DATE: April 29, 1987
CASE NO. 86-CAA-6

IN THE MATTER OF

DOUGLAS PLUMLEY,
    Complainant

v.

FEDERAL BUREAU OF PRISONS,
    Respondent.

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

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

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

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).