Scott v. E.O. Habhegger Co. (agency decision, December 5, 2022)

Plain-English summary

Angelo Scott alleged that E.O. Habhegger Company retaliated against him in violation of the Surface Transportation Assistance Act. An administrative law judge found unlawful retaliation and ordered reinstatement but left the record open for evidence about back pay and other damages. Both parties appealed after the judge included a notice of appeal rights in that unfinished decision. The Board held that the notice did not make the ruling final because the employer's damages obligations remained unresolved. It dismissed both petitions without prejudice and returned the case to the judge for a final ruling. Neither party had established grounds for an exceptional appeal before the case was complete.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105(a); Secretary's Order 01-2020, § 5(b)(69).
• Outcome: Both petitions dismissed without prejudice and case remanded for a final ruling on unresolved damages.
• Key point: A notice of appeal rights does not make a ruling final when the judge still has damages issues to decide.

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:

ANGELO SCOTT, ARB CASE NOS. 2022-0036
2022-0037
COMPLAINANT,
ALJ CASE NO. 2019-STA-00048
v.
DATE: December 5, 2022
E.O. HABHEGGER COMPANY,

            RESPONDENT.

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL and PUST, Administrative Appeals Judges

ORDER DISMISSING PETITIONS FOR REVIEW WITHOUT PREJUDICE

PER CURIAM:

  These cases arise under the employee protection provisions of the Surface

Transportation Assistance Act of 1982 (STAA) and its applicable implementing regulations.1 Angelo Scott (Complainant) filed a whistleblower complaint against E.O. Habhegger Company (Respondent) for alleged retaliation. On April 11, 2022, a United States Department of Labor Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.) ordering reinstatement based on her finding that Respondent unlawfully retaliated against Complainant under STAA.2 Holding the record open for thirty days, the ALJ noted that “[n]either party presented evidence on damages, or mitigation of damages” and ordered the parties to submit evidence

1 49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2022). 2 D. & O. at 20-21. 2

to determine Respondent’s obligation for backpay and further damages.3 Although the ALJ anticipated issuing further orders in this case, and had not fully disposed of the complaint before her, she included a Notice of Appeal Rights in the D. & O.4

   On April 16, 2022, Complainant filed a Petition for Review with the

Administrative Review Board (Board), and by Order dated April 22, 2022, the Board issued a briefing schedule and assigned the petition ARB Case No. 2022-0036. On April 25, 2022, Respondent also filed a Petition for Review with the Board, and by Order dated April 26, 2022, the Board issued a briefing schedule and assigned this petition ARB Case No. 2022-0037.

    By Order dated July 7, 2022, the Board consolidated ARB Case Nos. 2022-

0036 and 2022-0037, and issued a final briefing schedule (Briefing Order). The Briefing Order noted the Board received Respondent’s opening brief in ARB No. 2022-0037, and that it received a fax correspondence titled “Angelo Scott Answers to Interrogatories” from Complainant. The Briefing Order considered Complainant’s filing as Complainant’s opening brief in ARB Case No. 2022-0036 and as the response to Respondent’s appeal in ARB Case No. 2022-0037. Respondent filed a response brief in ARB Case No. 2022-0036 and neither party filed reply briefs.

 The Secretary of Labor has delegated his authority to issue final

administrative decisions in cases arising under STAA to the Board.5

   Notwithstanding the inclusion of appeal rights, the ALJ’s D. & O. does not

constitute a final ruling because the ALJ held the record open for further action and has not yet issued a final ruling on all of Respondent’s obligations as to damages. As such, acceptance of the Petitions for Review was improvidently granted because this case is not yet ripe for consideration. In the proceedings below, the ALJ may receive additional evidence and argument regarding damages.6

3 Id. at 21-22.
4 Id. at 22-25.
5 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). The Board’s delegated authority includes the consideration and disposition of interlocutory appeals, “in exceptional circumstances, provided such review is not prohibited by statute.” Id. at § 5(b)(69). In these cases, neither party has obtained the ALJ’s certification or otherwise petitioned for or established grounds for an interlocutory appeal. Furthermore, “[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 in stages before the final order.” Dick v. United Servs. Auto. Ass’n, ARB No. 2019-0004, ALJ No. 2018-STA-00054, slip op. at 3 (July 23, 2020). 6 We note that during the pendency of these cases before the ARB, evidence and briefs containing argument regarding damages have been filed with the ARB. 3

Accordingly, we DISMISS the Petitions for Review without prejudice and REMAND the matter to the ALJ for a final ruling.

SO ORDERED.

SUSAN HARTHILL
Chief Administrative Appeals Judge

THOMAS H. BURRELL
Administrative Appeals Judge

TAMMY L. PUST
Administrative Appeals Judge