.
PONTIKI COAL CORPORATION
March 21, 1995
KENT 94-1274-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
March 21, 1995
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-1274-D
ON BEHALF OF CHARLES H. :
DIXON, et al. :
:
vs. :
:
PONTIKI COAL CORPORATION :
ORDER
On March 8, 1995, the Secretary of Labor filed with the
Commission a petition for discretionary review seeking
review of Administrative Law Judge Gary Melick's February 6,
1995, Order Granting Partial Dismissal.
The petition seeks review of the judge's dismissal, for lack
of jurisdiction, of the Secretary's discrimination complaint
under section 105(c)(2) of the Mine Act as it pertains to
the 17 individuals named in the complaint other than Charles
H. Dixon. Order at 4, 6. The judge based his dismissal on
the fact that only Dixon had filed a complaint with the
Secretary. Id. at 4. The Secretary also seeks review of
the judge's limitations of the complaint regarding Dixon to
matters contained in his complaint to the Secretary and to
acts occurring on or after April 15, 1994. Pet. at 1-2.
The Commission's Procedural Rule 70, which implements
section 113(d)(2)(A) of the Mine Act, 30 U.S.C.
� 823(d)(2)(A), provides: "Any person adversely affected or
aggrieved by a judge's decision . . . may file . . . a
petition for discretionary review . . . ." 29 C.F.R.
� 2700.70. The Commission has held that a judge's decision is
not subject to review under section 113 of the Mine Act and
the Commission's rules unless it "finally disposes of the
proceedings." Council of S. Mountains v. Martin County Coal
Corp., 2 FMSHRC 3216, 3216-17 (November 1980) (emphasis in
original). Where a judge has disposed of less than all
claims in multiple-party proceedings, the Commission has
applied Rule 54(b) of the Federal Rules of Civil Procedure
in determining whether the decision is final.[1] Emery
Mining Corp., 11 FMSHRC 1, 2 (January 1989).
We conclude that the order is not final. The judge did
not expressly direct that his dismissal of the complaint as to
the other 17 individuals be entered as a final decision, nor
did he find, pursuant to Rule 54(b), that there is no just
reason for delay. Further, the judge subsequently modified
the order and characterized it as interlocutory. See
Amended Order
**FOOTNOTES**
[1]: 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 before the entry of
judgment adjudicating . . . the rights and
liabilities of all the parties.
Fed. R. Civ. P. 54(b).
Granting Partial Dismissal (May 9, 1995). Accordingly, we
dismiss the Secretary's petition for discretionary review as
premature. See, e.g., McCoy v. Crescent Coal Co., 3 FMSHRC
2475 (November 1981).
________________________________
Mary Lu Jordan, Chairman
________________________________
Joyce A. Doyle, Commissioner
________________________________
Arlene Holen, Commissioner
________________________________
Marc Lincoln Marks, Commissioner