Mayes Trucking Company, Inc. v. Secretary of Labor Federal Mine Safety and Health Review Commission

83 F.3d 422

1996 O.S.H.D. (CCH) P 31,048

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
MAYES TRUCKING COMPANY, INC., Petitioner,
v.
SECRETARY OF LABOR; Federal Mine Safety and Health Review
Commission, Respondent.

No. 95-4170.

United States Court of Appeals, Sixth Circuit.

April 19, 1996.

Before: LIVELY, CONTIE, and RYAN, Circuit Judges.

ORDER

1

Mayes Trucking Co., Inc., appeals an order issued by an administrative law judge (ALJ) for the Federal Mine Safety & Health Review Commission (FMSHRC), directing the petitioner to temporarily reinstate certain of its employees pursuant to § 105(c)(2) and § 113(d)(1) of the Federal Mine Safety & Health Act of 1977. 30 U.S.C. §§ 801-817.

2

A court of appeals has a continuing duty to ensure it possesses appellate jurisdiction over every case it reviews. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976); Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir.1994) (order). The ALJ's order in this case was issued pending a full hearing on the underlying discrimination claims against the petitioner. See 29 C.F.R. § 2700.45. Under these circumstances, this court lacks subject matter jurisdiction because Mayes did not exhaust its administrative remedies by first requesting review of the ALJ's order before the Commission pursuant to 29 C.F.R. § 2700.45(f). Thus, in the absence of a constitutional challenge to the proceedings, the court lacks jurisdiction over this appeal. 30 U.S.C. § 816(a)(1); Southern Ohio Coal Co. v. Office of Surface Min., Reclamation and Enforcement, 20 F.3d 1418, 1425 (6th Cir.), cert. denied, 115 S. Ct. 316 (1994); Southern Ohio Coal Co. v. Donovan, 774 F.2d 693, 702 (6th Cir.1985), amended by, 781 F.2d 57 (6th Cir.1986).

3

Accordingly, we hereby dismiss the appeal for lack of jurisdiction.