                             In the

United States Court of Appeals
                For the Seventh Circuit

No. 11-2860

V ULCAN C ONSTRUCTION M ATERIALS, L.P.,
                                                         Petitioner,
                                 v.

F EDERAL M INE SAFETY AND H EALTH
R EVIEW C OMMISSION, et al.,
                                                      Respondents.


                    Petition for Review of an Order of
        the Federal Mine Safety and Health Review Commission.
                         No. LAKE 2011-327-DM



     A RGUED F EBRUARY 10, 2012—D ECIDED O CTOBER 25, 2012




    Before
         R IPPLE and R OVNER,              Circuit   Judges,    and
C OLEMAN, District Judge.
 R IPPLE, Circuit Judge. On December 2, 2010, Peter L.
Dunne filed a discrimination complaint pursuant to




  The Honorable Sharon Johnson Coleman, of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2                                              No. 11-2860

30 U.S.C. § 815(c)(2), with the Mine Safety and Health
Administration (“MSHA”), a division of the Depart-
ment of Labor. He alleged that Vulcan Industries, L.P.
(“Vulcan”) had terminated his employment for engaging
in safety-related activity protected under 30 U.S.C.
§ 815(c)(1). The Secretary of Labor determined that Mr.
Dunne’s complaint was not frivolously brought, and
Vulcan agreed to a temporary (economic) reinstatement of
Mr. Dunne pending a determination on the merits of Mr.
Dunne’s complaint. The Secretary later determined not
to prosecute Mr. Dunne’s complaint before the Federal
Mine Safety and Health Review Commission (“FMSHRC”
or “Commission”), and Vulcan moved to dissolve the
reinstatement order. The Commission denied Vulcan’s
motion, and Vulcan sought review in this court. For
the reasons set forth in the following opinion, we
grant Vulcan’s petition and reverse the judgment of the
Commission.


                             I
                    BACKGROUND
  The facts are not in dispute. Mr. Dunne filed a discrimi-
nation complaint with the MSHA, alleging that his
former employer, Vulcan, had discharged him for en-
gaging in safety-related activity protected under 30 U.S.C.
§ 815(c)(1). The Secretary initially determined that
Mr. Dunne’s complaint was not frivolously brought;
she sought, and Vulcan agreed to, a temporary economic
reinstatement of Mr. Dunne.
No. 11-2860                                               3

  After conducting her investigation, the Secretary con-
cluded that no discrimination had occurred and notified
Mr. Dunne of this determination. Mr. Dunne sub-
sequently filed his own discrimination action before the
Commission pursuant to 30 U.S.C. § 815(c)(3). Vulcan
then moved to dissolve the reinstatement order. The
Secretary filed an opposition, and the administrative
law judge (“ALJ”) assigned to the case denied the motion.
   On July 7, 2011, Vulcan filed with the Commission
a petition for discretionary review of the ALJ’s denial of
its motion. On July 14, 2011, the Commission granted
the petition, and a divided Commission affirmed the
ALJ’s denial of the motion to dissolve the temporary
reinstatement order. Each of the Commissioners
adopted the same position that he or she had taken in
Secretary of Labor ex rel. Gray v. North Fork Coal Corp., 33
FMSHRC 27 (Jan. 2011): Commissioners Jordan and
Nakamura believed that the plain language of 30 U.S.C.
§ 815(c) required the reinstatement order to remain in
place; Commissioner Cohen believed that the language
of the statute was ambiguous, but that the Secretary’s
position on the issue—that the reinstatement order
should remain in place—deserved deference; and Com-
missioners Duffy and Young believed that the plain
language of § 815(c) required that the reinstatement
order be dissolved.
  Vulcan timely sought review of the Commission’s
decision in this court.
4                                               No. 11-2860

                             II
                      DISCUSSION
A. Jurisdiction
  The Commission had jurisdiction over this matter
pursuant to 30 U.S.C. § 823(d). Although we have jurisdic-
tion over final orders of the Commission, see 30 U.S.C.
§ 816, the order with respect to temporary reinstatement
is not a final order. The parties maintain, however, that
we have jurisdiction over Vulcan’s appeal under the
collateral order doctrine.
    To come within this narrow exception, [an] order
    must, at a minimum, meet three conditions. First,
    it must conclusively determine the disputed ques-
    tion; second, it must resolve an important issue
    completely separate from the merits of the
    action; third, it must be effectively unreviewable
    on appeal from a final judgment.
Flanagan v. United States, 465 U.S. 259, 265 (1984) (internal
quotation marks omitted) (citations omitted). These
criteria are met here. The Commission conclusively deter-
mined that Mr. Dunne’s temporary reinstatement
should not be dissolved during the pendency of his
proceeding under § 815(c)(3). Whether the temporary
reinstatement order should be dissolved is a matter of
statutory interpretation, completely separate from
the merits of Mr. Dunne’s discrimination claim. Finally,
any appeal on the merits of Mr. Dunne’s complaint
would not need to reach this issue, effectively
depriving Vulcan of “any opportunity for a judicial
No. 11-2860                                                 5

hearing” on the temporary reinstatement issue. Jim
Walter Res., Inc. v. Fed. Mine Safety & Health Review
Comm’n ex rel. Price, 920 F.2d 738, 745 (11th Cir. 1990).
Consequently, we proceed to the substance of Vulcan’s
arguments with respect to the temporary reinstate-
ment issue.


B. Statutory Language and History
                             1.
  In this case, the parties dispute the unambiguous mean-
ing of Section 815(c) of Title 30, a provision of the
Federal Mine Safety and Health Act of 1977 (“FMSHA” or
“Act”), which provides in relevant part:
   (c) Discrimination or interference prohibited;
   complaint; investigation; determination; hearing
   (1) No person shall discharge or in any manner
   discriminate against or . . . otherwise interfere with
   the exercise of the statutory rights of any miner,
   representative of miners or applicant for employ-
   ment in any coal or other mine . . . because such
   miner, representative of miners or applicant
   for employment has filed or made a complaint
   under or related to this chapter . . . .
   (2) Any miner or applicant for employment or
   representative of miners who believes that he has
   been discharged, interfered with, or otherwise
   discriminated against by any person in violation
   of this subsection may, within 60 days after such
6                                               No. 11-2860

    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. Such investigation shall
    commence within 15 days of the Secretary’s
    receipt of the complaint, and if the Secretary finds
    that such complaint was not frivolously brought,
    the Commission, on an expedited basis upon
    application of the Secretary, shall order the im-
    mediate reinstatement of the miner pending
    final order on the complaint. If upon such investiga-
    tion, the Secretary determines that the provisions
    of this subsection have been violated, he shall
    immediately file a complaint with the Commission,
    with service upon the alleged violator and the
    miner, applicant for employment, or representa-
    tive of miners alleging such discrimination or
    interference and propose an order granting ap-
    propriate relief. The Commission shall afford
    an opportunity for a hearing . . . 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. Such order shall become final 30 days
    after its issuance. The Commission shall have
    authority in such proceedings to require a person
    committing a violation of this subsection to take
    such affirmative action to abate the violation as
    the Commission deems appropriate, including,
No. 11-2860                                                  7

   but not limited to, the rehiring or reinstate-
   ment of the miner to his former position with back
   pay and interest. The complaining miner, appli-
   cant, or representative of miners may present
   additional evidence on his own behalf during
   any hearing held pursuant to this paragraph.
   (3) Within 90 days of the receipt of a complaint
   filed under paragraph (2), the Secretary shall
   notify, in writing, the miner[] . . . of his determina-
   tion whether a violation has occurred. If the Secre-
   tary, upon investigation, determines that the
   provisions of this subsection have not been vio-
   lated, the complainant shall have the right, within
   30 days of notice of the Secretary’s determina-
   tion, to file an action in his own behalf before
   the Commission, charging discrimination or in-
   terference in violation of paragraph (1). The
   Commission shall afford an opportunity for a
   hearing . . ., and thereafter shall issue an order,
   based upon findings of fact, dismissing or sus-
   taining the complainant’s charges and, if the
   charges are sustained, granting such relief as it
   deems appropriate, including, but not limited
   to, an order requiring the rehiring or reinstate-
   ment of the miner to his former position with
   back pay and interest or such remedy as may be
   appropriate. Such order shall become final 30 days
   after its issuance. Whenever an order is issued
   sustaining the complainant’s charges under this
   subsection, a sum equal to the aggregate amount
   of all costs and expenses (including attorney’s
8                                              No. 11-2860

    fees) as determined by the Commission to have
    been reasonably incurred by the miner, applicant
    for employment or representative of miners for,
    or in connection with, the institution and pros-
    ecution of such proceedings shall be assessed
    against the person committing such violation.
30 U.S.C. § 815(c) (emphasis added) (footnote omitted).
  Although the parties disagree with respect to how this
section, specifically the phrase “final order on the com-
plaint” in subsection (c)(2), should be interpreted, they
rely on much of the same statutory and interpretive
history in making their arguments. An understanding of
the statute’s purpose and history, therefore, is helpful
in analyzing the parties’ positions.


                            2.
  Following a number of “tragic mining disasters” in the
1970s, Congress conducted a comprehensive examina-
tion of the then-existing laws governing our nation’s
mines and the miners who worked in them. S. Rep. No. 95-
181 at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3404.
That examination revealed a number of shortcomings
that Congress sought to remedy with new legislation.
For example, existing law (1) “d[id] not provide ef-
fective protection for miners from health and safety haz-
ards and enforcement sanctions under [that law] [we]re
insufficient to encourage compliance by operators”;
(2) did not vest “enforcement of safety and health laws”
with “agencies which are generally responsible for the
No. 11-2860                                                  9

needs of workers”; and (3) contained insufficient “enforce-
ment sanctions . . . to deal with chronic violators.” Id. at 8,
reprinted in 1977 U.S.C.C.A.N. at 3408.
  To remedy these shortcomings, Congress transferred
to the Secretary of Labor “[a]ll functions and responsi-
bilities . . . in the area of mine safety and health.” Id. at
11, reprinted in 1977 U.S.C.C.A.N. at 3411. The Secretary
was authorized to establish safety standards, and the
newly created, “independent Mine Safety and Health
Review Commission [wa]s established to review orders,
citations, and penalties” issued by the Secretary. Id.
The Commission was not imbued with rule-making
authority, but instead was to “serve[] as the ultimate
administrative review body for disputed cases arising
under the new mine safety act.” Id. at 13, reprinted in
1977 U.S.C.C.A.N. at 3413.
  With respect to the complaint procedure at issue here,
legislators noted that,
      [i]f our national mine safety and health program
    is to be truly effective, miners will have to play
    an active part in the enforcement of the Act. The
    Committee is cognizant that if miners are to be
    encouraged to be active in matters of safety and
    health, they must be protected against any
    possible discrimination which they might suffer
    as a result of their participation. The Committee
    is also aware that mining often takes place in
    remote sections of the country, and in places
    where work in the mines offers the only real em-
    ployment opportunity.
10                                                No. 11-2860

       . . . [T]he bill prohibits any discrimination
     against a miner for exercising any right under
     the Act. It should also be noted that the class
     protected is expanded from the current Coal
     Act. . . . The Committee intends that the scope
     of the protected activities be broadly interpreted
     by the Secretary, and intends it to include not
     only the filing of complaints seeking inspection . . .
     or the participation in mine inspections . . ., but
     also the refusal to work in conditions which
     are believed to be unsafe or unhealthful and the
     refusal to comply with orders which are viola-
     tive of the Act or any standard promulgated there-
     under, or the participation by a miner or his rep-
     resentative in any administrative and judicial
     proceeding under the Act.
Id. at 35, reprinted in 1977 U.S.C.C.A.N. at 3435. The com-
plaint procedure, therefore, serves an important func-
tion in accomplishing the legislation’s broader goals
of improving mine safety and protecting miners.
   The legislative history does not speak directly to the
issue raised by the parties—how long a temporary rein-
statement order should remain in effect. Nevertheless,
it does note the importance of temporary reinstatement
in the overall remedial scheme:
     Upon determining that the complaint appears to
     have merit, the Secretary shall seek an order
     of the Commission temporarily reinstating the
     complaining miner pending final outcome of
     the investigation and complaint. The Committee
     feels that this temporary reinstatement is an es-
No. 11-2860                                                        11

      sential protection for complaining miners who
      may not be in the financial position to suffer even
      a short period of unemployment or reduced in-
      come pending resolution of the discrimination
      complaint. To further expedite the handling of
      these cases, the section requires that upon comple-
      tion of the investigation and determination that
      the provisions of this section have been vio-
      lated, the Secretary must immediately petition
      the Commission for appropriate relief.
Id. at 36-37, reprinted in 1977 U.S.C.C.A.N. at 3436-37.


                                 3.
  Although the FMSHA was enacted in 1977, the issue
of when a temporary reinstatement order expires did not
arise until recently. Shortly after the passage of the Act,
the Commission adopted “Rules of Procedure,” which
included the following: “If, following an order of rein-
statement, the Secretary determines that the provisions
of section 105(c)(1) 1 have not been violated, the Judge
shall be so notified and shall enter an order dissolving
the order of reinstatement.” 29 C.F.R. § 2700.44 (1980).
The rule remained in effect until 2006. During this time,
the Secretary apparently did not contest the Commis-
sion’s interpretation.
  In October 2004, the Commission solicited comments
on changes that should be made to its procedural rules.
In response,


1
    Section 105(c) of the Act corresponds to 30 U.S.C. § 815(c).
12                                               No. 11-2860

     [t]he Secretary . . . suggested that Commission
     Procedural Rule 45(g) be amended to provide
     that once temporary reinstatement is ordered,
     absent agreement of the parties, the order of tem-
     porary reinstatement shall remain in effect until
     there is a final decision on the merits of the
     miner’s complaint of discrimination even when
     the Secretary determines that there was no viola-
     tion of section 105(c) of the Mine Act.
Rules and Regulations, Federal Mine Safety and Health
Review Comm’n, 71 Fed. Reg. 44,190, 44,198 (Aug. 4, 2006)
(to be codified at 29 C.F.R. pts. 2700, 2704, 2705). According
to the Secretary, the practice of dissolving the order
was “at odds with the meaning of section 105(c)(2).”
Id. She believed that § 815(c)(2) “require[d] that the
temporary reinstatement order remain in effect until the
underlying discrimination complaint is resolved re-
gardless of whether the complaint of discrimination
is litigated by the Secretary under section 105(c)(2) of
the Act or whether it is litigated by the miner under
section 105(c)(3) of the Act.” Id. The Commission, how-
ever, “declined . . . to revise Procedural Rule 45(g) in
the manner suggested by the Secretary” because it
“ha[d] not decided the issue of whether a temporary
reinstatement order remains in effect during a miner’s
pursuit of his or her discrimination complaint . . . under
section 105(c)(3).” Id. The Commission stated that the
issue raised by the Secretary’s comment “[wa]s more
appropriately addressed in the context of litigation
rather than rulemaking.” Id.
No. 11-2860                                                      13

  The Commission subsequently received comments
requesting further revision to Procedural Rule 45(g),
including a comment that reiterated the suggestion pre-
viously made by the Secretary. The Secretary, how-
ever, no longer urged the Commission to adopt her
original proposal, but “agreed with the Commission’s
conclusion . . . that the issue of whether a temporary reinstate-
ment order remains in effect during a miner’s pursuit of his
or her discrimination complaint under section 105(c)(3)
would best be resolved in the context of litigation.” Id. at 44,198-
99 (emphasis added). Nevertheless, the Secretary made
the point that the “current Procedural Rule 45(g)
appear[ed] to address the issue and resolve it in the
negative: That is, that a Judge’s reinstatement order
should not remain in effect pending a miner’s discrim-
ination complaint under section 105(c)(3).” Id. at 44,199.
The Secretary therefore requested that the Commission
delete the language in Procedural Rule 45(g), requiring
the dissolution of the temporary reinstatement order
when the Secretary determined that the provisions of
§ 815(c)(1) had not been violated. See id. at 44,199. The
Commission “agree[d] with the Secretary,” deleted the
language from the rule and “le[ft] open for litigation
the issue of whether an order for temporary reinstate-
ment remains in effect pending a miner’s discrimina-
tion complaint under section 105(c)(3) of the Mine
Act.” Id. The current version of the rule states:
    (g) Dissolution of order. If, following an order of
    temporary reinstatement, the Secretary deter-
    mines that the provisions of section 105(c)(1),
    30 U.S.C. 815(c)(1), have not been violated, the
14                                               No. 11-2860

     Judge shall be so notified. An order dissolving
     the order of reinstatement shall not bar the filing
     of an action by the miner in his own behalf
     under section 105(c)(3) of the Act, 30 U.S.C.
     815(c)(3), and § 2700.40(b) of these rules.
29 C.F.R. § 2700.45(g).


                              4.
  After the Commission adopted the current version
of Rule 45(g), the Secretary began advocating, in the
course of administrative proceedings, the preservation
of reinstatement orders pending the resolution of a
miner’s action under § 815(c)(3). The issue came before
the Commission in 2008 in Phillips v. A & S Construction
Co., 31 FMSHRC 975 (Sept. 2009). In that case, an ALJ
had dissolved a temporary reinstatement order pending
resolution of a miner’s action under § 815(c)(3). The
Secretary appealed the decision. Commissioners Duffy
and Young voted to affirm the ALJ’s dissolution order.
According to those commissioners, the plain meaning
of § 815(c)(3) required dissolution of the temporary re-
instatement order upon the Secretary’s finding that
no violation had occurred. The commissioners wrote:
        Reading section 105(c)(2) in context, we conclude
     that the provision that a temporary reinstatement
     order remains in effect “pending final order on
     the complaint” clearly refers to the “complaints”
     filed under section 105(c)(2) and does not extend
     to the miner’s “action” filed under section
No. 11-2860                                                15

   105(c)(3). We base this conclusion on the usage of
   the term “complaint” in sections 105(c)(2) and
   105(c)(3).
     ....
     The legitimacy of the miner’s complaint is deter-
   mined by the Secretary in a two-phased process.
   First, the Secretary determines whether the
   miner’s complaint has been “frivolously brought”
   through an initial investigation. 30 U.S.C.
   § 815(c)(2). If the complaint is not frivolous, the
   Secretary files an application with the Commis-
   sion to temporarily reinstate the miner. Id. The
   standard of the initial determination, which re-
   quires only that a miner’s complaint must
   appear to have merit, is set low so that a miner
   may be reinstated while the Secretary conducts a
   more thorough investigation. Second, if, after
   further investigation, the Secretary determines
   that a violation of section 105(c) has occurred,
   the Secretary files a complaint with the Commis-
   sion on the miner’s behalf, which validates
   the initial finding of non-frivolousness and
   the miner’s initial complaint of discrimination. In
   such circumstances, the Secretary is acting on the
   miner’s complaint, which has merged with the
   Secretary’s complaint. Temporary reinstatement
   continues until there is a final order on the
   miner’s complaint as advanced by the Secretary
   in the section 105(c)(2) proceeding.
    This contrasts with the terms of section 105(c)(3).
   Under that section, if the Secretary, upon investiga-
16                                              No. 11-2860

     tion, determines that section 105(c)(1) has not
     been violated, the miner has the right to file a
     new, separate “action” charging discrimination
     with the Commission. Section 105(c)(3) also de-
     scribes the time within which the Secretary must
     notify the miner of that negative determination
     as being within 90 days after the receipt “of a
     complaint filed under paragraph (2).” 30 U.S.C.
     § 815(c)(3). We conclude that Congress’s refer-
     ence to the documents filed under section 105(c)(2)
     as “complaints” and to the filing of an “action”
     under section 105(c)(3) was intentional. Therefore,
     based on the plain language of sections 105(c)(2)
     and (c)(3), a temporary reinstatement order re-
     mains in effect pending final order on the miner’s
     complaint as advanced by the Secretary under
     section 105(c)(2), but does not extend to the pen-
     dency of an action under section 105(c)(3).
Id. at 980-81 (plurality opinion) (footnote omitted) (addi-
tional citations omitted). The commissioners also be-
lieved that Congress’s use of the term “final order” led
to the conclusion that temporary reinstatement should
end once the Secretary had determined not to go
forward with the complaint. Id. at 982. They observed
that “the term ‘order’ is used in section 105(c) to refer
to action by the Commission.” Id. at 981. Consequently,
they concluded:
       Considering the language discussed above
     regarding what is meant by “complaint,” with
     the language regarding what is meant by “final
No. 11-2860                                                17

    order,” we conclude that a temporary reinstate-
    ment order remains effective pending the final
    order of the Commission on a complaint filed
    under section 105(c)(2). Therefore, if the Secretary
    determines that there has been no discrimina-
    tion, the temporary reinstatement order would
    cease to be effective, and the judge should issue
    an order dissolving the temporary reinstate-
    ment and dismissing the temporary reinstatement
    proceeding. If the Secretary determines that there
    has been discrimination and files a complaint
    on the miner’s behalf, the temporary reinstate-
    ment order would remain in effect until the
    judge’s decision disposing of the merits of the
    complaint, or the Commission’s decision or
    court’s decision, in the event of appeal, becomes
    final by the passage of 30 days.
Id. at 982 (footnote omitted).
  Because they believed that the language of the statute
was unambiguous, Commissioners Duffy and Young
did not need to consider what level of deference was
owed to the Secretary’s position. Nevertheless, they
noted that they “fail[ed] to see how the Secretary is
owed deference on the question of whether temporary
reinstatement should continue after the Secretary has
made a determination of no discrimination. . . . The
Secretary, by declining to pursue a miner’s claim of
discrimination, essentially remove[d] herself from the
case.” Id. at 987.
  Commissioner Jordan disagreed with the plurality’s
analysis. She believed that, “in accordance with the
18                                                No. 11-2860

plain meaning of the statute, there is no ‘final order on
the complaint’ until the Commission issues an order
which either affirms, modifies, or vacates the Secretary’s
proposed order” under § 815(c)(2) “or dismisses or
sustains the complainant’s charges” under § 815(c)(3).
Id. at 991 (Jordan, Comm’r, dissenting). Commissioner
Jordan was not persuaded that Congress’s use of
different terms in § 815(c)(2) (complaint) and § 815(c)(3)
(action) meant that temporary reinstatement lasted only
as long as proceedings under § 815(c)(2). She noted that,
although § 815(c)(3) “refers to an ‘action’ before the
Commission, the person who files this action is referred
to as the ‘complainant.’ ” Id. at 993 (quoting 29 U.S.C.
§ 815(c)(3)) (emphasis omitted). Commissioner Jordan
believed that the use of the term “ ‘complainant’ [wa]s
an acknowledgment that the proceeding under section
105(c)(3) involve[d] the same alleged discriminatory
conduct that prompted the miner’s complaint to the
Secretary under section 105(c)(2).” Id.
   The final member of the Commission,2 Commissioner
Cohen, took yet another view. He voted to reverse the
ruling of the ALJ with respect to temporary reinstate-
ment, but on the ground that the statute was
ambiguous, and the Commission should defer to the
Secretary’s position. He observed that the Commission
itself had recognized that Congress had not spoken to the



2
  At the time Phillips v. A & S Construction Co., 31 FMSHRC 975
(Sept. 2009), was decided, there was an open seat on the Com-
mission and, consequently, only four sitting Commissioners.
No. 11-2860                                                 19

issue and thus had adopted Rule 45(g) as a gap-filling
measure:
   [F]ormer Commission Procedural Rule 45(g),
   29 C.F.R. § 2700.45(g) (1999), permitted the dis-
   solution of a temporary reinstatement order upon
   the Secretary’s decision not to proceed on the
   complaint. The Commission has described this
   as “a ‘gap filling’ provision designed to deal with
   a situation not addressed by the statute—the status
   of a temporary reinstatement order following
   a determination by the Secretary that there has
   been no violation of section 105(c).” Sec’y of
   Labor on behalf of Bernardyn v. Reading Anthracite
   Co., 21 FMSHRC 947, 949-50 (Sept. 1999) (emphasis
   added). I fail to see how the statutory language
   can be considered plain when we have acknowl-
   edged that it pertained to a situation that
   Congress did not address.
Id. at 1002 (Cohen, Comm’r, dissenting). He believed
that his fellow commissioners’ refusal to defer to the
Secretary was based on an “unnecessarily restrictive
view of the Secretary’s role under the Mine Act”:
   The fact that the Secretary has determined that a
   miner has not demonstrated discrimination in
   a particular case does not change the Secretary’s
   interest in ensuring that miners who file section
   105(c)(3) actions are entitled, as a class, to contin-
   ued temporary reinstatement until a final order
   of the Commission. Because “enforcement of the
   [Mine] Act is the sole responsibility of the Secre-
20                                                No. 11-2860

     tary,” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d
     151, 161 (D.C. Cir. 2006), she has an interest in
     ensuring that section 105(c) is interpreted in an
     expansive manner, as vigorous protection for
     miners who make safety complaints (such as the
     complaint in this case, regarding miners oper-
     ating equipment while under the influence of
     alcohol, S. Br. at 3). . . . The unfettered right
     of miners to complain about safety issues without
     fear of economic penalty strengthens the Secre-
     tary’s ability to effectively enforce the Act.
Id. at 1003.
  Less than two years after Phillips, the Commission
revisited the issue in Secretary of Labor ex rel. Gray v. North
Fork Coal Corp., 33 FMSHRC 27 (Jan. 2011). By this time,
the open seat on the Commission had been filled.
Newly appointed Commissioner Nakamura joined in
Commissioner Jordan’s view that the plain language of
§ 815(c) required that temporary reinstatement continue
after the Secretary determined that no violation had
occurred, and during the miner’s litigation before the
Commission pursuant to § 815(c)(3). See id. at 33-42.
Commissioner Cohen concurred on the same basis as he
had articulated in Phillips. Commissioners Duffy and
Young, now in dissent, maintained that the plain
language of the statute commanded a different reading
than that adopted by the plurality and the Secretary. See
id. at 53-57.
No. 11-2860                                              21

C. The Parties’ Plain Meaning Arguments
  Both Vulcan and the Secretary are of the view that,
looking only at the unambiguous language of the statute,
their respective interpretations should carry the day.
We turn first to Vulcan’s arguments.


                             1.
  Vulcan believes that the term “complaint” in the
phrase “final order on the complaint,” refers only to the
complaint brought by the Secretary after she determines
that § 815(c) has been violated. Vulcan’s argument rests
on Congress’s use of the term “complaint” as well as
the structure of § 815(c). With respect to terminology,
Vulcan notes that Congress uses the same term, “com-
plaint,” to describe both the means by which a miner
raises an issue of discrimination before the Secretary
and the means by which the Secretary pursues relief
on behalf of the miner before the Commission: The
miner “file[s] a complaint with the Secretary,” and the
Secretary “file[s] a complaint with the Commission.” 30
U.S.C. § 815(c)(2) (emphasis added). Congress, however,
uses a different word, “action,” in describing how the
miner seeks redress on his own behalf before the Com-
mission: “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 . . . .”
See 30 U.S.C. § 815(c)(3) (emphasis added). Indeed, Vulcan
correctly points out that the term “complaint” is entirely
absent from § 815(c)(3).
22                                            No. 11-2860

   Turning to Vulcan’s structural argument, it observes
that, in subsections (c)(2) and (c)(3) of § 815, Congress
sets forth two different avenues of redress for a miner’s
complaint of safety-related discrimination. The focus of
§ 815(c)(2) is the Secretary’s prosecution of a complaint
before the Commission. Those proceedings begin with
the filing of a complaint by a miner, after which
the Secretary must commence an investigation within
fifteen days. If the Secretary finds that the complaint
was not frivolously brought, the Secretary shall seek,
and the Commission shall order, an immediate reinstate-
ment “pending final order on the complaint.” 30 U.S.C.
§ 815(c)(2). If the Secretary, through the course of
her investigation, determines that there has been a vio-
lation, the Secretary shall file “a complaint” with the
Commission alleging such discrimination and proposing
an order granting appropriate relief. Id. The Commis-
sion then must hold a hearing and issue an order
affirming, modifying or vacating the proposed order.
The order becomes final thirty days after it has issued.
In sum, § 815(c)(2) describes a process of redress in
which the Secretary is involved, either as an investigator
or an advocate.
  Vulcan argues that, in contrast, § 815(c)(3) picks up
the process at the point that the Secretary’s involvement
ends. It provides that, within 90 days of receipt of the
complaint, the Secretary must notify the complainant if
a violation has occurred. If the Secretary determines that
a violation has not occurred, “the complainant shall have
the right . . . to file an action in his own behalf before
the Commission.” 30 U.S.C. § 815(c)(3) (emphasis added).
No. 11-2860                                              23

The Commission then shall afford the opportunity for a
hearing, after which it will issue an order dismissing
or sustaining the charges.
  Vulcan correctly notes that Congress placed the tempo-
rary reinstatement provision in § 815(c)(2) and that
§ 815(c)(3) is completely silent on the subject. According
to Vulcan, the placement of the temporary reinstate-
ment provision in the same subsection that describes the
Secretary’s investigation, merits determination and com-
plaint, suggests that Congress meant for temporary
reinstatement to continue only during the Secretary’s
involvement.


                             2.
  The Secretary, on behalf of Mr. Dunne, takes the posi-
tion that the “final order on the complaint” is the Com-
mission’s final ruling on the merits of the miner’s safety
complaint, whether it has been pursued by the Secretary
or whether the miner has pursued his own action.
Turning first to the phrase “final order,” the Secretary
observes that, throughout § 815(c), Congress only
employs the term “final order” with respect to actions
taken by the Commission. By contrast, in describing
the Secretary’s actions, Congress uses the terms “deter-
mines” and “determination.” See 30 U.S.C. § 815(c)(2) & (3).
Consequently, the Secretary’s own determination not
to pursue the miner’s complaint before the Commission
cannot be considered a “final order” that signals the end
of temporary reinstatement. Id. § 815(c)(2).
24                                              No. 11-2860

  The Secretary also maintains that Congress’s use of
the term “the complaint,” when read in context, must
refer to the miner’s complaint. Prior to the reinstate-
ment provision, the only “complaint” mentioned in the
statutory text is that filed by the miner with the Secre-
tary. Section 815(c)(2) of Title 30 states that “[a]ny
miner . . . may[] . . . file a complaint with the Secretary
alleging such discrimination.” It also provides that,
“[u]pon receipt of such complaint, the Secretary shall
forward a copy to the respondent” and also begin an
investigation. Id. (emphasis added). The statute then
provides that “[s]uch investigation shall commence
within 15 days of the Secretary’s receipt of the complaint.”
Id. (emphasis added). Finally, “if the Secretary finds
that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of
the Secretary, shall order the immediate reinstatement
of the miner pending final order on the complaint.” Id.
(emphasis added). Thus, because the only complaint
mentioned prior to the reinstatement provision is the
miner’s initial complaint before the Secretary, the rein-
statement provision must be referring to the miner’s
complaint when it employs that term.
  Additionally, the Secretary notes, every sentence of
§ 815(c)(2) preceding the temporary reinstatement pro-
vision refers back to the miner’s complaint by use of
the term “such complaint” or “the complaint.” Id. The
temporary reinstatement provision, therefore, must be
referring to the final order on the miner’s complaint.
  Finally, the Secretary points out that, when speaking
about the duration of the reinstatement order, Congress
No. 11-2860                                              25

uses the definite article “the” with “complaint.” 30 U.S.C.
§ 815(c)(2) (“[T]he Commission, shall order the immedi-
ate reinstatement of the miner pending final order on
the complaint.” (emphasis added)). However, when
Congress continues to describe the Secretary’s actions
after temporary reinstatement is secured, Congress
states that the Secretary shall file “a complaint.” Id. (em-
phasis added). The fact that Congress used the indefinite
article, the Secretary continues, shows that “Congress
intended the Secretary’s complaint to be viewed as some-
thing different than the miner’s underlying complaint.”
Appellee’s Br. 22. Consequently, the Secretary concludes
that, regardless whether the complaint is pursued by
the Secretary or pursued by the miner through an action
on his own behalf, the temporary reinstatement order
should not be dissolved until the miner’s underlying
complaint is resolved.


                             3.
  “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997). Evaluating the
language of the temporary reinstatement provision, not
in isolation, but in the broader context of § 815(c), we
believe that the unambiguous language of the statute
requires that temporary reinstatement end when the
Secretary’s involvement ends.
26                                               No. 11-2860

  Turning first to the language employed by Congress,
we believe that it is significant that Congress chose
the same term—“complaint”—to describe both the
miner’s means of redress before the Secretary and the
Secretary’s means of redress (on the miner’s behalf)
before the Commission. Congress, however, chose a
different term—“action”—to describe a miner’s means
of redress before the Commission on his own behalf.
We presume that Congress’s choice of language was
deliberate. See Russello v. United States, 464 U.S. 16,
23 (1983).
  Additionally, Congress tied the temporary reinstate-
ment provision to the Secretary’s investigation and prelim-
inary findings. The temporary reinstatement provision
states:
     Such investigation shall commence within 15 days
     of the Secretary’s receipt of the complaint, and
     if the Secretary finds that such complaint was not
     frivolously brought, the Commission, on an expe-
     dited basis upon application of the Secretary,
     shall order the immediate reinstatement of the
     miner pending final order on the complaint.
30 U.S.C. § 815(c)(2) (emphasis added). Once the
Secretary concludes that the complaint has no merit,
therefore, the temporary reinstatement should come
to an end. Indeed,
     [i]t is difficult to understand why Congress
     would favor reinstatement after the Secretary has
     found the miner’s complaint to lack merit. It is one
     thing to require a coal company to continue to
No. 11-2860                                               27

   employ a miner after the Secretary determines
   that the discrimination complaint was not frivo-
   lously filed. It is quite another to do so after the
   Secretary determines that the complaint has no
   merit. It is quite possible, indeed, that the Secre-
   tary’s investigation will uncover not just that
   the complaint is meritless but that it is frivolous
   to boot, making it exceedingly odd to pre-
   serve the reinstatement even after the body
   given authority over this threshold determina-
   tion finds that it no longer exists.
N. Fork Coal Co. v. Fed. Mine Health & Safety Review
Comm’n, 691 F.3d 735, 746 (6th Cir. 2012) (Sutton, J.,
concurring).
  Moreover, Congress placed the temporary reinstate-
ment provision in § 815(c)(2), which sets forth the pro-
ceedings in which the Secretary is most actively involved.
There is no mention of temporary reinstatement, or even
a “complaint,” in § 815(c)(3), which is dedicated to ex-
plaining how a miner proceeds on his own behalf once
the Secretary’s involvement has ended. “Once again,
we presume that this choice in statutory structure was
intentional, indicating that temporary reinstatement is
not appropriate when a miner pursues an individual
‘action’ under § 815(c)(3).” Id. at 743 (majority opinion).
 In short, Congress
   described the two proceedings in different ways
   (complaint versus action), directed the miner to
   file them in different places (the Secretary versus
   the Commission), explained that they were filed
28                                               No. 11-2860

     for different purposes (for the Secretary’s investi-
     gation versus on the miner’s own behalf for
     the Commission’s resolution) and mentioned
     reinstatement in one place but not in the other.
     Different words in different places mean dif-
     ferent things.
Id. at 746 (Sutton, J., concurring). We conclude, therefore,
that, based on the language Congress employed, the
connection Congress drew between the Secretary’s in-
vestigation and temporary reinstatement, and Congress’s
placement of the temporary reinstatement provision in
§ 815(c)(2) (especially when combined with Congress’s
silence with respect to temporary reinstatement
in § 815(c)(3)), the temporary reinstatement provision
ends when the Secretary’s involvement ends.


                              4.
  We find unpersuasive the Secretary’s arguments that
the plain meaning of the statute renders a contrary
result. The Secretary first relies on Congress’s use of the
definite article—“the”—when describing the complaint
in the temporary reinstatement provision compared
with its use of the indefinite article—“a”—when de-
scribing a complaint by the Secretary before the Commis-
sion. According to the Secretary, the choice of different
articles evidences that, with respect to the first phrase,
Congress was referring to resolution of the miner’s com-
plaint, as opposed to final resolution of the Secretary’s
complaint under subsection (c)(2). We believe it of far
greater import, however, that Congress employs the same
No. 11-2860                                            29

term— “com plaint”— throughout § 815(c)(2). This
is especially true given Congress’s choice of different
wording—“action”—to describe when the miner takes
control of redressing the alleged wrongdoing.
  The Secretary next maintains that “[t]he only ‘com-
plaint’ referred to in Section 105(c)(2) preceding the
phrase ‘pending final order on the complaint’ is the
miner’s underlying complaint. . . . Thus, the term ‘the
complaint’ in the phrase ‘pending final order on
the complaint’ plainly refers to the miner’s under-
lying complaint.” Appellee’s Br. 21. Read in isolation,
the Secretary’s interpretation is plausible, but ignores
the remainder of § 815(c)(2) and § 815(c)(3). When we
consider (1) that the temporary reinstatement provision
is placed within § 815(c)(2), (2) that § 815(c)(2) focuses
on the Secretary’s involvement in redressing retaliation
complaints, (3) that the term Congress employed for
the Secretary’s means of redress on behalf of the miner
also is “complaint” and (4) that § 815(c)(3) employs com-
pletely different terminology, we believe it is clear
that Congress meant for the term to encompass both
the miner’s complaint before the Secretary and the Secre-
tary’s complaint on behalf of the miner before the Com-
mission. That is, we believe that Congress meant to
convey that the temporary reinstatement order lasts
only as long as the proceedings governed by § 815(c)(2).
  The Secretary argues as well that Congress’s use of
the term “complainant” in § 815(c)(3) suggests that Con-
gress is referring to the miner’s complaint in the
temporary reinstatement provision and that the miner’s
30                                              No. 11-2860

complaint survives beyond the Secretary’s involvement
detailed in § 815(c)(2). See Appellee’s Br. 23. The
Secretary’s interpretation is not illogical, but would be
more persuasive if Congress had not used a different
term to refer to the miner’s means of redress before
the Commission—“action”—from that which it used to
describe the means by which the Secretary pursues
relief on behalf of the miner—“complaint.”
  Finally, the Secretary maintains that Vulcan’s inter-
pretation conflates the temporary reinstatement with a
merits decision, disregards the Commission’s important
fact-finding role, and ignores Congress’s “recognition
that even if the Secretary decides not to proceed under
Section 105(c)(2), there is still a realistic possibility
that discrimination occurred.” Appellee’s Br. 28. Again,
we do not perceive the same infirmities in Vulcan’s
plain meaning analysis.
  The approach we have outlined does not conflate the
“not frivolously brought” and “not been violated” stan-
dards. 30 U.S.C. § 815(c)(2) & (3). These questions are
posed at different stages in the investigative process.
Congress established a lower threshold for temporary
reinstatement because the Secretary must seek that
relief early in the process, before she has had an oppor-
tunity to complete her investigation. At this stage, Con-
gress essentially gives the miner the benefit of the doubt
with respect to the merits of his claim. However, once
the Secretary completes her investigation, her actual
findings take precedence.
  We also disagree that, if a temporary reinstatement
order is dissolved at the time of the Secretary’s “no-merit”
No. 11-2860                                                  31

finding, the Commission is deprived of its fact-finding
role. The duration of temporary reinstatement is a
separate and distinct issue from the merits of the miner’s
underlying claim. Congress did not give the Commis-
sion any discretion with respect to whether temporary
reinstatement is ordered, see 30 U.S.C. § 815(c)(2) (“[I]f
the Secretary finds that such complaint was not frivolously
brought, the Commission[] . . . shall order the immediate
reinstatement of the miner . . . .”) (emphasis added), and
it follows, therefore, that it does not disturb the Com-
mission’s role in the statutory scheme that the termina-
tion of those benefits should rest on the Secretary’s deter-
mination.
  Finally, the mere existence of a miner’s “independent
avenue of adjudication” under § 815(c)(3) hardly sug-
gests a congressional intent to provide temporary rein-
statement during those proceedings. See Appellee’s Br.
28 (internal quotation marks omitted). Indeed, given
the statutory structure that we have described previously,
we believe that the fact that this avenue of adjudication
is independent of the Secretary’s involvement, both
statutorily and in practice, strongly suggests that tempo-
rary reinstatement does not extend to this process.3



3
  As noted previously, the Secretary also maintains that Vul-
can’s view is untenable because her decision on the merits is
a “determination,” not a “final order on the complaint” by the
Commission. Thus, her merits decision cannot be the event
that triggers the end of temporary reinstatement.
                                                  (continued...)
32                                                No. 11-2860



D. Deference to the Secretary
  Because we have determined that the plain meaning
of § 815(c) requires that we reverse the Commission, we
do not need to reach the question of the proper deference
owed to the Secretary’s interpretation of the statute.
See Chevron USA v. Natural Res. Council, Inc., 467 U.S.
837, 842-43 (1984) (“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


3
  (...continued)
  It is true that the statute does not set forth explicitly how
a temporary reinstatement order is dissolved if the Sec-
retary concludes that there is no merit to the complaint.
This silence, however, affects both Vulcan’s and the Secre-
tary’s proposed reading of the statute. According to the Sec-
retary’s interpretation, temporary reinstatement continues
through the Secretary’s prosecution of the miner’s complaint
or through the miner’s action on his own behalf. However, if
the Secretary should decline to file a complaint on behalf of
the miner, and the miner also decides not to pursue his own
action before the Commission, there is no final order on the
miner’s complaint to signal the end of temporary reinstatement.
See Gray, 33 FMSHRC at 57 (Duffy and Young, Comm’rs,
dissenting) (“Moreover, the center of our colleagues’ case—that
because there is no ‘order’ terminating the complaint to
MSHA, reinstatement must continue—is undercut by a fact
acknowledged by the majority: there is no order disposing of
a temporary reinstatement if the miner elects not to proceed
with a private action within 30 days.”).
No. 11-2860                                                   33

intent of Congress.”). Nevertheless, even if the statute
were ambiguous, we nevertheless would conclude that
the Secretary’s interpretation is not entitled to deference
under Chevron. We also would conclude that, under
the factors set forth in Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944), the Secretary’s position lacks the “power
to persuade.”


                               1.
  The Secretary’s claim to Chevron-type deference
rests in large part on Secretary of Labor v. Excel
Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003).4 In Excel


4
  In her brief before this court, the Secretary also relied upon
statements in Pendley v. Federal Mine Safety & Health Review
Commission, 601 F.3d 417, 423 & n.2 (6th Cir. 2010). In Pendley,
the Sixth Circuit observed that a court “must . . . give Chevron
deference to the Commission’s reasonable interpretation of
ambiguous provisions of the Mine Act” and that “the
Secretary of Labor’s reasonable interpretation will supersede
that of the Commission.” We agree with these statements as
general propositions. Pendley does not address, however, the
different types of agency pronouncements and the varying
degrees of deference owed to those pronouncements. See
United States v. Mead Corp., 533 U.S. 218, 228 (2001).
  Moreover, since this case was briefed, the Sixth Circuit
has addressed the precise issue currently before this court and
held that the Secretary’s position was not entitled to Chevron
deference. N. Fork Coal Corp. v. Fed. Mine Safety & Health
Rev. Comm’n, 691 F.3d 735 (6th Cir. 2012). It stated:
                                                   (continued...)
34                                                      No. 11-2860

Mining, the court reviewed the Chevron analysis and
observed that,
      in the statutory scheme of the Mine Act, “ ‘the
      Secretary’s litigating position before [the Com-
      mission] is as much an exercise of delegated law-
      making powers as is the Secretary’s promulgation
      of a . . . health and safety standard,’ ” and is there-
      fore deserving of deference. RAG Cumberland [Res.,
      LP v. Fed. Mine Safety & Health Review Comm’n],
      272 F.3d [590,] 596 n. 9 [(D.C. Cir. 2001)] (quoting
      Martin[ v. Occupational Safety & Health Review
      Comm’n], 499 U.S. [144,] 157 [(1991)]).


4
    (...continued)
       While deference is due, our precedent precludes the
       application of full Chevron deference in this case. In
       Chao v. Occupational Safety & Health Review Commission,
       540 F.3d 519 (6th Cir. 2008), we stated that Chevron
       deference “is not required where the interpretation is
       offered via an informal medium—such as an opinion
       letter, agency manual, policy statement, or enforcement
       guideline—that lacks the force of law.” Id. at 527 (citing
       Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)).
       Because the Secretary’s interpretation in Chao was a
       litigation position, we held that it was entitled to
       Skidmore deference, only. Id. at 526–27 (citing Skidmore
       v. Swift & Co., 323 U.S. 134, 140 (1944)).
        Similarly, in the present case, because the Secretary’s
      interpretation has been offered in litigation, it is af-
      forded no more than Skidmore deference.
Id. at 742-43.
No. 11-2860                                             35

Id. at 6 (parallel citations omitted). Because the Supreme
Court’s decision in Martin v. Occupational Safety &
Health Review Commission, 499 U.S. 144 (1991), is the
ultimate source for this proposition, the circumstances
and holding in Martin must guide our application.
   In Martin, the court “consider[ed] the question to
whom should a reviewing court defer when the
Secretary of Labor and the Occupational Safety and
Health Review Commission furnish reasonable but con-
flicting interpretations of an ambiguous regulation pro-
mulgated by the Secretary under the Occupational
Safety and Health Act of 1970.” 499 U.S. at 146. At issue
in Martin was
   the Secretary’s effort to enforce compliance with
   OSH Act standards relating to coke-oven emis-
   sions. Promulgated pursuant to the Secretary’s
   rulemaking powers, these standards establish
   maximum permissible emissions levels and
   require the use of employee respirators in certain
   circumstances. See 29 CFR § 1910.1029 (1990).
   An investigation by one of the Secretary’s compli-
   ance officers revealed that respondent CF & I
   Steel Corporation (CF & I) had equipped 28
   of its employees with respirators that failed
   an “atmospheric test” designed to determine
   whether a respirator provides a sufficiently tight
   fit to protect its wearer from carcinogenic emis-
   sions. As a result of being equipped with these
   loose-fitting respirators, some employees were
   exposed to coke-oven emissions exceeding the
36                                              No. 11-2860

     regulatory limit. Based on these findings, the
     compliance officer issued a citation to CF & I and
     assessed it a $10,000 penalty for violating 29 CFR
     § 1910.1029(g)(3) (1990), which requires an em-
     ployer to “institute a respiratory protection pro-
     gram in accordance with § 1910.134.” CF & I con-
     tested the citation.
Id. at 148. The Secretary prevailed before the ALJ, but
the full Commission subsequently vacated the citation
on the ground that the Secretary had misinterpreted
the regulation under which the citations were issued. See
id. at 149. The Tenth Circuit deferred to the Commission’s,
not the Secretary’s, interpretation of the regulation, but
the Supreme Court reversed. Looking to the structure
and history of OSHA, the Court concluded that “the
power to render authoritative interpretations of OSH Act
regulations is a ‘necessary adjunct’ of the Secretary’s
powers to promulgate and to enforce national health
and safety standards.” Id. at 152. Thus, whether courts
owe Chevron-type deference to the Secretary’s position
outside of the context of her interpretation of her own
ambiguous regulation simply was not before the Court.
  Nevertheless, the Court discussed the question of the
degree of deference owed to the Secretary’s interpreta-
tion in response to certain arguments made by the em-
ployer in favor of deferring to the Commission’s inter-
pretation. The Court stated:
       We are likewise unpersuaded by the contention
     that the Secretary’s interpretations of regulations
     will necessarily appear in forms undeserving
No. 11-2860                                                  37

    of judicial deference. Our decisions indicate that
    agency “litigating positions” are not entitled to
    deference when they are merely appellate
    counsel’s “post hoc rationalizations” for agency
    action, advanced for the first time in the reviewing
    court. See Bowen v. Georgetown Univ. Hospital, [488
    U.S. 204, 212 (1988)]; Burlington Truck Lines, Inc. v.
    United States, 371 U.S. 156, 168 (1962). Because
    statutory and regulatory interpretations fur-
    nished in this setting occur after agency proceed-
    ings have terminated, they do not constitute
    an exercise of the agency’s delegated law-
    making powers. The Secretary’s interpretation
    of OSH Act regulations in an administrative ad-
    judication, however, is agency action, not a post
    hoc rationalization of it. Moreover, when embodied
    in a citation, the Secretary’s interpretation assumes
    a form expressly provided for by Congress. See 29
    U.S.C. § 658. Under these circumstances, the Secre-
    tary’s litigating position before the Commission
    is as much an exercise of delegated lawmaking
    powers as is the Secretary’s promulgation of a
    workplace health and safety standard.
Id. at 156-57 (fifth emphasis added).
  There are several reasons why this discussion in
Martin cannot support the general proposition that the
Secretary’s litigation position concerning the meaning
of the Federal Mine Safety and Health Act must be ac-
corded Chevron deference here. First, the Court itself
“emphasize[d] the narrowness of [its] holding.” Martin,
499 U.S. at 157. It stated:
38                                               No. 11-2860

     We deal in this case only with the division of
     powers between the Secretary and the Com-
     mission under the OSH Act. We conclude from
     the available indicia of legislative intent that
     Congress did not intend to sever the power author-
     itatively to interpret OSH Act regulations from
     the Secretary’s power to promulgate and enforce
     them. . . .
        In addition, although we hold that a reviewing
     court may not prefer the reasonable interpreta-
     tions of the Commission to the reasonable inter-
     pretations of the Secretary, we emphasize that
     the reviewing court should defer to the Secretary
     only if the Secretary’s interpretation is reasonable.
     The Secretary’s interpretation of an ambiguous
     regulation is subject to the same standard of sub-
     stantive review as any other exercise of delegated
     lawmaking power. As we have indicated, the
     Secretary’s interpretation is not undeserving of
     deference merely because the Secretary advances
     it for the first time in an administrative adjudi-
     cation. But as the Secretary’s counsel conceded in
     oral argument, the decision to use a citation as
     the initial means for announcing a particular
     interpretation may bear on the adequacy of
     notice to regulated parties, on the quality of the
     Secretary’s elaboration of pertinent policy con-
     siderations, and on other factors relevant to the
     reasonableness of the Secretary’s exercise of dele-
     gated lawmaking powers.
Id. at 157-58 (last emphasis added) (citations omitted).
No. 11-2860                                              39

  Additionally, the Court’s discussion of deference
speaks to an administrative adjudication—the Secre-
tary’s effort to enforce, administratively and judicially,
a safety citation—different in kind from what is at issue
here. The Court observed:
   The Secretary’s interpretation of OSH Act reg-
   ulations in an administrative adjudication, how-
   ever, is agency action, not a post hoc rationaliza-
   tion of it. Moreover, when embodied in a citation,
   the Secretary’s interpretation assumes a form
   expressly provided for by Congress. See 29 U.S.C.
   § 658. Under these circumstances the Secretary’s
   litigating position before the Commission is as
   much an exercise of delegated lawmaking
   powers as is the Secretary’s promulgation of a
   workplace health and safety standard.
Martin, 499 U.S. at 157 (third and fourth emphases added).
   The situation at bar, however, does not involve the
Secretary’s determination or enforcement of a safety cita-
tion issued pursuant to 30 U.S.C. § 814, the Federal
Mine Safety and Health Act’s equivalent to OSHA’s 29
U.S.C. § 658. The Secretary is not seeking to enforce
through litigation a citation that she issued pursuant to
§ 814. Moreover, there is no specific grant of authority
allowing the Secretary to determine, in the first instance,
when a temporary reinstatement order should end.
Indeed, according to § 815(c)(3), the Secretary’s role in a
miner’s retaliation claim ends when she determines
that the complaint has no merit; the Secretary has no
40                                              No. 11-2860

involvement in an action brought by a miner on his
own behalf. Consequently, there is no agency enforce-
ment action of the kind at issue in Martin to which
the court must defer. The later cases, on which the Secre-
tary relies, untether Martin from these legal and factual
moorings and, as a result, are unpersuasive.
  Granting Chevron-type deference to an agency’s
general policy or interpretive statements, regardless of
how and in what form they are communicated, runs
afoul of the Supreme Court’s guidance in Christensen v.
Harris County, 529 U.S. 576, 587 (2000). In Christensen, the
Court held that less-formal agency interpretations, “not
one[s] arrived at after, for example, a formal adjudica-
tion or notice-and-comment rulemaking,” “do not war-
rant Chevron-style deference.” Id. More recently, in
Gonzales v. Oregon, 546 U.S. 243 (2006), the Court
reiterated that the lynchpins of Chevron deference are
whether there is a Congressional delegation of authority
and whether the promulgation is made pursuant to that
delegation:
       Executive actors often must interpret the enact-
     ments Congress has charged them with enforcing
     and implementing. . . . Although balancing the
     necessary respect for an agency’s knowledge,
     expertise, and constitutional office with the
     courts’ role as interpreter of laws can be a
     delicate matter, familiar principles guide us. An
     administrative rule may receive substantial defer-
     ence if it interprets the issuing agency’s own
     ambiguous regulation. Auer v. Robbins, 519 U.S.
No. 11-2860                                                     41

    452, 461-463 (1997). An interpretation of an am-
    biguous statute may also receive substantial defer-
    ence. Chevron U.S.A. Inc. v. Natural Resources De-
    fense Council, Inc., 467 U.S. 837, 842-845 (1984).
    Deference in accordance with Chevron, however, is
    warranted only “when it appears that Congress dele-
    gated authority to the agency generally to make
    rules carrying the force of law, and that the agency
    interpretation claiming deference was promulgated
    in the exercise of that authority.” United States v.
    Mead Corp., 533 U.S. 218, 226–227 (2001). Otherwise,
    the interpretation is “entitled to respect” only to the
    extent it has the “power to persuade.” Skidmore v.
    Swift & Co., 323 U.S. 134, 140 (1944).
Gonzales, 546 U.S. at 255-56 (emphasis added). Our own
case law has reiterated these important criteria for in-
voking Chevron deference.5


5
  See, e.g., Joseph v. Holder, 579 F.3d 827, 831 (7th Cir. 2009)
(“Chevron, however, deals only with the question whether an
agency acts within its authority when it formulates a policy and
issues a regulation.”); Sehie v. City of Aurora, 432 F.3d 749, 753
(7th Cir. 2005) (stating that “we are not bound by informal
administrative opinions” and citing Christensen); White v.
Scibana, 390 F.3d 997, 1000 (7th Cir. 2004) (“Not all agency
interpretations of ambiguous statutes are entitled to full
Chevron deference; some are treated as persuasive only, based
upon the form, content, circumstances, and reflected
expertise of the interpretation.” (citing Mead)); Indiana Family
& Soc. Servs. Admin. v. Thompson, 286 F.3d 476, 480 (7th Cir.
                                                     (continued...)
42                                                 No. 11-2860

  The Secretary’s pronouncement was not issued
pursuant to rulemaking authority. Nor is her position
“embodied in a citation”—a form of administrative in-
terpretation “expressly provided for by Congress.” Martin,
499 U.S. at 157. Instead, the Secretary has articulated
her position in litigation before the Commission and
before the Courts of Appeals. Thus, even if § 815(c) were
ambiguous with respect to the duration of the temporary
reinstatement provision, we would not accord the Secre-
tary’s position Chevron deference, but rather we would
give it “ ‘respect’ ” based on “its ‘power to persuade.’ ”
Christensen, 529 U.S. at 587 (quoting Skidmore, 323
U.S. at 140).


                               2.
   Under Skidmore, a court will respect an agency’s inter-
pretation of the statute it administers, but only to the
extent that the agency’s interpretation possesses the
“power to persuade.” Skidmore, 323 U.S. at 140; see also,
e.g., Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011).
In assessing the persuasive power of an agency’s inter-
pretation, “we examine ‘the thoroughness evident in
its consideration, the validity of its reasoning, its con-
sistency with earlier and later pronouncements, and


5
   (...continued)
2002) (“Mead[] . . . makes clear that not all agency interpreta-
tions of its own laws are entitled to full Chevron deference.
Only those subject to notice-and-comment or comparable
formalities qualify.”).
No. 11-2860                                             43

all those factors which give it power to persuade,
if lacking power to control.’ ” Arobelidze, 653 F.3d at
520 (quoting Skidmore, 323 U.S. at 140). We believe
that these factors militate strongly against adopting
the Secretary’s position.
   For nearly thirty years, the Secretary deferred not only
to the Commission’s interpretation of the temporary
reinstatement provision, but also to the Commission’s
authority to interpret that provision. At no time during
those three decades did the Secretary suggest that
the Commission’s interpretation of the provision
was wrong or that the Commission had overstepped
its authority in issuing rules on temporary reinstate-
ment. This silence substantially undermines the
Secretary’s current claim that she possesses “historical
familiarity and expertise,” Appellee’s Br. 12 (internal
quotation marks omitted), with respect to the admin-
istration of the temporary reinstatement provision
such that we should defer to her position. See N. Fork
Coal, 691 F.3d at 744.
  Moreover, when the Secretary recently decided to
speak on the issue, she did so in a series of briefs before
the Commission and the Courts of Appeals. Her
position was not subject to an outside vetting process
such as public commentary. See Christopher v. Smithkline
Beecham Corp., 132 S. Ct. 2156, 2169 (2012) (observing
that the Department of Labor’s interpretation of a reg-
ulation articulated in a series of amicus briefs
“plainly lack[ed] the hallmarks of thorough considera-
tion” because “there was no opportunity for public com-
44                                              No. 11-2860

ment”). Moreover, she does not explain her recent as-
sertions of authority or interpretation of the statute
in a manner that suggests that the position now being
advocated was given thoughtful consideration within
the agency. See Kentucky Ret. Sys. v. EEOC, 554 U.S. 135,
150 (2008) (noting that policy statements that the
agency “ma[de] little effort to justify lack[] the necessary
‘power to persuade’ ” (quoting Skidmore, 323 U.S. at 140)).
  Finally, as we already have explained, 6 we do not
believe that the Secretary’s position satisfactorily
accounts for the explicit language and context of the
temporary reinstatement provision or for the structure
of § 815(c). The shortcomings in both the manner in
which the Secretary announced her position and the
substance of that position prevent us from finding
her position persuasive. Consequently, even if we
thought the statute ambiguous, we would not defer to
the Secretary’s view.
   Because we adopt Vulcan’s interpretation of the tempo-
rary reinstatement provision, we need not address
its argument that the Secretary’s proposed interpreta-
tion raises constitutional concerns. Specifically, we do
not reach the question whether the guarantee of
temporary reinstatement beyond the Secretary’s no-
merit determination, without any provision for the
mine owners’ recoupment of the sums paid over the
course of several months or years, deprives mine owners
of their right to due process of law. See Brock v. Roadway


6
    See supra at pp. 25-32.
No. 11-2860                                            45

Express, Inc., 481 U.S. 252, 260-61 (1987) (holding that
the “right to discharge an employee for cause con-
stitutes a property interest protected by the Fifth Amend-
ment,” the deprivation of which must be accompanied
by an “opportunity to be heard ‘at a meaningful time
and in a meaningful manner’ ” (quoting Matthews v.
Eldridge, 424 U.S. 319, 333 (1976))).


                       Conclusion
  For the reasons set forth in this opinion, we do not
believe the Commission’s denial of Vulcan’s motion to
dissolve the temporary reinstatement order can be
squared with the plain language of 30 U.S.C. § 815(c).
We therefore grant Vulcan’s petition for review and
reverse the judgment of the Commission.
                                      P ETITION G RANTED ;
                                     JUDGMENT R EVERSED




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