Decisions of the Administrative Review Board
Evans v. T-Mobile USA, Inc.
, ARB No. 15-037, ALJ No. 2012-SOX-36 (ARB Feb. 28, 2017)
Final Decision and Order
CLEAR AND CONVINCING EVIDENCE; SUMMARY DECISION GRANTED WHERE COMPLAINANT OFFERED NO EVIDENCE TO CONTRADICT EVIDENCE SUPPORTING RESPONDENT’S MOTION FOR SUMMARY DECISION
In Evans v. T-Mobile USA, Inc. , ARB No. 15-037, ALJ No. 2012-SOX-36 (ARB Feb. 28, 2017), the ARB affirmed the ALJ’s grant of summary decision in favor of the Respondent based on its affirmative defense that it established by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the Complainant’s protected activity. The Respondent had filed depositions and exhibits to support its motion for summary decision showing that the Complainant was fired because of (1) his self-professed lack of the substantive skills necessary to do his job and refusal to return to work under a new supervisor he did not trust; and (2) his lack of truthfulness during an investigation of a claim he had filed alleging retaliation and harassment based on his role in getting two prior supervisors fired for mismanagement. The Complainant offered no evidence to contradict these reasons for his firing.
Vander Boegh v. EnergySolutions, Inc.
, ARB No. 15-062, ALJ No. 2006-ERA-26 (ARB Feb. 24, 2017)
Final Decision and Order
MOTION TO REOPEN ENVIRONMENTAL WHISTLEBLOWER CLAIMS OVER WHICH COURT OF APPEALS FOUND THAT FEDERAL DISTRICT COURT LACKED SUPPLEMENTAL JURISDICTION INCIDENT TO THE COMPLAINANT’S KICK-OUT OF HIS ERA WHISTLEBLOWER CLAIM; ARB AFFIRMS ALJ’S CONCLUSION THAT 28 U.S.C.A. § 1367(d) ONLY TOLLS STATE LAW CLAIMS
MOTION TO REOPEN FILED MORE THAN THREE YEARS AFTER ALJ DISMISSED CLAIMS FOUND NOT TO BE TIMELY UNDER FRCP 60(b)(1), (b)(5) or (b)(6)
MOTION TO REOPEN UNDER FRCP 60(b); RULE 60(b)(1) AND STRATEGIC LITIGATION DECISIONS; RULE 60(b)(5) APPLIES ONLY TO POST JUDGMENT INCIDENTS; RULE 60(b)(6) REQUIRES SHOWING OF EXCEPTIONAL OR EXTRAORDINARY CIRCUMSTANCES
REQUEST FOR WAIVER UNDER 29 C.F.R. § 24.115 IS WAIVED IF NOT TIMELY RAISED BEFORE ALJ
In Vander Boegh v. EnergySolutions, Inc. , ARB No. 15-062, ALJ No. 2006-ERA-26 (ARB Feb. 24, 2017), the Complainant filed claims in April 2006 against several Respondents under seven whistleblower protection provisions alleging that he had not been hired as a landfill manager because of prior protected activity. In the present matter before the ARB, only the CWA (a/k/a FWPCA), SDWA, SWDA, and TSCA claims were at issue. Those claims had been dismissed and the Complainant was seeking to have them reinstated.
In December 2009, the Complainant notified the ALJ that he intended to use the “kick-out” provision of the ERA to file his ERA claim in U.S. District Court, and under the supplemental jurisdiction provision of 28 U.S.C. § 1367, his other whistleblower claims. In February 2010, the ALJ dismissed the ERA complaint and ordered that the other claims be held in abeyance pending the District Court’s decision whether it would exercise supplemental jurisdiction over those claims. In October 2011, the ALJ dismissed the other claims based on the Respondents’ stipulations, made at the Complainant’s request, that they would not contest the subject matter jurisdiction of those claims in the District Court action. Ultimately, in November 2014, the Sixth Circuit affirmed the District Court’s dismissal of the ERA complaint, and held that the District Court lacked supplemental jurisdiction under § 1367 over the CWA, SDWA, SWDA and TSCA claims. The Complainant then filed a motion with the ALJ seeking to have the ALJ’s dismissal of the CWA, SDWA, SWDA and TSCA claims vacated and those administrative complaints reinstated. The ALJ dismissed the motion, and the Complainant sought review by the ARB. The ARB affirmed the ALJ’s dismissal.
Supplemental jurisdiction under 28 U.S.C.A. § 1367
The Complainant first contended that “the ALJ erred in holding that 28 U.S.C.A. § 1367(d) provides for tolling of the limitations period for refiling a supplemental claim in the court of original jurisdiction only on a party’s state court claim during its pendency in federal court, arguing that section 1367(d) provides for tolling of the statute of limitations on ‘any’ claim brought in federal court.” Slip op. at 7. The ARB found that the Sixth Circuit had held that § 1367(a) expressly precludes supplemental jurisdiction over claims that are barred from district court jurisdiction by Federal statute; that Congress established exclusive federal court jurisdiction over claims filed under the CWA, SDWA, SWDA and TSCA through appellate review following an agency administrative decision; and that there was no statutory private right of action under those laws. The ARB found that it was bound by the Sixth Circuit’s holding, regardless of the Complainant’s argument that it should be ignored because the Sixth Circuit is the only appellate court to have addressed the issue. The ARB also found that its own caselaw is in accord with the Sixth Circuit’s holding, citing Abbs v. Con-Way Freight, Inc. , ARB No. 08-017, ALJ No. 2007-STA-37 (ARB July 27, 201). The ARB also ruled that § 1367(d) only tolls related state court claims.
Because neither the whistleblower regulations at 29 C.F.R. Part 24 nor the OALJ rules of practice and procedure at 29 C.F.R. Part 18 address a motion to vacate an order of dismissal and reinstate whistleblower claims, FRCP 60 is applied. See 29 C.F.R. § 18.1(a) (2014) (rule in effect at time of ALJ’s decision) and 29 C.F.R. § 18.10(a) (2016) (same rule under new regulations).
- Timeliness of motion
The ARB found that the ALJ did not abuse his discretion in finding that the Complainant’s request for relief under FRCP 60(b) was not timely. In regard to a claim of mistake, inadvertence surprise or excusable neglect under FRCP 60(b)(1), pursuant to FRCP 60(c)(1) the motion would have had to have been filed within one year after entry of the ALJ’s order dismissing the environmental whistleblower claims. Here, the Complainant’s motion was filed more than three years after the ALJ’s Order of Dismissal. In regard to a claim of relief under FRCP 60(b)(5) and 60(b)(6), the motion must have been made “within a reasonable time,” and the ARB agreed with the ALJ that more than three years after the ALJ entered his Order was not reasonable.
- Merits of Rule 60(b) motions
The ARB made an alternative ruling on the ALJ’s findings on the merits of the Rule 60(b) motion. The Complainant made his arguments under FRCP 60(b)(1), (b)(5) and (b)(6).
- Rule 60(b)(1) and strategic litigation decision
FRCP 60(b)(1) provides for relief from a final order based on “mistake, inadvertence, surprise, or excusable neglect.” In the instant case, the ARB found that the ALJ “did not abuse his discretion in holding that because Vander Boegh ‘made a strategic decision’ on his own, and not due to an error or EnergySolutions’ misconduct, Vander Boegh ‘may not avoid the consequences of the decision’ with a ‘re-do.’” Id . at 11.
- Rule 60(b)(5) only applies to incidents that occur after entry of order from which relief is sought
FRCP 60(b)(5) provides for relief from a final order based on a finding that “the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.” The ARB noted that this type of relief is "based upon incidents that occur after the entry of judgment," and found that “the ALJ did not abuse his discretion in holding that the ALJ’s original Order of Dismissal was not a ‘prospective’ order.”
- Rule 60(b)(6) requires showing of exceptional or extraordinary circumstances
FRCP 60(b)(6) provides for relief from a final order based on “any other reason that justifies relief.” The ARB noted that this type of relief requires a party to posit facts or allegations which “establish” an extraordinary situation which cannot fairly or logically be classified as mere “neglect.” The ARB found that the ALJ “did not abuse his discretion in holding that Vander Boegh failed to address or advocate any ‘exceptional or extraordinary circumstances.’”
The Complainant noted that the ALJ dismissed his claims under the CWA, SDWA, SWDA, and TSCA only due to the Complainant’s consent and the Respondents’ stipulations not to contest the subject matter jurisdiction of these claims in federal court. The Complainant argued that allowing him to refile these claims would promote the public interest purposes of these environmental whistleblower statutes, and that it would not have served judicial economy if he had been required to pursue these claims before the ALJ while separately pursuing his ERA claim in federal court. The ARB was not persuaded, noting that the Complainant had chosen to remove his ERA claim as well as his other claims to federal court, but did not have to do so. Moreover, the ARB cited a Fifth Circuit decision where the court stated that efficiency and economy cannot confer jurisdiction where Congress has chosen to limit it. Griffin v. Lee , 621 F.3d 380, 389-90 (5th Cir. 2010).
The ARB found that the ALJ did not abuse his discretion when he found that the Respondent had not misled the Complainant respecting the cause of action; the Complainant was not prevented from asserting his rights; and the Complainant had not mistakenly raised his claims in the wrong forum. The ARB also noted that the Complainant had not asserted and the record did not establish that the Respondent lulled the Complainant into foregoing prompt attempts to vindicate his rights.
Waiver under 29 C.F.R. § 24.115
The regulation at 29 C.F.R. § 24.115 provides that in “special circumstances . . . or for good cause shown, the ALJ or the ARB on review may ... waive any rule or issue any orders that justice or the administration of the [CWA, SDWA, SWDA, and TSCA] requires.” The Complainant requested that the ARB invoke this regulation. The ARB, however, found that the Complainant had the opportunity to argue this contention before the ALJ, but did not do so, and therefore had waived the argument on appeal. The ARB further noted that the Complainant had “failed to address or advocate any ‘exceptional or extraordinary circumstances’ that could also have merited relief pursuant to 29 C.F.R. § 24.115.” Slip op. at 13 (footnote omitted).
Rimini v. J.P. Morgan Chase & Co.
, ARB No. 17-026, ALJ No. 2015-SOX-34 (ARB Feb. 23, 2017)
Order Remanding Case to Administrative Law Judge to Resolve Pending Motion for Reconsideration
The Complainant filed a a motion for reconsideration with the ALJ prior to the date that the Complainant filed a petition requesting the ARB to review the ALJ’s decision and order. The ARB remanded the case for the ALJ to rule on the motion for reconsideration. The ARB stated that once the ALJ has ruled, the Complainant may reactivate his appeal by notifying the Board of his intention to do so within 14 days, upon which the ARB would determine whether to accept the appeal for disposition. Although the ARB did not provide much detail about its ruling, it cited 29 C.F.R. § 18.93, which is the provision of the OALJ rules of practice and procedure which provides that a motion for reconsideration must be filed no later than 10 days after service of the ALJ’s decision on the moving party.
Gupta v. Headstrong, Inc.
, ARB Nos. 15-032, -033, ALJ No. 2014-LCA-8 (ARB Feb. 14, 2017)
Order Denying Motion for Reconsideration
- PDF (USDOL/OALJ Reporter)
The ARB denied the H-1B Petitioner’s motion for reconsideration where it was not supported by legally sufficient grounds.
Vinayagam v. Cronous Solutions, Inc.
, ARB No. 15-045, ALJ No. 2013-LCA-29 (ARB Feb. 14, 2017)
Final Decision and Order
UNCONTESTED EVIDENCE THAT H-1B WORKER VOLUNTARILY STAYED IN THE U.S.—EVEN AFTER THE RESPONDENT INFORMED HER THAT SHE HAD BEEN TERMINATED FROM EMPLOYMENT AND AFTER USCIS WAS INFORMED OF THE TERMINATION—WAS SUFFICIENT TO GRANT SUMMARY DECISION AS TO RESPONDENT’S NON-LIABILITY FOR POST-TERMINATION WAGES, EVEN THOUGH THE RESPONDENT HAD NOT PAID FOR THE COST OF TRANSPORTATION HOME OR EVEN OFFERED TO DO SO
In Vinayagam v. Cronous Solutions, Inc. , ARB No. 15-045, ALJ No. 2013-LCA-29 (ARB Feb. 14, 2017), the Prosecuting Party was an H-1B worker. The ARB affirmed the ALJ’s grant of summary decision on the ground that the Respondent ended its obligation to pay the Prosecuting Party’s wages by terminating her employment and informing the DHS-USCIS of the termination, notwithstanding not having paid her return transportation costs to India, because uncontested evidence supporting the motion for summary decision showed that the Prosecuting Party stayed in the U.S. without a valid visa after the termination. In Vinayagam , the parties had previously settled in federal district court a dispute about back wages up to the time of the termination. Thus, the only issue before the ALJ and the ARB was whether the Respondent’s wage obligation continued beyond the termination date up to the date of the originally authorized period of employment under the LCA.
The ARB noted the three part test stated in Amtel Group of Fla., Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006), for an employer to effect a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii) and end its obligation to pay wages. The employer must (1) expressly terminate the employment relationship with the H-1B nonimmigrant worker; (2) notify USCIS of the termination so that USCIS can revoke its prior approval of the employer’s H-1B petition under 8 C.F.R. § 214.2(h)(11); and (3) provide the H-1B nonimmigrant worker with payment for transportation home under certain circumstances as provided in 8 C.F.R. § 214.2(h)(4)(iii)(E). The absence of a payment for transportation home, however, is not dispositive of the question of whether a bona fide termination had been effected. Rather, an employer can avoid liability based on certain actions by the H-1B worker, such as the worker’s marriage to a U.S. citizen, the filing by a new prospective H-1B employer of a petition to sponsor the H-1B worker, and the H-1B worker’s declining of an offer to pay the transportation home.
In the instant case, the Respondent did not pay for transportation costs home, or even offer to do so. However, the Prosecuting Party, after being informed that her employment was terminated, “voluntarily chose to remain in the United States, admittedly without a valid visa or other legal permission or authority to be in the United States.” Slip op. at 9. Thus, the ARB affirmed the ALJ’s grant of summary decision. The ARB noted that, had the Respondent’s failure to meet its obligation to pay for return transportation home left the Prosecuting Party in the U.S. against her will, the result would have been different.
One member of the ARB wrote a concurring opinion to express concern that the Respondent appeared to have been engaged in the deceptive practice of job shopping by a staffing company in violation of 8 U.S.C.A. § 1182(n)(1)(F), which makes it “illegal for an H-1B employer to place a nonimmigrant worker with another employer (regardless of whether or not such other employer is an H-1B-dependent employer) where the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer, where there are indicia of an employment relationship between the nonimmigrant and such other employer.” Slip op. at 10.
Swint v. NetJets Aviation, Inc.
, ARB No. 17-012, ALJ Nos. 2014-AIR-21, 2016-AIR-11 (ARB Feb. 8, 2017)
Order Dismissing Appeal
ALJ DECISION ON MOTION FOR SUMMARY DECISION WHERE SOME CLAIMS ARE DISMISSED BUT OTHERS SET FOR HEARING; ARB CONSIDERS SUCH AN APPEAL TO BE INTERLOCUTORY, AND WILL GENERALLY NOT ENTERTAIN APPEALS OF ALJ DECISIONS THAT ARE NOT FINAL DISPOSITIONS OF THE MATTER
In Swint v. NetJets Aviation, Inc. , ARB No. 17-012, ALJ Nos. 2014-AIR-21, 2016-AIR-11 (ARB Feb. 8, 2017), the ALJ issued a “Decision and Order Granting in Part, and Denying in Part, Respondent’s Motion for Summary Decision. ” In this order, the ALJ dismissed twelve of the Complainant’s claims, but denied summary decision on two remaining claims, and notified the parties that at the hearing he would hear evidence only on the two remaining claims. The ALJ’s order included a Notice of Appeal Rights. The Complainant filed an appeal with the ARB. The ARB dismissed the appeal because the ALJ’s disposition of the matter was not final. The ARB wrote:
The Secretary of Labor has delegated authority to issue final agency decisions in cases arising under AIR-21 to the Board. This authority also includes the consideration and disposition of interlocutory appeals, “in exceptional circumstances, provided such review is not prohibited by statute. ”
Because the ALJ has not fully and finally disposed of consolidated ALJ case nos. 2014-AIR-021 and 2016-AIR-011, it could be argued that Swint’s petition is for interlocutory review (i.e., review of a non-final decision). But although the Board may accept interlocutory appeals in “exceptional” circumstances, it is not the Board’s general practice to accept petitions for review of non-final dispositions issued by an ALJ.
The ARB understands that because the ALJ provided a notice of appeal rights, it was prudent of Swint to file a petition for review. Nevertheless, it is incumbent upon Swint to demonstrate why the Board should depart from its usual practice and accept his interlocutory appeal. Accordingly, the Board ordered Swint to show cause no later than January 18, 2017, why the Board should not dismiss his appeal as interlocutory. We cautioned Swint that “Failure to timely respond to this Order may result in dismissal of the appeal without further order. ”
Swint did not file a response to the Board’s Show Cause Order. Accordingly, he has failed to carry his burden of demonstrating why the Board should accept his interlocutory appeal.
Slip op. at 2 (footnotes omitted).
Leaks v. Arctic Glacier
, ARB No. 15-079, ALJ No. 2014-STA-80 (ARB Feb. 7, 2017)
Final Decision and Order
The ARB affirmed the ALJ denial of STAA complaint where substantial evidence of record supported the ALJ’s findings of fact and credibility determinations, and the ALJ’s decisions was otherwise in accordance with applicable law. The ALJ had found that the Complainant s failed to prove that he engaged in protected activity under § 31105(a)(1)(B)(i) because he failed to prove that he refused to drive the assigned tractor because its operation violated a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security. The ALJ had also found that the Complainant failed to prove that he engaged in protected activity within the meaning of § 31105(a)(1)(B)(ii) because he failed to establish that he refused to drive because of a reasonable apprehension of serious injury to himself or the public due to any hazardous safety or security condition of the assigned tractor. The ALJ also found that the Complainant did not prove that a reasonable person would have concluded under the circumstances that there was a defect in the truck likely to cause a serious injury.