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:

ANDREW WYDERKA,

COMPLAINANT,

ARB CASE NO. 2025-0033

ALJ CASE NO. 2023-PSI-00001

ALJ WILLOW EDEN FORT

v.

DATE: February 24, 2025

ENERGY TRANSFER d/b/a SUNOCO

LOGISTICS,

RESPONDENT.

Before WARREN, Administrative Appeals Judge, and ROLFE,

Administrative Appeals Judge

DECISION AND ORDER DENYING INTERLOCUTORY APPEAL

PER CURIAM:

This matter arises under the Pipeline Safety Improvement Act of 2002 (PSIA)

and its implementing regulations.1 While this case was pending before

Administrative Law Judge (ALJ) Willow Eden Fort, Energy Transfer (Respondent)

filed a Motion to Dismiss, alleging that the ALJ lacked subject-matter jurisdiction

under SEC v. Jarkesy.2 On January 15, 2025, the ALJ denied Respondent’s Motion

to Dismiss. On January 31, 2025, Respondent filed a Petition for Interlocutory

Review requesting that the Administrative Review Board (Board) review the ALJ’s

denial of Respondent’s Motion to Dismiss. On February 11, 2025, the ALJ certified,

at Respondent’s request, the “issue of whether Respondent is entitled to a jury trial

1

49 U.S.C. § 60129; 29 C.F.R. Part 1981 (2024).

2

603 U.S. 109 (2024).

2

under the Seventh Amendment.”3 Subsequently Respondent moved to amend its

Petition for Interlocutory Review.

Pursuant to the authority delegated by the Secretary of Labor, the Board has

“the discretionary authority to review interlocutory rulings in exceptional

circumstances, provided such review is not prohibited by statute.”4 When

determining whether to accept an interlocutory appeal, the Board follows the

procedures described in 28 U.S.C. § 1292(b).5 Consideration of requests for

interlocutory review is essentially a two-step process: (1) the ALJ must certify that

the interlocutory 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,” and (2)

when those elements are met, the Board then exercises its unfettered discretion in

deciding whether to accept or reject the petition for review.6

Respondent contends that, as required for interlocutory review, there is a

controlling question of law as to which there is substantial ground for difference of

opinion because “jurisdiction is always a controlling question of law.”7 Even if we

were to accept this contention, the Board’s authority to hear interlocutory appeals

remains entirely discretionary.8 And even assuming -- without deciding -Respondent’s appeal meets the § 1292(b) criteria, the nature of several of

Respondent’s arguments compels us not to exercise our discretion to suspend the

proceedings below and accept the appeal at this time.

Order Granting Respondent’s Expedited Motion for Order Permitting Appeal of

Interlocutory Order at 4.

3

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

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

4

Berg v. Nicholas Servs., LLC, ARB No. 2025-0027, ALJ No. 2023-AIR-00012, slip op.

at 2 (ARB Jan. 31, 2025) (citing Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ

No. 2019-SOX-00012, slip op. at 3-4 (ARB Jan. 28, 2020)).

5

See Fagan v. Dep’t of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001, slip

op. at 6 (ARB Apr. 6, 2023).

6

7

Motion for Leave to Amend Respondent’s Petition for Interlocutory Review at 2.

See, e.g., Berg, ARB No. 2025-0027, slip op. at 3 (recognizing that that the Board

exercises “unfettered discretion in deciding whether to accept or reject” a petition for

interlocutory review.”); Fagan, ARB No. 2023-0006, slip op. at 6 (recognizing that the

Board’s decision of whether to exercise its discretion to hear an interlocutory appeal is a

prudential matter).

8

3

Before the ALJ, Respondent challenged the facial constitutionality of both the

PSIA and the Department’s regulations governing whistleblower proceedings.

Respondent, for example, argued the PSIA itself is unconstitutional because it

allows complainants, but not respondents, to kickout to federal district court in

violation of the nondelegation doctrine.9 Respondent likewise argued Complainant’s

claims are legal in nature and involve private rights, such that the Seventh

Amendment and Article III of the Constitution require them to be tried in district

court before a jury -- and the Department’s regulations do not include a right to a

jury trial.10

Even if we ultimately agreed with Respondents -- although we categorically

do not reach the merits of Respondent’s arguments in denying this petition at this

time -- the Board would not appear to have the authority provide a remedy for these

challenges. In a recent decision, we clarified that although the Board may consider

as applied constitutional challenges, the Board “may not [ ] consider facial

challenges to the ‘legality of a regulatory provision or the constitutionality of a

statutory provision[.]’”11 Indeed, the Board has long held it does not have the power

to pass on the constitutional validity of the statutes and regulations it

administers.12 And the plain language of the Secretary’s delegation of authority

confirms as much: “[t]he Board shall not have jurisdiction to pass on the validity of

any portion of the Code of Federal Regulations that has been duly promulgated by

the Department of Labor[.]”13

This limitation on the Board’s authority to pass on the facial constitutionality

of the statues and regulations it administers, and the broader prohibition against

ruling on the validity of the Department’s appropriately promulgated regulations,

9

Motion to Dismiss for Lack of Subject-Matter Jurisdiction at 15-16.

10

Id. at 4-5.

Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Next Level Sec. Serv., LLC, ARB No.

2024-0028, ALJ No. 2021-FLS-00009, slip op. at 6 n.27 (ARB July 31, 2024).

11

See, e.g., Minthorne v. Virginia, ARB No. 2009-0098, ALJ Nos. 2009-CAA-00004, 00006, slip op. at 8-9 (ARB July 19, 2011) (observing that “it would be inappropriate for the

ARB to pass upon the constitutionality of the [Clean Air Act]. Thus we will presume the

constitutionality of the act[.]”); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Overdevest

Nurseries, L.P., ARB No. 2016-0027, ALJ No. 2015-TAE-00008, slip op. at 15 (ARB Mar. 15,

2018) (recognizing that a challenge to the validity of a regulation “is not properly before the

Board.”).

12

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

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

13

4

persuades us this is not the truly exceptional case that warrants ignoring our

general practice not to accept piecemeal appeals and to reserve judgment on these

issues until (and if) they reach us through the normal course of litigation.14

Accordingly, we GRANT Respondent’s Motion for Leave to Amend and

DENY Respondent’s Petition for Interlocutory Review.

SO ORDERED.

____________________________________

IVEY S. WARREN

Administrative Appeals Judge

_____________________________________

JONATHAN ROLFE

Administrative Appeals Judge

See Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049,

slip op. at 2 (ARB Sept. 11, 2012) (“[T]he Secretary of Labor and the Board have held many

times that interlocutory appeals are generally disfavored and that there is a strong policy

against piecemeal appeals.”) (citations omitted).

14