DATE: October 13, 1993
CASE NO. 92-STA-40

IN THE MATTER OF

GRADY FOWLER
    COMPLAINANT,

    v.

SEAY TRUCKING, INC.
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    The Administrative Law Judge (ALJ) denied the Acting Assistant Secretary's Motion to Dismiss Respondent's Appeal of the Acting Assistant Secretary's Preliminary Order in this case arising under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988) and denied the Acting Assistant Secretary's Motion for Reconsideration Of that denial. The Acting Assistant Secretary argued in those motions that Respondent's appeal was untimely because it was filed more than 30 days after receipt of the Acting Assistant Secretary's Preliminary Order, 49 U.S.C. app. § 2305(c) (2) (A), 29 C.F.R. § 1978.105, but the ALJ found that "there is an issue of fact to be resolved regarding the timeliness of the Respondent's appeal." ALJ Order Denying Prosecuting Party's Motion for Reconsideration, Feb. 16, 1993, slip op. at 2.

    In granting a 60 day continuance of the hearing to give the Acting Assistant Secretary an opportunity to petition for interlocutory review of this question by the Secretary, the ALJ reiterated that Respondent had raised issues which involve "the parties' state of mind . . . motive(s) or intent [for which] a trial may be required . . . ." Order Granting the Prosecuting Party's Motion [for Time) to File an Interlocutory Appeal with the Secretary of Labor, Feb. 25, 1993, slip op. at 1.¹ In addition, the ALJ held that there were no unusual circumstances justifying an interlocutory appeal and refused to certify the order denying reconsideration to the Secretary for interlocutory appeal, by analogy to the United States Code section on interlocutory appeals, 28 U.S.C. § 1292(b) (1988).

    Interlocutory appeals are generally disfavored and 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); Shusterman v. Ebasco Services. Inc., Case No. 87-ERA-27, Sec. Ord. Denying Remand, July 2, 1987, slip op. at 2. There is no provision in the STAA or the regulations for interlocutory appeals and the Secretary has consistently refused to accept interlocutory appeals in similar situations under analogous whistleblower statutes. See Manning v. Detroit Edison Corp., Case No. 90-ERA-

    Although I may have the authority in a proper case to entertain an Interlocutory appeal, either under 29 C.F.R. § 1978.115 (1992) Or by analogy to 28 U.S.C. § 1292(b) (1988), I find it would not be appropriate here. As noted above, the ALJ found there were disputed issues of fact involved in the timeliness question which should be decided only after a hearing. Moreover, granting an interlocutory appeal Of a denial Of a motion to dismiss would invite similar piecemeal appeals and is likely overall to be more inefficient than restricting review to final ALJ orders.²

    The Acting Assistant Secretary cited two decisions by the Secretary under the STAA as precedent for granting interlocutory review. But in Arnold v. Associated Sand and Gravel CO.. Inc., Case No. 92-STA-19, Sec'y. Dec. Jun. 16, 1992, the ALJ had issued

¹ The ALJ's order was entitled "Order Granting Prosecuting Party's Motion to File an Interlocutory Appeal with the Secretary of Labor," but it is clear from the text of the order that the ALJ only was granting a 60 day continuance. In fact, the ALJ "decline[d) to certify [the order denying reconsideration) for an interlocutory appeal . . .

² The Acting Assistant Secretary's arguments based on most efficient use of resources assume this case must be litigated on the merits, Acting Assistant Secretary's Petition for Interlocutory Review at 9, and implicitly assume that the petition would be successful in obtaining dismissal of this case. But the ALJ did not foreclose the possibility that after a hearing on the timeliness issue he might grant the motion to dismiss, and if the petition was not successful it clearly would be a less efficient use of the Secretary's time and resources to review this case twice.