Emery Mining Corporation

Plain-English summary

The Commission considered the Secretary's request for interlocutory review of an ALJ order that removed Utah Power and Light Company from 30 modified citations and orders. The parties disagreed about whether that order was final or interlocutory. The Commission held that Rule 54(b) applies to adjudications involving multiple parties and that a separate final judgment requires a definite certification when fewer than all claims or parties are resolved. It remanded for the ALJ to determine whether certification was appropriate, stayed all time requirements, and retained jurisdiction.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(2)(A)(i), 29 C.F.R. §§ 2700.70 and 2700.1(b)
• Outcome: The Commission granted interlocutory review for the limited purpose of remanding for a Rule 54(b) finality determination, held its ruling in abeyance, stayed time requirements, and retained jurisdiction.
• Key point: An order resolving fewer than all parties or claims is interlocutory unless the adjudicator clearly certifies it as final under Rule 54(b).

Full text (FMSHRC public release)

CCASE:
EMERY MINIG AND UTAH POWER AND LIGHT V. MSHA, UMWA
DDATE:
19890110
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
January 10, 1989
EMERY MINING CORPORATION DOCKET NOS. WEST 87-130-R
and UTAH POWER AND LIGHT THROUGH 137-R
COMPANY
WEST 87-144-R
v. THROUGH-147-R

SECRETARY OF LABOR, WEST 87-150-R
MINE SAFETY AND HEALTH WEST 87-152-R
ADMINISTRATION (MSHA) WEST 87-153-R

and WEST 87-155-R
THROUGH 161-R
UNITED MINE WORKERS
OF AMERICA (UMWA) WEST 87-163-R

                                                  WEST 87-243-R
                                                 THROUGH 249-R

                                                   WEST 87-208-R
                                                   WEST 87-209-R
                                                   WEST 87-25

DIRECTION FOR REVIEW AND ORDER
On November 19, 1988, the Secretary of Labor filed a
petition for interlocutory review of an order issued August 30,
1988, wherein the presiding administrative law judge granted
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.
On December 5, 1988, UP&L filed an opposition to the
petition for interlocutory review arguing, among other things,
that the subject order was not interlocutory but rather was a
final order, reviewable only upon the timely filing of a
petition for discretionary review in accordance with 30 U.S.C.
Sec. 823(d)(2)(A)(i) and Commission Procedural Rule 70, 29 C.F.R.
Sec. 2700.70. See UP&L Opposition at 6.
~2
On December 19, 1988, the Secretary filed a reply to UP&L's

Page 2

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.1/ 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.
Sec. Reply at 3.
In Local Union 1889, District 17, United Mine Workers of
America v. Westmoreland Coal Co., 5 FMSHRC 1407, 1411-12 (August
1983), pursuant to Commission Procedural Rule 1(b), 29 C.F.R.
Sec. 2700.1(b), we applied Rule 54(b) in the context of an
adjudication of fewer than all claims presented in an action.2/
We find that Rule 54(b) is equally applicable in the context of
adjudications involving multiple parties. We concur in the
statement in 10 Wright, Miller, & Kane, Federal Practice and
Procedure, Sec. 2654 at 38 (1983) (footnotes omitted):
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 any Rule 54(b) order in a multiple-party
or multiple-claim action, even if it appears to
adjudicate a separable portion of the
controversy, is interlocutory.
See also, Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984).

1/ The Secretary's Motion to File Reply Memorandum is hereby granted.
2/ Rule 1(b), 29 C.F.R. Sec. 2700.1(b) states:
Applicability of other rules. On any
procedural question not regulated by the Act,
these Procedural Rules, or the Administrative
Procedure Act (particularly 5 U.S.C. Secs. 554
and 556), the Commission or any Judge shall be
guided so far as practicable by any pertinent
provisions of the Federal Rules of Civil

Page 3

Procedure as appropriate.
~3
In the case at bar, the parties clearly have differing
views as to the effect of the order intended by the
administrative law judge. Accordingly, we hereby grant the
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. After the judge
clarifies the nature of his dismissal on remand, we will issue a
further appropriate order concerning the Secretary's petition for
interlocutory review. Pending issuance of such an order by the
Commission, all time requirements are hereby stayed.
Accordingly, we hold in abeyance our ruling on the
Secretary's petition, and we retain jurisdiction pending the
judge's determination on remand.
RICHARD V. BACKLEY, Commissioner
JOYCE A. DOYLE, Commissioner
JAMES A. LASTOWKA, Commission