DATE:  September 28, 1994
CASE NO. 94-ERA-13


IN THE MATTER OF

DANNY M. CARTER,

          COMPLAINANT,

     v.

B & W NUCLEAR TECHNOLOGIES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                    ORDER DENYING INTERLOCUTORY APPEAL
     The above-captioned case arises under the employee
protection provision of the Energy Reorganization Act of 1974, as
amended, 42 U.S.C. § 5851 (1992), and is pending a formal
hearing before the Administrative Law Judge (ALJ), which is
scheduled for October 25, 1994.  See ALJ Order dated Aug.
22, 1994.  On June 23, 1994, the ALJ issued an Order in response
to Complainant's motion to identify the Tennessee Valley
Authority (TVA) as a Co-Respondent in this case.  The ALJ concluded
that under the circumstances presented it was appropriate to join TVA
as a party respondent in this case, pursuant to Rule 19(a) of the Federal
Rules of Civil Procedure (Fed. R. Civ. P.).  
     Before me now is TVA's letter of August 11, 1994,
challenging the ALJ's pre-hearing Order of June 23, 1994.  TVA
requests that I reverse the ALJ's Order as exceeding the scope of
the ALJ's authority under the ERA and the regulations found at 
29 C.F.R. Part 24 (1993).  Subsequent to TVA's request for
intervention by the Secretary, the ALJ issued an Order on 
August 22, 1994, stating that TVA's letter of August 11 was
viewed as an interlocutory appeal, and that the hearing would not
be stayed unless the Secretary issued an Order staying the
proceedings.  
     TVA responded to the ALJ's August 22 Order by submitting 
[PAGE 2]
another letter before me, dated August 26, 1994.  In that
submission TVA asserts that the August 11 letter is not an
interlocutory appeal nor a request to stay the ALJ hearing. 
Rather, TVA argues that the regulations at 29 C.F.R. Part 24
require that the matter of TVA's joinder as a Co-Respondent
should be presented before the Wage and Hour division.  
     Finally, in a letter dated August 29, 1994, TVA references
the rulemaking document recently published at 59 Fed. Reg. 41,874
(Aug. 15, 1994), as supportive of its position that the ALJ erred
in relying on the regulations at 29 C.F.R. § 18.1(a), rather
than following the provisions of 29 C.F.R. Part 24.  TVA's
position is that the ALJ does not have the authority to add TVA
as a co-respondent at this point in the proceedings, and that the
Secretary has the authority to mandate that the ALJ follow
another course at this stage of the proceedings.
     I reject TVA's assertions that this is not an interlocutory
appeal.  Pursuant to the regulations at 29 C.F.R. Part 24, it is
clear that the ALJ has jurisdiction over this matter until he
issues a recommended decision which will be forwarded to the
Secretary for issuance of a final decision. [1]   As governed by
the regulations at 29 C.F.R. Part 24 and Part 18, the ALJ is
considered to have all the powers necessary to the conduct of
fair and impartial hearings.  There is no provision for
interlocutory appeals to the Secretary either in the regulations
implementing the ERA, 29 C.F.R. Part 24, or in the Rules of
Practice and Procedure for Administrative Hearings before the
Office of Administrative Law Judges, 29 C.F.R. Part 18. 
Respondent's request that the Secretary make any findings to the
contrary, in advance of the ALJ's hearing on the merits and
issuance of a recommended decision on the merits, is in the
nature of an interlocutory appeal.
     As the ALJ stated in his Order of August 22, interlocutory
appeals are generally disfavored.  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); Marchese v. City of Easton, Case No.
92-WPC-00005, Sec. Ord., March 10, 1994, slip op. at 3-4.  To
date, the Secretary has refused to accept interlocutory appeals. 
See Marthin v. TAD Technical Services Corp., Case
Nos. 94-WPC-1, 2, 3, Sec. Ord. Denying Interlocutory Appeal, Aug.
22, 1994, slip op. at 1-2; Marchese, at 3-4;
Porter v. Brown & Root, Inc., Case No. 91-ERA-4,
Sec. Ord. to Show Cause, Sept. 23, 1993; Manning v. Detroit
Edison Corp., Case No. 90-ERA-28, Sec. Ord. Denying
Permission to File Interlocutory Appeal, Aug. 23, 1990; Corder
v. Bechtel Energy Corp., Case No. 88-ERA-9, Sec. Ord., Oct.
3., 1988, slip op. at 2; Shusterman v. Ebasco Services,
Inc., Case 
[PAGE 3]
No. 87-ERA-27, Sec. Ord. Denying Remand, July 2, 1987, slip op.
at 2. 
     I do not find that denial of this interlocutory appeal is
inconsistent with the Act as amended in 1992 or with the
applicable regulations governing the handling of discrimination
complaints under the ERA or the Rules of Practice and Procedure
for Administrative Hearings before the Office of ALJs.  TVA has
shown no compelling reason why the issues they attempt to raise
before the Secretary at this time, cannot be raised before the
Secretary upon review of the ALJ's recommended decision and the
complete administrative record. [2]     
     Accordingly, TVA's request is denied.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.



[ENDNOTES]
           
[1]  At that time the parties will have an opportunity to submit
briefs before the Secretary.

[2]  Even if I were to exercise any authority I might have to
entertain an interlocutory appeal, I would not grant TVA's
request to remand the case to the Wage and Hour division for
further consideration of whether they are appropriately named as
a co-respondent.  The ALJ has provided adequate justification for
finding that TVA was sufficiently named in Complainant's initial
complaint and TVA has been provided an adequate opportunity for
discovery prior to the hearing.