876 F2d 103 Cooley v. Island Creek Coal Company
876 F.2d 103
Edward COOLEY, Deceased; Glenna Cooley, Widow, Petitioners,
ISLAND CREEK COAL COMPANY, Director, Office of Workers'
Compensation Programs, United States Department of
United States Court of Appeals, Sixth Circuit.
June 9, 1989.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before KEITH and ALAN E. NORRIS, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
The petitioner seeks review of the Benefits Review Board's order affirming in part and vacating and remanding in part the Administrative Law Judge's denial of black lung disability and survivor's benefits. The respondent, Director, Office of Workers' Compensation Programs, now moves to dismiss the appeal on the grounds that the order is not a final, appealable order under 33 U.S.C. Sec. 921(c). The petitioner has not responded.
This Court lacks jurisdiction in this appeal. We have held that ordinarily an order of remand for further administrative proceedings is not a final order immediately appealable to this Court. Canada Coal v. Stiltner, 866 F.2d 153, 156 (6th Cir.1989) (quoting Director, OWCP v. Brodka, 643 F.2d 159, 161 (3rd Cir.1981)). Moreover, this appeal does not fall within the collateral order exception to the final judgment rule enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 463 (1978). The collateral order exception has three mandatory requirements set forth by the Supreme Court in Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S.Ct. 1133, 1136-37 (1988). In this case, for example, the third requirement has not been met since the order sought to be appealed may be reviewed at a later date. Id.
It is therefore ORDERED that the motion to dismiss is granted.