ORDER GRANTNG RESPONDENT'S REQUESTFOR CERTIFICATION AND STAYING HEARING
On May 5, 2003, I issued an Order Denying Respondent's Motion to Dismiss for lack of subject matter jurisdiction. Specifically, Complainant failed to serve Exelon with a copy of his hearing request as provided by the regulations at 29 C.F.R. § 24.4(d)(3). I explained my reasons in said Order for denying Respondent's Motion to Dismiss stating, among other things, that nowhere in the regulations does it provide for dismissal of a party's case for failure to serve the other side. I felt that under the circumstances, dismissal was too harsh a result for a pro se claimant. However, my decision was contrary to the opinions and/or decisions made by two other administrative law judges in Webb v. Numanco, LLC, No. 98-ERA-27 (RD July 17, 1998) and Cruver v. Burns International, No. 01-ERA-31 (RDO December 5, 2001).
On May 19, 2003, Respondent filed a Motion for Certification of my May 5th Order pursuant to 28 USC § 1292(b), asking that the issue of subject matter jurisdiction be certified as a controlling question of law so that Respondent may file an interlocutory appeal to the Administrative Review Board (ARB). Respondent filed a brief in support of the request and Complainant responded by letter received by me on May 29, 2003.
Respondent argues that my May 5, 2003 Order denying Exelon's Motion to Dismiss presents a question that is appropriate for certification for interlocutory appeal per 28 USC § 1292(b); the question raised is a "controlling question of law." Respondent frames the issue as follows: "whether the Complainant's total failure to comply, or even attempt to comply, with the appeal notification requirement fails to satisfy non-discretionary appeal procedures, and so deprives the OALJ of jurisdiction because the OSHA order has become the final order of the Secretary. This is a question of law to be determined by the Board." Respondent's Motion for Certification at 5.
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The Respondent also correctly states that my May 5, 2003 Order expressly recognized contrary decisions on the same issue in other cases arising under the same statute. The May 5th Order is contrary to those decisions in Webb v. Numanco, supra. and Cruver v. Burns International, supra.
While the Complainant objects to the Respondent's Motion for Certification by letter received May 29, 2003, Complainant fails to address the relevant issue.
The ARB has decided that administrative law judges (ALJ) have the authority to certify questions of law for appeal and that a party seeking review of an interlocutory order is to request certification by the ALJ for review of the order. E.g., Puckett v. Tennessee Valley Authority, No. 2002-ERA-15, op. at 2-3 (Board, Sept. 26, 2002). The Board has stated that review of interlocutory orders should proceed in accordance with 28 U.S.C. § 1292(b), which governs certification of interlocutory appeals by federal district courts. Id. at 2, n.3. See also Hasan v. J.A. Jones Mgmt. Serv., No. 2002-ERA-18, op. at 2 (Board, July 16, 2002): "[W]here an ...ALJ has issued an order of which the party seeks interlocutory review, an appropriate action would be for the ALJ to follow the procedure established in 28 U.S.C. § 1292(b) for certifying interlocutory questions for appeal." (citing Plumley v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y, Apr. 29, 1987)).
I find that the Respondent has presented a persuasive basis to assert interlocutory jurisdiction in this case because it has demonstrated that certification of this jurisdictional issue involves a controlling question of law as to which there is a substantial ground for difference of opinion and immediate appeal of the issue will materially advance the ultimate termination of the litigation, as required by 28 USC § 1292(b).1
1 Pursuant to 28 U.S.C. § 1292(b), Respondent shall have ten days after the entry of this Order to make application for an appeal to the Administrative Review Board.
