Secretarial and Administrative Review Board Decisions - September 2026

Administrative Review Board Decisions

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

Booker v. Constellation Energy Generation, LLC, ARB Nos. 2024-0049, -0050, ALJ No. 2016-ERA-00012 (ARB Sept. 29, 2026) (Decision and Order)

ENERGY REORGANIZATION ACT; CONTRIBUTING FACTOR CAUSATION; SUBSTANTIAL EVIDENCE; UNACCOMPANIED ACCESS AUTHORIZATION; AFFIRMATIVE DEFENSE; HOSTILE WORK ENVIRONMENT

In Booker v. Constellation Energy Generation, LLC, ARB Nos. 2024-0049, -0050, ALJ No. 2016-ERA-00012 (ARB Sept. 29, 2026), the ARB affirmed the ALJ Decision and Order Denying Complainant's Claims on Remand, in which the ALJ determined that Complainant failed to establish that her protected activity was a contributing factor in Respondent's adverse personnel actions and thus failed to prove a violation of the Energy Reorganization Act (ERA). The ARB held the ALJ's findings were supported by substantial evidence.

Complainant worked as an Administrative Coordinator at Respondent's Peach Bottom nuclear power plant. In late 2013 and early 2014, Complainant reported concerns regarding the backdating of maintenance documents to Respondent's management and oversight personnel and subsequently filed a complaint with the Nuclear Regulatory Commission (NRC). Complainant alleged that Respondent retaliated against her by removing certain job responsibilities, revoking her access to her supervisor's email inbox, imposing conditions on her communications with the NRC, and placing her Unaccompanied Access Authorization (UAA) on hold. Respondent subsequently declined to reinstate Complainant's UAA, which was required for her position, and terminated her employment after eighteen months of disability leave.

This matter was before the ARB for the third time. In 2023, the ARB vacated and remanded the ALJ's decision and order, concluding that the ALJ had failed to discuss or evaluate significant evidence in the record. On remand, the ALJ reconsidered the evidence but again denied Complainant's claims. Complainant appealed, arguing that the ALJ failed to adequately evaluate the evidence as directed. Respondent cross-appealed, challenging the Department of Labor's jurisdiction to review UAA determinations.

PROTECTED ACTIVITY; ADVERSE ACTION; CONTRIBUTING FACTOR CAUSATION; SUBSTANTIAL EVIDENCE

The ARB affirmed the ALJ's determination that Complainant engaged in protected activity by reporting concerns regarding backdated maintenance documents internally and to the NRC. The ARB also found no error in the ALJ's determination that Respondent subjected Complainant to adverse actions, including removing certain job responsibilities, conditioning paid time for NRC communications on her remaining on-site, placing her UAA on hold, and declining to reinstate her UAA, which ultimately resulted in her termination.

The ARB explained that an ERA complainant must establish by a preponderance of the evidence that protected activity was a contributing factor in an adverse employment action. The level of causation that a complainant needs to show is extremely low; they need only demonstrate that the protected activity played some role in the employer's decision. Nevertheless, the ARB concluded that substantial evidence supported the ALJ's finding that Complainant's protected activity did not contribute to the adverse actions taken by Respondent.

Regarding the removal of Complainant's access to her supervisor's email inbox, the ARB deferred to the ALJ's credibility determination crediting the supervisor's testimony that Complainant had misused her access privileges. The ARB also affirmed the ALJ's findings concerning the removal of certain overtime and payroll responsibilities. Respondent's contemporaneous explanation that changes to its overtime approval process were necessary to address excessive overtime expenditures was plausible, the changes affected multiple employees, and Complainant failed to establish that this explanation was pretextual. A separate, temporary reassignment of payroll duties was supported by testimony that Human Resources directed the change to protect another employee's confidentiality.

The ARB further affirmed the ALJ's determination that requiring Complainant to communicate with the NRC on-site for the time to count as work hours was not attributable to her protected activity. Respondent did not prohibit Complainant from communicating with the NRC from home and offered to arrange a private location on-site.

With respect to Complainant's UAA, the ARB found that substantial evidence supported the ALJ's determination that Complainant's supervisor completed her Behavioral Observation Program (BOP) review pursuant to a standardized annual requirement and accurately documented observed behaviors. The ARB also affirmed the ALJ's finding that Respondent placed Complainant's UAA on administrative hold because of concerns regarding her behavior and interactions with Human Resources, rather than her protected activity. Although individuals aware of Complainant's protected activity participated in the meeting preceding the hold, the evidence indicated that the decision was prompted by behavioral concerns raised by multiple employees who had no connection to Complainant's protected activity. The ARB also concluded that the ALJ adequately considered and rejected Complainant's "cat's paw" theory of liability.

The ARB similarly affirmed the ALJ's finding that protected activity did not contribute to Respondent's subsequent conversion of the administrative hold to a temporary hold or its refusal to reinstate Complainant's UAA. The ARB recognized that Respondent failed to comply with NRC regulations governing review procedures for adverse UAA determinations and the qualifications required for psychological reassessments. However, this alone was insufficient to demonstrate contributing factor causation. Substantial evidence supported the ALJ's findings that Respondent misunderstood its obligations regarding review procedures and that its refusal to reinstate Complainant's UAA was based on medical concerns regarding recommended return-to-work restrictions, rather than her protected activity.

JURISDICTION TO REVIEW REVOCATION OF UNACCOMPANIED ACCESS AUTHORIZATION

The ARB concluded that it had jurisdiction to review Respondent's UAA determinations. The ARB noted that it had previously determined that the Supreme Court's decision in Department of the Navy v. Egan did not bar review of Respondent's UAA determinations by the ALJ, the ARB, the Secretary of Labor, or the federal courts. The ARB noted that Respondent did not cite any new authority that has been issued since the ARB considered and rejected this argument when this case was previously before the ARB.

AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE

The ARB explained that an employer may avoid liability under the ERA by demonstrating through clear and convincing evidence that it would have taken the same adverse action absent the employee's protected activity. Although the ALJ found that Respondent established this affirmative defense, the ARB declined to reach the issue because substantial evidence supported the ALJ's conclusion that Complainant failed to establish contributing factor causation.

HOSTILE WORK ENVIRONMENT; INTENTIONAL HARASSMENT; SEVERE OR PERVASIVE CONDUCT

The ARB also affirmed the ALJ's dismissal of Complainant's hostile work environment claim. To prevail on a hostile work environment claim, Complainant was required to establish intentional harassment related to protected activity that was sufficiently severe or pervasive to alter her employment conditions and create an abusive working environment, and that detrimentally affected both Complainant and a reasonable person.

Although Complainant established that she engaged in protected activity, substantial evidence supported the ALJ's findings that the alleged incidents, considered individually and collectively, did not constitute intentional harassment or create a sufficiently severe or pervasive abusive working environment. Accordingly, the ARB affirmed the ALJ's denial of Complainant's claims.

Orechovesky v. Cross River Bank, ARB No. 2026-0071, ALJ No. 2025-CFP-00016 (ARB Sept. 29, 2026) (Decision and Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEAL; COMPLAINANT DID NOT ESTABLISH COLLATERAL ORDER FACTORS

In Orechovesky v. Cross River Bank, ARB No. 2026-0071, ALJ No. 2025-CFP-00016 (ARB Sept. 29, 2026), the ARB denied Complainant's petition for interlocutory review of an ALJ order that denied her eighth motion to compel, granted in part Respondent's motion for a protective order and motion for sanctions, barred further written discovery by the Complainant, struck certain discovery requests, required Complainant to obtain prior written authorization before filing further motions, limited Complainant's communications with opposing counsel, and sealed confidential materials.

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). The ALJ did not certify the appeal in this case.

If a party has failed to obtain ALJ certification, the ARB may still consider reviewing an interlocutory order that meets the narrow "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.

The ARB held that the challenged discovery and procedural rulings were not effectively unreviewable on appeal from a final decision. If Complainant ultimately did not prevail, the ARB could review the ALJ's rulings after final judgment and, if necessary, order appropriate relief such as reopening discovery or accepting filings.

The ARB also denied as moot the Complainant's related requests for consideration of additional evidence, procedural guidance, expedited processing, and an order barring her deposition. Additionally, to the extent Complainant sought review of a request for the ALJ to recuse himself, the ARB noted that the request had been addressed to the ALJ and was not before the ARB; alternatively, interlocutory review of that issue was denied because it, too, was reviewable on appeal from final judgment.

Payne v. Global Medical Response, ARB No. 2026-0072, ALJ No. 2025-AIR-00029 (ARB Sept. 29, 2026) (Decision and Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEAL; COMPLAINANT DID NOT ESTABLISH COLLATERAL ORDER FACTORS

In Payne v. Global Medical Response, ARB No. 2026-0072, ALJ No. 2025-AIR-00029 (ARB Sept. 29, 2026), the ARB denied Complainant's petition for interlocutory review seeking discovery-related relief in an AIR21 whistleblower case pending before an ALJ. Complainant asserted that Respondent was withholding vital evidence, requested the ability to take depositions, and sought additional time to obtain legal counsel and prepare his case in response to Respondent's motion for summary decision.

The ARB denied the interlocutory appeal. The ARB observed that the ALJ had not issued any order resolving or restricting the discovery or procedural matters for which Complainant sought relief, nor had the ALJ ruled on Respondent's motion for summary decision. Therefore, there was no non-final order before the ARB that conclusively determined a disputed issue, resolved an important issue separate from the merits, or would be effectively unreviewable after final judgment.

The ARB noted that if the Complainant wished to pursue additional discovery, compel discovery responses, obtain more time to conduct discovery or oppose summary decision, or seek counsel, he could present those requests to the ALJ through properly filed motions. The ARB further observed that the ALJ's prior order to show cause—which extended the deadline to oppose summary decision, continued the hearing, and provided guidance to the pro se Complainant—was not immediately reviewable because any alleged error could be addressed after a final decision.

White v. Marten Transport Ltd., ARB Nos. 2026-0061, -0076, ALJ No. 2025-STA-00109 (ARB Sept. 29, 2026) (Decision and Order Denying Reconsideration and Denying Interlocutory Appeal)

INTERLOCUTORY APPEALS

In White v. Marten Transport Ltd., ARB Nos. 2026-0061, -0076, ALJ No. 2025-STA-00109 (ARB Sept. 29, 2026), the ARB denied Complainant's request for reconsideration and second interlocutory appeal. Regarding Complainant's request that the ARB reconsider its decision denying Complainant's interlocutory appeal, the ARB determined that reconsideration was not warranted. The ARB explained that it will reconsider a decision only under limited circumstances, which include when the party seeking reconsideration has demonstrated: (i) material differences in fact or law from those presented to the ARB of which the moving party could not have known through reasonable diligence; (ii) new material facts that occurred after the ARB's decision; (iii) a change in the law after the ARB's decision; or (iv) a failure to consider material facts presented to the ARB before its decision. None of these circumstances applied. Although Complainant informed the ARB that the Department of Labor's Civil Rights Center issued a declination letter in response to a complaint he filed, the ARB determined this did not warrant reconsideration as it did not alter the ARB's analysis of whether Complainant's interlocutory appeal satisfied the collateral order exception or whether the ARB had jurisdiction to hear complaints alleging noncompliance with Section 504 of the Rehabilitation Act.

Regarding Complainant's new interlocutory appeal, in which the Complainant sought the ARB's review of the ALJ's order denying Complainant's "renewed motion" for accommodations, the ARB found that the collateral order exception was not satisfied. Specifically, the ARB held that the order was not unreviewable upon final appeal as the ARB can remedy erroneous discovery-related orders by vacating an adverse judgment and remanding for a new trial.

Derritt v. Navy Federal Credit Union, ARB No. 2026-0054, ALJ No. 2025-CFP-00009 (ARB Sept. 28, 2026) (Decision and Order Dismissing Petition for Review)

ORDER OF DISMISSAL; COMPLAINANT FAILED TO FILE AN OPENING BRIEF AND RESPOND TO ORDER TO SHOW CAUSE

In Derritt v. Navy Federal Credit Union, ARB No. 2026-0054, ALJ No. 2025-CFP-00009 (ARB Sept. 28, 2026), the ARB dismissed the Complainant's Petition for Review for failure to file an opening brief as ordered by the ARB. On July 14, 2026, Complainant filed a Petition for Review of the ALJ's Decision and Order Dismissing Complaint. The ARB issued a briefing order, and Complainant did not file an opening brief. Therefore, on September 2, 2026, the ARB issued an Order to Show Cause ordering Complainant to explain why the ARB should not dismiss the appeal for failure to comply with the ARB's orders and briefing requirements. Complainant did not respond or file an opening brief. Accordingly, the ARB dismissed the appeal.

Jones v. Delta Air Lines, Inc., ARB No. 2026-0005, ALJ No. 2025-AIR-00008 (ARB Sept. 18, 2026) (Decision and Order)

DISMISSAL AS A DISCOVERY SANCTION; NO ABUSE OF ALJ DISCRETION

In Jones v. Delta Air Lines, Inc., ARB No. 2026-0005, ALJ No. 2025-AIR-00008 (ARB Sept. 18, 2026), during proceedings before the ALJ, Complainant repeatedly missed discovery deadlines, including deadlines for initial disclosures and responses to Respondent's interrogatories and document requests. Respondent served interrogatories and requests for production on February 6, 2025; Complainant's responses were originally due on March 10, 2025; the ALJ later extended the deadline to May 23, 2025; Complainant requested multiple extensions to provide her discovery responses but still had not provided any responses when Respondent moved to dismiss Complainant's complaint on September 3, 2025, or when the ALJ dismissed the complaint on September 26, 2025.

Prior to dismissing the complaint, the ALJ warned Complainant that continued noncompliance could result in dismissal, and considered her requests for reasonable accommodations based on her asserted physical and mental health conditions, but found that the accommodation requests did not adequately specify how much additional time Complainant needed to comply with discovery.

The ARB applied the standard outlined in Keller v. Pittsburgh Baptist Church, ARB No. 2025-0008, ALJ No. 2023-TAX-00012 (ARB July 30, 2025), in reviewing whether the ALJ's decision to sanction Complainant for her failure to follow discovery orders via dismissal was an abuse of the ALJ's discretion. It emphasized that there must be a finding of culpability, willfulness, or bad faith prior to a case's dismissal with prejudice or the issuance of a default judgment for a party's failure to comply with a discovery order. The ARB further explained that dismissal is not appropriate where the failure to comply has been due to inability, and not to willfulness, bad faith, or any fault. The ARB added that the burden to establish inability to comply lies with the non-compliant party.

Complainant argued that the ALJ did not meaningfully evaluate the documentation she submitted regarding her disabilities prior to the dismissal. The ARB acknowledged that evidence of physical or mental impairments may, in some circumstances, show that a party is unable to comply with discovery orders. It reviewed the documentation Complainant submitted from her treatment providers, but concluded that it did not show that her conditions prevented her from providing any discovery responses from February 6, 2025, through the extended May 23 deadline and up to the September 26 dismissal. The ARB emphasized that evidence of an impairment does not establish inability unless there is a demonstrated causal connection between the impairment and the discovery failures. The ARB thus found that Complainant failed to establish her inability to comply with the ALJ's discovery orders.

The ARB also noted Complainant's activity in other proceedings during the same period. While she failed to respond to Respondent's discovery requests, she filed numerous motions and other submissions before the ALJ, Michigan occupational-safety proceedings, and a related federal court case. The ARB found that this undermined her claim that she was categorically unable to participate in discovery and showed that her noncompliance was at least partly within her control. Based on this record, the ARB found support for a finding of willfulness.

The ARB also addressed the other factors in the Keller analysis. It found that Respondent was prejudiced by months of delay, that all progress in the proceeding was impeded, and that Complainant had been clearly warned that noncompliance could lead to dismissal. The ARB concluded that given those circumstances and the pattern of Complainant's disobedience, the ALJ was not required to impose lesser sanctions first or explain why lesser sanctions would not be effective in achieving Complainant's discovery compliance.

Finally, the ARB declined to address Complainant's argument that the ALJ failed to accommodate her disabilities under Section 504 of the Rehabilitation Act. It explained that the ARB does not have jurisdiction over Rehabilitation Act claims, which are directed to the Department of Labor's Civil Rights Center. The ARB thus affirmed the ALJ's dismissal of the complaint for Complainant's failure to comply with discovery orders.

Caycho v. Just Sod, LLC, ARB No. 2025-0019, ALJ No. 2024-TAX-00009 (ARB Sept. 17, 2026) (Decision and Order Reversing and Remanding)

TAXPAYER FIRST ACT; OBJECTIONS TO OSHA FINDINGS; TIMELINESS

In Caycho v. Just Sod, LLC, ARB No. 2025-0019, ALJ No. 2024-TAX-00009 (ARB Sept. 17, 2026), the ARB reversed the ALJ's Order Granting Respondent's Motion for Summary Decision and dismissing Complainant's case. Complainant filed a retaliation complaint with OSHA under the employee-protection provisions of the TFA. OSHA dismissed the complaint and informed Complainant that he had 30 days from receipt of OSHA's findings to file objections and request a hearing before an ALJ. Complainant, proceeding pro se, subsequently sent emails to the Office of Administrative Law Judges.

The ALJ concluded that Complainant did not timely file proper objections to OSHA's dismissal. The ALJ determined that the 30-day deadline was April 21, 2024, and found that although Complainant emailed OALJ on April 19 and April 22, 2024, those emails did not constitute valid objections because they did not copy the parties identified in OSHA's dismissal or the regulations. The ALJ granted Respondent's motion for summary decision and dismissed the case.

The ARB reversed. First, the ARB concluded that Complainant's April 22, 2024 email constituted an objection and request for hearing under the TFA's implementing regulations. Although the email referenced an extension of time in the subject line, the email itself stated that Complainant's case was "to file objections under the TFA directly before the ALJ" and referred to the need to send "a written request for a hearing." The ARB held that this satisfied the TFA's minimal regulatory requirements for objections.

Second, the ARB held that the April 22, 2024 objection was timely. Although 30 days after OSHA issued its dismissal letter fell on April 21, 2024, that date was a Sunday. Under the applicable time-computation regulation, when the last day of a filing period falls on a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Therefore, the actual filing deadline was Monday, April 22, 2024, the date Complainant sent his objection.

Finally, the ARB held that Complainant's failure to copy the parties identified in the TFA regulations did not invalidate the objection or make it untimely. The ARB determined that the regulatory provisions requiring service of objections on other parties and officials are precatory rather than mandatory because the regulations do not attach a consequence to failure to comply with those service provisions. By contrast, the regulations do attach a consequence to failing to file timely objections. The ARB noted that ALJs retain recourse to address service deficiencies, such as ordering a party to serve the document on necessary parties within a specified period subject to dismissal.

Accordingly, the ARB held that the record showed Complainant filed a timely objection to OSHA's dismissal and requested a hearing. The ARB reversed the ALJ's dismissal order and remanded the case for further proceedings.

Hall v. Eastern Panhandle Anesthesia Associates Inc., ARB No. 2025-0034, ALJ No. 2023-AIR-00024 (ARB Sept. 15, 2026) (Order Denying Reconsideration)

RECONSIDERATION; SCOPE OF COVERAGE UNDER AIR21

In Hall v. Eastern Panhandle Anesthesia Associates Inc., ARB No. 2025-0034, ALJ No. 2023-AIR-00024 (ARB Sept. 15, 2026), the ARB denied Complainant's request for reconsideration of a July 9, 2026 Decision and Order that affirmed dismissal of Complainant's OALJ case for lack of coverage under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).

The ARB will reconsider a decision only under limited circumstances, including but not limited to: (i) material differences in fact or law from those presented to the ARB of which the moving party could not have known through reasonable diligence; (ii) new material facts that occurred after the ARB's decision; (iii) a change in the law after the ARB's decision; or (iv) failure to consider material facts presented to the ARB before its decision. Here, the ARB emphasized the aforementioned four circumstances are not exclusive (and noted, for instance, the ARB has granted reconsideration in additional circumstances to protect the integrity of the review process, or when issues occur related to the use of the ARB's electronic filing and service system), but it also found Complainant's motion failed to establish a basis for reconsideration.

Complainant's motion alleged the ARB failed to consider material facts. Complainant claimed that his status as an employee who could be affected by an air carrier independently established coverage under AIR21, an argument the ARB rejected. The ARB also rejected Complainant's argument that Respondents were indirect air carriers and thus covered under AIR21, distinguishing that merely enabling or integrating with air carriers' services, or sharing a common management structure with an air carrier, did not qualify entities (or Respondents) as indirect air carriers. Finally, the ARB declined to revisit Complainant's Section 11(c) claims, the corporate relationship between Respondents and unnamed parties to the case, or discussion of temporal proximity, adverse action, and the basis of Complainant's termination, finding none of the listed factors would alter the ARB's determination that Complainant's case was not covered under AIR21. Accordingly, the ARB denied Complainant's motion for reconsideration.

White v. Marten Transport Ltd., ARB No. 2026-0061, ALJ No. 2025-STA-00109 (ARB Sept. 11, 2026) (Decision and Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEALS

In White v. Marten Transport Ltd., ARB No. 2026-0061, ALJ No. 2025-STA-00109 (ARB Sept. 11, 2026), the ARB dismissed Complainant's interlocutory appeal on the grounds that it was not certified for appeal pursuant to 28 U.S.C. § 1292(b), nor did it satisfy the collateral order exception. Complainant appealed an ALJ order denying his request for certain accommodations to be in place during his deposition. In the order, the ALJ noted that some of the accommodations requested by Complainant would be in place pursuant to an agreement by the parties made in connection with related federal court litigation.

The ARB explained that to satisfy the collateral order exception, the order being 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. The ARB further explained that claims that are adequately vindicated by other means are not unreviewable on final appeal. Accordingly, the ARB concluded that the ALJ order was not effectively unreviewable on final appeal because Complainant's allegation that the order violated his rights under Section 504 of the Rehabilitation Act was a complaint that, per the Department of Labor's regulations implementing Section 504, must be channeled through the Department of Labor's Civil Rights Center, not the ARB. The ARB also noted that, to the extent Complainant alleged that the ALJ's order would prejudice him in the prosecution of his case, the order was reviewable upon final appeal under an abuse of discretion standard.

Farley v. Delta Airlines, Inc., ARB No. 2026-0064, ALJ No. 2025-AIR-00023 (ARB Sept. 8, 2026) (Decision and Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEAL; COLLATERAL ORDER DOCTRINE; DISCOVERY ORDERS WERE NOT EFFECTIVELY UNREVIEWABLE ON APPEAL FROM A FINAL JUDGMENT

In Farley v. Delta Airlines, Inc., ARB No. 2026-0064, ALJ No. 2025-AIR-00023 (ARB Sept. 8, 2026), the ARB denied Complainant's petition for interlocutory review of an ALJ order denying reconsideration of discovery orders requiring Complainant to respond to outstanding discovery requests and sit for a deposition.

The proceedings before the ALJ involved ongoing discovery disputes, particularly concerning Complainant's deposition. Respondent had attempted to depose Complainant since at least November 2025, while Complainant maintained that he should not be required to sit for a deposition until Respondent fulfilled its own discovery obligations and the administrative record was otherwise complete. The ALJ repeatedly explained that the proceeding was de novo, that both parties were required to participate in discovery, and that Complainant could not delay his deposition or discovery responses while awaiting additional discovery from Respondent.

Respondent eventually moved to dismiss based on Complainant's failure to participate in discovery. On July 22, 2026, the ALJ held the motion to dismiss in abeyance, continued the hearing, denied Complainant's motion to stay, and ordered Complainant to provide complete discovery responses and cooperate in scheduling his deposition. The ALJ warned that further noncompliance would result in the motion to dismiss being granted. After the ALJ denied additional motions seeking to stay or revisit those discovery requirements, Complainant petitioned the ARB for interlocutory review and subsequently filed supplemental notices and a motion seeking a stay.

The ARB noted that its delegated authority permits interlocutory review only in exceptional circumstances and that interlocutory appeals are generally disfavored because of the strong policy against piecemeal appeals. When reviewing non-final ALJ orders, the ARB looks to federal interlocutory-review procedures, including certification under 28 U.S.C. § 1292(b). Complainant had requested certification, but the ALJ had not granted it. In the absence of certification, the ARB may consider an interlocutory appeal under the collateral order exception.

Under the collateral order exception, an order must conclusively determine the disputed question, resolve an important issue completely separate from the merits, and be effectively unreviewable on appeal from a final judgment. Setting aside the first two requirements, the ARB concluded that Complainant could not satisfy the third. The ARB reiterated that discovery and procedural orders ordinarily can be reviewed after final judgment.

Complainant argued that requiring him to testify before obtaining the discovery he believed necessary could unfairly shape his testimony and that refusing to appear could result in dismissal. The ARB concluded, however, that either circumstance could be adequately addressed on review of a final decision. If the ALJ erred concerning the sequence or conduct of discovery, the ARB could order discovery reopened or conducted in a particular sequence, direct that prior deposition testimony be disregarded or deemed inadmissible, or fashion other appropriate relief. Likewise, if the ALJ dismissed the case as a discovery sanction, the ARB could review the dismissal and, if warranted, reopen and remand the case. Accordingly, the discovery orders were not effectively unreviewable after final judgment, and no exceptional circumstances warranted immediate review. The ARB emphasized that it was expressing no view on whether the ALJ had erred in issuing the discovery orders.

The ARB also declined to address issues raised in Complainant's supplemental filings concerning the completeness of the evidentiary record, Respondent's factual assertions and defenses, and alleged gaps in OSHA records. Those matters were premature and were not properly before the ARB on the interlocutory appeal. To the extent Complainant believed he had not received discovery to which he was entitled, he could seek relief from the ALJ and, if necessary, raise the issue before the ARB following the conclusion of the proceedings.

Because the ARB resolved the interlocutory appeal, it denied as moot Complainant's emergency motion to stay his discovery and deposition obligations and his other requests for temporary or expedited relief. The ARB therefore denied the interlocutory appeal and Complainant's remaining requests for relief.

Goddard v. Slickdeals, LLC, ARB No. 2026-0060, ALJ No. 2025-SOX-00042 (ARB Sept. 8, 2026) (Order Vacating and Dismissing Case)

COMPLAINANT EXERCISED SOX'S KICK-OUT PROVISION; THE DISTRICT COURT ACTION DIVESTED DOL'S ADJUDICATORY TRIBUNALS OF JURISDICTION

In Goddard v. Slickdeals, LLC, ARB No. 2026-0060, ALJ No. 2025-SOX-00042 (ARB Sept. 8, 2026), the ARB vacated the ALJ's Order Granting Respondent's Motion for Summary Decision and Denying Complainant's Complaint and dismissed the case because Complainant's earlier filing of a federal district court action pursuant to SOX's kick-out provision had divested the Department of Labor of jurisdiction.

Complainant filed a complaint with OSHA on July 7, 2025, alleging that Respondent retaliated against him in violation of SOX. OSHA dismissed the complaint as untimely, and Complainant objected and requested a hearing before an ALJ. On August 5, 2026, the ALJ granted Respondent's motion for summary decision, concluding that Complainant's SOX complaint was untimely and that there were no grounds for equitable tolling. Complainant thereafter filed a Petition for Review with the ARB.

In his Petition for Review, Complainant informed the ARB that on February 2, 2026—more than six months before the ALJ issued her decision—he had filed a civil action for de novo review in the U.S. District Court for the Northern District of California pursuant to 18 U.S.C. § 1514A(b)(1)(B). Under that provision, when the Secretary has not issued a final decision within 180 days after a SOX complaint is filed with OSHA, and the delay is not due to the complainant's bad faith, the complainant may bring an action for de novo review in federal district court. Once such an action is filed, DOL and its adjudicatory tribunals are divested of jurisdiction over the matter.

The ARB reviewed Complainant's federal complaint and three amendments filed between February 2 and August 16, 2026, and determined that each included a cause of action for the same SOX violation asserted in the administrative proceeding. Because the Secretary had not issued a final decision within 180 days of Complainant's OSHA filing, the ARB concluded that Complainant's February 2, 2026 district court filing divested the ALJ and DOL of jurisdiction.

The ARB also noted that Complainant failed to comply with the regulatory requirement to provide the ALJ with a file-stamped copy of his federal complaint or otherwise expressly inform the ALJ that the federal action included his SOX whistleblower claim. As a result, administrative adjudication continued for approximately six months after DOL had lost jurisdiction. The ARB emphasized, however, that Complainant's failure to provide the required notice did not preserve DOL's jurisdiction; jurisdiction was divested upon the filing of the federal complaint. Accordingly, the ARB vacated the ALJ's decision and dismissed the case.

Inganamorte v. MTA Long Island Railroad, ARB No. 2025-0009, ALJ No. 2022-NTS-00002 (ARB Sept. 8, 2026) (Decision and Order Affirming in Part and Reversing in Part)

LOST OVERTIME; SETTLEMENT AGREEMENT; NON-ECONOMIC COMPENSATORY DAMAGES; PUNITIVE DAMAGES

In Inganamorte v. MTA Long Island Railroad, ARB No. 2025-0009, ALJ No. 2022-NTS-00002 (ARB Sept. 8, 2026), the ARB affirmed in part and reversed in part an ALJ's damages award in a retaliation case arising under the National Transit Systems Security Act of 2007 (NTSSA). Complainant, a Signal Inspector Foreman for Respondent, previously filed whistleblower complaints against Respondent that the parties settled in 2020. After Complainant was reinstated to his Foreman position pursuant to the settlement, Respondent subjected his work group to a GPS audit, directed the group to spend less time near headquarters, and denied the group overtime. The ALJ found that these actions constituted retaliation for Complainant's prior protected activity. Neither party appealed the ALJ's determination of liability.

The ALJ awarded Complainant $8,636 in lost overtime for emergency backup interlocking circuit (EMCP) testing in 2020 and 2022 and $125,000 in non-economic compensatory damages. The ALJ also found that Respondent's conduct warranted $100,000 in punitive damages but concluded, based on the Supreme Court's decision in SEC v. Jarkesy, 603 U.S. 109 (2024), that punitive damages could not constitutionally be awarded in an administrative proceeding without a jury. On appeal, Complainant sought additional lost overtime, an increased compensatory-damages award, and reversal of the ALJ's ruling concerning punitive damages.

LOST OVERTIME; COMPLAINANT BEARS THE BURDEN OF ESTABLISHING BACK PAY WITH REASONABLE CERTAINTY; ARB AFFIRMED ALJ'S REFUSAL TO AWARD ADDITIONAL LOST OVERTIME WHERE COMPLAINANT FAILED TO ADEQUATELY SUPPORT HIS DAMAGES CALCULATION

Complainant sought approximately $450,000 in additional lost overtime, calculated at approximately $65,000 per year beginning in 2016. The ARB affirmed the ALJ's refusal to award that amount. Although a complainant need not establish back pay with mathematical certainty, the complainant bears the burden of presenting sufficient evidence from which the amount can be estimated with reasonable certainty. The ARB found Complainant's request for $450,000 to be perfunctory and inadequately supported. He did not adequately explain how he derived the asserted average of $65,000 per year or show that the exhibits on which he relied established the overtime earnings of comparable Foremen.

The ARB also found that the evidence did not establish that Complainant personally would have earned $65,000 per year in overtime. Before his 2016 demotion, his actual overtime earnings were substantially lower; his unit generally received little overtime and remained current on its testing schedule; and Complainant acknowledged that he declined some overtime opportunities, including opportunities to work with other units. The ARB therefore concluded that the evidence did not establish with reasonable certainty that Complainant was entitled to lost overtime beyond the $8,636 awarded for EMCP testing.

SETTLEMENT AGREEMENT; RELEASE OF BACK-PAY CLAIMS; PRIOR SETTLEMENT BARRED RECOVERY OF LOST OVERTIME FOR THE PRE-SETTLEMENT PERIOD

The ARB also affirmed the ALJ's determination that Complainant could not recover lost overtime for the period preceding the parties' January 8, 2020 settlement. Under that settlement, later reaffirmed and modified by an August 11, 2020 Settlement Order issued by an ALJ, Complainant released his prior OSHA claims in exchange for, among other things, restoration of his seniority rights and reinstatement to the Foreman position. The parties expressly agreed that Complainant was not asserting or receiving back pay in that matter.

The ARB rejected Complainant's argument that the settlement did not encompass his claim for lost overtime dating to his 2016 demotion. The prior OSHA claims challenged that demotion, and the settlement reinstated Complainant while resolving those claims without an award of back pay. Because lost overtime is a form of back pay, the ARB held that an attempt to recover overtime lost during the period covered by the settled claims sought precisely the relief Complainant had released. Accordingly, any claim for lost overtime before January 8, 2020, was barred by the settlement agreement.

NON-ECONOMIC COMPENSATORY DAMAGES; EMOTIONAL DISTRESS MUST BE PROVEN AND DAMAGES MUST BE PROPORTIONATE TO THE HARM; ARB AFFIRMED $125,000 AWARD

The ARB affirmed the ALJ's award of $125,000 in compensatory damages for emotional distress. The ARB explained that compensatory damages under the NTSSA may compensate for mental anguish, humiliation, and similar non-pecuniary harms, but emotional distress is not presumed. A complainant must prove both the existence of the harm and its causal relationship to the discriminatory action. In determining an appropriate amount, awards in comparable cases are an important consideration.

Complainant and his wife testified that Respondent's retaliation significantly affected his demeanor, sleep, health, social relationships, and family life. Complainant testified that he suffered insomnia, stomach problems, and feelings that the retaliation would never end. His wife described him as depressed, withdrawn, and unwilling to socialize and testified that the conduct substantially affected their relationship. However, Complainant had not seen a psychologist since 2016, apparently stopped taking medication in 2019, and presented no medical testimony or medical evidence other than records of prescriptions from 2016 through 2019.

After comparing Complainant's evidence with prior ARB cases involving emotional-distress awards, the ARB found the $125,000 award fair and reasonable and supported by substantial evidence. The ARB observed that Complainant had not established the degree of psychological trauma, professional treatment, or financial catastrophe present in several cases involving comparable or greater awards. Accordingly, the ARB declined Complainant's request to increase his compensatory damages to $445,000.

REQUEST TO REOPEN THE RECORD; NEW EVIDENCE MUST HAVE EXISTED AT THE TIME OF THE HEARING AND BEEN UNDISCOVERABLE WITH REASONABLE DILIGENCE

The ARB also denied Complainant's request to reopen the record to seek an additional $1 million in compensatory damages based on a rheumatoid arthritis diagnosis allegedly resulting from work-related stress. The ARB first deemed the argument forfeited because Complainant raised it only briefly in his Petition for Review and did not develop it with supporting legal authority in his subsequent briefing. The ARB further held that reopening was unwarranted under 29 C.F.R. § 18.90(b)(1), which permits additional evidence only when new and material evidence becomes available that could not have been discovered with reasonable diligence before the record closed. The evidence must have existed at the time of the hearing. If Complainant's condition arose only after the hearing, it did not satisfy that requirement; if the condition existed at the time of the hearing, Complainant failed to explain why evidence concerning it could not have been presented earlier.

PUNITIVE DAMAGES; ALJS AND THE ARB LACK AUTHORITY TO DECLARE THE STATUTES AND REGULATIONS THEY ADMINISTER UNCONSTITUTIONAL; JARKESY DID NOT EXPRESSLY PRECLUDE PUNITIVE DAMAGES UNDER THE NTSSA

The ARB reversed the ALJ's refusal to award punitive damages. The NTSSA expressly authorizes punitive damages of up to $250,000, and the ALJ found Respondent's conduct warranted a $100,000 award because of the duration and nature of the retaliation. Nevertheless, the ALJ concluded that Jarkesy prohibited the award.

The ARB held that the ALJ erred. The ARB and ALJs do not have authority to declare the statutes and regulations they administer unconstitutional; rather, they must apply those provisions as written. Both the NTSSA and its implementing regulations expressly authorize punitive damages. The ARB further explained that Jarkesy concerned a different statute and administrative scheme and did not expressly foreclose punitive damages in NTSSA proceedings. Whether Jarkesy's reasoning ultimately extends to Department of Labor whistleblower proceedings remained an evolving question, but the ARB had not been relieved of its obligation to apply the governing statute and regulations.

Because the ALJ had already determined that $100,000 in punitive damages was warranted if he possessed authority to award them, and Respondent did not challenge that assessment on appeal, the ARB found remand unnecessary and awarded Complainant $100,000 in punitive damages.