Secretary of Labor v. Knight Hawk Coal, LLC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2026 Decided March 31, 2026

No. 24-1293

SECRETARY OF LABOR, MINE SAFETY AND HEALTH

ADMINISTRATION,

PETITIONER

v.

KNIGHT HAWK COAL, LLC AND FEDERAL MINE SAFETY AND

HEALTH REVIEW COMMISSION,

RESPONDENTS

Consolidated with 24-1356, 25-1077

No. 24-1294

SECRETARY OF LABOR, MINE SAFETY AND HEALTH

ADMINISTRATION,

PETITIONER

v.

CRIMSON OAK GROVE RESOURCES LLC, ET AL.,

RESPONDENTS

2

Consolidated with 24-1357

On Petitions for Review of Decisions of the

Federal Mine Safety and Health Review Commission

Susannah M. Maltz, Attorney, U.S. Department of Labor,

argued the cause for petitioner. With her on the briefs were

Jonathan L. Snare, Acting Solicitor of Labor, at the time the

brief was filed, and Jonathan Berry, Solicitor of Labor. Daniel

J. Aguilar and Michael S. Raab, Attorneys, U.S. Department of

Justice, entered appearances.

Soren J. Schmidt, appointed by the court, argued the cause

as amicus curiae in support of the orders below. With him on

the briefs was Patrick D. Powers. Gregory G. Garre entered

an appearance.

Before: HENDERSON, CHILDS and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The

Secretary of the Department of Labor (Labor) issued citations

to mine operators in the eleven disputes that underlie these

petitions. The operators contested the citations before the

Federal Mine Safety and Health Review Commission

(FMSHRC or Commission), the adjudicative body responsible

for reviewing the Secretary’s citations and penalties. Then, in

filings labeled either motions to settle or motions to dismiss,

the Secretary sought to modify the citations. In some cases, the

Secretary sought to reduce the proposed penalty while

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removing one or more “significant and substantial” (S&S)

designations—essentially findings that the violations were

especially serious. In others, the Secretary sought to vacate

some, but not all, of the citations she had issued to an operator.

The Secretary declined to explain her S&S removals and

citation vacaturs. Emphasizing that lack of explanation,

Commission administrative law judges (ALJs) denied the

Secretary’s motions to settle or dismiss. The Commission

granted interlocutory review and affirmed. It explained that

section 110(k) of the Mine Act, 30 U.S.C. § 820(k),

constrained the Secretary’s discretion to modify or settle

contested penalties. From those nonfinal orders, the Secretary

filed these petitions for review.

Ordinarily, we possess jurisdiction to review only final

Commission orders. Conceding that the orders here are

nonfinal, the Secretary nevertheless contends that they are

immediately appealable under the collateral-order doctrine.

We conclude that they are not. Requiring the Secretary to await

a final decision will not imperil a substantial public interest.

Hence, the orders will be effectively reviewable after a final

decision and we lack jurisdiction to consider them now.

I. BACKGROUND

A

In the Federal Mine Safety and Health Amendments Act

of 1977 (Mine Act), Pub. L. No. 95-164, 91 Stat. 1290, the

Congress created a split-enforcement scheme to promote the

safety of the mining industry’s “most precious resource—the

miner,” 30 U.S.C. § 801(a). The Labor Secretary, as well as

the Mine Safety and Health Administration (MSHA) that she

directs, exercises enforcement and policymaking powers.

Sec’y of Lab. v. Twentymile Coal Co., 456 F.3d 151, 160–61

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(D.C. Cir. 2006). To that end, the Act requires the Secretary to

promulgate “health or safety standards,” 30 U.S.C. § 811(a),

and to inspect mines for compliance with those standards, id.

§ 813(a). Meanwhile, the Act charges the FMSHRC with

resolving disputes arising under it. Twentymile Coal Co., 456

F.3d at 152. The Commission is an adjudicative entity

comprising five commissioners appointed by the President. 30

U.S.C. § 823(a). The Commission appoints ALJs to issue

initial decisions. Id. § 823(d)(1). A party aggrieved by an ALJ

decision may seek review from the Commission and,

ultimately, the courts. Id. §§ 816(a)(1), 823(d)(2)(A)(i).

If, after inspecting a mine, the Secretary determines that

the mine is noncompliant, she issues a citation. 30 U.S.C.

§ 814(a). Upon learning of the citation, the mine operator may

request a “safety and health conference” to submit mitigating

information. 3 Mine Safety & Health Admin., Program Policy

Manual § 100.6, at 104 (2013). After the meeting, and barring

resolution of the citation, the Secretary issues a “notice of

proposed penalty.” 30 C.F.R. § 100.7(a). The notice imposes

a monetary penalty for the alleged violation. See id. § 100.3(a);

3 Mine Safety & Health Admin., supra, § 100.7(a), at 107–08.

She calculates the amount on the basis of six factors, including

the operator’s negligence, the operator’s record of previous

violations and the violation’s gravity. 30 C.F.R. § 100.3(a)(1).

Some violations of the Act’s health and safety standards

are more serious than others. Reflecting as much, the Act

authorizes the Secretary to identify and designate violations

that could “significantly and substantially contribute to the

cause and effect of a coal or other mine safety or health

hazard.” 30 U.S.C. § 814(d)(1). These are deemed “S&S”

violations. An S&S violation “is a precondition for enhanced

enforcement actions,” Cumberland Coal Res., LP v. FMSHRC,

717 F.3d 1020, 1022 (D.C. Cir. 2013), and can carry severe

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consequences. For example, a consistent pattern of S&S

violations may trigger a temporary partial mine closure. 30

U.S.C. § 814(e)(1).

Within thirty days of receiving the notice of proposed

penalty, the mine operator must either pay the penalty or notify

the Secretary of its intent to contest the penalty before the

Commission. 30 C.F.R. § 100.7(b). If the operator opts to

contest the penalty, the parties proceed to a hearing before a

Commission ALJ. See 30 U.S.C. §§ 820(i), 823(d); 29 C.F.R.

§ 2700.51. After considering evidence, the ALJ evaluates all

proposed penalties de novo “according to six criteria,”

reflecting the criteria that the Secretary uses to calibrate the

initial penalty. Thunder Basin Coal Co. v. Reich, 510 U.S. 200,

208 & n.10 (1994). Those criteria are:

[T]he operator’s history of previous violations,

the appropriateness of such penalty to the size

of the business of the operator charged, whether

the operator was negligent, the effect on the

operator’s ability to continue in business, the

gravity of the violation, and the demonstrated

good faith of the person charged in attempting

to achieve rapid compliance after notification of

a violation.

30 U.S.C. § 820(i). The ALJ also assesses any S&S

designations. See 29 C.F.R. § 2700.21(b); e.g., Sec’y of Lab.

v. Consolidation Coal Co., 6 FMSHRC 189, 192–95 (1984).

Commission review is discretionary. 30 U.S.C.

§ 823(d)(2)(A)(i). Because the Commission alone possesses

the authority “to impose civil penalties proposed by the

Secretary,” Thunder Basin, 510 U.S. at 208, any penalty finally

imposed constitutes the decision “of the Commission,” 30

U.S.C. § 815(a).

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In lieu of a hearing, the parties may instead agree to settle

or reduce the proposed penalty. If they do, they must obtain

the Commission’s approval. Under section 110(k) of the Mine

Act, “No proposed penalty which has been contested before the

Commission under section 815(a) of this title shall be

compromised, mitigated, or settled except with the approval of

the Commission.” 30 U.S.C. § 820(k). The meaning of that

provision is the crux of these petitions.

B

The petitions for review are based on eleven pending

contests. They raise two principal issues on the merits, both

involving the Secretary’s authority to vacate citations and

remove S&S designations without explanation as part of a

settlement agreement. For ease of reference, we categorize the

five petitions by issue and refer to them by the lead case

presenting each issue.

First are the Knight Hawk Coal petitions. The petitions

stemmed from three contests in which the Secretary requested

permission to settle contested citations and, under the

settlement agreements, proposed to remove S&S designations

from some citations. In Knight Hawk Coal, for example, a

MSHA inspector issued five S&S citations to Knight Hawk

Coal, the operator of an underground mine in Southern Illinois.

Knight Hawk Coal contested three of the citations. The parties

then requested permission to settle. Under the proposed

settlement agreement, the Secretary would remove two S&S

designations, reduce the “likelihood of injury” from

“Reasonably Likely” to “Unlikely” for two citations and reduce

the proposed penalty by more than $3,000. No. 24-1293, J.A.

37–39. Knight Hawk Coal would, in turn, pay the penalty

associated with the third citation without contest.

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The ALJ rejected the settlement agreement. In his view,

the Secretary failed to explain adequately her decision to

remove one S&S designation. At the Secretary’s request, the

ALJ certified his decision for interlocutory review and the

Commission affirmed, concluding that section 110(k) required

the Secretary to “provide sufficient reasoning and justification

to support the removal of an S&S designation in a settlement

motion.” Sec’y of Lab. v. Knight Hawk Coal, LLC, 46

FMSHRC 563, 566 (2024). One commissioner dissented,

contending that the question “whether a violation should be

designated S&S is a fact-based inquiry requiring the exercise

of prosecutorial discretion” and is entrusted exclusively to the

Secretary. Id. at 589 (Althen, Comm’r, dissenting).

Second are the two Crimson Oak Grove petitions, arising

from eight ALJ orders. In six orders, the ALJ denied the

Secretary’s motions to settle or dismiss and certified questions

for interlocutory review in five of the orders, which the

Commission consolidated. In the remaining two, the ALJ

initially granted stays pending Commission review of the

certified questions before ultimately denying the Secretary’s

requests to settle.

In Crimson Oak Grove, a MSHA inspector issued citations

to Crimson Oak Grove Resources, which operates an

underground coal mine in Alabama. Crimson Oak Grove

contested two citations and one order. The Secretary moved to

dismiss, explaining that she had vacated one citation and that

Crimson Oak Grove had agreed to pay the remaining penalties

without contest. The Secretary declined to explain the

modifications.

The ALJ treated the motion as a request for permission to

settle and denied it, citing the Secretary’s lack of explanation.

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On interlocutory review, the Commission affirmed. Sec’y of

Lab. v. Crimson Oak Grove Res. LLC, 46 FMSHRC 593

(2024). It acknowledged that the Secretary’s nonenforcement

decisions are generally unreviewable. Id. at 599. But it

determined that “section 110(k) provides an exception to th[at]

general rule,” id. at 600, requiring the Commission to “review

the vacat[ur] of citations when done in the context of a

settlement,” id. at 594. Again, one commissioner dissented,

asserting that the Commission’s decision arrogated the

Secretary’s prosecutorial discretion to itself. Id. at 608–09

(Althen, Comm’r, dissenting).

The Secretary filed timely petitions for review, which we

consolidated in two related dockets. The Commission did not

file briefs or present argument in defense of its orders. We thus

appointed Soren J. Schmidt as amicus curiae to defend the

orders and he has quite ably discharged his responsibilities.

II. ANALYSIS

The parties first dispute our jurisdiction. Amicus argues

that the petitions lack Article III adverseness because the

Commission has not defended its orders before this Court and

the Secretary and operators agree on every legal issue, as well

as the relief sought. He also contends that we lack appellate

jurisdiction of the Commission’s orders because they are

nonfinal. For her part, the Secretary maintains that the petitions

satisfy Article III and that they are immediately appealable

because the Commission’s orders undermine her prosecutorial

discretion and, hence, the separation of powers. We agree with

Amicus that we lack appellate jurisdiction and so do not address

adverseness. Sinochem Int’l Co. v. Malay. Int’l Shipping

Corp., 549 U.S. 422, 431 (2007) (“A federal court has leeway

to choose among threshold grounds for denying audience to a

case on the merits.” (citation modified)); see, e.g., Wis. Voters

9

All. v. Harris, 28 F.4th 1282, 1284 (D.C. Cir. 2022) (declining

to consider Article III standing upon finding no appellate

jurisdiction).

Under section 106(b) of the Mine Act, we have jurisdiction

to review only final orders. 30 U.S.C. § 816(b). Although the

statutory text admits of no exceptions, we have extended the

collateral-order doctrine’s gloss on finality to the Mine Act,

permitting immediate review of orders that satisfy the doctrine.

Meredith v. FMSHRC, 177 F.3d 1042, 1050–51 (D.C. Cir.

1999). An order constitutes an immediately appealable

collateral order if it “conclusively determine[s] the disputed

question, resolve[s] an important issue completely separate

from the merits of the action, and [is] effectively unreviewable

on appeal from a final judgment.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978); accord Sec’y of Lab. v.

Indus. TurnAround Corp. (ITAC), 138 F.4th 1339, 1343 (D.C.

Cir. 2025). The focal point is “the entire category to which a

claim belongs.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 107 (2009) (citation modified).

Most relevant here is the third prong—effective

nonreviewability. An order is “effectively unreviewable” if

“delaying review until the entry of final judgment would

imperil a substantial interest or some particular value of a high

order.” Mohawk Indus., 558 U.S. at 107 (citation modified).

Said another way, the third prong asks the court to weigh “the

value of the interests that would be lost through rigorous

application of a final judgment requirement.” Digit. Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878–79 (1994). It

follows that an order is not “effectively unreviewable” simply

because the order imposes burdens that “are only imperfectly

reparable by appellate reversal.” Id. at 872.

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In recent years, the Supreme Court has repeatedly declined

to “expand the ‘small class’ of collaterally appealable orders,”

preferring instead to keep “it narrow and selective in its

membership.” Will v. Hallock, 546 U.S. 345, 350 (2006). As

it has explained, the collateral-order doctrine “must never be

allowed to swallow the general rule that a party is entitled to a

single appeal, to be deferred until final judgment has been

entered.” Mohawk Indus., 558 U.S. at 106 (citation modified).

For that reason, both “the Supreme Court and this court have

routinely required litigants to wait until after final judgment to

vindicate valuable rights.” O’Connell v. U.S. Conf. of Cath.

Bishops, 134 F.4th 1243, 1257 (D.C. Cir. 2025) (citation

modified).

As we observed last term, the “separation of powers” is

one value that can justify immediate review. ITAC, 138 F.4th

at 1344. Nevertheless, we have viewed claims that the

separation of powers warrants immediate review with a

cautious eye. For example, in Doe v. Exxon Mobil Corp., 473

F.3d 345 (D.C. Cir. 2007), we explained that, “outside the

context of immunity,” “a defendant is not entitled to an appeal

from a district court order denying a motion to dismiss based

on the separation of powers,” id. at 351–52. Without fully

defining the category, we signaled that the caselaw’s nod to the

separation of powers was aimed at immunities—specifically,

absolute, qualified and sovereign immunity or something

comparable. Id. at 350–52. As a consequence, we explained

elsewhere, the lion’s share of “separation-of-power claims” are

“clearly not” immediately appealable. O’Connell, 134 F.4th at

1259 (quoting United States v. Cisneros, 169 F.3d 763, 769

(D.C. Cir. 1999)).

The Secretary has not shown that her authority to dismiss,

modify or settle citations she has issued implicates an interest

that is in any sense comparable to a sovereign’s immunity from

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suit. At most, the Secretary will have to litigate disputes that

she would prefer to no longer litigate. But a preference to avoid

the burdens or inconvenience of litigation does not justify

immediate review. United States v. Fokker Servs. B.V., 818

F.3d 733, 748 (D.C. Cir. 2016). And the “mere identification

of some interest that would be irretrievably lost”—like the

Secretary’s wish to modify or vacate citations via settlement

agreement here—“has never sufficed to meet” the third prong.

Digit. Equip., 511 U.S. at 872 (citation modified).

Nor, for that matter, would delaying review “destroy[]” the

“legal and practical value” of the Secretary’s prosecutorial

authority under the Mine Act. Lauro Lines s.r.l. v. Chasser,

490 U.S. 495, 498–99 (1989) (citation modified). The

Secretary retains substantial discretion to direct the course of

the proceedings. To give just one example: Although the

Commission denied the Secretary’s motions to settle, Amicus

concedes (and earlier in the proceedings, the Commission did

not dispute) that the Secretary could unconditionally dismiss

any of the pending contests. That measure of autonomy

reinforces our belief that the Commission’s orders do not

imperil any substantial public interest and so they are

effectively reviewable after a final order.

The Secretary has one principal response—she points to

caselaw in which other circuits permitted immediate appeals

under the Occupational Safety and Health (OSH) Act, 29

U.S.C. § 651 et seq. As the Secretary underscores, other

circuits have exercised collateral-order jurisdiction when the

Occupational Safety and Health Review Commission

(OSHRC) denied the Secretary permission to vacate or settle

citations. E.g., Donovan v. OSHRC, 713 F.2d 918, 923–24 (2d

Cir. 1983); Marshall v. OSHRC, 635 F.2d 544, 549 (6th Cir.

1980). But those decisions do not alter our analysis, for several

reasons.

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To begin with, the Secretary’s cited cases are

distinguishable because they involved a different statutory

scheme. Although the OSH Act and Mine Act are comparable

in many respects, Twentymile Coal Co., 456 F.3d at 160–61,

they are not identical. Most importantly, the Mine Act gives

the Commission some discretionary authority to review and

approve the Secretary’s proposed settlement agreements. 30

U.S.C. § 820(k). The OSH Act lacks any comparable

provision. See 29 U.S.C. § 655(e); Oil, Chem. & Atomic

Workers Int’l Union v. OSHRC, 671 F.2d 643, 650 (D.C. Cir.

1982) (describing the Secretary’s settlement and dismissal

authority under the OSH Act). Although we must set aside our

views of the merits when applying the collateral-order doctrine,

Lauro Lines, 490 U.S. at 501, we need not prejudge the merits,

nor definitively construe the scope of section 110(k), to observe

that the Mine Act and OSH Act are simply not comparable in

this regard. The Secretary may in some cases have a

compelling separation-of-powers argument under the OSH

Act; her argument here is not as weighty.

Moreover, the Secretary’s cited caselaw is a poor fit with

our precedent. The decisions she relies on rested primarily on

two grounds: (1) that the Commission and Secretary were at

loggerheads and (2) that their disagreement raised an important

issue that was in the public interest to resolve. See Donovan,

713 F.2d at 924–25; Marshall, 635 F.2d at 549. But her

asserted public interest here is the separation of powers and, as

we have explained, our circuit has established a high bar for

parties relying on that interest to obtain immediate review. We

have also recognized that the mere fact of disagreement

between the Secretary and Commission does not warrant

immediate review. ITAC, 138 F.4th 1339. Given that

precedent, we would have to do more shoehorning than

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tolerable to import and extend the Secretary’s cited caselaw to

the Mine Act.1

Finally, the Secretary’s cited cases predate the Supreme

Court’s efforts to narrow the collateral-order doctrine. Those

decisions were issued in the 1980s and the Supreme Court’s

endeavor to tighten the screws on the doctrine did not begin in

earnest until, roughly speaking, the end of that decade. See

Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 48 (1995)

(tying the narrowing of the doctrine to rulemaking powers

Congress conferred in 1990 and 1992); Mohamed v. Jones, 100

F.4th 1214, 1227 (10th Cir. 2024) (noting the doctrine’s

“expansion” era culminated in 1985). None of this suggests

that the Secretary’s cited cases are bad law. But it does suggest

caution before using those cases in a new context.

In sum, we hold that the Secretary’s interest in unilaterally

vacating citations and removing S&S designations via post-

contest settlement agreements is adequately safeguarded by a

final order. Delaying review will not “imperil a substantial

public interest or some particular value of a high order.”

Mohawk Indus., 558 U.S. at 107 (citation modified).

With her frontline argument disposed of, the Secretary

turns next to pragmatic concerns. She maintains that she will

1

The Secretary emphasizes that the ITAC Court suggested

it would reach a different conclusion if the orders there had

implicated the separation of powers. True enough. See ITAC,

138 F.4th at 1344. But we said nothing in ITAC to undercut

our earlier observation that most separation-of-powers

arguments do not warrant immediate review. Cisneros, 169

F.3d at 769. There are more and less compelling separation-

of-powers interests; here, the Secretary’s is not one of the more

compelling ones.

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be unable to present fully her argument following a final

decision. Specifically, she emphasizes that she might prevail

on the merits in all eleven disputes, depriving her of appellate

standing and rendering the Commission’s interlocutory orders

effectively unreviewable. We are unpersuaded. As a general

matter, prevailing on the merits is always a possibility in

litigation. For that reason, a chance of success on the merits,

and the loss of appellate standing threatened thereby, is

typically not enough to warrant immediate review: “[T]he

worrisome prospect of victory . . . is one with which parties

will have to live.” Wajnstat v. Oceania Cruises, Inc., 684 F.3d

1153, 1157 (11th Cir. 2012); accord 15A Wright & Miller’s

Federal Practice & Procedure § 3911.3 (3d ed. Sep. 2025

update).2 In any case, even if the Secretary believes that she

would run the table, there are paths available to her that could,

in our view, permit her to present her argument without

prosecuting the citations.

2

Different considerations may obtain if an agency seeks

to challenge the legal standard announced in a court order

remanding a matter to the agency, Occidental Petrol. Corp. v.

SEC, 873 F.2d 325, 331–32 (D.C. Cir. 1989), or when the

prosecutor in a criminal case seeks to appeal from the denial of

a motion to dismiss pending charges, see United States v.

Dupris, 664 F.2d 169, 173–74 (8th Cir. 1981). In both

instances, the government generally lacks the authority to

appeal a final order. Occidental, 873 F.2d at 330, 332; Fokker

Servs. B.V., 818 F.3d at 748. And double jeopardy

considerations, as well as an express statutory backdrop,

further complicate any analogy to criminal prosecution. 18

U.S.C. § 3731; 15A Wright & Miller, supra, § 3919.5

(“Double jeopardy principles dominate the law of government

appeals.”).

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First, the Secretary could seek a writ of mandamus. In re

Khadr, 823 F.3d 92, 97 n.2 (D.C. Cir. 2016) (“[M]andamus still

remains available to review certain interlocutory orders.”).

Without opining on the availability or propriety of that relief

here, we note that there is precedent recognizing mandamus

relief against adjudicative entities, or agencies acting in an

adjudicative capacity. See, e.g., In re Perry, 859 F.2d 1043,

1046, 1050 (1st Cir. 1988) (finding mandamus relief

appropriate as to the OSHRC); Cmty. Broad. of Bos., Inc. v.

FCC, 546 F.2d 1022, 1028 (D.C. Cir. 1976) (per curiam)

(suggesting mandamus would be available to review an FCC

attorney-disqualification order “[i]n the exceptional case”). As

a conceptual matter, mandamus relief against the Commission

fairly aligns with the writ’s traditional office—confining a

“lower court to the sphere of its discretionary power.” Will v.

United States, 389 U.S. 90, 104 (1967); accord In re Justs. of

the Sup. Ct. of P.R., 695 F.2d 17, 25 (1st Cir. 1982) (Breyer,

J.). And mandamus would also cohere with the Supreme

Court’s oft-repeated instruction to proceed, if necessary, via

petition for writ of mandamus rather than seek to extend the

collateral-order doctrine. E.g., Mohawk Indus., 558 U.S. at

111; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378

n.13 (1981).

The Secretary may also obtain effective review of the

settlement denials as a respondent. If the Secretary prevails on

the merits before the Commission, the operator will likely

petition for review. In that event, the Secretary could assert

that the Commission exceeded its authority in denying the

parties’ proposed settlement agreement. See Ingalls

Shipbuilding, Inc. v. Dir., Off. of Workers’ Comp. Programs,

519 U.S. 248, 269–70 (1997). These mechanisms confirm for

us that we need depart neither from the text of section 106(b)

nor from the traditional rules of appellate jurisdiction in this

case.

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* * *

Because we lack appellate jurisdiction of the

Commission’s nonfinal orders, we dismiss the Secretary’s

petitions for review.

So ordered.