PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION.
Hunter, Higginbotham, Circuit Judges and Giles,*fn* District Judge.
1. Engelhard Industries ("Engelhard") has petitioned us to review an order of the Occupational Safety and Health Review Commission ("Commission"). The Secretary of Labor ("Secretary"), as an intervenor in this action, has filed a motion seeking dismissal of the petition for review as premature. We will grant the motion to dismiss.
2. In early June of 1978 a worker at Engelhard's Huntsville, Alabama facility was overcome by fumes while servicing a tank. A second worker entered the tank to rescue the first and was also overcome. Both workers died. Following an inspection of Engelhard's facility, an Occupational Safety and Health Administration compliance officer issued a citation on June 19, 1978, alleging a willful violation of section 5(a)(1) of the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 654(a)(1) (1976), for failure to implement proper tank entry procedures and emergency rescue procedures. The citation proposed a $6400 penalty and directed immediate abatement of the violation. App. at 6. Pursuant to section 10(a) of OSHA, 29 U.S.C. § 659(a) (1976), Engelhard notified the Secretary that it was contesting the citation, and a hearing was scheduled before an ALJ. The International Chemical Workers Union ("Union") requested party status in the proceeding under section 10(c) of OSHA, 29 U.S.C. § 659(c) (1976), as the representative of the affected employees. That request was granted by the ALJ on August 21, 1978. App. at 20.
3. Prior to the hearing on the citation, the Secretary and Engelhard entered into a Stipulation of Settlement Agreement. App. at 22; see 29 C.F.R. § 2200.100 (1979).*fn1 Under the terms of that agreement, Engelhard agreed to withdraw its notice of contest, abate the alleged violation immediately, and pay the assessed penalty in exchange for the Secretary's recharacterization of the citation from "willful" to "serious" and his reduction of the penalty to $1000. App. at 22-26. The agreement went on to state that "Respondent's agreement to pay the amended proposed penalties, abate the alleged citations (as modified), and its signing of this Agreement are not to be construed as an admission by the Respondent of any of the allegations or conclusions set forth in the citations. . . ." App. at 25.
4. The Union objected to the settlement agreement contending, inter alia, that the recharacterization of the citation from "willful" to "serious" was unjustified and that the non-admission clause contained in the settlement was improper. It did not contest, however, the abatement period contained in the settlement agreement. At the Union's request, the ALJ ordered a hearing to resolve the factual issues raised by the Union's objections. App. at 63, 66.*fn2 Engelhard filed a request for certification for interlocutory appeal to the Commission, app. at 68, and on August 30, 1982, the Commission affirmed the ALJ's decision granting a hearing and remanded the case for further proceedings. App. at 71.
5. On September 15, 1982, Engelhard filed in our court a petition for review of the Commission's remand order contending that the Commission erred in granting a hearing to the Union on the Union's objections to the settlement agreement. On November 3, 1982, the Secretary moved to intervene. On November 9, 1982, the Secretary moved to dismiss the petition for review for lack of subject matter jurisdiction arguing that, as to Engelhard, the Commission's order was interlocutory and therefore not reviewable under section 11(a) of OSHA, 29 U.S.C. § 660(a) (1976). On December 20, 1982, we granted the Secretary's motion to intervene, and we referred the Secretary's motion to dismiss to the merits panel.
6. Section 10(c) of OSHA, 29 U.S.C. § 659(c) (1976), provides that if an employer contests a citation, the Commission "shall afford an opportunity for a hearing . . . [and] shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance." Section 11(a) of OSHA, 29 U.S.C. § 660(a) (1976), states that "any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 659 of this title may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, . . . by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside." The Secretary contends that the Commission's order in this case does not affirm, modify, or vacate the Secretary's citation or order any other relief but merely remands the case to the ALJ for a hearing on the Union's objections to the settlement agreement. Accordingly, the Secretary argues that the Commission's interlocutory order "does not possess the finality with respect to Engelhard's asserted rights" needed to invoke our jurisdiction under 29 U.S.C. § 660(a) (1976). See Noranda Aluminum, Inc. v. OSHRC, 650 F.2d 934, 935-36 (8th Cir. 1981); Stripe-A-Zone v. OSHRC, 643 F.2d 230, 232-33 (5th Cir. 1981).
7. In response Engelhard does not contend that the Commission's order falls within the literal terms of section 10(c), but instead argues that it is reviewable under the "collateral order" exception to the finality rule articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983), the Supreme Court stated:
To come within the "small class" of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and ...