U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

KARLENE PETITT,

COMPLAINANT,

v.

ARB CASE NO. 2022-0047

ALJ CASE NO. 2018-AIR-00041

DATE: September 26, 2022

DELTA AIRLINES, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Lee Seham, Esq. and Nicholas Granath, Esq.; Seham, Seham, Meltz &

Petersen, LLP; White Plains, New York

For the Respondent:

Ira G. Rosenstein, Esq. and Lincoln O. Bisbee, Esq.; Morgan, Lewis &

Bockius LLP; New York, New York

Before BURRELL, GODEK and PUST, Administrative Appeal Judges; BURRELL,

Administrative Appeals Judge, concurring

DECISION AND ORDER DENYING INTERLOCUTORY APPEAL

GODEK, Administrative Appeals Judge:

This case arises under the employee protection provisions of Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century (AIR 21), and its

implementing regulations.1 On March 29, 2022, the Administrative Review Board

1

49 U.S.C. § 42121, as implemented by the regulations at 29 C.F.R. Part 1979 (2021).

2

(Board) issued an Order of Remand in this case (under ARB No. 2021-0014).2 The

Board affirmed the Administrative Law Judge’s (ALJ) December 21, 2020 Decision

and Order Granting Relief (D. & O.) on the merits and the back pay award.

However, the Board vacated the ALJ’s award of front pay damages and

compensatory damages and remanded the case back to the ALJ for further

proceedings. The Board noted that Respondent did not challenge the ALJ’s Order to

publish the D. & O.3 On June 6, 2022, the ALJ issued an Order Granting

Complainant’s Motion to Direct Respondent to Publish and Post the Tribunal’s

December 21, 2020 Decision and Order (ALJ’s 2022 Order). On June 20, 2022, Delta

Airlines, Inc. (Respondent) filed a Petition for Review of the ALJ’s Publication

Order (interlocutory appeal), and Karlene Petitt (Complainant) responded with a

Motion to Dismiss. For the following reasons, we deny Respondent’s interlocutory

appeal.

BACKGROUND

On December 20, 2020, the ALJ issued a D. & O. granting relief under AIR

21, including front pay damages, back pay damages, compensatory damages, and

publication of the decision by Respondent. Specifically, the ALJ directed

Respondent to “deliver an electronic copy of the decision directly to all of its pilots

and managers in its flight operations department. Respondent also will prominently

post copies of the decision at every location where it posts other notices to

employees related to employment law (e.g., wage and hour, civil rights in

employment, age discrimination) for a period of 60 days.”4 (Hereinafter, this portion

of the December 20, 2020 D. & O. is referenced as the “2020 Publication Order”.)

Respondent timely appealed the entire D. & O. to the Board.

On March 29, 2022, the Board affirmed the ALJ’s decision on the merits and

the award of back pay damages. As relevant to the 2020 Publication Order, the

Board noted “Respondent did not challenge the ALJ’s order to publish the D. & O. to

pilots and managers in the flight operations department as well as to post copies of

the decisions at various locations.”5 The Board vacated the ALJ’s award of front pay

as legal error and the award of compensatory damages for lack of evidentiary

support and remanded the case to the ALJ for further proceedings.

Before the ALJ, on May 2, 2022, Complainant filed a Motion for an Order

Compelling Respondent’s Immediate Compliance with Tribunal’s Standing Order to

Petitt v. Delta Airlines, Inc., ARB Case No. 2021-0014, ALJ Case No. 2018-AIR00041 (ARB Mar. 29, 2022) (Order of Remand).

2

3

Id. at 20 n.104.

4

Id. at 112.

5

Id. at 20 n.104.

3

Deliver and Post Tribunal’s Decision Dated December 21, 2020. On May 6, 2022,

Respondent filed a response in opposition to Complainant’s motion and also filed a

Cross-Motion to Stay Enforcement of the Tribunal’s Decision Dated December 21,

2020, in light of the Board’s partial reversal of the decision and Respondent’s then

pending appeal to the Eleventh Circuit Court of Appeals.6

In the ALJ’s 2022 Order dated June 6, 2022, the ALJ rejected Respondent’s

request to stay publication. The ALJ directed Respondent to:

[P]ublish the Tribunal’s December 21, 2020 decision consistent with

guidance contained in that Decision and Order, and shall do so within

30 days of the date of this Order. Respondent is free to simultaneously

or subsequently publish, to the same extent as required in the

December 21, 2020 Decision and Order, the Board’s Order of Remand.7

The ALJ denied Respondent’s request for a stay, concluding that the appeal to the

Eleventh Circuit was interlocutory because the Board’s Order of Remand was not a

final decision and noting that Respondent would not be harmed absent a stay of

publication as the D. & O. is already a matter of public record.

On June 20, 2022, Respondent filed a petition for review of the ALJ’s 2022

Order. On June 23, 2022, Complainant filed a Motion to Dismiss, arguing that

Respondent’s petition constitutes an interlocutory appeal over which the Board

should not exercise jurisdiction.

On June 30, 2020, the Board accepted Respondent’s petition for review and

directed the parties to submit briefing in response to Complainant’s Motion to

Dismiss. The parties each filed timely briefs.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to review appeals

of ALJ decisions under AIR 21.8 This includes the discretion to consider

interlocutory appeals “in exceptional circumstances, provided such review is not

On May 6, 2022, Respondent filed a petition review of the Board’s Order of Remand

with the Eleventh Circuit Court of Appeals. On August 29, 2022, the Eleventh Circuit

dismissed the Respondent’s petition for review for lack of jurisdiction. Delta Air Lines, Inc.

v. U.S. Dep’t of Labor Admin. Review Bd., No. 22-11539-A (11th Cir. Aug. 29, 2022).

6

7

ALJ’s 2022 Order at 6.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

8

4

prohibited by statute.”9 Interlocutory appeals are generally disfavored given the

strong policy against piecemeal appeals.10

DISCUSSION

Respondent contends that the Board has jurisdiction in the present matter

because the ALJ’s 2022 Order is immediately appealable: (1) as an order granting

an injunction under 28 U.S.C § 1292(a)(1); (2) as a partial final order appealable

under Rule 54(b), Fed. R. Civ. P.; and/or (3) under the collateral order doctrine

recognized under 28 U.S.C § 1291. For the reasons explained below, we conclude

that the ALJ’s 2022 Order does not qualify as an order for injunctive relief under 28

U.S.C. § 1292(a)(1), is not an appealable partial final order, and is not a collateral

order that the Board may, or should in its discretion, review at this stage of the

proceedings.

1. Interlocutory Appeal of an Injunction

Under 28 U.S.C. § 1292(a)(1), federal appellate courts have jurisdiction over

direct appeals of “[i]nterlocutory orders . . . granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to dissolve or modify injunctions,

except where a direct review may be had in the Supreme Court.” Section 1292(a)(1)

is to be construed narrowly to directly limit interlocutory appeals of orders for

injunctive relief.11 On matters concerning interlocutory appeals, the Board follows

the practice of federal courts.12

9

Id.

See Turin v. AmTrust Fin. Servs., Inc., ARB No. 2017-0004, ALJ No. 2010-SOX00018, slip op. at 4 (ARB Apr. 20, 2017) (Decision and Order Dismissing Interlocutory

Appeal).

10

See Birmingham Fire Fighters Ass’n 117 v. Jefferson Cnty., 280 F.3d 1289, 1293

(11th Cir. 2002) (“The Supreme Court, this Court, and our sister circuits all have warned of

the dangers of piecemeal appeals and have emphasized that, to guard against this danger,

§ 1292(a)(1) must be construed narrowly so as to limit the availability of interlocutory

appeals in cases involving injunctions.”) (citing Switzerland Cheese Ass’n v. E. Horne’s Mkt.,

Inc., 385 U.S. 23, 24 (1966) (“[W]e approach this statute somewhat gingerly lest a floodgate

be opened that brings into the exception many pretrial orders.”)).

11

See Priddle v. United Airlines, Inc., ARB No. 2021-0064, ALJ No. 2020-AIR-00013,

slip op. at 5-6 (ARB Jan. 26, 2022) (Decision and Order Denying Interlocutory Appeal) (the

Board follows the Federal Rules of Appellate Procedure for treatment of interlocutory

appeals pursued under the collateral order doctrine).

12

5

“When a court ‘enjoins’ conduct, it issues an ‘injunction,’ which is a judicial

order that ‘tells someone what to do or not to do.’”13 An order for injunctive relief

“must be: (1) a clearly defined and understandable directive by the court to act or to

refrain from a particular action; and (2) enforceable through contempt, if

disobeyed.”14 In contrast, a court order that regulates the conduct of the litigation

“is not considered an injunction for purposes of appellate jurisdiction, even though

punishable by contempt.”15

Orders that specifically grant or deny injunctions are immediately appealable

under Section 1292(a)(1).16 Orders that do not specifically grant or deny injunctive

relief, but have the practical effect of doing so, may also be immediately appealable

via Section 1292(a)(1) under the “practical effects test,” which was first enunciated

in Carson v. American Brands, Inc.17 Carson’s practical effects test allows Section

1292(a)(1) appeals of orders that both: (1) have the practical effect of an injunction;

and (2) can be “‘effectually challenged only by immediate appeal’” because the

interlocutory order “‘might have a ‘serious, perhaps irreparable, consequence.’”18

The ALJ’s 2022 Order denied Respondent’s motion for a stay and directed

Respondent to “publish the Tribunal’s December 21, 2020 decision consistent with

guidance contained in that Decision and Order . . . within 30 days of the date

of this Order.”19 Although Respondent now asserts that the ALJ’s 2022 Order

specifically requires it to take action and thus constitutes an injunction, that

conclusion ignores both the continued existence and effect of the 2020 Publication

Order and the specific terms of the ALJ’s 2022 Order.

By its terms, the ALJ’s 2022 Order simply enforces its existing 2020

Publication Order.20 In and of itself, the ALJ’s 2022 Order does not “grant, continue,

Garland v. Aleman Gonzalez, 142 S. Ct. 2057, 2064 (2022) (quoting Nken v. Holder,

556 U.S. 418, 428 (2009)).

13

Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1128 (11th Cir. 2005); see also

Tims Hortons USA, Inc. v. Tims Milner LLC, 2020 WL 4577498, at *1 (11th Cir. 2020).

14

Gon v. First State Ins. Co., 871 F.2d 863, 865-66 (9th Cir. 1989); see also Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988).

15

16

See Edwards v. Prime, Inc., 602 F.3d 1276, 1290 (11th Cir. 2010).

17

450 U.S. 79, 83-84 (1981).

United States v. City of Hialeah, 140 F.3d 968, 974 (11th Cir. 1998) (quoting Carson,

450 U.S. at 84).

18

19

ALJ’s 2022 Order at 6 (emphasis added).

The Board makes no determination regarding whether the initial 2020 Publication

Order constitutes an order for injunctive relief because the 2020 Publication Order is not

the subject of Respondent’s current appeal.

20

6

modify, refuse, or dissolve” any new or different injunctive relief; it merely directs

Respondent to do what it had already been told to do over a year earlier. The 2020

Publication Order was issued as part of the D. & O., and following the Board’s

Order of Remand, the Complainant brought a motion to enforce pre-existing relief

as ordered in the D. & O. The ALJ’s 2022 Order did not reissue an injunction,

otherwise continue an expiring injunction21 or modify an existing injunction,22 as

Respondent has yet, to the Board’s knowledge, to publish the D. & O. in accordance

with the ALJ’s original directive to do so.

Orders denying relief from existing court directives are unappealable under

Section 1292(a)(1) unless the appealed order has altered the legal relationship

between the parties by “chang[ing] the command of [an] earlier injunction,

relax[ing] its prohibitions, or releas[ing] any respondent from its grip.”23 The ALJ’s

2022 Order granting Complainant’s motion did not alter the terms of the 2020

Publication Order in any manner adverse to Respondent. Therefore, the ALJ’s 2022

Order is not automatically appealable under the statutory terms of Section

1292(a)(1).

Courts have consistently held that rulings related to a motion to stay do not

qualify as injunctions under Section 1292(a)(1).24 A motion to stay “operates upon

the judicial proceeding itself,” . . . “either by halting or postponing some portion of

the proceeding, or by temporarily divesting an order of enforceability,”25 and so

resulting orders typically do not constitute injunctions giving rise to interlocutory

appeal.

Nor is the ALJ’s 2022 Order properly the subject of an interlocutory appeal

under Carson’s practical effects test applicable to Section 1292(a)(1) analysis. As set

Pub. Serv. Co. of Colorado v. Batt, 67 F.3d 234, 236-38 (9th Cir. 1995) (finding that

an order continues an injunction only if, without the subject order, the existing injunction

would dissolve on its own terms); see also In re Fugazy Express, Inc., 982 F.2d 769, 777-78

(2d Cir. 1992).

21

The ALJ’s 2022 Order allowed, but did not require, Respondent to also publish the

Board’s Order of Remand with the D. & O., assumedly to provide the recipients with more

complete information.

22

Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990), quoted in Birmingham Fire

Fighters Ass’n 117, 280 F.3d at 1292; see also United States v. Philip Morris USA Inc., 686

F.3d 839, 843-45 (D.C. Cir. 2012).

23

See e.g., Adams v. Georgia Gulf Corp., 237 F.3d 538, 541 (5th Cir. 2001) (“A denial of

a discretionary stay is not a final decision under the final judgment rule.”); Emiabata v.

Specialized Loan Servicing, 2018 WL 2984809 at *2 (W.D. Wash. June 14, 2018) (“Orders

granting or denying stays of legal proceedings are not automatically appealable under 28

U.S.C. § 1291[sic](a)(1).”).

24

25

Nken, 556 U.S. at 428.

7

forth above, the ALJ’s directive to publish already existed in the 2020 Publication

Order. Therefore, we find the 2022 Order did not have the “practical effect” of

requiring Respondent to do, or not to do, anything it was not already required to do.

Neither did the ALJ’s refusal to stay publication cause Respondent to suffer any

“serious, irreparable, consequences” given that the D. & O. is a public court order

currently available on the Department of Labor’s website.26

Thus, we also find the ALJ’s 2022 Order did not “grant, continue, modify,

refuse, or dissolve” an injunction nor have the practical effect of doing so. For these

reasons, we conclude the 2022 Order is not an appealable interlocutory order under

28 U.S.C. § 1292(a)(1).

2.

Partial Final Order Under Rule 54(b)

Respondent next argues that the ALJ’s 2022 Order is a “partial final order”

and thus appealable under Rule 54(b) of the Federal Rules of Civil Procedure. This

argument fails for two sufficient reasons: (1) the 2022 Order does not conclusively

resolve a claim for relief; and (2) the ALJ has not certified the 2022 Order as

deserving of interlocutory review under the rule.

Rule 54 provides as follows:

When an action presents more than one claim for relief . . . or when

multiple parties are involved, the court may direct entry of a final

judgment as to one or more, but fewer than all, claims or parties only if

the court expressly determines that there is no just reason for delay.

Otherwise, any order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and liabilities of fewer

than all the parties does not end the action as to any of the claims or

parties and may be revised at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and liabilities.

The Board has consistently cited to and followed the dictates of Rule 54(b) when

ruling upon appeals from orders which terminate less than all claims in a pending

matter.27

Available at

https://www.oalj.dol.gov/DECISIONS/ALJ/AIR/2018/PETITT_KARLENE_v_DELTA_AIR_L

INES_INC_2018AIR00041_(JUN_06_2022)_152859_ORDER_PD.PDF (last visited

September 22, 2022).

26

See, e.g., Johnson v. FedEx Ground Package Sys., Inc., ARB No. 2019-0024, ALJ No.

2018-STA-00028, slip op. at 2 n.3 (ARB July 22, 2020) (Decision and Order Dismissing

Interlocutory Appeal); Turin, ARB No. 2017-0004, slip op. at 4 n.16.

27

8

Those dictates are clear and establish only “a modest exception to the general

definition of finality.”28 First, the rule is only applicable to judgments that

conclusively extinguish one or more claims for relief but leave others unresolved.

“[A] final judgment resolves conclusively the substance of all claims, rights, and

liabilities of all parties to an action . . . it ‘ends the litigation on the merits and

leaves nothing more for the court to do but execute the judgment.’”29 This matter

includes only one claim for relief: violation of AIR 21. Therefore, we hold the Rule’s

requirement of multiple claims is not met.

Respondent glosses over this jurisdictional requirement by focusing on the

fact that the ALJ’s 2022 Order addresses one of many remedies requested:

publication of the D. & O. Contrary to Respondent’s apparent interpretation, the

term “claim for relief” is not synonymous with the term “remedy.” As “Rule 54(b)

requires multiple ‘claims for relief,’ the rule does not apply when a complaint seeks

multiple remedies for the violation of a single cause of action or theory of liability, as

those various forms of relief are not ‘claims’ within the meaning of Rule 54(b).”30

Likewise, Respondent ignores the fact that the ALJ did not certify the 2022

Order as deserving of interlocutory review. Rule 54(b) does not allow for the appeal

of “an otherwise non-final order” unless the court below “specifically: (1) enters

judgment and (2) finds there is no just reason for delay. . . .”31 Therefore, we

conclude Respondent’s attempt to obtain review of the ALJ’s 2022 Order under the

authority of Rule 54(b) is without merit.

Peden v. Stephens, 2022 WL 3714962, at *4 (11th Cir. Aug. 29, 2022) (internal

citations omitted).

28

Collar v. Abalux, Inc., 895 F.3d 1278, 1283 (11th Cir. 2018) (internal citations

omitted) (quoting Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000)).

29

Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 2015 WL

13680780, at *3 n.4 (D.D.C. Apr. 2, 2015) (emphasis in original) (citing Liberty Mut. Ins. Co.

v. Wetzel, 424 U.S. 737, 743 n.4 (1976)); see also Ariz. State Carpenters Pension Trust Fund

v. Miller, 938 F.2d 1038, 1040 (9th Cir. 1991); Sussex Drug Prods. v. Kanasco, Ltd., 920

F.2d 1150, 1155 (3d Cir. 1990)); Sonoma Cnty. Law Enforcement Ass’n v. Cnty. of Sonoma,

2009 WL 10700475, at *9 (N.D. Cal. May 18, 2009), aff’d 379 F. Appx. 658 (9th Cir. 2010).

30

Mwani v. Al-Qaeda, 2022 WL 1165911, at *8 (D.D.C. Apr. 20, 2022) (emphasis in

original).

31

9

3.

Collateral Order Doctrine

Under the authority of 28 U.S.C. § 1291, the Board has jurisdiction to review

“all final decisions.” Generally, a “final decision” terminates all claims pending in an

action.32 Clearly, the ALJ’s 2022 Order does not meet that test.

Even so, the ALJ’s 2022 Order may be reviewable under the collateral order

doctrine,33 a doorway through which the Board has jurisdiction to review “a narrow

class of decisions that do not terminate the litigation, but must, in the interest of

‘achieving a healthy legal system,’ nonetheless be treated as ‘final’” and thus

reviewable.34 The doorway is slim: “we must strictly construe the collateral order

exception to avoid the serious ‘hazard that piecemeal appeals will burden the

efficacious administration of justice and unnecessarily protract litigation.’”35 The

collateral order doctrine “accommodates a ‘small class’ of rulings, not concluding

litigation” but resolving claims separable from the action.36 “To come within the

‘small class’ of decisions excepted from the final-judgment rule by Cohen, the order

must [1] conclusively determine the disputed question, [2] resolve an important

issue completely separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment.”37 If the ALJ’s 2022 Order “fails to

Turin, ARB No. 2017-0004, slip op. at 2 n.5 (citing Elliott v. Archdiocese of New

York, 682 F.3d 213, 219 (3d Cir. 2012)).

32

See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The collateral order

doctrine “is best understood not as exception to the final decision rule laid down by

Congress in § 1291, but as a practical construction of it.” Will v. Hallock, 546 U.S. 345, 349

(2006) (internal quotation marks omitted).

33

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal

citations omitted).

34

Johnson v. Siemens Bldg. Techs., Inc., ARB No. 2007-0010, ALJ No. 2005-SOX00015, slip op. at 5 (ARB Jan. 19, 2007) (Final Decision and Order Denying Interlocutory

Appeal) (quoting Corrugated Container Antitrust Litig. Steering Comm. v. Mead Corp., 614

F.2d 958, 960 n.2 (5th Cir. 1980)); accord Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

106 (2009) (stressing that Cohen’s collateral order doctrine “must ‘never be allowed to

swallow the general rule that a party is entitled to a single appeal, to be deferred until final

judgment has been entered.’”) (quoting Digital Equip. Corp., 511 U.S. at 868).

35

36

Will, 546 U.S. at 349.

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978), overruled on other grounds

by Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017); see also Puerto Rico Aqueduct and

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45 (1993); Digital Equip. Corp., 511

U.S. at 868 (“we have also repeatedly stressed that the ‘narrow’ exception should stay that

way and never be allowed to swallow the general rule”); Will, 546 U.S. at 3450 (“we have

not mentioned applying the collateral order doctrine recently without emphasizing its

modest scope”); Mohawk Indus., Inc., 558 U.S. at 106-07.

37

10

satisfy any one of these requirements, it is not appealable under the collateral-order

exception to § 1291.”38

Without making an ultimate determination, we acknowledge it is plausible

that the ALJ’s 2022 Order satisfies two of the three requirements for review under

the collateral order doctrine. The 2022 Order appears to conclusively determine that

Respondent should abide by the D. & O.’s 2020 Publication Order, though this same

determination was made in the 2020 Publication Order itself. Perhaps more

persuasive is Respondent’s attempt to establish the third element by asserting that

publication of the D. & O. as directed may be effectively unreviewable on appeal

because it is unlikely that any order post-publication could ultimately “cure” any

legal issue raised on appeal relevant to the directive.39 For purposes of this order,

the Board will assume, without finding, that elements one and three could be

established.

We do not need to resolve this issue here because we specifically find that the

ALJ’s 2022 Order does not satisfy the second requirement: “resolv[ing] an important

issue completely separate from the merits.” First, Respondent has failed to establish

that the ALJ’s 2022 Order addresses “an important issue” at all. The D. & O. is

already a matter of public record, and, as such, requiring the Respondent to

republish it to certain individuals lacks the gravitas of most matters raised through

the collateral order doctrine. In addition, the ALJ’s 2022 Order simply enforces a

standing directive that has existed since the ALJ’s publication of the D. & O. in

December of 2020. The 2022 Order is redundant of the ALJ’s earlier D. & O.’s

ordering the remedy of publication; it is in no way “completely separate from the

merits of the action.” Publication of the D. & O. is identical to publicizing the ALJ’s

determination already affirmed by the Board: that Respondent violated required

employee protections under AIR 21. The ALJ’s 2022 Order does not address or

settle any other pending issue. Accordingly, we find that the ALJ’s 2022 Order does

not resolve an “important issue completely separate from the merits of the action”40

Gulfstream Aerospace Corp., 485 U.S. at 276; see also Kossen v. Empire Airlines,

ARB No. 2021-0017, ALJ No. 2019-AIR-00022, slip op. at 2 (ARB Feb. 25, 2021) (Order

Denying Interlocutory Appeal).

38

As the concurrence suggests, this element may also be unmet. See Managed Care

Advisory Grp., LLC v. United Healthcare of N. Carolina, 2022 WL 792267, at *3–4 (11th

Cir. Mar. 16, 2022) (the circuit court finding that an order to participate in arbitration was

found to be adequately reviewable on appeal, thus not qualifying as an appealable collateral

order).

39

With respect, we question the basis by which the concurrence relies on an argument

not raised by Respondent to the ALJ in opposing Complainant’s motion, which resulted in

the ALJ’s 2022 Order, in suggesting that this element of the collateral order doctrine has

been established. While the cited Yates decision may have been correctly decided on the

facts before the ARB, it does not contain any detailed analysis of the term “abate” as used

40