Yellow Freight System, Inc., Petitioner, v. Robert B. Reich, Secretary of Labor, Respondent, 21 F.3d 429 (6th Cir. 1994)

ORDER

The petitioner seeks review of an order of the Secretary of Labor entered following this court's remand in Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). In his order, the Secretary directed the petitioner to offer reinstatement to an employee who had been previously terminated and further remanded the matter to the administrative law judge for consideration of additional relief. The Secretary moves for dismissal of this appeal on grounds that his decision is not yet final because the issue of backpay remains for consideration. The petitioner responds by asking that this court place the appeal in abeyance, including the motion to dismiss, until the Secretary has resolved the issues before it.

In another context, we have held that an appeal from an administrative order remanding to an administrative law judge for further proceedings was not final and therefore not immediately appealable. Canada Coal Company v. Stiltner, 866 F.2d 153 (6th Cir. 1989). Although the statute granting the right of appeal in the instant case, 49 U.S.C.App. Sec. 2305(d), does not specifically require that the order from which appeal is taken be "final," the statute elsewhere contemplates that the Secretary will enter a "final" order following a hearing. See Sec. 2305(c). We conclude that in the instant case, the Secretary has yet to enter a final order. Further, this is not a situation in which postponing appeal of the reinstatement order until the Secretary has entered a final order will result in the loss of the right to appeal that issue. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

It therefore is ORDERED that the motion to dismiss is granted, without prejudice to Yellow Freight's right to perfect a timely appeal from the Secretary's final order and raise therein any issues with respect to the order of reinstatement.