Emery Mining Corporation

Plain-English summary

The Commission had granted the Secretary's petition for interlocutory review in a consolidated civil penalty and review proceeding. It had sent the matter back to the administrative law judge to determine whether an earlier order could be certified as final under Federal Rule of Civil Procedure 54(b). After the judge certified that order, the Commission held that any aggrieved party could seek discretionary review within the statutory 30-day period. The Commission then dismissed the Secretary's interlocutory petition, vacated its direction for review, and dismissed the interlocutory proceeding.

Decision snapshot

• Governing provision: 30 U.S.C. § 823(d)(2)
• Outcome: The Secretary's petition for interlocutory review was dismissed, the direction for review was vacated, and the interlocutory proceeding was dismissed.
• Key point: Once the ALJ certified the earlier order as final, any challenge had to proceed through the statutory petition for discretionary review rather than the pending interlocutory proceeding.

Full text (FMSHRC public release)

CCASE:
EMERY MINING AND UTAH POWER & LIGHT V. MSHA, UMWA
DDATE:
19890206
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                            February 6, 1989

EMERY MINING CORPORATION
and UTAH POWER AND LIGHT
COMPANY

  v.           Docket Nos. WEST 87-130-R, etc.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   and

UNITED MINE WORKERS
OF AMERICA (UMWA)

BEFORE: Ford, Chairman; Backley, Doyle and Lastowka, Commissioners

               ORDER

BY THE COMMISSION:

On January 10, 1989, we granted the petition for interlocutory

review filed by the Secretary of Labor in this consolidated civil
penalty and review proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("Mine Act").
Our Direction for Review and Order was for the limited purpose of
remanding this proceeding to the administrative law judge for a
determination of whether, pursuant to Fed. R. Civ. P. 54(b), a
certification of finality of his order of August 30, 1988, was
appropriate. We held in abeyance our ruling on the Secretary's
petition and retained jurisdiction pending the judge's determination
on remand.

Following proceedings on remand, the judge issued an order on

Page 2

January 27, 1989, certifying the finality of his order of August 30,
1988. Any party aggrieved by the judge's August 30 order, as made
final by his certification order, may file with the Commission a
petition for discretionary review within the 30-day statutory period
for seeking such review (30 U.S.C. $ 823(d)(2)), which is deemed to
have commenced running as of the judge's January 27, 1989
certification order.

Page 3

~157
Accordingly, the Secretary's petition for interlocutory
review is dismissed, our direction for review is vacated, and
this interlocutory proceeding is dismissed.

             Ford B. Ford, Chairman

             Richard V. Backley, Commissioner

             Joyce A. Doyle, Commissioner

             James A. Lastowka, Commissioner

Distribution

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Ann Klee, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2505

Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005

Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
1244 Speer Blvd., Room 280
Denver, Colorado 80204