Marks v. Conopco, Inc. (agency decision, November 20, 2025)

Plain-English summary

Russell Marks sought immediate review of an ALJ’s refusal to recuse herself from his Taxpayer First Act case against Conopco, doing business as Unilever. He alleged bias based on the judge’s involvement in a previous case he had filed. The Board denied the interlocutory appeal after he failed to respond to an order to explain why early review was warranted, despite an extension and dismissal warnings. It also held that the recusal issue could be reviewed after a final ALJ decision and therefore did not qualify for the collateral-order exception. The order did not decide the underlying tax retaliation complaint.

Decision snapshot

• Cited authorities: 26 U.S.C. § 7623(d); 28 U.S.C. § 1292(b)
• Outcome: Interlocutory appeal denied; underlying TFA claims not resolved by this order.
• Key point: A recusal denial can be reviewed with the ALJ’s final decision and did not warrant interlocutory review here.

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:


RUSSELL MARKS,                                 ARB CASE NO. 2025-0084

               COMPLAINANT,                    ALJ CASE NO. 2025-TAX-00017
                                               ALJ THERESA C. TIMLIN
     v.
                                               DATE: November 20, 2025
CONOPCO, INC., d/b/a UNILEVER

               RESPONDENT.

Appearances:

For the Complainant:
Russell Marks; Pro Se; New York City, New York

For the Respondent:
Samantha Thomas, Esq., and Jonathan M. Carrillo, Esq.; Littler
Mendelson, P.C.; Newark, New Jersey

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

    DECISION AND ORDER DENYING INTERLOCUTORY APPEAL

   This case arises under the Taxpayer First Act (TFA) and its implementing

regulations. 1 Complainant Russell Marks filed a complaint with the United States
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Department of Labor’s (Department) Occupational Safety and Health Administration (OSHA) on April 14, 2025, alleging that Respondent Conopco, Inc., violated the TFA. OSHA dismissed the complaint on May 14, 2025, and Complainant requested a hearing with the Department’s Office of Administrative Law Judges (OALJ). OALJ docketed the case and assigned it to Administrative Law Judge (ALJ) Theresa C. Timlin.

1 26 U.S.C. § 7623(d); 29 C.F.R. Part 1989 (2025). 2

  On July 31, 2025, Complainant sent an email to ALJ Timlin, requesting,

among other things, that she recuse herself from the proceedings. 2 Complainant
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argued that ALJ Timlin was biased due to hearing a previous case filed by Complainant. 3 ALJ Timlin, construing Complainant’s email as a motion, issued an
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order denying Complainant’s request for recusal on August 5, 2025 (ALJ Order), concluding that Complainant had failed to advance any specific allegation of personal bias or prejudice and finding no basis existed for recusal. 4 3F

   Complainant subsequently emailed Chief ALJ Stephen R. Henley on August

13 and 14, 2025, asking him to recuse ALJ Timlin. 5 Chief ALJ Henley responded in
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a letter on August 15, 2025, declining to replace ALJ Timlin and stating that if Complainant believed any of ALJ Timlin’s rulings were erroneous, Complainant could file an appeal with the Administrative Review Board (ARB or Board). 6 5F

   On August 15, 2025, Complainant sent an email to the ARB, attaching a copy

of Chief ALJ Henley’s August 15, 2025 letter and stating: “The attached says I’m able to appeal to the ARB. Can you rule on my request for Judge Timlin to recuse herself due to conflict of interest?” The ARB construed Complainant’s August 15, 2025 email as a Petition for Review.

  Because the ALJ had not yet issued a decision fully disposing of all claims in

Complainant’s complaint, the petition was for interlocutory review (i.e., review of a non-final decision). 7 The Board may only consider and dispose of interlocutory
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appeals “in exceptional circumstances, provided such review is not prohibited by statute.” 8 The Board generally does not accept petitions for review of non-final
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orders issued by an ALJ. The Secretary of Labor and the Board have held many

2 Order Denying Complainant’s Motion for Sanctions and Recusal (ALJ Order) at 2. 3 Id. at 4. 4 Id. 5 August 15, 2025 Letter from Chief ALJ Stephen R. Henley to Complainant Russell Marks. 6 Id. 7 See Gloss v. Tata Chems. N. Am., ARB No. 2022-0054, ALJ No. 2020-CAA-00008, slip op. at 2 (ARB Sept. 20, 2022). 8 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020). 3

times that interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals in stages before the final order. 9 8F

   Accordingly, the Board issued an Order to Show Cause on August 26, 2025,

ordering Complainant to file a brief by September 9, 2025, explaining why the Board should not dismiss this interlocutory appeal. The Board cautioned Complainant that “[f]ailure to timely respond to this Order may result in dismissal of the appeal without further order.” At Complainant’s request, the ARB extended Complainant’s deadline to respond to the Order to Show Cause to October 9, 2025. Again, the ARB cautioned Complainant that “if he fails to file a timely and conforming brief in response to the Order to Show Cause, the Board may dismiss this appeal without further notice.” The Board also stated that “further extension requests by Complainant will not be granted, unless justified by extraordinary circumstances and supported by appropriate documentation.”

    Despite the Board’s warnings, Complainant has not filed a response to the

Order to Show Cause. The Board has the inherent “power to dismiss a case for failure to prosecute in an effort to control its docket and to promote the efficient disposition of its cases.” 10 Pursuant to this authority, the Board “may dismiss a
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complaint in a case in which the complainant failed to comply with the Board’s orders.” 11 Complainant’s failure to file a response to the Order to Show Cause
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justifies dismissing this appeal.

   Furthermore, Complainant’s appeal does not involve “exceptional

circumstances” that would justify immediate interlocutory review. When a party seeks interlocutory review of an ALJ’s non-final order, the Board has elected to look to the interlocutory review procedures used by federal courts, including requesting the trial court certify issues involving a controlling question of law for immediate appeal in accordance with 28 U.S.C. § 1292(b). 12 It does not appear that
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Complainant requested or received ALJ certification under 28 U.S.C. § 1292(b).

9 Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049, slip op. at 2 (ARB Sept. 11, 2012) (citations omitted). 10 Gonzales v. Global Crossing Airlines, ARB No. 2025-0040, ALJ No. 2024-AIR-00029, slip op. at 2 (ARB May 16, 2025) (citation omitted) (dismissing appeal where complainant failed to file opening brief or respond to order to show cause). 11 Id. (citation omitted). 12 Kossen v. Asia Pac. Airlines, ARB No. 2023-0041, ALJ No. 2023-AIR-00001, slip op. at 2-3 (ARB Aug. 22, 2023) (citations omitted). 4

   If a party has failed to obtain ALJ certification, the Board may still consider

reviewing an interlocutory order that meets the “collateral order” exception. The collateral order exception 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.”13 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.14 This exception is strictly construed to avoid the “hazard that piecemeal appeals will burden the efficacious administration of justice and unnecessarily protract litigation.”15

   As stated above, Complainant challenges the ALJ’s decision not to recuse

herself from these proceedings. The denial of a motion for recusal is not subject to interlocutory review because disqualification issues are fully reviewable on appeal from the ALJ’s final decision.16

   We therefore DENY Complainant’s interlocutory appeal.

   SO ORDERED.


                               RANDEL K. JOHNSON
                               Chief Administrative Appeals Judge



                               THOMAS H. BURRELL
                               Administrative Appeals Judge

13 Gloss, ARB No. 2022-0054, slip op. at 3 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). 14 Kossen, ARB No. 2023-0041, slip op. at 3. 15 Greene v. U.S. Env’t Prot. Agency, ARB No. 2002-0050, ALJ No. 2002-SWD-00001, slip op. at 4 (ARB Sept. 18, 2002) (citations omitted). 16 Manoharan v. HCL Am., Inc., ARB No. 2021-0031, ALJ Nos. 2018-LCA-00029, 2021- LCA-00009, slip op. at 4 (ARB June 30, 2021).