DATE: OCT 26 1987
CASE NO. 87-ERA-36

In the Matter of

W. ALLAN YOUNG
    Complainant

    v.

PHILADELPHIA ELECTRIC COMPANY
    Respondent

   By memorandum and order dated September 25, 1987, I denied the Department of Labor's motion to quash subpoenas issued in the above case.

   The Department of Labor now requests that I modify the order to include language which will allow an interlocutory appeal to the Secretary of Labor. It concedes that the Department regulations found at Title 29 of the Code of Federal Regulations are silent on interlocutory appeals. However, it still contends an administrative law judge may take any appropriate action authorized by the Federal Rules of Civil Procedure pursuant to 29 C.F.R. § 1829(a), which could be used to certify a question to the Court of Appeals.

   The general rule is that, ordinarily, only final orders or decisions of an administrative agency are reviewable, and the Court will not review preliminary, procedural, interim, or interlocutory orders. See Corpus Juris Secundum Vol. 72A § 205. This general rule is subject to a qualification relating to unusual or exceptional circumstances, where review of a final agency decision would not provide an adequate remedy, where an agency has acted in excess of its powers, or where the administrative body is apparently without jurisdiction. Supra. Although this rule applies to court review of administrative agency decisions, and the Department of Labor's request deals with an interlocutory appeal to the Secretary, the same analysis should be applied. The granting of review of an interlocutory order must ultimately

depend on a showing of the need to protect a party from irreparable injury. Thus far, the Department of Labor has presented no evidence that it would suffer an irreparable injury unless interlocutory review was granted. In contrast, granting the Department of Labor's request at this time, would further delay a final decision on the underlying merits of this case, and act to penalize the complainant from getting a prompt disposition of his complaint.

   Even more significant, the subpoenas issued by the Office of Administrative Law Judges are not self-executing and may only be enforced by a Federal District Court. See 29 C.F.R. 18.24. The courts have generally recognized that the appropriate forum to challenge such administrative agency subpeonas is in an enforcement proceeding before a District Court. Atlantic Richfield Company v. FTC, 546 F.2d 646 (474)(5th Cir.). In an enforcement proceeding brought against it, the Department of Labor may raise any regulatory proceedural objections and challenge the summons on any appropriate grounds. Supra. Pre-enforcement review of agency subpeonas, have thus been greatly disfavored. Belle Fourche Pipeline Co. v. United States, 751 F.2d 332 (1984)(10th Cir.). Insofar as the Department of Labor's request raises a matter which is not yet ripe, and it has an adequate legal remedy in an enforcement hearing, an interlocutory appeal to the Secretary of Labor would serve no purpose at this time. Accordingly, for the reasons stated above the Department of Labor's request is hereby DENIED.

       FRANK J. MARCELLINO
       Administrative Law Judge