney-client
privilege, then, do not offer an appropriate comparison. 11
Inc., 558 U.S. at 109. Alternatively, a party who opposes
disclosure could ask for an immediate appeal under 28 U.S.C.
§ 1292(b). Id. Or it could employ the extraordinary writ of
mandamus. Id. None of these options is available to a party
involved in a temporary reinstatement proceeding.
11
The two other “importance” cases cited by the majority
are inapposite. Will, 546 U.S. at 354-55, dealt with a
statutory judgment defense analogous to res judicata. The Court
found that this defense presented no special need for immediate
appeal. An order on a routine defense may be easily
distinguished from the immediate, injunctive nature of the
Commission’s temporary reinstatement order here. In Digital
Equipment Corp., 511 U.S. at 869, the Court declared that a
right embodied in a privately negotiated settlement agreement
was not important enough to justify immediate appeal. But the
rights and interests implicated in this appeal are rights rooted
in a Congressionally enacted statute; those rights could be
irretrievably lost absent immediate review. “Where statutory
and constitutional rights are concerned, ‘irretrievabl[e]
los[s]’ can hardly be trivial, and the collateral order doctrine
might therefore be understood as reflecting the familiar
principle of statutory construction that, when possible, courts
should construe statutes (here § 1291) to foster harmony with
other statutory and constitutional law.” Id. at 879.
45
D.
In view of the foregoing, all the factors in a collateral
order doctrine analysis support jurisdiction in the case at bar.
I see no basis that merits a circuit split on this issue,
especially given that we have warned of the danger of creating
circuit splits on matters related to federal rights. See Nat’l
Treasury Emps. Union v. FLRB, 737 F.3d 273, 280 (4th Cir. 2013)
(“[T]here would be costs in this area to holding differently and
creating a circuit split.”).
The majority panel has previously recognized the dissonance
caused by creating such circuit splits. See, e.g., United
States v. Hashime, 722 F.3d 572, 573 (4th Cir. 2013) (Gregory,
J., concurring in denial of hearing en banc) (criticizing prior
precedent for “creating an oft-dreaded circuit split”); Wachovia
Bank v. Schmidt, 388 F.3d 414, 439 (4th Cir. 2004) (King, J.,
dissenting) (stating that the “creation of a circuit split” on a
jurisdictional issue was “unwarranted”), rev’d, 546 U.S. 303(2006).
III.
Having found jurisdiction, I would remand this matter to
the Commission, whose decision below deviated from earlier
Commission precedent without adequately articulating a basis for
doing so. Furthermore, the Commission appeared to apply a new
46
burden of proof, in the midst of adjudicatory proceedings,
without allowing the parties to adjust their case to meet that
after-the-fact burden of proof.
A.
The Commission appears to have applied a new standard of
proof to Cobra’s economic tolling defense. In earlier
Commission cases, “[t]he Commission ha[d] recognized that the
occurrence of certain events, such as a layoff for economic
reasons, may toll an operator’s [temporary] reinstatement
obligation.” Sec’y of Labor ex rel. Gatlin v. KenAmerican Res.,
Inc., 31 F.M.S.H.R.C. 1050, 1054 (2009). Mine operators had the
burden to establish this tolling defense by a preponderance of
the evidence. Id. at 1055. Before the ALJ, both parties and
the ALJ relied on the preponderance standard. The parties
continued to rely on that standard before the Commission.
Nevertheless, the Commission’s decision announced a new and
unexplained burden of proof. Now, a mine operator must show
that it is “frivolous” to say that the subsequent economic
condition itself was discriminatory. (J.A. 238-39.)
The Commission may change its benchmark and apply new
standards to the tolling defense. See NLRB v. Balt. Transit
Co., 140 F.2d 51, 55 (4th Cir. 1944) (“[A]n administrative
agency, charged with the protection of the public interest, is
47
certainly not precluded from taking appropriate action . . .
because of a mistaken action on its part in the past.”). An
agency’s change in position “does not . . . require greater
justification than the agency’s initial decision” in every case.
Phillip Morris USA, Inc. v. Vilsack, 736 F.3d 284, 290 (4th Cir.
2013). It may be, for instance, that circumstances have changed
since the agency last decided the issue and a bona fide
rationale exists for the new standard. See In re Permian Basin
Area Rate Cases, 390 U.S. 747, 784 (1968) (“[A]dministrative
authorities must be permitted . . . to adapt their rules and
policies to the demands of changing circumstances.”).
However, because changes to existing standards must result
from reasoned judgment, the agency must explain a change in
course well enough for us to be sure “that such a change in
course was made as a genuine exercise of the agency’s judgment.”
Phillip Morris USA, 736 F.3d at 290. “An agency may not . . .
depart from a prior policy sub silentio or simply disregard
rules that are still on the books. And of course the agency
must show that there are good reasons for the new policy.” See
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)
(internal citation omitted). An agency also might need to
provide a fuller explanation if “its new policy rests upon
factual findings that contradict those which underlay its prior
policy.” Id. at 515-16. Even if the agency delineates its
48
change-of-course in some rudimentary way, we will still find the
change inadequately explained if “its explanation is so unclear
or contradictory that we are left in doubt as to the reason for
the change in direction.” Robles-Urrea v. Holder, 678 F.3d 702,
710 n.6 (9th Cir. 2012); see also Mfrs. Ry. Co. v. Surface
Transp. Bd., 676 F.3d 1094, 1096 (D.C. Cir. 2012) (explaining an
agency must “persuasively” distinguish precedents).
The Commission did not acknowledge or uphold these
responsibilities while shifting course in this case. The
Commission’s decision references its previous preponderance
standard, but then constructs a new standard that pertains to
the “objectivity” of the layoff. (J.A. 240.) The Commission at
least should explain why that objectivity warrants a higher
burden of proof and justified a sharp turn from the existing
precedent in Gatlin.
The Commission’s inadequately explained decision cannot be
saved by embracing “post hoc rationalizations” for it. See,
e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983) (“[C]ourts may not accept appellate
counsel’s post hoc rationalizations for agency action”). In
defense of the Commission’s decision, for instance, the
Secretary distinguishes between the procedural posture of this
case and Gatlin. But if the procedural posture provides the
basis for the Commission’s new test, then the Commission should
49
state that basis and explain why it proves persuasive. The
Commission’s decision says nothing about different burdens at
different stages, so we cannot uphold it on that rationale.
“[A]n agency’s action may not be upheld on grounds other than
those relied upon by the agency in the actual course of its
decisionmaking.” Nat’l Elec. Mfrs. Ass’n v. U.S. Dep’t of
Energy, 654 F.3d 496, 513 (4th Cir. 2011).
Because the Commission’s explanation does not indicate that
it exercised reasoned judgment in changing course, I would
remand the matter to the Commission and instruct it to explain
its reasoning further.
B.
Remand for a further explanation does not cure the
inadequacies in the process below. For that reason, I would
also instruct the Commission to take an additional step. Once
the Commission has explained the new standard -- with sufficient
clarity for all parties to understand what must be proven and
how it must be proven -- the Commission must then remand to the
ALJ for further proceedings under the new standard. This remand
is necessary because the Commission’s midstream change of course
50
deprived Cobra of the basic due process of notice of the current
standard and the opportunity to be heard under that standard. 12
“[A]n agency is not precluded from announcing new
principles in an adjudicative proceeding and . . . the choice
between rulemaking and adjudication lies in the first instance
within the agency’s discretion.” Yanez-Popp v. INS, 998 F.2d
231, 236 (4th Cir. 1993) (internal marks omitted) (quoting NLRB
v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294
(1974)). Thus, an agency can retroactively apply a rule
announced in adjudication in the proper circumstances. SEC v.
Chenery Corp., 332 U.S. 194, 203 (1937) (“That such action might
have a retroactive effect was not necessarily fatal to its
validity.”).
Notwithstanding its adjudicatory power, an agency should
tread carefully when changing the standards defining an
adjudicatory process in the midst of that very process.
Significant due process concerns develop if an agency does not
permit a litigant to offer evidence and argument bearing on the
new standard. See, e.g., Consol. Edison Co. of N.Y., Inc. v.
Fed. Energy Regulatory Comm’n, 315 F.3d 316, 323 (D.C. Cir.
12
If, after further considering its approach, the
Commission decides to retain its previous Gatlin standard, then
no remand to the ALJ would be necessary. In that circumstance,
the Commission would decide the issue as it was originally
submitted.
51
2003); P.R. Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 607 (1st
Cir. 1994); Aero Mayflower Transit Co., Inc. v. Interstate
Commerce Comm’n, 699 F.2d 938, 942 (7th Cir. 1983); Port
Terminal R.R. Ass’n v. United States, 551 F.2d 1336, 1345 (5th
Cir. 1977); Hill v. Fed. Power Comm’n, 335 F.2d 355, 356 (5th
Cir. 1964).
Two cases provide clear illustrations of the problems that
may occur -- and the denial of due process that may result --
when the agency changes the burden of proof in the middle of the
proceeding.
First, in Woodward v. DOJ, 598 F.3d 1311 (Fed. Cir. 2010),
the Board of Justice Assistance adopted a new burden of proof in
the midst of the petitioners’ appeal seeking death benefits.
The shift “changed the burden of proof from a lenient standard
resolving any reasonable doubt in favor of the claimant to the
more stringent standard requiring that a claimant prove all
material issues by a ‘more likely than not’ standard.” Id. at
1315. The petitioners then “had no opportunity to introduce
additional evidence to satisfy the heightened burden of proof.”
Id. Because the Board “changed Petitioners’ burden of proof
during the course of their appeal,” the Court remanded. Id.In Hatch v. FERC, 654 F.2d 825 (D.C. Cir. 1981), the
petitioner contended that the Federal Energy Regulatory
Commission improperly adopted, “after the close of the
52
evidentiary hearing, . . . a new legal standard of proof, which
he was given no opportunity to meet.” Id. at 826. Just as in
Woodward, the court in Hatch noted that agencies must generally
provide notice of a change in the burden of proof and an
opportunity to submit evidence under the new burden. Id. at
835. The D.C. Circuit indicated that an agency might avoid this
general rule if (1) actual notice existed at the time of the
initial hearing; or (2) the burden only changed the legal
significance of evidence that the parties already submitted.
Id. “But when . . . the change is a qualitative one in the
nature of the burden of proof so that additional facts of a
different kind may now be relevant for the first time, litigants
must have a meaningful opportunity to submit conforming proof.”
Id. Finding that Hatch’s situation involved this kind of
“qualitative” change with no opportunity to submit evidence, the
court remanded for an additional hearing. Id. at 837.
As in Woodward and Hatch, the Commission in the present
case changed the quantum of proof -- from a preponderance
standard to a “frivolous” standard -- after the close of the
proceedings. It also changed the nature of the proof that the
mine operator needed to offer. Under the prior test, the ALJ
was to focus more upon the inevitability of the economic
conditions giving rise to the potential tolling. Cobra, for
instance, introduced evidence concerning (1) the company’s
53
actual layoffs and (2) why those layoffs would have included
Ratliff. The new test, however, focuses more on any potentially
discriminatory factors behind the layoffs. Now, a mine operator
will need to introduce additional evidence concerning the non-
discriminatory intent of a layoff, even apart from the economic
reasons behind it. Cobra should be provided the opportunity to
introduce that kind of evidence in this case.
Apart from these burden-of-proof-specific issues, agencies
also act unjustly when they switch rules actually relied upon by
the parties in the midst of the process. See ARA Servs., Inc.
v. NLRB, 71 F.3d 129, 134-36 (4th Cir. 1995) (noting reliance
interests in finding that new rule developed in adjudication
would not be retroactively applied to case on appeal); accord
Negrete-Rodriguez v. Mukaskey, 518 F.3d 497, 503-04 (7th Cir.
2008); BP W. Coast Prods., LLC v. Fed. Energy Regulatory Comm’n,
374 F.3d 1263, 1280 n.4 (D.C. Cir. 2004); Consol. Edison Co.,
315 F.3d at 323. The Supreme Court has instructed agencies to
consider reliance interests when shaping agency positions. See,
e.g., Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,
2167 (2012) (explaining that a party should receive “fair
warning” and not “unfair surprise”); Fox Television Stations,
556 U.S. at 515 (explaining that it is arbitrary and capricious
for an agency to ignore “serious reliance interests” that a
prior policy “engendered”). Nevertheless, even though both the
54
Secretary and Cobra utilized a preponderance standard before the
ALJ, the Commission developed its new standard without
addressing these reliance interests.
I would direct the Commission to return this case to the
ALJ in order to afford the parties the opportunity to present
their cases under whatever standard the Commission determines
would now apply.
IV.
For the aforementioned reasons, I respectfully dissent.
55