Payne v. Global Medical Response

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
MICHAEL PAYNE,
COMPLAINANT,
v.
GLOBAL MEDICAL RESPONSE,
d/b/a REACH MEDICAL
SERVICES, ET AL.,
RESPONDENT.
ARB CASE NO. 2026-0072
ALJ CASE NO. 2025-AIR-00029
ALJ EVAN H. NORDBY
DATE: September 29, 2026
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge
DECISION AND ORDER DENYING INTERLOCUTORY APPEAL
This case arises under the employee protection provisions of the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and its
implementing regulations.1 On September 16, 2026, Complainant Michael Payne
filed a petition for interlocutory review (Petition) with the Administrative Review
Board (ARB or Board) asking the Board for discovery-related relief in an action
currently pending before a United States Department of Labor Administrative Law
Judge (ALJ). For the following reasons, we deny Complainant’s Petition.
BACKGROUND
On or about February 1, 2025, Complainant filed a complaint with the United
States Department of Labor’s Occupational Safety and Health Administration
(OSHA) alleging that Respondent Global Medical Response, d/b/a Reach Medical
1 49 U.S.C. § 42121; 29 C.F.R. Part 1979 (2026).

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Services, violated the employee protection provisions of AIR21.2 OSHA dismissed
Complainant’s complaint by letter dated May 5, 2025, and Complainant requested a
hearing before an ALJ.3
On March 5, 2026, the ALJ assigned to the case issued an order that, among
other things, required the parties to file dispositive motions by June 11, 2026, and
to file oppositions to dispositive motions by July 2, 2026.4 On June 11, 2026,
Respondent filed a Motion for Summary Decision with the ALJ, arguing that it was
entitled to a decision in its favor as a matter of law. It appears that Complainant
did not correctly file an opposition with the ALJ by the July 2, 2026 deadline.
In a July 27, 2026 filing with the ALJ, Complainant stated that he had
attempted to request an extension of time from the ALJ via email on June 19, 2026,
and had attempted to file a “written report and exhibits” on July 17, 2026.5
Complainant also stated that he “has very little knowledge of judicial procedures
and is trying to represent himself . . . .”6
On August 13, 2026, the ALJ issued an Order Vacating Hearing Date,
Extending Deadline, and Order to Show Cause Re: Motion for Summary Decision
(ALJ Order to Show Cause). In that Order, the ALJ provided detailed information
regarding the purpose of and standards for resolving summary decision, the
consequences if the ALJ ruled in Respondent’s favor, what Complainant must
submit in response to the Motion for Summary Decision, and other important
information for Complainant as a pro se litigant.7 The ALJ also extended the time
for Complainant to file an opposition to Respondent’s Motion for Summary Decision
to September 1, 2026, continued the hearing and prehearing conference, and stated
that if Complainant needed additional time, he must request an extension in
2 Notice of Docketing at 1.
3 Id.
4 Order Granting Joint Motion for Extension of Discovery and Dispositive Motion
Deadlines and to Continue Hearing at 1.
5 Complainant’s Opposition to Respondent’s Motion to Strike and Request for
Continuance of Trial at 1.
6 Id.
7 ALJ Order to Show Cause at 2-3.

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writing from the ALJ before September 1, with a statement of the “specific reasons
that additional time is necessary.”8
Instead of filing an opposition to the Motion for Summary Decision or
requesting an extension of time from the ALJ, Complainant filed a “Request for
Appeal” with the ALJ on August 26, 2026.9 Complainant stated that he “requests an
appeal on Motion for Summary Decision,” and “requests an appeal and/or extension
to seek legal counsel and the court[’]s assistance in requesting the legal counsel and
respondent to provide the evidence asked for by the complainant which is vital to
the cause and they are intentionally withholding from the complainant.”10
Regarding discovery, Complainant explained that Respondent “is still withholding
and declining to provide Complainant with vital information and evidence,” and
that he “is requesting an appeal to enable him to request depositions from witnesses
. . . from [Respondent] to provide supporting factual evidence to support the
complainant’s case . . . .”11
On September 2, 2026, the ALJ issued an Order Vacating Deadlines and
Referring Interlocutory Appeal to the Administrative Review Board (Referral
Order). The ALJ stated that Complainant’s Request for Appeal “deprives the trial
judge of jurisdiction to proceed with a hearing or act on issues that are the subject
of the appeal.”12 The ALJ therefore stated that he was “transmit[ting] the notice of
appeal and this case to the” ARB.13 The ALJ served the Referral Order on the ARB.
On September 10, 2026, the ARB issued an Order to Show Cause (ARB Order
to Show Cause) noting the ALJ’s service of the Referral Order on the ARB, but
explaining that Complainant was required to submit a petition for review in
accordance with 29 C.F.R. § 1979.110(a) if Complainant desired the Board to review
8 Id. at 3.
9 The Request for Appeal was dated August 20, 2026 and docketed on August 26,
2026, but includes a certificate of service stating that “Claimant[’]s findings of fact” were
electronically submitted on August 13, 2026.
10 Complainant’s Request for Appeal at 1-2.
11 Id. at 1.
12 Referral Order at 1-2 (citations omitted).
13 Id. at 2.

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any order of the ALJ.14 The ARB directed Complainant to file a proper petition for
review within ten days.15
Complainant filed the Petition on September 16, 2026, stating that he “is
requesting an appeal to enable him to request depositions from witnesses . . . from
[Respondent] to provide supporting factual evidence to support the complainant’s
case and to seek legal counsel to assist in this case against [Respondent],” that
Respondent “is still withholding and declining to provide Complainant with vital
information and evidence,” and that he “requests an appeal and/or extension to seek
legal counsel and the Review Board[’]s assistance in requesting the legal counsel
and respondent to provide the evidence asked for by the complainant which is vital
to the cause and they are intentionally withholding from the complainant.”16
Respondent filed a “Reply to Complainant Michael Payne’s Response to Order to
Show Cause” on September 25, 2026, urging the Board to deny Complainant’s
appeal.
DISCUSSION
Because the ALJ has not yet issued a decision fully disposing of all claims in
Complainant’s complaint, Complainant’s Petition is for interlocutory review (i.e.,
review of a non-final decision).17 The Board’s delegated authority includes the
consideration and disposition of interlocutory appeals “in exceptional circumstances,
provided such review is not prohibited by statute.”18 The Board takes the
Secretary’s limitation seriously and has emphasized repeatedly that interlocutory
appeals are generally disfavored and that there is a strong policy against piecemeal
appeals.19
14 ARB Order to Show Cause at 1-2.
15 Id. at 2.
16 Petition at 1-2. Complainant also filed “Proposed Findings of Fact and Conclusions
Show Cause” with the ARB on September 20, 2026, which address the underlying merits of
his case and have no bearing on this appeal.
17 See Gloss v. Tata Chems. N. Am., ARB No. 2022-0054, ALJ No. 2020-CAA-00008,
slip op. at 2 (ARB Sept. 20, 2022).
18 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020)).
19 Gadbury v. Park Aerospace Corp., ARB No. 2026-0024, ALJ No. 2025-SOX-00022,
slip op. at 3 (ARB Apr. 17, 2026) (citation omitted).

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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).20
It does not appear that Complainant has asked for or received certification from the
ALJ under 28 U.S.C. § 1292(b).21
If a party has failed to obtain ALJ certification, the Board may still consider
reviewing an interlocutory order that meets the “collateral order” exception.22
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.”23 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.24
Here, the ALJ has not issued any order resolving the discovery or procedural
matters for which Complainant seeks relief or ruled on the Motion for Summary
Decision. Accordingly, there is no order before the Board that could satisfy the
collateral order doctrine. In his Petition, Complainant: (1) argues that Respondent
has not provided “vital information and evidence” he needs for his case; (2) asks for
depositions from witnesses; and (3) asks for an extension of time to seek legal
counsel and to obtain the discovery that he believes he needs. It does not appear
that Complainant properly filed any motions with the ALJ requesting this relief,
nor does it appear that the ALJ issued an order bearing on or restricting
20 Id. at 4 (citation omitted).
21 The Referral Order does not constitute or meet the requirements of a certification
under 28 U.S.C. § 1292(b).
22 Gadbury, ARB No. 2026-0024, slip op. at 4.
23 Id. (citation omitted).
24 Id. (citation omitted).

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Complainant’s ability to do so.25 If Complainant wishes to conduct additional
discovery through depositions or otherwise, wants to compel Respondent to respond
to his discovery requests, and/or requires more time to conduct discovery, prepare
his opposition to Respondent’s Motion for Summary Decision,26 and/or seek legal
counsel, he can present his requests and arguments in support thereof to the ALJ in
properly filed motions. If necessary and appropriate, the ARB then may address
these, and any other relevant issues raised by the parties, at the conclusion of these
proceedings after the ALJ has issued a final decision.27
The ALJ Order to Show Cause is also not subject to immediate interlocutory
review. As summarized above, the ALJ Order to Show Cause continued the hearing
and prehearing conference, extended Complainant’s time to oppose Respondent’s
Motion for Summary Decision, provided detailed information on how to oppose the
Motion for Summary Decision, and invited Complainant to file a motion for
extension if he believed he needed additional time. None of these orders or issues is
“effectively unreviewable” on appeal from a final judgment. Again, if necessary and
appropriate, Complainant may file an appeal at the conclusion of these proceedings
after the ALJ has issued a final decision. If the ARB determines at that time that
the ALJ erred with respect to the procedural handling of the Motion for Summary
25 Arguably, the ALJ could have interpreted Complainant’s “Request for Appeal” as a
motion to the ALJ instead of an appeal to the ARB because it was filed with and addressed
to the ALJ and identified various relief in discovery and an extension of time that would be
properly addressed or provided by the ALJ. The ALJ could have also attempted to clarify
with Complainant whether he indeed intended to appeal to the ARB or whether he instead
wanted relief from the ALJ.
26 Under the OALJ Rules of Practice and Procedure, if Complainant believes that he
cannot present facts essential to justify his opposition to the Motion for Summary Decision,
whether because Respondent has not adequately responded to discovery or otherwise, he
can state as much to the ALJ by affidavit or declaration, and the ALJ may, in his
discretion, defer considering or deny the Motion for Summary Decision, allow time to take
discovery, or issue any other appropriate order. 29 C.F.R. § 18.72(d).
27 C.f. Friesner v. Family Dollar, ARB Nos. 2026-0045, -0059, ALJ No. 2025-SOX-
00010, slip op. at 6 (ARB Aug. 20, 2026) (“The Board has repeatedly declined to interfere
with an ALJ’s procedural and discovery orders in interlocutory appeals because they are
readily subject to review on appeal from a final judgment.”) (citations omitted); Szmurlo v.
ThyssenKrupp Elevator, ARB Nos. 2026-0025, -0026, ALJ No. 2025-SOX-00034, slip op. at
12-13 (ARB June 23, 2026) (“With respect to these and Complainant’s other allegations of
error regarding discovery, we note that courts rarely grant interlocutory appeal of discovery
orders.”) (internal quotations and citations omitted).

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Decision or Complainant’s opposition thereto, the ARB can remand with
instructions and fashion appropriate relief.
CONCLUSION
For the foregoing reasons, we DENY Complainant’s interlocutory appeal.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge