Kossen v. Empire Airlines (agency decision, May 12, 2021)

Plain-English summary

Darren Kossen asked the Administrative Review Board to review an ALJ's denial of reconsideration in his AIR21 case against Empire Airlines. The Board treated his filing as a request for interlocutory review of the ALJ's refusal to recuse. Kossen alleged bias because the judge had ruled against him in an earlier case and because the judge's son worked for an airline. The Board explained that interlocutory appeals are disfavored, require exceptional circumstances, and ordinarily begin with ALJ certification unless the strict collateral-order test applies. It held that the recusal allegations did not establish exceptional circumstances and denied immediate review.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 28 U.S.C. § 1292(b)
• Outcome: Interlocutory review denied; the underlying AIR21 proceeding remained before the ALJ.
• Key point: A prior adverse ruling and a judge's family member working in the same broad industry did not establish grounds for recusal or exceptional interlocutory review.

Full text (DOL official public release)

                                    Administrative Review Board

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

In the Matter of:

DARREN KOSSEN, ARB CASE NO. 2021-0033

            COMPLAINANT,                         ALJ CASE NO. 2019-AIR-00022

     v.                                          DATE: May 12, 2021

EMPIRE AIRLINES,

            RESPONDENT.

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

               ORDER DENYING INTERLOCUTORY APPEAL

      PER CURIAM. Complainant Darren Kossen has filed a Notice of Appeal

(Notice) seeking review of the Administrative Law Judge’s (ALJ) February 16, 2021 Order Denying Reconsideration in this case arising under the employee protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.1 We interpret the Notice as a petition for interlocutory review of the Order.

      The Secretary of Labor and the Administrative Review Board (Board) have

repeatedly held that interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals.2 Although the Secretary has given the

1 49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29 C.F.R. Part 1979 (2018). 2 See, e.g., Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ No. 2019-SOX- 00012, slip op. at 3 (ARB Jan. 28, 2020).
2

Board discretion to consider interlocutory appeals, such discretion may only be exercised in “exceptional circumstances.”3

   When a party seeks review of an ALJ’s interlocutory order, the Board has

elected to look to the interlocutory review procedure provided in 28 U.S.C. § 1292(b). The first step in this process is to have the ALJ certify the interlocutory issue for appellate review.4 But even if a party has failed to obtain interlocutory certification, the ARB may also consider interlocutory appeals under the “collateral order” exception.5 To fall within the “collateral order” exception, 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.”6 The appeal must meet all of these criteria.

   Kossen has failed to allege exceptional circumstances sufficient to merit

interlocutory review in this case. He asserts that the ALJ is biased against him because the ALJ did not rule in his favor in a prior case and because the ALJ’s son is employed by an airline.7 The ALJ considered these allegations and correctly concluded that neither was grounds for recusal.8 Accordingly, the request for interlocutory review is DENIED.

SO ORDERED.

3 Secretary’s Order No. 01-2020, § 5(b)(69).
4 Powers v. Pinnacle Airlines, Inc., ARB No. 2005-0138, ALJ No. 2005-SOX-00065, slip op. at 5-6 (ARB Oct. 31, 2015). 5 See, e.g., Jordan v. Sprint Nextel Corp., ARB No. 2006-0105, ALJ No. 2006-SOX- 00041, slip op. at 3 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). 6 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). 7 Complainant Darren Kossen’s Motion for Recusal of Judge Larsen at 2-3. 8 See Order Denying Motion to Recuse at 1-3 and cases cited therein.