Southern Minerals, Inc., True Energy Coal Sales, Inc., and Fire Creek, Inc.

Plain-English summary

The Secretary of Labor asked the Commission to review an administrative law judge's partial decision dismissing True Energy Coal Sales from the proceedings. The judge had concluded that True Energy was not an operator under section 3(d) of the Mine Act. The Commission held that the dismissal was not final because the judge had not directed entry of a final decision and had not made the required finding that there was no just reason for delay. The Commission therefore denied the Secretary's petition for discretionary review without prejudice, leaving the petition open to a later filing when review was procedurally available.

Decision snapshot

• Cited authority: 30 U.S.C. § 803(d); 29 C.F.R. § 2700.1(b)
• Outcome: The petition for discretionary review was denied without prejudice as premature.
• Key point: A partial dismissal involving fewer than all parties is not final for Commission review without the required final-judgment direction or Rule 54(b) finding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR

                                    WASHINGTON, D.C. 20006




                                      January 22, 1996

SOUTHERN MINERALS, INC., :
TRUE ENERGY COAL SALES, INC., :
and FIRE CREEK, INC. :
:
v. : Docket Nos. WEVA 92-15-R, etc.
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :

                                        ORDER


    On January 11, 1996, the Secretary of Labor filed with the Commission a petition for

discretionary review of Administrative Law Judge David F. Barbour’s December 13, 1995 Partial
Decision dismissing True Energy Coal Sales, Inc. (“True Energy”) from the proceedings.

    The judge based the dismissal on his conclusion that True Energy is not an operator, as

defined in section 3(d) the Mine Act, 30 U.S.C. § 803(d). In dismissing True Energy, the judge
did not expressly direct that his dismissal “be entered as a final decision, nor did he find, pursuant
to Rule 54(b)1 [of the Federal Rules of Civil Procedure,] that there is no just reason for delay.”

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     Rule 1(b) of the Commission’s Procedural Rules provides that the Federal Rules of Civil

Procedure shall apply “so far as practicable” in the absence of applicable Commission rules. 29
C.F.R. § 2700.1(b).

   Rule 54(b) states in part:

           [W]hen multiple parties are involved, the court may direct the entry
           of a final judgment as to one or more but fewer than all of the
           claims or parties only upon an express determination that there is
           no just reason for delay and upon an express direction for the entry
           of judgment. In the absence of such determination and direction,
           any order or other form of decision, however designated, which
           adjudicates . . . the rights and liabilities of fewer than all the parties
           shall not terminate the action as to any of the claims or parties, and
           the order or other form of decision is subject to revision at any time

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Pontiki Coal Corp.,17 FMSHRC 263, 264 (March 1995).

    Accordingly, we conclude that the order dismissing True Energy is not final, and that

therefore the Secretary’s petition for discretionary review is premature. The Secretary’s petition
is denied without prejudice.

                                          Mary Lu Jordan, Chairman



                                          Joyce A. Doyle, Commissioner



                                          Arlene Holen, Commissioner




                                          Marc Lincoln Marks, Commissioner




                                          James C. Riley, Commissioner




           before the entry of judgment adjudicating . . . the rights and
           liabilities of all the parties.

Fed. R. Civ. P. 54(b).

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