Marusak v. Burlington Northern Santa Fe Railway (BNSF) (agency decision, May 11, 2021)

Plain-English summary

Chad Marusak sought Board review of an interlocutory issue in his Federal Railroad Safety Act case against BNSF and Sema Construction. The Board ordered him to explain why it should hear the appeal before a final ALJ decision and warned that failure to respond could lead to dismissal. Marusak filed two other documents, but neither addressed the order or showed that the appeal qualified for the collateral-order exception. The Board dismissed the interlocutory appeal. It noted that Marusak could appeal again after the ALJ issued a final decision.

Decision snapshot

• Cited authority: 49 U.S.C. § 20109
• Outcome: Interlocutory appeal dismissed; underlying case remained before the ALJ.
• Key point: A party seeking immediate review must respond to the Board's show-cause order and establish a basis for interlocutory jurisdiction.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

 IN THE MATTER OF:


 CHAD MARUSAK,                                  ARB CASE NO. 2021-0010

              COMPLAINANT,                      ALJ CASE NO. 2020-FRS-00038

                                                DATE: May 11, 2021

       v.

 BURLINGTON NORTHERN SANTA FE
 RAILWAY CO. (BNSF) and SEMA
 CONSTRUCTION, INC. (SEMA)

              RESPONDENTS.

 Before: James D. McGinley, Chief Administrative Appeals Judge, and
 Thomas H. Burrell, Administrative Appeals Judge


               ORDER DISMISSING INTERLOCUTORY APPEAL

        PER CURIAM. On April 13, 2021, the Administrative Review Board issued an
 Order to Show Cause based on Complainant Chad Marusak’s petition for review
 arising out of his FRSA claim.1 Under the terms of the Order, Complainant was to
 show cause why the Board should not dismiss his interlocutory appeal no later than
 April 27, 2021. The Board cautioned Complainant that if he failed to timely file his
 response to the Order, the Board could dismiss the appeal without further order.

       Complainant did not file a response to the Board’s order. Since the time of the
 Order, Complainant has filed two other documents that are non-responsive to the
 Board’s order. Given Complainant’s pro se status, we thoroughly reviewed both
 documents to determine whether they were in response to the Board’s Order to

 1      49 U.S.C. § 20109 (2008), as implemented by federal regulations at 29 C.F.R. Part
 1982 (2020) and 29 C.F.R. Part 18, Subpart A (2020).
                                      2

Show Cause. However, upon review, neither document explained why the Board should not dismiss the interlocutory appeal or demonstrate why the appeal fell within the collateral exception for the Board to entertain an interlocutory issue.

   Complainant did not respond to the Board’s Show Cause Order. Accordingly,

because he has failed to show cause on why the Board should entertain his interlocutory appeal, we DISMISS his appeal.2

  SO ORDERED.

2 The Board notes that Complainant may appeal again after the Department of Labor Administrative Law Judge (ALJ) issues the final ALJ decision in this matter.