                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1406


COBRA NATURAL RESOURCES, LLC,

                Petitioner,

           v.

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION; SECRETARY
OF LABOR; MINE SAFETY AND HEALTH ADMINISTRATION, on behalf
of Russell Ratliff,

                Respondents.


On Petition for Review of an Order of the Federal Mine Safety
& Health Review Commission. (WEVA 2013-368-D)


Argued:   October 29, 2013                   Decided:   January 27, 2014


Before KING, GREGORY, and AGEE, Circuit Judges.


Petition for review dismissed by published opinion. Judge King
wrote the majority opinion, in which Judge Gregory joined.
Judge Agee wrote a dissenting opinion.


ARGUED: William E. Robinson, DINSMORE & SHOHL, LLP, Charleston,
West Virginia, for Petitioner. Nancy E. Steffan, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.      ON
BRIEF: Mary Catherine Funk, DINSMORE & SHOHL, LLP, Charleston,
West Virginia, for Petitioner. M. Patricia Smith, Solicitor of
Labor, Heidi W. Strassler, Associate Solicitor, W. Christian
Schumann, Appellate Ligation Counsel, UNITED STATES DEPARTMENT
OF LABOR, Arlington, Virginia, for Respondents.
KING, Circuit Judge:

     Petitioner        Cobra     Natural     Resources,        LLC     (“Cobra”),      seeks

appellate relief from a decision of the Federal Mine Safety and

Health   Review         Commission          (the        “Commission”),       temporarily

reinstating      a    coal    miner.        In    October      2012,    Russell    Ratliff

filed a discrimination complaint with the Secretary of Labor,

alleging that Cobra had unlawfully retaliated against him under

the Mine Safety and Health Act of 1977 (the “Mine Act”), by

discharging      him     on    the     basis       of     safety     concerns     he    had

articulated with respect to Cobra’s mining operations.                            After an

Administrative Law Judge (the “ALJ”) determined that Ratliff was

entitled to temporary reinstatement pending a final order on his

complaint,    the      Commission       affirmed         the    reinstatement        order.

Asserting    appellate         jurisdiction         under      the     collateral      order

doctrine,     Cobra      seeks     judicial        review       of     the   Commission’s

interlocutory        decision.         As   explained       below,      we   dismiss     the

petition for lack of jurisdiction.



                                             I.

                                             A.

     In response to what was characterized as the “notorious

history of serious accidents and unhealthful working conditions”

in the coal mining industry, the Mine Act was enacted in 1977 to

establish    a       comprehensive      regulatory         scheme       concerning      mine

                                             2
safety and health in this country.                       See Donovan v. Dewey, 452

U.S.       594,    603    (1981).        The       Act   contains     a        whistleblower

provision         that   prohibits     mine        operators      from    discriminating

against coal miners for making complaints “under or related to”

the Act, including any complaint notifying an operator of “an

alleged danger or safety or health violation” in a coal mine.

See 30 U.S.C. § 815(c)(1). 1

       Because       a   complaining      coal       miner     “may      not     be    in    the

financial position to suffer even a short period of unemployment

or    reduced       income     pending    resolution         of    the    discrimination

complaint,” the Mine Act established the temporary reinstatement

procedure underlying this proceeding.                     See S. Rep. No. 95-181,

at 37 (1977), reprinted in 1977 U.S.C.C.A.N. 3401 (1977); see

also       30   U.S.C.    § 815(c)(2).         Pursuant      to   the     Mine        Act,   the

Secretary         receives     a     miner’s       discrimination         complaint          and

conducts an appropriate investigation; if it is determined that

the    complaint         was   not    “frivolously        brought,”       the      Secretary

applies to the Commission for an order temporarily reinstating



       1
       Section 815(c)(1) of Title 30 specifies, in relevant part,
that a coal operator

       shall [not] discharge or in any manner discriminate
       against . . . any miner . . . because such miner . . .
       has filed or made a complaint under or related to [the
       Mine Act] . . . of an alleged danger or safety or
       health violation in a coal . . . mine.



                                               3
the miner’s employment, “pending final order on the complaint.”

See 30 U.S.C. § 815(c)(2).              If the coal operator disagrees with

the Secretary’s determination, it may request a hearing before

an ALJ.

      A reinstatement order does not require that a coal miner

remain    employed    under       any   circumstance,         but    is       subject    to

“changes that occur at the mine after [the order’s] issuance.”

See Sec’y on behalf of Gatlin v. KenAmerican Resources, Inc., 31

FMSHRC 1050, 1054 (2009).               Thus, a coal operator’s temporary

reinstatement obligation can be “tolled” by the occurrence of

certain   events,    such     as   a    subsequent      reduction-in-force              that

would have included the miner.                See id.        An ALJ’s ruling on a

temporary     reinstatement             issue,        including          whether        the

reinstatement      should    be    tolled,       is   subject       to       discretionary

review by the Commission.

      Regardless     of     whether       the     terminated         coal       miner     is

temporarily     reinstated,         the    Secretary         must        complete       the

discrimination investigation within ninety days of the filing of

the   complaint.      If     it    is   decided       that   a   violation         of   the

whistleblower provision has occurred, the Secretary must file a

complaint   with     the    Commission,       which     conducts         a    hearing    and

issues a final order.         If the Secretary instead determines that

a violation has not occurred, the temporary reinstatement ends.



                                          4
See N. Fork Coal Co. v. FMSHRC, 691 F.3d 735, 744 (6th Cir.

2012).

                                           B.

       Russell Ratliff, a southern West Virginia coal miner, was

an   equipment       operator     at   Cobra’s          Mountaineer       Mine   in    Mingo

County until, on October 17, 2012, he was abruptly discharged by

Cobra.        Promptly       thereafter,      Ratliff      filed     a    discrimination

complaint alleging that he had been terminated in retaliation

for engaging in protected activity.                        The Secretary concluded

that       Ratliff’s    claim    was   not        frivolous   and        applied      to   the

Commission for his temporary reinstatement.                        Cobra requested a

hearing on the application, contending that Ratliff’s complaint

was frivolous and also asserting a tolling defense. 2

       The hearing was conducted before an ALJ on January 7, 2013.

In his January 14, 2013 Decision and Order (the “Reinstatement

Order”),       the     ALJ   agreed    with       the    Secretary       that    Ratliff’s

discrimination complaint was not frivolously brought. 3                            The ALJ

       2
       In addition to seeking to refute Ratliff’s claim of
retaliatory termination, Cobra relied on a reduction-in-force
that occurred at the Mountaineer Mine in November 2012.
According to Cobra, Ratliff would have been among those who lost
their jobs.    As a result, Cobra contended that a temporary
reinstatement, even if granted, should be tolled as of January
15, 2012, the last date the laid-off miners were paid.
       3
        The Reinstatement Order is found at J.A. 175-94.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.)


                                              5
also rejected Cobra’s tolling contention, concluding that Cobra

had failed to show that “work [was] not available to [Ratliff]”

because of an asserted multi-employee layoff.                  See Reinstatement

Order 18-19 (citing Gatlin, 31 FMSHRC at 1054-55).                           The ALJ

directed Cobra to immediately reinstate Ratliff, with the same

hours of work, rate of pay, and benefits received.

     Cobra next sought Commission review of the Reinstatement

Order,     specifically        challenging     the     ALJ’s   analysis       of     the

tolling     issue.       By     its   February       28,    2013    Decision       (the

“Commission       Decision”),      the   Commission         granted    review       but

affirmed the Reinstatement Order. 4                  On March 27, 2013, Cobra

timely    filed    the    underlying     petition       for    review,      summarily

asserting jurisdiction under the collateral order doctrine and

contending     that      the    Commission      erroneously        denied     Cobra’s

tolling defense.



                                         II.

     Although Rule 28(a)(4) of the Federal Rules of Appellate

Procedure requires that an opening appellate brief contain a

detailed     jurisdictional        statement,        both   parties    gave        short

shrift to the asserted basis for appellate jurisdiction in this




     4
         The Commission Decision is found at J.A. 237-43.



                                          6
matter. 5      As    a    result,       prior       to   oral   argument,       we    obtained

supplemental briefing on the jurisdiction question.                                   Therein,

both       parties       once        again   summarily          urged     us     to     accept

jurisdiction under the collateral order doctrine. 6                            Nevertheless,

“we    are     obliged          to     satisfy       ourselves      of     subject-matter

jurisdiction, even where the parties concede it.”                              United States

v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009) (citing Bender v.

Williamsport         Area       Sch.    Dist.,       475   U.S.    534,        541    (1986)).

Mindful of our obligation with respect to jurisdiction, we must

assess whether the Commission Decision is reviewable.

                                                A.

       Section 106(a)(1) of the Mine Act authorizes “any person

adversely affected or aggrieved by an order of the Commission”

to seek review in the court of appeals for the circuit in which

the underlying statutory violation is alleged to have occurred.


       5
       The Secretary, who briefed and argued this matter on
behalf of the Respondents, agrees with Cobra that we possess
jurisdiction   under  the   collateral  order  doctrine.     The
Commission, electing not to participate as an active litigant in
this proceeding, did not file a brief or participate in oral
argument.   As it advised the Court, the Commission “remains a
respondent and will monitor the litigation.”
       6
       In responding to our Order of October 15, 2013, directing
supplemental briefing on jurisdiction, the Secretary simply
referred us, in order “to avoid unnecessary repetition,” to the
summary jurisdictional statement in her opening brief.       Put
mildly, we were surprised and somewhat baffled by that
submission.



                                                7
See   30      U.S.C.   § 816(a)(1).           Although    the     Act    uses    the    term

“order” rather than “final order,” we have recognized that only

a final Commission order is entitled to review in this Court.

See Monterey Coal Co. v. FMSHRC, 635 F.2d 291, 292-93 (4th Cir.

1980); see also Bell v. New Jersey, 461 U.S. 773, 778-79 (1983)

(“The      strong      presumption       is    that    judicial      review      will    be

available only when agency action becomes final.”).

      The collateral order doctrine was first identified in 1949

in Cohen v. Beneficial Industrial Loan Corp., where the Supreme

Court recognized a “small class [of decisions] which finally

determine claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied review

and     too    independent     of    the       cause     itself     to    require       that

appellate       consideration       be   deferred      until      the    whole   case    is

adjudicated.”          337 U.S. 541, 546 (1949). 7              The Cohen approach,


      7
       Our dissenting colleague maintains that the Commission
Decision was a final order for purposes of 30 U.S.C.
§ 815(a)(1), such that we may assume jurisdiction over Cobra’s
petition without resort to the collateral order doctrine.     In
support of that assertion, the dissent relies only on some dicta
from other circuits.      The dissent’s position conveniently
ignores our own precedent, which establishes that an agency
order is not final if it is a “preliminary step in the final
disposition of [the] case on its merits.”     See Monterey Coal,
635 F.2d at 293.   That the Commission Decision is just such a
“preliminary step” is evident from § 815(c) of the Mine Act,
which provides for a miner’s reinstatement “pending final order
on the complaint.”     This plain language, viewed within the
structure of the Mine Act, shows in a clear, compelling manner
that a temporary reinstatement award is simply interlocutory,
(Continued)
                                              8
limiting      collateral     order    review       only   to   certain    exceptional

cases, retains its validity today.                     Distilling Cohen and its

progeny, the Court requires that an appealable collateral order

must   “[1]     conclusively      determine         the   disputed     question,   [2]

resolve an important issue completely separate from the merits

of the action, and [3] be effectively unreviewable on appeal

from a final judgment.”               Will v. Hallock, 546 U.S. 345, 349

(2006)       (alterations    in      original)       (internal       quotation   marks

omitted); see also Al Shimari v. CACI Int’l, Inc., 679 F.3d 205

(4th     Cir.     2012)     (en      banc)        (rejecting     collateral       order

jurisdiction over, inter alia, law of war defense).

       The    three   requirements      for       collateral    order    jurisdiction

are necessarily stringent, and the Supreme Court has emphasized

that the doctrine must “never be allowed to swallow the general

rule that a party is entitled to a single appeal, to be deferred

until final       judgment    has     been       entered.”     See    Digital    Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994).                            On

this point, the Court has been consistently unequivocal.                            As

Justice Souter stressed in Will:



and that the “final order” will be entered subsequently.
Finally, the dissent stands alone in its characterization of a
temporary reinstatement award as a final order: all the parties
here, as well as every court of appeals to consider the issue,
agree that appellate jurisdiction in such a situation must
derive — if at all — from the collateral order doctrine.



                                             9
      [W]e have not mentioned applying the collateral order
      doctrine recently without emphasizing its modest
      scope. And we have meant what we have said; although
      the court has been asked many times to expand the
      small class of collaterally appealable orders, we have
      instead   kept  it   narrow  and   selective  in   its
      membership.

546   U.S.   at   350   (emphasis   added)   (internal    quotation   marks

omitted).    The Court’s admonitions respecting the limited scope

of the collateral order doctrine “reflect[] a healthy respect

for the virtues of the final-judgment rule.”               Mohawk Indus.,

Inc. v. Carpenter, 558 U.S. 100, 106 (2009). 8           Our distinguished

former colleague Judge Williams urged caution in applying the

collateral order doctrine to administrative decisions, reminding

us that “[i]t is not the place of appellate courts to scrutinize

agency action at every step. . . . Rather, [we] must proceed

cautiously, allowing lower decision-makers thoroughly to resolve

the intricacies of underlying claims.”            See Carolina Power &




      8
       Our good dissenting colleague blithely proceeds as if the
most recent two decades of Supreme Court jurisprudence on the
collateral order doctrine never existed.        Overlooking the
Court’s explicit instructions to limit application of the
collateral order doctrine — see Will, 546 U.S. at 350 (“And we
have meant what we have said”) — the dissent would casually
create, under the collateral order doctrine, an entirely new
category of appealable non-final orders. The inescapable result
of its position is that the scope of collateral order
jurisdiction   in   administrative   agency   cases   would   be
dramatically expanded.    Such an expansion would constitute an
unjustifiable rejection of the Court’s decisions in Digital
Equipment, Will, and Mohawk.



                                     10
Light Co. v. U.S. Dep’t of Labor, 43 F.3d 912, 918 (4th Cir.

1995). 9

     In    delineating   the   boundaries   of   the   collateral   order

doctrine, “‘the importance of the right asserted [on appeal] has

always been a significant part’” of the analysis.         See Will, 546

U.S. at 352 (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S.

495, 502 (1989) (Scalia, J., concurring)). 10           As the Supreme

Court recently explained, the traditional importance requirement

“finds expression” in both the second and third prongs of the


     9
        We observe that the Secretary’s expansive view of
collateral order jurisdiction in this proceeding, in addition to
flouting the Supreme Court’s admonitions, is a sharp turn from
the position taken by the Department of Justice as amicus curiae
in our recent en banc decision in Al Shimari.     There, the DOJ
relied substantially on Mohawk and Digital Equipment — decisions
the Secretary failed to mention here, even in its supplemental
brief on jurisdiction — and stressed the narrow scope of the
collateral order doctrine.    See Br. of the United States as
Amicus Curiae, Al Shimari v. CACI Int’l, Inc., No. 09-1335 (4th
Cir. Jan. 14, 2012), ECF No. 146.
     10
        For several years we appear to have identified a fourth
collateral order requirement: that the order “present a serious
and unsettled question on appeal.”   See, e.g., Carolina Power,
43 F.3d at 916.      Later, in Under Seal v. Under Seal, we
articulated the three-part test most frequently employed by the
Supreme Court.   See 326 F.3d 479, 483 (4th Cir. 2003).     This
semantic shift did not at all abandon the “importance” aspect to
which Justice Scalia refers; the decision simply reorganized it.
More recent Supreme Court decisions have reemphasized that
collateral order jurisdiction remains reserved for exceptional
cases only, where “the justification for immediate appeal [is]
sufficiently strong to overcome the usual benefits of deferring
appeal until litigation concludes.”    See Mohawk, 558 U.S. at
107.



                                   11
three-part test.       See Mohawk, 558 U.S. at 107.                  The second prong

insists, quite clearly, on “important questions separate from

the merits.”       Id. (internal quotation marks omitted).                     And “more

significantly,”       the     third        prong    —      whether      a      right   is

“effectively unreviewable” on appeal from a final judgment —

requires careful judicial balancing that takes into account the

importance of the issue the appellate court might review.                              See

id.

      In   assessing      whether     we    possess       jurisdiction       under     the

collateral     order        doctrine,       “we      do        not    engage     in    an

‘individualized jurisdictional inquiry.’”                      See Mohawk, 558 U.S.

at 107 (quoting Coopers &           Lybrand v. Livesay, 437 U.S. 463, 473

(1978)).     That is, our focus is not on the particular order at

issue, but rather on the “entire category” of orders to which it

belongs.     See Digital Equip., 511 U.S. at 868.                    Thus, the chance

that “the litigation at hand might be speeded” or “a particular

injustice averted” by an immediate appeal does not provide a

basis for jurisdiction under the collateral order doctrine.                            Id.

(internal quotation marks omitted).

                                           B.

      Having identified some controlling principles, we restate

the   jurisdictional        issue:          whether        a    Commission      decision

granting temporary reinstatement to a coal miner is immediately

appealable    by    the     coal   operator        under       the   collateral    order

                                           12
doctrine.     Although this issue is one of first impression in our

circuit, two of our sister courts of appeals have confronted the

question      and      concluded          that          appellate     jurisdiction        is

appropriate.           Those        decisions,           however,    are     of    limited

persuasive      effect.           The    Eleventh        Circuit’s    decision     in    Jim

Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990),

was rendered more than two decades ago, prior to the Supreme

Court’s more recent, emphatic warnings — made in its Digital

Equipment, Will, and Mohawk decisions — concerning the narrow

and limited scope of the collateral order doctrine.                           The Seventh

Circuit     addressed       the    issue      more      recently,    but    resolved     the

jurisdictional        inquiry       in    a   somewhat       cursory      fashion.       See

Vulcan     Constr.    Materials,         L.P.      v.    FMSHRC,    700    F.3d   297,   300

(2012)     (concluding      in     single     paragraph       that    collateral        order

requirements were satisfied).                 As a result, those decisions fail

to   convince    us    of    the    proper       jurisdictional        course,     or    even

inform our analysis.              Instead, we will assess for ourselves the

requirements of the collateral order doctrine and resolve the

jurisdictional question presented in this proceeding. 11


      11
        The dissent identifies other decisions where the two
judges in this panel’s majority argued against the creation of a
circuit split.    For example, in Wachovia Bank v. Schmidt, I
dissented, arguing that the “creation of a circuit split”
concerning the corporate citizenship of national banks was
erroneous and “unwarranted.”   See 388 F.3d 414, 439 (4th Cir.
2004) (King, J., dissenting).     Our good dissenting colleague
(Continued)
                                              13
                                               1.

       The    collateral       order       doctrine      first        requires   that    a

putatively     appealable         order    conclusively       determine      a   disputed

question.          This    “most    basic      element”      is    sometimes     presumed

satisfied so long as the district court (or federal agency) has

decided the matter presented on appeal.                       See 15A Charles Alan

Wright et al., Federal Practice and Procedure § 3911.1 (2d ed.

1992).         Nonetheless,            there    is    little          justification     for

authorizing        an     immediate      appeal      under   the       collateral     order

doctrine if there is a “plain prospect” that the lower court

could alter its own ruling.                    See FTC v. Standard Fin. Mgmt.

Corp., 830 F.2d 404, 407 (1st Cir. 1987) (internal quotation

marks omitted).            Clearly, if a court or agency expressly holds

open   the    possibility         of    reconsideration,          a    collateral     order

appeal should not be authorized.                     See Swint v. Chambers Cnty.

Comm’n,      514    U.S.    35,    42     (1995)     (declining        collateral     order

jurisdiction        where      district         court     expressly        “planned     to




here neglects to explain that the Supreme Court ultimately
agreed with my dissent in the Wachovia Bank case, unanimously
and unceremoniously reversing the decision of the Wachovia
majority.   See Wachovia Bank v. Schmidt, 546 U.S. 303 (2006).
Put simply, there is nothing wrong with creating a circuit split
when it is justified. At the end of the day, justice is served
by reaching the correct result.




                                               14
reconsider its ruling” on qualified immunity);                see also Jamison

v. Wiley, 14 F.3d 222, 230 (4th Cir. 1994) (explaining that “a

tentative and preliminary ruling . . . which plainly holds open

the prospect of reconsideration” is not subject to collateral

order jurisdiction).

      Both Cobra and the Secretary, relying on the Jim Walter

Resources    opinion,    maintain   that     a   Commission    order   awarding

temporary reinstatement is “a fully consummated decision,” with

“literally no further steps that [an operator] can take to avoid

the Commission’s order at the agency level.”                  See 920 F.2d at

744   (internal     quotation   marks       omitted).    Although      such   an

assertion might have been correct more than twenty years ago

when Jim Walter Resources was rendered, it is inaccurate today,

thanks to the tolling defense at the heart of Cobra’s petition.

Pursuant to the Commission’s 2009 ruling in its Gatlin case, a

coal operator is entitled, prior to an ALJ’s decision on the

merits, to seek modification of a temporary reinstatement award

on    the   basis   of   “a   change    of    circumstances,”     such   as   a

subsequent large-scale reduction-in-force.              See Sec’y on behalf

of Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054

(2009).     Indeed, the Commission Decision expressly acknowledged

that proposition, recognizing “the possibility that there may be

circumstances in which [the ALJ], prior to the hearing on the



                                       15
merits,        may     appropriately              order        an      intermediate       hearing

regarding changed circumstances.”                      Commission Decision 5 n.3.

        Inasmuch      as    an    order      of    temporary           reinstatement      remains

subject to modification during the pendency of a coal miner’s

discrimination             complaint,        such         an        order     can     hardly    be

characterized as a conclusive determination.                                  In the volatile

coal mining industry, the prospect that a mine could be idled or

a major layoff occur provides little support for expending the

time and resources of an appellate court on tentative or non-

final        agency    decisions.            And,      as        the    Commission      Decision

demonstrates,          a    ruling      on        temporary          reinstatement        can   be

expressly       held       open   for     the      possibility          of    reconsideration.

Accordingly,          an     interlocutory             Commission            ruling     awarding

temporary reinstatement to a coal miner such as Ratliff fails to

satisfy        the     initial      requirement             of       the     collateral     order

doctrine. 12


        12
        If an interlocutory order from which a collateral order
appeal is sought “fails to satisfy any [of the three]
requirements, it is not an immediately appealable collateral
order.”   S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436, 441
(4th    Cir.   2006)    (internal   quotation    marks    omitted).
Nonetheless, we are satisfied in this proceeding to also
consider the other collateral order requirements, as they are
independent   alternative   grounds  for   dismissal   of   Cobra’s
petition for appeal.    See Dickens v. Aetna Life Ins. Co., 677
F.3d 228, 233-34 (4th Cir. 2012) (addressing all three
collateral order requirements and declining jurisdiction where
two were not satisfied).



                                                  16
                                    2.

     Second, an appealable collateral order must also “resolve

an important issue completely separate from the merits of the

action.”    Will, 546 U.S. at 349.         This aspect of the collateral

order doctrine has two subparts:           the importance aspect and the

separability    aspect.          Because      importance        is     a    “more

significant[]” part of the third collateral order requirement,

we focus here on whether the issue before the Commission in

assessing a miner’s application for temporary reinstatement is

sufficiently    distinct     from      the    merits      of     the       miner’s

discrimination claim.      See Mohawk, 558 U.S. at 107.

     We have consistently held “that the ‘issues raised in an

interlocutory   appeal    need   not     be   identical    to    those      to   be

determined on the merits to fail under [the second] requirement;

only a threat of substantial duplication of judicial decision

making is necessary.’”      Dickens v. Aetna Life Ins. Co., 677 F.3d

228, 233 (4th Cir. 2012) (alteration in original) (quoting S.C.

State Bd. of Dentistry v. FTC, 455 F.3d 436, 441 (4th Cir.

2006)).    Expressed differently, “[a]n order is only ‘collateral’

to the merits of a case if it does not ‘involve considerations

that are enmeshed in the factual and legal issues comprising the

plaintiff’s cause of action.’”           Bd. of Dentistry, 455 F.3d at

441 (quoting Coopers & Lybrand, 437 U.S. at 469).



                                    17
      Both Cobra and the Secretary rely on Jim Walter Resources

in    maintaining        that,      although        the    temporary       reinstatement

analysis     “necessarily           entail[s]       some    consideration             of    the

factual     allegations        in     the    miner[’s]        complaint[],”            it    is

“conceptually distinct from a decision on the ultimate merits.”

See Jim Walter Res., 920 F.2d at 744.                         The substance of this

asserted     distinction          seems      to     be     that       “[t]he         temporary

reinstatement hearing merely determine[s] whether the evidence

mustered     by    the     [miner]      to     date       establishe[s]             that    [his

complaint    is]    nonfrivolous,           not     whether      there     is       sufficient

evidence of discrimination to justify permanent reinstatement.”

Id.     As a result, the parties contend, a temporary reinstatement

order is adequately separable from the miner’s discrimination

claim itself.

      The parties have substantially overstated the distinction

between     temporary      and      permanent        relief      in    a   coal        miner’s

discrimination      proceeding.             There    is,    no    doubt,        a    different

evidentiary burden at each stage:                     a coal miner applying for

temporary reinstatement need not prove a prima facie case of

discrimination,          but     must     only      produce       some      evidence          of

“protected activity, adverse action, and a nexus between the

two.”     See Sec’y on behalf of Stahl v. A&K Earth Movers, Inc.,

22 FMSHRC 323, 326 (2000).              Thus, an analysis under that lenient

standard differs, to some extent, from that which the ALJ must

                                             18
undertake    following       a    full      hearing       on     the    merits.         From     a

practical     standpoint,          however,          a     temporary           reinstatement

analysis is simply a highly deferential look at the same basic

facts and factors that ultimately control the outcome of the

miner’s   claim.        Consider        the   Commission’s             own    guidance:         in

reviewing    an   application         for     temporary          reinstatement,          “it    is

useful to review the elements of a discrimination claim in order

to assess whether the evidence . . . meets the non-frivolous

test.”    See Sec’y on behalf of Williamson v. CAM Mining, LLC, 31

FMSHRC 1085, 1088 (2009).

     There      is     simply      no     doubt          that,     regardless           of     any

“conceptual”      difference,       the       considerations             involved       in     the

temporary    reinstatement         process         are    deeply       enmeshed        with    the

factual   and     legal      issues      comprising         the        miner’s    underlying

discrimination claim.            Accordingly, an order awarding temporary

reinstatement         plainly      fails       this        aspect        of      the     second

requirement of the collateral order doctrine.

                                              3.

     The third and final collateral order requirement is that

the order be “effectively unreviewable on appeal from a final

judgment.”      Will, 546 U.S. at 349.               An unreviewable order is one

that has significant and irreparable effects.                                See Johnson v.

Jones, 515 U.S. 304, 311 (1995) (“significant”); Firestone Tire

&   Rubber      Co.     v.       Risjord,          449     U.S.        368,      376     (1981)

                                              19
(“irreparable”).              An    order    may       also    be      unreviewable          if    it

“affect[s]        rights      that       would    be       irretrievably        lost     in       the

absence of an immediate appeal.”                       See Richardson-Merrell, Inc.

v.     Koller,     472     U.S.      424,    430-31         (1985).           But    even         such

irrevocable harm will not alone suffice to trigger collateral

order        jurisdiction.          See     Digital        Equip.,      511    U.S.      at       872.

Whether an order is effectively unreviewable “simply cannot be

answered without a judgment about the value of the interests

that     would    be     lost      through    rigorous         application          of   a    final

judgment        requirement”         —    i.e.,       an    assessment         of    whether        a

sufficiently        important         interest         would      be    imperiled        by        our

refusal to provide an immediate appellate review.                                   See Mohawk,

558 U.S. at 107 (internal quotation marks omitted).

        Cobra maintains that the impact of the Commission Decision

on temporary reinstatement is significant and irreparable, and

that once a final judgment is entered by the Commission, the

harm to Cobra will “evaporate” and it will “effectively lose any

opportunity       for     a   judicial       hearing”        of   its    challenge           to   the

decision.        See Jim Walter Res., 920 F.2d at 745. 13                       In our view,


        13
        Were we to review Cobra’s contention without considering
the importance issue, we would be ignoring Supreme Court
authority.   Even when the right asserted in an appeal sought
under the collateral order doctrine would be “positively
destroyed” by postponing appellate review, the Supreme Court has
declined to exercise collateral order jurisdiction on the ground
that the right at issue was “not sufficiently important to
(Continued)
                                                 20
the central “harm” to a coal operator arising from a temporary

reinstatement order is that it must reemploy and pay the coal

miner     his    salary     and     benefits    during   the    pendency        of    the

administrative proceedings on his discrimination claim. 14                            The

operator’s        interest        implicated,   therefore,      is        primarily    an

economic one.         We are thus faced with deciding whether that

economic        interest     is     sufficiently   important         to     demand    the

protection of a collateral order appeal.

     The    Supreme        Court    has   conducted   its   importance         analysis

under the third prong of the collateral order doctrine by first

combing its precedent to identify recurring characteristics that

merit collateral order appealability, and then comparing those

characteristics to the proceeding at hand.                     See Will, 546 U.S.



overcome the policies militating against interlocutory appeals.”
See Lauro Lines, 490 U.S. at 502-03 (Scalia, J., concurring)
(“to make express what seems . . . implicit” in majority’s
rejection of collateral order jurisdiction over appeal involving
contractual “right not to be sued” in particular forum).
     14
        The dissent suggests that collateral order jurisdiction
is justified by the possibility that a coal operator will
sustain substantial non-economic harm as a result of being
forced to reinstate a potentially disruptive employee.     This
assertion is utterly unpersuasive and entirely speculative, in
that the miner’s reinstatement does not immunize him from the
consequences of his future misbehavior.         Any legitimate
misconduct by a reinstated miner unrelated to whistleblowing
activities may justify his dismissal anew. Moreover, as was the
case here, the coal operator and the miner may well enter into
an agreement where the miner is economically — but not
physically — reinstated. See J.A. 228-31.



                                           21
350-54.       In Will, the Court examined four of its prior decisions

where the interests at issue were found sufficiently important

to satisfy the “effectively unreviewable” requirement.                                  See id.

In    Nixon    v.    Fitzgerald,         involving       Presidential        immunity,         the

Court recognized           collateral          order    jurisdiction        and    identified

“compelling public ends” that were “rooted in the constitutional

tradition of the separation of powers.”                        See 457 U.S. 731, 758,

770 (1982).         In Mitchell v. Forsyth, 472 U.S. 511 (1985), where

an order denying qualified immunity to the Attorney General was

at issue, the Court held that the denial of such immunity was

subject       to    a     collateral      order        appeal,    and       “spoke      of     the

threatened         disruption      of    governmental         functions,      and       fear    of

inhibiting         able    people       from    exercising       discretion        in       public

service.”          See Will, 546 U.S. at 352.                    The importance of a

State’s dignitary interests steered the analysis of the Eleventh

Amendment      immunity       question         in    Puerto   Rico    Aqueduct          &    Sewer

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), where

the    Court       determined      that    collateral         order     jurisdiction           was

properly invoked.            And the double jeopardy claim presented in a

pretrial appeal justified the application of collateral order

jurisdiction         in    Abney    v.    United       States.        See    431     U.S.      651

(1977).        The common thread in those cases, according to the




                                                22
Court,      was   a   “particular    value    of   a   high    order,”    or    a

“substantial public interest.”           Will, at 352-53. 15

       On   the   other   hand,    the   Supreme   Court    has   declined     to

exercise     collateral    order    jurisdiction       in   putative     appeals

involving, inter alia:       a pretrial discovery order that rejected

a claim of attorney-client privilege (Mohawk); a pretrial order

rejecting application of the Federal Tort Claims Act’s judgment

bar (Will); and a court order declining to enforce a settlement

agreement in a trademark case (Digital Equipment).                 In each of

these decisions, the Court agreed that the interest at stake,

although “important in the abstract,” failed to justify the cost

of expanding the categories of decisions that are appealable

under the collateral order doctrine.               See Mohawk, 558 U.S. at

108.



       15
        The dissent criticizes the panel majority’s analysis of
the   collateral   order   doctrine’s   importance   requirement,
asserting that we are simply “cataloguing cases.”    Post at 42.
The dissent supports its point, ironically enough, with its own
catalog of cases.   See post at 42-43.    A striking distinction
between the two catalogs is that the dissent’s begins in 1974
and goes back in time to what seems to have been a more
permissive jurisdictional era. Our analysis, on the other hand,
subscribes fully to the Supreme Court’s more recent precedents,
and their narrowing trend concerning application of the
collateral order doctrine.     In our view, we are obliged to
carefully adhere to the Court’s persistent admonitions that a
court of appeals should avoid creating new categories of
interlocutory appeals under the collateral order doctrine.




                                         23
        In sum, a coal operator’s financial interest in avoiding

wage payments to a reinstated miner who returns to his job in

the coal mines pales in comparison to those interests that have

been deemed sufficiently important to give rise to collateral

order     jurisdiction.      Frankly,      a   coal       operator’s   economic

interests do not begin to approach the importance of several

interests — such as the attorney-client privilege — that the

Supreme Court has deemed insufficient.           We readily recognize, of

course,    that   economic   harm   suffered    by    a    coal   operator   may

sometimes be “imperfectly reparable” on final order review.                  The

collateral order doctrine, however, requires a great deal more.

See Mohawk, 558 U.S. 107.       In these circumstances, we are unable

to conclude that failing to apply the collateral order doctrine

to an administrative order temporarily reinstating a coal miner

to his job would imperil a “particular value of a high order” or

a “substantial public interest.”           See Will, 546 U.S. at 352-53.

Accordingly, the Commission Decision also fails to satisfy the

third and final collateral order requirement.



                                    III.

        Pursuant to the foregoing, the collateral order doctrine

does not permit an interlocutory review of the proceedings




                                     24
below.   We are therefore bereft of jurisdiction and must dismiss

Cobra’s petition for review.



                                    PETITION FOR REVIEW DISMISSED




                               25
AGEE, Circuit Judge, dissenting:

       I   respectfully   dissent       because   we    have   jurisdiction   to

consider Cobra’s petition for review.             Therefore, I would decide

this case on its merits and remand to the Commission for further

proceedings.



                                        I.

       The majority first addresses the collateral order doctrine

to find a lack of jurisdiction for appellate review.                     However,

under      settled    principles     regarding         administrative     agency

decisions, the Commission’s order is a final, reviewable order,

which affords us jurisdiction to hear and decide the petition

for review.

       The Mine Act gives us jurisdiction to hear appeals from the

Commission’s orders, so we must look first to the plain text of

that statute.        See Blitz v. Napolitano, 700 F.3d 733, 740 (4th

Cir.    2012)   (examining   the    statute’s     plain    text   to   determine

jurisdiction over administrative appeal).               “Any person adversely

affected or aggrieved by an order of the Commission under [the

Mine Act]” may obtain review.             30 U.S.C. § 816.        We have held

that    the   statute   affords    us    jurisdiction      only   over   “final”

orders from the Commission.         See Eagle Energy, Inc. v. Sec’y of

Labor, 240 F.3d 319, 323 (4th Cir. 2001).



                                        26
      Without question, the Commission issued an “order” in this

case.      Our task is to determine whether that order qualifies as

“final,” so as to establish our authority to review it under

Section 816.

      To determine whether an agency’s action warrants review as

a “final order,” we ask two questions. 1                  First, we consider

whether the decision “mark[s] the consummation of the agency’s

decisionmaking process.”           Golden & Zimmerman, LLC v. Domenech,

599 F.3d 426, 432 (4th Cir. 2010) (emphasis omitted).                      Second,

we   examine   whether    the     “action   [is]   one   by   which   rights      or

obligations      have     been     determined      or    from      which        legal

consequences     will    flow.”      Id.    (emphasis    omitted).         In    some

instances, we have rephrased these two questions as four: “(1)

is   the   agency   action   a    definitive    statement     of   the   agency’s

position; (2) does the action have direct and immediate legal

force requiring parties’ immediate compliance with the agency’s

pronouncement; (3) do the challenges to the agency’s actions

involve legal issues fit for judicial resolution; and (4) would

immediate judicial review speed enforcement and promote judicial


      1
        We use these factors most often in Administrative
Procedure Act cases, which involve review of “final agency
action.”   But the principles apply to “final orders” as well.
See, e.g.,   U.S. W. Commc’ns, Inc. v. Hamilton, 224 F.3d 1049,
1054-55 (9th Cir. 2000); Meredith v. FMSHRC, 177 F.3d 1042, 1047
(D.C. Cir. 1999).



                                       27
efficiency?”       Flue-Cured Tobacco Coop. Stabilization Corp. v.

EPA, 313 F.3d 852, 858 (4th Cir. 2002). 2

     When     these    questions        are   asked   and   answered,    our

traditional administrative finality standards show that we have

jurisdiction over Cobra’s appeal of the temporary reinstatement

order. 3



                                        A.

     The Commission’s order marks the end of the decisionmaking

process     for   purposes   of   the    temporary    reinstatement   issue.

Nothing more is before the Commission regarding that order, and



     2
       We do not consider two factors. First, “[a] final order
need not necessarily be the very last order.        Courts often
review   agency  orders   issued   pending  further   proceedings
especially where, as here, the agency’s action/inaction could
not be challenged in any subsequent proceeding.”     NetCoalition
v. SEC, 715 F.3d 342, 351 (D.C. Cir. 2013) (internal marks and
citations omitted). Second, we focus “not on the label attached
to the action[,] but on the nature of the action.” 1000 Friends
of Md. v. Browner, 265 F.3d 216, 224 (4th Cir. 2001).
     3
       In considering its jurisdiction to hear a petition for
review from a Mine Act temporary reinstatement order, the
Eleventh Circuit noted that such orders are likely final and
reviewable. See Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738,
744 (11th Cir. 1990) (“Thus, the policies that underlie the
provision for review of district court orders affecting
preliminary injunctive relief in 28 U.S.C. § 1292(a)(1) are
applicable here and suggest that temporary reinstatement orders
should be reviewable.”). Ultimately, that court did not decide
the issue because the collateral order doctrine “directly”
granted the court jurisdiction even if the order under review
were not otherwise deemed “final.” Id.



                                        28
Cobra cannot take any further steps within the administrative

process to challenge it.              See Monterey Coal Co. v. FMSHRC, 635

F.2d       291,   293   (4th   Cir.   1980)     (relying    in   part   on   party’s

failure to “exhaust[] its administrative remedies” in finding

that Mine Act order was not a reviewable “final order”). 4

       The majority notes that the Commission observed that Cobra

might seek relief from the reinstatement order if circumstances

were to change.          Then, the majority posits that the “volatile”

mining industry could provide such changed circumstances, and,

therefore, the temporary reinstatement order cannot be “final”

in a jurisdictional sense.

       This       prospect     of   reconsideration    does       not   render   the

Commission’s         order     non-final    because    it    is    so    inherently

       4
       Contrary to the majority’s characterization, Monterey Coal
does not decide the finality issue. In that case, we held that
an order of the Commission remanding to the ALJ was not a final,
reviewable order.     Monterey Coal, 635 F.2d at 292-93.       We
reached that decision because the challenged order was only a
“preliminary step in the final disposition of this case on its
merits.” Id. at 293. In contrast, the temporary reinstatement
order at issue here stands separate and apart from the merits of
the case.   Although the length of the reinstatement period is
affected by the ultimate outcome of the case, the temporary
reinstatement order itself has no substantive impact on the
ultimate disposition.    And, importantly, in Monterey Coal, the
subject of the ALJ order would have been fully reviewable in a
final Commission order.    The direct opposite is the case here,
as the payment and employment actions under the temporary
reinstatement order cannot be reversed by a final order on the
merits for the period of time covered by the temporary
reinstatement order.    Therefore, the order here cannot be the
type of “preliminary step” addressed in Monterey Coal.



                                           29
speculative.          Further,       the    prospect        finds      no    support      in   the

record.       The Commission recognized its power to reconsider in

limited circumstances, but did not announce any intention to

actually exercise that power in this case.                                  And importantly,

courts generally will review a decision even if unknown future

changed circumstances could affect it.                            See, e.g., Wis. Pub.

Power, Inc. v. FERC, 493 F.3d 239, 266 (D.C. Cir. 2007); City of

Tacoma,      Wash.    v.     FERC,   331     F.3d     106,       113   (D.C.      Cir.    2003);

Sierra Club v. U.S. Nuclear Regulatory Comm’n, 862 F.2d 222, 225

(9th    Cir.      1988).        Were       it     otherwise,        the      possibility        of

reconsideration         would    defeat         our   jurisdiction           in    most    every

case, agency and non-agency cases alike.                          For example, in cases

appealed from federal district court, the district court can

often revisit the order under review -- perhaps after a party

moves for relief under Federal Rules of Civil Procedure 59 or

60.    However, we have never allowed that speculative possibility

to defeat our jurisdiction to review an otherwise final order.



                                                B.

       The    Commission’s       order       also     has    a    direct      and   immediate

effect because Cobra must allow Ratliff to go back to work now.

There is no intermediate or additional step that would delay the

full   force      and   effect       of    the    temporary        reinstatement          order.

Indeed,      at      least     one        court      has    compared         the    temporary

                                                30
reinstatement order to a preliminary injunction.                            See Jim Walter

Res., 920 F.2d at 744.                  This close relationship between the

temporary reinstatement order and a preliminary injunction might

sustain jurisdiction in and of itself.                          See, e.g., Shoreham-

Wading River Cent. Sch. Dist. v. U.S. Nuclear Regulatory Comm’n,

931    F.2d    102,    105      (D.C.    Cir.       1991);    Massachusetts       v.    U.S.

Nuclear Regulatory Comm’n, 924 F.2d 311, 322 (D.C. Cir. 1991);

Nev. Airlines, Inc. v. Bond, 622 F.2d 1017, 1020 & n.5 (9th Cir.

1980).



                                               C.

       Third, this appeal presents legal issues that courts can

resolve.       One issue presents a straightforward legal question

about    the   burden      of    proof.        The    other    constitutes       a    common

substantial evidence challenge.                 See, e.g., NLRB v. M&B Headwear

Co.,     349   F.2d     170,     171     (4th       Cir.     1965)    (stating       that   a

“substantial          evidence”         challenge          presented        a    “familiar

question”).      We do not improvidently trespass upon the agency’s

province when it comes to legal questions like these, especially

when, as here, the agency concedes that we possess jurisdiction

and asks us to hear the appeal on its merits.                           See 16 Charles

Alan Wright, et al., Federal Practice and Procedure § 3942 (2d

ed. 2013 supp.) (“If . . . the agency itself desires present

review,    there      is   little       need    for    concern       that    review    is   a

                                               31
judicial      intrusion      into    the    agency’s      capacity    to   manage     the

course of its own proceedings.”).



                                            D.

      Finally,      immediate        review      would    speed      enforcement      and

promote judicial efficiency.                Exercising review would not slow

Ratliff’s benefits because he has received those benefits from

the time the ALJ entered his order; however, an immediate appeal

would    hasten     review    of     alleged     errors    in   the    administrative

process.      That review would bring certainty to a standard that

the   Commission      now     employs      in    other    temporary     reinstatement

cases.     See, e.g., Sec’y of Labor ex rel. Rodriguez v. C.R.

Meyer & Sons Co., No. 2013-618-DM, 2013 WL 2146640, at *3-4

(F.M.S.H.R.C. May 10, 2013).

      Immediate review would also avoid creating an unreviewable

harm.      Cobra’s    claims        will    be   unreviewable     absent     immediate

appeal because the issue of temporary reinstatement will be moot

by the time the parties resolve the full merits proceeding.                            As

a   result,    we   will     never    review     the     Commission’s      use   of   the

temporary reinstatement standards.                 That administrative immunity

conflicts with the “‘strong presumption’ in favor of judicial

review of agency action.”                  Speed Mining, Inc. v. FMSHRC, 528

F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of

Family Physicians, 476 U.S. 667, 670 (1986)).

                                            32
       By refusing to review these kinds of orders, we will cause

irreparable harm to both sides.                        A mine operator will have no

opportunity        to    seek      review      should       the    Commission       order       the

operator to pay wages to a miner not entitled to them.                                          The

operator     will       never      obtain      reimbursement         of    those       wages,     no

matter how wrong or irresponsible an erroneous decision was to

award them.        As counsel for the Secretary conceded, no procedure

exists      that    allows       an    operator        to       recoup    wages    paid      to   a

temporarily        reinstated         miner     for       all    periods    before       a   final

merits      decision.           Although        the       majority       labels     this      harm

“economic” or “financial,” “[a] threat of economic injury has

always been regarded as sufficient . . . for the purpose of

finding an order final and reviewable.”                             Envtl. Defense Fund,

Inc. v. Ruckelshaus, 439 F.2d 584, 592 (D.C. Cir. 1971); see

also Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 197

F.3d 448, 452 (10th Cir. 1999) (“Our inquiry into harm takes

into    account     financial          .   .    .    consequences         flowing      from     the

agency action.”).

       An   operator’s        harm     stems        not    just    from    the    wages      paid.

Without an immediate appeal, mine operators will also have no

way    to   cope    with      erroneous        decisions         that    could    disrupt       the

workplace.     In       the     present        case,      for     instance,      the    ALJ     and

Commission forced Cobra to reinstate a miner at full pay who

allegedly      engaged        in      disruptive          acts    such     as    fighting       and

                                                33
yelling profanity.              Reinstating that kind of an employee can

damage the workplace. 5                 See, e.g., NLRB v. Longview Furniture

Co.,       206   F.2d    274,      275-76     (4th   Cir.       1953)   (describing       the

disruptive effect of a court order that forces an employer to

reinstate        an   employee       who    has     “use[d]      profane    and    indecent

language”).           Despite      this     harm,    a   mine    operator    now    has    no

judicial remedy to correct a mistaken agency decision below.

       Furthermore, a miner’s appeal from an adverse decision on

temporary reinstatement will also now be foreclosed because the

mine operator and the miner share equal appeal rights.                                   See,

e.g., Meredith, 177 F.3d at 1048 (explaining that Mine Act’s

review provision would apply identically to all persons, as the

legislative history counseled a uniform approach).                                 A future

miner could very well suffer irreparable harm from not receiving

needed       wages      in   the    interim       period    before      a   final    merits

decision.         Moreover,        as   the   Secretary       has   warned,       that   harm

could defeat the Mine Act’s enforcement mechanisms and, in turn,

the Congressional intent in adopting this legislation.                               See S.

Rep. No. 95-181, at 37 (1977) (“[T]emporary reinstatement is an

       5
       This disruption stems not just from the potential that the
employee will repeat his conduct in the future, but also from
the actual act of reinstating him in the first instance.      See
Longview Furniture, 206 F.2d at 276 (“The employment of persons
who have been guilty of such conduct toward their fellow
employees has a disruptive effect on the employer’s business as
a result of the feelings and antagonisms thereby engendered.”).



                                               34
essential protection for complaining miners who may not be in

the   financial      position       to    suffer       even        a     short     period       of

unemployment       or     reduced     income       pending             resolution       of     the

discrimination complaint.”).



                                            E.

      The   Seventh       Circuit’s      decision      in     Finer           Foods,    Inc.    v.

United States Department of Agriculture, 274 F.3d 1137 (7th Cir.

2001), represents in an analogous agency setting the resolution

of    the   jurisdictional          issue    using          the        same     inquiry      just

completed.        In Finer Foods, the court faced an appeal from (a)

an administrative order, (b) implementing immediate injunctive

relief,     (c)    against   a   private         party,      (d)        pending    an     agency

investigation       and    proceedings,          (e)   for        an    alleged        statutory

violation.        The agency there contended that the court could not

review the order because the agency had not completed all its

proceedings related to the violation underlying the immediate

relief.     Id. at 1139.         The Seventh Circuit deemed the agency’s

argument      “frivolous”        and        said       it     was         “surprised           and

disappointed” to see the argument made at all.                           Id. at 1138-39.

      We could, and should, end the jurisdictional analysis here,

as the temporary reinstatement order at issue is, under settled

administrative agency jurisprudence, a final order for purposes

of appeal.        The majority, however, looks to the collateral order

                                            35
doctrine.        Because    the      Commission’s    order       is    reviewable       on

appeal even under the collateral order doctrine, I address that

issue as well.



                                         II.

     The collateral order doctrine describes “that small class

[of decisions] which finally determine claims of right separable

from,    and   collateral      to,    rights    asserted    in    the       action,     too

important to be denied review and too independent of the cause

itself to require that appellate consideration be deferred until

the whole case is adjudicated.”                Al Shimari v. CACI Int’l, Inc.,

679 F.3d 205, 213 (4th Cir. 2012).                 To qualify as a collateral

order    under    §    1291,    a    district     court    decision         must    “‘[1]

conclusively     determine      the    disputed     question,         [2]   resolve      an

important      issue   completely       separate    from    the       merits       of   the

action, and [3] be effectively unreviewable on appeal from a

final judgment.’” 6        Dickens v. Aetna Life Ins. Co., 677 F.3d 228,

233 (4th Cir. 2012) (quoting Will v. Hallock, 546 U.S. 345, 349


     6
       The Supreme Court has applied these factors in cases
favored by the majority. See Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 106 (2009); Will, 546 U.S. at 349; Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994).
Therefore, faithful adherence to the three-factor test ensures
that the doctrine is used in only narrow circumstances.    That
narrow application in turn respects the Supreme Court’s recent
admonitions to apply the doctrine sparingly.



                                          36
(2006)).     Some of these factors overlap with the questions just

asked and answered in the administrative finality inquiry.

      As in the administrative finality context, the collateral

order factors indicate that we have jurisdiction.                  The only two

other     circuit   courts   of   appeal   to    have   considered     the   issue

reached the same conclusion. 7        See Vulcan Constr. Materials, L.P.

v. FMSHRC, 700 F.3d 297, 300 (7th Cir. 2012); Jim Walter Res.,

Inc., 920 F.2d at 744-45.



                                      A.

      First,   the    Commission’s    order      here   conclusively    resolved

the issue.     Nothing more is to be done before the agency and no

further issues pertaining to temporary reinstatement remain to

be resolved by it.       The temporary reinstatement order is a final

and   complete      agency   disposition    of    the   discrete     controversy

before it.       Accord Vulcan Constr. Materials, 700 F.3d at 300;

Jim Walter Res., Inc., 920 F.2d at 743.

      The majority treats the order as inconclusive because the

potential for changed circumstances might allow the Commission

      7
       Though two courts addressed this issue directly, a third
court heard an appeal from a temporary reinstatement order
without commenting on jurisdiction.    See N. Fork Coal Corp. v.
FMSHRC, 691 F.3d 735 (6th Cir. 2012). We should not “disregard
the implications of an exercise of judicial authority assumed to
be proper in previous cases.”    Washlefske v. Winston, 234 F.3d
179, 183 (4th Cir. 2000) (internal marks omitted).



                                      37
to reopen the issue.               Nevertheless, an order can be conclusive

even if there is some possibility that the tribunal below will

reconsider.      See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 12-13 (1983); accord United States v.

Ochoa-Vasquez, 428 F.3d 1015, 1025 n.7 (11th Cir. 2005); Burns

v. Walter, 931 F.2d 140, 145 (1st Cir. 1991); Ortho Pharm. Corp.

v. Sona Distribs., 847 F.2d 1512, 1515 (11th Cir. 1988); In re

Gen. Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1118

(7th    Cir.   1979);    see       also   15A    Charles    Alan   Wright,     et   al.,

Federal Practice and Procedure § 3911 (2d ed. 2013 supp.) (“The

bare    fact   that     the    court      has    power     to   change   its    ruling,

however, does not preclude review.                 It is enough that no further

consideration is contemplated.”).

       A   possibility        of    reconsideration         presents     a    different

situation than those described in other decisions -- like those

that the majority cites –- that deemed orders inconclusive.                           In

those cases, the decisionmakers expressly indicated that they

would      revisit      the    matter       later,       regardless      of     whether

circumstances changed before that later reconsideration.                            See,

e.g., Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)

(“The District Court planned to consider its ruling . . . before

the case went to the jury.”); Jamison v. Wiley, 14 F.3d 222, 230

(4th Cir. 1994) (finding order inconclusive where district court

“made clear that its decision . . . was a tentative one, made

                                            38
only to return things to the status quo . . ., and that it might

well change its mind . . . after the evidentiary hearing”).                               In

contrast, neither the ALJ nor the Commission indicated a plan to

return    to    this    issue     in     Ratliff’s     case.      The     ALJ     spoke   in

unequivocal       terms     and     ordered      Cobra     to     provide       “immediate

reinstatement” to Ratliff.



                                            B.

      The      Commission’s        order    also     stands      separate       from      the

merits.        The seminal collateral order doctrine case, Cohen v.

Beneficial      Industrial        Loan    Corp.,     337   U.S.    541,     546    (1949),

explained that an order is “separate” if it “did not make any

step toward final disposition of the merits of the case and will

not be merged in final judgment.”                Id.

      The   Commission’s          temporary      reinstatement      decision        has   no

bearing on the later steps in resolving Ratliff’s employment

status; the case will proceed regardless of whether the miner is

reinstated.       On the merits, the case below can continue during

the   pendency         of   this       appeal    because        nothing     decided       in

adjudicating      temporary        reinstatement         will     affect    the     merits

decision.        That ability to continue indicates that the order

under review is “collateral.”                   See Johnson v. Jones, 515 U.S.

304, 311 (1995).



                                            39
     The temporary reinstatement order does not merge with the

final order on Ratliff’s status because any issues related to

the temporary order would be effectively moot by that point.

The mine operator cannot then recover any erroneously awarded

wages, nor cure the workplace disruption that the reinstated

miner caused.        Cf. Palmer v. City of Chicago, 806 F.2d 1316,

1319 (7th Cir. 1986) (noting that irreparable harm would result

if party did not receive immediate review of fee award, as fees

could “disappear into insolvent hands”).               Conversely, the miner

erroneously denied temporary reinstatement cannot overcome his

financial   vulnerability         occurring      before    an   eventual      final

reinstatement   order        on   the   merits.     See,    e.g.,     Edwards    v.

Director,   Office     of    Workers’    Comp.    Programs,     932   F.2d    1325,

1327-28 (9th Cir. 1991) (holding that statute’s anticipation of

immediate   relief     for     financial      vulnerable    worker    called    for

collateral order review of order denying that relief); Rivere v.

Offshore Painting Contractors, 872 F.2d 1187, 1190 (5th Cir.

1989) (same).

     The    majority        believes    the    Commission’s     order    is     not

separate because we must consider some of the same facts at this

stage as we would at the merits stage.                    However, the Supreme

Court accepts some “factual overlap” in the collateral order

context.    See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 528-29

(1985) (“[T]he Court has recognized that a question of immunity

                                        40
is    separate      from    the        merits    of       the    underlying        action   for

purposes of the Cohen test even though a reviewing court must

consider the plaintiff’s factual allegations in resolving the

immunity     issue.”).            Double       jeopardy         and   qualified       immunity

collateral appeals most always involve a consideration of many

of the same facts that would be determinative on the merits, yet

we hear those cases nonetheless.                          Id. at 529 n.10.           Likewise,

when a Congressman wished to appeal an order denying him the

protection of the Constitution’s Speech and Debate Clause, the

Supreme      Court    explained          that        he    should     have      invoked     the

collateral order doctrine.                 Helstoski v. Meanor, 442 U.S. 500,

508 (1979).          The Court did so even though the Congressman’s

defense would necessarily require the Court to consider some of

the same facts in the underlying case, including the nature of

the   acts    for    which       the    Congressman          faced    potential       criminal

liability.           If     the    Supreme           Court      wished     to      avoid    any

consideration        of    any    of     the    facts        going    to   the      underlying

dispute, it would not have applied the collateral order doctrine

in such cases.



                                                C.

      Finally,       this    case       involves          unreviewable       and    important

interests.       An interest is “important” if it is “weightier than

the societal interests advanced by the ordinary operation of

                                                41
final judgment principles.”                      Digital Equip. Corp., 511 U.S. at

879.       The interests implicated by this case are appropriately

recognized as important.

       A    mine       operator      appeals      a       temporary    reinstatement        order

because it faces the prospect of paying unjustified money to a

miner,       reinstating         a     problematic           worker,   or   facing       legally

unsustainable procedures below.                           Where the miner appeals, 8 he

wishes       to    vindicate         his     right          to   much-needed      contemporary

payment and a fair process below.                           If a miner doubts that an ALJ

will       order       his     immediate      reinstatement            after      an    employer

retaliatorily terminates him, then the miner will hesitate to

make safety complaints and risk termination.

       Thus,       a    Mine    Act     temporary           reinstatement      appeal     raises

important systemic issues about the balance between aggressive

safety enforcement, which supports reinstatement, and the rights

of     the        employer        to       define         its     workforce,       which     may

counterbalance reinstatement.                       The Supreme Court has observed

that       “[w]here          statutory       .        .      .   rights     are        concerned,

irretrievable           loss    can     hardly         be    trivial.”      Digital        Equip.

Corp., 511 U.S. at 879 (internal marks omitted).


       8
       We must consider the interests of the miner in a temporary
reinstatement   proceeding   because   the  Supreme   Court   has
instructed us to look to “the entire category [of cases] to
which a claim belongs.” Digital Equip. Corp., 511 U.S. at 868.



                                                  42
      In   contrast,     the       interests     that      normally    counsel    for

deferred review are not as strong.                   The underlying case is not

delayed    by    resolution        of   the    temporary     reinstatement       order

appeal.    Review does not impose significant costs.                       In so much

as the temporary reinstatement decision has no impact on the

later stages of Ratliff’s case, our decision cannot be expected

to create incoherence in the proceedings.                   And our decision will

impact this case and future cases like it.

      The majority evaluates the interests at stake in this case

by   comparing    them   to    a    catalog     of     previous   collateral     order

doctrine    cases.       Cataloguing           cases     presents     an   inadequate

measure of “importance,” as is well illustrated by noting the

number of collateral order cases that the majority neglected to

examine and which permitted appellate review.                       Indeed, several

Supreme Court cases applied the collateral order doctrine to

review collateral orders of arguably less importance than the

case at bar. 9    See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S.

156, 172 (1974) (order that 90% of class action notice costs be

      9
       To list such cases is not to suggest that cataloguing is
the right approach.   This list reveals the deficiencies in the
majority’s application of its chosen approach even assuming that
the approach were the correct one.      And though the majority
feels these cases are too old to consider, “[l]ower courts have
repeatedly been warned about the impropriety of preemptively
overturning Supreme Court precedent.”      West v. Anne Arundel
Cnty., 137 F.3d 752, 760 (4th Cir. 1998).     We must account for
these cases given that they remain good law.



                                          43
imposed on one party); Brown Shoe Co. v. United States, 370 U.S.

294,    309   (1962)   (order   contemplating     future   divestiture   in

antirust action); Stack v. Boyle, 342 U.S. 1, 4 (1951) (order on

motion for reduction of bail); Swift & Co. Packers v. Compania

Columbiana Del Carbie, S.A., 339 U.S. 684, 689 (1950) (order

dissolving attachment of naval vessel); Cohen, 337 U.S. at 546

(order declining to compel plaintiff in derivative action to

post a bond).     These cases often involved “financial interests,”

and we have also applied the collateral order doctrine in cases

involving such interests.         See, e.g., In re Looney, 823 F.2d

788, 791 (4th Cir. 1987) (applying collateral order doctrine to

order extending automatic stay in bankruptcy case).

       The majority cites the issue of attorney-client privilege

as an example of a “more important” issue that the Supreme Court

has declined to consider under the collateral order doctrine.

However, the Supreme Court did not reject collateral review of

attorney-client    privilege-related     orders    because   those   orders

were unimportant.      Instead, the attorney-client privilege order

was not immediately appealable because the aggrieved party had a

variety of other options available by which it could safeguard

its rights. 10   See Mohawk Indus., 558 U.S. at 108 (“Because . . .


       10
        A post-judgment appeal, for instance, could remedy the
effect of an improper disclosure at trial by “vacating an
adverse judgment and remanding for a new trial.” Mohawk Indus.,
(Continued)
                                    44
collateral order appeals are not necessary to ensure effective

review of orders adverse to the attorney-client privilege, we do

not decide whether the other Cohen requirements are met.”); see

also id. at 117 (Thomas J., concurring) (“[T]he Court’s Cohen

analysis   does   not    rest    on   the   privilege   order’s   relative

unimportance[.]”).      Mohawk   Industries    and   the   attorney-client

privilege, then, do not offer an appropriate comparison. 11




Inc., 558 U.S. at 109.      Alternatively, a party who opposes
disclosure could ask for an immediate appeal under 28 U.S.C.
§ 1292(b).   Id.  Or it could employ the extraordinary writ of
mandamus.   Id.  None of these options is available to a party
involved in a temporary reinstatement proceeding.
     11
        The two other “importance” cases cited by the majority
are inapposite.      Will, 546 U.S. at 354-55, dealt with a
statutory judgment defense analogous to res judicata. The Court
found that this defense presented no special need for immediate
appeal.     An order on a routine defense may be easily
distinguished from the immediate, injunctive nature of the
Commission’s temporary reinstatement order here.      In Digital
Equipment Corp., 511 U.S. at 869, the Court declared that a
right embodied in a privately negotiated settlement agreement
was not important enough to justify immediate appeal.     But the
rights and interests implicated in this appeal are rights rooted
in a Congressionally enacted statute; those rights could be
irretrievably lost absent immediate review.     “Where statutory
and   constitutional   rights  are  concerned,   ‘irretrievabl[e]
los[s]’ can hardly be trivial, and the collateral order doctrine
might therefore be understood as reflecting the familiar
principle of statutory construction that, when possible, courts
should construe statutes (here § 1291) to foster harmony with
other statutory and constitutional law.” Id. at 879.



                                      45
                                         D.

      In view of the foregoing, all the factors in a collateral

order doctrine analysis support jurisdiction in the case at bar.

I   see   no   basis   that    merits   a     circuit   split   on    this    issue,

especially given that we have warned of the danger of creating

circuit splits on matters related to federal rights.                       See Nat’l

Treasury Emps. Union v. FLRB, 737 F.3d 273, 280 (4th Cir. 2013)

(“[T]here would be costs in this area to holding differently and

creating a circuit split.”).

      The majority panel has previously recognized the dissonance

caused    by   creating    such     circuit    splits.      See,     e.g.,    United

States v. Hashime, 722 F.3d 572, 573 (4th Cir. 2013) (Gregory,

J., concurring in denial of hearing en banc) (criticizing prior

precedent for “creating an oft-dreaded circuit split”); Wachovia

Bank v. Schmidt, 388 F.3d 414, 439 (4th Cir. 2004) (King, J.,

dissenting) (stating that the “creation of a circuit split” on a

jurisdictional     issue      was   “unwarranted”),      rev’d,      546    U.S.   303

(2006).



                                        III.

      Having found jurisdiction, I would remand this matter to

the   Commission,      whose    decision       below    deviated     from    earlier

Commission precedent without adequately articulating a basis for

doing so.      Furthermore, the Commission appeared to apply a new

                                         46
burden       of    proof,       in     the       midst    of     adjudicatory        proceedings,

without allowing the parties to adjust their case to meet that

after-the-fact burden of proof.



                                                    A.

       The Commission appears to have applied a new standard of

proof    to       Cobra’s        economic          tolling       defense.               In    earlier

Commission cases, “[t]he Commission ha[d] recognized that the

occurrence         of    certain       events,        such     as    a    layoff    for      economic

reasons,          may     toll       an     operator’s           [temporary]        reinstatement

obligation.”            Sec’y of Labor ex rel. Gatlin v. KenAmerican Res.,

Inc., 31 F.M.S.H.R.C. 1050, 1054 (2009).                              Mine operators had the

burden to establish this tolling defense by a preponderance of

the evidence.             Id. at 1055.             Before the ALJ, both parties and

the    ALJ    relied       on     the       preponderance           standard.        The      parties

continued         to     rely     on       that    standard         before    the       Commission.

Nevertheless,            the     Commission’s            decision        announced      a    new   and

unexplained burden of proof.                            Now, a mine operator must show

that    it    is        “frivolous”         to    say     that      the   subsequent         economic

condition itself was discriminatory.                           (J.A. 238-39.)

       The    Commission             may     change      its     benchmark        and    apply     new

standards to the tolling defense.                              See NLRB v. Balt. Transit

Co.,    140       F.2d    51,     55       (4th    Cir.    1944)         (“[A]n    administrative

agency, charged with the protection of the public interest, is

                                                    47
certainly not precluded from taking appropriate action . . .

because of a mistaken action on its part in the past.”).                                   An

agency’s change in position “does not . . . require greater

justification than the agency’s initial decision” in every case.

Phillip Morris USA, Inc. v. Vilsack, 736 F.3d 284, 290 (4th Cir.

2013).     It may be, for instance, that circumstances have changed

since    the     agency   last    decided      the      issue       and    a    bona    fide

rationale exists for the new standard.                   See In re Permian Basin

Area Rate Cases, 390 U.S. 747, 784 (1968) (“[A]dministrative

authorities must be permitted . . . to adapt their rules and

policies to the demands of changing circumstances.”).

       However, because changes to existing standards must result

from    reasoned      judgment,   the    agency      must   explain         a    change    in

course well enough for us to be sure “that such a change in

course was made as a genuine exercise of the agency’s judgment.”

Phillip Morris USA, 736 F.3d at 290.                  “An agency may not . . .

depart    from    a   prior   policy    sub    silentio        or    simply       disregard

rules that are still on the books.                    And of course the agency

must show that there are good reasons for the new policy.”                                See

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)

(internal      citation    omitted).        An    agency       also       might    need    to

provide    a   fuller     explanation     if     “its    new    policy          rests   upon

factual findings that contradict those which underlay its prior

policy.”       Id. at 515-16.           Even if the agency delineates its

                                          48
change-of-course in some rudimentary way, we will still find the

change inadequately explained if “its explanation is so unclear

or contradictory that we are left in doubt as to the reason for

the change in direction.”            Robles-Urrea v. Holder, 678 F.3d 702,

710 n.6 (9th Cir. 2012); see also Mfrs. Ry. Co. v. Surface

Transp. Bd., 676 F.3d 1094, 1096 (D.C. Cir. 2012) (explaining an

agency must “persuasively” distinguish precedents).

     The    Commission      did      not        acknowledge        or    uphold     these

responsibilities       while    shifting         course     in    this    case.      The

Commission’s     decision       references        its     previous       preponderance

standard, but then constructs a new standard that pertains to

the “objectivity” of the layoff.                (J.A. 240.)        The Commission at

least   should   explain       why   that       objectivity       warrants   a    higher

burden of proof and justified a sharp turn from the existing

precedent in Gatlin.

     The Commission’s inadequately explained decision cannot be

saved by embracing “post hoc rationalizations” for it.                              See,

e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 50 (1983) (“[C]ourts may not accept appellate

counsel’s post hoc rationalizations for agency action”).                              In

defense    of    the    Commission’s            decision,        for    instance,    the

Secretary distinguishes between the procedural posture of this

case and Gatlin.         But if the procedural posture provides the

basis for the Commission’s new test, then the Commission should

                                           49
state that basis and explain why it proves persuasive.                                  The

Commission’s decision says nothing about different burdens at

different   stages,    so     we     cannot      uphold   it    on     that    rationale.

“[A]n agency’s action may not be upheld on grounds other than

those relied upon by the agency in the actual course of its

decisionmaking.”           Nat’l    Elec.     Mfrs.    Ass’n     v.     U.S.    Dep’t     of

Energy, 654 F.3d 496, 513 (4th Cir. 2011).

      Because the Commission’s explanation does not indicate that

it   exercised    reasoned         judgment      in   changing        course,    I     would

remand the matter to the Commission and instruct it to explain

its reasoning further.



                                            B.

      Remand     for   a     further     explanation           does     not     cure    the

inadequacies in the process below.                    For that reason, I would

also instruct the Commission to take an additional step.                                Once

the Commission has explained the new standard -- with sufficient

clarity for all parties to understand what must be proven and

how it must be proven -- the Commission must then remand to the

ALJ for further proceedings under the new standard.                           This remand

is necessary because the Commission’s midstream change of course




                                            50
deprived Cobra of the basic due process of notice of the current

standard and the opportunity to be heard under that standard. 12

       “[A]n     agency        is        not     precluded          from    announcing          new

principles in an adjudicative proceeding and . . . the choice

between rulemaking and adjudication lies in the first instance

within the agency’s discretion.”                        Yanez-Popp v. INS, 998 F.2d

231, 236 (4th Cir. 1993) (internal marks omitted) (quoting NLRB

v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294

(1974)).         Thus,    an     agency          can    retroactively            apply    a    rule

announced in adjudication in the proper circumstances.                                    SEC v.

Chenery Corp., 332 U.S. 194, 203 (1937) (“That such action might

have    a    retroactive       effect          was    not    necessarily         fatal    to   its

validity.”).

       Notwithstanding         its       adjudicatory         power,       an    agency   should

tread       carefully     when       changing           the    standards          defining      an

adjudicatory       process          in     the       midst    of     that        very    process.

Significant due process concerns develop if an agency does not

permit a litigant to offer evidence and argument bearing on the

new standard.        See, e.g., Consol. Edison Co. of N.Y., Inc. v.

Fed.    Energy    Regulatory         Comm’n,          315    F.3d    316,       323   (D.C.    Cir.

       12
         If,  after  further  considering  its   approach,  the
Commission decides to retain its previous Gatlin standard, then
no remand to the ALJ would be necessary. In that circumstance,
the Commission would decide the issue as it was originally
submitted.



                                                 51
2003); P.R. Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 607 (1st

Cir.    1994);    Aero   Mayflower      Transit      Co.,     Inc.    v.     Interstate

Commerce     Comm’n,     699   F.2d     938,   942     (7th    Cir.      1983);      Port

Terminal R.R. Ass’n v. United States, 551 F.2d 1336, 1345 (5th

Cir. 1977); Hill v. Fed. Power Comm’n, 335 F.2d 355, 356 (5th

Cir. 1964).

       Two cases provide clear illustrations of the problems that

may occur -- and the denial of due process that may result --

when the agency changes the burden of proof in the middle of the

proceeding.

       First, in Woodward v. DOJ, 598 F.3d 1311 (Fed. Cir. 2010),

the Board of Justice Assistance adopted a new burden of proof in

the midst of the petitioners’ appeal seeking death benefits.

The shift “changed the burden of proof from a lenient standard

resolving any reasonable doubt in favor of the claimant to the

more    stringent   standard      requiring     that    a     claimant       prove    all

material issues by a ‘more likely than not’ standard.”                          Id. at

1315.       The petitioners then “had no opportunity to introduce

additional evidence to satisfy the heightened burden of proof.”

Id.     Because the Board “changed Petitioners’ burden of proof

during the course of their appeal,” the Court remanded.                        Id.

       In   Hatch   v.   FERC,    654   F.2d    825    (D.C.      Cir.     1981),    the

petitioner       contended     that     the    Federal         Energy        Regulatory

Commission       improperly      adopted,      “after       the      close     of    the

                                         52
evidentiary hearing, . . . a new legal standard of proof, which

he was given no opportunity to meet.”                        Id. at 826.            Just as in

Woodward, the court in Hatch noted that agencies must generally

provide     notice    of     a    change        in    the   burden      of    proof        and   an

opportunity to submit evidence under the new burden.                                       Id. at

835.    The D.C. Circuit indicated that an agency might avoid this

general rule if (1) actual notice existed at the time of the

initial     hearing;       or     (2)   the      burden      only    changed         the    legal

significance     of    evidence         that     the     parties     already         submitted.

Id.    “But when . . . the change is a qualitative one in the

nature of the burden of proof so that additional facts of a

different kind may now be relevant for the first time, litigants

must have a meaningful opportunity to submit conforming proof.”

Id.     Finding      that        Hatch’s    situation        involved         this     kind      of

“qualitative” change with no opportunity to submit evidence, the

court remanded for an additional hearing.                        Id. at 837.

       As in Woodward and Hatch, the Commission in the present

case   changed      the     quantum        of    proof      --   from     a    preponderance

standard to a “frivolous” standard -- after the close of the

proceedings.        It also changed the nature of the proof that the

mine operator needed to offer.                       Under the prior test, the ALJ

was    to   focus     more       upon   the      inevitability          of     the    economic

conditions giving rise to the potential tolling.                                    Cobra, for

instance,     introduced          evidence           concerning     (1)       the    company’s

                                                53
actual layoffs and (2) why those layoffs would have included

Ratliff.     The new test, however, focuses more on any potentially

discriminatory factors behind the layoffs.              Now, a mine operator

will need to introduce additional evidence concerning the non-

discriminatory intent of a layoff, even apart from the economic

reasons behind it.         Cobra should be provided the opportunity to

introduce that kind of evidence in this case.

       Apart from these burden-of-proof-specific issues, agencies

also act unjustly when they switch rules actually relied upon by

the parties in the midst of the process.                See ARA Servs., Inc.

v. NLRB, 71 F.3d 129, 134-36 (4th Cir. 1995) (noting reliance

interests in finding that new rule developed in adjudication

would not be retroactively applied to case on appeal); accord

Negrete-Rodriguez v. Mukaskey, 518 F.3d 497, 503-04 (7th Cir.

2008); BP W. Coast Prods., LLC v. Fed. Energy Regulatory Comm’n,

374 F.3d 1263, 1280 n.4 (D.C. Cir. 2004); Consol. Edison Co.,

315 F.3d at 323.          The Supreme Court has instructed agencies to

consider reliance interests when shaping agency positions. See,

e.g., Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,

2167    (2012)   (explaining       that    a   party   should   receive    “fair

warning” and not “unfair surprise”); Fox Television Stations,

556 U.S. at 515 (explaining that it is arbitrary and capricious

for    an   agency   to   ignore   “serious     reliance   interests”     that   a

prior policy “engendered”).           Nevertheless, even though both the

                                          54
Secretary and Cobra utilized a preponderance standard before the

ALJ,    the   Commission   developed   its   new   standard   without

addressing these reliance interests.

       I would direct the Commission to return this case to the

ALJ in order to afford the parties the opportunity to present

their cases under whatever standard the Commission determines

would now apply.



                                 IV.

       For the aforementioned reasons, I respectfully dissent.




                                 55
