Labor & Employment Law Daily Wrap Up, PROCEDURE—D.C. Cir.: Labor Secretary’s power to unilaterally settle mine safety cases limited, (Apr 1, 2026)

By Todd Harrison, J.D.

The collateral-order doctrine did not render the Federal Mine Safety and Health Review Commission’s decisions immediately appealable, requiring the Secretary to await a final decision by the Commission.

Based on the Federal Mine Safety and Health Review Commission’s (FMSHRC) determination that Section 110(k) of the Mine Act constrained the Secretary of Labor’s discretion to modify or settle contested penalties, the D.C. Circuit found that the FMSHRC’s denial of the Secretary’s motions to settle or dismiss citations issued in 11 disputes constituted nonfinal orders, placing them beyond the court’s jurisdiction for the moment. Rejecting the Secretary’s contention that the collateral-order doctrine rendered the orders immediately appealable, the court held that requiring the Secretary to await a final decision would not imperil a substantial public interest (Secretary of Labor v. Knight Hawk Coal, LLC, No. 24-1293 (D.C. Cir. Mar. 31, 2026)).

This case involved petitions for review based on 11 pending contests. The issues concerned the Secretary’s authority to vacate citations and remove violations that could “significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard,” or S&S violations, without explanation as part of a settlement agreement.

Petitions. One set of petitions stemmed from three contests in which the Secretary requested permission to settle contested citations and, under the settlement agreements, proposed to remove S&S designations from some citations. An ALJ rejected the settlement agreement, finding the Secretary had failed to adequately explain her decision to remove one S&S designation. At the Secretary’s request, the ALJ certified his decision for interlocutory review and the FMSHRC affirmed, concluding that Section 110(k) required the Secretary to “provide sufficient reasoning and justification to support the removal of an S&S designation in a settlement motion.”

A second set of petitions arose from eight ALJ orders. In six orders, the ALJ denied the Secretary’s motions to settle or dismiss and certified questions for interlocutory review in five of the orders, which the FMSHRC consolidated. In the remaining two, the ALJ initially granted stays pending FMSHRC reviews of the certified questions before ultimately denying the Secretary’s requests to settle. Here too, the Secretary had declined to explain the modifications leading to her motions to dismiss, which the ALJ cited in denying the motions. The FMSHRC affirmed the ALJ’s decision on interlocutory review.

Subsequently, the Secretary filed timely petitions for review, which the court here considered. The FMSHRC did not file briefs or present arguments in defense of its orders. Thus, the court appointed an amicus curiae to defend the orders.

Appellate jurisdiction. First, the amicus curiae contended that the court lacked appellate jurisdiction of the FMSHRC’s orders because they were nonfinal. In response, the Secretary argued that the petitions satisfied Article III and were immediately appealable because the FMSHRC’s orders undermined her prosecutorial discretion and, hence, the separation of powers. The court was unmoved by the Secretary’s argument.

“Under section 106(b) of the Mine Act, we have jurisdiction to review only final orders,” explained the court. “Although the statutory text admits of no exceptions,” continued the court, “we have extended the collateral-order doctrine’s gloss on finality to the Mine Act, permitting immediate review of orders that satisfy the doctrine.”

Effective nonreviewability. In this instance, the court focused its attention on effective nonreviewability, explaining that an order is effectively unreviewable if delaying review until the entry of final judgment would imperil a substantial interest or particular value of a high order. An order is not effectively unreviewable merely because it imposes burdens that are only imperfectly reparable by appellate reversal, explained the court.

Collateral-order doctrine. Over the years, the Supreme Court has repeatedly declined to “expand the ‘small class’ of collaterally appealable orders,” preferring instead to keep “it narrow and selective in its membership.” Will v. Hallock, 546 U.S. 345, 350 (2006). As such, both the Supreme Court and the D.C. Circuit have routinely required litigants to wait until after final judgment to seek vindication of their rights.

Although the separation of powers is one value that can justify immediate review, the court noted that is has viewed claims that the separation of powers warrants immediate review with a “cautious eye.”

Inconvenience of litigation. Here, the court found that the Secretary had not shown that her authority to dismiss, modify or settle citations she had issued implicated an interest in any sense comparable to a sovereign’s immunity from suit. At most, the Secretary will have to litigate disputes that she would no longer prefer to litigate, explained the court, going on to state that “a preference to avoid the burdens or inconvenience of litigation does not justify immediate review.”

Prosecutorial authority. Nor, continued the court, would delaying review destroy the Secretary’s prosecutorial authority under the Mine Act. The Secretary retains substantial discretion to direct the course of proceedings, observed the court, noting that she could, for example, unconditionally dismiss any of the pending contests.

“That measure of autonomy reinforces our belief that the Commission’s orders do not imperil any substantial public interest and so they are effectively reviewable after a final order,” said the court.

OSH Act. In response, the Secretary pointed to caselaw in which other circuits permitted immediate appeals under the OSH Act, underscoring the fact that those circuits exercised collateral-order jurisdiction when the Occupational Safety and Health Review Commission denied the Secretary permission to vacate or settle citations. However, the court found that those decisions did not impact its analysis of the issues before it presently.

First, the cases cited by Secretary were distinguishable because they involved a different statutory scheme, explained the court. Although the OSH Act and the Mine Act are comparable in many respects, they are not identical. Most importantly, the Mine Act gives the FMSHRC some discretionary authority to review and approve the Secretary’s proposed settlement agreements.

Second, the Secretary’s asserted public interest was the separation of powers but, as the court had explained, it established a high bar for parties relying on that interest to obtain immediate review. The court also noted that the mere fact of disagreement between the Secretary and the FMSHRC does not warrant immediate review. Given its precedents, the court determined that it “would have to do more shoehorning than tolerable to import and extend the Secretary’s cited caselaw to the Mine Act.”

Finally, the Secretary’s cited cases, issued in the 1980s, predated the Supreme Court’s efforts to narrow the collateral-order doctrine. As such, the court held that the Secretary’s interest in unilaterally vacating citations and removing S&S designations via post-contest settlement agreements was adequately safeguarded by a final order. Further, delaying review would not imperil a substantial public interest or some particular value of a high order concluded the court, dismissing the Secretary’s petitions for review.

The case is No. 24-1293.

Judge: Henderson, K.

Attorneys: Susannah Madeline Maltz, U.S. Department of Labor, for Secretary of Labor, Mine Safety and Health Administration. Mark Evan Heath (Spilman Thomas & Battle) for Knight Hawk Coal, LLC. Thaddeus Jason Riley, Mine Safety and Health Review Commission, for Federal Mine Safety and Health Review Commission.

Companies: Knight Hawk Coal, LLC

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