DATE:  September 29, 1993
CASE NO. 91-ERA-4


IN THE MATTER OF

LINDA PORTER,

          COMPLAINANT,

     v.

BROWN & ROOT, INC., 

     and

TEXAS UTILITIES,

          RESPONDENTS.


BEFORE:  THE SECRETARY OF LABOR


                            ORDER TO SHOW CAUSE

     Before me for review is the Order Granting An Interlocutory
Appeal issued by the Administrative Law Judge (ALJ) on June 8,
1993, in this case arising under the employee protection
provisions of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1992), and the Toxic Substances
Control Act (TSCA), 15 U.S.C. §2622 (1988).  
     Before the ALJ, the parties submitted a Joint Motion
Requesting Approval of Settlement and Stipulation to Dismissal of
Complaint with Prejudice, with a copy of the fully executed
settlement agreement attached thereto.  The ALJ reviewed the
terms of the agreement and found them acceptable, but for the
parties' request concerning the sealing of portions of the
record.  The parties conditioned the settlement on the issuance
of an Order providing that certain documents be placed in a 
[PAGE 2]
restricted access portion of the file pursuant to 29 C.F.R.
§18.56.  Consequently, the ALJ issued an Order, dated June
4, 1993, in which he sealed the terms of the settlement
agreement, declined to seal portions of the record which indicate
the existence of a settlement agreement, and granted the parties'
request that the issue of sealing portions of the record be
certified for interlocutory appeal to the Secretary.  The June 8
Order Granting an Interlocutory Appeal, states, "Pursuant to my
order entered June 4, 1993 and in accordance with 28 U.S.C. 
§ 1292(b), the record in this case is hereby certified for
interlocutory appeal to the Secretary of the Department of
Labor."  Order Granting an Interlocutory Appeal at 1. [1] 
     Subsequent to the ALJ's forwarding this case to the
Secretary, Complainant's Motion for Remand was received on
September 13, 1993, urging the Secretary to remand the case to
the ALJ for completion of the hearing process.  Complainant's
Motion for Remand states that no recommended decision has been
issued by the ALJ and there is no basis for the case to be before
the Office of Administrative Appeals. [2] 
     There is no provision for interlocutory appeals to the
Secretary, either in 29 C.F.R. Part 24, the regulations
implementing the ERA, or the Rules of Practice and Procedure for
Administrative Hearings before the Office of Administrative Law
Judges, 29 C.F.R. Part 18.  Although certifying a controlling
question of law to the Secretary of Labor pursuant to the
provisions at 28 U.S.C. § 1292(b) may be considered an
appropriate exercise of authority by the ALJ, see 29
C.F.R. §§ 18.1(a), 18.29(a), I decline to exercise any
discretion I may have to entertain such an appeal.    
     Interlocutory appeals are generally disfavored and the
Courts, as well as the Secretary, have held that there is a
"strong policy against piecemeal appeals . . . ."  Admiral
Insurance Co. v. United States District Court for the District of
Alabama, 881 F.2d 1486, 1490 (9th Cir. 1989); Shusterman
v. Ebasco Services, Inc., Case No. 87-ERA-27, Sec. Ord.
Denying Remand, July 2, 1987, slip op. at 2.  To date, the
Secretary has refused to accept interlocutory appeals. 
See Manning v. Detroit Edison Corp., Case
No. 90-ERA-28, Sec. Ord. Denying Permission to File Interlocutory
Appeal, Aug. 23, 1990, slip op. at 2-4; Shusterman at 2;
Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6,
Sec. Ord. Denying Interlocutory Appeal, April 29, 1987, slip op.
at 2-6; Malpass and Lewis v. General Electric Co., Case
Nos. 85-ERA-38, 39, Sec. Ord. Denying Request for Stay Pending
Appeal, Dec. 20, 1985.
     I am not prepared to establish a new precedent by granting
an interlocutory appeal in the present case.  Nevertheless, I
recognize the futility of remanding the case for further 
[PAGE 3]
consideration by the ALJ in these circumstances.  The parties
were afforded an opportunity to brief the issues before the ALJ's
issuance of the order.  The ALJ's Order of June 4, 1993
thoroughly addresses the issues presented by the parties' Joint
Motion Requesting Approval of Settlement and Stipulation to
Dismissal of Complaint with Prejudice.  Moreover, Complainant's
Motion for Remand raises questions about Complainant's position
on the Joint Motion and settlement agreement filed before the
ALJ, and a clarification is necessary.  For these reasons,
therefore, and in the interest of administrative efficiency, I
propose to treat the ALJ's Order of June 4, 1993 as his
Recommended Decision and Order in this case, unless the parties
show cause within 20 days of receipt of this order why I should
not proceed with my review of this case pursuant to Section
24.6(b).
     Accordingly, the request for an interlocutory appeal of the
ALJ's order is denied, and the parties are ordered to show cause
within 20 days of receipt of this order, why the ALJ's Order of
June 4, 1993 should not be reviewed as the Recommended Decisionand Order in this case, pursuant to Section 24.6(a) and (b), and
why the Secretary should not proceed to issue a briefing schedule
in this case.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]  All documents in the record which indicate the existence of
a settlement agreement in this case, including the June 4 Order
of the ALJ, were forwarded under seal, even though the ALJ
recommended granting only the parties' request that the
settlement agreement be sealed, and recommended denying the
request to seal any other documents in the file that mention the
settlement.

[2]  The Office of Administrative Appeals is responsible for
assisting the Secretary of Labor in performing his adjudicatory
responsibilities in issuing decisions in whistleblower cases.