                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0263p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                             X
                                              -
 NORTH FORK COAL CORPORATION,
                                              -
                                           Petitioner,
                                              -
                                              -
                                                 Nos. 11-3398/3684
          v.
                                              ,
                                               >
 FEDERAL MINE SAFETY AND HEALTH REVIEW -
                                              -
                                              -
 COMMISSION; SECRETARY OF LABOR; MARK
                                              -
 GRAY,
                              Respondents. N
                      On Petition for Review from the
             Federal Mine Safety and Health Review Commission.
                           No. Kent 2009-1429-D.
                                     Argued: July 19, 2012
                            Decided and Filed: August 14, 2012
    Before: SUTTON and GRIFFIN, Circuit Judges; and HOOD, District Judge.*

                                      _________________

                                           COUNSEL
ARGUED: Stephen M. Hodges, PENN, STUART & ESKRIDGE, Abingdon, Virginia,
for Petitioner. Robin Rosenbluth, UNITED STATES DEPARTMENT OF LABOR,
Arlington, Virginia, for Respondents. ON BRIEF: Stephen M. Hodges, Timothy W.
Gresham, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Petitioner. Robin
Rosenbluth, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, Tony
Oppegard, Lexington, Kentucky, Wes Addington, APPALACHIAN CITIZENS LAW
CENTER, INC., Whitesburg, Kentucky, for Respondents.
    GRIFFIN, J., delivered the opinion of the court, in which SUTTON, J. and
HOOD, D. J., joined. SUTTON, J. (pp. 13–16), delivered a separate concurring opinion.




        *
        The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                                 1
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                         Page 2


                                 _________________

                                       OPINION
                                 _________________

       GRIFFIN, Circuit Judge. This case involves a complaint of employment
discrimination filed by Mark Gray with the Secretary of Labor (“Secretary”) pursuant
to the Federal Mine Safety and Health Act of 1977 (the “Mine Act” or “Act”), as
amended, 30 U.S.C. §§ 801 - 965. Following a determination that Gray’s complaint was
not “frivolously brought,” Gray was granted temporary reinstatement. 30 U.S.C.
§ 815(c)(2). Thereafter, following an investigation of Gray’s allegations, the Secretary
determined that a violation of the Mine Act had not occurred. Accordingly, the
Secretary denied Gray’s complaint, concluding that a discrimination action on Gray’s
behalf was not warranted. The instant case presents the issue of first impression of
whether the Mine Act mandates that an employee’s temporary reinstatement continue
after the Secretary determines that his complaint lacks merit. We hold that the Mine Act
does not require such continued temporary reinstatement.

                                            I.

       In 1977, the Mine Act was enacted to address the “urgent need to provide more
effective means and measures for improving the working conditions and practices in the
Nation’s coal [and] other mines in order to prevent death and serious physical harm[.]”
30 U.S.C. § 801(c). One important provision of the Act prohibits employment
discrimination as a reprisal for making safety-related complaints. Id. § 815(c)(1). This
prohibition was intended to encourage miners to play an “active part in the enforcement
of the Act” and protect them “against any possible discrimination which they might
suffer as a result of their participation.” S. Rep. No. 95-181, at 35 (1977), reprinted in
1977 U.S.C.C.A.N. 3401, 3435.

       Under the Mine Act, a miner believing that he was subjected to prohibited
employment discrimination may file a complaint with the Secretary. 30 U.S.C.
§ 815(c)(2). If the Secretary determines that the complaint is not “frivolously brought,”
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                        Page 3


she must request the Federal Mine Safety and Health Review Commission (the
“Commission”) to order the miner’s temporary reinstatement “pending final order on the
complaint.” Id. Thereafter, the Secretary conducts an investigation to determine
whether she will pursue the discrimination complaint on behalf of the miner. Id. If the
Secretary finds that no Mine Act violation occurred, the miner may bring an action on
his or her own behalf. Id. § 815(c)(3). Under either circumstance, the merits of the
miner’s discrimination complaint is resolved by an administrative law judge (“ALJ”),
with further discretionary review provided by the Commission. 29 C.F.R. §§ 2700.69,
2700.70. Parties aggrieved by the Commission’s final order may seek additional review
in the federal courts of appeals. 30 U.S.C. § 816.

                                           II.

       On May 15, 2009, North Fork Coal Corporation (“North Fork”) fired Mark Gray,
a roof bolter employed in its No. 4 mine. Gray thereafter filed a discrimination
complaint with the Secretary, alleging he was terminated for making safety-related
complaints. Finding that Gray’s complaint was not “frivolously brought,” the Secretary
filed an application for his temporary reinstatement, and an ALJ granted the request.
The parties jointly requested that Gray’s reinstatement be economic, foregoing his return
to the mine.

       Following her investigation into Gray’s termination, the Secretary informed the
ALJ that she would not be pursuing the discrimination complaint. Soon thereafter, the
ALJ issued an order dissolving Gray’s temporary reinstatement. On December 30, 2009,
Gray filed a discrimination action on his own behalf.

       On January 8, 2010, the Commission granted discretionary review of the ALJ’s
dissolution of Gray’s temporary reinstatement. Thereafter, in a split decision, the
Commission reversed the ALJ’s order, holding that temporary reinstatement was
required to continue until Gray’s individual action was resolved by final order. Two
commissioners based this holding on the plain language of § 815(c), while a concurring
third commissioner found § 815(c) to be ambiguous, requiring deference to the
interpretation of the Secretary. The two dissenting commissioners asserted that the plain
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                          Page 4


language of § 815(c) required the dissolution of temporary reinstatement when the
Secretary decided not to pursue the miner’s complaint. North Fork thereafter filed a
petition for review before this court.

                                           III.

       “The standard under which [we review] the Commission’s order is governed by
the Mine Act and general administrative law principles[.]” Pendley v. Fed. Mine Safety
& Health Review Comm’n, 601 F.3d 417, 422 (6th Cir. 2010). “[We review] the
Commission’s decision and not the underlying decision of the ALJ[.]” Id. Questions
of law are reviewed de novo. Id. at 423. When in conflict, the Secretary’s reasonable
interpretation supercedes that of the Commission. Id. at 423 n.2 (citing Sec’y of Labor
ex rel. Bushnell v. Cannelton Indus., 867 F.2d 1432, 1435 (D.C. Cir. 1989)).

       When reviewing an agency’s interpretation of statutory language, we are
presented with two questions. “First, always, is the question whether Congress has
directly spoken to the precise 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, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). However, “if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.” Id. at 843.

                                           IV.

       Section 815(c)(2) states in relevant part:

       Any miner . . . 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 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 immediate
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                           Page 5


       reinstatement of the miner pending final order on the complaint. If upon
       such investigation, 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 representative of miners alleging such
       discrimination or interference and propose an order granting appropriate
       relief. The Commission shall afford an opportunity for a hearing (in
       accordance with section 554 of Title 5 but without regard to subsection
       (a)(3) of such section) 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.

30 U.S.C. § 815(c)(2) (emphasis added). Also relevant to this petition is § 815(c)(3),
which provides:

       Within 90 days of the receipt of a complaint filed under paragraph
       (2), the Secretary shall notify, in writing, the miner, applicant for
       employment, or representative of miners of his determination whether a
       violation has occurred. If the Secretary, upon investigation, determines
       that the provisions of this subsection have not been violated, the
       complainant shall have the right, within 30 days of notice of the
       Secretary’s determination, to file an action in his own behalf before the
       Commission, charging discrimination or interference in violation of
       paragraph (1). The Commission shall afford an opportunity for a hearing
       (in accordance with section 554 of Title 5 but without regard to
       subsection (a)(3) of such section), and thereafter shall issue an order,
       based upon findings of fact, dismissing or sustaining the complainant’s
       charges and, if the charges are sustained, granting such relief as it deems
       appropriate. . . . Proceedings under this section shall be expedited by the
       Secretary and the Commission. Any order issued by the Commission
       under this paragraph shall be subject to judicial review in accordance
       with section 816 of this title.

Id. § 815(c)(3). This case turns on the proper interpretation of the phrase “pending final
order on the complaint” contained in § 815(c)(2). The Secretary reads the term
“complaint” to mean the miner’s underlying discrimination complaint, whether it is
litigated by the Secretary under § 815(c)(2) or the miner under § 815(c)(3). North Fork
asserts that the term “complaint” refers to that filed by the Secretary before the
Commission, and not to the separate “action” filed by the miner under § 815(c)(3).
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                         Page 6


       From 1978 to 2006, the Code of Federal Regulations provided: “If, following
an order of temporary reinstatement, the Secretary determines that the provisions of
section 105(c)(1), 30 U.S.C. § 815(c)(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.
§ 2700.45(g) (1999). Without any serious controversy, this practice was followed for
27 years. In 2006, however, the Commission deleted this portion of the regulation. In
explaining the change, the Commission noted that the Secretary believed § 815(c)(2)
should be interpreted to require temporary reinstatement “even when the Secretary
determines that there was no violation of section 105(c) of the Mine Act.” 71 Fed. Reg.
44,190, 44,198 (Aug. 4, 2006). In response, the Commission decided to delete the
regulatory reference to temporary reinstatement, leaving the matter to “be resolved in
litigation.” Id. at 44,199. Since then, no court of appeals has addressed this issue.

                                           V.

       First, we conclude that the phrase “pending final order on the complaint” does
not have a plain meaning because it is subject to more than one reasonable interpretation.
Indeed, this fact is demonstrated by the split decision of the Commission and the
reasonable competing interpretations offered by the parties. See Pugliese v. Pukka Dev.,
Inc., 550 F.3d 1299, 1304 (11th Cir. 2008) (“Although both parties argue that the
statutory language is plain and unambiguous, both also argue that the plain meaning
supports their interpretation. This indicates ambiguity. Furthermore, the existence of
divergent court opinions also suggests ambiguity.” (citing Smiley v. Citibank (South
Dakota), N.A., 517 U.S. 735, 739 (1996))).

       The operative words of the phrase at issue are “order” and “complaint.” The
parties agree that the term “order” refers to the final order of the Commission. However,
when the Secretary decides not to pursue a miner’s claim before the Commission,
§ 815(c)(3) refers to that decision as a “determination,” not an “order.” Accordingly,
when the Secretary finds that a violation of the Mine Act has not occurred, there is no
“final order” triggering the dissolution of temporary reinstatement.
Nos. 11-3398/3684        N. Fork Coal Corp. v. MSHR, et al.                           Page 7


        This interpretation, however, is not without its problems. As North Fork
emphasizes, in the event that the Secretary determines that no Mine Act violation has
occurred, and the miner decides not to pursue an individual action under § 815(c)(3),
there is nothing in the Mine Act providing for a “final order.” While the Secretary
asserts that a mine operator could request a final order from the Commission, the Act
provides no such procedure.

        The word “complaint” is also subject to two reasonable interpretations in this
context. On the one hand, the ability of the miner to pursue a civil action on his or her
own behalf is set forth in § 815(c)(3). In this subsection, the miner is referred to as filing
an “action,” not a “complaint.” See Russello v. United States, 464 U.S. 16, 23 (1983)
(“We refrain from concluding here that the differing language in the two subsections has
the same meaning in each.”). On the other hand, the miner is referred to in § 815(c)(3)
as the “complainant,” signifying a relationship between the “complaint” referenced in
§ 815(c)(2), and the miner’s “action” referenced in § 815(c)(3).

        With regard to statutory structure, the fact that the miner’s individual action is
set forth in a different subsection than that providing for temporary reinstatement
supports the interpretation advanced by North Fork. Indeed, § 815(c)(3) does not
reference temporary reinstatement. Id. at 23 (“[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (internal quotation marks omitted, alteration in original)).
However, there are provisions in § 815(c)(3) that clearly apply to § 815(c)(2), indicating
an interrelationship between these subsections. For example, North Fork does not
dispute that the expedited-proceedings requirement, mentioned only in § 815(c)(3),
applies to actions pursued under §§ 815(c)(2) and (3). The same applies for the right to
obtain review from the federal courts of appeals.

        In sum, the phrase “pending final order on the complaint” does not have a plain,
unambiguous meaning under the circumstances presented in this case. Accordingly,
further analysis is necessary.
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                           Page 8


                                             VI.

       In the absence of a plain meaning, we must determine the most reasonable
interpretation of the statutory language at issue, giving deference to the interpretation
presented by the Secretary. Pendley, 601 F.3d at 423. In this case, the parties dispute
the level of deference required, with North Fork asserting that no deference is due and
the Secretary advocating for Chevron deference.

       “Under the ‘split-enforcement’ arrangement envisioned by the [Mine] Act, the
Secretary and the Commission perform distinct regulatory responsibilities.” Sec’y of
Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996).

       The Act charges the Secretary with the development and enforcement of
       health and safety standards “for the protection of life and prevention of
       injuries in coal or other mines.” 30 U.S.C. § 811(a). The Secretary
       develops these standards by rulemaking, id., and enforces them by
       conducting inspections, issuing citations and proposing civil penalties for
       violations, 30 U.S.C. §§ 813, 814(a), 815(a), 820(a). If a party contests
       the Secretary’s actions, the Commission adjudicates the claims and
       “issue[s] an order, based on findings of fact, affirming, modifying, or
       vacating the Secretary’s citation, order, or proposed penalty, or directing
       other appropriate relief.”

Id. at 113-14.     “[D]eveloping rules and enforcing them endow the Secretary
with . . . ‘historical familiarity and policymaking expertise[.]’” Id. at 114 (quoting
Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 153 (1991)).
Accordingly, “‘the Secretary’s interpretations of the law and regulations shall be given
weight by both the Commission and the courts.’” Id. (quoting S. Rep. No. 181, at 49
(1977)); see also Chevron, 467 U.S. at 844 (“We have long recognized that considerable
weight should be accorded to an executive department’s construction of a statutory
scheme it is entrusted to administer[.]”).

       Primarily, North Fork asserts that the Secretary is entitled to no deference
because her interpretation in this case is a mere “litigation position.” We disagree. In
this regard, we agree with the D.C. Circuit Court of Appeals that “the Secretary’s
litigating position before [the Commission] is as much an exercise of delegated
Nos. 11-3398/3684          N. Fork Coal Corp. v. MSHR, et al.                                 Page 9


lawmaking powers as is the Secretary’s promulgation of a . . . health and safety
standard.” Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (internal
quotation marks and citation omitted). Indeed, in a similar context, the Supreme Court
has held that litigating positions are entitled to deference when they are not “post hoc
rationalization[s]” of previous agency actions. Martin, 499 U.S. at 156-57. In this case,
the Secretary is not justifying her previous actions. Rather, she is applying her expertise
in advocating for a particular interpretation of the Mine Act.

        Next, North Fork asserts that the Secretary is not entitled to deference because
she is not directly involved in the miner’s “action” pursued under § 815(c)(3). This
argument is easily rejected. Enforcement of the Mine Act is the responsibility of the
Secretary. Mutual Mining, 80 F.3d at 113. And, the Secretary has a strong interest in
ensuring that all provisions of the Act are interpreted correctly to protect miner safety.
Because the Secretary herself is not pursuing an action on behalf of a miner does not
mean she is not “charged with . . . administering” the Mine Act. Chevron, 467 U.S. at
865.1

        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 afforded no more than Skidmore deference. While Chao was


        1
           Indeed, Chevron did not “parse an agency’s statutory authority provision by provision when
articulating the general principles underlying the deference doctrine[.]” Phillips v. A&S Constr. Co.,
31 FMSHRC 975, 1003 (2009).
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                        Page 10


decided in the context of the Occupational Safety and Health Act of 1970 (“OSH Act”),
we note that the OSH Act is “nearly identical” to the Mine Act with regard to
administrative and judicial review procedures. See Sturm, Ruger & Co., Inc. v. Chao,
300 F.3d 867, 872-73 (D.C. Cir. 2002) (internal quotation marks omitted).

                                           VII.

       Under Skidmore, the Secretary’s position is afforded deference to the extent it
has the “power to persuade.” Skidmore, 323 U.S. at 140. “The weight of such a
judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all [other relevant] factors[.]” Id. In this case, we conclude that
the position advanced by the Secretary is not persuasive. Indeed, her position is
inconsistent with over 27 years of accepted practice under an unaltered statute. When
all relevant factors are considered, we hold that the most reasonable interpretation of the
Mine Act is that the order of temporary reinstatement dissolves when the Secretary
determines that no violation has occurred.

       First, while the statutory language at issue does not have a plain meaning, several
of our traditional rules of statutory construction strongly favor the dissolution of
temporary reinstatement upon the Secretary’s determination of no violation. The
operative phrase, located in § 815(c)(2), provides that temporary reinstatement shall
continue “pending final order on the complaint.” Section 815(c)(3), however, does not
refer to a miner’s “complaint.” Rather, § 815(c)(3) allows a miner to pursue his
“charges” in an individual “action.” We presume that Congress’s choice of language
was purposeful. See Russello, 464 U.S. at 23.

       The miner’s individual “action” is set forth in a different subsection than the one
describing the “complaint” investigated and pursued by the Secretary. Moreover,
§ 815(c)(3) does not address temporary reinstatement. 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). See id.;
see also United States v. Graham, 608 F.3d 164, 176 (4th Cir. 2010) (“[W]e cannot
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                         Page 11


construe [statutes] to add language that Congress omitted.”); In re Burns, 322 F.3d 421,
427 (6th Cir. 2003) (affording interpretive significance to the fact that different forms
of relief are set forth in separate sections of the bankruptcy code).

        In addition, the legislative history favors the dissolution of temporary
reinstatement when the Secretary determines that no violation of the Mine Act occurred.
See United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008) (“If the statutory
language is not clear, we may examine the relevant legislative history.”). The House
Conference Report provides:

        To protect miners from the adverse and chilling effect of loss of
        employment while such matters are being investigated, the Senate bill
        provided that if the Secretary determined that any such complaint was
        not frivolously brought, the Secretary seek temporary reinstatement of
        the complaining miner pending final outcome of the investigation and the
        Commission [shall] order such reinstatement, after expedited
        proceedings.

H.R. Rep. No. 95-655, at 52 (1977) (Conf. Rep.) (emphases added). This language
indicates that temporary reinstatement is appropriate only during the Secretary’s
investigation as set forth in § 815(c)(2). While the Senate Report indicates that
temporary reinstatement is to remain in effect “pending final outcome of the
investigation and complaint,” S. Rep. No. 95-181, at 37 (1977) (emphasis added), this
language does not touch upon the miner’s individual “action” as set forth in § 815(c)(3).

        Other factors also support our holding. First, we assume that Congress was
aware of the Commission’s 27-year accepted practice of dissolving temporary
reinstatement following the Secretary’s determination of no Mine Act violation.
Nevertheless, during this 27-year period, we note that nothing was done to extend
reinstatement past this stage. See Barnhart v. Walton, 535 U.S. 212, 220 (2002) (noting
that inaction by Congress to alter statutory provisions indicated that the current statutory
construction was permissible). In fact, legislation proposed by both chambers in 2011
would have provided for temporary reinstatement during the pendency of the miner’s
individual “action.” See S. 153, 112th Cong. § 401 (2011); H.R. 1579, 112th Cong.
§ 401 (2011). However, this proposed legislation has not been enacted.
Nos. 11-3398/3684          N. Fork Coal Corp. v. MSHR, et al.                                Page 12


        Finally, in view of the Commission’s long-standing practice of dissolving
temporary reinstatement when the Secretary decides not to pursue the miner’s
discrimination complaint, the Secretary’s current position is entitled to less deference.
See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (“An agency interpretation
of a relevant provision which conflicts with the agency’s earlier interpretation is entitled
to considerably less deference than a consistently held agency view.” (internal quotation
marks omitted)). From the enactment of the Mine Act in 1977, until 2006, the Secretary
accepted the Commission’s practice and did not challenge the requirement that
temporary reinstatement cease upon her determination of no Mine Act violation. Cf.
Energy W. Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 40 F.3d 457, 463
(D.C. Cir. 1994) (finding that the Secretary’s “consistently maintained interpretation”
of a Mine Act regulation was entitled to deference).

        For these reasons, we conclude that the Secretary’s interpretation of the
temporary reinstatement provision does not have the “power to persuade.” Rather, the
statutory language and structure, legislative history, and other relevant factors
demonstrate Congress’s judgment that once the Secretary determines that no violation
of the Mine Act has occurred, the public interest in mandating continued reinstatement
is substantially lessened. Accordingly, we hold that upon the Secretary’s determination
that discrimination in violation of the Mine Act has not occurred, a miner is no longer
entitled to temporary reinstatement.2

                                                VIII.

        For the foregoing reasons, we grant the petition for review and reverse the order
of the Commission.




        2
         North Fork also asserts that continued reinstatement, past the Secretary’s determination of no
Mine Act violation, violates procedural due process. However, because we have already determined that
the Commission’s order must be reversed, we need not address this issue.
Nos. 11-3398/3684        N. Fork Coal Corp. v. MSHR, et al.                     Page 13


                               _____________________

                                  CONCURRENCE
                               _____________________

       SUTTON, J., concurring. I join Judge Griffin’s thorough opinion and write
separately to make one point: The proper standard of review—whether under Skidmore
or Chevron—makes no difference, as the relevant language of the statute defeats the
Secretary’s argument either way.

       The relevant language appears in two subsections. One says in relevant part:

       Any miner . . . 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 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 immediate
       reinstatement of the miner pending final order on the complaint. If upon
       such investigation, 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 representative of miners alleging such
       discrimination or interference and propose an order granting appropriate
       relief. The Commission shall afford an opportunity for a hearing (in
       accordance with section 554 of Title 5 but without regard to subsection
       (a)(3) of such section) 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.

30 U.S.C. § 815(c)(2).

       The other says in relevant part:

       Within 90 days of the receipt of a complaint filed under paragraph
       (2), the Secretary shall notify, in writing, the miner, applicant for
       employment, or representative of miners of his determination whether a
       violation has occurred. If the Secretary, upon investigation, determines
       that the provisions of this subsection have not been violated, the
Nos. 11-3398/3684        N. Fork Coal Corp. v. MSHR, et al.                         Page 14


        complainant shall have the right, within 30 days of notice of the
        Secretary’s determination, to file an action in his own behalf before the
        Commission, charging discrimination or interference in violation of
        paragraph (1). The Commission shall afford an opportunity for a hearing
        (in accordance with section 554 of Title 5 but without regard to
        subsection (a)(3) of such section), and thereafter shall issue an order,
        based upon findings of fact, dismissing or sustaining the complainant’s
        charges and, if the charges are sustained, granting such relief as it deems
        appropriate. . . . Proceedings under this section shall be expedited by the
        Secretary and the Commission. Any order issued by the Commission
        under this paragraph shall be subject to judicial review in accordance
        with section 816 of this title.

Id. § 815(c)(3).

        The basic idea is that, if a miner files a whistle-blower complaint against his
employer and if the Secretary determines that the complaint is not “frivolously brought,”
the Commission, on application of the Secretary, shall “order the immediate
reinstatement of the miner pending final order on the complaint.” Id. § 815(c)(2). All
agree that the reinstatement lasts at least through the Secretary’s subsequent
investigation of the complaint. And all agree that, if the Secretary’s investigation reveals
a violation of the Act, the reinstatement lasts through the Commission’s resolution of the
Secretary’s complaint and any hearing concerning that complaint.

        What happens, however, if the Secretary “determines that the provisions of this
subsection have not been violated”? Id. § 815(c)(3). The next subsection accounts for
that possibility and permits the miner “to file an action in his own behalf before the
Commission.” Id. Should the miner’s immediate reinstatement continue through this
separate action? I think not—for at least three reasons.

        First, the distinct subsection that permits the miner to file his own action with the
Commission says nothing about reinstatement during that proceeding. Ample reason
exists for that silence, for a failure to carry over the immediate-reinstatement
requirement from one proceeding to the other. It 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 employ a miner after the
Nos. 11-3398/3684       N. Fork Coal Corp. v. MSHR, et al.                         Page 15


Secretary determines that the discrimination complaint was not frivolously 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 Secretary’s investigation will uncover not just that the
complaint is meritless but that it is frivolous to boot, making it exceedingly odd to
preserve the reinstatement even after the body given authority over this threshold
determination finds that it no longer exists.

        Second, the two types of proceedings not only appear in distinct subsections of
the statute but they also use distinct language. The initial proceeding in § 815(c)(2)—the
one that permits reinstatement if not “frivolously brought”—refers to a “complaint” filed
“with the Secretary.” The second proceeding in § 815(c)(3)—the one that says nothing
about reinstatement—refers to an “action” filed “before the Commission.” Congress
thus 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 for different purposes (for the Secretary’s investigation
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
different things.

        Third, these differences make sense when measured against the background
principles for granting interim relief. The norm is that the mere filing of a complaint
against an employer, the government or anyone else does not by itself revert the parties’
legal relationship. Unless the plaintiff seeks a preliminary injunction or something
similar—and meets the requirements for doing so, including showing a probability of
success—the norm is to leave things as they are during the resolution of the complaint.
Congress altered that custom here by permitting a reversion merely if the complaint was
not frivolously brought. That makes sense in the context of this whistle-blower statute.
What does not make sense is to construe Congress’s silence in the second type of action
as altering this background norm and as doing so even after the Secretary finds no merit
to the complaint. I could see construing this silence in § 815(c)(3) as preserving the
background norm—that the employee could seek continued reinstatement based on the
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traditional grounds for doing so (likelihood of success, irreparable harm and so on). But
I cannot see it as carrying over a unique reinstatement provision to a unique action.

       If we accept the Secretary’s new approach to the statute, moreover, what miner
would not file an action with the Commission? And what lawyer would not recommend
that very thing? The mere filing of the action, no matter how non-meritorious or even
frivolous at that point in time, would ensure continued reinstatement through the end of
the proceeding. That is no small matter in proceedings that can last as long as this one
has—thirty-five months and counting since the reinstatement. “And counting,” I say,
not for rhetorical flourish but because, if the Secretary is right, the reinstatement
continues through all appeals—from the Secretary’s decision, the ALJ’s decision, the
Commission’s decision, the Court of Appeals’ decision, all the way to a certiorari
petition to the United States Supreme Court. Nor does the statute provide any basis for
recovering any of these costs if the Commission ultimately rejects the claim. Such a
system not only would implicate due process concerns, but it might well violate them in
some settings. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 547 (1985); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 490
(3d Cir. 1980). Far better, it seems to me, to avoid this peril by treating the two types
of proceedings as distinct, just as the distinct language in the two subsections indicates
and just as the Secretary construed the statute for the first twenty-seven years of its
existence.
