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:

RODNEY GLOSS,

COMPLAINANT,

v.

ARB CASE NO. 2022-0054

ALJ CASE NO. 2020-CAA-00008

DATE: September 20, 2022

TATA CHEMICALS NORTH

AMERICA,

RESPONDENT.

Appearances:

For the Respondent:

Ronald W. Taylor, Esq.; Venable LLP; Baltimore, Maryland; Michael

J. Volpe, Esq. and Teresa M. Biviano, Esq.; Venable LLP; New York,

New York

For the Complainant:

Rodney Gloss; pro se; Loveland, Colorado

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL

and PUST, Administrative Appeals Judges

ORDER DISMISSING INTERLOCUTORY APPEAL

HARTHILL, Chief Administrative Appeals Judge:

On October 25, 2019, Rodney Gloss (Complainant) filed a complaint with the

Occupational Safety and Health Administration (OSHA), alleging that Tata

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Chemicals North America (Respondent) unlawfully retaliated against him under

the whistleblower protection provision of the Clean Air Act (CAA), 42 U.S.C. § 7622.

After OSHA dismissed the complaint, Complainant requested a hearing with a

Department of Labor Administrative Law Judge (ALJ). Complainant later amended

his complaint to add a claim under the whistleblower protection provision of the

Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A.

On July 15, 2022, the ALJ issued an Order Granting in Part and Denying in

Part Respondent’s Motion for Summary Decision on Complainant’s claims. The ALJ

granted summary decision on Complainant’s claim under the SOX and the claims of

retaliatory bonus reduction, hostile work environment, and post-termination

harassment under the CAA but denied summary decision for Complainant’s claim

of retaliatory termination and denial of severance under the CAA. On August 1,

2022, Complainant filed a petition for review of the ALJ’s order with the

Administrative Review Board (Board). Because the ALJ has not yet issued a

decision fully disposing of all claims in Complainant’s complaint, the petition is for

interlocutory review (i.e., review of a non-final decision). 1 The 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 in stages

before the final order. 2 On August 18, 2022, the Board issued an Order to Show

Cause why the appeal should not be dismissed. The parties submitted briefs in

response.

The Board’s delegated authority includes the consideration and disposition of

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

prohibited by statute.” 3 When a party seeks interlocutory review of an ALJ’s nonfinal order, the Board has elected to look to the interlocutory review procedures

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

op. at 2 (ARB Sept. 11, 2012). Respondent states that the ALJ held a two-day hearing on

the remaining claims ending on August 12, 2022, and that closing briefs are due in

November 2022. Respondent’s Opposition Brief at 2; Order Rescheduling Hearing (ALJ

Apr. 21, 2022).

1

See e.g., Gunther, ARB Nos. 2012-0097, -0099, slip op. at 2 (citing Carter v. B & W

Nuclear Techs., Inc., ALJ No. 1994-ERA-00013 (Sec’y Sept. 28, 1994)).

2

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

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).

3

3

providing for certification of issues involving a controlling question of law as set

forth in 28 U.S.C. § 1292(b). 4

The first step in the interlocutory appeal process is to have the ALJ certify

the interlocutory issue for appellate review as provided in 28 U.S.C. § 1292(b). 5

Complainant did not ask the ALJ to certify this case for appeal. However, if a party

has failed to obtain interlocutory certification, the Board may still consider

reviewing an interlocutory order that meets the “collateral order” exception, which

applies if the appealed decision belongs to that “small class [of decisions] which

finally determine claims of right separable from, and collateral to, rights asserted in

the action, too important to be denied review and too independent of the cause itself

to require that appellate consideration be deferred until the whole case is

adjudicated.” 6 To fall within the “collateral order” exception first recognized in

Cohen 7, the order appealed must “conclusively determine the disputed question,

resolve an important issue completely separate from the merits of the action, and be

effectively unreviewable on appeal from a final judgment.” 8 This exception is

“strictly construe[d]” to avoid “unnecessarily protracte[d] litigation.” 9 If the ALJ’s

Order “fails to satisfy any one of these requirements, it is not appealable under the

collateral-order exception to § 1291.” 10

In his appeal of the ALJ’s order, Complainant presents several issues, which

he argues are separate and collateral from the remaining claims before the ALJ. 11

Powers v. Pinnacle Airlines, Inc., ARB No. 2005-0138, ALJ No. 2005-SOX-00065, slip

op. at 5-6 (ARB Oct. 31, 2005).

4

Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ No. 2019-SOX-00012, slip

op. at 4 (ARB Jan. 28, 2020).

5

6

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

7

Id.

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

op. at 7 (ARB Jan. 26, 2022).

8

9

Id.

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988); Kossen v.

Empire Airlines, ARB Case No. 2021-0017, ALJ Case No. 2019-AIR-00022, slip op. at 2

(ARB Feb. 25, 2021).

10

Complainant argues that his “SOX claims are separable from and collateral to the

rights afforded under the CAA” and “CAA-denied-elements are separable from and

collateral to rights that remained to be adjudicated.” Complainant’s Response to Order to

Show Cause at 2. Complainant appears to misunderstand the second prong of the Cohen

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4

First, he argues that the ALJ incorrectly found that some of his CAA claims were

untimely and contends that equitable modification applies even if they were

untimely. Second, he contests the ALJ’s decision that there was no genuine issue of

material fact that Respondent subjected him to a hostile work environment. Third,

he argues that the ALJ erred in concluding that the SOX’s whistleblower protection

provision did not apply to Respondent. Last, he contests the ALJ’s decision that

there was no genuine issue of material fact that Complainant engaged in an activity

protected by the SOX. These are all orders that resolve the majority of

Complainant’s central claims and are not separate from the merits of the action,

rather, they are squarely on the merits. 12 Thus, the ALJ’s Order does not satisfy the

second Cohen factor.

The ALJ’s order also fails to satisfy the third Cohen factor because the claims

that Complainant identifies for review are all fully reviewable upon appeal of the

final decision of the ALJ. Complainant argues that these issues will be

unreviewable on appeal from a final decision by the ALJ because the merits of the

SOX claims were not permitted to be presented in the two-day hearing conducted by

the ALJ on the remaining claims in August. However, we discern no reason why the

Board could not review the ALJ’s decision to grant summary decision on these

claims after the ALJ issues a final post-hearing decision on the remaining claims of

retaliatory termination and denial of severance under the CAA.

Therefore, because the ALJ’s grant of summary decision in part on the SOX

and CAA claims does not satisfy the second and third Cohen factors, the order does

not fall within the collateral order exception.

test, which requires that the issue be separate from the merits of the action (i.e., collateral),

not that the decided claims be severable from any remaining claims.

See Adm’r, Wage and Hour Div. v. Ten West Cattle, Inc., ARB No. 2020-0059, ALJ

No. 2018-TAE-00035, slip op. at 4 (ARB Sept. 14, 2020); Fla. Wildlife Fed’n, Inc. v. Adm’r,

U.S. E.P.A., 737 F.3d 689, 693 (11th Cir. 2013) (“[B]ecause the District Court’s order, far

from being collateral, resolves a majority of the central claims in this case . . ., it is squarely

on the merits.”).

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