ARB CASE NO. 99-097
ALJ CASE NO. 99-ERA-17
DATE: September 16, 1999
In the Matter of:
SYED M. A. HASAN,
COMPLAINANT
v.
COMMONWEALTH EDISON CO.,
AND THE ESTES GROUP, INC.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainants:
Syed M. A. Hasan, Madison, Alabama, pro
se
For the Respondents:
Donn C. Meindertsma, Esq., Winston & Strawn,
Washington, D.C. Burr Anderson, Esq., Anderson & Thomas, Chicago,
Illinois
ORDER DENYING INTERLOCUTORY APPEAL
Complainant Syed M.A. Hasan filed an "Emergency Motion"
to reverse the Administrative Law Judge's order granting a change of location for the
administrative hearing from Huntsville, Alabama, to Chicago, Illinois, in this case arising under
[Page 2]
the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42
U.S.C. §5851 (1994). The Administrative Law Judge ("ALJ") originally set
the hearing in this matter for Huntsville, Alabama, which is within 75 miles of Hasan's
residence in Madison, Alabama. See 29 C.F.R. §24.6(c). However, upon
reconsideration, the ALJ concluded that:
[i]n weighing the convenience of all parties and witnesses, it is
my opinion that this hearing can most expeditiously be heard and
will cause less inconvenience for the greatest number of persons
involved if tried in Chicago, Illinois. Any inconvenience to
Complainant is overridden by the fact that [Respondent
Commonwealth Edison] has offered to pay for Complainant's air
fare to and from Chicago, Illinois, for the hearing, provide him
with lodging while there and pay a per diem of $25 per day.
ALJ Order Granting ComEd's Motion for Reconsideration and Order Granting Change of
Venue at 2-3.
Hasan's motion is in effect an interlocutory appeal of the ALJ's Order
Granting Change of Venue. The Secretary and the Administrative Review Board have held
many times that interlocutory appeals are generally disfavored and that there is a strong policy
against piecemeal appeals. Carter v. B & W Nuclear Technologies, Inc., Case No. 94-
ERA-13, Sec'y Order Sept. 28, 1994, slip op. at 3-4, and cases discussed therein; Allen v.
EG&G Defense Materials, Inc., ARB Case No. 98-073, ALJ Case No. 1997 SWD 8 &
10, ARB Order Sept. 28, 1998. The Board should be particularly chary of interfering with an
ALJ's control over the time, place and course of a hearing, but rather should support the sound
exercise of an ALJ's broad discretion in this area. See 29 C.F.R. §24.6(c); 29
C.F.R. §18.27(c) (1996).
Accordingly, Hasan's motion to set aside the ALJ's order granting a
change of hearing location is DENIED.
SO ORDERED.
PAUL
GREENBERG Chair
CYNTHIA L.
ATTWOOD Member
E. Cooper Brown, Member, Concurring:
I concur with the majority's opinion, as Mr. Hasan's "Emergency
Motion" is effectively an interlocutory appeal seeking Board review of the ALJ's
determination regarding the location of the hearing. Such appeals, as the majority notes,
generally are disfavored. For this Board member to have been convinced that the necessary
threshold had been met for Board review of the merits of Hasan's appeal, it would have been
helpful if he first had sought and obtained the ALJ's certification for interlocutory appeal of
the question of law presented, as allowed under 29 C.F.R. §18.29(a). See Porter
v. Brown & Root, 91-ERA-4 (Sec'y Order to Show Cause, Sept. 29, 1993); Plumley
v. Federal Bureau of Prisons, 86-CAA-6 (Sec'y Order Denying Interlocutory Appeal,
Apr. 29, 1987).