ARB CASE NO. 02-050
ALJ CASE NO. 02-SWD-1
DATE: September 18, 2002
In the Matter of:
JEAN F. GREENE,
COMPLAINANT,
v.
EPA CHIEF JUDGE SUSAN BIRO, U.S.
ENVIRONMENTAL PROTECTION AGENCY
(EPA), EPA OFFICE OF INSPECTOR GENERAL
(OIG), AND EPA OFFICE OF ADMINISTRATIVE
LAW JUDGES (OALJ).
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Edward A. Slavin, Jr., Esq., St. Augustine, Florida
For the Respondent:
Paul M. Winick, Esq., U.S. Environmental Protection Agency, Washington, D.C.
ORDER DISMISSING INTERLOCUTORY APPEAL
Background
Administrative Law Judge Jean F. Greene (retired), the Petitioner, has filed a complaint against the Environmental Protection Agency ("EPA"), EPA Chief Judge Susan Biro, EPA Office of Inspector General and EPA Office of Administrative Law Judges, the Respondents. She alleges that the Respondents retaliated against her in violation of the whistleblower protection provisions of the Clean Air Act, 42 U.S.C.A. § 7622 (West 1995); the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9610 (West 1995); the Safe Drinking Water Act, 42 U.S.C.A. § 300(j)-9(i) (West 1991); the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995); and the Toxic Substances Control Act, 15 U.S.C.A. § 2622 (West 1998). On February 11, 2002, Greene filed a "Petition for Interlocutory Appeal" with the Administrative Review Board ("Board") requesting the Board to review Administrative Law Judge (ALJ) William C. Cregar's January 28, 2002 Order, in which the ALJ denied Greene's motion to recuse himself from the case. Greene also filed a Motion with the ALJ requesting that he stay all action in the case before him pending the outcome of the interlocutory appeal. The Respondents filed a response with the ALJ arguing that both Greene's interlocutory appeal and motion for a stay should be denied.
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On February 26, 2002, the ALJ issued an Order denying Greene's Motion for a Stay. The ALJ concluded that:
Complainant has not provided grounds sufficient to support granting the Motion. Complainant has not requested that I certify issues for interlocutory appeal, as required. [Citing Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y April 29, 1987), 29 C.F.R. §§ 18.1, 28 U.S.C.A. § 1292(b)] Therefore, there is no interlocutory appeal currently ripe for consideration.
Order (Feb. 26, 2002).
On April 5, 2002, the Board issued an Order requiring Greene "to show cause why the Board should not dismiss her petition for review as an impermissible interlocutory appeal." (Emphasis deleted). The Show Cause Order also permitted Respondents to file a reply to Greene's response. On May 17, 2002, Greene requested leave to file a response to Respondents' reply. Greene has suggested no reason why briefing beyond that specified in the Show Cause Order is warranted. Accordingly, her request to file a response is denied. On May 28, 2002, the Respondents filed a response to Greene's motion for leave to file a response to Respondents' reply. Treating this response as a motion to respond to Greene's May 17th motion, we deny it as moot. On May 28, 2002, Greene filed a response to Respondents' May 28th response. Treating Greene's May 28th response as a motion to respond to Greene's May 28th response, we deny it as moot. On August 25, 2002 Greene filed a motion to expedite petition for interlocutory appeal and order oral argument. Given this order dismissing the interlocutory petition for review, Greene's motion is denied as moot.
Issue Presented
Whether the Board should dismiss Greene's petition for review as an impermissible interlocutory appeal.
Discussion
In Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y April 29, 1987), the Secretary of Labor described the procedure for obtaining review of an ALJ's interlocutory order. Slip op. at 2. The procedures for litigation and administrative review of whistleblower complaints under the environmental statutes at issue here are found in 29 C.F.R. Part 24. The Secretary acknowledged that these procedures do not provide for interlocutory review of an ALJ's rulings on motions in the course of administrative hearings. The Secretary concluded that "[t]o 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 . . . , and the Federal Rules of Civil Procedure apply." Id. Turning to 29 C.F.R. Part 18 for guidance, the Secretary noted that 29 C.F.R. § 18.29(a), which describes the authority of administrative law judges, authorizes such judges to "‘take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts . . ..'" Id. The Secretary determined that where an administrative law judge has issued an order of which the party seeks interlocutory review, an appropriate action would be for the judge to follow the procedure established in 28 U.S.C.A. § 1292(b) (West 1993)1 for certifying interlocutory questions for appeal from federal district courts to appellate courts. Id. In Plumley, 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).
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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.