Emery Mining Corporation and/or Utah Power & Light Company, Docket No.

Plain-English summary

This order addressed consolidated contest and civil penalty proceedings involving Emery Mining Corporation and Utah Power & Light Company at the Wilberg Mine. The Secretary asked the Commission to review an earlier order that removed Utah Power & Light from 30 modified citations and orders. The Commission remanded for an expeditious determination whether the earlier order could be certified as final under Federal Rule of Civil Procedure 54(b). Judge John J. Morris found no just reason for delay, certified the order as final, and directed entry of judgment for Utah Power & Light in the listed cases.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2)(A)(i) and 29 C.F.R. § 2700.70
• Outcome: The August 30, 1988 order was certified as final, and judgment was directed for Utah Power & Light in the listed cases.
• Key point: In a multiple-party or multiple-claim proceeding, an ALJ may certify an order as final under Rule 54(b) when there is no just reason for delay.

Full text (FMSHRC public release)

CCASE:
EMERY MINING V. SOL (MSHA)
DDATE:
19890127
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

EMERY MINING CORPORATION CONTEST PROCEEDINGS
AND/OR UTAH POWER & LIGHT
COMPANY, Docket No. WEST 87-130-R
CONTESTANTS Citation No. 2844485; 3/24/87

       v.                          Docket No. WEST 87-131-R
                                   Order No. 2844486; 3/24/87

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. WEST 87-132-R
ADMINISTRATION (MSHA), Order No. 2844488; 3/24/87
RESPONDENT
Docket No. WEST 87-133-R
AND Order No. 2844489; 3/24/87

UNITED MINE WORKERS OF Docket No. WEST 87-134-R
AMERICA, (UMWA), Citation No. 2844490; 3/24/87
INTERVENOR
Docket No. WEST 87-135-R
Citation No. 2844491; 3/24/87

                                   Docket No. WEST 87-136-R
                                   Citation No. 2844492; 3/24/87

                                   Docket No. WEST 87-137-R
                                   Citation No. 2844493; 3/24/87

                                   Docket No. WEST 87-144-R
                                   Order No. 2844795; 3/24/87

                                   Docket No. WEST 87-145-R
                                   Order No. 2844796; 3/24/87

                                   Docket No. WEST 87-146-R
                                   Order No. 2844798; 3/24/87

                                   Docket No. WEST 87-147-R
                                   Order No. 2844800; 3/24/87

                                   Docket No. WEST 87-150-R
                                   Order No. 2844805; 3/24/87

                                   Docket No. WEST 87-152-R
                                   Order No. 2844807; 3/24/87

                                   Docket No. WEST 87-153-R
                                   Order No. 2844808; 3/24/87

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Docket No. WEST 87-155-R
Citation No. 2844811; 3/24/87

                            Docket No. WEST 87-156-R
                            Order No. 2844813; 3/24/87

                            Docket No. WEST 87-157-R
                            Order No. 2844815; 3/24/87

                            Docket No. WEST 87-158-R
                            Citation No. 2844816; 3/24/87

                            Docket No. WEST 87-159-R
                            Citation No. 2844817; 3/24/87

                            Docket No. WEST 87-160-R
                            Order No. 2844822; 3/24/87

                            Docket No. WEST 87-161-R
                            Order No. 2844823; 3/24/87

                            Docket No. WEST 87-163-R
                            Citation No. 2844826; 3/24/87

                            Docket No. WEST 87-243-R
                            Citation No. 2844828; 8/13/87

                            Docket No. WEST 87-244-R
                            Citation No. 2844830; 8/13/87

                            Docket No. WEST 87-245-R
                            Citation No. 2844831; 8/13/87

                            Docket No. WEST 87-246-R
                            Citation No. 2844832; 8/13/87

                            Docket No. WEST 87-247-R
                            Citation No. 2844833; 8/13/87

                            Docket No. WEST 87-248-R
                            Citation No. 2844835; 8/13/87

                            Docket No. WEST 87-249-R
                            Citation No. 2844837; 8/13/87

                            Wilberg Mine
                            Mine I.D. No. 42-00080

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 87-208
PETITIONER A.C. No. 42-00080-03578

      v.                    Docket No. WEST 87-209
                            A.C. No. 42-00080-03579

EMERY MINING CORPORATION, AND

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ITS SUCCESSOR-IN-INTEREST Docket No. WEST 88-25
UTAH POWER & LIGHT COMPANY, A.C. No. 42-00080-03584
MINING DIV.,
RESPONDENT Wilberg Mine

       AND

UNITED MINE WORKERS OF
AMERICA (UMWA),
INTERVENOR

                            ORDER

 1. On August 30, 1988, the undersigned Judge issued an order

granting the petition of Utah Power and Light Company ("UP&L") to
vacate 30 modified citations and orders to the extent that they
named UP&L as a party.

 2. On November 19, 1988, the Secretary of Labor (Secretary)

filed a petition for interlocutory review of said order.

 3. On December 5, 1988, UP&L filed in opposition to the

Secretary's petition for interlocutory review, arguing, among
other things, that the subject order was not interlocutory but
rather a final order, reviewable only upon the filing of a
petition for discretionary review in accordance with 30 U.S.C.
823(d)(2)(A)(i) and Commission Procedural Rule 70, 29 C.F.R.
2700.70.

 4. On December 19, 1988, the Secretary filed a reply to

UP&L's opposition, arguing that the subject order was not a final
decision because the requirements of Rule 54(b) of the Federal
Rules of Civil Procedure were not met. Specifically the Secretary
stated that:

      The August 30 Order contains no express determination
      that there is no reason for delay or express direction
      for the entry of final judgment as to Utah Power and
      Light.

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5. On January 10, 1989, the Commission granted the Secretary's
petition for interlocutory review "for the limited purpose of
remanding this matter to the administrative law judge for an
expeditious determination of whether a certification of finality
in accordance with Rule 54(b) is appropriate."

 6. After the above order of remand was received the

presiding judge granted the parties an opportunity1 to state
their position on the issues involved in said order.

 7. Emery Mining Corporation (Emery), and Intervenor did not

file any statements. On January 24, 1989, the Secretary filed a
statement of her position and further incorporated a copy of her
reply to UP&L filed before the Commission. UP&L filed a response
on January 27, 1989.

 Basically, the Secretary contends that the order of August

30, 1988 was interlocutory and not a final decision. In the
alternative, the Secretary states that if the order of August 30,
1988 is certified as final, then 30 days from such certification
should be provided in order to afford an opportunity for
Commission review.

 UP&L states for its part that a Rule 54(b) certificate is

not necessary and, in the alternative it argues certification of
the August 30, 1988 order may be contrary to the principles of
judical economy.

                        Discussion

 In its order of remand and in considering Rule 54(b) of the

Federal Rules of Civil Procedure, the Commission concurred with

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the statement in 10 Wright Miller & Kane, Federal Practice and
Procedure, Sec. 2654 at 38 (1983) reading as follows:

      The rule does not require that a judgment be entered
      when the court disposes of one or more claims or
      terminates the action as to one or more parties.
      Rather, it gives the court discretion to enter a final
      judgment in these circumstances and it provides
      much-needed certainty in determining when a final and
      appealable judgment has been entered. As stated by one
      court, "if it does choose to enter such a final order,
      [the court] must do so in a definite, unmistakable
      manner." [David v. District of Columbia, 187 F.2d 204,
      206 (D.C. Cir. 1950).] Absent a certification under
      Rule 54(b) any order in a multiple-party or
      multiple-claim action, even if it appears to adjudicate a
      separable portion of the controversy, is interlocutory.

 The order of remand directs the presiding judge to make "an

expeditious determination of whether a certification of finality
in accordance with Rule 54(b) is appropriate."

 As presiding judge I conclude that a certification of final

is appropriate since the order of August 30, 1988 does not state
that it is a final order in a definite, unmistakable manner.

 For the foregoing reasons and in accordance with the order

of remand, as presiding judge and in accordance with Rule 54(b),
F.R.C.P., I find there is no just reason for delay and I certify
to the finality of the order of August 30, 1988.

 Further, as presiding judge, I expressly direct the entry

judgment in favor of Utah Power and Light Company in all of the
cases listed in the caption.

                               John J. Morris
                               Administrative Law Judge

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FOOTNOTES START HERE

 1. Order: January 12, 1989.