CalPortland Company, Inc. v. MSHR

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2016 Decided October 20, 2016

No. 16-1094

CALPORTLAND COMPANY, INC.,
PETITIONER

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
AND SECRETARY OF LABOR, ON BEHALF OF JEFFREY PAPPAS,
RESPONDENTS

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

Brian P. Lundgren argued the cause and filed the briefs
for petitioner. John M. Payne and Selena C. Smith entered
appearances.

Edward Waldman, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief was
W. Christian Schumann, Counsel. John T. Sullivan, Attorney,
Mine Safety and Health Review Commission, entered an
appearance.
 2
Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

SENTELLE, Senior Circuit Judge: CalPortland Company,
Inc. (“CalPortland”) petitions for review of a decision by the
Federal Mine Safety and Health Review Commission
(“Commission”) ordering CalPortland to temporarily reinstate
Jeffrey Pappas, pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C.
§ 815(c)(2), pending final order on Pappas’s underlying
discrimination complaint currently pending before the
Commission. We have jurisdiction over this petition pursuant
to the collateral order doctrine and, because we conclude that
Pappas was an “applicant for employment” who was not
eligible for temporary reinstatement, we grant the petition for
review and vacate the Commission’s decision and order.

I.

“Congress adopted the Mine Act ‘to protect the health
and safety of the Nation’s . . . miners,’” Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 202 (1994) (quoting 30 U.S.C.
§ 801(g)), by “strengthen[ing] and streamlin[ing] health and
safety enforcement requirements” at the Nation’s mines, id. at
211. To accomplish its goals, the Mine Act “charges two
separate agencies with complementary policymaking and
adjudicative functions.” Prairie State Generating Co. LLC v.
Sec’y of Labor, 792 F.3d 82, 85 (D.C. Cir. 2015). The
Secretary of Labor (“Secretary”), acting through the
Department of Labor’s Mine Safety and Health
Administration (“MSHA”), “sets regulatory standards of mine
safety, conducts regular mine inspections, and issues citations
 3
and orders in response to violations.” Id. (citing 29 U.S.C.
§ 557a; 30 U.S.C. §§ 813, 814; Thunder Basin, 510 U.S. at
202–04 & n.5). “The Commission, an adjudicatory body
established as independent of the Secretary, reviews
challenges to MSHA’s actions.” Id. at 85–86 (citing 30
U.S.C. §§ 815(d), 823).

Relevant to this case, the Mine Act also includes a
whistleblower provision, 30 U.S.C. § 815(c), which prohibits
a mine operator from discriminating against a miner or
interfering with a miner’s statutory rights because the miner
engaged in protected activity. Leeco, Inc. v. Hays, 965 F.2d
1081, 1083 (D.C. Cir. 1992); Council of S. Mountains, Inc. v.
FMSHRC, 751 F.2d 1418, 1420–21 (D.C. Cir. 1985). Section
105(c) establishes procedures for the filing and investigation
of complaints made by “[a]ny miner or applicant for
employment” and authorizes the Commission to adjudicate
contested complaints. See 30 U.S.C. § 815(c)(2)–(3);
Simpson v. FMSHRC, 842 F.2d 453, 456 n.3 (D.C. Cir. 1988).

At the center of this case is section 105(c)(2)’s temporary
reinstatement provision. “Because a complaining . . . 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,’” Cobra Nat. Res.,
LLC v. FMSHRC, 742 F.3d 82, 84 (4th Cir. 2014) (quoting S.
Rep. No. 95-181, at 37 (1977)), if the Secretary finds that a
discrimination complaint was “not frivolously brought,” the
Commission “shall order the immediate reinstatement of the
miner pending final order on the complaint,” 30 U.S.C.
§ 815(c)(2). Although section 105(c) protects the rights of
both miners and applicants for employment, the temporary
reinstatement remedy is limited to miners. See id.
§ 815(c)(1)–(3); Piper v. KenAmerican Res., Inc., 35
FMSHRC 1969, 1972 & n.2 (July 3, 2013). Accordingly,
 4
whether a complainant is a “miner” or an “applicant for
employment” is a threshold issue that must be addressed
before determining a complainant’s entitlement to temporary
reinstatement. See Young v. Lone Mountain Processing, Inc.,
20 FMSHRC 927, 932 n.5 (Sept. 4, 1998).

II.

Beginning in or around 1999, Jeffrey Pappas worked as a
miner at the Oro Grande cement plant in San Bernardino
County, California. Martin Marietta Materials, Inc., which
owned the plant through a subsidiary named Riverside
Cement Company, was Pappas’s employer. In 2014, while
working for Martin Marietta at the Oro Grande plant, Pappas
notified management about a supervisor’s potentially unsafe
directions. When management failed to fully address his
concerns, Pappas notified a MSHA inspector, who
investigated and issued several citations to Martin Marietta
for safety violations. After MSHA issued these citations to
Martin Marietta, Pappas’s relationship with his managers and
colleagues at the Oro Grande plant deteriorated, culminating
in his discharge in March 2014. Pappas filed a section 105(c)
discrimination complaint against Martin Marietta in April
2014 that resulted in a Commission-approved settlement
reinstating Pappas to his former position at Oro Grande.
Upon his return to work, his colleagues and direct supervisor
harassed Pappas about his discrimination complaint and his
prior safety concerns. He asked the plant’s upper
management, including Martin Marietta’s Human Resources
manager Jamie Ambrose, to intervene and stop the
harassment, but Martin Marietta’s management took no
action.

On or around June 30, 2015, CalPortland executed a
limited asset purchase agreement with Martin Marietta to
 5
acquire the Oro Grande plant where Pappas worked and three
related facilities, effective October 1, 2015. It is undisputed
that Pappas was never employed by CalPortland, as
CalPortland’s purchase agreement with Martin Marietta did
not include Martin Marietta’s existing labor force and
CalPortland did not agree to hire any of Martin Marietta’s
hourly employees in the purchase agreement.

To ensure that it could take control of the Oro Grande
plant in October 2015 without shutting down the kiln,
CalPortland began the staffing process early. In mid-August
2015, prior to CalPortland’s effective acquisition of the Oro
Grande plant, CalPortland contacted Jamie Ambrose, Martin
Marietta’s Human Resources manager, for advice on hiring
decisions. Soon thereafter, Ambrose was offered and
accepted the Human Resources manager position at
CalPortland. Because of her prior employment with Martin
Marietta, Ambrose knew about Pappas’s previous section
105(c) complaint.

In mid-September 2015, CalPortland invited all of the
employees from the four facilities covered by the asset
purchase agreement, including the employees at the Oro
Grande plant, to apply for employment with CalPortland.
CalPortland did not advertise these positions to the general
public and nearly all of the existing Martin Marietta
employees applied. CalPortland made its hiring decisions on
September 26, 2015, and extended employment offers to
approximately 115 out of 130 applicants, with approximately
100 to 105 of those offered employment accepting positions
with CalPortland. Pappas was one of the applicants from the
Oro Grande plant who was not offered employment by
CalPortland. On September 28, 2015, two days before
CalPortland’s acquisition of the Oro Grande plant, Martin
Marietta told those miners who were not offered employment
 6
by CalPortland to leave the plant immediately and not to
return for their shifts on the following two days. These
individuals, including Pappas, were paid by Martin Marietta
through September 30, 2015, and given severance packages
from Martin Marietta. Then, on October 1, 2015, CalPortland
acquired the Oro Grande plant.

After CalPortland did not hire him, Pappas filed a section
105(c) complaint against CalPortland, 1 and on December 8,
2015, the Secretary, on behalf of Pappas, filed an application
for temporary reinstatement. Notably, the Secretary sought an
order directing CalPortland “to hire” Pappas. In support of
the application, the Secretary relied on a declaration from a
MSHA investigator stating that after Martin Marietta’s
employees were “terminated” and “CalPortland invited the
existing Oro Grande employees to apply for new positions
with CalPortland,” “CalPortland decided not to hire Mr.
Pappas” because of his April 2014 discrimination complaint
against Martin Marietta. (emphasis added).

Focusing on Pappas’s employment at the Oro Grande
plant and Martin Marietta’s active role in CalPortland’s hiring
decisions, the Administrative Law Judge concluded that
Pappas was a “miner” for purposes of section 105(c) and
approved the Secretary’s application on January 12, 2016.
See Pappas v. CalPortland Co., 38 FMSHRC 53, 58–61, 66
(Jan. 12, 2016); see also 29 C.F.R. § 2700.45(c) (allowing
operator to request hearing before an ALJ following receipt of
Secretary’s application for temporary reinstatement). The
Commission, in a 4-1 decision, affirmed the ALJ’s decision
1
In his discrimination complaint filed with the MSHA, Pappas
named “Riverside Cement” and “Martin Marietta” as the
respondents, alleging a discriminatory “layoff/refusal of
employment”; however, the Secretary ultimately sought an
application for temporary reinstatement against CalPortland.
 7
on February 8, 2016. See Pappas v. CalPortland Co., 38
FMSHRC 137 (Feb. 8, 2016); see also 29 C.F.R. § 2700.45(f)
(describing procedure for review by the Commission of an
ALJ’s temporary reinstatement order).

In affirming the ALJ’s decision, the Commission found
that CalPortland’s hiring process, which the Commission
characterized as “miner retention decisions” or “rehiring”
decisions, occurred while Pappas was “[u]nquestionably” a
“miner” at the Oro Grande plant. See Pappas, 38 FMSHRC
at 141–42. Based on the fact that Jamie Ambrose, who was
aware of Pappas’s prior section 105(c) complaint, was
involved in CalPortland’s hiring process, see id., the
Commission held that CalPortland’s “decision-making
process . . . was done in conjunction with Martin Marietta,”
id. at 142; see also id. at 144 (“Pappas has alleged that he was
the victim of a joint decision-making process involving
Martin Marietta and CalPortland.”). The Commission
concluded that because “[t]emporary reinstatement was
designed to maintain the status quo while miners proceed with
their discrimination claims[,] [p]ermitting Pappas, who had
worked at the Oro Grande cement plant for 16 years, to
continue working at that plant pending the resolution of this
matter, is consistent with this underlying Congressional
intent.” Id. at 144.

On February 22, 2016, the Commission denied
CalPortland’s petition for reconsideration. CalPortland filed
its petition for review with this Court on March 8, 2016. On
appeal, CalPortland does not challenge the Commission’s
determination that Pappas’s complaint was not frivolously
brought, see id. at 144–47, but argues that the Commission
erred in holding that Pappas was a “miner” rather than an
“applicant for employment” for purposes of section
105(c)(2)’s temporary reinstatement provision.
 8
III.

While neither party disputes that we have jurisdiction
over a section 105(c)(2) temporary reinstatement order, we
have “a special obligation” to satisfy ourselves of our own
jurisdiction. Micei Int’l v. Dep’t of Commerce, 613 F.3d
1147, 1151 (D.C. Cir. 2010) (quoting Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986)).

A.

Section 106(a) of the Mine Act provides that any person
adversely affected by “an order” of the Commission may
obtain judicial review of “such order.” 30 U.S.C. § 816(a)(1).
Although the Mine Act refers to an “order” rather than to a
“final order,” we have held that “the Mine Act limits appellate
review to final agency action.” Meredith v. FMSHRC, 177
F.3d 1042, 1047–48 (D.C. Cir. 1999). Two conditions must
be satisfied for an action to be considered “final”:

First, the action must mark the consummation of
the agency’s decisionmaking process—it must
not be of a merely tentative or interlocutory
nature. And second, the action must be one by
which rights or obligations have been
determined, or from which legal consequences
will flow.

U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807,
1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78
(1997)). In light of the fact that “[a] final order need not
necessarily be the very last order,” NetCoalition v. SEC, 715
F.3d 342, 351 (D.C. Cir. 2013) (citation and internal quotation
marks omitted), “there is a close issue of whether [a section
105(c)(2) temporary reinstatement] order is a final one for
 9
purposes of appellate review.” Jim Walter Res., Inc. v.
FMSHRC, 920 F.2d 738, 744 (11th Cir. 1990); see also
Cobra, 742 F.3d at 93–96 (Agee, J., dissenting) (concluding
that a temporary reinstatement order is “a final order for
purposes of appeal”); N. Fork Coal Corp. v. FMSHRC, 691
F.3d 735, 738–39 (6th Cir. 2012) (considering appeal from
temporary reinstatement order without analyzing jurisdiction
and noting that parties may seek judicial review of the
Commission’s “final order” (citing 30 U.S.C. § 816(a))). But
given the “pragmatic and flexible nature” of the finality
inquiry, Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023,
1027 (D.C. Cir. 2016) (citations and internal quotation marks
omitted), we need not directly resolve this issue because, as
explained below, we conclude that the Commission’s order
directing CalPortland to hire Pappas is immediately
appealable pursuant to the collateral order doctrine.

B.

Courts of appeals “have jurisdiction of appeals from all
final decisions of the district courts of the United States, . . .
except where a direct review may be had in the Supreme
Court.” 28 U.S.C. § 1291 (emphasis added). But the
Supreme Court has given 28 U.S.C. § 1291 “a ‘practical
rather than a technical construction,’” meaning that “the
statute encompasses not only judgments that ‘terminate an
action,’ but also a ‘small class’ of collateral rulings that,
although they do not end the litigation, are appropriately
deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 106 (2009) (quoting Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545–46 (1949)). We have also
explained that “[t]he collateral order doctrine extends beyond
the confines of 28 U.S.C. § 1291 to encompass the principle
of administrative finality contained in section 106(a) of the
Mine Act.” Meredith, 177 F.3d at 1050. We are mindful,
 10
however, that the collateral order doctrine is “a limited
exception to the final judgment rule,” United States v. Fokker
Servs. B.V., 818 F.3d 733, 747 (D.C. Cir. 2016) (citing Cohen,
337 U.S. 541), that “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,’” Mohawk
Indus., 558 U.S. at 106 (quoting Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994)).

To come within the scope of the collateral order doctrine,
an order must: “(i) conclusively determine[] a disputed
question; (ii) resolve[] an important issue completely separate
from the merits of the action; and (iii) [be] effectively
unreviewable on appeal from a final judgment.” Meredith,
177 F.3d at 1048 (citing Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978)). Each of these conditions must be
satisfied for an order “to qualify as an immediately-appealable
collateral order.” Fokker Servs., 818 F.3d at 748; see also
Mohawk Indus., 558 U.S. at 107–08.

Although we have applied the collateral order doctrine to
issues arising under section 105(c) of the Mine Act, see
Meredith, 177 F.3d at 1048–52, we have not determined
whether a section 105(c)(2) temporary reinstatement order is
subject to the collateral order doctrine. The Seventh and
Eleventh Circuits have determined that such orders are
reviewable under the collateral order doctrine, Vulcan Constr.
Materials, L.P. v. FMSHRC, 700 F.3d 297, 300 (7th Cir.
2012); Jim Walter, 920 F.2d at 744–45 (determining in the
11th Circuit), but the Fourth Circuit has reached the opposite
conclusion, Cobra, 742 F.3d at 88–92. For the following
reasons, we conclude that all three requirements are satisfied
in this case and, therefore, the Commission’s temporary
reinstatement order is an immediately appealable order under
the collateral order doctrine.
 11
First, the Commission’s order directing CalPortland to
hire Pappas conclusively determined the temporary
reinstatement issue. To satisfy the conclusiveness condition,
an order must be “a fully consummated decision,” Meredith,
177 F.3d at 1052 (quoting Abney v. United States, 431 U.S.
651, 659 (1977)), that “conclusively and finally determined”
the issue, In re Sealed Case (Med. Records), 381 F.3d 1205,
1209 (D.C. Cir. 2004) (citation and internal quotation marks
omitted). The Commission’s temporary reinstatement order
“is a ‘fully consummated’ decision, and there are literally ‘no
further steps’ that [CalPortland] can take in order to avoid the
Commission’s order at the agency level.” Jim Walter, 920
F.2d at 744 (quoting Mitchell v. Forsyth, 472 U.S. 511, 527
(1985)). Even if the temporary reinstatement order was
“technically subject to modification, . . . [‘]there is no basis to
suppose that the [Commission] contemplated any
reconsideration of [the] decision.’” Obaydullah v. Obama,
609 F.3d 444, 447 (D.C. Cir. 2010) (quoting Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12–13
(1983)). In fact, the Commission denied CalPortland’s
petition for reconsideration on February 22, 2016, which
suggests that its decision was not merely “tentative or subject
to revision.” Sealed Case, 381 F.3d at 1209 (citation and
internal quotation marks omitted).

Second, the Commission’s order satisfies the separability
condition. A temporary reinstatement order has “no bearing”
on the ultimate resolution of a complaint, as the complainant’s
discrimination case proceeds regardless of the Commission’s
holding on the temporary reinstatement application and the
temporary reinstatement order does not affect the merits
decision. Cobra, 742 F.3d at 98 (Agee, J., dissenting). This
case also concerns a threshold issue—whether Pappas was a
“miner” or an “applicant for employment” for purposes of his
complaint—that is “completely independent from the merits
 12
of whether [CalPortland] committed the acts charged in the
complaint.” See Meredith, 177 F.3d at 1051–52. Because
both miners and applicants for employment are protected by
the Act but only miners are eligible for temporary
reinstatement, whether Pappas was a miner or an applicant is
relevant only to the temporary reinstatement issue and need
not be addressed in the merits decision.

Third, temporary reinstatement orders involve important
interests that will be effectively unreviewable on appeal from
a final order on the complaint. The “crucial question” in
analyzing this condition is “whether deferring review until
final judgment so imperils the interest as to justify the cost of
allowing immediate appeal of the entire class of relevant
orders.” Mohawk Indus., 558 U.S. at 108. During the period
between the issuance of the temporary reinstatement order
and the final order on the complaint—in this case, the ALJ’s
decision issued on January 12, 2016, and the underlying
merits hearing on Pappas’s complaint is scheduled for
December 6-9, 2016—an operator may be unnecessarily
forced to pay wages and employ a worker who has no
meritorious claim with no procedure available to recoup these
expenses. See Cobra, 742 F.3d at 95, 99 (Agee, J.
dissenting). Miners have even more significant interests at
stake. A miner, who “may not be in the financial position to
suffer even a short period of unemployment or reduced
income pending resolution of the discrimination complaint,”
id. at 96 (quoting S. Rep. No. 95-181, at 37 (1977)), may
suffer irreparable financial harm if his right to appeal from an
adverse decision is foreclosed. Denying immediate review of
an order on temporary reinstatement may also have a chilling
effect on a miner’s willingness to report safety complaints.
See id. at 99. And, because an appeal from the final order on
the complaint need not reach issues concerning temporary
reinstatement, the parties would “effectively lose any
 13
opportunity for a judicial hearing of [their] claims.” Jim
Walter, 920 F.2d at 745; see also Cobra, 742 F.3d at 98
(Agee, J., dissenting) (explaining that “any issues related to
the temporary order [are] effectively moot” when the
Commission issues the final order on the complaint). This
lack of appealability is particularly concerning when, as here,
there is a dispute over the threshold issue of whether a
complainant is eligible for temporary reinstatement. See
Meredith, 177 F.3d at 1052 (“Once administrative
proceedings have run their course, the interest in avoiding
them has been vitiated and cannot be vindicated.”) (citation
omitted).

Because the Commission’s temporary reinstatement order
satisfies the requirements of the collateral order doctrine, we
have jurisdiction to hear this petition for review.

IV.

As noted, CalPortland timely petitioned for review,
arguing that the Commission erred when it affirmed the ALJ’s
decision ordering CalPortland to “reinstate” Pappas even
though Pappas had never been employed by CalPortland. We
review the Commission’s legal conclusions de novo and its
findings of fact for substantial evidence. Am. Coal Co. v.
FMSHRC, 796 F.3d 18, 23 (D.C. Cir. 2015).

A.

The Secretary’s reasonable interpretation of the Mine Act
is accorded deference by both the Commission and this Court
under the familiar two-step Chevron standard. Am. Coal, 796
F.3d at 23-24 (citations omitted); see also Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–45
(1984). The Secretary’s litigating position before the
 14
Commission, which “is as much an exercise of delegated
lawmaking powers as is the Secretary’s promulgation of a . . .
health and safety standard,” is also entitled to Chevron
deference. Am. Coal, 796 F.3d at 24 (citations and internal
quotation marks omitted).

“Under the first step of Chevron we consider whether
Congress has unambiguously addressed the question.” Id. at
23–24. As the Supreme Court has made clear, “[a]gencies
exercise discretion only in the interstices created by statutory
silence or ambiguity; they must always give effect to the
unambiguously expressed intent of Congress.” Util. Air
Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2445 (2014)
(citation and internal quotation marks omitted). Thus, “[a]n
agency has no power to ‘tailor’ legislation to bureaucratic
policy goals by rewriting unambiguous statutory terms.” Id.
If, however, the Mine Act is “silent or ambiguous with respect
to the specific issue,” Sec’y of Labor v. Excel Mining, LLC,
334 F.3d 1, 6 (D.C. Cir. 2003) (citation and internal quotation
marks omitted), “we ask whether the Secretary’s
interpretation is reasonable,” Am. Coal, 796 F.3d at 24.

B.

In relevant part, section 105(c)(2) of the Mine Act
provides:

Any miner or applicant for employment or
representative of miners who believes that he
has been discharged, interfered with, or
otherwise discriminated against by any person
in violation of this subsection may . . . file a
complaint with the Secretary alleging such
discrimination. . . . [I]f the Secretary finds that
such complaint was not frivolously brought, the
 15
Commission, on an expedited basis upon
application of the Secretary, shall order the
immediate reinstatement of the miner pending
final order on the complaint.

30 U.S.C. § 815(c)(2) (emphasis added). The parties do not
dispute that section 105(c)(2)’s temporary reinstatement
remedy is limited to “miners.” See Piper, 35 FMSHRC at
1972 & n.2. The question, therefore, is whether Pappas was a
“miner” eligible for temporary reinstatement.

The Secretary argues that the term “miner” in section
105(c)(2) is ambiguous as it relates to Pappas. Specifically,
the Secretary asserts that Pappas “was both a ‘miner’ and an
‘applicant for employment’ at the Oro Grande cement plant,”
and contends that section 105(c)(2) does not address the
question of whether a miner who applies for employment with
the future operator of the mine at which the miner is working
qualifies as a “miner” eligible for temporary reinstatement.
Focusing on Pappas’s previous employment for Martin
Marietta, the Secretary argues that Pappas can be “reinstated”
to a position at the Oro Grande plant. The Commission
similarly concluded that Pappas was eligible for temporary
reinstatement because he was “[u]nquestionably” a miner “at
the Oro Grande plant” when CalPortland made its hiring
decisions, Pappas, 38 FMSHRC at 141, and that permitting
Pappas “to continue working at that plant” was consistent
with the “underlying Congressional intent” in the Mine Act,
id. at 144.

“To determine whether the meaning of a statutory
provision is plain, the court’s analysis begins with the most
traditional tool of statutory construction, reading the text
itself.” Wolf Run Mining Co. v. FMSHRC, 659 F.3d 1197,
1200 (D.C. Cir. 2011) (citation, internal quotation marks, and
 16
brackets omitted). In making this determination, we consider
“the particular statutory language at issue, as well as the
language and design of the statute as a whole.” Id. (citation
and internal quotation marks omitted). “Ambiguity is a
creature not of definitional possibilities but of statutory
context,” Brown v. Gardner, 513 U.S. 115, 118 (1994) (citing
King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991)), and
“the presence of a difficult question of statutory construction
does not necessarily render that provision ambiguous,”
Meredith, 177 F.3d at 1053. In short, we defer to an agency’s
interpretation of a statute “only when the devices of judicial
construction have been tried and found to yield no clear sense
of congressional intent.” Gen. Dynamics Land Sys., Inc. v.
Cline, 540 U.S. 581, 600 (2004) (citing INS v.
Cardoza-Fonseca, 480 U.S. 421, 446–48 (1987)).

The Mine Act broadly defines a “miner” as “any
individual working in a coal or other mine,” 30 U.S.C.
§ 802(g), and Pappas was undeniably a “miner” for Martin
Marietta at the Oro Grande plant during the relevant period.
But this case concerns the use of the term “miner” in the
specific context of section 105(c)(2)’s temporary
reinstatement provision. Thus, the question at issue in this
case is whether Pappas is a “miner” who is eligible for
reinstatement. We conclude that Congress’s use of the word
“reinstatement” in section 105(c)(2) provides a “clear sense of
congressional intent” on this issue. See Gen. Dynamics, 540
U.S. at 600.

To “reinstate” means to “restore []someone . . . to their
[sic] former position,” THE NEW OXFORD AMERICAN
DICTIONARY 1428 (2d ed. 2005) (emphasis added); see also
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1915
(1993) (“[T]o instate again[;] place again[] as in . . . a former
position[.]” (emphasis added)); Reinstate, BLACK’S LAW
 17
DICTIONARY 1477 (10th ed. 2014) (“To place again in a
former state or position; to restore . . . .” (emphasis added)),
and section 105(c)(2) explicitly ties “reinstatement” with the
miner’s “former position.” See 30 U.S.C. § 815(c)(2) (stating
that the Commission may require an offender to take
affirmative action to abate a violation, “including . . . the
rehiring or reinstatement of the miner to his former position”
(emphasis added)). We agree with the Commission that, “[a]s
a purely logical and semantic matter, one cannot be
‘reinstated’ to a position he has never held,” Piper, 35
FMSHRC at 1972 n.2, and the Secretary acknowledges that
the definition of reinstatement “may preclude an individual
from being reinstated ‘to a position he never held.’”

In this case, it is undisputed that Pappas has never been
employed by or worked for CalPortland; during the relevant
time period, he was a miner employed by Martin Marietta.
See, e.g., Pappas, 38 FMSHRC at 141–42 (finding that
Pappas was a “miner” eligible for temporary reinstatement
because he was “a ‘miner’ employed by Martin Marietta”
when CalPortland decided not to hire him and he
“experienced the effect of CalPortland’s decision not to hire
him while he was still a miner working for Martin Marietta”
(emphases added)). In a final decision, CalPortland, as the
successor operator of the Oro Grande plant, could perhaps be
ordered to instate Pappas if it was found to have violated the
Mine Act when it failed to hire him, see 30 U.S.C.
§ 815(c)(2), but it cannot be ordered to “reinstate” Pappas to a
position he never held at this preliminary stage in the
proceedings. Id. (emphasis added). Furthermore, because
Pappas was never employed by CalPortland, the involvement
of Ambrose in CalPortland’s hiring process, and her
subsequent employment with CalPortland, does not affect
“the status of Mr. Pappas as an applicant for employment with
CalPortland.” Pappas, 38 FMSHRC at 152 (Althen,
 18
dissenting). While allegations concerning Ambrose’s
involvement in CalPortland’s hiring decisions could be
evidence of CalPortland’s discrimination, they do not affect
Pappas’s status as an applicant for employment for purposes
of section 105(c)(2).

In an attempt to create an ambiguity in the statute, the
Secretary relies on the fact that Pappas was a miner, not with
CalPortland, but at the Oro Grande plant. The Secretary,
however, fails to identify any language in the Mine Act
suggesting that the temporary reinstatement provision applies
to a physical location rather than to an employer. The
Commission’s own precedent illustrates that this remedy
applies to a specific employer, not to a mine. See Piper, 35
FMSHRC at 1972–73 (concluding that complainant “was not
a mere ‘applicant’ for a position with KenAmerican” because
“[h]e had actively worked in KenAmerican’s mine” and the
“genesis” of the complaint was the miner’s dismissal by
KenAmerican (emphasis added)); Lone Mountain, 20
FMSHRC at 930 (holding that the complainant, who was a
miner for Arch of Kentucky, “was not a complaining ‘miner’
for purposes of the Mine Act” and his complaint against Lone
Mountain, which arose out of his application for employment
with Lone Mountain). The mere fact that Pappas may have
been both a miner and an applicant for employment does not
establish that he was a miner for purposes of his complaint
against CalPortland. See, e.g., Sec’y of Labor v. Mullins, 888
F.2d 1448, 1452 (D.C. Cir. 1989) (“The fact that [the
operator] also violated § 105(c) at an earlier point in time by
interfering with Keene’s statutorily protected rights while he
was still a miner within the meaning of the Act does not
insulate [the operator’s owner and president] from liability for
subsequently interfering with Keene’s statutorily protected
rights in his capacity as an applicant for employment.”
(emphasis added)).
 19
Applying section 105(c)(2) to the facts of this case,
because he had “no prior work history” and “no prior
relationship” with CalPortland, cf. Piper, 35 FMSHRC at
1973, we conclude that Pappas was an applicant for
employment for purposes of his discrimination complaint
against CalPortland. Although Pappas was obviously a
“miner” in that he was employed by Martin Marietta at the
Oro Grande plant, both CalPortland and the Secretary agree
that Pappas applied for a new position at CalPortland and the
alleged discriminatory act was CalPortland’s failure to hire
him. The literal fact that Pappas had been employed as a
miner for a different employer at the Oro Grande plant does
not distinguish him from any other “applicant for
employment” with CalPortland for purposes of section
105(c)(2). Therefore, Pappas was an “applicant for
employment” and was not eligible for temporary
reinstatement.

***

For the reasons stated, “regular interpretive method
leaves no serious question” as to congressional intent in this
case. Gen. Dynamics, 540 U.S. at 600. The text and structure
of section 105(c)(2) of the Mine Act preclude the
Commission from directing an owner or operator to
temporarily “reinstate” a complainant who has never been
employed by that owner or operator. Because Pappas was an
“applicant for employment” who was not eligible for
temporary reinstatement pending final order on his complaint,
we grant CalPortland’s petition for review and vacate the
Commission’s decision and order.

So ordered.