93jtp02a.htm

DATE:  July 13, 1994
CASE NO. 93-JTP-2


IN THE MATTER OF

FLORIDA DEPARTMENT OF LABOR
AND EMPLOYMENT SECURITY,

          COMPLAINANT,

     v.

U.S. DEPARTMENT OF LABOR

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                                   ORDER

     The Grant Officer requested the Secretary to "assert
jurisdiction" to review the Administrative Law Judge's (ALJ) 
order directing the Grant Officer to comply with a request for
production of documents served by the Complainant in this case
arising under the Job Training Partnership Act (JTPA), 29 U.S.C.
1501-1781 (1988), and simultaneously filed "exceptions" to that
order.  The Grant Officer had withheld certain portions of the
documents requested by Complainant relying on the deliberative
process privilege, but the ALJ denied the Grant Officer's claim
"in toto."  ALJ Order Granting Complainant's Motion to Compel
Discovery (ALJ Order), May 19, 1994, slip op. at 1.
     Nothing in JTPA, its implementing regulations governing
complaints, investigations and hearings, 29 C.F.R. Part 636
(1993), or the Rules of Practice and Procedure for Administrative
Hearings before the Office of Administrative Law Judges, 29
C.F.R. Part 18, provides for the filing of exceptions to, or
review by the Secretary of, interlocutory orders by ALJ's such as
the discovery order at issue here.  See 20 C.F.R. §
636.10(d).  Section 166 of JTPA provides that any recipient of
financial assistance upon whom a corrective action or sanction
has been 
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imposed, as was the case here, may request a hearing before an
administrative law judge whose decision constitutes final action
by the Secretary unless a party dissatisfied with the decision
has filed exceptions to it within 20 days of its receipt.  29
U.S.C. § 1576.  It is clear that the ALJ "decision" subject
to review by the Secretary is the decision whether the sanction
or corrective action ordered by the Grant Officer was proper. 
See 29 C.F.R. §§ 636.8-10.  An order compelling
compliance with a discovery request is interlocutory and such
orders generally are not reviewable before issuance of a decision
by the ALJ on the Grant Officer's final determination. 
Cf., Marchese v. City of Easton, Case No. 92-WPC-
00005, Sec'y. Order Mar. 10, 1994, slip op. at 3-4 and cases
discussed therein; Fowler v. Seay Trucking, Case No. 92-
STA-40, Sec'y. Order Oct. 13, 1993, slip op. at 2-3; see
also Boughton v. Cotter Corp., 10 F. 3d 746, 748 (10th
Cir. 1993) ("District court orders for the production of
documents during the course of litigation are not 'final orders'
subject to immediate appellate review.")
     The Grant Officer urges me to accept jurisdiction because
"it will be too late to request review of [the ALJ's Order] once
the documents are disclosed."  Grant Officer's Exceptions at 1. 
But as the court explained in Boughton v. Cotter Corp.,
where defendants advanced essentially the same argument ,
     [t]he practical consequences of the district court's
     decision . . . can be effectively reviewed on direct appeal
     following a judgment on the merits.  If this court
     determines that privileged documents were wrongly turned
     over to the plaintiffs and were used to the detriment of
     defendants at trial, we can reverse any adverse judgment and
     require a new trial, forbidding any use of the improperly
     disclosed documents.  Plaintiffs would also be forbidden to
     offer at trial any documents, witnesses, or other evidence
     obtained as a consequence of their access to the privileged
     documents.

10 F. 3d at 749.  
     Accordingly, the Grant Officer's request for assertion of
jurisdiction of the ALJ Order is DENIED.
     SO ORDERED.    




                              ___________________________
                              Secretary of Labor

Washington, D.C.

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