ARB CASE NO. 04-007
ALJ CASE NOS. 2003-CAA-1
2003-CAA-2
DATE: November 25, 2003
In the Matter of:
THOMAS SAPORITO,
COMPLAINANT,
v.
GE MEDICAL SYSTEMS
ADECCO TECHNICAL,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Thomas Saporito, pro se, Jupiter, Florida
For the Respondents:
Dudley Rochelle, Esq., Littler – Mendelson, Atlanta, Georgia
FINAL ORDER DENYING REQUEST FOR INTERLOCUTORY REVIEW
This case arises under the employee protection provisions of the Clean Air Act, 42 U.S.C.A. § 7622 (West 1995).
BACKGROUND
On May 14, 2003, the Complainant, Thomas Saporito filed a motion with a Department of Labor Administrative Law Judge (ALJ) requesting that the post-hearing briefing schedule in this case be vacated and that he be given an opportunity to present rebuttal to the testimony that was taken at the hearing in this matter. In response, the ALJ ordered Saporito to supplement his motion with more specific information as to the rebuttal testimony that he wanted to offer. In particular, the ALJ required that Saporito specify the rebuttal testimony to be offered by each proposed rebuttal witness and to certify that he had spoken to his proposed rebuttal witnesses to verify the substance of their testimony.
In an order dated September 19, 2003, the ALJ denied Saporito's request. Order Denying Motion to Offer Rebuttal Testimony and Setting Post-Trial Briefing Schedule (Ord.) at 2. The ALJ found that Saporito had failed to submit the supplemental information required in support of the testimony of several witnesses and the information provided for one witness was insufficient to demonstrate that the witness would be a proper rebuttal witness.
The ALJ also rejected Saporito's allegation that he had not been permitted to call rebuttal witnesses at the hearing as inconsistent with the record. The ALJ noted that at the conclusion of the hearing the ALJ specifically asked the parties whether there was "‘anything further'" that needed to be addressed, and Saporito responded, "‘No.'" Ord. at 2. Finally, the ALJ denied Saporito's request to certify the issue for interlocutory appeal to the Board.
[Page 2]
On October 14, 2003, Saporito filed "Claimant's Request for Briefing Schedule to Submit Interlocutory Appeal of ALJ's Order (C. R.). Respondent Adecco Technical has filed an opposition to the request on the grounds that the ALJ has not certified the case for interlocutory review.
ISSUE PRESENTED
Whether the Board should dismiss Saporitio's petition for review as an impermissible interlocutory appeal.
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.