For the Complainant:
Edward A. Slavin, Jr., Esq., St. Augustine, Florida
For the Respondent:
Dillis D. Freeman, Jr., Esq., Linda J. Sales-Long, Esq., Thomas F. Fine, Esq.,
Maureen H. Dunn, Tennessee Valley Authority, Knoxville, Tennessee
FINAL ORDER DENYING INTERLOCUTORY APPEAL
Background
Petitioner Terry O. Puckett has filed a complaint against Respondent Tennessee Valley Authority ("TVA") alleging that Respondent retaliated against him in violation of the whistleblower protection provisions of the Energy Reorganization Act, 42 U.S.C.A. § 5851 (West 1995); Clean Air Act, 42 U.S.C.A. § 7622 (West 1995); Federal Water Pollution Control Act, 33 U.S.C.A. § 1367 (West 2001); Safe Drinking Water Act, 42 U.S.C.A. § 300(j)-9(i) (West 1991); Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995); and Toxic Substances Control Act, 15 U.S.C.A. § 2622 (West 1998). On April 19, 2002, Puckett filed an "Interlocutory Appeal and Motion for Stay of Orders" ("Interlocutory Appeal") with the Administrative Review Board ("Board") requesting the Board to review an Administrative Law Judge's discovery orders and to stay "every single one" of the Administrative Law Judge's orders. Interlocutory Appeal and Motion for Stay of Orders at 1. Respondents filed a response to Puckett's Interlocutory Appeal arguing that the Board should dismiss the appeal. Response to Complainant's Interlocutory Appeal and Motion to Stay Order. As explained below, we dismiss Puckett's interlocutory appeal.
[Page 2]
On May 2, 2002, the Board issued an order requiring Puckett to show cause why the Board should not dismiss his interlocutory appeal. The order permitted TVA to file a reply to Puckett's response to the order.
On May 20, 2002, the Board received Puckett's response to the show cause order. Shortly thereafter, TVA filed a Motion to Strike Puckett's brief "on the grounds that Complainant's response contains scandalous, disparaging, and impertinent remarks about" the ALJ. Motion to Strike at 1. TVA also filed a reply to Puckett's response to the order to show cause and the Declaration of Linda J. Sales-Long. In response, Puckett filed a Motion to Strike TVA Filing, to which TVA filed a response. Finally, Terry Puckett, apparently without the assistance of his attorney, filed a letter with the Board, to which TVA filed a response and motion to strike.
Issue Presented
Whether the Board should dismiss Puckett's petition for review as an impermissible interlocutory appeal.
Discussion
The procedures for litigation and administrative review of whistleblower complaints under the environmental statutes at issue here are found in 29 C.F.R. Part 24. These rules provide for review of an ALJ's recommended decision and order only; they do not provide for review of an ALJ's interlocutory order issued in the course of an administrative hearing. Plumley v. Federal Bureau of Prisons, 86-CAA-6, slip op. at 2. (Sec'y April 29, 1987). In considering the appropriate procedure to follow in determining whether to entertain interlocutory appeals, the Secretary of Labor concluded that "[t]o the extent any situation is not provided for in [29 C.F.R. Part 24], the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18 . . . , and the Federal Rules of Civil Procedure apply." Id. Turning to 29 C.F.R. Part 18 for guidance, the Secretary noted that 29 C.F.R. § 18.29(a), permits administrative law judges to "‘take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts . . ..'" Id. The Secretary determined that in cases in which a party seeks interlocutory review of an administrative law judge's order, an appropriate action would be for the judge to follow the procedure established in 28 U.S.C.A. § 1292(b)(West 1993)2 for certifying interlocutory questions for appeal from federal district courts to appellate courts. Id. In Plumley, the Secretary ultimately concluded that because no judge had certified the questions of law raised by the respondent in his interlocutory appeal as provided in 28 U.S.C.A. § 1292(b), "an appeal from an interlocutory order such as this may not be taken." (citations omitted).
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If Puckett believes that the ALJ's discovery orders constituted an abuse of discretion that prejudiced his case, he may so argue upon appeal, if and at such time as, the ALJ issues a recommended decision and order denying his claim. Accordingly, as Puckett has not demonstrated a basis for departing from our strong policy against interlocutory appeals, we decline his invitation to do so in this case.
As indicated above, the parties filed a number of motions after we issued our order to show cause in this case. We dispose of them here. TVA's Motion to Strike Puckett's brief is DENIED. While we share TVA's concern that parties, at the very least "comply with the most basic elements of decorum required of a legal professional," Motion to Strike at 4, we find that Puckett's argument in this case, while clearly on the razor's edge of acceptability, is not quite of the same degree of "immaterial, offensive excoriation" for which we sanctioned Puckett's counsel in Pickett v. TVA, ARB No. 00-076, ALJ No. 99-CAA-25 (ARB Nov. 2, 2000). However, we reiterate that unsupported, gratuitous, disparagement of an ALJ's integrity and ability does not serve the interests of counsel's clients. Id. at 2. As we stated in Pickett, slip op. at 2, "‘the use of odiums, sarcasm, and vituperative remarks have no place in a brief and are wholly unwarranted. Frankly, resort to the use of such statement is an indication of a lack of confidence in the law and the facts to support the position of the one using them.'" quoting, State ex rel. Dyer v. Union Electric Co., 312 S.W.2d 151, 154 (Mo. Ct. App. 1958).
We also DENY Puckett's motion to strike TVA's filing. We note that while Puckett has moved to strike Sales-Long's sworn statement concerning the ALJ's April 19, 2002 teleconference, Puckett's petition for review and response to our show cause order are replete with unsworn "testimony" regarding the same teleconference. See e.g., Interlocutory Appeal and Motion for Stay of Orders at 1-3, Complainant's Response to Order to Show Cause and Request for Oral Argument on his Interlocutory Appeal at 3, 4, 9, 11, 13, 16, 18-20, 22, 25, 30, 34. In any event, neither Sales-Long's sworn statement, nor Puckett's counsel's unsworn testimony is relevant to our disposition of this case. Accordingly, we DENY Puckett's motion to strike as moot.
Finally, we DENY TVA's motion to strike Puckett's personal letter. While as TVA asserts, a party represented by counsel should communicate with the Board through such counsel, we consider this letter to be only a simple request that we expedite our decision, and therefore it was not considered in determining the merits of this case.
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Conclusion
Puckett's interlocutory appeal does not fall within the collateral order exception to the finality rule. Accordingly, we DISMISS Puckett's petition for review.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
JUDITH S. BOGGS
Administrative Appeals Judge
[ENDNOTES]
1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19, 978 § 5 (May 3, 1996).
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C.A. § 1292(b) (West 1993).
3 Complainant's Response to Order to Show Cause and Request for Oral Argument on his Interlocutory Appeal at 28.
4 In accordance with Judge Clark's dissent, the Second Circuit, en banc¸ subsequently reversed Peter Pan Fabrics, Inc.Chappell & Co. v. Frankel, 367 F.2d 197, 200 (1996).