David R. Hartley v. Jacksonville Shipyards, Incorporated (Board decision, January 31, 1994)

BRB interlocutory order. The Board rejected an appeal from an administrative law judge's refusal to recuse himself; the benefits case remains with the judge. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

David Hartley appealed an administrative law judge's refusal to step aside from his Longshore Act case. The Board held that this recusal order was not a final decision and did not meet the test for immediate review of an interlocutory order. It rejected the appeal and said the case remained before the Office of Administrative Law Judges. The Board also found a motion to consolidate this appeal with others moot. A party adversely affected by the eventual final decision could appeal it to the Board within the stated 30-day period.

Decision snapshot

• Authority: Appeal from a final administrative law judge decision under 20 C.F.R. § 802.201.
• Outcome: Interlocutory appeal rejected; underlying case remains pending.
• Key point: The refusal to recuse did not qualify for immediate Board review before a final decision.

Full text (DOL BRB public release)

BRB No. 94-316
Case No. 93-LHC-53
OWCP No. 6-87043

DAVID R. HARTLEY
)
)
Claimant-Petitioner
) DATE ISSUED:
)
v. )
)
JACKSONVILLE SHIPYARDS,
)
INCORPORATED
)
)
Employer-Respondent
) ORDER

The Board acknowledges receipt of claimant's Notice of Appeal of the administrative law judge's Order Denying Motion for Recusal of Administrative Law Judge, filed October 5, 1993. This appeal is assigned the Board's docket number BRB No. 94-316.

In his Order, Administrative Law Judge George A. Fath denied claimant's motion requesting that Judge Fath recuse himself from hearing the case. This denial is not a final order by the administrative law judge.

Generally, a Decision and Order of an administrative law judge must be final before the Board will consider an appeal from that decision. However, the Board will accept an appeal of an order which is interlocutory in nature if it meets the following three-pronged test. First, the order must conclusively determine the disputed question. Secondly, the order must resolve an important issue which is completely separate from the merits of the action. Finally, the order must be effectively unreviewable on appeal from a final judgment. See Canada Coal Company v. Stiltner, 866 F.2d 153 (6th Cir. 1989); see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133 (1988).

Inasmuch as the administrative law judge's Order Denying Motion for Recusal of Administrative Law Judge does not meet the three-pronged test, the Board rejects claimant's interlocutory appeal.

Jurisdiction of this matter remains with the Office of Administrative Law Judges. Any party adversely affected by the final decision issued in this case may appeal that decision to the Board within thirty (30) days from the date on which the administrative law judge's Decision and Order is filed. 20 C.F.R. §802.201. In addition, claimant's counsel filed a Motion to Consolidate the instant appeal with other appeals which concern the same facts and issue. No response to this motion has been filed. In light of the foregoing, however, the motion to consolidate is moot.

NANCY S. DOLDER
Administrative Appeals Judge

ROY P. SMITH
Administrative Appeals Judge

REGINA C. McGRANERY
Administrative Appeals Judge