ARB CASE NO. 03-014
ALJ CASE NO. 02-AIR-21
DATE: January 24, 2003
In the Matter of:
GREGORY A. FORD,
COMPLAINANT,
v.
NORTHWEST AIRLINES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Lawrence R. Altman, Esq., Pillsbury Center, Minneapolis, Minnesota
For the Respondent:
Timothy R. Thornton, Esq., Briggs and Morgan, Minneapolis, Minnesota
FINAL ORDER DENYING INTERLOCUTORY APPEAL
Background
Petitioner Gregory A. Ford has filed a complaint against Respondent Northwest Airlines, Inc., alleging that Respondent retaliated against him in violation of the whistleblower protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C.A § 42121 (West 1997 & Supp. 2002). On October 18, 2002, a Department of Labor Administrative Law Judge (ALJ) issued an Order Granting Respondent's Motion to
[Page 2]
Dismiss Case in Part and Order of Remand to OSHA ("ALJ Order"). The ALJ partially granted Northwest's Motion to Dismiss, finding that Ford had failed to establish that his May 25, 1999 termination from employment, the alleged adverse action, occurred within ninety days of filing a complaint. However, the ALJ remanded the case to the Occupational Safety and Health Administration (OSHA) "to conduct an investigation into alleged retaliatory acts of blacklisting that occurred within ninety days of November 17, 1999; March 28, 2002; and August 8, 2002, dates on which Ford allegedly filed complaints with the District Court for the Fourth Judicial District of Minnesota, OSHA and the ALJ, respectively." ALJ Order at 10.
Northwest Airlines filed a petition for review with the Administrative Review Board ("Board") challenging the ALJ's order of remand and arguing that the case should be dismissed in its entirety.
On December 3, 2002, the Board issued an order requiring Northwest to show cause why the Board should not dismiss its interlocutory appeal. The order permitted Ford to file a reply to Northwest's response to the order. Northwest filed its response on December 12, 2002, and Ford filed a reply on December 26, 2002. As explained below, we dismiss Northwest's interlocutory appeal.
Issue Presented
Whether the Board should dismiss Northwest's petition for review as an impermissible interlocutory appeal.
1 The environmental whistleblower protection provisions are found in: the Clean Air Act, 42 U.S.C.A. § 7622 (West 1995); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A § 9610 (West 1995); the Federal Water Pollution Control Act, 33 U.S.C.A. § 1367 (West 2001); the Safe Drinking Water Act, 42 U.S.C.A. § 300(j)-9(i) (West 1991); the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995); and the Toxic Substances Control Act, 15 U.S.C.A. § 2622 (West 1998). See also Energy Reorganization Act, 42 U.S.C.A § 5851 (West 1995).
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of
the opinion that such order involves a controlling
question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in
such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such
order, if application is made to it within ten days after the
entry of the order. Provided, however, That application for
an appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
28 U.S.C.A. § 1292(b) (West 1993).
3 However, the fact that the ALJ appended the notice of appeal rights to his order is not
sufficient to convert his interlocutory order into a final order, as Northwest argues, because the Order
of Remand does not "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but
execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).