Szmurlo v. ThyssenKrupp Elevator (agency decision, June 23, 2026)

Plain-English summary

Pete Szmurlo filed a Sarbanes-Oxley Act retaliation complaint against ThyssenKrupp Elevator and sought immediate review of several ALJ orders about discovery, a subpoena, sanctions, and related issues. The ARB held that the challenged orders could be reviewed after the ALJ issued a final decision, so they were not effectively unreviewable now. The Board also found no exceptional circumstances that justified discretionary interlocutory review. It dismissed the interlocutory appeals.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. § 18.96; and 28 U.S.C. § 1292(b)
• Outcome: The ARB dismissed both interlocutory appeals because the challenged orders could be reviewed after a final ALJ decision.
• Key point: Discovery and sanctions rulings ordinarily do not qualify for immediate ARB review when they remain reviewable after final agency action.

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:


PETE SZMURLO,                                ARB CASE NOS. 2026-0025
                                                           2026-0026
             COMPLAINANT,
                                             ALJ CASE NO. 2025-SOX-00034
       v.                                    ALJ STEVEN D. BELL

THYSSENKRUPP ELEVATOR,                       DATE: June 23, 2026

             RESPONDENT.

Appearances:

For the Complainant:
      Pete Szmurlo; Pro Se; Munster, Indiana

For the Respondent:
      Danielle M. Kays, Esq.; Fisher & Phillips LLP; Chicago, Illinois

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


     DECISION AND ORDER DENYING INTERLOCUTORY APPEALS

      In this case, Complainant Pete Szmurlo seeks interlocutory review of a
United States Department of Labor Administrative Law Judge’s (ALJ) orders
concerning discovery and other matters. For the reasons set forth below, we deny
Complainant’s interlocutory appeals.

                                  BACKGROUND

      On May 14, 2025, Complainant filed a complaint with the Occupational
Safety and Health Administration (OSHA), alleging that Respondent
ThyssenKrupp Elevator unlawfully retaliated against him under the employee
protection provisions of Section 806 of the Corporate and Criminal Fraud

                                           2


Accountability Act of 2002, Title VIII of the 2 Sarbanes-Oxley Act (SOX), as
amended, and its implementing regulations.1 After OSHA dismissed the complaint,
Complainant requested a hearing with an ALJ.

      Before the ALJ, Respondent filed a Motion to Dismiss arguing that it was not
subject to SOX coverage. The ALJ determined that he could not assess Respondent’s
coverage based on the Motion to Dismiss, but stated that “principles of judicial
economy require that I resolve the question whether Respondent is a ‘covered
person’ under SOX before proceeding with any other aspect of this case.”2
Accordingly, the ALJ opened discovery “limited to the question whether
Respondent is a ‘covered person’ under SOX.”3

       Complainant subsequently requested the ALJ issue a subpoena duces tecum
and interrogatories to a third-party, Otis Worldwide Corporation. On January 20,
2026, the ALJ denied the request in an Order Denying Complainant’s Motion for
Issuance of Subpoena to Otis Worldwide Corporation (Order Denying Subpoena),
stating that: (1) the subpoena “exceeds the scope of discovery permitted by” the
ALJ’s previous order limiting the scope of discovery, and (2) the ALJ did not have
“the ability to issue a subpoena in this whistleblower case,” citing the Board’s
decision in Fagan v. Department of the Navy, ARB No. 2023-0006, ALJ No. 2021-
CER-00001 (ARB Feb. 28, 2024).4 The ALJ later denied Complainant’s request to
reconsider the Order Denying Subpoena.

      Complainant also sought discovery from Respondent, but was dissatisfied
with Respondent’s responses (or lack thereof). Consequently, Complainant filed
motions asking the ALJ to, among other things, sanction Respondent for alleged
discovery abuses, deem facts admitted, and make adverse inferences.

     On February 9, 2026, the ALJ issued an Order Denying Complainant’s
January 25, 2026 “Motion for Sanctions for Discovery Abuse, to Deem Facts
Admitted, and for Adverse Inferences of Case-Dispositive Relief on the ‘Covered



1     18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2025).
2      Order Permitting Limited Discovery and Establishing Schedule for Further Briefing
on Respondent’s Motion to Dismiss at 2-3.
3     Id. at 3 (emphasis original).
4      Order Denying Subpoena at 2.

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Person’ Issue” (Order Denying Motion). The ALJ denied Complainant’s motions,
stating:

            Having reviewed all of these materials, I find that none of
            the information sought by Complainant in his
            Interrogatories and Document Production Requests is in
            any way relevant to the inquiry before me at this stage of
            the litigation: whether Respondent is a covered entity
            under SOX. As that is the only question on which I have
            allowed discovery to proceed at this stage of the case, I find
            Respondent’s objections to the discovery requests to be
            well-taken, and I SUSTAIN Respondent’s objections.
            Treating Complainant’s Motion for Discovery Sanctions as
            a Motion to Compel Discovery, I DENY the Motion to
            Compel. I also DENY all the other relief sought by
            Complainant in his January 25, 2026 [motion].[5]

       Complainant subsequently filed motions requesting the ALJ certify the
following seven issues for interlocutory review to the Administrative Review Board
(ARB or Board):

            (1) Whether an Administrative Law Judge adjudicating a
            whistleblower complaint under the Sarbanes-Oxley Act, 18
            U.S.C. § 1514A, possesses the inherent or implied
            authority to issue a subpoena duces tecum to the principal
            publicly traded company (Otis Worldwide Corporation) in
            order to obtain evidence essential to determine the
            threshold jurisdictional issue of whether the respondent
            (ThyssenKrupp Elevator) is a ‘covered person’ as an ‘agent,’
            ‘contractor,’ or ‘affiliate’ under the statute. . . .

            (2) Whether an Administrative Law Judge commits
            reversible error, abuses discretion, and abdicates a non-
            discretionary duty by: (a) recaptioning a motion for
            sanctions under [Federal Rules of Civil Procedure (FRCP)]
            37(b)—filed due to a party’s total, boilerplate refusal to
            comply with a discovery order—as a FRCP 37(a) motion to

5     Order Denying Motion at 5 (emphasis original).

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compel; and (b) thereby evading the mandatory, multi-
factor sanctions analysis for willful discovery abuse
required by binding ARB precedent in Keller v. Pittsburgh
Baptist Church, ARB No. 2025-0008, as applied to patterns
of obstruction in O’Reilly v. Industrial Automation, Inc.,
ARB No. 2025-0024, and Mejia v. JP Morgan Chase & Co.,
ARB No. 12-060.

(3) Whether, under FRCP 36(a)(3) and binding precedent
(Marchand v. Mercy Medical Center, 22 F.3d 933, 936 (9th
Cir. 1994); St. Paul Reinsurance Co. v. Commercial
Financial Corp., 198 F.R.D. 508, 513 (N.D. Iowa 2000)), a
party’s uniform boilerplate objection to every discovery
request after a court has ordered discovery on a specific
issue constitutes a failure to serve a proper objection
“addressed to the matter,” thereby mandating that all
requested matters be deemed admitted as a matter of law,
and whether such deemed admissions establish genuine
issues of material fact precluding summary decision under
FRCP 56.

(4) Whether an Administrative Law Judge’s scheduling
order—which compels a pro se complainant to oppose a
dispositive summary decision motion without any
discovery under FRCP 56(d) while simultaneously barring
him from filing a substantive reply to the obstructive
respondent’s defense of its own contempt—creates a
structural due process violation that (a) denies the
“meaningful opportunity to be heard” guaranteed by the
Fifth Amendment, and (b) constitutes a per se violation of
FRCP 56(d) and the spoliation doctrine by failing to draw
the adverse inference that withheld evidence is
unfavorable, as required by Bashir v. Amtrak, 119 F.3d
929, 931 (11th Cir. 1997), thereby engaging in arbitrary
economic discrimination violating the Fifth Amendment
and SOX’s remedial purpose under Lawson v. FMR LLC,
571 U.S. 429, 436 (2014).

                                          5


           (5) Whether, under the ARB’s decision in Dietz v. Cypress
           Semiconductor Corp., a complainant’s disclosures about
           conduct that is reasonably believed to implicate interstate
           mail, wire, or bank fraud constitute protected activity
           under SOX, even if the underlying alleged violation is of
           state law and the complainant does not use specific “magic
           words” like “fraud” in the report. Or restated - Protected
           Activity - The Scope of the “Reasonable Belief” Standard.
           Whether, under Dietz v. Cypress Semiconductor Corp., a
           complainant’s internal reports about corporate conduct
           constitute protected activity under the SOX whistleblower
           provision if they describe a course of conduct that
           reasonably implicates federal mail or wire fraud statutes—
           even if the reports focus on a predicate violation of another
           law (such as state wage laws or, as here, falsified safety
           records or fraudulent billing), and even if the complainant
           does not use the specific word “fraud” or cite the federal
           fraud statutes.

           (6) Whether, under the ARB’s controlling decision in
           Spinner v. David Landau and Associates, LLC, a privately
           held company that provides services to or functions as part
           of an integrated enterprise with a publicly traded company
           qualifies as a “contractor, subcontractor, or agent” of that
           public company under 18 U.S.C. § 1514A(a), thereby
           subjecting it to SOX’s whistleblower provisions for reports
           about fraud affecting the public company.

           (7) Whether an Administrative Law Judge commits clear
           error and abuses discretion by finding that discovery
           requests for a respondent’s (a) master agreements with a
           publicly traded company, (b) financial statements, and (c)
           joint trust governance documents are “in no way relevant”
           to determining if the respondent is a “covered person”
           under the functional test mandated by Lawson v. FMR
           LLC, 571 U.S. 429 (2014).[6]


6   Order Denying Motions for Certification of Issues for Interlocutory Appeal at 5-7.

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       On February 27, 2026, the ALJ issued an Order Denying Motions for
Certification of Issues for Interlocutory Appeal. Consistent with ARB precedent, the
ALJ analyzed whether the issues presented by Complainant merited certification
under 28 U.S.C. § 1292(b), which provides that a tribunal may certify an
interlocutory order for immediate appeal when it is “of the opinion that such order
involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.”7

       Regarding issue (1), the ALJ found there was no substantial ground for
difference of opinion.8 Regarding issues (2), (3), (4), and (7), the ALJ observed that
the issues “largely arise out of my management of the very limited scope of
discovery I have allowed as to the very narrow threshold question raised by
Respondent’s Motion to Dismiss.”9 The ALJ found that “none of these discovery
issues involve a controlling issue of law,” that “there are no substantial grounds for
differences of opinion,” and that “immediate appeal of these issues will not
materially advance the ultimate termination of the litigation.”10 Regarding issues
(5) and (6), the ALJ said they were “question[s] I may consider in the future,” and
“I have made no decision thus far which touches on [these issues].” Thus,
“interlocutory review of [these issues] would interfere with the orderly termination
of the litigation.”11

       On March 19, 2026, Complainant filed with the Board: (1) Appellant-
Complainants First ARB Petition for Leave to Appeal, for Interlocutory Review,
and, in the Alternative, Petition for Extraordinary Relief Under 29 C.F.R. § 18.96
(First Petition), and (2) Appellant-Complainants Second ARB Petition for Leave to
Appeal, for Interlocutory Review, and, in the Alternative, Petition for Extraordinary
Relief Under 29 C.F.R. § 18.96 (Second Petition).12 With the Second Petition,
Complainant also filed: (1) Appellant-Complainants Declaration of Pete R. Szmurlo
in Support of Petitions for Interlocutory Review and Extraordinary Relief, and (2)

7      Id. at 8.
8      Id.
9      Id. at 9.
10     Id.
11     Id.
12     Although Complainant has referred to three petitions for review filed with the
Board, these are the only two petitions the Board received and docketed as appeals.

                                             7


Appellant-Complainants Memorandum of Law in Support of First and Second
(Both) ARB Petition for Leave to Appeal, for Interlocutory Review, and, in the
Alternative, Petition for Extraordinary Relief Under 29 C.F.R. § 18.96
(Memorandum in Support of Petitions).13

      In Complainant’s First Petition, largely mirroring issue (1) for which the ALJ
denied certification, he asked the Board to “reverse the ALJ’s underlying Orders of
January 20 and 22, 2026, which denied Complainant’s subpoena duces tecum to
Otis Worldwide Corporation.”14 In Complainant’s Second Petition, he challenged


13      The petitions were docketed as appeals and assigned separate case numbers: ARB
Nos. 2026-0025 and 2026-0026. Complainant has also objected to the ALJ’s February 6,
2026 Briefing Order and the ALJ’s February 9, 2026 Order Denying Sanctions and
Sustaining Respondent’s Objections. Complainant’s Response in Support of First Petition
for Interlocutory Review: The Subpoena Denial, the Ultra Vires Doctrine, and the
Structural Nullification of SOX (Response in Support of First Petition) at 21; Complainant’s
Response in Support of Second Petition for Interlocutory Review: Discovery Sanctions,
Deemed Admissions, the Ultra Vires Doctrine, and the ALJ’s Abdication of Ministerial
Duties (Response in Support of Second Petition) at 19. In the Memorandum in Support of
Appeals, Complainant stated that “[t]his Petition incorporates by reference the Emergency
Petition for Writ of Mandamus for Recusal of Administrative Law Judge Steven D. Bell, for
Assignment to Impartial Tribunal, and for Preservation of Record for Future Tort Claims,
filed concurrently herewith, and the Second ARB Petition for Leave to Appeal regarding
discovery sanctions and relevance.” Memorandum in Support of Petitions at 5. However, (1)
this document Complainant referred to has not been filed with the Board, and (2) in
relation to Complainant’s many references to mandamus in his briefing, in his Response in
Support of Second Petition and in direct response to Respondent’s assertion that the Board
does not have authority to issue writs of mandamus, Complainant stated “Complainant
seeks interlocutory review and reversal, not mandamus as such.” Response in Support of
Second Petition at 17. Given this statement, we deem Complainant to have abandoned any
petition for writ of mandamus to the Board.
14     First Petition at 1. Also with respect to ARB No. 2026-0026, Complainant has filed
with the Board: (1) on April 27, 2026, a Motion for 60-day Extension of Time to File
Response Briefs Due to Food Insecurity, Pro Se Hardships, and Multiple Concurrent
Proceedings; and in the Alternative, Motion for 30-Day Schedule Adjustment, and a
Proposed Order Granting Extension of Time; (2) on April 28, 2026, Complainant’s Response
in Support of First Petition; (3) on April 29, 2026, a Leave to File Declaration of Pete
Szmurlo in Support of First Impression Case, Pending Interlocutory Appeal and Notice of
Ongoing Shareholder Fraud, Perjury, Rule 404(b) Evidence, De Novo Errors of Law, and
New Precedent Sidak v. U.S. International Trade Commission; (4) on April 29, 2026, a
second copy of Complainant’s Response in Support of First Petition; (5) on April 30, 2026,
Complainant’s Supplemental Memorandum on the Convergence of Interlocutory Review
and Mandamus Standards, and the Board’s Discretion (Supplemental Memorandum); and
(6) on May 18, 2026, Complainant’s Supplemental and Corrected Joint Response in Support
of Both Petitions for Interlocutory Review.

                                            8


other discovery and procedural orders, largely mirroring issues (2) through (7) for
which the ALJ denied certification.15

                                      DISCUSSION

       As Complainant recognized in his Petitions, because the ALJ has not yet
issued a decision fully disposing of all claims in Complainant’s complaint, the First
and Second Petitions are for interlocutory review (i.e., review of non-final
decisions).16 The Board’s delegated authority includes the consideration and
disposition of interlocutory appeals “in exceptional circumstances, provided such
review is not prohibited by statute.”17 When a party seeks interlocutory review of an
ALJ’s non-final order, the Board has elected to look to the interlocutory review
procedures providing for certification of issues involving a controlling question of
law as set forth in 28 U.S.C. § 1292(b).18

       The first step in the interlocutory appeal process is for the ALJ to certify the
interlocutory issue for appellate review as provided in 28 U.S.C. § 1292(b).19 As
noted above, the ALJ did not certify Complainant’s appeals under 28 U.S.C.


15      Second Petition at 9-11. Also with respect to ARB No. 2026-0025, Complainant has
filed with the Board: (1) on April 27, 2026, a Motion for 60-day Extension of Time to File
Response Briefs Due to Food Insecurity, Pro Se Hardships, and Multiple Concurrent
Proceedings; and in the Alternative, Motion for 30-Day Schedule Adjustment, and a
Proposed Order Granting Extension of Time; (2) on April 29, 2026, Complainant’s Sua
Sponte Notice of Correction Regarding Fabricated Citations in Second Petition Response;
(3) on April 29, 2026, a Leave to File Declaration of Pete Szmurlo in Support of First
Impression Case, Pending Interlocutory Appeal and Notice of Ongoing Shareholder Fraud,
Perjury, Rule 404(b) Evidence, De Novo Errors of Law, and New Precedent Sidak v. U.S.
International Trade Commission; (4) on April 29, 2026, the Response in Support of Second
Petition; (5) on April 30, 2026, Supplemental Memorandum; and (6) on May 18, 2026,
Complainant’s Supplemental and Corrected Joint Response in Support of Both Petitions for
Interlocutory Review.
16      See Gloss v. Tata Chems. N. Am., ARB No. 2022-0054, ALJ No. 2020-CAA-00008,
slip op. at 2 (ARB Sept. 20, 2022).
17     Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186, 13187 ¶(5)(b)(69)
(Mar. 6, 2020).
18      Powers v. Pinnacle Airlines, Inc., ARB No. 2005-0138, ALJ No. 2005-SOX-00065, slip
op. at 5-6 (ARB Oct. 31, 2005) (citations omitted).
19      Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ No. 2019-SOX-00012, slip
op. at 4 (ARB Jan. 28, 2020) (citations omitted).

                                              9


§ 1292(b) in this case. However, even if a party has failed to obtain interlocutory
certification, the Board may still consider reviewing an interlocutory order that
meets the “collateral order” exception, which 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.”20 To fall within the
“collateral order” exception first recognized in Cohen,21 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.22 This exception is “strictly
construe[d]” to avoid “unnecessarily protracte[d] litigation.”23 If the ALJ’s Order
“fails to satisfy any one of these requirements, it is not appealable under the
collateral-order exception to § 1291.”24

       In his appeals of the ALJ’s orders, Complainant presents several issues
which he argues are separate from and collateral to the remaining claims before the
ALJ.25 First, he argues that the orders conclusively determined and finally decided
whether he can obtain the discovery and sanctions tools he needs to prove SOX
coverage.26 Second, he asserts that they resolve important issues separate from the
merits, framing the issues as (1) whether the ALJ has subpoena authority,
(2) whether the ALJ may recaption a sanctions motion, (3) whether deemed
admissions and adverse inferences apply, (4) whether the ALJ may deny discovery
after admitting that discovery is necessary, and (5) whether the ALJ’s actions were



20     Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
21     Id.
22      Priddle v. United Airlines, Inc., ARB No. 2021-0064, ALJ No. 2020-AIR-00013, slip
op. at 7 (ARB Jan. 26, 2022) (citation omitted).
23     Id. (citations omitted).
24     Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988); accord
Kossen v. Empire Airlines, ARB No. 2021-0017, ALJ No. 2019-AIR-00022, slip op. at 2 (ARB
Feb. 25, 2021).
25     Complainant has used artificial intelligence (AI) in the preparation of his briefs in
this matter and filed a Sua Sponte Notice of Correction Regarding Fabricated Citations in
Second Petition Response to correct some citations that he could not verify.
26      Response in Support of First Petition at 11; Response in Support of Second Petition
at 16; Supplemental Memorandum at 6-7.

                                            10


ultra vires or violated ministerial duties.27 Third, he argues that the ALJ orders are
unreviewable after final judgment because (1) the evidence is perishable and
Respondent has exclusive control over evidence and a history of falsifying records,
(2) Complainant is experiencing irreparable harm including food insecurity
combined with being indigent and his pro se status, (3) “the structural integrity of
SOX is at stake” because “[i]f an ALJ can admit discovery is necessary, order it, and
then deny every tool for obtaining it, no SOX complainant can ever prove coverage,”
(4) Complainant’s professional reputation is being destroyed by contradictory sworn
statements Respondent has lodged with government agencies, and (5) the ALJ’s
orders are ultra vires, void, and contrary to Supreme Court precedent, meaning
they can be challenged without waiting for final agency action.28 In essence,
Complainant’s argument is that the collateral order exception applies because the
challenged discovery, subpoena, and sanctions rulings by the ALJ created an unfair
proceeding, are legally distinct from the merits, and cannot be meaningfully
remedied after a final judgment. Additionally, Complainant asserts that even if the
collateral order doctrine were not satisfied, the Board retains “discretionary
authority to review interlocutory rulings in exceptional circumstances,” and argues
that exceptional circumstances exist.29

       In response, Respondent argues that Complainant’s appeals do not satisfy
the collateral order test. Respondent argues that the ALJ did not issue an order
addressing or determining several of the issues and questions raised by
Complainant, including those concerning whether Respondent is a covered person
under the Act.30 Respondent argues that the ALJ’s orders are not effectively
unreviewable on appeal from a final judgment and that “[i]t is senseless to allow
such piecemeal appeal that would only burden the efficacious administration of
justice and unnecessarily protract litigation at this point when Complainant will
have the opportunity to make such requests for appeal upon final judgment.”31
Finally, Respondent argues that the Board lacks authority to grant Complainant’s

27     Response in Support of First Petition at 1, 11; Response in Support of Second
Petition at 2-3, 16-18; Supplemental Memorandum at 7-8.
28     Response in Support of First Petition at 11; Response in Support of Second Petition
at 16-18; Supplemental Memorandum at 7-9.
29     Response in Support of First Petition at 12-13; Response in Support of Second
Petition at 17-18; Supplemental Memorandum at 9-10.
30    Respondent TK Elevator Corporation’s Brief in Response to Complainant’s First and
Second Petitions at 7-8.
31     Id. at 10.

                                             11


request for extraordinary relief, including issuing a writ of mandamus and other
relief requested, because the Board only has such authority as expressly delegated
by the Secretary.32

       Upon reviewing all of the parties’ arguments on appeal, we hold that the
ALJ’s orders fail to satisfy the third Cohen factor that the orders would be
effectively unreviewable on appeal from a final judgment and deny interlocutory
review. To be “effectively unreviewable,” the right sought to be vindicated must
“be, for all practical and legal purposes, destroyed if it were not vindicated prior to
final judgment.”33 As long as the rights at issue “can be adequately vindicated by
other means, the chance that the litigation at hand might be speeded, or a
particular injustice averted, does not provide a basis for” immediate appellate
review of an interlocutory order.34

       The claims that Complainant identifies for review are all fully reviewable
upon appeal of the final decision of the ALJ. In essence, Complainant argues that
these issues will be unreviewable on appeal from a final decision by the ALJ
because delayed review would be inadequate and lost opportunities in discovery
would arise. However, we discern no reason why the Board could not review the
ALJ’s decisions on these issues after the ALJ issues a decision.



32     Id. at 10-11.
33      Lattimore v. Alaska Airlines, Inc., ARB No. 2025-0089, ALJ No. 2025-AIR-00038,
slip op. at 5 (ARB Mar. 9, 2026) (citation omitted).
34       Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (internal quotations and
citation omitted); see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 872
(1994) (“A fully litigated case can no more be untried than the law's proverbial bell can be
unrung, and almost every pretrial or trial order might be called ‘effectively unreviewable’ in
the sense that relief from error can never extend to rewriting history. Thus, erroneous
[[orders] may burden litigants in ways that are only imperfectly reparable by appellate
reversal of a final district court judgment . . . . But if immediate appellate review were
available every such time, Congress's final decision rule would end up a pretty puny one . . .
.”); see generally CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3911.4 (3d ed. Apr. 2026 update) (internal citations omitted) (“The mere
burden of submitting to trial proceedings that will be wasted if the appellant’s position is
correct does not support collateral order appeal. Nor is it enough to show that a wrong order
may cause tactical disadvantages that cannot be undone even by a second trial. The final
judgment rule rests on a determination that ordinarily these costs be borne to support the
greater benefits that generally flow [from] denying interlocutory appeal.”) (citations
omitted).

                                             12


       With respect to the ALJ’s subpoena authority, “the ARB has previously
decided subpoena authority issues after a hearing on the merits and a judgment has
been issued by the ALJ as part of the review of a final agency decision.”35 And as
the Board explained in Goldstar, “[a]s long as the claim can be addressed by other
means, the matter is not appropriate for interlocutory appeal.”36

       With respect to Complainant’s argument that the ALJ abdicated a non-
discretionary duty and otherwise acted in an ultra vires manner by recaptioning a
motion for sanctions under FRCP 37(b) as a FRCP 37(a) motion to compel (and
other acts) and evading the mandatory, multi-factor sanctions analysis for willful
discovery abuse required by ARB precedent, it is an argument that is difficult to
follow but boils down to issues involving pre-hearing discovery, evidentiary matters,
and sanctions, all matters soundly within the ALJ’s discretion.37 Indeed as stated in
Keller v. Pittsburgh Baptist Church, a case heavily cited by Complainant, “[t]he
Board reviews ALJ determinations on procedural issues, evidentiary rulings, and
sanctions under an abuse of discretion standard,” which are all reviewable on final
appeal.38 With respect to these and Complainant’s other allegations of error


35      Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Goldstar Amusements, Inc., ARB No.
2022-0027, ALJ Nos. 20021-TNE-00027, -00028, slip op. at 7 (ARB Sept. 30, 2022) (citing
Childers v. Carolina Power & Light Co., ARB No. 1998-0077, ALJ No. 1997-ERA-00032, slip
op. at 2 (ARB Dec. 29, 2000); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Integrated
Informatics, Inc., ARB No. 2008-0127, ALJ No. 2007-LCA-00026, slip op. at 4 (ARB Jan. 31,
2011)).
36     Id. at 8.
37      Complainant argues that the ALJ’s actions are void as ultra vires under Sidak v.
U.S. Int’l Trade Comm’n, 174 F.4th 151 (D.C. Cir. 2026). His argument appears to be that
Lawson v. FMR LLC, 571 U.S. 436, requires an examination of operational control for
whether an entity is a covered person under SOX, so the ALJ’s determination that certain
documents he wants in discovery are not relevant to coverage are ultra vires and thus void.
Generally, a judge acts ultra vires when the judge acts outside the scope of his or her lawful
jurisdiction or authority. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (“A judge
will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability only
when he has acted in the ‘clear absence of all jurisdiction.’”). Even upon a loose reading,
Sidak’s holding does alter our analysis because in Sidak, the ALJ order at issue was “an
unconstitutionally structured agency [order] in violation of the Appointments Clause” that
the ALJ lacked the authority to issue. Sidak, 174 F.4th 151. The issues in Sidak are a far
cry from those presented in this case.
38      Keller v. Pittsburgh Baptist Church, ARB No. 2025-0008, ALJ No. 2023-TAX-00012,
slip op. at 6 (ARB July 30, 2025) (citation omitted). Here, the ALJ has discretion over
determinations of relevance in discovery and an abuse of discretion as to relevance in

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regarding discovery, we note that “[c]ourts rarely grant interlocutory appeal of
discovery orders.”39 And specifically regarding Complainant’s evidentiary concerns,
we note that the parties have a duty to preserve evidence in their control that is
relevant to Complainant’s SOX claims.40 Furthermore, even if spoliation occurs, the
ALJ has the ability to issue sanctions, including adverse evidentiary
determinations, preclusion of the admission of evidence, dismissal, or default
judgment.41 Parties can appeal the ALJ’s decision to the Board.

       Complainant has also argued that his ability to litigate is being destroyed
because he is indigent and is experiencing food insecurity and that his professional
reputation is being destroyed. As unfortunate as these circumstances are, and as
sympathetic as we are to them, it is not a reason that this appeal should be heard at
this stage where it is reviewable on appeal after a decision by the ALJ.

       Therefore, because the ALJ’s orders do not satisfy the third Cohen factor,
these appeals do not fall within the collateral order exception. Additionally, even
given the Board’s discretionary authority to review interlocutory appeals in
exceptional circumstances, we conclude that exceptional circumstances do not exist
and decline to accept interlocutory review.42 None of Complainant’s arguments (all
of which we have reviewed and considered, whether specifically discussed in this


discovery would not make the ALJ’s determination ultra vires or void. Again, the ALJ’s
decision could be reviewed on appeal of a final decision.
39     Goldstar Amusements, ARB No. 2022-0027, slip op. at 8 (citing Mohawk Indus., 558
U.S. at 107 (in general, discovery disputes implicate no “substantial public interest” that
overcomes finality principles)); see also Fernandez v. Navistar Int’l Corp., ARB No. 2010-
0035, ALJ No. 2009-SOX-00043, slip op. at 4-5 (ARB Mar. 4, 2010) (adopting Mohawk test
for Board proceedings); Wright, supra note 34, at § 3914.23 (“Adhering to these concerns,
courts routinely dismiss [interlocutory] appeals from orders granting discovery, denying
discovery, granting protective orders, granting a protective order narrower than requested,
denying protective orders, refusing to modify protective orders, or dealing with the
procedures for conducting discovery.”) (citations omitted).
40      See Joseph v. Carnes, 566 F. App’x 530, 535 (7th Cir. 2014) (explaining that a party
had “the duty to preserve evidence in their possession that is relevant to the plaintiffs’ . . .
claims” and that “[f]ailure to do so would constitute spoliation of evidence.”) (citing Trask-
Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008); MacNeil Auto. Prods.,
Ltd. v. Cannon Auto. Ltd., 715 F.Supp.2d 786, 800 (N.D.Ill. 2010); Smith v. United
States, 293 F.3d 984, 988 (7th Cir. 2002)).
41     See Jenkins v. U.S. Env’t Prot. Agency, ARB No. 2015-0046, ALJ No. 2011-CAA-
00003, slip op. at 17-18 (ARB Mar. 1, 2018) (internal quotations and citations omitted).
42     See Secretary’s Order No. 01-2020, 85 Fed. Reg. 13186 at 13187 ¶(5)(b)(69).

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decision or not) have persuaded us that the rights he asserts are too important to be
denied review and too independent of the cause itself so as to require immediate
interlocutory review because the rights at issue can be adequately vindicated by
other means after an ALJ’s final decision. We thus DISMISS Complainant’s
interlocutory appeals.43

       SO ORDERED.




                                   RANDEL K. JOHNSON
                                   Chief Administrative Appeals Judge




                                   THOMAS H. BURRELL
                                   Administrative Appeals Judge




43      Complainant has also requested that this matter be reassigned to a different ALJ
and that the Board make various orders for ALJ action on remand. Our decision is limited
to whether Complainant’s appeals should be taken up for interlocutory review. We have
determined that they should not, and thus we dismiss these interlocutory appeals. We note,
however, that the question of whether an ALJ should grant a motion to recuse himself is
reviewable on appeal of the final decision on the merits issued by an ALJ. See Erickson v.
U.S. Env’l Prot. Agency, ARB No. 2004-0071, ALJ No. 2004-CAA-00007, slip op. at 3 (ARB
Apr. 30, 2004) (“[T]he question of whether or not an administrative law judge should have
disqualified himself is reviewable on appeal with the decision on the merits issued by an
administrative law judge.”); see also Kossen v. Asia Pac. Airlines, ARB No. 2023-0047, ALJ
No. 2023-AIR-00001, slip op. at 14 (ARB May 30, 2025) (“An ALJ may recuse him or herself
if their impartiality might reasonably be questioned or they have a personal bias or
prejudice concerning a party. The Board presumes ALJs to be impartial, and the party
moving for recusal has a substantial burden to prove otherwise. Generally, unfavorable
rulings and possible legal errors are insufficient to prove bias.”) (internal quotations and
citations omitted).