Appellate court review does not appear to be an option  for mine operators seeking relief from orders temporarily  reinstating miners in discrimination cases.

Citing lack of jurisdiction, the U.S. Court of Appeals for  the Fourth Circuit, in Richmond, has thrown out a case  filed by a West Virginia coal operator brought under a  doctrine allowing review of cases that are in the midst  of adjudication.

After Cobra Natural Resources fired a miner in October  2012, the miner alleged he had been released for making  safety complaints and promptly filed a discrimination  claim with the Mine Safety and Health Administration  (MSHA). Cobra argued the discharge was lawful because  the miner was laid off as part of a reduction-in-force  announced the following month at its Mountaineer Mine.

However, the administrative law judge disagreed with  Cobra, ruling the complaint had not been brought  frivolously, and ordered the miner to be temporarily  reinstated pending review of the case on its merits.  He  rejected Cobra’s contention that the miner’s discharge  was part of a reduction-in-force.  Cobra appealed to the  Federal Mine Safety and Health Review Commission,  specifically challenging the judge’s analysis of its layoff  argument.  The Commissioners agreed to hear Cobra’s case, but upheld the judge’s ruling.  Cobra then appealed  to the Fourth Circuit.

In a split decision, issued January 27, the three-judge  appeals panel said the case did not meet requirements  necessary for an appeal to be heard while the case was  still being heard by the Commission.  The “collateral  order doctrine,” allowing cases still being litigated to be  heard on appeal if there is a compelling collateral reason,  was to be applied stringently and only in exceptional  cases, the court explained.  The majority said Cobra’s  appeal did not rise to that level.

The judges said their review applied to the entire  category of cases the Cobra proceeding represented.   Thus, the court appeared intent on discouraging other  companies from also seeking relief from a temporary  reinstatement order in appellate courts.

In his 30-page rebuttal, the dissenting judge argued the Commission decision requiring reinstatement did  represent a final agency order.  Therefore, he reasoned,  the court could have assumed jurisdiction without  resorting to the collateral order doctrine.  He said he  would have decided the case on its merits and remanded  the panel’s decision to the Commission.