Lewis v. Deepwell Energy Services, LLC (agency decision, June 20, 2025)

Plain-English summary

Lorenzo Lewis alleged that Deepwell Energy Services fired him for complaints about transportation-safety compliance. After the administrative judge denied summary decision and related requests, Lewis filed three petitions seeking immediate Board review. The Board denied those petitions and then rejected Lewis's request for reconsideration. It found that he had not obtained the required certification or established the collateral-order exception for review before a final decision. His repeated arguments about procedural rights did not supply a basis to reconsider that threshold ruling. The order leaves him to present his case in the resumed administrative proceedings.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105(a); 28 U.S.C. § 1292(b); 29 C.F.R. § 18.72
• Outcome: Reconsideration denied for all three consolidated interlocutory petitions.
• Key point: Arguments about the underlying ruling do not replace the threshold requirements for interlocutory review.

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:


LORENZO LEWIS,                                 ARB CASE NOS. 2025-0037
                                                             2025-0039
               COMPLAINANT,                                  2025-0051

     v.                                        ALJ CASE NO. 2024-STA-00042
                                               ALJ JOHN M. HERKE
DEEPWELL ENERGY SERVICES,
LLC,                                           DATE: June 20, 2025

               RESPONDENT.

Appearances:

For the Complainant:
Lorenzo Lewis; Pro Se; Carrollton, Texas

For the Respondent:
Amy Elaine Davis, Esq.; Law Center of Amy E. Davis LLC; Dallas,
Texas

Before JOHNSON, Chief Administrative Appeals Judge, and KAPLAN, Administrative Appeals Judge

                  ORDER DENYING RECONSIDERATION

   This case arises under the employee protection provisions of the Surface

Transportation Assistance Act of 1982 (STAA or Act) and its implementing regulations. 1 Complainant filed a complaint with the Occupational Safety and
0F

Health Administration (OSHA) contending that Respondent terminated his employment in retaliation for complaining internally about Respondent’s alleged failure to comply with Department of Transportation (DOT) and Federal Motor

1 49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2024). 2

Carrier Safety Act (FMCSA) regulations. 2 OSHA dismissed Complainant’s
1F

complaint, and Complainant appealed the dismissal to the Office of Administrative Law Judges (OALJ). 3 2F

   On December 15, 2024, Complainant filed a Motion for Summary Decision. 4        3F

Complainant then filed several revisions and supplements to his Motion for Summary Decision. 5 On January 23, 2025, the ALJ issued a Ruling on
4F

Complainant’s Motion for Summary Decision (Summary Decision Ruling) denying Complainant’s Second Revised Motion for Summary Decision because Complainant failed to establish that there were no genuine issues of disputed fact. 65F

   Following the ALJ’s Summary Decision Ruling, Complainant submitted

several motions and documents to the ALJ, including: (1) a motion for reconsideration of the Summary Decision Ruling; 7 (2) a motion for leave to respond
6F

to the affidavit and to submit more documents in support of his Motion for Summary Decision; 8 (3) a Sworn Affidavit of Lorenzo Lewis in Support of Submitted
7F

Objections & Reply, Pursuant to 29 C.F.R. § 18.72(c); 9 (4) a second motion for
8F

2 Ruling on Complainant’s Motion for Summary Decision (Summary Decision Ruling) at 1. 3 Id. 4 Id. at 2. 5 Complainant filed the following revisions and supplements: (1) a Revised Motion for Summary Decision on December 17, 2024; (2) a Revised List of Undisputed Material Facts on December 19, 2024; (3) a Second Revised Motion for Summary Decision with a revised Sworn Affidavit on December 24, 2024; and (4) a Memorandum of Points and Authorities Pursuant to 29 C.F.R. § 18.33(c)(4) with another Revised List of Undisputed Material Facts on January 5, 2024. 6 Summary Decision Ruling at 6. 7 The ALJ granted Complainant’s reconsideration motion but only as to Respondent’s asserted reasons for terminating Complainant’s employment and directed Respondent to file any affidavits it might consider appropriate. Order Granting (Nunc Pro Tunc) Complainant’s Motion to Reconsider Denial of Summary Decision (Order Granting Reconsideration Motion) at 1-2. 8 The ALJ denied Complainant’s motion. Order Denying Motion for Leave to File Additional Summary Decision Materials and Argument (Order Denying Motion for Leave) at 1-2. 9 Complainant attempted to file this submission approximately one hour after the ALJ issued the Order Denying Motion for Leave. Consequently, OALJ notified Complainant 3

reconsideration asking the ALJ to reconsider the Order Denying Motion for Leave; 10 9F

(5) a motion for the ALJ to certify an interlocutory appeal of the ALJ’s Order Denying Motion for Leave and Order Denying Complainant’s Second Motion for Reconsideration; 11 and (6) a Request for Disqualification and Substitution of
10F

Administrative Law Judge John M. Herke Due to His Personal Bias Pursuant to 5 U.S.C. § 556(b)(3), 29 C.F.R. §§ 18.15(a) and 18.16(b). 1211F

  Yet, before moving to certify the interlocutory appeal of the Order Denying

Motion for Leave and Order Denying Complainant’s Second Motion for Reconsideration with the ALJ, Complainant filed his first petition for interlocutory review with the Board. 13 After the ALJ denied Complainant’s certification request,
12F

Complainant filed his second petition for interlocutory review with the Board. 14 13F

While these petitions for interlocutory review were under consideration by the Board, Complainant submitted other filings 15 and a Motion for ARB to Issue a
14F

Ruling on the Merits of the Complainant’s Motion for Summary Decision Relief

via email that it did not accept the filing. Order Denying Complainant’s Second Motion for Reconsideration at 2. 10 The ALJ denied Complainant’s second motion for reconsideration and cautioned Complainant that any further filing related to the motion for summary decision could subject him to sanctions. Id. 11 The ALJ denied certification and observed that Complainant referred to Vince Schott’s affidavit as an “unsworn declaration” because it was not notarized. However, the ALJ determined that the affidavit conformed to the requirements of 28 U.S.C. § 1746 and therefore, had the same effect as a notarized affidavit. Order Denying Certification of Interlocutory Appeal at 2 n.3. 12 The ALJ issued a Procedural Notice notifying Complainant that he could not rule on the request while the petitions for interlocutory review were pending before the Board as OALJ no longer had jurisdiction in the matter. Procedural Notice at 2. 13 The full title of Complainant’s petition for interlocutory review is “Petition for Review of Administrative Law Judge’s Interlocutory Orders Denying Requested Leave to Submit Objections & Reply During Summary Decision Proceedings Pursuant to 29 C.F.R. § 18.72(c) & (h)” (Petition for Interlocutory Review I). 14 The full title of Complainant’s revised second petition for interlocutory review is “Complainant’s Petition for Review of Administrative Law Judge’s Denial of the Request for Issuance of Certificate of Appeal Regarding Interlocutory Orders Issued February 13 and 18, 2025, Pursuant to Fed. R. App. Proc., Rule 5 & 28 U.S.C. 1292(b)” (Revised Petition for Interlocutory Review II). 15 Complainant filed: (1) an appendix for Petition for Interlocutory Review I; (2) the ALJ’s Order Denying Complainant’s Second Motion for Reconsideration; and (3) a revised version of Petition for Interlocutory Review II along with a corresponding appendix. 4

and/or Disqualification of Presiding Administrative Law Judge Pursuant to 5 U.S.C.
§§ 556(b)(3), 557(b)(2), & 29 C.F.R. § 1978.110(d) (Motion for ARB to Issue a Ruling on the Merits), which the Board interpreted as his third petition for interlocutory review. 16
15F

   The Board consolidated Complainant’s petitions for interlocutory review and

dismissed the petitions. 17 On May 19, 2025, Complainant filed a motion for
16F

reconsideration of the Board’s Order of Consolidation and Denying Petitions for Interlocutory Review. 18 For the following reasons, we deny Complainant’s motion.
17F

   The Board will reconsider a decision and order only under limited

circumstances. 19 In considering whether to reconsider a decision, the Board
18F

considers whether the movant has demonstrated: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board’s decision, (iii) a change in the law after the Board’s decision, or (iv) failure to consider material facts presented to the Board before its decision. 20 19F

16 Order of Consolidation and Denying Petitions for Interlocutory Review at 8-9. 17 Id. at 7-10. 18 The full title of Complainant’s motion for reconsideration is “Petitioner’s Motion for Reconsideration with Suggestion for Reconsideration En Banc, Pursuant to Fed. R. App. Proc., Rule 40 & 29 C.F.R. § 1978.110” (ARB Motion for Reconsideration). Complainant moves for reconsideration with the suggestion of an en banc review, pursuant to Rule 40 of the Federal Rules of Appellate Procedure and 29 C.F.R. § 1978.110. ARB Motion for Reconsideration at 17-18. The Board has previously noted that moving for reconsideration is analogous to petitioning for panel rehearing under Rule 40; however, while doing so, the Board developed a four-part test to determine whether the movant has demonstrated sufficient grounds warranting reconsideration. See Wolslagel v. City of Kingman, ARB No. 2011-0079, ALJ No. 2009-SDW-00007, slip op. at 2 n.2 (ARB June 24, 2013) (acknowledging Rule 40 but applying four-part test); see also OFCCP v. Fla. Hosp. of Orlando, ARB No. 2011-0011, ALJ No. 2009-OFC-00002, slip op. at 5 (ARB July 22, 2013) (Order Granting Motion for Reconsideration and Vacating Final Decision and Order Issued October 19, 2012) (stating that Rule 40 “is a more general and lenient standard than the ARB’s four- part test.”). Complainant has not demonstrated sufficient grounds warranting reconsideration or an en banc review under the ARB’s four-part test. 19 Thomas v. DuPont Specialty Prods., LLC, ARB No. 2023-0055, ALJ No. 2023-WPC- 00004, slip op. at 2 (ARB Mar. 11, 2025) (Order Denying Reconsideration) (citing Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015, slip op. at 2 (ARB Jan. 31, 2023) (Order Denying Second Motion for Reconsideration)). 20 Id. (citing Clark v. Hamilton Hauling, LLC, ARB No. 2020-0063, ALJ No. 2019-SOX- 00015, slip op. at 2 (ARB July 24, 2014) (Order Denying Motion for Panel Reconsideration)). 5

   Complainant argues that the Board failed to consider material facts present

to the Board before its decision. 21 Specifically, Complainant avers that the Board
20F

overlooked its precedent in McCurry v. Kenco Logistics Servs., LLC, 22 and that the
21F

collateral order exception applies to this matter. 2322F

    The Board did not overlook McCurry, and assuming arguendo that the Board

erred by not acknowledging McCurry in the Order of Consolidation and Denying Interlocutory Review, 24 such error was harmless as Complainant failed to clear his
23F

initial procedural hurdle for the Board to accept and consider a petition for interlocutory appeal—to obtain ALJ certification under 28 U.S.C. § 1292(b) or prove that the ALJ’s orders met the “collateral order” exception. 25 On reconsideration,
24F

Complainant claims that the ALJ’s orders met the collateral order exception by simply repeating the same arguments he originally raised in the three petitions for interlocutory review that the Board considered and rejected. 26 We will not address
25F

them again on reconsideration. 27 26F

21 ARB Motion for Reconsideration at 19.
22 McCurry v. Keneco Logistic Servs., LLC, ARB No. 2021-0009, ALJ No. 2019-FDA- 00015 (ARB Apr. 30, 2021). 23 ARB Motion for Reconsideration at 4, 19-21. 24 Essentially, Complainant contends that the holding in McCurry provides litigants procedural safeguards and rights under 29 C.F.R. § 18.72, and the decision by the ALJ to deny Complainant leave to submit affidavits pursuant to 29 C.F.R. § 18.72(c) and (h) deprived him of “the right to have the Labor Department’s proceedings truncated through
[summary decision].” ARB Motion for Reconsideration at 4; see Revised Petition for Interlocutory Review II at 18-20. A “right to have proceedings truncated” is not a basis for immediate appellate review of an interlocutory order. See Order of Consolidation and Denying Petitions for Interlocutory Review at 7 n.31. Upon resumption of the proceedings below, Complainant will have a fair opportunity to be heard, address his concerns pertaining to Respondent’s affidavit, and present his respective case by submitting evidence, rebuttal evidence, and cross-examining witnesses at a full hearing on the merits. 25 To fall within the “collateral order” exception, the order appealed must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment. Mitchell v. Manning Trucking, Inc., ARB No. 2025-0010, ALJ No. 2024- STA-00020, slip op. at 4 (ARB Dec. 17, 2024) (citing Kossen v. Asia Pac. Airlines, ARB No. 2023-0041, ALJ No. 2023-AIR-00001, slip op. at 3 (ARB Aug. 22, 2023)). 26 Order of Consolidation and Denying Petitions for Interlocutory Review at 7-10. 27 Thomas, ARB No. ARB No. 2023-0055, slip op. at 2 (citations omitted). 6

   Moreover, as noted in the Order of Consolidation and Denying Petitions for

Interlocutory Review, even if an order met the collateral order exception, the Board’s decision to accept a petition for interlocutory review remains discretionary. 28
27F

  Accordingly, the Board DENIES Complainant’s Motion for Reconsideration.


  SO ORDERED.



                                     RANDEL K. JOHNSON
                                     Chief Administrative Appeals Judge




                                     ELLIOT M. KAPLAN
                                     Administrative Appeals Judge

28 Order of Consolidation and Denying Petitions for Interlocutory Review at 7; 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, § 5(b)(69) (Mar. 6, 2020).