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USDOL/OALJ Reporter
SECRETARY OF LABOR
DATE: April 29, 1987
IN THE MATTER OF
DOUGLAS PLUMLEY,
v.
FEDERAL BUREAU OF PRISONS,
BEFORE: THE SECRETARY OF LABOR
Douglas Plumley, an inmate at the federal prison at Lompoc, California, filed a complaint on February 18, 1986, under the Clean Air Act (CAA), 42 U.S.C. § 7622 (1982), and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622 (1982), alleging that he was fired from his job with Federal Prison Industries, Inc. in retaliation for having filed a complaint of violation of the CAA and TSCA by the Federal Bureau of Prisons. The Bureau of Prisons filed a motion to dismiss or in the alternative for summary judgment with the Administrative Law [Page 2] Judge (ALJ). In an order issued December 31, 1986, ALJ E. Earl Thomas denied the motion to dismiss and declined to rule on the motion for summary judgment. Acting Attorney General Stephen S. Trott sent a letter to me on February 6, 1987, requesting that the ruling of the ALJ be reversed. Attorney General Meese reiterated that request in a letter dated April 1, 1987. Because I view that request as an interlocutory appeal which does not meet the requirements of relevant Department of Labor regulations, I must deny the request. The procedures for hearings under the CAA and TSCA are se: forth in 29 C.F.R. Part 24 (1986), Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes. To the extent any situation is not provided for in those regulations, the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (1986), and the Federal Rules of Civil Procedure apply. See 29 C.P.R. § 18.1(a). There is no provision in 29 C.P.R. Part 24 for interlocutory review by the Secretary of rulings on motions by an ALJ in the course of a hearing under the CAA or TSCA. A dispositive ruling, such as an order granting a motion to dismiss, would constitute a recommended decision subject to review by the Secretary under 29 C.P.R. § 24.6(b). The Acting Attorney General has urged that I exercise discretion under section 24.6(b) to review the December 31 order of the ALJ. However, I do not think that section 24.6(b) grants the Secretary discretion to review preliminary orders or rulings of ALJ'S. But see infra at 3. Section 24.f(b) deals with issuance by the Secretary of a "final order" based on the record and the recommended decision of the ALJ. Without intimating any opinion on the merits of the ALJ's ruling here, I do not think that section is applicable to a denial of a motion to dismiss. Assuming that 29 C.F.R. Part 24 is simply silent on interlocutory appeals and does not foreclose them, I turn to 29 C.F.R. Part 18 for guidance on this question. The authority of administrative law judges is set forth in 29 C.F.R. § 18.29(a), which, among other things, authorizes ALJ's to "take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts . . . ." An appropriate action after denying a motion to dismiss could include certifying the question decided by the ALJ's order to the Secretary for interlocutory review, as a district court may do in certifying a question to a court of appeals under 28 U.S.C. § 1292(b) (1982). Neither [Page 3] Deputy Chief Administrative Law Judge E. Earl Thomas, who issued the order denying the motion to dismiss, nor Judges Joseph A. Matera and Henry B. Lasky, the ALJs to whom the case has since been assigned, has certified the questions of law raised by Respondent to me for review. The law seems clear that, absent such a certification, an appeal from an interlocutory order such as this may not be taken. See Pacific Union Conference of Seventh Day Adventists v. Marshall, 434 U.S. 1305, 1306 (1977); Aleut Tribe v. United States, 702 F.2d 1015, 1019 (Fed. Cir. 1983); SEC v. Blazon Corp., 609 F.2d 960 (9th Cir. 1979). The Solicitor has submitted a Statement of his position urging that those regulations be waived by the Secretary in this case and that the Secretary entertain this interlocutory appeal. The Solicitor acknowledges that interlocutory appeals are generally disfavored, and that there is no provision for interlocutory appeals in whistleblower cases under 29 C.F.R. Part 24. The Solicitor submits, however, that under the principle set forth by the Supreme Court in American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970), the Secretary has authority to relax or modify any procedural rule in the interest of justice.
I think it is doubtful, however, that the rules governing
interlocutory appeals fall within that category of agency rules
which, as "mere aids to the exercise of the agency's independent
discretion", 397 U.S. at 539, may be waived at the agency's
discretion. See discussion of American Farm Lines in Port of
Jacksonville v. United States Coast Guard, 788 F.2d 705, 708
(11th Cir. 1986). The Court in American Farm Lines applied the
principle to the granting of an Interstate Commerce Commission
license without receipt of all the documents required by regulation
to be submitted, and the relaxation of procedural rules has been
applied, for example, to cases where an agency relaxes a time limit
which was set by regulation. (See N.L.R.B. v. Monsanto Chemical
Co., 205 F.2d 763 (8th Cir. 1953), and N.L.R.B. v. Albritton
Engineering Corp., 340 F.2d 281 (8th Cir. 1965), cited by the
Solicitor.) The Solicitor has not cited any case in which American
Farm Lines has been relied on to permit an interlocutory appeal
not provided for by regulation1 .
The Solicitor cited only two administrative decisions in
which an interlocutory appeal was permitted. Both were decisions
of the Board of immigration Appeals, Matter of Seren, 15 I. & N.
Dec. 590 (Bd. of Imm. App. 1976), and Matter of Fong, 14 1. & N.
Dec. 670 (Bd. of Imm. App. 1974). In Matter of Seren, the Board
certified the decision of the immigration judge to itself for
interlocutory review under 8 C.P.R. § 3.1(c) (1975). Matter of
Seren, as reported in JURIS, at 2. That regulation provides:
There is no comparable provision in 29 C.F.R. Part 24 or 29 C.F.R.
Part 18.
In Matter of Fong, the Board of Immigration Appeals did
not doubt that it had the authority under 8 C.P.R. § 3.1(b)(2)
and 8 C.P.R. § 242.21 (1973) to entertain an interlocutory appeal
of the particular order of the immigration judge at issue there.
Matter of Fong, as reported in JURIS at 7-8. (I would also note
that the BIA viewed the issue as one which "is presented in a
setting which gives it sufficient finality to warrant decision
by us at this time." Id. at 8. As such, by analogy, the order
would be appealable under 28 U.S.C. § 1291.)
In the other cases cited by the Solicitor, the interlocutory
appeals were not permitted, and there were explicit regulations
governing interlocutory appeals. Matter of Ruiz - Campuzano, 46
Ad. L. 2d 951, 952 (Bd. of Imm. App. 1979); In the Matter of
Public Service Company of Indiana, Inc., 5 NRC 1190, (N.R.C.
A.L.A.B. 1977) (Atomic Safety and Licensing Appeal Board declined
to accept the Licensing Board's referral of the case for interlocutory
appellate review under 10 C.F.R. § 2.730(f) (1976)); Natural
Gas Pipeline Co. of America, 30 F.P.C. 279t 15 Ad. L. 2d 508,
509 (F.P.C. 1963) (the Federal power commission affirmed the
rejection of an appeal by the Presiding Examiner under Section
1.28(a) of the F.P.C.'s Rules of Practice and Procedure which
permit interlocutory appeals, among other conditions, only upon
referral of a ruling by the presiding officer at the hearing.) The
Solicitor apparently does not contend that current Department
of Labor regulations governing whistleblower cases permit
interlocutory appeals in any manner analogous to the cited cases. Rather,
he is urging that I waive those regulations in this case. For
the reasons discussed above, I decline to do so.
I am constrained, therefore, to deny the Acting Attorney
General's request for review at this time. Respondent, of course,
may raise any and all controverted issues at the appropriate
time before me after submission of the ALJ's recommended decision.
My final decision and order will be made after an opportunity to
file exceptions and briefs, as provided in the Administrative
Procedure Act, 5 U.S.C. § 557(c) (1982), and in accordance with
subsection (d) of that section.
I feel confident that the ALJ, in the exercise of his authority
under 29 C.F.R. § 18.29, will be duly cognizant of the authority
and responsibility of the Attorney General to maintain security and
discipline in Federal prisons, and will cooperate with the Attorney
General's representatives to assure that their responsibilities
are carried out. The ALJ, I am sure, is as concerned as I am
that every means possible will be sought to limit the hearing
to essential matters and conduct it in a manner consistent with
the demands of prison security and discipline. In addition, the
ALJ is encouraged to conduct the hearing and issue his recommended
decision as expeditiously as possible.
In view of my ruling on the request of the Acting Attorney
General, Complainant's Motion to Strike the Acting Attorney General's
letter and Complainant's Second Motion to Strike are denied as
moot. I am not aware of any communication between any person
in the Bureau of Prisons or the Department of Justice and any
official or employee of the Department of Labor who is involved
in advising or assisting me in the exercise of my adjudicatory
functions under the CAA and TSCA concerning the issues in this
case. Complainant's request for disqualification of such persons
is therefore denied.
Respondent's Request for Stay of Proceedings and Discovery
Pending Final Disposition of Attorney General Appeal is denied
as moot.
SO ORDERED.
WILLIAM E. BROCK
Washington, D.C.
1 I would note also that the scope of
American Farm Lines has apparently been narrowed by the Court. Morton v.
Ruiz, 415 U.S. 199, 235 (1974).
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