29 C.F.R. § 2200.73

Interlocutory review

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(a) General. Interlocutory review of a Judge's ruling is discretionary with the Commission. A petition for interlocutory review may be granted only where the petition asserts and the Commission finds:

(1) That the review involves an important question of law or policy that controls the outcome of the case, and that immediate review of the ruling will materially expedite the final disposition of the proceedings or subsequent review by the Commission may provide an inadequate remedy; or

(2) That the ruling will result in a disclosure, before the Commission may review the Judge's report, of information that is alleged to be privileged.

(b) Petition for interlocutory review. Within 7 days following the service of a Judge's ruling from which review is sought, a party may file a petition for interlocutory review with the Commission. Responses to the petition, if any, shall be filed within 7 days following service of the petition. Service of the filed petition on the other parties and intervenors shall be accomplished in a manner prescribed in § 2200.7(c). A copy of the petition and responses shall be filed with the Judge. The petition is denied unless granted within 30 days of the date of receipt by the Commission's Executive Secretary. A corporate party that files a petition for interlocutory review or a response to such a petition under this section shall file with the Commission a copy of its declaration of corporate parents, subsidiaries, and affiliates previously filed with the Judge under the requirements of § 2200.35 or § 2200.37(d)(4). In its discretion the Commission may refuse to accept for filing a petition or response that fails to comply with this disclosure requirement. A corporate party filing the declaration required by this paragraph shall have a continuing duty to advise the Executive Secretary of any changes to its declaration until the petition is deemed denied or a decision is issued on the merits.

(c) Denial without prejudice. The Commission's decision not to grant a petition for interlocutory review shall not preclude a party from raising an objection to the Judge's interlocutory ruling in a petition for discretionary review.

(d) Stay—(1) Trade secret matters. The filing of a petition for interlocutory review of a Judge's ruling concerning an alleged trade secret shall stay the effect of the ruling until the petition is deemed denied or ruled upon.

(2) Other cases. In all other cases, the filing or granting of a petition for interlocutory review shall not stay a proceeding or the effect of a ruling unless otherwise ordered.

(e) Judge's comments. The Judge may be requested to provide the Commission with written views on whether the petition is meritorious. When the written comments are filed with the Commission, the Judge shall serve the comments on all parties in a manner prescribed in § 2200.7(c).

(f) Briefs. Notice shall be given to the parties if the Commission decides to request briefs on the issues raised by an interlocutory review. See § 2200.93—Briefs before the Commission.

(g) When filing effective. A petition for interlocutory review is deemed to be filed only when received by the Commission, as specified in § 2200.8(d)(3)(ii).

[84 FR 14558, Apr. 10, 2019; 84 FR 53053, Oct. 4, 2019]

Notes of Decisions

Cited in 31 cases (3 in the last 5 years), 1974–2025 · leading case: Chao v. Roy's Constr., Inc., 517 F.3d 180 (3rd Cir. 2008).

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Chao v. Roy's Constr., Inc., 517 F.3d 180 (3rd Cir. 2008). · cites it 4× “See 29 C.F.R. § 2200.73 (2007). In the federal judicial system, the merger rule is closely linked to the statutory final judgment rule.”

Comtran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304 (11th Cir. 2013). · cites it 3× “at 401-02 (quoting 29 C.F.R. § 2200.73 (a)). Thereafter, the Tenth Circuit addressed this issue in Mountain States Telephone & Telegraph Co.”

Maryland Comm'r of Labor & Indus. v. Cole Roofing Co., 796 A.2d 63 (Md. 2002). · cites it 2× “The initial coupling of knowledge/pre-ventability and burden of proof came in the context of general duty violations and an OSHRC regulation, 29 C.F.R. § 2200.73 (a), that was in force between 1972 and 1986.”

In Re Stephen C. Perry, 882 F.2d 534 (1st Cir. 1989). “§ 661 (f); 29 C.F.R. § 2200.73 (b) (1988); see also In re Perry, 859 F.”

BUNGE Corp., Petitioner, v. Sec'y OF LABOR & the Occupational Saf. & Health Review Comm'n, Respondents, 638 F.2d 831 (5th Cir. 1981). “2d at 1372 (Secretary has burden of proving all elements of a violation); 29 C.F.R. § 2200.73 (a) (placing on Secretary burden of proof in proceedings commenced, as here, by the filing of a notice of contest).”

Modern Drop Forge Co. v. Sec'y of Labor, 683 F.2d 1105 (7th Cir. 1982). “29 C.F.R. § 2200.73 (a); cf. Bunge Corp., 638 F.”

William E. Brock, Sec'y of Labor v. Williams Enter. of Georgia, Inc., & Occupational Saf. & Health Review Comm'n, 832 F.2d 567 (11th Cir. 1987). “29 C.F.R. § 2200.73 ; B & B Insulation, 583 F.”

Peter J. Brennan, Sec'y of Labor v. Occupational Saf. & Health Review Comm'n & Raymond Hendrix, D/B/A Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975). “29 C.F.R. § 2200.73 (a). In the present case the Secretary, fully aware of rule 73(a), affirmatively alleged knowledge on the part of the employer.”

Capital Elec. Line Builders of Kansas, Inc. v. Ray Marshall, Sec'y of Labor, 678 F.2d 128 (10th Cir. 1982). “employee misconduct rests with the Secretary of Labor. Id. at 158. The basis of this decision was Commission Rule 73(a), which places the burden of establishing an alleged violation on the Secretary in all cases.”

In Re Stephen C. Perry, 859 F.2d 1043 (1st Cir. 1988). “See 29 C.F.R. § 2200.73 (b) (1987). We have no appellate jurisdiction over the Commission’s denial of Perry’s petition for interlocutory review.”

CARNATION Co., Petitioner, v. Sec'y OF LABOR, & Occupational Saf. & Health Review Comm'n, Respondents, 641 F.2d 801 (9th Cir. 1981). “29 C.F.R. 2200.73. The question here is what precisely is the Secretary’s burden of proof.”

Power Plant Div., Brown & Root, Inc. v. Occupational Saf. & Health Review Comm'n, & Raymond J. Donovan, 659 F.2d 1291 (5th Cir. 1981). “Brown & Root argues that under 29 C.F.R. § 2200.73 (a), “[i]n all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary,” and that the Secretary should therefore have been required to prove that the chains were not the…”

Show all 31 citing cases →

— 29 C.F.R. § 2200.73(a) — 2 cases

7 O.S.H. Cas.(bna) 1462, 1979 O.S.H.D. (Cch) P 23,651 Bristol Steel & Iron Works, Inc. v. Occupational Saf. & Health Review Comm'n, & Ray Marshall, Sec'y of Labor, 601 F.2d 717 (4th Cir. 1979).

Bristol Steel & Iron Works, Inc. v. Occupational Saf. & Health Review Comm'n, 601 F.2d 717 (4th Cir. 1979).

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