U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
DATE: OCT 26 1987
CASE NO. 87-ERA-36
In the Matter of
W. ALLAN YOUNG
Complainant
v.
PHILADELPHIA ELECTRIC COMPANY
Respondent
ORDER RULING ON THE DEPARTMENT OF LABOR'S
REQUEST FOR INTERLOCUTORY APPEAL TO THE SECRETARY OF
LABOR
By memorandum and order dated September 25, 1987, I denied the
Department
of Labor's motion to quash subpoenas issued in the above case.
The Department of Labor now requests that I modify the order to include
language which will allow an interlocutory appeal to the Secretary of Labor.
It concedes that the Department regulations found at Title 29 of the Code of
Federal Regulations are silent on interlocutory appeals. However, it still
contends an administrative law judge may take any appropriate action authorized
by the Federal Rules of Civil Procedure pursuant to 29 C.F.R. § 1829(a), which
could be used to certify a question to the Court of Appeals.
The general rule is that, ordinarily, only final orders or decisions of
an administrative agency are reviewable, and the Court will not review
preliminary, procedural, interim, or interlocutory orders. See Corpus Juris
Secundum Vol. 72A § 205. This general rule is subject to a qualification
relating to unusual or exceptional circumstances, where review of a final
agency decision would not provide an adequate remedy, where an agency has
acted in excess of its powers, or where the administrative body is apparently
without jurisdiction. Supra. Although this rule applies to court review of
administrative agency decisions, and the Department of Labor's request deals
with an interlocutory appeal to the Secretary, the same analysis should be
applied. The granting of review of an interlocutory order must ultimately
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depend on a showing of the need to protect a party from irreparable injury.
Thus far, the Department of Labor has presented no evidence that it would
suffer an irreparable injury unless interlocutory review was granted. In
contrast, granting the Department of Labor's request at this time, would
further delay a final decision on the underlying merits of this case, and act
to penalize the complainant from getting a prompt disposition of his
complaint.
Even more significant, the subpoenas issued by the Office of
Administrative Law Judges are not self-executing and may only be enforced by a
Federal District Court. See 29 C.F.R. 18.24. The courts have generally
recognized that the appropriate forum to challenge such administrative agency
subpeonas is in an enforcement proceeding before a District Court. Atlantic
Richfield Company v. FTC, 546 F.2d 646 (474)(5th Cir.). In an enforcement
proceeding brought against it, the Department of Labor may raise any regulatory
proceedural objections and challenge the summons on any appropriate grounds.
Supra. Pre-enforcement review of agency subpeonas, have thus been greatly
disfavored. Belle Fourche Pipeline Co. v. United States, 751 F.2d 332
(1984)(10th Cir.). Insofar as the Department of Labor's request raises a
matter which is not yet ripe, and it has an adequate legal remedy in an
enforcement hearing, an interlocutory appeal to the Secretary of Labor would
serve no purpose at this time. Accordingly, for the reasons stated above the
Department of Labor's request is hereby DENIED.