Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

A&D Construction, LLC, ARB No. 2026-0047 (ARB July 31, 2026) (Order of Dismissal)

ORDER OF DISMISSAL; PREMATURE APPEAL; WITHDRAW OF APPEAL

In A&D Construction, LLC, ARB No. 2026-0047 (ARB July 31, 2026), the ARB dismissed a Petition for Review filed by A&D Construction, LLC after Petitioner filed a Motion to Withdraw Appeal Request Without Prejudice.

Petitioner was the subject of a WHD investigation regarding alleged violations of the DBA. Petitioner disagreed with the WHD's preliminary findings in part and articulated its disagreement in two letters to the WHD dated April 6, 2026 and May 21, 2026. Petitioner claims its May 21 letter did not receive a response, and the WHD instead informed Petitioner's general contractor that the Department of Labor intended to request withholding of further payment to the general contractor to satisfy penalties against Petitioner. On June 9, 2026, Petitioner filed a letter with the ARB, "noting [its] right to appeal for the reasons as set forth in its April 6, 2026 and May 21, 2026 letters."

The ARB only has jurisdiction after the Administrator of WHD refers a case under the DBA to the Chief Administrative Law Judge upon timely request, and the case has been assigned, heard, and a "final decision" has been issued by an ALJ.  It was apparent from Petitioner's submission that Petitioner's case had not yet been heard by an ALJ. Therefore, on June 24, 2026, the ARB issued an Order to Show Cause, ordering Petitioner to file a written brief explaining why the ARB should not dismiss its appeal as premature.

In response, Petitioner filed a Motion to Withdraw Appeal Request Without Prejudice, in which it acknowledged the appeal to the ARB was premature. Accordingly, the ARB granted Petitioner's motion and dismissed the Petition for Review without prejudice.

Christopher v. Prime Logistics Corp, ARB No. 2026-0051, ALJ No. 2026-STA-00005 (ARB July 7, 2026) (Order of Administrative Closure)

COMPLAINANT EXERCISED STAA'S KICK-OUT PROVISION; THE DISTRICT COURT FILING DIVESTED DOL'S ADJUDICATORY TRIBUNALS OF JURISDICTION OVER THIS MATTER

In Christopher v. Prime Logistics Corp, ARB No. 2026-0051, ALJ No. 2026-STA-00005 (ARB July 7, 2026), the ARB declined to accept Complainant's Petition for Review and administratively closed the case for lack of jurisdiction.

Complainant filed a complaint with OSHA on November 15, 2024, alleging that Respondents retaliated against him for engaging in protected activity. On September 16, 2025, OSHA issued Secretary's Findings, concluding that there was no reasonable cause to believe that Respondents violated the STAA. Complainant thereafter filed objections and requested a hearing before the OALJ.

The matter had been assigned to an ALJ, and on April 9, 2026, Complainant informed the ALJ that he was seeking removal to the U.S. District Court for the Northern District of Illinois. A telephonic prehearing conference remained scheduled for April 16, 2026, but Complainant did not file a prehearing statement or a copy of the district court complaint before the conference. When the ALJ convened the conference, neither party appeared. The ALJ issued an Order to Show Cause directing Complainant to explain why the case should not be dismissed for failure to attend.

Also on April 16, 2026, Complainant filed a civil action in district court. On April 20, 2026, Complainant emailed OALJ a notice of filing, certificate of service, and file-stamped district court complaint, but he did not respond to the Order to Show Cause. On June 8, 2026, the ALJ issued an Order of Dismissal. Later that day, Complainant moved for reconsideration, asking the ALJ to vacate the dismissal with prejudice and instead dismiss without prejudice to reflect his exercise of the STAA kick-out provision. In the alternative, Complainant sought relief based on mistake, inadvertence, or excusable neglect. Complainant also filed a Petition for Review with the ARB.

While Complainant's Petition for Review before the ARB was pending, the ALJ granted reconsideration. The ALJ found that Complainant's district court filing was timely despite being sent to the wrong OALJ email address, removed the sanction basis for dismissal, and dismissed the OALJ case because the district court filing divested OALJ of jurisdiction.

The ARB then reviewed Complainant's Petition for Review and held that because more than 210 days had passed without a final decision by the Secretary, Complainant was entitled to proceed in district court under the STAA. Once he filed in district court, DOL's adjudicatory tribunals, including the ARB, lacked jurisdiction. The ARB therefore declined to accept review and administratively closed the matter.

Hall v. Eastern Panhandle Anesthesia Associates Inc., ARB No. 2025-0034, ALJ No. 2023-AIR-00024 (ARB July 9, 2026) (Decision and Order)

AIR21 COVERAGE; HOSPITAL AND ANESTHESIOLOGY PRACTICE WERE NOT AIR CARRIERS OR CONTRACTORS/SUBCONTRACTORS OF AIR CARRIERS PROVIDING SAFETY-SENSITIVE FUNCTIONS

In Hall v. Eastern Panhandle Anesthesia Associates Inc., ARB No. 2025-0034, ALJ No. 2023-AIR-00024 (ARB July 9, 2026), the ARB affirmed the ALJ's grant of summary decision, concluding Respondents were not covered entities under AIR21.

Complainant worked as an anesthesiologist for Eastern Panhandle Anesthesia Associates, Inc. (EPAA), which provided anesthesiology services to City Hospital, Inc., d/b/a Berkeley Medical Center (BMC) under a professional services agreement. Complainant filed an AIR21 whistleblower complaint against Respondents alleging retaliation after reporting safety concerns. OSHA determined that Respondents were not covered by AIR21 and that Complainant was not an employee under the Act. Complainant requested an ALJ hearing, and both Respondents moved for summary decision on coverage grounds. The ALJ granted Respondents' motions.

On appeal, the ARB held that neither EPAA nor BMC were air carriers under the pre-2020 version of AIR21. Although BMC was part of West Virginia University Health System, which partially owned HealthNet Aeromedical Services, an air-ambulance provider, the ARB concluded that corporate affiliation with an air carrier does not itself establish AIR21 coverage. Additionally, the ARB held that neither Respondent was an indirect air carrier. The ARB distinguished Cobb v. FedEx Corp. Servs. Inc., ARB No. 16-030, ALJ No. 2010-AIR-24 (ARB Sept. 29, 2017) and explained that indirect air carrier status does not attach to affiliated medical entities that do not operate or integrate themselves into air transportation for hire.

The ARB also held that Respondents were not contractors or subcontractors of an air carrier. EPAA contracted with BMC to provide anesthesiology services, and there was no evidence that EPAA or BMC contracted with HealthNet to perform safety-sensitive aviation functions. Providing medical services was not the same as providing air-safety services such as flight crew duties, aircraft maintenance, dispatch, or similar functions.

Because Respondents were neither air carriers nor contractors or subcontractors of air carriers performing safety-sensitive functions, Respondents were not covered by AIR21. The ARB therefore affirmed the ALJ's decision granting summary decision for lack of coverage.

Hukman v. American Airlines, Inc., ARB Nos. 2024-0016, -0020, ALJ No. 2015-AIR-00003 (ARB July 17, 2026) (Decision and Order)

SUBSTANTIAL EVIDENCE STANDARD OF REVIEW; SAME ACTION AFFIRMATIVE DEFENSE 

In Hukman v. American Airlines, Inc.,ARB Nos. 2024-0016, -0020, ALJ No. 2015-AIR-00003 (ARB July 17, 2026), the ARB affirmed the ALJ's D. & O., concluding that Respondent violated AIR21 when it placed Complainant on unpaid medical leave while she awaited the results of an independent medical exam (IME).

Complainant worked as a customer service agent for Respondent. Her duties included boarding passengers, issuing boarding passes, checking baggage, and assisting with flight operations at departure gates. Between 2010 and 2012, Complainant made written and verbal reports to supervisors and managers about what she believed were aviation-safety and FAA violations. Her reports included allegations involving aircraft weight-and-balance procedures, inaccurate passenger manifests, manipulation of passenger counts on weight-restricted flights, employees boarding flights without being listed on manifests, and a passenger boarding an international flight without a valid passport or boarding pass.

During the same period, Complainant was also involved in multiple workplace conflicts. One incident occurred in November 2012, when she had a heated dispute with a Republic Airways captain over boarding priorities for non-revenue passengers. After an internal investigation, Respondent issued Complainant Level 1 discipline for failing to follow company policy and engaging in unprofessional behavior. Respondent also became concerned about Complainant's fitness for duty based on the number and nature of some of her complaints, including allegations that coworkers were monitoring her apartment, accessing her financial information, bugging airport areas, practicing witchcraft, spreading rumors that she was a terrorist, and conspiring against her.

On December 10, 2012, Respondent decided to require Complainant to undergo an IME under the parties' collective bargaining agreement, which permitted a medical examination when an employee's physical or mental condition might impair job performance or pose a safety hazard. Respondent placed Complainant on unpaid medical leave pending the IME results. The IME was conducted by a psychiatrist. The psychiatrist diagnosed Complainant with several psychiatric and personality disorders and recommended psychological testing, psychotherapy, and other treatment before Complainant returned to work. Respondent received the IME report on February 12, 2013, and informed Complainant that she had to complete the recommended testing and treatment before returning. Complainant disputed the diagnosis and recommendations but did not obtain a second medical opinion within the time provided by the collective bargaining agreement and did not complete the recommended treatment. Respondent kept her on unpaid leave and later deemed her to have resigned after approximately three years of noncompliance with the return-to-work requirements.

Complainant filed a complaint with OSHA on February 20, 2013. OSHA issued Secretary's Findings, concluding that there was no reasonable cause to believe that Respondents violated AIR21. Complainant thereafter filed objections and requested a hearing before the OALJ.

The OALJ proceedings were extensive. In 2015, an ALJ dismissed the complaint for failure to state a claim, but the ARB vacated and remanded the case for further proceedings. On remand, the ALJ granted summary decision for Respondent, and the ARB again vacated and remanded. The case was then reassigned to a different ALJ, who held a videoconference hearing from April 19 through 21, 2021. On January 12, 2024, the ALJ issued a D. & O., concluding that Complainant engaged in protected activity, that Respondent took adverse actions against her, and that her protected activity contributed to those actions. However, the ALJ found that Respondent proved by clear and convincing evidence that it would have taken some, but not all, of the same actions absent Complainant's protected activity.

Specifically, the ALJ concluded Respondent would have imposed Level 1 discipline, required the IME, required compliance with the IME-related testing and treatment recommendations, and separated Complainant after she failed to comply with those requirements. The ALJ also concluded Respondent did not prove that it would have placed Complainant on unpaid leave before receiving the IME results absent her protected activity.

AIR21 IS NOT A GENERAL REMEDY FOR WORKPLACE DISPUTES; THE ARB DOES NOT SIT AS A "SUPER-PERSONNEL DEPARTMENT;" AFTER-ACQUIRED EVIDENCE MAY LIMIT DAMAGES

Both parties appealed. The ARB affirmed the ALJ's findings. As to Complainant's appeal, the ARB emphasized that AIR21 is not a general remedy for workplace disputes unrelated to aviation safety and that the ARB does not sit as a "super-personnel department" to decide whether an employer's personnel decisions were wise or fair. The relevant question was whether AIR21-protected activity contributed to the adverse actions and, if so, whether Respondent proved it would have taken the same actions anyway. The ARB determined that the ALJ correctly focused on the proper inquiry and held that substantial evidence supported the ALJ's determination that Respondent established its same-action defense for the Level 1 discipline, the IME requirement, the post-IME testing and treatment requirements, and the eventual separation.

The ARB also affirmed the ALJ's ruling that the IME report limited Complainant's back-pay entitlement under after-acquired evidence principles. Once Respondent received the psychiatrist's report recommending testing and treatment before Complainant returned to work, Respondent had a legitimate safety-based basis to keep her out of service unless she complied with those recommendations.

AN EMPLOYER MAY RELY ON A CBA AS EVIDENCE FOR ITS DEFENSE; RELIANCE ON A CBA DOES NOT AUTOMATICALLY CONVERT A WHISTLEBLOWER CLAIM INTO A MINOR DISPUTE UNDER THE RLA AND/OR PRECLUDE DAMAGES

Then, as to Respondent's appeal, the ARB rejected the argument that the Railway Labor Act (RLA) and the collective bargaining agreement precluded the ALJ's award of AIR21 damages for the unpaid leave period before the IME. Although the collective bargaining agreement provided context and was relevant to Respondent's defenses, reliance on the agreement as evidence did not convert the AIR21 claim into a minor dispute under the RLA. The ARB further held that Respondent failed to prove by clear and convincing evidence that it would have placed Complainant on unpaid medical leave pending the IME absent protected activity. Thus, the ALJ properly awarded limited AIR21 relief for that period.

Accordingly, the ARB affirmed the D. & O., including the award of back pay with interest, $2,000 in compensatory damages, and reasonable litigation costs.

Ingrodi v. CSX Transportation Inc., ARB No. 2024-0017, ALJ No. 2019-FRS-00046 (ARB July 30, 2026) (Decision and Order)

SCOPE OF COVERAGE UNDER FRSA'S REFUSAL PROVISIONS; AFFIRMATIVE DEFENSE

In Ingrodi v. CSX Transportation Inc., ARB No. 2024-0017, ALJ No. 2019-FRS-00046 (ARB July 30, 2026), the ARB affirmed the ALJ's Decision and Order Dismissing Complaint. The ARB held that a non-work-related illness can constitute a hazardous safety or security condition for purposes of the Federal Railroad Safety Act's (FRSA) refusal provisions, which protect workers who refuse to perform work when confronted with a hazardous condition. The ARB further held that because Complainant did not satisfy the refusal provisions' notification requirement, his refusal to work was not protected under the FRSA.

The ARB affirmed the ALJ's finding that Complainant failed to notify his employer of the hazardous conditions (namely that he had a serious illness that would make it unsafe to work) until a pre-termination hearing that took place approximately two months after he refused to work. The ARB acknowledged that even though FRSA's protection refusals are broad and there are circumstances where notification is not possible, providing notification two months after the refusal, rather than prior to or shortly after the refusal, does not satisfy the notification requirement. Accordingly, Complainant's refusal to work was not protected under the FRSA.

The ARB also rejected Complainant's argument that his refusal was protected under Section 20109(a)(2) of the FRSA, which protects employees who refuse to violate or assist in the violation of any federal law, rule, or regulation relating to railroad safety or security. Complainant argued that working while seriously ill would have violated Respondent's safety policies, which require employees to remain alert and attentive at all times. Complainant further argued that since the Federal Railroad Administration regulations require railroad carriers to maintain safety policies, a refusal to violate CSX's safety policies was protected under subsection (a)(2). The ARB rejected this argument on the basis that it would impermissibly broaden the scope of subsection (a)(2)'s protection.

The ARB also affirmed the ALJ's finding that, even if Complainant had engaged in protected activity, Respondent had demonstrated by clear and convincing evidence that it would have taken the same adverse personnel action in the absence of Complainant's purported protected activity. At the time of Complainant's termination, Respondent had an attendance policy that included progressive discipline for employees who accrued more than a certain number of attendance points, which Respondent assigned to employees when they failed to show up for work shifts. Under this policy, Respondent terminated employees who accrued 20 or more attendance points while on the fourth and final disciplinary step. The ALJ found that this policy was uniformly applied by Respondent, and that Respondent would have terminated Complainant when he accrued more than 20 attendance points even if had accrued the points for reasons unrelated to his purported protected activity. The ARB affirmed this finding as supported by substantial evidence.

Larson v. Family Dollar, ARB No. 2026-0045, ALJ No. 2025-SOX-00010 (ARB July 17, 2026) (Decision and Order Denying Interlocutory Appeal)

ORDER OF DISMISSAL; INTERLOCUTORY APPEAL

In Larson v. Family Dollar, ARB No. 2026-0045, ALJ No. 2025-SOX-00010 (ARB July 17, 2026), Complainant Genevieve Larson filed a petition for interlocutory appeal with the ARB to review two orders issued by an ALJ.

Complainant filed a complaint with the United States Department of Labor's Occupational Safety and Health Administration (OSHA) on November 9, 2024, alleging that Respondent Family Dollar violated the SOX. OSHA dismissed the complaint.

On December 4, 2025, Howard Friesner filed a Non-Attorney Representative Notice of Appearance on behalf of Complainant. Respondent opposed allowing Friesner to appear as a non-attorney representative because Friesner sent Respondent at least 84 emails totaling more than 500 pages, some of which contained hostile language. Respondent contended that the correspondence demonstrated a pattern of abusive conduct rendering him unfit to serve as a non-attorney representative. The ALJ issued an Order to Show Cause Regarding Non-Attorney Representation, and cautioned Complainant that failure to respond would result in denying her request. Neither Complainant nor Friesner responded. On February 5, 2026, the ALJ issued an Order Denying Non-Attorney Representation, which found that Friesner had not conducted himself in a manner that warranted allowing him to serve as a non-attorney representative. On February 23, 2026, OALJ docketed a Response to the Motion to Remove Pro Se Representative. That same day, the ALJ issued a Second Order Denying Non-Attorney Representation, in which he found that there was no reason to amend or alter the prior order.

On June 10, 2026, the ALJ issued an Order Addressing Pending Motions, which addressed the following motions: (1) Complainant's Motion for Tax Neutralization/Gross-Up; (2) Respondent's Motion to Continue Hearing; (3) Complainant's Motion for Summary Decision; (4) Respondent's Motion to Continue Remaining Deadlines; and (5) Respondent's Motion for Protective Order. The ALJ found that Complainant' s request for damages was premature and denied Complainant's motion. The ALJ also denied Complainant's request for expedited relief, Complainant's request for a referral to the DOJ for criminal charges because he did not have the authority to do, and Complainant's motion for summary decision. The ALJ granted Respondent's request for a protective order and to continue the hearing and remaining deadlines.

On June 15, 2026, Complainant filed a petition for review with the ARB. Complainant contended that the ALJ's order denying her non-attorney representation satisfied the collateral order test. However, the Board found that Complainant's request for interlocutory review was untimely. Under the SOX, a party has fourteen days from the date of an ALJ order to file a petition for review. The ALJ issued the Second Order Denying Non-Attorney Representation on February 23, 2026. Complainant did not file her request for interlocutory review until June 15, 2026, which was well past the deadline.

Complainant also sought review of the ALJ's Order Addressing Pending Motions under the collateral order doctrine.

When a party seeks interlocutory review of an ALJ's non-final order, the ARB has elected to look to the interlocutory review procedures used by federal courts, including requesting the trial court certify issues involving a controlling question of law for immediate appeal in accordance with 28 U.S.C. § 1292(b). Complainant had not received ALJ certification.

If a party has failed to obtain ALJ certification, the ARB may still consider reviewing an interlocutory order that meets the "collateral order" exception. To fall within the "collateral order" exception, the order appealed must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

Setting aside the first and second prongs, the ARB concluded that Complainant's appeal did not satisfy the third prong. The ARB found that Complainant did not provide any support for her allegations, and that her appeal concerned procedural rulings and an order imposed to control the conduct of the proceedings before the OALJ. The ARB has repeatedly held that orders on summary decision are not "effectively unreviewable." The ARB determined that Complainant could appeal the ALJ's decision, including the procedural order and the restrictions it placed on her, at the conclusion of the ALJ proceedings.

Thus, the ARB denied Complainant's petition for interlocutory review and remanded the case to OALJ to continue the agency proceedings.

Reitz v. Moderna, Inc., ARB No. 2026-0039, ALJ No. 2023-SOX-00028 (ARB July 2, 2026) (Decision and Order)

TIMELINESS OF PETITION FOR REVIEW; EQUITABLE TOLLING NOT WARRANTED WHERE PETITION WAS LATE BASED ON COUNSEL'S MISUNDERSTANDING OF APPEAL AND RECONSIDERATION RULES

In Reitz v. Moderna, Inc., ARB No. 2026-0039, ALJ No. 2023-SOX-00028 (ARB July 2, 2026), the ARB dismissed Complainant's appeal as untimely.

In this case, the ALJ dismissed Complainant's SOX complaint as a sanction for failing to comply with orders to participate in discovery and sit for a deposition. Under 29 C.F.R. § 1980.110(a), Complainant was required to file a petition for review within 14 days of the ALJ's decision. The ALJ issued the dismissal order on April 22, 2026, making the petition due May 6, 2026. Complainant filed on May 14, 2026, eight days late.

The ARB held that the filing deadline is not jurisdictional and may be subject to equitable modification, including equitable tolling or equitable estoppel, but such relief is granted only sparingly. Complainant argued that equitable relief was warranted because the ALJ did not include a notice of appeal rights with the dismissal order, creating confusion about the deadline. The ARB rejected this argument, explaining that ALJs are not required to include appeal-rights notices and that litigants—particularly those represented by counsel—are responsible for determining and complying with applicable filing deadlines. The ARB reiterated that ignorance of the law and attorney error generally do not constitute extraordinary circumstances warranting equitable tolling.

Complainant also argued that she filed a motion for reconsideration with the ALJ and believed that the motion tolled the appeal period. The ARB acknowledged that a timely motion for reconsideration tolls the deadline to file a petition for review, but an untimely motion does not. Under 29 C.F.R. § 18.93, Complainant's motion for reconsideration was due within 10 days after service of the ALJ's decision—by May 4, 2026. Because Complainant did not file the motion until May 11, 2026, it did not toll or revive the expired ARB appeal deadline.

Complainant contended that strict enforcement of the appeal deadline would cement an allegedly flawed ALJ dismissal and asserted that "external legal constraints" prevented her from complying with discovery. The ARB held that arguments concerning the merits of the ALJ's dismissal were not relevant to whether the late petition should be excused. Complainant did not show that the alleged constraints prevented her from filing a timely petition for review. The ARB therefore denied Complainant's request to submit materials concerning those alleged constraints in camera and ex parte.

The ARB also rejected Complainant's equitable-estoppel argument. Although Complainant asserted that Respondent had "weaponized" her inability to participate in discovery, she did not allege that Respondent did or said anything that caused her to miss the ARB filing deadline. Because Respondent's alleged conduct related to discovery did not induce the untimely appeal, equitable estoppel did not apply.

Finally, the ARB declined to waive the timeliness rule under 29 C.F.R. § 1980.115. The ARB found no special circumstances or good cause justifying waiver, emphasizing that Complainant's confusion about the applicable deadlines did not excuse the late filing.

Robles v. Lazer Spot, Inc., ARB No. 2026-0009, ALJ No. 2025-STA-00038 (ARB July 23, 2026) (Decision and Order)

DISMISSAL AS A DISCOVERY SANCTION; NO ABUSE OF ALJ DISCRETION

Complainant filed a complaint under the whistleblower protection provisions of the Surface Transportation Assistance Act of 1982 (STAA), alleging that Respondent disciplined him and terminated his employment in retaliation for his safety complaints. OSHA dismissed the complaint, and Complainant requested an ALJ hearing. In a pre-hearing order, the ALJ informed the parties that discovery would begin immediately and ordered the parties to supply a simple pre-hearing statement on the issues to be decided.

Respondent served its interrogatories and discovery requests on Complainant. Complainant, proceeding pro se, did not answer the interrogatories or respond to the discovery requests and instead submitted exhibits to the ALJ. Complainant also failed to file a pre-hearing statement as ordered. The ALJ issued an order to show cause directing Complainant to explain his failure to file a pre-hearing statement. In reply, Complainant insisted his prior filings satisfied the requirement. Finding Complainant's filings had not done so, the ALJ issued an order which cancelled the hearing and repeated that Complainant was required to submit a simple pre-hearing statement. Complainant complied, and the ALJ resumed proceedings with a new pre-hearing order which set a schedule for the disclosure of expert witnesses, the exchange and submission of hearing exhibits, the filing of motions, and any requests for subpoenas. The order warned that failure to comply could result in sanctions, including dismissal.

Respondent then moved to compel discovery because Complainant had failed to respond to Respondent's discovery requests and failed to answer its interrogatories and had informed Respondent that he intended to rely solely on the evidence and statements he had already submitted. The ALJ issued a discovery order that directed Complainant to produce all requested documents, answer all interrogatories, and to fully participate in discovery. The discovery order warned that noncompliance could result in sanctions, including dismissal.

In his response to the discovery order, Complainant maintained that his earlier submissions satisfied his discovery obligations. Respondent then moved for sanctions because it still had not received any answers to its interrogatories and discovery requests as required by the ALJ's discovery order. The ALJ issued a second order to show cause expressly warning that Complainant's failure to show cause for his noncompliance with discovery could result in dismissal. Complainant again argued that his prior filings and exhibits satisfied his discovery obligations. The ALJ then issued an order dismissing the complaint with prejudice and cancelled the hearing after finding that Complainant had not complied with discovery or shown cause for this failure.

On appeal to the ARB, Complainant argued that dismissal under 29 C.F.R. § 18.57(b)(1)(v) required willful, prejudicial noncompliance with discovery and that Respondent's discovery requests had to meet proportionality and good-faith standards. Respondent argued that dismissal was proper under the ARB's decision in Keller v. Pittsburgh Baptist Church, ARB No. 2025-0008, ALJ No. 2023-TAX-00012 (ARB July 30, 2025).

The ARB affirmed the ALJ's dismissal order. It noted that ALJs have inherent authority to manage proceedings and impose appropriate sanctions for conduct that abuses the judicial process, including dismissal in egregious cases. The ARB also noted that discovery rules permit sanctions, including dismissal, when a party fails to answer interrogatories or otherwise respond to discovery. The ARB emphasized that an evasive or incomplete answer may be treated as a failure to answer.

The ARB concluded that Complainant did not substantially comply with discovery. His complaint narrative and exhibits did not provide the specific information sought by Respondent's interrogatories, including persons with knowledge, recordings of conversations, damages, facts supporting the allegations, and details of alleged protected activity. The ARB found that Complainant's continued refusal to answer prejudiced Respondent's ability to formulate its defense.

The ARB noted that a case-ending discovery sanction requires willfulness, bad faith, or fault. Although the ALJ's dismissal order did not expressly make a separate finding of willfulness, the ARB found this omission harmless because the record amply demonstrated Complainant's willful noncompliance. Complainant repeatedly ignored discovery requests and orders, despite multiple warnings, and relied on the same rejected justification that his prior filings satisfied his obligations. The ARB further found that the relevant Keller factors supported dismissal, including prejudice to Respondent, repeated warnings, interference with the judicial process, and the apparent ineffectiveness of lesser sanctions. For these reasons, the ARB concluded the ALJ did not abuse his discretion in dismissing the complaint for Complainant's noncompliance with the ALJ's discovery orders and affirmed dismissal of the STAA complaint.

Simmons v. Fourteenth Avenue Cartage Co., Inc., ARB No. 2025-0057, ALJ No. 2020-STA-00092 (ARB July 13, 2026) (Order of Dismissal)

DISMISSAL; COMPLAINANT FAILED TO FILE AN OPENING BRIEF

In Simmons v. Fourteenth Avenue Cartage Co., Inc., ARB No. 2025-0057, ALJ No. 2020-STA-00092 (ARB July 13, 2026), the ARB dismissed the Complainant's appeal for failure to file an Opening Brief as ordered by the ARB.

Complainant filed a petition for review with the ARB on May 7, 2025. On May 12, 2025, the ARB issued a briefing order requiring Complainant to file an opening brief by June 9, 2025. After Complainant failed to file a brief or respond to an order to show cause as ordered, the ARB initially dismissed the appeal on July 17, 2025.

Complainant then moved to set aside the dismissal, asserting that he had not received the ARB's orders. The ARB treated the motion as a request for reconsideration, granted reconsideration, and reopened the appeal.

Upon reopening, the ARB ordered Complainant to file an opening brief by a new deadline and warned that failure to do so could result in dismissal without further notice. EFS records showed that the order granting reconsideration was sent to Complainant's email address of record, and the ARB also sent a courtesy copy by email. Complainant again failed to file an opening brief, contact the ARB, or otherwise prosecute the appeal.

The ARB held that it has inherent authority to dismiss a case for failure to prosecute in order to control its docket and promote efficient disposition of cases, and that it may dismiss an appeal when a complainant fails to comply with ARB orders. Because Complainant failed to file an opening brief after the appeal was reopened and after receiving an express warning, the ARB dismissed the appeal.