Gadbury v. Park Aerospace Corp.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
CAROLINE GADBURY,
COMPLAINANT,
v.
PARK AEROSPACE CORPORATION
AND MARK ESQUIVEL,
RESPONDENTS.
ARB CASE NO. 2026-0024
ALJ CASE NO. 2025-SOX-00022
ALJ DREW A. SWANK
DATE: April 17, 2026
Appearances:
For the Complainant:
Caroline Gadbury; Pro Se; Wichita, Kansas
For the Respondents:
Diane H. Sorensen, Esq.; Morris, Laing, Evans, Brock & Kennedy,
Chtd.; Wichita, Kansas
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 Section 806 of
the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the
Sarbanes-Oxley Act (SOX), as amended, and its implementing regulations.1
Respondents Park Aerospace Corporation and Mark Esquivel filed a petition for
interlocutory review requesting that the Administrative Review Board (Board)
review an Administrative Law Judge’s (ALJ) Order Denying Respondent’s Motion
1 18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2025).

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for Summary Decision (ALJ Order). For the following reasons, we deny
Respondents’ petition for interlocutory review.
BACKGROUND
Complainant Caroline Gadbury filed a complaint with the United States
Department of Labor’s Occupational Safety and Health Administration (OSHA) on
or about October 24, 2024, alleging that Respondents terminated her employment
in violation of SOX. On November 6, 2025, after the matter was assigned to an
Administrative Law Judge, Respondents filed a Motion for Summary Decision. On
February 20, 2026, the ALJ issued an Order Denying Respondent’s Motion for
Summary Decision.
On March 6, 2026, Respondents filed a Petition for Review with the Board
seeking review of the ALJ Order. On March 12, 2026, the Board issued an Order to
Show Cause which explained that, because the ALJ had not yet issued a decision
fully disposing of all claims in Complainant’s complaint, the petition was for
interlocutory review. The Board ordered Complainant to file a brief within ten
calendar days explaining why the Board should not dismiss the interlocutory appeal
and demonstrate why this matter satisfied the three elements of the collateral order
exception identified in the order. On March 24, 2026, Respondents filed a response.
JURISDICTION AND STANDARD OF REVIEW
The Board’s delegated authority includes the consideration and disposition of
interlocutory appeals “in exceptional circumstances, provided such review is not
prohibited by statute.”2 This authority includes the discretion to consider
interlocutory appeals “in exceptional circumstances . . . .”3
2 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)).
3 Id.

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DISCUSSION
1. The ALJ’s Denial of Summary Decision is Not a Final Order
Respondents contend that the Board should consider their appeal because the
ALJ issued a notice of appeal rights in the ALJ Order, citing to Swint v. NetJets
Aviation, Inc.4 Respondents argue that this “signaled that the legal issues decided
were significant enough for immediate review.”5
Respondents’ reliance on Swint is misplaced. In Swint, the ALJ’s order
granting a motion to dismiss on twelve claims but denying summary decision on two
claims included a Notice of Appeal Rights.6 Although the Board acknowledged that
it was prudent of Swint to file a petition for review, the Board made it clear that the
complainant remained obligated to demonstrate why the Board should depart from
its usual practice and accept the interlocutory appeal.7 For the reasons stated below,
Respondents have not done so here. Moreover, the Board has held that the inclusion
of appeal rights, in and of itself, does not justify immediate interlocutory review.8
Thus, the ALJ’s denial of summary decision was not a final order and Respondents’
appeal from the ALJ order is interlocutory.
2. Respondents’ Interlocutory Appeal Does Not Satisfy the Collateral
Order Exception
We decline to accept Respondents’ appeal because it does not satisfy the
collateral order exception. As stated above, the Secretary of Labor’s delegation of
authority to the Board provides that interlocutory appeals should only be
considered in “exceptional circumstances.” The Board takes the Secretary’s dictate
seriously and has emphasized repeatedly that interlocutory appeals are generally
disfavored and that there is a strong policy against piecemeal appeals.9
4 Response to Order to Show Cause at 1.
5 Id. at 2.
6 Swint v. NetJets Aviation, Inc., ARB No. 2017-0012, ALJ Nos. 2014-AIR-00021,
2016-AIR-00011, slip op. at 2 (ARB Feb. 8, 2017).
7 Id.
8 Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049, slip
op. at 2 (ARB Sept. 11, 2012).
9 Id. (citations 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).10
It does not appear that Respondents received ALJ certification under 28 U.S.C.
§ 1292(b) in this case.
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.”11
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.12
Respondents contend that the Board should accept its interlocutory appeal
because the ALJ committed legal error and also to serve the interest of efficiency
and to avoid unnecessary litigation.13 Specifically, Respondents contend that the
ALJ committed a legal error in denying summary decision on the issue of whether
Complainant engaged in protected activity.14 Respondents contend that the ALJ’s
failure “to follow controlling law will lead to judicial inefficiency by requiring a
protracted hearing covering all elements of the prima facie claim.”15 Respondents
further contend that, if the Board waits until after a full evidentiary hearing to
10 Gulden v. Exxon Mobil Corp., ARB No. 2023-0050, ALJ Nos. 2023-SOX-00021,
-00022, slip op. at 4 (ARB Feb. 29, 2024) (citation omitted).
11 Id. at 5 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
12 Id. (citation omitted).
13 Response to Order to Show Cause at 2-3.
14 Id.
15 Id. at 2.

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address the legal questions pertaining to protected activity, their “right to avoid
unnecessary litigation on a legally deficient claim” will be “lost forever.”16
Setting aside the first prong of the collateral order test, Respondents’ appeal
does not satisfy the second and third prongs. The issue of whether Complainant
engaged in protected activity is not separate from the merits of the action but
rather is squarely on the merits.17 Thus, Respondents have not satisfied the second
prong.
Respondents also fail to establish the third prong. 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.”18 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.19
Respondents’ rights can be adequately vindicated at the conclusion of the
ALJ’s proceedings. Should the ALJ rule against Respondents, Respondents can
appeal to the Board and the Board can review the question of whether Complainant
16 Id. at 4.
17 Gloss v. Tata Chems. N. Am., ARB No. 2022-0054, ALJ No. 2020-CAA-00008, slip op.
at 4 (ARB Sept. 20, 2022) (finding, in part, that whether the complainant had engaged in
protected activity was one of the complainant’s central claims and was squarely on the
merits).
18 Lattimore v. Alaska Airlines, Inc., ARB No. 2025-0089, ALJ No. 2025-AIR-00038,
slip op. at 5 (ARB Mar. 9, 2026) (citation omitted).
19 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. Sept. 2025 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.”).

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engaged in protected activity, along with any other alleged error by the ALJ. If the
Board agrees with Respondents, the Board can order the appropriate relief. Even if
there may be some efficiency to reviewing the issue now, that does not render an
issue “effectively unreviewable.” Moreover, the Board has repeatedly held that
orders on summary decision are not “effectively unreviewable.”20
CONCLUSION
For the foregoing reasons, we DENY Respondents’ interlocutory appeal.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge
20 See Gloss, ARB No. 2022-0054, slip op at 4 (an ALJ’s decision to grant summary
decision in part could be reviewed after the ALJ issued a final post-hearing decision);
Manoharan v. HCL America, Inc., ARB No. 2021-0031, ALJ Nos. 2018-LCA-00029, 2021-
LCA-00009, slip op. at 4 (ARB June 30, 2021) (an ALJ’s grant of summary decision on a
wage claim did not fall within the collateral order exception because it was fully reviewable
on appeal of the final decision of the ALJ); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v.
Ten West Cattle, Inc., ARB No. 2020-0059, ALJ No. 2018-TAE-00035, slip op. at 4 (ARB
Sept. 14, 2020) (an ALJ’s order denying a respondent’s motion for summary decision did not
satisfy the collateral order exception because questions regarding employee coverage were
fully reviewable on appeal of a final decision of the ALJ).