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.