(a) Overview. An interlocutory appeal is a challenge brought before an Appeals Board of a non-final order issued by an ALJ prior to the conclusion of the proceeding. Permission must be obtained before an interlocutory appeal can be filed with an Appeals Board and will only be authorized in limited circumstances.

(b) General procedures. Permission to file an interlocutory appeal is a two-step process, requiring a party to:

(1) File an application requesting the ALJ to certify an ALJ order, in whole or in part, for interlocutory appeal; and

(2) Petitioning the Appeals Board for permission to file an interlocutory appeal of the ALJ's order, in whole or in part.

(c) Standards for ALJ certification. The ALJ will certify an order for interlocutory appeal only when the ALJ determines that:

(1) The order involves a controlling question of law about which there are substantial grounds for difference of opinion; and

(2) An immediate appeal will materially advance the completion of the proceeding.

(d) Timing and content of application. An application requesting certification must be filed and served within 14 days of the date of the ALJ's order. The application must:

(1) Identify the order, or portion of the order, for which review is sought;

(2) Clearly and concisely state the grounds for appeal; and

(3) Demonstrate that the standards for certification in paragraph (c) of this section are met.

(e) Responses. Any party that opposes the application for certification may file and serve a response within 14 days of the filing of the application.

(f) ALJ certification. Based on a review of the application and any responses filed, the ALJ may:

(1) Certify the order, or portion of the order, for interlocutory appeal; or

(2) Deny the application.

(g) Petition to Appeals Board. Within 14 days of the ALJ's ruling on the application for certification, the requesting party may petition the Appeals Board for permission to file an interlocutory appeal. The petition must include:

(1) A copy of the ALJ's order for which review is sought;

(2) Copies of all filings made in support of or in opposition to the application for certification before the ALJ;

(3) A copy of the ALJ's certification for interlocutory appeal or the order denying the application for certification; and

(4) If the ALJ denied the application for certification, a clear and concise statement of reasons explaining why the ALJ's denial was an abuse of discretion.

(h) Permission from Appeals Board. The Appeals Board will grant or deny permission to file an interlocutory appeal in accordance with § 4.28 or § 4.414 of this part.

(i) Suspension of proceeding. Neither the certification of an order for interlocutory appeal nor an interlocutory appeal will operate to suspend the proceeding before the ALJ unless so ordered by the ALJ or Appeals Board.