Unpublished Dispositionwilliam Ward, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent.in Re William Ward, Petitioner, 829 F.2d 1127 (6th Cir. 1987)

The petitioner seeks review of a Benefits Review Board order dismissing his appeal from an Administrative Law Judge's order directing him to undergo pulmonary evaluation. The Director now moves to dismiss on grounds that this Court lacks jurisdiction to consider the matter. The petitioner has responded in opposition to the motion, and has filed a petition for writ of mandamus as an alternate basis for review.

The petitioner's back lung claims were denied by the Department of Labor, and at his request the case was referred to an Administrative Law Judge for a formal hearing. The Deputy Commissioner requested that the petitioner schedule complete pulmonary evaluation. Upon the petitioner's refusal, the ALJ ordered him to undergo a pulmonary examination. The petitioner appealed the ALJ's order to the Benefits Review Board, which dismissed the appeal as interlocutory.

Under 33 U.S.C. § 921(c), this Court has jurisdiction to review final orders issued by the Benefits Review Board. However, we may hear appeals from non-final agency orders under the collateral order doctrine if the three requirements of Cohen v. Beneficial Industrial Loan Co., 337 U.S. 541 (1949) are fulfilled. Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, 535 F.2d 758 (3d Cir. 1976). In order to bring an interlocutory appeal, the petitioner must demonstrate that the order to be reviewed conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action and is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

The BRB's order does not involve an issue completely separate from the merits of the petitioner's claim for black lung benefits. Instead, his claim will be resolved on the basis of the evidence obtained through the challenged examination. Therefore, this Court may not exercise jurisdiction over the instant appeal under the collateral order doctrine.

Alternatively, the petitioner seeks review of the ALJ's order through a writ of mandamus (more appropriately in this case, a writ of prohibition). A writ of prohibition is a drastic and extraordinary remedy which should be granted only when the petitioner has shown that his right to the writ is clear and indisputable. In re Grand Jury Proceedings, Vargas, 723 F.2d 1461, 1467 (10th Cir. 1983), cert. denied, 469 U.S. 819 (1984); In re State of Missouri, 664 F.2d 178, 180 (8th Cir. 1981). The right to the writ is clear and indisputable only when the petitioner demonstrates a judicial usurpation of power or a clear abuse of discretion. Vargas, 723 F.2d at 1468; Equal Employment Opportunity Commission v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir. 1982).

Although the petitioner argues that the ALJ's order directing him to undergo pulmonary evaluation is a usurpation of power, motions to compel physical examinations are clearly within the authority of an Administrative Law Judge. 29 C.F.R. Secs. 18.19, 18.21 (1986). Because the petitioner has failed to satisfy his burden of showing that the right to issuance is clear and indisputable, this Court may not grant the relief sought.

Accordingly,

It is ORDERED that the motion to dismiss is granted. It is further ORDERED that the petition for writ of mandamus/prohibition is denied.