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.