UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MEREDITH, TOM

v.

MSHR


98-1359a

D.C. Cir. 1999


*	*	*


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'


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 




__________

n 1 Section 105(c) of the Mine Act, 30 U.S.C. s 815(c), provides


Labor (the "Secretary") alleging that certain named MSHA  officials had
unlawfully discriminated against these union 




__________

n (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


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" 




__________

n 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-




__________

n 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


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


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 


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.


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


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


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




__________

n 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 




__________

n 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


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.




__________

n 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


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


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




__________

n 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),


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 


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




__________

n 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




__________

n 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,


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).




__________

n 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




__________

n 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




__________

n 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


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


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.