Bratzah Corporation, Petitioner-appellant, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent,james J. Diamanti, Real Party in Interest, 946 F.2d 900 (10th Cir. 1991)

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT^* 

TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner-Appellant Bratzah Corporation appeals a decision of the Black Lung Benefits Review Board remanding the case to an Administrative Law Judge. The Director of the Office of Workers' Compensation Programs subsequently filed a motion to dismiss Bratzah Corporation's appeal as interlocutory. We grant the motion to dismiss.

Both parties agree that we normally only have jurisdiction to review final orders of the Board and that remands generally are not considered final orders. See Cotton Petro. v. United States Dep't of Interior, 870 F.2d 1515, 1522 (10th Cir. 1989). In an attempt to sustain its appeal, Bratzah asserts that this case falls within the Gillespie exception to the final order requirement. See Gillespie v. United States Steel Corp., 379 U.S. 148 (1964). We employ a balancing test to determine whether justice requires immediate review in this situation. "The critical inquiry is whether the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review." Bender v. Clark, 744 F.2d 1424, 1427 (10th Cir. 1984).

On appeal, Bratzah contends that it should be allowed to submit evidence on the rebuttal standard and the Claimant's last regular coal mine employment. Bratzah also asserts that we should decide whether Bratzah must be dismissed as a responsible operator if the Claimant's last coal mine employment was with a predecessor operator. These issues are better addressed by the administrative law judge in the first instance. Further, once the administrative law judge reaches a decision, Bratzah will still have the opportunity to raise these issues on appeal. Thus, Bratzah has failed to demonstrate that the danger of injustice outweighs the inconvenience of piecemeal review.