Decisions of the Administrative Review Board
Villanueva v. Core Laboratories, NV
, ARB No. 09-108, ALJ No. 2009-SOX-6 (ARB Dec. 22, 2011) (en banc)
Final Decision and Order PDF | HTM
SECTION 806 DOES NOT HAVE EXTERRITORIAL APPLICATION; WHERE DISCLOSURES BY THE COMPLAINANT DID NOT POINT TO A U.S. LAW OR DOMESTIC FINANCIAL STATEMENT THAT WAS FRAUDULENT, BUT ONLY POTENTIAL FRAUDULENT CONDUCT UNDER FOREIGN LAW, THE COMPLAINT MUST BE DISMISSED
In Villanueva v. Core Laboratories, NV , ARB No. 09-108, ALJ No. 2009-SOX-6 (ARB Dec. 22, 2011) (en banc), the ARB considered en banc the issue of the extraterritorial application of Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act (SOX), 18 U.S.C.A. § 1514A (Thomson/West 2011). In Villanueva , the Complainant was a non-U.S. citizen working in Columbia for a Columbian company. The Colombian company did not list securities under Section 12 or file reports under Section 15(d) of the Securities and Exchange Act of 1934. The Columbian company was an indirect subsidiary of a Netherlands limited liability company whose securities are registered under Section 12 of the Securities and Exchange Act of 1934, and are publicly traded on the New York Stock Exchange. The parent company had a U.S. office in Houston, Texas. The Complainant was the Columbian company's CEO. The Complainant alleged that he suffered adverse employment actions, including the termination of his employment, because he reported that a "transfer pricing scheme" and claimed exemptions from a value-added tax constituted fraudulent conduct under Colombian law. Relying on the court of appeals' decision in Carnero v. Boston Scientific Corp. , 433 F.3d 1 (1st Cir.), cert. denied , 548 U.S. 906 (2006), the ALJ concluded that SOX Section 806 does not have extraterritorial application, and that whether he could adjudicate the case hinged on whether the adjudication required extraterritorial application. The ALJ found that the facts of Carnero were indistinguishable and dismissed the complaint for lack of jurisdiction. The ARB decided the appeal en banc.
A three-judge majority of the ARB applied the two-step process found in the Supreme Court decision in Morrison v. National Australian Bank, Ltd. , 130 S. Ct. 2869, 2877 (2010), to resolve the question of extraterritorial application of Section 806. In Morrison , which arose under Section 10(b) of the Securities Exchange Act of 1934, the Court first determined whether Section 10(b) had any extraterritorial reach. Second, the Court determined whether the essential part of the transnational transactions occurred domestically or extraterritorially. In analyzing Section 806, the ARB began with the second step of the Morrison analysis. The ARB framed this step as involving "the narrow question [of] whether Section 806(a)(1) includes extraterritorial laws within its definition of protected activity or whether the presumption against extraterritoriality limits the definition to domestic securities and financial disclosure laws...." Looking to the text of Section 806, the ARB found that it refers only to domestic securities laws, criminal laws and financial regulation, and that there was "no clear context or legislative history extending the six protected categories [listed in Section 806] to include extraterritorial laws without demonstrating a connection to a domestic law." USDOL/OALJ Reporter at 11 (footnote omitted). The ARB observed that the Supreme Court had invoked a presumption against extraterritoriality in cases arguably involving stronger language than Section 806(a)(1). The ARB also noted that the Dodd-Frank Act and SOX included explicit language on extraterritorial application in other sections, and therefore applied the rule of statutory construction that "[w]here Congress 'includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion of exclusion.'" Id . at 12, quoting Russello v. United States , 464 U.S. 16, 23 (1983). Thus, the ARB found that Section 806(a)(1) does not allow for its extraterritorial application.
The ARB then turned to the question of whether the fraudulent activity reported in the instant case would trigger extraterritorial application of Section 806. The Complainant asserted that Section 806 need not be applied extraterritorially because the parent company's executives in Houston, Texas directed the fraudulent scheme to evade Columbian taxes, refused him a pay raise, and ordered his discharge. The ARB found that even if it was true that executives in Houston directly controlled all aspects of the Colombia company's business, finances, and operations, it would "not change the fact that the disclosures involved violations of extraterritorial laws and not U.S. laws or financial documents filed with the SEC. [The Complainant] did not point to a U.S. law or domestic financial statement that was fraudulent. Therefore, under the facts presented in this case, [The Complainant's] reporting of foreign tax law is beyond the reach of Section 806." USDOL/OALJ Reporter at 13.
Finally, the ARB noted that the ALJ erred in characterizing his dismissal of the complaint as for lack of subject matter jurisdiction. Rather the dismissal was more properly characterized as a sua sponte order by the ALJ dismissing the case for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
One member of the ARB dissented on the ground that Section 806 does, in fact, apply extraterritorially based on an analysis that focuses on the context and legislative history of that law. Another member of the ARB agreed with the other dissenting opinion, but went on to explain his alternative conclusion that even if the majority decision was correct about the non-extraterritorial application of Section 806, the facts viewed in the light most favorable to the Complainant presented a domestic claim "within the focus of congressional concern" contemplated by Section 806. The dissent criticized the majority's focus on the effect of the alleged fraud being of violation of Columbian law. The dissent concluded that the Complainant expressly implicated criminal wire and mail fraud by officials in Houston. But more importantly, the dissent found that the focus of congressional concern underlying Section 806 is prohibition of retaliatory conduct by publicly traded companies and their subsidiaries. Thus, the dissent would have focused on whether the alleged retaliation occurred domestically. Moreover, the dissent noted that the Complainant was the CEO of the Columbian company, that there was no person above him at the Columbian company, and that he reported to and was immediately accountable to the parent's Houston, Texas office.
Boyd v. United States Environmental Protection Agency
, ARB No. 10-082, ALJ No. 2009-SDW-5 (ARB Dec. 21, 2011)
Final Decision and Order PDF | HTM
Summary affirmance of ALJ's holdings that the Complainant's environmental whistleblower complaints were not timely filed, and that the Complainant's complaint that the Respondent had failed to timely investigate his Title VI complaints against a third party was beyond the scope of the whistleblower laws on which DOL could provide a remedy.
Udofot v. NASA/Goddard Space Center
, ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011)
Final Decision and Order PDF | HTM
[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF COMPLAINT; CLOCK FOR LIMITATIONS PERIOD BEGINS UPON UNEQUIVOCAL NOTICE OF ADVERSE ACTION; LATER DISCOVERY OF MOTIVE FOR TERMINATION DOES NOT EQUITABLY TOLL THE LIMITATIONS PERIOD
In Udofot v. NASA/Goddard Space Center , ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011), the Complainant made a complaint about the release of chemicals in an electroplating process. The Respondent investigated and found no safety issues. The Complainant, a probationary employee, was later discharged. He then filed complaints with the EEOC, the MSPB, the Office of Special Counsel and the Office of the Inspector General. A few months later he filed his CAA whistleblower complaint with OSHA. Both OSHA and the ALJ found that the CAA complaint was not timely. On appeal, the Complainart argued that the time period for filing the CAA complaint should be equitably tolled because he did not learn the reason for his termination until shortly before filing the complaint with OSHA when he learned of the results of the internal air-sampling test.
The ARB held that the clock for filing a CAA complaint does not begin to tick when the complainant learns of a possible motive for his termination, but rather when the complainant received unequivocal notice of his termination. Accordingly, the running of CAA's 30-day filing period was not equitably tolled because he purportedly did not learn of the motive for his termination until later.
[Nuclear & Environmental Whistleblower Digest IV C 2]
TIMELINESS OF COMPLAINT; FAILURE OF RESPONDENT TO NOTIFY COMPLAINANT OF THE EMPLOYEE PROTECTION PROVISION OF THE CAA AT THE TIME OF TERMINATION OF EMPLOYMENT IS NOT GROUNDS FOR EQUITABLE ESTOPPEL
In Udofot v. NASA/Goddard Space Center , ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011), the Respondent gave the Complainant notice of his appeal rights with the Merit Systems Protection Board and the Equal Opportunity Office when it terminated the Complainant's employment. The Complainant argued that equitable estoppel should be applied to his untimely CAA whistleblower claim because the Respondent failed to inform him of the CAA when it terminated him. The ARB, however, found that a respondent is not obligated to inform a complainant of all his potential causes of action, citing its decision in Daryanani v. Royal & Sun Alliance , ARB No. 08-106, ALJ No. 2007-SOX-79, slip op. at 6 (ARB May 27, 2010).
[Nuclear & Environmental Whistleblower Digest IV B 3]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; MERE FACT THAT COMPLAINTS FILED IN OTHER FORUMS INVOLVED ACTIVITY THAT MAY BE RELEVANT TO CAA WHISTLEBLOWER CLAIM IS INSUFFICIENT TO ESTABLISH FILING OF PRECISE STATUTORY CLAIM IN THE WRONG FORUM
In Udofot v. NASA/Goddard Space Center , ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011), although the Complainant filed work-safety complaints with other entities involving activity that may be relevant to a CAA whistleblower claim, his claims filed with the EEOC and MSPB were clearly intended to address other statutes, and thus the filing of those claims did not constitute the filing of the precise statutory claim filed in the wrong forum that would warrant equitable modification of the CAA timeliness requirement. In addition, the Complainant's alternative argument that the CAA claim should be equitably tolled because he was not aware of his right to file a CAA whistleblower claim until after the limitations period had expired undercut any argument that he filed his CAA claim timely but erroneously in the wrong forum.
Administrator, Wage and Hour Div. USDOL v. University of Miami, Miller School of Medicine
, ARB Nos. 10-090 and -093, ALJ No. 2009-LCA-26 (ARB Dec. 20, 2011)
Decision and Order Affirming in Part, Modifying, in Part, and Remanding PDF | HTM
BACK WAGES; VOLUNTARY NONPRODUCTIVE STATUS; PERIOD OF TIME BETWEEN ARRIVAL AND REPORTING TO RESPONDENT; PERIOD OF TIME TAKING CARE OF PERSONAL MATTERS IS VOLUNTARY, NONPRODUCTIVE STATUS; PERIOD OF TIME TO OBTAIN SOCIAL SECURITY CARD IS NOT VOLUNTARY, NONPRODUCTIVE STATUS
In Administrator, Wage and Hour Div., USDOL v. University of Miami, Miller School of Medicine , ARB Nos. 10-090 and -093, ALJ No. 2009-LCA-26 (ARB Dec. 20, 2011), the Wage and Hour Division (WHD) sought back wages for a worker who was hired under the H-1B program as an anesthesiologist at a teaching hospital. The ARB agreed with the ALJ's finding that the Respondent did not owe back wages to the H1B worker for the time period between her date of arrival in the U.S. and when she first contacted the Respondent to let it know that she had arrived, and for that time period in which she was unavailable because the was taking care of personal matters such as opening a bank account, obtaining a car lease, securing a driver's license, and securing schooling and day care for her children. These were periods in which the H-1B worker was in voluntary nonproductive status. The ARB found, however, that the ALJ erred in not awarding back pay for the two weeks that it took the H1B worker to obtain a Social Security card. The Respondent had required her to obtain such a Social Security card before beginning work, and this was not nonproductive status under 20 C.F.R. § 655.731(c)(7)(i).
BONA FIDE TERMINATION OF H1B WORKER; REFUSAL OF OFFER OF PAYMENT OF COST OF RETURN HOME IS NOT RELEVANT; USCIS MUST BE NOTIFIED, BUT USCIS NEED NOT HAVE ACTUALLY REVOKED VISA FOR TERMINATION TO CUT OFF BACK PAY LIABILITY
In Administrator, Wage and Hour Div., USDOL v. University of Miami, Miller School of Medicine , ARB Nos. 10-090 and -093, ALJ No. 2009-LCA-26 (ARB Dec. 20, 2011), the ARB affirmed the ALJ's determination that the Respondent effected a bona fide termination of the H1B worker after giving the worker notice of the termination, giving notice of the termination to the USCIS, and making a proffer of $5000 to the worker for transportation expense back to Germany. The fact that H1B worker rejected the offer of payment of relocation expenses because she was concerned that it would cut off her legal rights did not affect the fact that the Respondent made the offer of payment of the cost of return transportation. The ARB, however, rejected the Respondent's claim that a bona fide termination did not require notice to the USCIS based on language found in the ARB decision in Administrator v. Ken Technologies ., ARB No. 03-140, ALJ No. 2003-LCA-15, slip op. at 4-5 (ARB Sept. 30, 2004). The ARB stated that it had clarified in Gupta v. Jain Software Consulting, Inc. , ARB No. 05-088, ALJ No. 2004-LCA-39, slip op. at 5 (ARB Mar. 30, 2007), that such notice was one of the required three steps to effect a bona fide termination of an H1B worker. The ARB also rejected, however, the H1B worker's argument that actual revocation of the visa by USCIS is required before a bona fide termination is effected.
Minne v. Star Air, Inc.
, ARB Nos. 09-066, 09-082, ALJ No. 2004-STA-26 (ARB Dec. 19, 2011)
Final Decision and Order PDF | HTM
[STAA Digest IX F]
AUTHORITY TO SEEK ENFORCEMENT OF AWARD OF DAMAGES, FEES AND COSTS LIES WITH THE SECRETARY (OR ASSISTANT SECRETARY FOR OSHA) RATHER THAN WITH THE ARB
In Minne v. Star Air, Inc. , ARB Nos. 09-066, 09-082, ALJ No. 2004-STA-26 (ARB Dec. 19, 2011), the ARB affirmed the ALJ's decision on remand finding that the Complainants had been discharged in violation of the STAA when they refused to drive commercial motor vehicles loaded with ammunition to gun shows where the vehicles were in violation of vehicle safety regulations. The ARB also affirmed the ALJ's unopposed award of back pay and interest totaling $181,468.28 for one Complainant and $341,894.64 for the other Complainant, and the ALJ's unopposed award of $79,004.75 for attorney's fees and costs.
The Complainants requested that the ARB issue an order directing the Respondent's owner to show cause why he should not be found personally liable for the back pay, attorney's fees, and costs. The Complainant submitted the document containing this request after the ALJ had closed the record and issued his ruling on damages, fees and costs. The ARB denied the motion, observing that it only had the authority to issue an order affirming the ALJ's provision of remedies. Authority to enforce the ARB's order rests instead with the Secretary or the Assistant Secretary for OSHA.
Vannoy v. Celanese Corp.
, ARB No. 09-118, ALJ No. 2008-SOX-64 (ARB Dec. 19, 2011)
Order Denying Reconsideration PDF | HTM
The ARB had earlier reversed the ALJ's grant of summary decision and ordered a remand for an evidentiary hearing before the ALJ. The Respondent filed a motion for reconsideration asserting that the ARB failed to address an alternative ground for the ALJ's summary decision dismissing the complaint, namely that the Complainant would have been dismissed despite his alleged protected activity. The ARB, however, found that facts relating to this alternative ground were in dispute and must be resolved by the parties at an evidentiary hearing.
Charles v. Profit Investment Management
, ARB No. 10-071, ALJ No. 2009-SOX-40 (ARB Dec. 16, 2011)
Final Decision and Order of Remand PDF | HTM
SUMMARY DECISION; ADEQUACY OF RECORD FOR REVIEW; UNCLEAR WHETHER RELEVANT DISCOVERY DISPUTE WAS PENDING AND WHETHER ALJ HAD INFORMED COMPLAINANT OF CONSEQUENCES OF FAILURE TO RESPOND TO MOTION FOR SUMMARY DECISION
In Charles v. Profit Investment Management , ARB No. 10-071, ALJ No. 2009-SOX-40 (ARB Dec. 16, 2011), the ALJ granted summary decision on behalf of the Respondent. The ARB held that it could not affirm the ALJ's ruling based on the record before it because it could not tell whether there was a pending discovery dispute related to the motion at the time the ALJ ruled on the motion for summary decision, and because it was not clear whether the ALJ informed the Complainant about the consequences of a failure to respond to the motion for summary decision.
The ALJ had conducted a telephonic conference call with the parties on October 30, 2009, and issued an Order Setting Briefing Schedule on that date. The order indicated that the conference call included discussion of scheduling a hearing, discovery issues, and a schedule for briefing a motion for summary decision. The order set a deadline of January 8, 2010 for any response to a motion for summary decision but did not mention the consequence of failing to respond. The Complainant submitted a letter to the ALJ on November 25, 2009 indicating that some requested information to support her claim had been withheld by the opposing counsel. On December 10, 2009, the Respondents filed their motion for summary decision. The ARB stated that the Complainant did not file a response until February 8 or 16, 2009 [Editor's note: This event probably occurred in 2010 rather than 2009]. The ALJ issued his decision granting summary decision on February 16, 2010.
On appeal, the Complainant alleged that she did not timely respond to the motion for summary decision because she misunderstood the ALJ's order and because the Respondent thwarted her attempts to complete discovery by demanding that she enter into a confidentiality agreement. The ARB found that it was not clear from the record whether this discovery dispute was pending and whether it impeded the Complainant's ability to respond to the motion for summary decision at the time the ALJ decided the motion. The ARB directed the ALJ on remand to consider whether the discovery dispute pertained to issues in the motion for summary decision, but left it to the ALJ's discretion to decide how to address the motion.
In addition, the ARB found that the ALJ had conducted telephonic conference calls with the parties prior to granting the motion for summary decision, and that it was possible that the ALJ had informed the Complainant of the consequences of failing to respond the motion; however, the record did not indicate that he did so.
On remand, the ARB directed the ALJ to provide the Complainant with
... a notice containing: (1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. § 18.40), and (2) a short and plain statement that factual assertions in the evidence submitted by the Respondents will be taken as true unless she contradicts them with counter-affidavits or other documentary evidence.
USDOL/OALJ Reporter at 4-5 (footnote omitted).
COVERED EMPLOYER/EMPLOYEE; SUMMARY DECISION IMPROPER WHERE DISPUTED FACTS EXISTED AS TO COVERAGE OF EMPLOYEE OF NON-PUBLICLY TRADED COMPANY UNDER BASES SUCH AS CONTRACTOR RELATIONSHIP, AGENCY, AND COMPANY REPRESENTATIVE STATUS
In Charles v. Profit Investment Management , ARB No. 10-071, ALJ No. 2009-SOX-40 (ARB Dec. 16, 2011), the Complainant named several business entities and two individuals as Respondents to her SOX Section 806 whistleblower complaint. The ALJ granted summary decision on behalf of the Respondents on the ground that the Complainant was not a covered employee under the SOX because her employer was a privately held company. The ARB held that the ALJ's conclusion was incorrect.
The ARB stated that "[t]he plain language of Section 806(a) identifies several categories of potentially covered entities beyond the registration and reporting requirements of SOX (i.e., "any officer, employee, contractor, subcontractor, or agent of such company")" and observed that the Second and Sixth Circuits had concluded that "the use of the term "any" preceding the listing of the several entities identified in Section 806(a) is an indication that Congress intended the clause "officer, employee, contractor, subcontractor, or agent" to be interpreted in an all-encompassing manner." USDOL/OALJ Reporter at 6 (citing in a footnote Johnson v. Siemens Bldg Techs., Inc ., ARB No. 08-032, ALJ No. 2005-SOX-015, slip op. at 22 (ARB Mar. 31, 2011)). The ALJ had concluded that only one of the Respondents was a covered entity, as it was the only entity required to file reports under the Securities Exchange Act of 1934, and that it would be an exceptionally broad interpretation of the SOX to sweep in any privately held company under contract with a publicly traded company. The ARB found it incorrect to conclude that "no contractor" is ever covered, and that summary decision was improper in the instant case given disputed facts and relevant pending discovery disputes.
The ARB also disagreed with the ALJ's conclusion that there were no genuine issues of material fact with regard to whether one of the individuals and one of the business entities named as Respondents were agents of the publicly traded company or any other covered employer. The ARB found evidence in the record suggesting possible coverage.
The ARB rejected the Respondents' assertion that the Complainant was not covered by the SOX because she was employed by a private company that had sole control over the terms and conditions of employment. The ARB observed that under the regulations an employee is defined as "an individual presently or formerly working for a company or company representative . . . or an individual whose employment could be affected by a company or company representative." The ARB further observed that a "company representative" is "any officer, employee, contractor, subcontractor, or agent of a company" and that the Complainant had alleged in her complaint that she was a Vice President and the office administrator for each of the named business entities and well as others. The ARB found that the employment and agency relationships were disputed in the record, that if the Complainant had an employment relationship with the publicly traded company, de facto or otherwise, she may be a covered employee. The ARB found that factual issues remained about the contractual and agency relationships involved. Moreover, the ARB found that it was possible that one or more of the Respondents may have acted as a representative of the publicly traded company, and that if the Complainant's employment "could be affected by" any such company representative, she may be considered a covered employee under Section 806.
Ariston v. Board of Education of Prince George's County
, ARB No. 12-008, ALJ No. 2011-LCA-30 (ARB Dec. 15, 2011)
Notification to Parties that Case Has Not Been Accepted for Review PDF | HTM
The ARB notified the parties that it would not review the ALJ's Order Granting in Part the Joint Motion of the Administrator and the Board of Education to Dismiss, and Granting Motion to Sever.
Bidwai v. Board of Education of Prince George's County
, ARB No. 12-009, ALJ No. 2011-LCA-26 (ARB Dec. 13, 2011)
Notification to Parties that Case Has Not Been Accepted for Review PDF | HTM
The ARB notified the parties that it would not review the ALJ's Order Granting in Part the Joint Motion of the Administrator and the Board of Education to Dismiss, and Granting Motion to Sever. The ARB observed, however, that the Complainant's complaint had been severed by the ALJ for a hearing. The ARB stated that the Complainant would not be precluded by its present notice from appealing from the ALJ's ultimate decision in his severed case, should he desire to do so.
Gooding v. ABB, Ltd.
, ARB No. 11-059, ALJ No. 2011-SOX-18 (ARB Dec. 12, 2011)
Final Decision and Order Dismissing Appeal PDF | HTM
TIMELINESS OF PETITION FOR ARB REVIEW; OALJ RULES OF PRACTICE AND PROCEDURE ARE NOT APPLICABLE TO ARB PROCEEDINGS TO ADD FIVE DAYS TO THE FILING PERIOD, BUT EVEN IF THEY DO (1) THE SOX REGULATION CONTROLS AS THE OALJ RULE IS INCONSISTENT AND (2) BY ITS OWN TERMS, THE OALJ RULE DOES NOT APPLY BECAUSE THE PERIOD FOR FILING IS SET BY REGULATION TO BEGIN ON THE DATE OF THE ALJ'S DECISION RATHER THAN SERVICE OF THE DECISION
In Gooding v. ABB, Ltd. , ARB No. 11-059, ALJ No. 2011-SOX-18 (ARB Dec. 12, 2011), because it appeared that the Complainant, who lives in Germany, had filed his petition for ARB review more than 10 business days from the date on which the ALJ issued his Order of Dismissal, the ARB issued an Order to Show Cause requiring the Complainant to demonstrate why the Board should not dismiss his petition as untimely. The Complainant argued that his petition for review was timely under the OALJ procedural rule for calculating the timeliness of filings at 29 C.F.R. § 18.4(c)(3), which adds five days to the prescribed period for certain filings. The ARB rejected this argument for three reasons. First, the OALJ rules of practice and procedure do not apply to ARB proceedings. Second, even if the OALJ rules apply, those rules state that if inconsistent with a rule of special application, the rule of special application controls. Because the SOX regulation at 29 C.F.R. § 1980.110(a) "states that the limitations period for filing a petition with the Board begins on the date of the ALJ's decision, section 18.4(c)(3)'s provision allowing for 5 extra days must be considered as inconsistent with the language of section 1980.110(a)." USDOL/OALJ Reporter at 5 (footnote omitted). Third, even if the OALJ rules of practice apply:
... section 18.4(c)(3) specifically provides, "Whenever a party has the right or is required to take some action within a prescribed period after the service of a pleading, notice, or other document upon said party, and the pleading, notice or document is served upon said party by mail, five (5) days shall be added to the prescribed period." But 29 C.F.R. § 1980.110(a) provides that "[a] petition must be filed within 10 business days of the date of the decision of the administrative law judge," not within 10 days of the date upon which the decision was served upon "said party." Thus, 29 C.F.R. § 18.4(c)(3), by its terms, is inapplicable to the filing of a petition for review.
USDOL/OALJ Reporter at 5 (footnote omitted). Accordingly, the ARB found that the petition for review was not timely, and dismissed the petition for review.
Honshy Electric Co.
, ARB No. 11-084 (ARB Dec. 8, 2011)
Order Dismissing Petition for Review PDF | HTM
Order declining to accept petition for review of a decision issued by a Regional Labor Relations Officer, U.S. Department of Housing and Urban Development. The ARB has not been delegated the authority to review such decisions.
Dampeer v. Jacobs Engineering Group, Inc.
, ARB No. 12-006, ALJ No. 2011-SOX-33 (ARB Dec. 5, 2011)
Order Denying Motion to Dismissal Appeal, and Alternatively to Strike Brief PDF | HTM
REQUEST FOR ARB REVIEW; TIMELINESS IS BASED ON BUSINESS DAYS; FAILURE OF COMPLAINANT TO SPECIFICALLY IDENTIFY OBJECTIONS IS ADDRESSED BY PERMITTING AMENDMENT OF REQUEST, IF OBJECTION IS TIMELY MADE BY RESPONDENT
In Dampeer v. Jacobs Engineering Group, Inc. , ARB No. 12-006, ALJ No. 2011-SOX-33 (ARB Dec. 5, 2011), the ALJ issued his decision on September 16, 2011 and the Complainant filed her petition for ARB review on September 30, 2011. The Respondent moved to dismiss under 29 C.F.R. § 1980.110(a)(2011) on the ground that the petition for review was not timely as it was filed more than 10 days after the ALJ's decision. The ARB found, however, that the regulation provided for filing within 10 business days after the ALJ's decision, that September 30, 2011 was the 10th business after the ALJ's decision., and therefore the request for review was timely.
In the alternative, the Respondent argued that the petition for review should be dismissed under 29 C.F.R. § 1980.110(a)(2011) because the Complainant's petition for review failed to specifically identify the findings, conclusions or order to which she objected. The ARB agreed that the petition was broad, but stated that it would have permitted the Complainant to amend the request for review had the Respondent timely objected. But the Respondent waited nearly six weeks to object after the Complainant's brief was filed fully explicating her arguments, and the ARB thus found that it would serve no useful purpose to now require amendment of the request for review.
Levi v. Anheuser Busch Companies, Inc.
, ARB Nos. 06-102, 07-020, 08-006, ALJ Nos. 2006-SOX-37, -108, 2007-SOX-55 (ARB Dec. 2, 2011)
Order Denying Motion for Reconsideration PDF | HTM
Summary denial of motion for reconsideration.