for certifying interlocutory questions for appeal from federal district courts to appellate courts. Puckett v. Tennessee Valley Authority , ARB No. 02-070, ALJ No. 2002-ERA-15, slip op. at 2-3 (ARB Sept. 26, 2002); Greene v. EPA , ARB No. 02-050, ALJ No. 02-SWD-1, slip op. at 2-3 (ARB Sept. 18, 2002); Hasan v. J. A. Jones Management Services , ARB No. 02-096, ALJ No. 2002-ERA-18, slip op. at 2-3 (July 16, 2002); Dempsey v. Fluor Daniel, Inc., ARB No. 10-075; ALJ No. 01-CAA-5, slip op. at 2-3 (May 7, 2002). In Plumley v. Federal Bureau of Prisons , 86-CAA-6, slip op. at 3 (Sec'y April 29, 1987), the Secretary ultimately concluded that because no judge had certified the questions of law raised by the respondent in his interlocutory appeal as provided in 28 U.S.C.A. § 1292(b), "an appeal from an interlocutory order such as this may not be taken." (citations omitted). However, as discussed below, given our disposition of this case it is not necessary for us to determine if, or under what circumstances, we would consider an interlocutory appeal that has not been certified by an ALJ.
The Board's policy against interlocutory appeals incorporates the final decision requirement found in 28 U.S.C.A. § 1291 (West 1993), which provides that the courts of appeals have jurisdiction "from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." Accordingly, pursuant to § 1291, ordinarily, a party may not prosecute an appeal until the district court has issued a decision that, "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States , 324 U.S. 229, 233 (1945). Accordingly, the purpose of the finality requirement is "to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).
Nevertheless, the Supreme Court has recognized a "small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. In Coopers & Lybrand v. Livesay , 437 U.S. 463 (1978), the Court further refined the "collateral order" exception to technical finality. Van Cauwenberghe v. Biard , 406 U.S. 517, 522 (1988). The Court in Coopers & Lybrand held that to fall within the collateral order exception, the order appealed must "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." 437 U.S. at 468.
In determining whether to accept an interlocutory appeal, we must strictly construe the Cohen collateral appeal exception to avoid the serious "‘hazard that piecemeal appeals will burden the efficacious administration of justice and unnecessarily protract litigation.'" Corrugated Container Antitrust Litigation Steering Comm. v. Mead Corp ., 614 F2d. 958, 961 n.2, quoting Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1094 (5th Cir. 1977). Exelon has not even alleged, much less established, that the ALJ's Order Denying the Protective Order falls within the collateral appeal exception to the final decision requirement.
Finally, in response to Exelon's M. P. O., Shirani averred that
Mr. Kingsley's knowledge of the circumstances of Complainant's termination from Exelon BS will not be the subject of his deposition. Rather, complainant is only interested in deponent's knowledge of Complainant's quality assurance audits and their impact on ComEd/Exelon Generation and his knowledge of Complainant's meeting with him on October 6, 2002. . . . Respondents assert that Mr. Kingsley "had absolutely no involvement in any other employment decisions" challenged by Complainant. However, Respondents do not deny, nor does Mr. Kingsley deny in his affidavit that he had knowledge of Complainant's work in Supplier Evaluation Services or knowledge of the business impact of his audits as set forth in Mr. Shirani's complaint, specifically the lifting of the GENE Stop Work Order in November 1997.
Complainant's Response to Respondents' "Emergency" Motion for 29 C.F.R. 18.5 Protective Order at 2. The ALJ noted in his Order Denying Respondents' Emergency Motion that Shirani's counsel had offered to hold the deposition at Kingsley's office, on a date convenient to him. He also stated that Shirani identified "specific topic areas he would explore with Mr. Kingsley." Considering the arguments of both parties, the ALJ "[found] the Complainant's arguments that Mr. Kingsley could offer relevant and material information more convincing. The Complainant is also willing to minimize the impact of this proceeding on Mr. Kingsley's schedule." Order Denying Reconsideration at 2. As the Board has repeatedly held, we are most reluctant to interfere with an ALJ's control over the course of a hearing, "but rather should support the sound exercise of an ALJ's broad discretion in this area." Hasan v. J. A. Jones Management Services, slip op. at 2; Cook v. Shaffer Trucking, Inc., ARB No. 00-057, ALJ No. 00-STA-17, slip op. at 3 (Aug. 31, 2000); Hasan v. Commonwealth Edison Co., ARB No. 99-097, ALJ No. 99-ERA-17, slip op. at 2 (Sept. 16, 1999).
As Exelon has not demonstrated a basis for departing from our strong policy against interlocutory appeals, we decline its invitation to do so in this case. Accordingly, Exelon's Emergency Appeal of the Denial of Respondent's Motion for a Protective Order is DENIED.
SO ORDERED.
M. CYNTHIA DOUGLASS
WAYNE C. BEYERAdministrative Appeals Judge
[ENDNOTES]
1
2
3
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.
28 U.S.C.A. § 1292(b) (West 1993).
