Cobra Natural Resources, LLC v. Federal Mine Safety & Health

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: WEVA 2013-368-D. [999284486]. [13-1406]

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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.

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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

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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

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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

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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

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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

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matter. 5

As

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a

result,

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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

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See

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30

U.S.C.

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§ 816(a)(1).

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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

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limiting

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collateral

order

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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

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[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

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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.

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three-part test.

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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

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doctrine.

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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)
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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.

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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

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merits,

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may

appropriately

Pg: 16 of 55

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).

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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

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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

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undertake

Filed: 01/27/2014

following

practical

a

full

standpoint,

Pg: 19 of 55

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

application

the
for

Commission’s
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)

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(“irreparable”).

An

“affect[s]

that

rights

order

Pg: 20 of 55

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)
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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.

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350-54.

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Pg: 22 of 55

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

and

discretion

the

fear

in

of

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

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Court,

was

Filed: 01/27/2014

a

“particular

value

“substantial public interest.”
On
exercise

the

other

hand,

collateral

involving, inter alia:

order

Pg: 23 of 55

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.

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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

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We are therefore bereft of jurisdiction and must dismiss

Cobra’s petition for review.

PETITION FOR REVIEW DISMISSED

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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).

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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

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efficiency?”

Filed: 01/27/2014

Pg: 28 of 55

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.

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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

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speculative.
record.

Further,

the

Pg: 30 of 55

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

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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

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Filed: 01/27/2014

intrusion

into

the

Pg: 32 of 55

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)).
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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.
exists

As counsel for the Secretary conceded, no procedure

that

temporarily
merits

allows

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

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yelling profanity.

Reinstating that kind of an employee can

damage the workplace. 5
Co.,

206

F.2d

Pg: 34 of 55

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
Secretary

before
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.”).

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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

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

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

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doctrine.

Filed: 01/27/2014

Because

the

Pg: 36 of 55

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

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(2006)).

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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).

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to reopen the issue.

Pg: 38 of 55

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
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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).

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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
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separate

Filed: 01/27/2014

from

the

merits

Pg: 41 of 55

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

liability.

If

consideration

of

the

the
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

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final judgment principles.”
879.

Pg: 42 of 55

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.

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In

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contrast,

the

Pg: 43 of 55

interests

that

deferred review are not as strong.
delayed
appeal.

by

resolution

of

the

normally

counsel

for

The underlying case is not

temporary

reinstatement

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.

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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)
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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.

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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
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burden

of

Filed: 01/27/2014

proof,

in

the

Pg: 47 of 55

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
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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
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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
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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

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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.

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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

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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

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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
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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