White v. Marten Transport Ltd.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
FERNANDO D. WHITE,
COMPLAINANT,
v.
MARTEN TRANSPORT LTD.,
RESPONDENT.
ARB CASE NO. 2026-0061
ALJ CASE NO. 2025-STA-00109
ALJ THEODORE W. ANNOS
DATE: September 11, 2026
Before JOHNSON, Chief Administrative Appeals Judge, and KIKO,
Administrative Appeals Judge
DECISION AND ORDER DENYING INTERLOCUTORY APPEAL
This case arises under the employee protection provisions of the Surface
Transportation Assistance Act (STAA).1 Complainant Fernando White is employed
by Respondent Marten Transport as a truck driver. On July 19, 2024, Complainant
filed a complaint with the Department of Labor’s Occupational Safety and Health
Administration (OSHA), alleging that Respondent placed him on leave in violation
of the employee protection provisions of STAA.2 On June 23, 2025, OSHA dismissed
the complaint, and Complainant sought review of OSHA’s dismissal with the Office
of Administration Law Judges. The case is currently pending before Administrative
Law Judge (ALJ) Theodore W. Annos. The litigation is currently in the discovery
phase, which the ALJ extended until September 1, 2026, for the sole purpose of
taking Complainant’s deposition.
1 49 U.S.C. § 31105; 29 C.F.R. Part 1978 (2026).
2 Complainant alleges that Respondent placed him on unpaid leave when he refused
to operate a commercial motor vehicle in violation of applicable motor safety and hours of
service regulations and refused to falsify entries from his vehicle’s electronic logging device.
See 49 U.S.C. § 31105(a)(1)(B)(i) (prohibiting an employer from discriminating against an
employee because the employee refuses to operate a vehicle in violation of a regulation,
standard, or order related to commercial motor vehicle safety, health, or security).

2
Complainant also brought a case against Respondent in federal district court
alleging a violation of the Americans with Disabilities Act (ADA).3 By
Complainant’s own admission, the two cases “involv[e] the same underlying facts
and substantially overlapping witnesses.”4 The parties have agreed that
Complainant will only be deposed once between both actions.5
Complainant has averred that he suffers from dyslexia, lumbar
radiculopathy, and adjustment disorder with mixed anxiety and depressed mood.6
On May 18, 2026, Complainant filed a motion in his federal court action requesting
that the court order Respondent “and its counsel to implement reasonable disability
accommodations in connection with all future depositions and discover proceedings”
in the case.7 The following day, Complainant filed a motion seeking substantially
the same relief with the ALJ.8 In these filings, Complainant sought permission to
use the following assistive technologies during “all remaining discovery in this
proceeding . . . including all depositions, meet and confer sessions, and other
discovery-related proceedings”: (i) a speech-to-text transcription service; (ii) digital
voice recorder; . . . (vi) Bluetooth ear bud; (vii) smartphone and mobile hotspot.9
Complainant also sought the following accommodations: (i) ten-minute breaks every
hour; (ii) extended response time; (iii) plain-language questions; (iv) pre-deposition
access to all exhibits in accessible digital format at least five business days prior to
each deposition; and (v) uninterrupted speaking time during all meet and confer
sessions.10
On May 20, 2026, the district court issued an order noting that a discovery
conference was held and the parties agreed that Complainant “may use all assistive
3 42 U.S.C. § 12101 et seq.
4 Petition for Review at 2.
5 Id. at 10.
6 Id. at 2, 4.
7 Plaintiff’s Motion for Reasonable Accommodations, White v. Marten Transp. Ltd.,
Civil Action No. 1:25-cv-04435-ELR-AWH (N.D. Ga. May 18, 2026), ECF No. 28.
8 For clarity, we refer to Complainant’s filing in his civil action as the District Court
Request for Accommodations and his filing in the instant case as the Motion for
Accommodations.
9 Motion for Accommodations at 12.
10 Id.

3
technologies during his deposition except the smart glasses and blue tooth ear buds.
Defendant agrees to provide longer exhibits (10 pages or more) to Plaintiff in
advance of the deposition. All shorter exhibits will be provided during the deposition
and Plaintiff will be given an opportunity to review them.”11 Accordingly, the
district court denied Complainant’s Request for Accommodations as moot. On
August 5, 2026, the ALJ issued an order denying Complainant’s Motion for
Accommodations (Accommodations Order), finding that “the deposition parameters
established in the [district court] Action are reasonable for purposes of
Complainant’s deposition in this matter” and that “Complainant has not established
a sufficient basis to require counsel to afford him uninterrupted speaking time
during meet and confers.”12 On August 12, 2026, Complainant filed an interlocutory
appeal of the ALJ’s order with the Administrative Review Board (Board).13
JURISDICTION AND STANDARD OF REVIEW
Because the ALJ had not yet issued a decision fully disposing of the claims in
Complainant’s complaint, Complainant’s petition is for interlocutory review. Under
the Secretary’s delegation of authority to the Board, the Board may only consider
and dispose of interlocutory appeals “in exceptional circumstances, provided such
review is not prohibited by statute.”14 The Secretary of Labor and the Board have
11 White v. Marten Transp. Ltd., Civil Action No. 1:25-cv-04435-ELR-AWH (N.D. Ga.
May 20, 2026), ECF No. 29.
12 Accommodations Order at 1. On August 10, Complainant filed a “renewed and
supplemental motion” requesting the same accommodations he requested in his Motion for
Accommodations, as well as an extension of the discovery completion deadline from
September 1, 2026 to November 14, 2026, “for the purpose of permitting Complainant to
complete the depositions of . . . ten (10) witnesses.” On August 27, 2026, the ALJ issued an
order requiring that Complainant’s deposition be subject to the same accommodations
provided during his deposition in the ADA proceeding and denying the renewed motion in
all other respects.
13 In his Petition for Review, Complainant argues that this appeal presents a question
of first impression: whether an ALJ may deny a litigant’s motion for reasonable
accommodations “without once citing, analyzing, or applying Section 504 of the
Rehabilitation Act of 1973.” We note that the Rehabilitation Act, unlike the ADA, covers
federal government programs.
14 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).

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held many times that interlocutory appeals are generally disfavored and that there
is a strong policy against piecemeal appeals in stages before the final order.15
DISCUSSION
1. The Issue Was Not Certified Pursuant to 28 U.S.C. § 1292(b)
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 to certify issues involving a controlling
question of law for immediate appeal in accordance with 28 U.S.C. § 1292(b).16
Here, Complainant did not request or receive ALJ certification.17
2. The Accommodations Order Does Not Satisfy the Collateral Order
Exception
Where a party has not obtained ALJ certification, the Board may still
consider reviewing an interlocutory order provided that it meets the collateral order
exception. Under Supreme Court precedent, the collateral order exception applies if
the decision being appealed “appears to fall in that small class 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
15 See, e.g., Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-
00049, slip op. at 2 (ARB Sept. 11, 2012) (Order Dismissing Interlocutory Appeals)
(citations omitted); Gloss v. Tata Chems. N. Am., ARB No. 2022-0054, ALJ No. 2020-CAA-
00008, slip op. at 2 (ARB Sept. 20, 2022) (Order Dismissing Interlocutory Appeal); Marks v.
Conopco, Inc., ARB No. 2025-0084, ALJ No. 2025-TAX-00017, slip op. at 2-3 (ARB Nov. 20,
2025) (Decision and Order Denying Interlocutory Appeal).
16 See Marks, ARB No. 2025-0084, slip op. at 3 (citation omitted); see also 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).
17 In his petition for review, Complainant references the relevant factors under 28
U.S.C. § 1292(b), namely, that the order a party is appealing 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, and argues that those “criteria are satisfied here.” Petition for Review at 6.
However, these factors govern when the ALJ should certify a question for immediate
appeal, which has not occurred in the instant case.

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adjudicated.”18 We, like the federal courts, have articulated the collateral order
exception as a three-pronged standard requiring that the order: (1) conclusively
determines the disputed question; (2) resolves an important issue completely
separate from the merits of the action; and (3) is effectively unreviewable on appeal
from a final judgment.19
Assuming, arguendo, that the first two factors are met, we find that the
Accommodations Order does not fall within the collateral order exception because it
is not effectively unreviewable on appeal from a final judgment. In clarifying when
an order is effectively unreviewable on appeal, the Supreme Court has said that the
focus is on “the entire category to which a claim belongs . . . [a]s long as the class of
claims, taken as a whole, 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” jurisdiction under the collateral order doctrine (emphasis
added).20 The Court further explained that “the decisive consideration is whether
delaying review until the entry of final judgment would imperil a substantial public
interest or some particular value of a high order.”21
We have previously recognized that discovery and similar evidentiary
disputes, even when they involve uncommon issues such as embarrassment to a
party, are not unreviewable on final appeal.22 We have also recognized that
discovery disputes generally do not implicate any substantial public interest that
overcomes finality principles.23 The federal courts, too, have taken the view that
18 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also Gloss,
ARB No. 2022-0054, slip op. at 3 (applying the same standard to ALJ orders).
19 See, e.g., Marks, ARB No. 2025-0084, slip op. at 4 (citing Kossen, ARB No. 2023-
0041, slip op. at 4); see also Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th
Cir. 2008), aff’d, 558 U.S. 100 (2009) (applying the same three-pronged test for application
of the collateral order exception).
20 Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009); Lattimore v. Alaska
Airlines, Inc., ARB No. 2025-0089, ALJ No. 2025-AIR-00038, slip op. at 5 (ARB Mar. 9,
2026); see also Fernandez v. Navistar Int’l Corp., ARB No. 2010-00035, ALJ No. 2009-SOX-
00043, slip op. at 4-5 (ARB Mar. 4, 2010) (adopting Mohawk’s test for Board proceedings).
21 Mohawk, 558 U.S. at 107 (cleaned up) (quoting Will v. Hallock, 546 U.S. 345, 352-53
(2006)).
22 See Petitt v. Delta Airlines, Inc., ARB No. 2022-0047, ALJ No. 2018-AIR-00041,
slip op. at 6 (ARB Sept. 26, 2022) (Decision and Order Denying Interlocutory Appeal).
23 Adm’r, Wage and Hour Div., USDOL v. Goldstar Amusements, Inc., ARB No. 2022-
0027, ALJ Nos. 2021-TNE-00027, -00028, slip op. at 8 n.50 (ARB Sept. 30, 2022) (Decision

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discovery disputes, even when they involve important issues such as privacy rights
and issues of privilege, are generally “reviewable by means other than immediate
appeal.”24 Even though the dispute in the instant case goes beyond a run-of-the-mill
discovery dispute and involves important issues relating to disability access in
federal government programs, we find the same to be true here.
To be clear, we have no doubt that the alleged harm Complainant seeks to
avoid involves a substantial public interest. Congress’ enactment of Section 504 of
the Rehabilitation Act was a “landmark event” that its proponents understood as
“a sweeping and even a revolutionary commitment.”25 Similarly, the 1978
amendments that applied Section 504 to the federal government were intended to
advance “a uniform and equitable policy for eliminating discrimination.”26 To fulfill
the important government policy that federal programs are operated without
discrimination on the basis of handicap or disability, the Department of Labor has
promulgated regulations establishing that “no qualified individual with handicaps
shall on the basis of handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any program or
activity conducted by the Department” of Labor.27 Importantly, these regulations
prescribe how complaints alleging noncompliance with Section 504 are to be
processed. In relevant part, the regulations require that allegations of
discrimination on the basis of handicap in programs or activities conducted by the
Department of Labor shall be directed to the Director of the Department’s Civil
and Order Denying Interlocutory Appeal). Here, our inquiry is not simply into whether the
interest involved is important, but whether deferring review until final judgment so
imperils the interest as to warrant immediate appeal. See Mohawk, 558 U.S at 108-09
(“We routinely require litigants to wait until after final judgment to vindicate valuable
rights, including rights central to our adversarial system.”).
24 All Plaintiffs v. Transocean Offshore Deepwater Drilling Inc., 505 F. App’x 355, 358
(5th Cir. 2013) (denying an interlocutory appeal of an order that a witness submit to a
medical examination for purposes of determining the witness’s ability to give a deposition,
and that the witness provide his medical records to a court-appointed psychiatrist).
25 123 Cong. Rec. 12,216 (1977) (statement of Sen. Humprey).
26 124 Cong. Rec. 13,901 (1978) (statement of Rep. Jeffords).
27 29 C.F.R. § 33.6.

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Rights Center.28 The Board, by contrast, does not have jurisdiction over claims of
alleged violations of the Rehabilitation Act.29
As noted in the district court’s order denying Complainant’s Request for
Accommodations, the parties have agreed to many of the accommodations that
Complainant initially sought, including the use of most (but not all) of the assistive
technology that Complainant sought for his deposition. To avoid any doubt as to
whether these accommodations would apply to his deposition in the instant case,
the ALJ on August 27, 2026, ordered that “[Complainant’s] deposition shall be
subject to the same accommodations provided during his deposition in the ADA
proceeding.”30 Most importantly, Complainant is not without recourse.
The complaint procedure contained in the Department’s regulations implementing
Section 504 functions as a “useful safety valve for promptly correcting serious
errors.”31 That his complaint can, indeed must, be processed in the manner
prescribed by the Department’s Section 504 regulations convince us that the
Accommodations Order is not effectively unreviewable.
Further, to the extent Complainant alleges that the ALJ’s Accommodations
Order will prejudice him in the prosecution of his case, we note that the order is
reviewable upon final appeal, where the Board may review an ALJ’s procedural and
evidentiary rulings under an abuse of discretion standard.32 The Board, like other
appellate tribunals, can remedy erroneous discovery-related orders by vacating an
adverse judgment and remanding for a new trial.
28 29 C.F.R. § 33.12. The regulations refer to the Directorate of Civil Rights, which has
since been renamed as the Civil Rights Center.
29 See 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);
Ashcraft v. First Citizens Bank, ARB Nos. 2026-0008, -0017, ALJ No. 2025-SOX-00035,
slip op. at 8 n.40 (ARB Jan. 30, 2026) (Decision and Order Denying Interlocutory Appeals).
30 Order on Complainant’s Renewed and Supplemental Motion at 4.
31 Mohawk, 558 U.S. at 111 (cleaned up) (citing Digital Equipment Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 883 (1994)).
32 See, e.g., Iwaseczko v. Teton Cnty. Weed & Pest Control Dist., ARB No. 2022-0059,
ALJ Nos. 2018-ACA-00001, 2019-ACA-00002, slip op. at 16 (ARB Aug. 14, 2025); May v.
AGL Servs. Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001, slip op. at 6 (ARB Sept. 14,
2023).

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CONCLUSION
For the foregoing reasons, we DENY Respondent’s motion for interlocutory
review of the ALJ’s Accommodations Order.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge