ORDER TO SHOW CAUSE
On July 19, 2000, an Administrative Law Judge (ALJ) issued a Recommended
Decision (R. D.) in this case arising under Executive Order 11246 and 41 C.F.R. Part 60, finding that
the defendant, Interstate Brands Corp. (Interstate), discriminated in entry-level laborer hiring in
violation of the Executive Order and regulations. The ALJ issued his Recommended Decision only
on the question of liability, having bifurcated the liability and remedy issues in the case. The ALJ
instructed the parties that "[i]f necessary, following review by the Administrative Review
Board, I will contact the parties concerning the remedy phase of this proceeding." R.D. at 31-
32. Thus, the ALJ has issued no recommended decision on the remedy.
Both parties responded promptly to the ALJ's Recommended Decision, but they
did so in different forums.
On July 31, 2000, Interstate asked the Administrative Review Board (ARB) for
an extension of time to file exceptions to the ALJ's Recommended Decision, as provided in 41 C.F.R.
§60-30.28. Interstate stated in its request that the plaintiff in this case, the United States
Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), did not oppose
the enlargement of time. We issued an order granting Interstate's motion.
Also on July 31, 2000, OFCCP filed with the ALJ a "Motion to Amend
Decision and Order" requesting that the ALJ rescind the bifurcation order and retain "this
matter for discovery and hearing of the remedy phase of this proceeding." Motion [before the
ALJ] to Amend Recommended Decision and Order at 3.
[Page 2]
Our order granting Interstate's request for an enlargement of time to file
exceptions apparently "crossed in the mail" with a filing from OFCCP to this Board,
asking that the ARB refrain from ruling on Interstate's motion until the ALJ first had an opportunity
to rule on OFCCP's "Motion to Amend Recommended Decision and Order." Plaintiff's
Response to Defendant's Motion for Extension of Time to File Exceptions at 2. Attached to this
filing was a copy of OFCCP's earlier motion to the ALJ.
OFCCP, in support of both its Motion to Amend Recommended Decision and
Order (pending before the ALJ) and its Response to Defendant's Motion for Extension of Time, relies
on the Secretary's Order in OFCCP v. The Cleveland Clinic Foundation, 91-OFC-20 (Apr.
18, 1995). In that case, the ALJ similarly had bifurcated the liability and remedy stages of
the proceeding. The Cleveland Clinic Foundation filed exceptions with the Secretary challenging the
ALJ's liability recommendation. OFCCP filed a motion with the Secretary requesting that he remand
the case to the ALJ for "'further proceedings on remedy.'" Id., slip op. at 3. The
Secretary granted OFCCP's motion to remand, stating:
-
there is no provision in the OFCCP Rules of Practice, 41 C.F.R. Part
60-30 (1994), for filing exceptions to an ALJ's rulings on selected
issues in a case. The regulations provide that an ALJ shall
"recommend findings, conclusions and a
decision," 41 C.F.R. § 60-3-.27, and
"any party may submit exceptions to said
recommendation." 41 C.F.R. § 60-30.28. (Emphasis
added.) Interlocutory appeals generally are disfavored, see Porter
v. Brown & Root, Inc., Case No. 91-ERA-4, Sec'y Dec. Apr. 29,
1993, and cases discussed therein, slip op. at 3-4, and I have only
rarely accepted an interlocutory appeal.
Id. (footnote omitted).
OFCCP's filing of a motion before the ALJ, simultaneous with Interstate's
noticing its appeal before the ARB, potentially places this litigation before two tribunals at the same
time. In this regard, we note that once a party has invoked the ARB's jurisdiction to review a matter,
the determination whether the ARB will in fact consider the appeal rests with the ARB and not with
the ALJ.
The parties are ordered to SHOW CAUSE no later than
FOURTEEN DAYS from the date of this order why the ARB, consistent with the
Secretary's decision in The Cleveland Clinic Foundation, should not remand this
case to the ALJ for further proceedings and issuance of a recommended decision on both liability and
remedial relief.
All pleadings, briefs and motions should be prepared in Courier (or
typographic scalable) 12 point, 10 character-per-inch type or larger, double-spaced with
minimum one inch left and right margins and minimum 1 inch top and bottom margins, and
printed on 8 by 11 inch paper.
[Page 3]
An original and five copies of all pleadings and briefs shall be filed
with the Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue, N.W.,
Room S-4309, Washington, D.C. 20210.
SO ORDERED.
PAUL GREENBERG
Chair
E. COOPER BROWN
Member
[ENDNOTES]
1 This appeal was assigned to a panel of
two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May
3, 1996).
