Argued: October 29, 2013
On Petition for Review of an Order of the Federal Mine Safety & Health Review Commission. (WEVA 2013-368-D)
William E. Robinson, DINSMORE & SHOHL, LLP, Charleston, West Virginia, for Petitioner.
Nancy E. Steffan, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
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.
Before KING, GREGORY, and AGEE, Circuit Judges.
The Court amends its, as follows: On page 8, footnote 7, line 3 -- "§ 815(a)(1)" is corrected to read "§ 816(a)(1)."
KING, Circuit Judge:
Petitioner Cobra Natural Resources, LLC ("Cobra"), seeks appellate relief from a decision of the Federal Mine Safety and Health Review Commission (the "Commission"), temporarily reinstating a coal miner. In October 2012, Russell Ratliff filed a discrimination complaint with the Secretary of Labor, alleging that Cobra had unlawfully retaliated against him under the Mine Safety and Health Act of 1977 (the "Mine Act"), by discharging him on the basis of safety concerns he had articulated with respect to Cobra's mining operations. After an Administrative Law Judge (the "ALJ") determined that Ratliff was entitled to temporary reinstatement pending a final order on his complaint, the Commission affirmed the reinstatement order. Asserting appellate jurisdiction under the collateral order doctrine, Cobra seeks judicial review of the Commission's interlocutory decision. As explained below, we dismiss the petition for lack of jurisdiction.
In response to what was characterized as the "notorious history of serious accidents and unhealthful working conditions" in the coal mining industry, the Mine Act was enacted in 1977 to establish a comprehensive regulatory scheme concerning mine safety and health in this country. See Donovan v. Dewey, 452 U.S. 594, 603 (1981). The Act contains a whistleblower provision that prohibits mine operators from discriminating against coal miners for making complaints "under or related to" the Act, including any complaint notifying an operator of "an alleged danger or safety or health violation" in a coal mine. See 30 U.S.C. § 815(c)(1).
Because a complaining coal miner "may not be in the financial position to suffer even a short period of unemployment or reduced income pending resolution of the discrimination complaint, " the Mine Act established the temporary reinstatement procedure underlying this proceeding. See S. Rep. No. 95-181, at 37 (1977), reprinted in 1977 U.S.C.C.A.N. 3401 (1977); see also 30 U.S.C. § 815(c)(2). Pursuant to the Mine Act, the Secretary receives a miner's discrimination complaint and conducts an appropriate investigation; if it is determined that the complaint was not "frivolously brought, " the Secretary applies to the Commission for an order temporarily reinstating the miner's employment, "pending final order on the complaint." See 30 U.S.C. § 815(c)(2). If the coal operator disagrees with the Secretary's determination, it may request a hearing before an ALJ.
A reinstatement order does not require that a coal miner remain employed under any circumstance, but is subject to "changes that occur at the mine after [the order's] issuance." See Sec'y on behalf of Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (2009). Thus, a coal operator's temporary reinstatement obligation can be "tolled" by the occurrence of certain events, such as a subsequent reduction-in-force that would have included the miner. See id. An ALJ's ruling on a temporary reinstatement issue, including whether the reinstatement should be tolled, is subject to discretionary review by the Commission.
Regardless of whether the terminated coal miner is temporarily reinstated, the Secretary must complete the discrimination investigation within ninety days of the filing of the complaint. If it is decided that a violation of the whistleblower provision has occurred, the Secretary must file a complaint with the Commission, which conducts a hearing and issues a final order. If the Secretary instead determines that a violation has not occurred, the temporary reinstatement ends. See N. Fork Coal Co. v. FMSHRC, 691 F.3d 735, 744 (6th Cir. 2012).
Russell Ratliff, a southern West Virginia coal miner, was an equipment operator at Cobra's Mountaineer Mine in Mingo County until, on October 17, 2012, he was abruptly discharged by Cobra. Promptly thereafter, Ratliff filed a discrimination complaint alleging that he had been terminated in retaliation for engaging in protected activity. The Secretary concluded that Ratliff's claim was not frivolous and applied to the Commission for his temporary reinstatement. Cobra requested a hearing on the application, contending that Ratliff's complaint was frivolous and also asserting a tolling defense.
The hearing was conducted before an ALJ on January 7, 2013. In his January 14, 2013 Decision and Order (the "Reinstatement Order"), the ALJ agreed with the Secretary that Ratliff's discrimination complaint was not frivolously brought. The ALJ also rejected Cobra's tolling contention, concluding that Cobra had failed to show that "work [was] not available to [Ratliff]" because of an asserted multi-employee layoff. See Reinstatement Order 18-19 (citing Gatlin, 31 FMSHRC at 1054-55). The ALJ directed Cobra to immediately reinstate Ratliff, with the same hours of work, rate of pay, and benefits received.
Cobra next sought Commission review of the Reinstatement Order, specifically challenging the ALJ's analysis of the tolling issue. By its February 28, 2013 Decision (the "Commission Decision"), the Commission granted review but affirmed the Reinstatement Order. On March 27, 2013, Cobra timely filed the underlying petition for review, summarily asserting jurisdiction under the collateral order doctrine and contending that the Commission erroneously denied Cobra's tolling defense.
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 matter. As a result, prior to oral argument, we obtained supplemental briefing on the jurisdiction question. Therein, both parties once again summarily urged us to accept jurisdiction under the collateral order doctrine. Nevertheless, "we are obliged to satisfy ourselves of subject-matter jurisdiction, even where the parties concede it." United States v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Mindful of our obligation with respect to jurisdiction, we must assess whether the Commission Decision is reviewable.
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. See 30 U.S.C. § 816(a)(1). Although the Act uses the term "order" rather than "final order, " we have recognized that only a final Commission order is entitled to review in this Court. See Monterey Coal Co. v. FMSHRC, 635 F.2d 291, 292-93 (4th Cir. 1980); see also Bell v. New Jersey, 461 U.S. 773, 778-79 (1983) ("The strong presumption is that judicial review will be available only when agency action becomes final.").
The collateral order doctrine was first identified in 1949 in Cohen v. Beneficial Industrial Loan Corp., where the Supreme Court recognized a "small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." 337 U.S. 541, 546 (1949). The Cohen approach, limiting collateral order review only to certain exceptional cases, retains its validity today. Distilling Cohen and its progeny, the Court requires that an appealable collateral order must " conclusively determine the disputed question,  resolve an important issue completely separate from the merits of the action, and  be effectively unreviewable on appeal from a final judgment." Will v. Hallock, 546 U.S. 345, 349 (2006) (alterations in original) (internal quotation marks omitted); see also Al Shimari v. CACI Int'l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc) (rejecting collateral order jurisdiction over, inter alia, law of war defense).
The three requirements for collateral order jurisdiction are necessarily stringent, and the Supreme Court has emphasized that the doctrine must "never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered." See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). On this point, the Court has been consistently unequivocal. As Justice Souter stressed in Will:
[W]e have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope. And we have meant what we have said; although the court has been asked many times to expand the small class of collaterally appealable orders, we have instead kept it narrow and selective in its membership.
546. U.S. at 350 (emphasis added) (internal quotation marks omitted). The Court's admonitions respecting the limited scope of the collateral order doctrine "reflect a healthy respect for the virtues of the final-judgment rule." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009). Our distinguished former colleague Judge Williams urged caution in applying the collateral order doctrine to administrative decisions, reminding us that "[i]t is not the place of appellate courts to scrutinize agency action at every step. . . . Rather, [we] must proceed cautiously, allowing lower decision-makers thoroughly to resolve the intricacies of underlying claims." See Carolina Power & Light Co. v. U.S. Dep't of Labor, 43 F.3d 912, 918 (4th Cir. 1995).
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)). As the Supreme Court recently explained, the traditional importance requirement "finds expression" in both the second and third prongs of the three-part test. See Mohawk, 558 U.S. at 107. The second prong insists, quite clearly, on "important questions separate from the merits." Id. (internal quotation marks omitted). And "more significantly, " the third prong — whether a right is "effectively unreviewable" on appeal from a final judgment — requires careful judicial balancing that takes into account the importance of the issue the appellate court might review. See id.
In assessing whether we possess jurisdiction under the collateral order doctrine, "we do not engage in an 'individualized jurisdictional inquiry.'" See Mohawk, 558 U.S. at 107 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978)). That is, our focus is not on the particular order at issue, but rather on the "entire category" of orders to which it belongs. See Digital Equip., 511 U.S. at 868. Thus, the chance that "the litigation at hand might be speeded" or "a particular injustice averted" by an immediate appeal does not provide a basis for jurisdiction under the collateral order doctrine. Id. (internal quotation marks omitted).
Having identified some controlling principles, we restate the jurisdictional issue: whether a Commission decision granting temporary reinstatement to a coal miner is immediately appealable by the coal operator under the collateral order doctrine. Although this issue is one of first impression in our circuit, two of our sister courts of appeals have confronted the question and concluded that appellate jurisdiction is appropriate. Those decisions, however, are of limited persuasive effect. The Eleventh Circuit's decision in Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), was rendered more than two decades ago, prior to the Supreme Court's more recent, emphatic warnings — made in its Digital Equipment, Will, and Mohawk decisions — concerning the narrow and limited scope of the collateral order doctrine. The Seventh Circuit addressed the issue more recently, but resolved the jurisdictional inquiry in a somewhat cursory fashion. See Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 297, 300 (2012) (concluding in single paragraph that collateral order requirements were ...