Cobra Natural Resources, LLC v. Federal Mine Safety & Health Review, No. 13-1406 (4th Cir. 2014)
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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 reinstating a Commission coal (the miner. In Commission ), October 2012, temporarily 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 articulated with respect to Cobra s mining operations. he had After an Administrative Law Judge (the ALJ ) determined that Ratliff was entitled to temporary reinstatement pending a final order on his complaint, the Commission Asserting appellate doctrine, Cobra interlocutory affirmed jurisdiction seeks judicial decision. As the reinstatement under the review of explained below, collateral the we order. order Commission s 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 2 scheme concerning mine safety and health in this country. See Donovan v. Dewey, 452 U.S. contains 594, provision 603 that (1981). The prohibits Act mine operators a from whistleblower 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 Secretary U.S.C. § 815(c)(2). receives a Pursuant miner s to the discrimination Mine Act, complaint the 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 would have included the miner. temporary reinstatement reinstatement should be reduction-in-force See id. issue, tolled, An ALJ s ruling on a including is that subject whether to the discretionary review by the Commission. Regardless temporarily of whether reinstated, the the terminated Secretary coal must miner complete is 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, issues a final order. which conducts a hearing and 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. that Ratliff s claim was not The Secretary concluded frivolous and Commission for his temporary reinstatement. applied to the 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 discrimination complaint was not frivolously brought. 3 Ratliff s 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 tolling issue. Commission By challenging its Decision ), the February the filed the underlying 28, Commission affirmed the Reinstatement Order. 4 timely ALJ s analysis 2013 of Decision granted review the (the but On March 27, 2013, Cobra 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 supplemental briefing on the jurisdiction question. both parties once again summarily urged us jurisdiction under the collateral order doctrine. 6 we are obliged to satisfy ourselves of jurisdiction, even where the parties concede it. obtained Therein, to accept Nevertheless, subject-matter 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 appellate independent of consideration adjudicated. the be cause deferred itself until 337 U.S. 541, 546 (1949). 7 7 to the require whole that case is The Cohen approach, 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 cases, retains its validity today. to certain exceptional 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. (2006) (alterations in Will v. Hallock, 546 U.S. 345, 349 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. omitted). at 350 (emphasis added) (internal quotation marks 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. Inc. v. Carpenter, 558 U.S. 100, 106 (2009). 8 Mohawk Indus., 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. 8 See Carolina Power & 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). significantly, the third prong whether And more 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 collateral order whether we doctrine, possess we jurisdiction do not individualized jurisdictional inquiry. at 107 (quoting Coopers & (1978)). under engage in the an See Mohawk, 558 U.S. Lybrand v. Livesay, 437 U.S. 463, 473 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 12 under the collateral order doctrine. Although this issue is one of first impression in our circuit, two of our sister courts of appeals have confronted the question and appropriate. persuasive concluded Those effect. that appellate decisions, The Eleventh jurisdiction however, are of Circuit s decision is limited 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. Circuit addressed the issue more in somewhat jurisdictional inquiry Vulcan Constr. Materials, (2012) (concluding in a L.P. single requirements were satisfied). to convince us of inform our analysis. the proper v. recently, cursory FMSHRC, paragraph but resolved the fashion. 700 that The Seventh See F.3d 300 297, collateral order As a result, those decisions fail jurisdictional course, or even 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 putatively order appealable question. This doctrine order most first conclusively basic element requires determine that a disputed sometimes is a 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, authorizing an there immediate is appeal little under justification the collateral for 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). open the Clearly, if a court or agency expressly holds possibility of reconsideration, a collateral order appeal should not be authorized. See Swint v. Chambers Cnty. Comm n, (declining 514 jurisdiction U.S. 35, where 42 (1995) district court collateral expressly order 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. 744 (internal quotation marks omitted). See 920 F.2d at 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, subsequent large-scale reduction-in-force. such as a 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 regarding changed circumstances. Inasmuch as an order of an intermediate hearing Commission Decision 5 n.3. temporary reinstatement remains subject to modification during the pendency of a coal miner s discrimination complaint, such an order characterized as a conclusive determination. can hardly be 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 nonfinal agency decisions. demonstrates, expressly a held Accordingly, ruling open an for And, on the as the temporary Decision reinstatement possibility interlocutory Commission of Commission can be reconsideration. 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 discrimination claim. from the merits of the miner s 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 analysis factual that, although necessarily allegations the entail[s] in the temporary some reinstatement consideration miner[ s] of complaint[], it the is conceptually distinct from a decision on the ultimate merits. See Jim Walter Res., 920 F.2d at 744. asserted distinction seems to be The substance of this that [t]he temporary reinstatement hearing merely determine[s] whether the evidence mustered complaint by the is] [miner] to nonfrivolous, date not establishe[s] whether there that is [his 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 discrimination and permanent proceeding. There evidentiary burden at each stage: relief is, no in a doubt, coal a miner s different 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 practical a full standpoint, hearing however, on a the merits. temporary From a 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. reviewing an Consider Commission s for application the temporary own guidance: reinstatement, it in 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 conceptual temporary factual simply no difference, reinstatement and legal reinstatement the plainly that, regardless considerations process issues discrimination claim. doubt are deeply comprising the any in the with the involved of enmeshed miner s underlying Accordingly, an order awarding temporary 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 19 U.S. 368, 376 (1981) ( irreparable ). An affect[s] that rights order may would also be Koller, 472 U.S. 424, unreviewable irretrievably absence of an immediate appeal. v. be lost if in it the See Richardson-Merrell, Inc. 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 judgment be lost through requirement sufficiently important rigorous i.e., interest an application assessment would be of of final whether imperiled refusal to provide an immediate appellate review. a by a our 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 decision. for a judicial hearing of its challenge See Jim Walter Res., 920 F.2d at 745. 13 13 to the In our view, 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 administrative proceedings on his discrimination claim. 14 operator s interest economic one. economic implicated, therefore, is primarily the The an We are thus faced with deciding whether that 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. In Nixon v. Fitzgerald, Court recognized involving collateral order Presidential jurisdiction See id. immunity, and the identified compelling public ends that were rooted in the constitutional tradition of the separation of powers. 770 (1982). See 457 U.S. 731, 758, 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 of order appeal, threatened disruption inhibiting able service. See Will, 546 U.S. at 352. people governmental from and spoke functions, exercising of fear and discretion the of in public 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 properly invoked. that collateral order jurisdiction was And the double jeopardy claim presented in a pretrial appeal justified the application of collateral order jurisdiction (1977). in Abney v. United States. See 431 U.S. 651 The common thread in those cases, according to the 22 Court, was a particular value substantial public interest. On exercise the other hand, collateral involving, inter alia: order the of a high order, or a Will, at 352-53. 15 Supreme Court jurisdiction in has declined putative to appeals 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. course, that economic harm suffered We readily recognize, of 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 consider Cobra s petition for review. we have jurisdiction to 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. under settled principles regarding However, 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. Cir. 2012) See Blitz v. Napolitano, 700 F.3d 733, 740 (4th (examining the statute s plain jurisdiction over administrative appeal). text to determine Any person adversely affected or aggrieved by an order of the Commission under [the Mine Act] may obtain review. that the statute affords orders from the Commission. us 30 U.S.C. § 816. jurisdiction only We have held over final 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). we examine whether the obligations have been consequences will flow. action [is] determined Id. one by or from (emphasis which Second, rights which omitted). or legal 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. F.2d 291, 293 (4th See Monterey Coal Co. v. FMSHRC, 635 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 Commission s order of reconsideration non-final because 4 does it is not so render the inherently 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. record. Further, the prospect finds no support in the 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). reconsideration Were would it defeat otherwise, our the jurisdiction case, agency and non-agency cases alike. possibility in most of every 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 Indeed, at and effect least one of the temporary court 30 has reinstatement compared the order. temporary reinstatement order to a preliminary injunction. Res., 920 F.2d at 744. See Jim Walter 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 burden the of proof. The substantial evidence challenge. Co., 349 F.2d substantial question ). 170, 171 evidence other constitutes a common See, e.g., NLRB v. M&B Headwear (4th Cir. challenge 1965) (stating presented a that a familiar 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 31 concern that review is a judicial intrusion into the agency s capacity to manage the enforcement and course of its own proceedings. ). D. Finally, immediate review promote judicial efficiency. would speed 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 process. the review alleged errors in the administrative That review would bring certainty to a standard that Commission cases. of now employs in other temporary reinstatement 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. a result, we will never review temporary reinstatement standards. the Commission s use of As the 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. opportunity to seek review A mine operator will have no should the Commission order the operator to pay wages to a miner not entitled to them. operator will never obtain reimbursement of those The wages, no matter how wrong or irresponsible an erroneous decision was to award them. As counsel for the Secretary conceded, no procedure exists allows that temporarily merits an operator reinstated decision. to miner for Although the recoup all wages periods majority paid before labels a to a final 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 workplace. In with the erroneous present decisions case, for that could instance, disrupt the ALJ the and Commission forced Cobra to reinstate a miner at full pay who allegedly engaged in disruptive 33 acts such as fighting and yelling profanity. Reinstating that kind of an employee can damage the workplace. 5 Co., 206 F.2d 274, See, e.g., NLRB v. Longview Furniture 275-76 (4th Cir. 1953) (describing the disruptive effect of a court order that forces an employer to reinstate an language ). employee Despite who this has use[d] harm, a profane mine and operator indecent 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 decision. in the Moreover, interim as the period before Secretary has a final warned, merits 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 unemployment position or to reduced suffer income even a pending short period resolution of of the Inc. v. discrimination complaint. ). E. The Seventh Circuit s decision in Finer Foods, United States Department of Agriculture, 274 F.3d 1137 (7th Cir. 2001), represents in an analogous agency setting the resolution of the jurisdictional completed. issue using the same inquiry just In Finer Foods, the court faced an appeal from (a) an administrative order, (b) implementing immediate injunctive relief, (c) against investigation violation. and a private proceedings, party, (e) for (d) an pending alleged an agency statutory 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. argument frivolous The Seventh Circuit deemed the agency s and said it was disappointed to see the argument made at all. surprised and 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). order under conclusively important § 1291, determine issue a district To qualify as a collateral court the disputed completely separate decision question, from the [2] must [1] resolve merits of an 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. other circuit courts of appeal reached the same conclusion. 7 to have The only two considered the issue 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 issue. the Commission s order here conclusively resolved Nothing more is to be done before the agency and no further issues pertaining to temporary reinstatement remain to be resolved by it. and complete before it. The temporary reinstatement order is a final agency disposition of the discrete controversy 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 however, does not preclude review. power to change its ruling, 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 unequivocal issue terms in and Ratliff s ordered case. Cobra The to ALJ provide spoke in immediate reinstatement to Ratliff. B. The merits. Commission s order also stands separate from the 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. The Commission s Id. 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. the On the merits, the case below can continue during pendency adjudicating decision. of this temporary appeal because reinstatement will nothing affect decided the in merits 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 reinstatement Director, order Office on of occurring the Workers before an merits. See, Comp. Programs, eventual e.g., 932 final Edwards F.2d v. 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 collateral order doctrine. 508 (1979). that he should have invoked the Helstoski v. Meanor, 442 U.S. 500, 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 liability. If the consideration of any Congressman Supreme of the Court facts faced potential wished going to criminal to avoid any the underlying dispute, it would not have applied the collateral order doctrine in such cases. C. Finally, interests. this case involves unreviewable and important An interest is important if it is weightier than the societal interests advanced by the ordinary operation of 41 final judgment principles. 879. Digital Equip. Corp., 511 U.S. at 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 to vindicate his right to payment and a fair process below. will order his immediate or facing legally Where the miner appeals, 8 he unsustainable procedures below. wishes worker, much-needed contemporary If a miner doubts that an ALJ 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 irretrievable statutory loss can . hardly be . rights trivial. are concerned, 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 deferred review are not as strong. resolution of the normally counsel for The underlying case is not delayed by temporary reinstatement appeal. Review does not impose significant costs. order 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 doctrine them cases. to a catalog Cataloguing of cases previous collateral presents an order 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 were unimportant. orders because those orders 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 unimportance[.] ). rest Mohawk on the privilege Industries and order s the relative 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 reasons, of certain may obligation. toll events, an such as operator s a layoff for [temporary] economic reinstatement 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. the ALJ continued Id. at 1055. relied to on the rely Nevertheless, the on Before the ALJ, both parties and preponderance that standard Commission s unexplained burden of proof. that it is frivolous to Commission may 140 F.2d 51, 55 say change (4th The the announced parties Commission. a new and Now, a mine operator must show that Cir. the subsequent economic (J.A. 238-39.) its standards to the tolling defense. Co., before decision condition itself was discriminatory. The standard. benchmark and apply new See NLRB v. Balt. Transit 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). since It may be, for instance, that circumstances have changed the agency last decided the issue rationale exists for the new standard. and a bona fide 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. depart from a prior policy sub An agency may not . . . silentio rules that are still on the books. or simply disregard 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 provide a citation omitted). fuller explanation An if agency its new also might policy need rests to 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 responsibilities Commission s did while decision not acknowledge shifting course references its or in uphold this previous these case. The preponderance standard, but then constructs a new standard that pertains to the objectivity of the layoff. least should explain why that (J.A. 240.) objectivity The Commission at 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 ). defense of the Commission s decision, for instance, In 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 inadequacies in the process below. does not cure the 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 announced in adjudication in the proper circumstances. rule 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 tread carefully adjudicatory its when process adjudicatory changing in the power, the midst an agency standards of that should defining very an process. Significant due process concerns develop if an agency does not permit a litigant to offer evidence and argument bearing on the new standard. Fed. Energy See, e.g., Consol. Edison Co. of N.Y., Inc. v. Regulatory Comm n, 12 315 F.3d 316, 323 (D.C. Cir. 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); Commerce Aero Comm n, Mayflower 699 F.2d Transit 938, Co., 942 Inc. (7th v. Cir. Interstate 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 material issues by a more likely than not standard. 1315. all Id. at 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. In Hatch v. FERC, petitioner contended Commission improperly 654 that F.2d 825 the Federal adopted, 52 (D.C. after Cir. 1981), Energy the Id. close the Regulatory of the 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 opportunity to submit evidence under the new burden. 835. an Id. at 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; significance Id. of or (2) evidence the burden only changed the that the legal parties already submitted. 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. was to focus more upon the Under the prior test, the ALJ inevitability of the conditions giving rise to the potential tolling. instance, introduced evidence concerning 53 (1) the economic Cobra, for company s 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 nondiscriminatory 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 prior policy engendered ). reliance interests that a 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
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