The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2024 Decided June 3, 2025
No. 24-1058
SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER
v.
INDUSTRIAL TURNAROUND CORPORATION AND FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENTS
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Edward V. Hartman, Senior Trial Attorney, U.S.
Department of Labor, argued the cause for petitioner. With him
on the briefs was Emily Toler Scott, Counsel for Appellate
Litigation.
Adrianne Chillemi argued the cause for respondents. With
her on the brief were Allen L. West and Roger M. Stevens.
Thaddeus J. Riley entered an appearance.
Before: RAO and PAN, Circuit Judges, and GINSBURG,
Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: In August 2022, a bin
full of phosphate rock collapsed on three miners, who were
severely injured. Industrial TurnAround Corporation (ITAC)
was the independent contractor tasked with checking the
structural integrity of the support columns for the bin. The
Mine Safety and Health Administration (MSHA) sent a notice
of a proposed penalty to the address of record for ITAC,
alleging a failure to take defective equipment out of service as
required by 30 C.F.R. § 56.14100(c). As ITAC did not contest
the penalty, it became final 30 days later. Shortly thereafter,
ITAC filed a motion with the Federal Mine Safety and Health
Review Commission to reopen the penalty on the ground that
ITAC had inadvertently failed to update its address of record,
which motion the Commission granted. The MSHA now
petitions for review of that order, arguing the Commission
abused its discretion by reopening the penalty. We hold the
Commission’s order is not an appealable collateral order and
therefore dismiss the Secretary’s petition for lack of
jurisdiction.
I. Background
This petition involves the reviewability of a nonfinal
order under the collateral order doctrine. We begin with back-
ground regarding the MSHA penalty scheme and the facts of
this case.
A. Legal Background
The Mine Safety and Health Act (hereinafter the Act)
authorizes MSHA inspectors to issue citations to mine
operators and their independent contractors for a violation of
an applicable safety or health standard. 30 U.S.C. § 814(a); id.
3
§ 802(d) (defining “operator” to include an independent con-
tractor). After an inspector issues a citation, the Secretary
calculates a proposed penalty and “notif[ies] the operator by
certified mail of the civil penalty proposed to be assessed.” 30
U.S.C. § 815(a); 30 C.F.R. § 100.7(a). Service of that notice is
deemed “completed upon delivery . . . or mailing to the
independent contractor’s address of record” on file with the
agency. 30 C.F.R. § 45.5. The Act requires every operator of a
mine subject to the Act to maintain a current address with the
agency. 30 U.S.C. § 819(d).
A proposed penalty becomes final “and not subject to
review by any court or agency” 30 days after it was served on
the operator unless the operator first notifies the Secretary that
it intends to contest the penalty. 30 U.S.C § 815(a); 30 C.F.R.
§ 100.7(c). The Commission has asserted, however, that it has
“jurisdiction to reopen uncontested assessments that have
become final Commission orders” under § 815(a). ITAC, 46
FMSHRC 80 (2024) (citing Jim Walter Res., Inc., 15
FMSHRC 782, 786–89 (1993)) (dictum). In deciding whether
to reopen a penalty assessment, the Commission is guided, “so
far as practicable,” id. (citing 29 C.F.R. § 2700.1(b)), by
Federal Rule of Civil Procedure (FRCP) 60(b), which allows
for relief from a final order because of “mistake, inadvertence,
surprise, or excusable neglect.”
B. Factual Background
On August 22, 2022 three miners were injured by the
collapse of a bin full of phosphate rock at the Lee Creek Mine
in Beaufort, North Carolina. On September 27, 2022 the
MSHA issued a citation to ITAC, the independent contractor
responsible for the structural safety of the bin. On March 30,
2023, the MSHA sent a notice of proposed penalty in the
amount of $33,983 to ITAC’s address of record, which was 14
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years out of date. That notice was delivered on April 3, 2023,
accepted by an unknown person, and became final 30 days later
because ITAC did not respond to it.
On June 5, 2023 ITAC filed a motion with the
Commission to reopen the penalty determination. Invoking the
justifications set out in FRCP 60(b), ITAC said its failure to
contest the penalty was the result of “excusable neglect,
mistake or inadvertence,” not of “indifference, inattention,
inadequate or unreliable office procedures or general
carelessness.” ITAC explained that it had not occupied the
address to which the MSHA sent the notice of proposed penalty
since 2009 and that it had discovered the MSHA notice only
on May 25, 2023, when one of its employees went to the
address to check for missing packages. Shortly thereafter,
ITAC’s counsel called the MSHA to inquire about the penalty
and was told the penalty was final because it had not been
contested within the 30-day statutory limit.
The Secretary of Labor, representing the MSHA,
opposed ITAC’s motion. The Secretary argued the MSHA
properly mailed the notice of proposed penalty to ITAC’s
address of record, and ITAC’s failure to pick up the notice
could not be excused under the standards of FRCP 60(b).
The Commission granted ITAC’s motion to reopen on
February 16, 2024 and remanded the matter to an
administrative law judge for further proceedings. The
Commission held ITAC’s failure to respond was an excusable
mistake for two reasons: (a) “the recipient of [the] delivery is
unclear” because ITAC cannot identify who signed for the
package, and (b) “it appears that ITAC may not have been
aware that its former address was listed as its address of record
. . . since ITAC has received only two citations since 2009,
including the citation at issue.”
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Commissioner Baker dissented, noting that the
Commission has denied prior motions to reopen a final penalty
based upon an operator’s failure to maintain a correct address
of record. Indeed, he continued, ITAC’s explanation of its
failure “is itself an independent violation of the Mine Act that
could have been cited.” The Secretary then petitioned this court
for review of the reopening order.
II. Analysis
The Secretary recognizes, of course, that ordinarily
“appellate review of administrative action is restricted to final
agency orders.” Meredith v. Fed. Mine Safety & Health Rev.
Comm’n, 177 F.3d 1042, 1047 (D.C. Cir. 1999). “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.” Id. at 1047
(cleaned up). The Supreme Court, however, has long held “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,” id. at 1048, identified with
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
That doctrine “accommodates a small class of rulings, not
concluding the litigation, but conclusively resolving claims of
right separable from, and collateral to, rights asserted in the
action.” Will v. Hallock, 546 U.S. 345, 349 (2006) (cleaned up).
The Secretary concedes, as she must, that the
Commission’s order is not a final agency action. The order
merely remanded the matter for further proceedings. Meredith,
177 F.3d at 1047 (finding a Commission order remanding
proceedings to an administrative law judge “outside the
heartland of final action”). It did not “impose an obligation,
deny a right, or fix some legal relationship[.]” Id. (cleaned up).
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The Secretary argues instead that the collateral order doctrine
applies.
The collateral order doctrine provides that an agency
order qualifies for interlocutory review if it: “[1] conclusively
determines the disputed question, [2] resolves an important
issue completely separate from the merits of the action, and
[3] [is] effectively unreviewable on appeal from a final
judgment.” Will, 546 U.S. at 349 (cleaned up). The Supreme
Court has recognized that both the second and, “[m]ore
significantly,” the third factor incorporate a requirement to
provide a “justification for immediate appeal” that is
“sufficiently strong to overcome the usual benefits of deferring
appeal until litigation concludes.” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009). At base, “the decisive
consideration” in this inquiry “is whether delaying review until
the entry of final judgment would imperil a substantial public
interest or some particular value of a high order.” Id. (cleaned
up) (referring to Will, 546 U.S. at 352–53). Moreover, courts
must avoid an expansive understanding of the collateral order
doctrine, as it “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.” Id. at 106 (cleaned up);
accord O’Connell v. U.S. Conf. of Cath. Bishops, 134 F.4th
1243, 1253 (D.C. Cir. 2025).
We agree with ITAC that the Commission’s order,
although “completely separate from the merits” of the case
before the Commission, is not sufficiently important to merit
review at this stage of the proceedings. Accordingly, “we do
not decide whether the other Cohen requirements are met.”
Mohawk Indus., 558 U.S. at 108 (concluding the collateral
order doctrine did not apply based upon the third Cohen factor
without considering the other factors); see also United States
v. Fokker Servs. B.V., 818 F.3d 733, 748 (D.C. Cir. 2016)
7
(addressing only the third factor because it “alone precludes
finding” the collateral order doctrine satisfied).
The Secretary argues that collateral review of an order
granting a motion to reopen does indeed involve an important
issue because interlocutory review would allow the court to
ensure that a final MSHA penalty remains final. In the
Secretary’s view, allowing the Commission “to abuse its
discretion and reopen final orders at its whim, without regard
to facts and reason,” undermines the “enforcement
mechanism” of the Act. In other words, the order implicates
“the Secretary’s statutory right to have final orders remain final
orders,” which enables penalties to deter violations. The
Secretary argues also that the Commission’s decision to reopen
an operator’s penalty implicates “its duty to make reasoned
decisions on cases involving an important statutory right,” an
issue that previously has come before this court in final orders
involving a motion to reopen a final penalty assessment. See
Sec’y of Lab. v. Westfall Aggregate & Materials, Inc., 69 F.4th
902, 911–14 (2023); Lone Mountain Processing, Inc. v. Sec’y
of Lab., 709 F.3d 1161, 1164 (2013).
A review of the Supreme Court’s decisions regarding
the reviewability of collateral orders clarifies the types of
interests substantial enough to qualify as a “particular value of
a high order.” Will, 546 U.S. at 352–53. For example, the
Supreme Court has granted collateral review of decisions
involving absolute and qualified immunity, e.g., id. at 350
(citing Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) and
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)), a state’s
immunity pursuant to the Eleventh Amendment to the
Constitution, see Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993), and a criminal
defendant’s immunity pursuant to the Double Jeopardy Clause
of the Fifth Amendment, see Abney v. United States, 431 U.S.
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651, 660–62 (1977). Deferred review of those cases would
have “imperil[ed] a substantial public interest,” respectively,
“honoring the separation of powers, preserving the efficiency
of government and the initiative of its officials, respecting a
State’s dignitary interests, and mitigating the government’s
advantage over the individual.” Will, 546 U.S. at 352–53.
With regard to the MSHA itself, this court has reviewed
a collateral order granting a request temporarily to reinstate an
employee to his position because deferred review would cause
significant and irreparable financial harm to both the employer
and the employee, could chill “a miner’s willingness to report
safety complaints,” and could effectively eliminate “any
opportunity for a judicial hearing of [the miner’s] claims.”
CalPortland Co., Inc. v. Fed. Mine Safety & Health Rev.
Comm’n, 839 F.3d 1153, 1161 (D.C. Cir. 2016) (cleaned up).
This court has also granted collateral review of an order
subjecting individual MSHA employees to a discrimination
suit because “the consequences of unwarranted litigation
[were] analogous” to those when considering denials of
qualified immunity and because the question at issue “would
only have to [be] answer[ed] once.” Meredith, 177 F.3d 1048–
52.
The Commission’s order in this case is unlike the
orders at issue in those cases. The need for expedited review is
not equivalent to that in CalPortland because, rather than
resulting in irreversible financial harm, the order here merely
delays the payment of a potential penalty to the Government
while the proceedings on the merits of the case go forward. Nor
is the order akin to that in Meredith because reviewing the
motion to reopen here would resolve this case only to open the
door to untold others, each to be resolved on its unique facts.
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The Secretary analogizes the Commission’s order to
remand orders for which other circuits have granted
interlocutory review, but doing so merely highlights the
relative unimportance of the order in this case. The Secretary’s
cases all involved the extent to which an adjudicatory body
could review an enforcement agency’s exercise of prosecuto-
rial discretion either to withdraw or to settle an enforcement
action. See Marshall v. Occupational Safety & Health Rev.
Comm’n, 635 F.2d 544, 548–549 (6th Cir. 1980) (review of
Occupational Safety and Health Review Commission’s
(OSHRC) decision to allow private parties to prosecute a
citation the Secretary had withdrawn); Marshall v. Oil, Chem.
& Atomic Workers Int’l Union, 647 F.2d 383, 387 (3d Cir.
1981) (review of OSHRC’s refusal to approve a settlement
agreement into which the Secretary had entered); Donovan v.
Occupational Safety & Health Rev. Comm’n, 713 F.2d 918,
923–24 (2d Cir. 1983) (same). Each implicated the separation
of powers, which the Court in Will held worthy of immediate
review. 546 U.S. at 352. The Commission’s order here
involves no such constitutional value but only the arguably
arbitrary reopening of a proposed penalty that had
automatically become final for want of notice that the operator
intended to contest the penalty, as required by 30 U.S.C
§ 815(a).
The Commission’s order is more closely analogous to
the order for which the Supreme Court rejected immediate
review in Will. The district court had denied a motion to
dismiss in which the defendant argued the action was barred
under the Federal Tort Claims Act. Id. at 348. After analyzing
its prior cases approving collateral review, the Court held this
decision did not involve any weighty public interest of the sort
underlying the collateral order doctrine. Unlike a denial of
qualified immunity — for which collateral review is
“essential” because “the nub of qualified immunity is the need
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to induce officials to show reasonable initiative when the
relevant law is not clearly established” — the interest affected
by the district court’s decision was “the avoidance of litigation
for its own sake[.]” Id. at 353 (cleaned up).
So, too, here. If an operator files a timely challenge to
a notice of penalty, the Commission is required by statute to
“afford [it] an opportunity for a hearing.” 30 U.S.C. § 815(d).
Assuming a final penalty may be reopened, Commission
precedent requires it to determine whether the operator meets
one of the requirements in FRCP 60(b) for relief from a final
order, to wit, “mistake, inadvertence, surprise, or excusable
neglect.” See, e.g., Commonwealth Mining, LLC, 42 FMSHRC
866 (2020). Nevertheless, the Secretary seeks to expedite
appellate review of that determination when she views as
“unwarranted” a particular Commission decision to reopen a
proceeding after a penalty has become final. In other instances,
the Secretary does not oppose the reopening of a penalty
proceeding because she agrees the operator that has filed the
motion to reopen satisfies the requirements of Rule 60(b). See,
e.g., id. at 867; Hoover Excavating, Inc., 35 FMSHRC 317, 318
(2013). Hence, we see the Secretary’s interest in seeking
expedited review of a decision to reopen a penalty proceeding,
which reflects her evaluation of the Commission’s reasoning,
is precisely “the avoidance of litigation for its own sake.” Will,
546 U.S. at 353; see also Richardson–Merrell, Inc. v. Koller,
472 U.S. 424, 436 (1985) (“If the expense of litigation were a
sufficient reason for granting an exception to the final
judgment rule, the exception might well swallow the rule”
(cleaned up)); O’Connell, 134 F.4th at 1256–57.
The Secretary’s separate interest in ensuring that the
Commission “make reasoned decisions on cases involving an
important statutory right” is similarly unavailing. Although we
have emphasized — and continue to require — that the
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Commission either abide by or distinguish its own precedents,
see Westfall Aggregate, 69 F.4th at 912–14 and Lone Mountain
Processing, 709 F.3d at 1163–64, the Secretary provides no
reason for treating her interest in reasoned decisionmaking as
a “substantial public interest or some particular value of a high
order” that justifies collateral review. Mohawk Indus., 558 U.S.
at 107 (cleaned up). In fact, granting collateral review of every
decision that “involv[es] an important statutory right” would
fundamentally contravene the limiting principles that allow
immediate review of only a “narrow and selective” group of
collateral orders. Will, 546 U.S. at 350.
III. Postlude
Whether the Commission is ever authorized to reopen
a final penalty assessment is not at all clear. As we saw,
§ 815(a) of the Act provides that an uncontested penalty
assessment “shall be deemed a final order of the Commission
and not subject to review by any court or agency” 30 days after
it is served on an operator. The Commission has asserted
authority to reopen final penalty assessments at least since
1993. Jim Walter Res., 15 FMSHRC 782 (dictum). We have
reviewed final judgments in reopened penalty cases on at least
two occasions. In no case, however, has the Commission’s
reopening authority been challenged and therefore we have
neither analyzed nor endorsed the Commission’s reading of the
statute. See Westfall Aggregate, 69 F.4th at 908; Lone
Mountain Processing, 709 F.3d at 1163; see also Gersman v.
Grp. Health Ass’n, Inc., 975 F.2d 886, 897 (D.C. Cir. 1992)
(“Binding circuit law comes only from the holdings of a prior
panel”). The same is true of other Circuits. *
*
See Noranda Alumina, L.L.C. v. Perez, 841 F.3d 661, 666–69 (5th
Cir. 2016) (holding the Commission abused its discretion by denying
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We have no occasion today, however, to decide this
open question under the Act because the Secretary has not
raised it. See Greenlaw v. United States, 554 U.S. 237, 243
(2008) (explaining that “we rely on the parties to frame the
issues for decision and assign to courts the role of neutral
arbiter of matters the parties present”).
IV. Conclusion
For the foregoing reasons, the petition for review is
Dismissed.
an operator’s motion to reopen); Raw Coal Min. Co. v. Sec’y of Lab.,
553 F. App’x 340 (4th Cir. 2014) (holding petitioner forfeited its
argument, which was that the Commission abused its discretion by
denying an operator’s motion to reopen). Other circuits are divided,
however, over a parallel issue with regard to the reopening by the
OSHRC of citations issued by the Occupational Safety and Health
Administration. As in the Act, the Occupational Safety and Health
Act provides that after notice and a period in which to contest a
citation or penalty, it “shall be deemed a final order of the
Commission and not subject to review by any court or agency.” 29
U.S.C. § 659(a). The Third Circuit has held nonetheless that the
OSHRC may reopen a final citation or penalty that meets one of the
conditions in FRCP 60(b), George Harms Const. Co. v. Chao, 371
F.3d 156, 160–63 (3d Cir. 2004), while the Second Circuit has
reached the opposite conclusion, Chao v. Russell P. Le Frois Builder,
Inc., 291 F.3d 219, 229 (2d Cir. 2002).