Meredith v. Federal Mine Safety & Health Review Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 1999 Decided June 4, 1999

No. 98-1359

Tom Meredith, et al.,
Petitioners

v.

Federal Mine Safety and Health Review Commission,
and United Mine Workers of America on behalf of
William Keith Burgess, et al.,
Respondents

On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission

Robert M. Loeb, Attorney, United States Department of
Justice, argued the cause for petitioners. With him on the
briefs were Frank W. Hunger, Assistant Attorney General at
the time the briefs were filed, David W. Ogden, Acting
Assistant Attorney General, Wilma A. Lewis, United States

Attorney, and Barbara C. Biddle, Assistant Director, United
States Department of Justice.

Judith Rivlin argued the cause for respondents. With her
on the brief was Grant Crandall. Norman M. Gleichman
entered an appearance.

Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Several employees of the Mine Safe-
ty and Health Administration ("MSHA") petition for review
of a decision by the Federal Mine Safety and Health Review
Commission (the "Commission") holding MSHA officials ame-
nable to suit under section 105(c)(1) of the Federal Mine
Safety and Health Act of 1977 (the "Mine Act" or the "Act"),
30 U.S.C. s 815(c), for official actions that exceed their statu-
tory or regulatory authority and amount to more than a
mistake of law or fact in the exercise of delegated duties. See
United Mine Workers of America v. Secretary of Labor, 20
F.M.S.H.R.C. 691, 700 (1998) ("UMWA"). Although we de-
cide that the principle of administrative finality applies to
Commission decisions, and that a Commission order remand-
ing a matter back to an Administrative Law Judge for further
development of the factual record would not, on its own, be
final, we nevertheless conclude that we have jurisdiction to
hear this appeal under the collateral order doctrine. Holding
that the Mine Act's anti-discrimination provision does not
apply to actions undertaken by MSHA officials under color of
their authority, we grant the petition for review, vacate the
Commission's decision and remand for the Commission to
dismiss the respondents' complaints.

I. Background

The United Mine Workers of America (the "UMWA"),
acting on behalf of several individual miners and pursuant to
30 U.S.C. s 815(c),1 filed two claims with the Secretary of

__________
1 Section 105(c) of the Mine Act, 30 U.S.C. s 815(c), provides that:

Labor (the "Secretary") alleging that certain named MSHA
officials had unlawfully discriminated against these union

__________
(1) No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory
rights of any miner [or] representative of miners ... in any
coal or other mine subject to this chapter because such miner
[or] representative of miners ... has filed or made a complaint
under or related to this chapter, including a complaint notifying
the operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, ... or
because of the exercise by such miner ... of any statutory
right afforded by this chapter.

(2) Any miner ... or representative of miners who believes
that he has been discharged, interfered with, or otherwise
discriminated against by any person in violation of this subsec-
tion may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary shall forward a
copy of the complaint to the respondent and shall cause such
investigation to be made as he deems appropriate.... If upon
such investigation, the Secretary determines that the provi-
sions of this subsection have been violated, he shall immediate-
ly file a complaint with the Commission ... and propose an
order granting appropriate relief. The Commission shall af-
ford an opportunity for a hearing (in accordance with section
554 of Title 5 ...) and thereafter shall issue an order, based
upon findings of fact, affirming, modifying, or vacating the
Secretary's proposed order, or directing other appropriate
relief....

(3) ... If the Secretary, upon investigation, determines that
the provisions of this subsection have not been violated, the
complainant shall have the right ... to file an action in his own
behalf before the Commission, charging discrimination or inter-
ference in violation of paragraph (1). The Commission shall
afford an opportunity for a hearing (in accordance with section
554 of Title 5 ...), and thereafter shall issue an order, based
upon findings of fact, dismissing or sustaining the complain-
ant's charges and, if the charges are sustained, granting such
relief as it deems appropriate....

members for exercising rights protected by the Mine Act.
According to the first discrimination complaint, an MSHA
supervisor revealed to management the identity of miners
who had written the MSHA District Manager expressing
concern over what they considered to be inadequate safety
inspection and enforcement practices at a Jim Walter Re-
sources mine. In the incident underlying the second claim,
an MSHA District Inspector allegedly retaliated against simi-
lar protestations of lax enforcement by ordering that the
miners at the U.S. Steel-Concord Preparation Plant could no
longer make health and safety complaints via telephone, as
they had done in the past. Henceforth, he mandated, their
complaints would have to be in writing and hand-delivered.
In conjunction with each complaint, the UMWA sought an
order directing MSHA district officials to cease and desist
from retaliating or discriminating against miners who express
their concerns over mine safety and MSHA safety enforce-
ment, as well as civil penalties and any other relief deemed
appropriate.2

After the Secretary of Labor dismissed the complaints on
the ground that the Mine Act's anti-discrimination provisions
do not cover the named defendants--the Secretary of Labor,
the Mine Safety and Health Administration, and MSHA
officials in their individual capacity--the UMWA sought re-
view before the Federal Mine Safety and Health Review
Commission. The two claims were assigned to an Adminis-
trative Law Judge ("ALJ") and consolidated. On the Secre-
tary's motion, the ALJ dismissed each of the complaints for
failure to state a cause of action. Relying on Wagner v.
Pittston Coal Group, 12 F.M.S.H.R.C. 1178 (1990), aff'd sub
nom. Wagner v. Martin, 947 F.2d 943 (table), 1991 WL
224257 (unpublished opinion) (4th Cir. 1991), wherein the full
Commission found section 105(c) inapplicable to the MSHA
and its employees because the United States had not waived
its immunity and consented to be sued, the ALJ concluded
that neither the MSHA nor its employees are "persons"

__________
2 The first discrimination complaint additionally sought payment
of attorney's fees.

amenable to suit under Section 815(c).3 See United Mine
Workers of America v. Secretary of Labor, 19 F.M.S.H.R.C.
294, 295 (1997).

The UMWA appealed the ALJ's Order of Consolidation
and Dismissal to the full Commission, which in turn granted
the petition for discretionary review. After briefing and oral
argument, the Federal Mine Safety and Health Review Com-
mission issued a July 2, 1998 Opinion which affirmed the
ALJ's decision in part and reversed in part. See UMWA, 20
F.M.S.H.R.C. at 699-700. First, the Commission reaffirmed
its Wagner decision insofar as it had held that the MSHA was
not a "person" subject to the Mine Act's anti-discrimination
provision.4 See id. at 696. In three separate opinions, how-
ever, the Commission unanimously overruled that part of
Wagner holding MSHA employees to be similarly immune
from suit under section 105(c). While principles of sovereign
immunity secured the MSHA itself from suit, the Commission
reasoned that individual MSHA officials operating beyond the
scope of their authority ceased to wear, and to be protected
by, the mantle of the sovereign. To the extent that individual
officials exceed their delegated statutory or regulatory au-
thority, it concluded, they operate as "persons" for purposes
of section 105(c) and can be subjected to individual capacity
suits. Accordingly, the Commission vacated the dismissal of
the complaints, remanded for development of the factual
record, and directed the ALJ to determine whether the
challenged actions exceeded the scope of the defendant offi-
cials' authority and constituted more than a mistake of law or
fact. The individual MSHA officials (collectively the "peti-
tioners") petitioned for review of this determination.

Petitioners challenge the Commission's holding on three
separate grounds, broadly alleging that Congress did not
intend individual MSHA officials acting under color of author-

__________
3 The Mine Act defines the term "person" to encompass "any
individual, partnership, association, corporation, firm, subsidiary of
a corporation, or other organization." 30 U.S.C. s 802(f).

4 Four of the five Commissioners adhered to this portion of the
Commission's ruling. See UMWA, 20 F.M.S.H.R.C. at 697, 702.

ity to be covered by the terms of section 105(c). First,
arguing from the language and structure of the Mine Act,
petitioners contend that MSHA employees cannot be encom-
passed by the term "persons" because they are instead
subsumed by a separate statutory term, the "Secretary." See
30 U.S.C. s 802(a) (" 'Secretary' means the Secretary of
Labor or his delegate."). Drawing from the logic of the
statute, as evidenced by the remedial language describing the
list of penalties available to the Commission, petitioners next
assert that section 105(c)'s proscriptions are addressed solely
to mine operators and their affiliates. Finally, to the extent
that there is any ambiguity within the statutory scheme,
petitioners contend that both the Commission and this court
must defer to the Secretary of Labor's authoritative and
reasonable interpretation of the statute to exclude MSHA
officials from its coverage. See Chevron U.S.A. Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
Because the circuits, following Martin v. Occupational Safety
& Health Review Comm'n, 499 U.S. 144 (1991) (since the
Occupational Health and Safety Act of 1970 invests rulemak-
ing and enforcement powers in the Secretary of Labor, the
adjudicatory Occupational Safety and Health Review Com-
mission must defer to the Secretary's reasonable interpreta-
tions of statutory and regulatory language), have uniformly
held that the Commission must accord proper deference to
the Secretary's policy and discretionary decisions, petitioners
contend that the Commission's failure to adhere to an emi-
nently reasonable interpretation must be reversed.

II. Discussion

A. Jurisdiction

1. The Need for a Final Order

We must first determine whether or not we have jurisdic-
tion to hear this petition for review. Subject to a few limited
exceptions, appellate review of administrative action is re-
stricted to final agency orders. See Bell v. New Jersey, 461
U.S. 773, 778 (1983) ("The strong presumption is that judicial
review will be available only when agency action becomes

final."). We have held repeatedly and across agency contexts
that an order will be considered final to the extent that it
"imposes an obligation, denies a right, or fixes some legal
relationship, usually at the consummation of an administrative
process." Transwestern Pipeline Co. v. FERC, 59 F.3d 222,
226 (D.C. Cir. 1995) (quoting State of Alaska v. FERC, 980
F.2d 761, 763 (D.C. Cir. 1992)). See also Burlington N. R.R.
Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir. 1996);
Mountain States Tel. & Tel. Co. v. FCC, 939 F.2d 1021, 1027
(D.C. Cir. 1991). Here, the Commission's order reinstating
the miners' complaints and remanding the matter to the ALJ
for further record development clearly falls outside the heart-
land of final action. See Occidental Petroleum Corp. v. SEC,
873 F.2d 325, 329 (D.C. Cir. 1989) (as a general rule, district
court order remanding matter to administrative agency is not
a final order); Carolina Power & Light Co. v. United States
Dep't of Labor, 43 F.3d 912, 914-15 (4th Cir. 1995) (Secretary
of Labor's order remanding matter to ALJ is not a final order
and so not subject to judicial review); Fieldcrest Mills, Inc. v.
OSHRC, 545 F.2d 1384, 1385-86 (4th Cir. 1976) (per curiam)
(Occupational Safety and Health Review Commission decision
reversing ALJ's summary judgment and remanding for trial
on the merits is not a final order). Cf. Washington Metropol-
itan Area Transit Authority v. Director, Office of Workers'
Compensation Programs, 824 F.2d 94, 95 (D.C. Cir. 1987)
(per curiam) (Department of Labor Benefits Review Board
decision remanding case to ALJ for determination of damages
and further fact-finding is not final and hence not immediate-
ly appealable).

Seeking to avert the finality norm, petitioners first contend
that the Mine Act provides a specific, congressionally sanc-
tioned exception. The anti-discrimination provision at issue
herein--section 105(c)(3)--states that "[a]ny order issued by
the Commission under this paragraph shall be subject to
judicial review in accordance with [section 106 of the Mine
Act]." 30 U.S.C. s 815(c)(3). Section 106(a)(1) itself provides
that "[a]ny person adversely affected or aggrieved by an
order of the Commission issued under this chapter may
obtain a review of such order in ... the United States Court

of Appeals for the District of Columbia Circuit...." 30
U.S.C. s 816(a)(1). Petitioners find this language significant
for two reasons. First, in contrast to numerous other statu-
tory review provisions, the Mine Act expressly refers to
orders rather than to final orders. See, e.g., 29 U.S.C.
s 160(f) (granting courts of appeals jurisdiction to review a
"final order of the [NLRB]" responding to unfair labor prac-
tice allegations); 28 U.S.C. s 2342(1) (granting courts of
appeals jurisdiction to review "final orders of the Federal
Communications Commission"); 33 U.S.C. s 921(c) (providing
for review of "final orders" from the Benefits Review Board).
Secondly, the Mine Act itself also distinguishes orders from
final orders, as section 106(b), in contrast to section 106(a)(1),
provides that "[t]he Secretary may also obtain review or
enforcement of any final order of the Commission...." 30
U.S.C. s 816(b) (emphasis added). Petitioners contend that
Congress, by omitting the modifier "final" in section 106(a)(1),
signaled an express intent to allow for the review of other
than final orders. According to petitioners, the statutory
reference to persons "adversely affected or aggrieved" by
Commission orders explicitly provides an alternative limiting
principle to that of absolute finality, requiring that a party
suffer some concrete consequences before seeking judicial
review.

Despite petitioners' valiant efforts at semantic reconstruc-
tion, we do not discern any exception to the principle of
finality within the Mine Act's judicial review provisions.
While a direct expression of Congress' will would necessarily
control, we do not believe that the statute contains any
directive to depart from the background norm of administra-
tive law that judicial review awaits completion of the adminis-
trative process. If anything, the legislative history accompa-
nying passage of the Mine Act bespeaks the opposite. Both
the Senate Report and the Joint Explanatory Statement of
the Committee of Conference describe section 106(a)(1) as
providing for the review of final orders; no mention is made
of earlier review and no distinction is drawn between "the
Secretary" and other "persons." See S. Rep. No. 95-181, at
13 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3413 ("Per-

sons adversely affected by the Commission's final order may
obtain a review of such order in any appropriate U.S. court of
appeals. The Secretary may also obtain review or enforce-
ment of any final order....") (emphases added); H.R. Conf.
Rep. No. 95-655, at 53 (1977) reprinted in 1977 U.S.C.C.A.N.
3485, 3501 (describing the conference substitute as conform-
ing to the Senate bill, which itself provides for "a uniform
procedure [for judicial review] applicable to all final orders of
the Commission") (emphases added). In the absence of any
clear evidence that Congress intended a more generous re-
view than the norm, we join our sister circuits in holding that
section 106(a)(1) of the Mine Act limits appellate review to
final agency action. See Jim Walter Resources, Inc. v.
Federal Mine Safety & Health Review Comm'n, 920 F.2d
738, 743-44 (11th Cir. 1990); Monterey Coal Co. v. Federal
Mine Safety & Health Review Comm'n, 635 F.2d 291, 292-93
(4th Cir. 1980).

2. The Collateral Order Doctrine

Petitioners next contend that the Commission's order
should be reviewable under the collateral order doctrine.
Relying upon a line of cases beginning with Mitchell v.
Forsyth, 472 U.S. 511 (1985), petitioners claim that the Com-
mission's remand order falls within the narrow category of
"collateral" judgments that may be reviewed before the agen-
cy has taken final action on a matter because it denied their
claim of qualified immunity. While petitioners accurately
characterize the Commission's decision, the conclusion they
draw therefrom lacks merit. In our view, the assertion of
qualified immunity and the Commission's decision based
thereon were both misguided. The qualified immunity doc-
trine does not apply to actions seeking equitable relief against
public officials. See discussion infra pp. 10-12. Accordingly,
while we do ultimately hold that the collateral order doctrine
provides a basis for our jurisdiction to hear this petition for
review, see Digital Equip. Corp v. Desktop Direct, Inc., 511
U.S. 863, 869 n.3 (1994) (satisfying the collateral order doc-
trine requirements goes to "an appellate court's subject-
matter jurisdiction"), we reach this conclusion for different
reasons.

 At least since Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949), it has been recognized that the circuit courts
have jurisdiction to hear appeals from a limited category of
decisions that fall within the bounds of the so-called collateral
order doctrine. As articulated in Cohen and reiterated in
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), even
though a disposition does not end the litigation, it qualifies for
immediate review if it: (i) conclusively determines a disputed
question; (ii) resolves an important issue completely separate
from the merits of the action; and (iii) is effectively unreview-
able on appeal from a final judgment. See Coopers & Lyb-
rand, 437 U.S. at 468. The background principle that certain
appeals from a trial court decision denying a qualified immu-
nity defense satisfy the Cohen criteria is equally well settled.
See Johnson v. Jones, 515 U.S. 304, 311-12 (1995). In the
qualified immunity arena, the Supreme Court has drawn a
distinction between two categories of cases, only one of which
merits immediate appellate review: an interlocutory decision
that rests upon the purely legal question of whether or not an
official's actions violate clearly established law does satisfy
the Cohen criteria, see Behrens v. Pelletier, 516 U.S. 299
(1996), while an interlocutory decision that denies summary
judgment because of the presence of triable issues of fact
does not. See Johnson, 515 U.S. 317-18. See also Digital
Equip., 511 U.S. at 868 (issue of appealability should be
determined by the category to which a particular case be-
longs). Unsurprisingly, petitioners claim that this appeal
falls within the latter category while respondents allege that
it falls within the former. Because we frame the issue
differently, we avoid the need for choosing between the two.

While an assertion of qualified immunity may shield a
government official from answering for his actions in a suit
for damages, see Harlow v. Fitzgerald, 457 U.S. 800 (1982)
(restricting qualified immunity protection to actions where
official conduct did not violate a clearly established legal
right), such immunity does not extend to a suit seeking
equitable relief. See Burnham v. Ianni, 119 F.3d 668, 673
n.7 (8th Cir. 1997) (defense of qualified immunity protects
officials only from suit for monetary damages, not injunctive

relief); Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996)
(same); Rodriguez v. City of New York, 72 F.3d 1051, 1065
(2d Cir. 1995) (same). In a prototypical case brought under
the Administrative Procedure Act, for example, neither an
agency nor a named government official can avoid judicial
scrutiny by claiming that the particular action under review
did not violate a clearly established legal right. Nor could
that official circumvent the doctrine of administrative finality
and obtain appellate review of non-final agency action by
pointing to the denial of asserted qualified immunity. In this
case, the UMWA sought an order under section 105(c) of the
Mine Act, see 30 U.S.C. s 815(c)(2)-(3), directing the party
accused of unlawful discrimination to take affirmative action
to abate the violation--a purely equitable remedy. In one of
the complaints, the UMWA additionally sought payment of
attorney's fees; but where attorney's fees are provided for by
statute, as here, qualified immunity has no application. See
30 U.S.C. s 815(c)(3) ("Whenever an order is issued sustain-
ing the complainant's charges under this subsection, a sum
equal to the aggregate amount of all costs and expenses
(including attorney's fees) ... reasonably incurred ... shall
be assessed against the person committing such violation.");
Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991) (official immunity
does not secure judge from suit for attorney's fees authorized
by statute); Copeland v. Marshall, 641 F.2d 880, 907 n.68
(D.C. Cir. 1980) (in banc) (noting the Supreme Court's obser-
vation that "Congress intended to permit attorney's fees
awards in cases in which prospective relief was properly
awarded against defendants who would be immune from
damage awards" (quoting Supreme Court of Va. v. Consum-
ers Union, 446 U.S. 719, 738 (1980))). Cf. Hutto v. Finney,
437 U.S. 678 (1978) (in the context of Eleventh Amendment
immunity, attorney's fees properly treated as ancillary to
injunctive relief).5 Accordingly, petitioners cannot interpose

__________
5 Although each discrimination complaint additionally sought an
assessment of civil penalties, it is not clear whether this request
remains part of the case. In its decision reinstating the complaints,
the Commission directed the ALJ, should it find the MSHA officials
subject to suit, to order "appropriate specific relief." UMWA, 20

qualified immunity as a defense to the UMWA's section 105(c)
claim.

That said, we nevertheless share with petitioners the con-
viction that, under the collateral order doctrine, this petition
for review is properly before us. Our path to this holding
entails a series of steps. First, we recognize that a Commis-
sion order remanding a matter to an ALJ will not, on its own,
satisfy the principle of finality that we have held to be
inherent in section 106(a)(1). See discussion supra pp. 7-9.
In this case, however, petitioners contend that the UMWA
has failed to state a claim against them because the statutory
provision under which the UMWA filed its complaint--section
105(c) of the Mine Act--does not provide a cause of action
against MSHA employees for actions taken under color of
their authority.6 Accordingly, we must determine whether

__________
F.M.S.H.R.C. at 700. In any event, a civil penalty constitutes
something other than monetary damages, which the Supreme Court
has described as "a sum of money used as compensatory relief,"
Department of the Army v. Blue Fox, Inc., 119 S. Ct. 687, 691
(1999). See also Bowen v. Massachusetts, 487 U.S. 879, 893 (1988)
("Our cases have long recognized the distinction between an action
at law for damages--which are intended to provide a victim with
monetary compensation for an injury to his person, property, or
reputation--and an equitable action for specific relief...."). For
purposes of the Mine Act, the available civil penalties are all
payable to the United States Treasury. See 30 U.S.C. s 820(j)
("Civil penalties owed under this chapter shall be paid to the
Secretary for deposit into the Treasury of the United States....").
In light of the time-honored distinction between damages actions
and those seeking equitable or specific relief, see, e.g., Edelman v.
Jordan, 415 U.S. 651 (1974) (Eleventh Amendment is not a bar to
suit seeking prospective injunctive relief); Hutto v. Finney, 437
U.S. 678 (1978) (attorney's fees appropriately levied against state
actor ancillary to award of injunctive relief), and the fact that
qualified immunity applies only to actions seeking monetary dam-
ages, see supra pp. 10-11, we think it follows that qualified immuni-
ty does not bar a claim seeking civil penalties.

6 Petitioners did raise this point before the Commission, thereby
satisfying the dictates of section 106(a)(1) of Mine Act and allowing
us to proceed. See 30 U.S.C. s 816(a)(1) ("No objection that has

the Commission's order operates as a "final decision" under
the "practical" construction of finality the Supreme Court
articulated in Cohen.

Before turning to an examination of the Cohen criterion, we
first make explicit what would otherwise be implicit in our
recognition of Cohen's applicability. The collateral order
doctrine extends beyond the confines of 28 U.S.C. s 1291 to
encompass the principle of administrative finality contained in
section 106(a) of the Mine Act. As we recognized in Commu-
nity Broadcasting of Boston, Inc. v. FCC, 546 F.2d 1022, 1024
(D.C. Cir. 1976), interpreting a provision of the Communica-
tions Act authorizing judicial review of FCC "final orders,"
both the finality requirement articulated in section 1291 and
that generally prevailing in administrative law reflect a judg-
ment that the judicial and administrative processes should
proceed, where practicable, without interruption. Towards
this end, courts have allowed interlocutory appeals "only in
exceptional cases, a requirement that partakes of similar
meanings in both contexts." Id. See also DRG Funding

__________
not been urged before the Commission shall be considered by the
[reviewing] court...."). Nevertheless, they subsume this conten-
tion within a larger argument that we believe to be misguided.
Acting under the presumption that qualified immunity could and
should apply, petitioners follow the two-step mode of analysis
articulated in Siegert v. Gilley, 500 U.S. 226, 232 (1991), which
directs a court to determine whether or not the plaintiff has
asserted a violation of a clearly established right as a necessary
precondition to any further inquiry under Harlow. Although we
reject the assertion of qualified immunity because the UMWA has
sought only equitable relief, we nevertheless find Siegert instructive
to the largely analogous question that we face-whether a federal
official should be subjected to the burdens accompanying litigation
for certain actions taken under color of authority. Accordingly,
once we establish our jurisdiction, we proceed by then questioning
whether the UMWA has asserted a valid claim against the petition-
ers. While this inquiry differs somewhat from that prevailing in
the qualified immunity context, in that the preliminary question
involves whether a claim exists at all instead of merely whether that
claim alleges violation of a clearly established right, the lexical
priority of the inquiries are identical.

Corp. v. Secretary of HUD, 76 F.3d 1212, 1221 (D.C. Cir.
1996) (Ginsburg, J., concurring) (marshaling cases in support
of the proposition that the collateral order doctrine applies to
the APA's finality requirement); Carolina Power & Light, 43
F.3d at 916 ("It is well-settled that [the Cohen] requirements
of the collateral order doctrine apply not only to judicial
decisions, but also to appeals from executive agency action.").
Mindful of the policies underlying the principle of finality, as
well as the institutional costs of premature judicial interven-
tion, we nevertheless recognize the need for immediate re-
view in those exceptional cases that fall within the strictures
of the collateral order doctrine.

As the Supreme Court's recent discussion of the doctrine
makes evident, a collateral order will amount to a final (and
hence reviewable) decision when it satisfies each of the "sepa-
rability," "unreviewability," and "conclusiveness" prongs of
Cohen. See, e.g., Johnson, 515 U.S. at 310. Because we need
not be concerned with a potentially fact-laden qualified immu-
nity inquiry, the dispositive factor in Johnson, the question of
separability is easily resolved. A determination of whether
section 105(c) covers MSHA employees acting under color of
their authority is completely independent from the merits of
whether petitioners committed the acts charged in the com-
plaint. It has little, if anything, to do with the substance of
the underlying allegations. As in Mitchell v. Forsyth, which
provides an instructive analogy for assessing each of the
Cohen factors, we confront a pure and independent question
of law. See Mitchell, 472 U.S. at 528.

The next two prongs present more difficult questions and
require a more in-depth analysis. We begin with Mitchell,
wherein the Supreme Court concluded that a district court's
rejection of the defendant's qualified immunity-based sum-
mary judgment motion constituted a "final decision" subject
to immediate appellate review. After first interpreting quali-
fied immunity as providing an entitlement to avoid the bur-
dens of both discovery and trial, the Court determined that a
denial of qualified immunity, in certain circumstances, must
be immediately appealable. Because immunity from the bur-
dens of litigation "is effectively lost if a case is erroneously

permitted to go to trial," id. at 526, the policies underlying
qualified immunity favored resolution of certain immunity
claims prior to full discovery. We recently described such
claims as "appeals of the 'I cannot, as a matter of law, be held
liable' variety." Farmer v. Moritsugu, 163 F.3d 610, 614
(D.C. Cir. 1998). Although this case does not strictly fall
within the holding of Mitchell, in that we confront petitioners'
assertion that they are not amenable to suit under section
105(c) rather than their being the bearers of qualified immu-
nity,7 we believe that the interests underlying the Court's
decision apply with equal force. First and foremost, the
consequences of unwarranted litigation are analogous--"dis-
traction of officials from their governmental duties, inhibition
of discretionary action, and deterrence of able people from
public service." Mitchell, 472 U.S. at 526 (quoting Harlow,
457 U.S. at 816). To the extent that the Mine Act's anti-
discrimination provision simply does not apply to MSHA
officials, a question which the courts would only have to
answer once, such employees should be immune from the
burdens of administrative and judicial proceedings thereun-
der. This immunity cannot be effective, as the Court recog-
nized in Mitchell, unless it provides a right to avoid suit
altogether rather than a mere defense to liability. See id.
Cf. Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115
F.3d 1020, 1026 (D.C. Cir. 1997) (as immunity under Foreign
Sovereign Immunity Act can only be vindicated if considered
an immunity from burdens of litigation, appeal satisfies three
Cohen factors); Kimbro v. Velten, 30 F.3d 1501, 1503 (D.C.
Cir. 1994) (appeal from order resubstituting original defen-
dant satisfies Cohen criteria as the Westfall Act grants feder-

__________
7 A second distinction lies implicit in this statement, namely that
this case involves an interpretation of 30 U.S.C. s 816(a) rather
than the grant of appellate jurisdiction over district court decisions
contained in 28 U.S.C. s 1291. See United States v. Cisneros, 169
F.3d 763, 767 (D.C. Cir. 1999) ("While the collateral order doctrine
of Cohen is sometimes described as an exception to the final
judgment rule, it is more accurately treated as an interpretation of
'final decisions' as used in 28 U.S.C. s 1291.").

al employees acting within scope of employment immunity
from trial, not merely from liability).

Having reached the conclusion that the lack of any cause of
action against these MSHA employees would operate as a
right against compelled participation in any section 105(c)
proceeding, it inexorably follows, for the reasons stated in
Mitchell, that the unreviewability and conclusiveness prongs
of Cohen are also satisfied. First, the Commission's UMWA
decision conclusively determined the petitioners' claimed right
not to face administrative or judicial proceedings under sec-
tion 105(c). Whether or not the ALJ on remand found that
the officials exceeded their delegated statutory or regulatory
authority, they would have been forced to defend themselves
in these agency proceedings. Accordingly, "Cohen's thresh-
old requirement of a fully consummated decision is satisfied"
in this case. Abney v. United States, 431 U.S. 651, 659
(1977). For the same reason, were the proceedings before
the ALJ to move forward, the Commission's decision would
be effectively unreviewable on appeal. Once administrative
proceedings have run their course, the interest in avoiding
them has been vitiated and cannot be vindicated. See Kiska
Construction Corp. v. WMATA, 167 F.3d 608 (D.C. Cir. 1999)
(since WMATA's interest in avoiding proceedings could not
otherwise be vindicated, determination that it is an agency
subject to D.C. Freedom of Information Act is appealable
collateral order). Accordingly, we conclude that the Commis-
sion's collateral judgment constitutes a "final order" for pur-
poses of 30 U.S.C. s 816(a)(1), and that we have jurisdiction
to hear this petition for review.

B. Are MSHA Officials "Persons" Under the Mine Act?

Section 105(c)(1) of the Mine Act provides, in relevant part,
that "[n]o person shall ... in any manner discriminate
against ... or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any
miner, [or] representative of miners ... because such miner
[or] representative of miners ... has filed or made a com-
plaint under ... this chapter...." 30 U.S.C. s 815(c)(1).
The matter of our jurisdiction resolved, we now face a rather

narrow question of statutory interpretation; i.e., whether the
word "person," as used in this statutory provision, encom-
passes MSHA officials acting under color of their authority.8
Faced with a dispute between the Secretary of Labor and the
Commission over the proper interpretation of the Mine Act,
our analysis necessarily begins with Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See Secretary of Labor v. Federal Mine Safety & Health
Review Comm'n, 111 F.3d 913, 916 (D.C. Cir. 1997) (applying
Chevron to interpretive dispute between the Secretary and
the Commission).

When reviewing an agency's construction of the statute it
administers, Chevron directs the courts first to ask whether
Congress has spoken to the specific question at issue. "If the
intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress." Chevron, 467
U.S. at 842. In undertaking this assessment, we recognize
that difficulty and ambiguity are not synonymous; in other
words, the presence of a difficult question of statutory con-
struction does not necessarily render that provision ambigu-
ous for purposes of Chevron. However demanding the exer-
cise, we must discern whether Congress had an intent on the
precise question we face. Utilizing the traditional tools of
statutory construction, as the Supreme Court instructed in
INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987), we find
that the text and structure of the Mine Act, as well as the

__________
8 Although the MSHA officials have been sued in their personal
capacity, the parties do not dispute that the actions forming the
basis of the two discrimination complaints were taken in the course
of petitioners' official duties. Since we do not confront a question of
sovereign immunity, and we reject the proffered cloak of qualified
immunity, whether or not petitioners' acts exceeded the scope of
their delegated statutory and regulatory authority is ultimately
beside the point. Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949), and Dugan v. Rank, 372 U.S. 609 (1963) do not
apply. Instead, the relevant distinction is between acts taken under
color of authority and actions taken in a purely private capacity.
We limit our discussion to the former.

legislative history, inexorably lead to a single conclusion.
The Mine Act's anti-discrimination provision does not apply to
MSHA employees for actions taken under color of their
authority.9

As always, the starting point of analysis is the text of the
statute. The Mine Act defines the term "person" to mean
"any individual, partnership, association, corporation, firm,
subsidiary of a corporation, or other organization." 30 U.S.C.
s 802(f). The UMWA contends that, in ordinary usage,
MSHA officials10 are clearly "individuals," and should there-
fore be held subject to suit under section 105(c). In response,
petitioners point to a number of statutes in which Congress
has expressly included public officials or employees within the
definition of the term "persons." See, e.g., 15 U.S.C. s 330(2)
(person "means any individual, corporation ... or any other
organization ... performing weather modification activities,
except where acting solely as an employee, agent, or indepen-
dent contractor of the Federal Government"); 16 U.S.C.
s 470bb(6) (person means "an individual, corporation ..., or
any other private entity or any officer, employee, agent,
department, or instrumentality of the United States"); 16

__________
9 Because we resolve this case under Chevron's first prong, we
need not determine whether the deference that the Secretary
customarily receives when interpreting the Mine Act should obtain
when the Secretary's reading would limit the scope of external
oversight to which the Secretary could otherwise be subject. Cf.
Secretary of Labor v. Federal Mine Safety & Health Review
Commission, 111 F.3d 913, 920 (D.C. Cir. 1997) (Secretary, not the
Commission, is entitled to deference in interpreting 30 U.S.C
s 814(d)(1)).

10 Because the complaints are against the MSHA officials in their
individual, rather than official capacity, the Will-Wilson rule--that
absent an affirmative contrary showing of legislative intent, "the
term 'person' does not include the sovereign, [and] statutes employ-
ing the [word] are ordinarily construed to exclude it"--does not
apply. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64
(1989) (quoting Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667
(1979) (quoting United States v. Cooper Corp., 312 U.S. 600, 604
(1941))) (alteration in original).

U.S.C. s 4903(4) (defining person as "an individual, corpora-
tion, partnership, trust, association, or any other private
entity; or any officer, employee, agent, department, or instru-
mentality of the Federal Government ..."); 18 U.S.C.
s 2510(6) (person means "any employee, or agent of the
United States or any State or political subdivision thereof,
and any individual, partnership, association, joint stock com-
pany, trust, or corporation"); 33 U.S.C. s 1402(e) (person
means "any private person or entity, or any officer, employee,
agent, department, agency, or instrumentality of the Federal
Government ..."); 50 U.S.C. s 1801(m) (person means "any
individual, including any officer or employee of the Federal
Government ..."). Given the fact that Congress has else-
where utilized the term "person" both to include and to
exclude government officials from its coverage, we do not
believe that because MSHA employees are literally "individu-
als," that they are necessarily encompassed by the Mine Act's
use of that term. See Bell Atlantic Tel. Cos. v. FCC, 131 F.3d
1044, 1045 (D.C. Cir. 1997) (plain meaning and literal meaning
are not equivalents). Focusing on the text alone, the plain
meaning is elusive.11

For clarification, we next look to the text and structure of
the Mine Act as a whole, and to the dual-enforcement regime
established thereby. In so doing, we "follow the cardinal rule
that a statute is to be read as a whole," King v. St. Vincent's
Hosp., 502 U.S. 215, 221 (1991) (citing Massachusetts v.
Morash, 490 U.S. 107, 115 (1989)), "since the meaning of
statutory language, plain or not, depends on context." Con-
roy v. Aniskoff, 507 U.S. 511, 515 (1993). This shift in

__________
11 We additionally reject petitioners argument that MSHA em-
ployees cannot be considered "persons" under the Mine Act because
they are instead encompassed by the term the "Secretary." We
can divine no reason why terms defined by the statute need be
considered mutually exclusive; in fact, other terms clearly spill over
into one another. A mining company, for example, would be both a
"person" and an "operator." See 30 U.S.C. s 802(d) (" 'operator'
means any owner, lessee, or other person who operates, controls, or
supervises a coal or other mine ..."); 30 U.S.C. s 802(f) (" 'person'
means any ... corporation, firm ...").

perspective is ultimately dispositive; by moving beyond the
text of section 105(c) to examine the statutory scheme in
which it reposes, the implausibility of the UMWA's proffered
construction becomes undeniable. Cf. Hiler v. Brown, No.
98-5014, 1999 WL 314633, at *3 (6th Cir. May 20, 1999)
(rejecting literal reading of "person" where individual capaci-
ty suits against federal officials for unlawful retaliation would
frustrate the Rehabilitation Act's statutory framework). Re-
plicating the division of responsibilities between the Secretary
of Labor and the Occupational Safety and Health Review
Commission, the Mine Act places adjudicative authority in the
Federal Mine Safety and Health Review Commission, an
independent agency whose sole function lies in resolving
claims brought under the Mine Act. Responsibility for en-
forcement of its protections, by contrast, rests primarily in
the Secretary of Labor's hands.12 When a miner files a
section 105(c) discrimination complaint, the Mine Act directs
the Secretary to undertake an immediate investigation and,
should the Secretary countenance the discrimination claim, to
file an immediate complaint with the Commission. See 30
U.S.C. s 815(c)(2). In addition, the Secretary prosecutes
such claims before the Commission, see Wagner, 12
F.M.S.H.R.C. at 1185, and proposes appropriate relief. See
30 U.S.C. s 815(c)(2).13 Were the term "persons" read to
encompass MSHA officials acting in their official capacity,

__________
12 Strictly speaking, responsibility for enforcing the Mine Act
rests with the Secretary, acting through the Mine Safety and
Health Administration. See 29 U.S.C. s 557a ("There is established
in the Department of Labor a Mine Safety and Health Administra-
tion to be headed by an Assistant Secretary of Labor for Mine
Safety and Health.... The Secretary is authorized and directed,
except as specifically provided otherwise to carry out his functions
under the [Mine Act] through the Mine Safety and Health Adminis-
tration.") (emphasis added). Since the Mine Act speaks in terms of
"the Secretary," rather than the more descriptive "the Secretary,
acting through the MSHA," we shall do the same.

13 As this case illustrates, the Mine Act leaves a residual capacity
to initiate proceedings before the Commission in the hands of
individual miners. See 30 U.S.C. s 815(c)(3).

this distribution of authority would leave the Secretary in the
anomalous position of initiating formal proceedings against its
own subordinates before an independent agency. We cannot
assume that Congress intended such a bizarre administrative
scheme.

To the extent that MSHA officials merit reprobation for
their on-the-job behavior, the Secretary has the power (sub-
ject to the protections articulated in the Civil Service Reform
Act ("CSRA")) to dispense discipline directly. We do not
lightly cast aside a comprehensive enforcement regime like
the CSRA, which was designed to govern the federal employ-
er-employee relationship and to normalize the procedures for
sanctioning federal employee misconduct. Congress enacted
the CSRA in 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified
as amended in sections of 5 U.S.C. (1996)), specifically to
replace "the haphazard arrangements for administrative and
judicial review of personnel action," United States v. Fausto,
484 U.S. 439, 444 (1988), and "the prior 'patchwork' system of
laws governing federal employment...." Wildberger v.
FLRA, 132 F.3d 784, 787 (D.C. Cir. 1998). It seems implausi-
ble that the identical Congress, without any discussion, would
make a considered judgment to create a totally different
mechanism for malfeasance by federal officials involved in the
mining arena. In addition, reading section 105(c) to encom-
pass MSHA officials would also displace the basic quadrumvi-
rate of remedies--Bivens, the Federal Tort Claims Act
("FTCA"), the Tucker Act, and the Administrative Procedure
Act--otherwise available for those claiming legally redressa-
ble injury from federal action (or inaction).14 See Bivens v.
Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971); 28 U.S.C. s 2671 et seq.
(FTCA); 28 U.S.C. ss 1346, 1491 and other scattered sec-
tions of 28 U.S.C. (Tucker Act); 5 U.S.C. ss 702-06 (APA).
In the absence of even a congressional hint pointing in that

__________
14 Under the UMWA's construction, MSHA officials could risk
section 105(c) "retaliation" complaints whenever they took any
official action unfavorable to miners.

direction, we will not presume this additional mechanism for
miners seeking redress.

Those provisions of the Mine Act discussing the quiver of
remedies and penalties available to the Secretary and the
Commission lend further support to our construction of the
Act's anti-discrimination provision. Section 105(c)(2) and
(c)(3), for example, each grant the Commission power to
order "the rehiring or reinstatement of the miner to his
former position with back pay and interest," 30 U.S.C.
s 815(c)(2)-(3), while section 105(c)(3) additionally provides
authority to order "such remedy as may be appropriate.".
Though the residual grant of equitable authority can be read
as permissive, the focus of the provision as well as the nature
of the enumerated remedies strongly imply that Congress
was considering remedies limited to those available against
mine operators and their agents. This focus can be seen as
well in the Senate Report accompanying passage of the Mine
Act, which contains a similar trilogy of remedies--"reinstate-
ment with full seniority rights, back-pay with interest, and
recompense for any special damages sustained as a result of
the discrimination." S. Rep. No. 95-181 at 37, 1977
U.S.C.C.A.N. at 3437. In light of this purposive statement,
we believe it follows that the residual grant of authority to
order "any other remedy" is designed to ensure that the
Commission can fully compensate miners for unforeseeable
damages; it cannot by itself carry the heavy baggage of
extending the statute's coverage to MSHA employees.

The two additional provisions to which section 105(c) cross-
references also evidence an intent to limit the meaning of the
term "persons" to those affiliated or associated with mining
operations. Relevant language in section 105(c) provides that
"[v]iolations by a person of paragraph (1) [forbidding discrim-
ination] shall be subject to the provisions of sections 818 and
820(a) of this title." 30 U.S.C. s 815(c)(3). 30 U.S.C. s 818
gives the Secretary authority to institute a civil action for
relief against a mine operator, and grants jurisdiction to the
federal district courts to provide whatever relief they deem
appropriate. 30 U.S.C. s 820(a) allows the Secretary to
assess civil penalties of up to $10,000 against mine operators

for violations of either the Mine Act or any of the mandatory
health and safety standards promulgated by the Secretary.
Like the remedies specifically mentioned in section 105(c),
neither provision provides for remedies extending beyond the
individuals and entities involved in the mine industry.

The legislative history only reinforces our construction of
the Mine Act's text and structure; not a single word in any of
the committee reports accompanying its passage even re-
motely intimates that the anti-discrimination provisions were
intended to apply to the actions of government employees
taken under color of their authority. The Mine Act respond-
ed to a series of highly publicized mine disasters which
engendered a pervasive belief that the existing administrative
regime had grossly failed to ensure compliance with safety
standards. Exercising its oversight authority, Congress had
previously identified two broad areas--standard making and
penalty assessment/collection--in which it deemed the De-
partment of Interior's enforcement regime excessively lax.
See S. Rep. No. 95-181, at 8-9, 15-16, reprinted in 1977
U.S.C.C.A.N. at 3408-09, 3415-16. Accordingly, Congress
removed authority over mine safety from the Interior Depart-
ment and placed it in the Department of Labor which, it
reasoned, already supervised most other industries through
the Occupational Safety and Health Act. The Mine Act also
created the independent Federal Mine Safety and Health
Review Commission, providing a specialized adjudicative body
in which miners and operators alike could expeditiously con-
test orders and proposed penalties issuing from the Labor
Department.

The Senate Report repeatedly references the need for
miners and mine operators each to share responsibility for
ensuring compliance with mine safety regulations. Believing
miners to be in the best position to detect and report hazards,
the Act created a number of mechanisms through which they
could notify the MSHA of dangerous conditions, including
written complaints, requests for inspection, and the right to
point out hazards. See 30 U.S.C. s 813(g). According to the
Report, section 105(c) was enacted to protect miners "against
any possible discrimination which they might suffer as a

result of their participation" in this collective effort to pro-
mote safety. See S. Rep. No. 95-181, at 35, 1977
U.S.C.C.A.N. at 3435. Though Congress did not explicitly
name those it envisaged would fall inside and outside of its
anti-discrimination prescription, its attention clearly focused
upon mine operators, as well as "any other person directly or
indirectly involved" with them. Id. at 36, 1997 U.S.C.C.A.N.
at 3436. While this additional language clearly provided a
bulwark against third-party retaliation under the behest of a
mine owner or operator, nothing in the legislative history
signals that Congress considered it as radically extending the
Act's coverage to MSHA employees.

Overall then, nothing in the text, structure, or legislative
history of the Mine Act provides enough support for the
UMWA's contention that section 105(c) applies to MSHA
officials acting under color of their authority to overcome the
natural presumption against such an inference. Indeed, the
thrust of the text, statutory structure and legislative history
goes the other way. We recognize that it might be more
convenient for miners to pursue their complaints against
MSHA officials under this provision, particularly in light of
the expedited regime for processing claims that the Mine Act
mandates. In its current form, however, the Mine Act does
not express any clear congressional intent to displace or
augment the alternative avenues of relief available to those
claiming injury from official action. It is for the legislative
branch to balance the benefits of any extension against the
costs thereby engendered.

III. Conclusion

For the foregoing reasons, we hold that MSHA officials
acting under color of their authority are not amenable to suit
under section 105(c) of the Mine Act. Accordingly, we grant
the petition for review, vacate the Commission's decision, and
remand for the Commission to dismiss the complaints.

So ordered.