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USDOL/OALJ Reporter Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210
ARB CASE NO. 96-108
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOR
v.
GUARANTEED OVERNIGHT DELIVERY,
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
Respondent, Guaranteed Overnight Delivery, has moved for a stay of the Board's Final Decision and Order (D. and O.), issued September 5, 1996 pursuant to the employee protection provision of the Surface Transportation Assistance Act of 1982, 49 U.S.C.A. § 31105 (1994) in the above-captioned case. The D. and O. orders Respondent to reinstate Complainant Peter Bigham (Bigham) to his former position together with full back pay with interest, fringe benefits and compensatory damages. Respondent avers that, on October 31, 1996, it appealed this D. and O. to the United States Court of Appeals for the First Circuit. Respondent's motion is unaccompanied by affidavits or other supporting documents. The courts have developed a four-part test to determine the appropriateness of a stay request and the Secretary of Labor has applied the same standards in deciding whether to stay his own decisions. See Office of Federal Contract Compliance Programs v. The University of North Carolina, Case No. 84-OFC-20, Sec. Order Denying Stay, April 25, 1989, slip op. at 3-4, citing Virginia Petroleum Jobbers Ass'n. v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958); Rexroat V. City of New Albany, Case No. 85-WPC-3, Sec. Order Denying Stay, October 8, 1986, slip op. at 2. The factors the court set forth in Petroleum Jobbers are:
[Page 2]
259 F.2d at 925. Upon consideration of these factors and in light of Respondent's failure to produce any evidence in support of its motion, we find that justice does not require us to grant a stay of the D. and O. and, therefore, Respondent's motion is denied. 5 U.S.C. § 705 (1988). Neither a mere possibility of success on appeal nor certain economic loss in the interim is sufficient to warrant a stay. See Rexroat, supra, at 2-3; see also Spinner v. Yellow Freight System. Inc., Case No. 90-STA-17, Sec. Order Denying Application for Stay, Sept. 25, 1991, slip op. at 5, citing Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67, 68 (7th Cir. 1983). SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
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