ARB CASE NO. 04-111
ALJ CASE NO. 04-AIR-19
DATE: August 31, 2007
In the Matter of:
COLEEN L. POWERS,
COMPLAINANT,
v.
PAPER, ALLIED-INDUSTRIAL,
CHEMICAL & ENERGY
WORKERS INT’L UNION (PACE),
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER OF REMAND
Coleen L. Powers[1] filed a complaint under the whistleblower protection
provisions of the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century (AIR 21), 49 U.S.C.A. § 42121 (West Supp. 2006), the
Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C.A. § 1514A (West 2006),
and six environmental acts.[2]
Powers, a part-time flight attendant at Pinnacle Airlines, Inc., alleges that Pinnacle,
her local PACE union (Local 5-0772), and other organizations and individuals have
discriminated against her in retaliation for various protected activities including
pursuing a prior complaint and
[Page 2]
informing Pinnacle of various safety issues. After
an Administrative Law Judge (ALJ) dismissed the complaint, Powers timely petitioned
the Administrative Review Board (ARB) for review.[3]
The
ARB accepted review in June 2004, but by the time we received the record four
of the named respondents had filed for bankruptcy.[4]
These respondents were Northwest Airlines, Inc., NWA, Inc., Northwest Airlines
Corporation, and Mesaba Aviation, Inc. See In re: Northwest Airlines
Corporation, et al., Chapter 11 Case No. 05-17930 (ALG), U. S. Bankruptcy Court, S.D.N.Y.
(Northwest Airlines, Inc., NWA, Inc., and Northwest
Airlines Corporation filed for bankruptcy on September 14, 2005, and emerged on
May 31, 2007); Bankruptcy Case No. 05-39258, U.S. Bankruptcy Court, D. Minn.
(Mesaba filed for bankruptcy on October 13, 2005 and emerged on April 24,
2007).[5]
As required by the bankruptcy code, 11 U.S.C.A. § 362(a), (c) (West 2003), we
therefore stayed consideration of this action until the bankruptcy proceedings had
been resolved.
Once all entities in bankruptcy had emerged, we
resumed consideration of this appeal.[6]
Having reviewed Powers’ complaint, we conclude that the ALJ may have erred in
determining that the complaint does not state a claim under any of the eight acts
under which Powers brings her complaint. But because there is nothing in the
record to indicate that any of the respondents were served by the ALJ, and
therefore none of them have had the opportunity to respond to Powers’
complaint, we do not now decide whether the complaint in fact states a claim
under any of the acts. Rather, with certain exceptions (see next section), we vacate
the ALJ’s dismissal and remand so that the various respondents can have the
opportunity to respond before a determination is made as to whether the
complaint states a claim.
[Page 3]
JURISDICTION
Our jurisdiction to review the ALJ’s decision is set
out in Secretary’s Order 1-2002, 76 Fed. Reg. 64272 (Oct. 17, 2002), which
delegated to the ARB the Secretary’s authority to review ALJ decisions issued
under the SOX, AIR 21, and the Environmental Acts.[7]
See 15 U.S.C.A. § 2622(b) (giving Secretary authority to decide
discrimination complaints brought under TSCA); 18 U.S.C.A. § 1514A (same, SOX);
33 U.S.C.A. § 1367(b) (FWPCA); 42 U.S.C.A. §§ 300j-9(i) (SDWA); 6971(b) (SWDA);
7622(b) (CAA); 9610(b) (CERCLA); 49 U.S.C.A. § 42121(b)(3) (AIR 21); see also 29 C.F.R. § 24.8 (environmental statutes); 29 C.F.R. §§ 1979.110 (AIR 21); 1980.110 (SOX).
The ALJ concluded that she did not have jurisdiction
over complaints arising under civil rights statutes or the U.S. Constitution. See
Order Dismissing Claim (Order) at 3-4. We agree. Under our delegated
authority, we may decide appeals only from administrative decisions arising
under certain listed laws and any later laws “that provide for final decisions
by the Secretary of Labor.” See Secretary’s Order 1-2002 at 64272-73 (listing
various statutes, not including the U.S. Constitution or general civil rights
statutes). We also decline to address Powers’ allegations that the respondents
violated rights guaranteed to her by the National Labor Relations Act (NLRA),
the Labor Management Relations Act of 1947 (LMRA), the Railway Labor Act (RLA),
and the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), see
Amended Complaint at 1, because we do not have jurisdiction over complaints
arising under these laws. See Secretary’s Order 1-2002, 67 Fed. Reg.
at 64272-73 (appeals we may decide do not include any that arise under the
NLRA, LMRA, RLA, or LMDRA). Thus the ALJ need not address on remand any
portion of Powers’ complaint that arises under these four statutes.
For the same reason, we note our agreement with the
ALJ’s conclusion, see Order at 3-4, that she had no jurisdiction over
the activities of the NLRB. In addition, we note that although the complaint
also seeks redress or investigatory action from several entities in addition to
the NLRB – namely, the Securities and Exchange Commission (SEC), the Federal Aviation Administration (FAA) Federal Bureau of Investigation (FBI), the
National Mediation Board (NMB), DOL’s Office of Labor Management Standards
(OLMS), and DOL’s Office of the Inspector General (OIG), see Complaint
at 2 (NLRB, FAA, OSHA), 39-40 (NLRB), 40 (FAA); Amended Complaint at 40 (FBI, SEC, NMB, OLMS, OIG), 41-42 (OSHA) – we have no authority to direct the activities of any of
these agencies. See Secretary’s Order 1-2002, 67 Fed. Reg. at
64272-73. Thus on
[Page 4]
remand the ALJ need not respond to any request or motion
that was in fact directed to any of these other entities.[8]
DISCUSSION
We
first discuss certain procedural issues. Then, in order to facilitate
proceedings upon remand, we describe the standard for determining whether a
complaint states a claim and comment briefly on the ALJ’s initial analysis.
Finally, we address Powers’ motions and requests.
Procedural issues
In her March 27, 2004 request for a hearing Powers
names as respondents ten organizations and seven individuals.[9]
The organizations are Mesaba Airlines; “Mesaba Holdings, Inc. {‘MAIR’}”; Northwest Airlines Corporation; NWA Inc.; Northwest Airlines, Inc.; Local 5-0772; “Pinnacle
Airlines Corporation of Tennessee”; Pinnacle Airlines Corporation; Pinnacle
Airlines, Inc. (Pinnacle); and Piper Rudnick, LLP. The individuals are Teresa
Brents, Ted Davies, Doug Hall, Kim Monroe, Phil Reed, Phil Trenary, and Lloyd
Walters. Four of these individuals were employed by Pinnacle: Davies
was Pinnacle’s In-Flight Director, Monroe was an employee in Pinnacle’s Human
Resources department, Trenary was Pinnacle’s President and CEO, and Reed was
Pinnacle’s Vice President for In-Flight Marketing & Sales. Two of these
individuals were union officials: Brents was the Acting President of Local
5-0772, and Lloyd Walters was the Vice President for PACE’s Region 7, of which
Local 5-0772 was a part. Hall was an attorney with Piper Rudnick, a law firm
that had represented Pinnacle with regard to a previous complaint filed by
Powers. Except for Monroe and Walters, each of these organizations and
individuals also is named as a respondent in the February 27, 2004 complaint that Powers filed with OSHA.
OSHA acknowledged that Powers had “named numerous
parties as respondents” but stated that her “factual allegations relate only to
PACE.” March 15, 2004 OSHA letter to Powers at 1. OSHA then dismissed all the
named respondents and, it seems, substituted PACE. OSHA gave no reason for
this substitution. Because OSHA sent its
[Page 5]
decision only to Local 5-0772 and not
to PACE, id. at 2, the apparent substitution may have been an
administrative error.[10]
After Powers requested a hearing, the ALJ issued a show
cause order noting that OSHA had “dismissed” the complaint “as to all other
named Respondents,” and giving “[t]he Respondent, PACE” ten days to respond to
any pleading filed by Powers. April 14, 2004 Show Cause Order at 1-2.
Although Powers had named Walters, a PACE officer, her
complaint had not named PACE itself as a respondent. See Complaint at
1; see also Complainant’s Rebuttal Brief at 3; Complainant’s April 18, 2004 Motion to Amend/Alter the Harmful Errors in the April 14, 2004 Order in 2004-AIR-19 at 3-4 (taking issue with the ALJ’s dismissal of the named
respondents). PACE’s one-sentence motion seeking dismissal does not indicate that
PACE intended to represent Walters, Brents, or Local 5-0772. See Motion
to Dismiss at 1 (requesting dismissal on ground that complaint did not “state a
cause of action against PACE”).
The ALJ did not provide any explanation for treating
PACE as a respondent. It is apparent, however, that the ALJ treated PACE as
the sole respondent: only PACE was named in the caption, and only PACE was
authorized to respond to the show cause order. (Like OSHA, the ALJ sent her
order only to Brents at Local 5-0772, and not to PACE. See Show Cause
Order, Service Sheet, at 1.) The ALJ did not indicate that she herself was either
joining PACE or dismissing the other respondents. From the ALJ’s reference to OSHA’s
dismissal, it appears that the ALJ may have believed that OSHA’s dismissal
already had eliminated the named respondents from the action.
But OSHA’s dismissal did not itself remove the other
respondents from Powers’ hearing request. Upon Powers’ filing a request for a
hearing, OSHA’s determination became “inoperative.” 29 C.F.R. § 24.4(d)(2)
(Environmental Acts); see also 29 C.F.R. §§ 1979.106(b)(1) (AIR 21) (“If a timely objection is filed, all provisions of the preliminary order shall be stayed
. . . ”); 1980.106 (SOX) (“If a timely objection is filed, all provisions of
the preliminary order shall be stayed . . . ”). Therefore, OSHA’s dismissal of
these respondents did not take effect, and all of the respondents remained in
the action at the time that it went before the ALJ.
Of Powers’ named respondents only Local 5-0772, Hall,
and Piper Rudnick received the ALJ’s show cause order. See Service Sheet
at 1. Because the ALJ already had stated that PACE was “[t]he” only
respondent, and Hall and Piper Rudnick do not represent PACE, it is not clear
what the ALJ intended to accomplish by serving Hall and Piper Rudnick. In any
case, we doubt that their mere receipt of the show cause order constituted
effective service, when coupled with the clear statement in the order itself
that only PACE was a respondent.
[Page 6]
After Powers responded to the show cause order on April 18, 2004, only PACE submitted a pleading. See May 7, 2004 Motion to Dismiss. None
of the named respondents responded in any way to the show cause order. In
particular, and contrary to Powers’ assertion, see Complainant’s Brief
at 4 and 16, Hall and Piper Rudnick did not respond to the ALJ’s show cause
order.
Hall did sign a pleading submitted by Piper Rudnick on
April 21, 2004 in a different case administered by the same ALJ. See
Respondent’s Opposition to Complainant’s Motion Dated April 18, 2004 (submitted April 21, 2004 on behalf of Pinnacle in Case No. 2004-AIR-6). But this
pleading included the following footnote:
Ms. Powers has captioned the motion as being filed
jointly in Cases 2004-AIR-6 and 2004-AIR-19. The only respondent in the latter
case, however, is Ms. Powers’ union. Pinnacle is responding to Ms. Powers’
pleading because of its reference to 2004-AIR-6, and only to the extent it is
relevant to that case. Thus, for example, Pinnacle does not respond to Ms.
Powers’ motion to amend the Court’s April 14, 2004 Show Cause Order in 2004-AIR-19, or her argument that the Court lacked authority to issue such an order. .
. .
Thus, not only does the record contain nothing to indicate that either
Hall or Piper Rudnick ever entered this particular case (either on their own
behalf or representing any respondent named by the ALJ), the record also
contains an express disclaimer of any such entry.
Similarly, the ALJ served her recommended order of
dismissal only upon Powers, Brents and Local 5-0772, and Hall and Piper Rudnick.
See Order Service Sheet at 1 (also serving various DOL personnel). Therefore, none of the other named respondents were provided by the ALJ with
the “Notice of Appeal Rights” that appears at the end of the dismissal order.
The ARB repeated the ALJ’s omissions. Presumably using
the ALJ’s service sheet as a model, the ARB sent its first two briefing
schedules only to Powers, Brents and Local 5-0772, and Hall and Piper Rudnick.[11]
Despite not having been served with these two briefing schedules, PACE then entered
an appearance in the appeal. In its letter doing so, PACE stated that “[i]t does not seem that any representative of PACE
International Union has been served with” the ARB’s June 14, 2004, briefing
order.”[12] Because PACE made this assertion despite knowing
that Brents and Local 5-0772 had
[Page 7]
received the ARB’s briefing orders, it appears
that PACE did not consider Local 5-0772 or Brents to be “representative[s]” of
PACE.
After PACE’s entry into the appeal, the ARB then sent the Board’s next two orders to Powers, PACE,
Brents and Local 5-0772, and Hall and Piper Rudnick.[13]
PACE filed with the ARB a brief on its own behalf.[14]
No named respondent entered an appearance or filed a brief in the appeal.
In omitting to serve the named respondents with her
order and her decision, the ALJ may have acted inconsistently with applicable
procedural requirements. The regulations implementing SOX and AIR 21 provide that both “the complainant and the named person shall be parties in every
proceeding.”[15]
29 C.F.R. § 1980.108(a) (SOX); see 29 C.F.R. § 1979.108(a)(1) (AIR 21) (same); see also 29 C.F.R. §§ 1979.101 (AIR 21) (defining “named person” as “the
person alleged to have violated the act”), 1980.101 (SOX) (defining “named
person” as the employer and/or the company or company representative named in
the complaint who is alleged to have violated the Act.”). These regulations
also require that ALJs follow the procedural rules set forth in 29 C.F.R. §
18.3 (discussing requirements for service by Office of Administrative Law
Judges). See 29 C.F.R. §§ 1979.109(a) (making Part 18 rules applicable
to SOX cases), 1980.109(a) (same, AIR 21 cases). These rules require the
Office of Administrative Law Judges to “serve[]” all “orders” upon “all parties
of record.” 29 C.F.R. §§ 18.3(a), (c).
We do not here decide precisely which procedural
regulations apply, or whether any applicable requirements were violated,
because it appears clear that none of the respondents named by Powers has yet
had an opportunity to respond to Powers’ complaint. Because the ALJ’s analysis
contains several flaws, and because there is a possibility that an analysis
free of those flaws might find that the complaint states a claim, we do not
think it advisable in this case to overlook the cumulative impact of the
procedural irregularities and omissions we have described. Regardless whether the
named respondents choose to respond after they are given the opportunity to do
so, and regardless whether any such response might alter the analysis, we think
it preferable that the respondents be given the opportunity to respond. Our
adversarial system relies upon the fundamental concept that decisions affecting
parties’ rights should not be made without giving those parties notice and the
opportunity to be heard. See, e.g., Nelson v. Adams USA, Inc., 529 U.S. 460, 471 (2000) (noting that “judicial predictions about the outcome of hypothesized
litigation cannot substitute for the actual opportunity to defend that due
process affords”). We think it preferable to avoid any due process
issue by
[Page 8]
deferring any ruling on whether the complaint states a claim until an opportunity
to respond has been extended to all those respondents who remain in the action.
It appears likely that the four named respondents that
have passed through bankruptcy should no longer remain in this action. Powers
has not notified us that her claims were preserved against those four
respondents, so we assume that those claims are now extinguished. See, e.g,
Davis v. United Airlines, Inc., ARB No. 02-105, ALJ No. 2001-AIR-5, slip op. at 3 (ARB Apr. 26, 2006) (noting that “confirmation of a Chapter 11
reorganization plan . . . [generally] discharges the debtor from any debt
[including “liability” on any “claim”] that arose before the date of such
confirmation”). Unless Powers presents to the ALJ evidence showing otherwise,
the ALJ may dismiss these four respondents and thus need not include them in
any service of orders upon the remaining respondents.
Similarly, because there is nothing in the record to
indicate that PACE is representing Davies, Brents, or Local 5-0772, it is
possible that PACE is not a proper party in this action. On remand, the ALJ may
wish to permit argument as to whether PACE should be dismissed as improperly
joined, or permitted to remain in the action as the representative of a named
respondent.
Standard for determining whether a complaint states a claim
Under any of the acts upon which Powers relies, the
proper standard for determining whether a whistleblower complaint states a
claim is that set out in Federal Rule of Civil Procedure 12(b)(6).[16]
Under this standard, as recently clarified by the U.S.
[Page 9]
Supreme Court, although
a complaint “does not need detailed factual allegations” it still must
provide “factual allegations” that indicate the “grounds” for the complaint. Bell
Atlantic Corp. v. Twombly, 550 U.S. __, 127 S. Ct. 1955, 1964-65 (May 27, 2007) (emphasis added) (clarifying Swierkiewicz v. Sorema, 534 U.S. 506
(2002)).
While the standard remains “very charitable,” High,
slip op. at 6, under Bell Atlantic dismissal
is no longer “reserved for those cases in which the allegations of the
complaint itself demonstrate that the plaintiff does not have a valid claim.” Helmstetter,
slip op. at 5; see Bell Atlantic, 127 S. Ct. at 1968-69 (clarifying
and limiting “‘no set of facts’ language” in Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). Rather, the complaint itself must contain “enough
factual matter (taken as true) to suggest that” the alleged violation is
“plausible.” Bell Atlantic, 127 S. Ct. at 1968.
A complaint need not prove its “factual
allegations,” of course, so a decision that a complaint states a claim does not
mean that the complainant has proven the elements of her claim.[17]
[Page 10]
The ALJ’s analysis
In her show cause order, the ALJ quoted OSHA’s
assertion that Powers had not made allegations against the named respondents, and
then asserted her own belief that Powers’ “factual allegations relate only to
PACE.” Show Cause Order at 1-2. The basis for this assertion is not clear,
however. Despite its rambling style, Powers’ complaint[18]
does appear to contain factual allegations describing activities protected by
one or more of the acts under which Powers seeks redress, adverse actions at
the hands of at least some of the named respondents, and a causal connection
(temporal proximity) between the protected activities and the adverse actions.
Such allegations generally suffice to state
[Page 11]
a whistleblower claim. Although we
do not decide here whether Powers’ allegations suffice, we think it useful to
clarify several points in the ALJ’s analysis.
(a) Protected activity
The ALJ erred in concluding that serving a discovery request
can never be a protected activity. See Order at 5 (“[S]erving discovery
is not ‘protected activity’ under any conceivable interpretation of the
whistleblower statutes relied upon by the Complainant.”); see also Complainant’s
Brief at 15 (arguing that “discovery is a protected activity”). In
fact, it is possible that serving a discovery request potentially could
constitute protected activity if the request was part of a whistleblower
complaint.[19]
Powers alleges that her discovery request related to a previous complaint
brought under several whistleblower statutes.[20]
If so, then her discovery request may have constituted protected activity, at
least with regard to those statutes under which she had filed her previous
complaint.
The ALJ also appears to have misidentified as
allegations of adverse action Powers’ allegations that Pinnacle was violating
certain rules and regulations of the Federal Aviation Administration (FAA). See
Order at 2-3. After making reference to those allegations, the ALJ stated
that she had no “authority to adjudicate alleged violations of the rules or
regulations of the [FAA].” Order at 3.
[Page 12]
We view these allegations as making a different point,
however. Ultimately, in order to prove that she engaged in protected activity under
AIR 21, a complainant must show that she provided information about violations
of the laws or regulations listed in that Act. See 29 C.F.R. § 1979.102(b)(protected
activity includes providing information, or participating in a proceeding,
“relating to any violation or alleged violation of any order, regulation, or
standard of the Federal Aviation Administration or any other provision of
Federal law relating to air carrier safety under subtitle VII of title 49 of the United States Code or under any other law of the United States”); see
also, e.g., Rougas v. Southeast Airlines, Inc., ARB No. 04-139, ALJ No.
2004-AIR-3, slip op. at 14 (ARB July 31, 2006) (discussing requirements for
finding protected activity in a complaint arising under AIR 21). Thus the complaint’s
allegations about alleged violations of such rules probably should be
understood not as allegations about adverse action, but rather as support for Powers’
allegations that she engaged in protected activity by reporting these alleged
violations. Although Powers, a pro se complainant, may not have drawn that
connection as well as it might have been done, we cannot say that her complaint
was deficient merely because she seems to have assumed that we and the ALJ
would understand the reason that the complaint included reference to such
alleged violations. Powers alleged, for example, that Pinnacle was violating
FAA regulations governing duty hours for flight personnel. See, e.g.,
Complaint at 26-28. We have held that expressing concerns about duty hours
violations can constitute protected activity. See Clemmons v. American
Airways, Inc., ARB Nos. 05-048, 096, ALJ No. 2004-AIR-11, slip op. at 7
(ARB June 29, 2007) (complainant’s “discussions” about “violations of the duty
time regulations” constituted protected activity). Therefore, Powers’
expressions of concern about Pinnacle’s alleged violation of the duty hours
regulations may well have constituted protected activity.[21]
Upon remand, assuming that the complaint is not
dismissed upon other grounds, the ALJ should determine whether the complaint
alleges protected activity by using the updated standard provided in Bell
Atlantic. Under this standard, a complaint need provide only “enough
factual matter” to make its allegations “plausible.”[22]
Bell Atlantic, 127 S. Ct. at 1968. Thus, a complaint need not contain
sufficient facts to support a finding that the complainant engaged in
protected activity, so long as it provides more than a “formulaic recitation of
the elements of a cause of action.” Id. at 1965.
[Page 13]
Because both pursuing discovery and expressing concern
about violations of FAA rules potentially could constitute protected activity, we
hope that upon remand – assuming that the complaint is not dismissed upon
procedural grounds – the ALJ will analyze with greater specificity whether Powers’
allegations contain sufficient “factual matter” to survive 12(b)(6) dismissal.
(b) Adverse action
In determining whether the complaint alleges
any adverse action, the ALJ applied a standard that is now outdated. The ALJ stated
that an alleged adverse action must rise to the level of a “tangible
consequence” in order to be “considered actionable adverse action.” Order at
4-5. But, as the Supreme Court recently has clarified, the appropriate standard
is whether the actions were “materially adverse”: that is, “harmful to the
point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington
Northern Ry. Co. v. White, 548 U.S. ___, 126 S.Ct. 2405, 2409 (June 22, 2006)
(addressing degree of impact that employer’s action must have on employee in
order to be adverse under Title VII of Civil Rights Act of 1964, 42 U.S.C.A. §
2000e-3(a), and further noting that the reasonable worker must be assumed to be
“in the [complainant’s] position, considering ‘all the circumstances’”). We
already have applied this standard in AIR 21 cases,[23]
and we believe it also is appropriate to apply this standard in cases arising
under the SOX and the Environmental Acts.[24]
It is possible that Powers’ allegations might meet the Burlington
standard, even if they did not rise to the level of a “tangible consequence.”
The ALJ also appears to have overlooked the gravamen
of Powers’ allegation that Local 5-0772 did not investigate or conduct a
hearing on grievances she had filed against Pinnacle, refused to provide her
with copies of documents, and denied her legal help she otherwise would have
received. Order at 2. Rather than analyze whether these allegations described
potentially adverse action, the ALJ appears to have ignored them on
[Page 14]
the ground that she had “no jurisdiction over disputes between a union and its member,
including the interpretation of collective bargaining agreements, or a union’s
duty of representation.” Order at 4. PACE recites the same argument on
appeal. See Respondent’s Brief at 1-2.
But the complaint alleges not only that the union
failed to provide assistance, but also that Powers was entitled to this
assistance, see Complaint at 2, 4-5, 10, and that Pinnacle (through Hall
and Piper Rudnick) asked Local 5-0772 to deny Powers this assistance, id. at
14 n.2, 35. Construed generously, as we must construe the complaint of a pro
se litigant,[25]
these allegations taken together appear to be an allegation that Local 5-0772
acted as Pinnacle’s agent in denying Powers assistance to which she otherwise
would have been entitled. See Complainant’s Rebuttal at 7 (while
“’failure of duty in representation’ in a grievance process is [within] the
jurisdiction . . . of the . . . Federal Courts. . . . PACE local union and
named persons . . . colluded in their retaliation and discrimination against
[Powers] . . . , and this collusion is against . . . 29 CFR Part 1980”).
The SOX covers the actions of a covered employer’s
agent, as Powers obliquely notes.[26]
See Complainant’s Brief at 12 (arguing that “Local 5-0772, . . . Brents
. . . [and] Walters, are a ‘person’ by definition pursuant to . . . 29 C.F.R.
1980.101”), 13 (arguing that this conduct constituted retaliation because it
was prompted by Powers’ November 18, 2003 filing of a complaint with the SEC); Complainant’s Rebuttal at 3 (noting that PACE did not take issue with Powers’ assertion
that Local 5-0772 and its officials could be covered by the SOX), 6 (noting that
“[n]amed persons are not exclusively required to be ‘employers’).[27]
Therefore, the proper inquiry is whether the facts Powers alleges were
sufficient to make it “plausible” that Local 5-0772 was acting as Pinnacle’s
agent when it denied Powers the assistance she requested and, if so, whether this
denial could have dissuaded a reasonable worker in Powers’ position from making
or supporting a whistleblower complaint.
[Page 15]
The ALJ also did not provide any
explanation for her conclusion that the alleged denial of Powers’ request to
volunteer for emergency training, see Complaint at 21 & n.4, 37, was
not sufficiently adverse to be actionable. In particular, the ALJ did not
distinguish this alleged denial from an employer’s decision not to select an
employee for a training program – even though the Secretary has previously held
that non-selection for a training program could constitute an adverse action. See
Studer, slip op. at 3 (under then-current standard for adverse action, “training
and educational programs that advance an employee in his career or enable him
to perform his work more efficiently are a privilege of employment”;
complainant’s “allegation concerning his non-selection for a training program therefore
constitutes a sufficient allegation that [employer] took an adverse action
against [complainant]”). On remand, if the ALJ has occasion to address this
allegation, then the ALJ should evaluate Studer in light of Burlington.
The ALJ did not discuss, and thus may have overlooked,
certain of Powers’ other allegations of adverse action.[28]
These included Powers’ allegations that Pinnacle prohibited Powers’ supervisor
from completing a work reference form and thereby prevented Powers from applying
for a safety professional credential, Complaint at 35; “refuse[d] to correct” Powers’
employment records, id. at 23; and placed a backdated written warning in
Powers’ personnel file, id. at 4, thereby barring Powers from interviewing
for a promotional opportunity, see Complainant’s Brief at 14 (noting
allegation in Amended Complaint and First Amendment that this action was taken
by “Monroe, acting at the retaliatory ‘advice of Doug Hall, Ted Davies, Phil
Reed, Alice Pennington’”)).[29]
These also included Powers’ allegations that Hall and Piper Rudnick “attempted
to coerce and improperly influence the PACE Local 5-0772 union to ‘not help
Coleen with her lawsuits.’” Complaint at 35. On remand, if the ALJ has
occasion to address any of these allegations, then the ALJ should determine
whether any of these allegations describe consequences that might have been “materially
adverse” to Powers.
The same standard should be used if it is necessary to
analyze the complaint’s other allegations of adverse action, including the
allegations that Pinnacle purposely overpaid Powers several times in an attempt
to establish a basis for discipline, see Complaint at 41-42; threatened Powers
on January 16, 2004 with a written warning, see Complaint at 41-42; and assigned
Powers to work on New Year’s Eve, in violation of various regulations and
contrary to her seniority status, see Complaint at 3 n.1 (alleging that
Powers had served discovery on Pinnacle Dec. 30, 2003), 28-31 (alleging that
Powers was assigned work on December 30 and 31 in violation of FAR regulations),
36 (same); Complainant’s Brief at 12-13.
[Page 16]
(c) Respondents’ roles in the adverse actions
The ALJ stated that Powers did not allege “that she
suffered an ‘adverse employment action’ . . . at the hands of PACE . . . or any
of the other parties that she alleges are respondents.” Order at 3. But we do
not understand the ALJ’s statement to reflect any determination by the ALJ that
the complaint lacked allegations that the named respondents had inflicted the allegedly
adverse actions. Rather, we understand this assertion only as a description of
the ALJ’s conclusion that the alleged adverse actions were insufficiently
adverse to be actionable.
Were we to understand the assertion otherwise, we
would be puzzled, because the complaint appears to contain multiple allegations
that at least some of the named respondents took an active part in inflicting
the adverse actions.
On remand, assuming that the complaint is not
dismissed for procedural reasons, it would be helpful for the ALJ to determine
with more precision what allegations are made against which named persons and
organizations, and under which statute(s). We recognize the difficulties of
making such a determination with regard to this particular complaint, and we
reaffirm our previous holding that “when confronted with th[is] kind of prolix,
rambling complaint . . . an ALJ has the authority to demand that a complainant
come forward with a clear articulation of . . . her case.” High, slip
op. at 6.
Powers’ motions and requests
Because of our decision to remand, we need not address
Powers’ arguments that the ALJ erred in dismissing her complaint without a
hearing, a response to her request for an extension of time, or a motion from a
respondent. See Complainant’s Brief at 7-9, 23-25; Complainant’s Rebuttal
at 8-9. Nor need we address Powers’ requests for oral argument and permission
to file additional information.[30]
Complainant’s Rebuttal at 10. Because we do not have jurisdiction to review
OSHA’s actions, we also do not address Powers’ arguments that OSHA “erred” in
various ways. Id. at 4.
[Page 17]
Powers’ request for default judgment, premised upon
the named persons’ “failure to answer” her complaint, see Complainant’s Rebuttal
at 4, is denied for the reasons explained above. Powers’ request that we consolidate
this case with an earlier AIR 21 complaint, ALJ No. 2004-AIR-6, see Complainant’s Brief at 27 and Complainant’s May 12, 2004 Motion at 22, is moot because the ARB already has issued its final decision regarding that
complaint. See footnote 20.
Powers also argues that the ALJ has displayed
prejudicial bias and lack of impartiality, and requests that we assign her case
to a different ALJ. See Complainant’s brief at 26-27.[31]
Powers offers no facts in support of this request other than her arguments that
the ALJ’s orders in this and prior cases “show[] plain and harmful errors, an
abuse of discretion, judicial favorable bias towards named persons and
unfavorable prejudice against the Complainant and the ALJ’s resentment toward
Complainant based on Recusal Motion and Judicial complaint filed against the
ALJ.” Id. We presume that an ALJ is unbiased unless a party alleging
bias can support that allegation; and bias generally cannot be shown without
proof of an extra-judicial source of bias. See, e.g., Matter of Slavin,
ARB No. 04-088, ALJ No. 2004-MIS-2, slip op. at 15-18 (ARB Apr. 29, 2005); Eash v. Roadway Express, Inc., ARB No. 00-061, ALJ No. 1998-STA-28, slip op.
at 8 (ARB Dec. 31, 2002); Matter of Powell and Building Maintenance
Specialists, Inc., B.S.C.A. 32, 1989 WL 549946, at *2 n.5 (BSCA June 22,
1989). Unfavorable rulings and possible legal errors in an ALJ’s orders generally
are insufficient to prove bias. Therefore, we deny this motion.
Finally, we deny Powers’ request that we reject PACE’s
brief because it failed to identify the ARB case number, see Complainant’s
Rebuttal at 2 n.1, because PACE did identify the ALJ case number. We also deny
Powers’ request, see Complainant’s Brief at 9-11, 25-26, that we sanction
PACE and its attorney for allegedly ex parte communication in filing its May 7,
2004 Motion to Dismiss with the ALJ by fax and mail, while serving Powers only
by mail. Powers admits that she was served with PACE’s allegedly ex parte
motion. Although she alleges that she received the motion by mail whereas the
ALJ received it by fax, she does not point us to any applicable authority
indicating that such differential service techniques amount to ex parte
communications.[32]
[Page 18]
We also note that the ALJ’s order does not appear to have relied upon PACE’s
motion. See Order at 1-5; see also Respondent’s Brief at 3. Even
if it had, we review the ALJ’s order rather than PACE’s motion, so Powers’
presentation of the merits of her case has not been affected. Although Powers
alleges that she was harmed because her delayed receipt of PACE’s motion
prevented her from relying in her initial notice of appeal upon this alleged
violation of procedure, any such harm has been redressed because Powers became
aware of PACE’s motion in time to include in her brief various arguments
regarding that motion.[33]
CONCLUSION
It is possible that Powers’ complaint, reviewed under
the correct standards, may state a claim. But because of the procedural
concerns outlined above, we do not reach any conclusion about whether it does.
Instead, we remand so that every respondent can be given the opportunity to
respond, and so that the ALJ can make an initial judgment as to whether this
complaint states a claim. Therefore, and without expressing any view on the
merits of Powers’ complaint, we VACATE the ALJ’s dismissal and REMAND
for further proceedings consistent with this Order.
SO ORDERED.
A. LOUISE OLIVER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] Powers
purports to include “et al.” as additional complainants. Because there is no
indication that any other complainants are parties to this action, we ignore
this use of “et al.” and, like the ALJ, treat this complaint as filed solely by
Powers.
[2] The Toxic Substances Control Act (TSCA), 15
U.S.C.A. § 2622 (West 1998); the Federal Water Pollution Control Act (FWPCA),
33 U.S.C.A. § 1367 (West 2001); the Safe Drinking Water Act (SDWA), 42 U.S.C.A.
§ 300j-9 (West 2003); the Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 2003);
the Solid Waste Disposal Act (SWDA), also known as the Resource Conservation
and Recovery Act (RCRA), 42 U.S.C.A. § 6971 (West 2003); and the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. §
9610 (West 2005). We hereafter refer to these acts collectively as the
Environmental Acts.
[3] Prior to the issuance of the ALJ’s
decision, Powers filed an interlocutory appeal which the ARB declined to
accept. See Powers v. PACE, ARB No. 04-083, ALJ No. 2004-AIR-19 (ARB July 30, 2004) (declining to accept interlocutory appeal because ALJ’s decision
already had issued).
[4] For reasons that are unclear, we did not
receive the record until June 2006.
[5]
Although neither these respondents nor
Powers notified the ARB of these bankruptcy filings, we take judicial notice of
their occurrence because the bankruptcy proceedings have been published by
federal courts.
[6]
In order to facilitate
speedier review while the record was unavailable due to the ARB’s recent move
to new offices, PACE – at our request – provided copies of certain documents.
The complete original record was checked prior to the issuance of this Order to
ensure that all references were accurate.
[7]
We review the ALJ’s conclusions of law de novo.
See Getman v. Southwest Sec., Inc., ARB No. 04-059, ALJ No. 03-SOX-8,
slip op. at 7 (ARB July 29, 2005) (SOX); Peck v. Safe Air Int’l, Inc. d/b/a
Island Express, ARB No. 02-028, ALJ No. 01-AIR-3, slip op. at 5 (ARB Jan.
30, 2004) (AIR 21); White v. The Osage Tribal Council, ARB No. 00-078,
ALJ No. 95-SDW-1, slip op. at 2 (ARB Apr. 8, 2003) (SDWA); Berkman v. United
States Coast Guard Acad., ARB No. 98-056, ALJ Nos. 97-CAA-2, 9, slip op. at 15 (ARB Feb. 29, 2000) (CAA, SWDA, CERCLA, TSC, and FWPCA). The ALJ made
no factual findings.
[8]
We acknowledge Powers’ clarification on
appeal that she “never asserted that the ALJ . . . has any jurisdiction over
the NLRB.” Complainant’s Rebuttal Brief at 6.
[9]
The hearing request also lists “et al.” as
additional respondents. Because Powers nowhere specified the identity of any
additional respondents, we understand her complaint to include only those
respondents it actually names. By summarizing those names here, we make no
determination as to whether the names Powers uses refer to legal entities. Nor
do we express any opinion as to whether Powers herself properly served all the
respondents she names.
[10]
OSHA sent its initial notice of complaint to
Local 5-0772 and not, it seems, to PACE. See March 5, 2004 OSHA Letter to Local 5-0772.
[11]
See Notice of Appeal and Order
Establishing Briefing Schedule, June 14, 2004, Certificate of Service, at 1;
Order Granting Extension of Time and Amending Briefing Schedule, July 13, 2004,
Certificate of Service, at 1 (same parties served).
[12]
See July 13, 2004 Letter from PACE at 1 (entering appearance “on behalf of the Paper, Allied-Industrial, Chemical
& Energy Workers International Union (‘PACE’)”).
[13]
See July 29, 2004 Order to Show
Cause, Service Sheet at 1 (serving Hall and Piper Rudnick, Brents and Local
5-0772, and PACE); Order, Sept. 9, 2004 (same).
[14] See Respondent’s Brief at 1-3.
[15]
Similarly, under the regulation implementing
the Environmental Acts, the parties appear to include “the respondent (employer).”
29 C.F.R. § 24.4(d)(3). Yet Pinnacle Airlines, Inc. – Powers’ employer and a
named respondent – was not served by the ALJ.
[16]
Because “[n]either the rules governing
hearings in whistleblower cases, 29 C.F.R. Part 24, nor the rules governing hearings
before ALJs, 29 C.F.R. Part 18, provide for dismissal of a complaint for
failure to state a claim upon which relief can be granted,” Helmstetter v.
Pacific Gas & Electric Co., 1991-TSC-1 at 3 (Sec’y Jan 13, 1993)
(citing 29 C.F.R. § 18.1(a)), the Secretary has held that an ALJ in determining
whether to dismiss a complaint for failure to state a claim must apply Federal
Rule of Civil Procedure 12(b)(6)), and that review of such a dismissal should
use the same standard. See 29 C.F.R. § 18.1(a) (requiring ALJs to turn
to Federal Rules of Civil Procedure when ALJ procedural rules are silent); see
also Studer v. Flowers Baking Co., 1993-CAA-11, slip op. at 2 (Sec’y
June 19, 1995) (analyzing CAA complaint under standards in Federal Rule of
Civil Procedure 12(b)(6)); Aurich v. Consolidated Edison Co., 1986-CAA-2, slip op. at 5 (Sec’y Apr. 23, 1987) (same); Chase v. Buncombe County, 1985-SWD-4,
slip op. at 5 (Sec’y Nov. 3, 1986) (same, via Supreme Court decision applying
12(b)(6)). We have applied this same 12(b)(6) standard regardless of the
statute under which the whistleblower complaint was brought. See, e.g.,
Fullington v. AVSEC Services, L.L.C., ARB No. 04-019, ALJ No. 2003-AIR-30, slip op. at 5 (ARB Oct. 26, 2005) (applying 12(b)(6) standard to AIR 21 case);
High v. Lockheed Martin Energy Systems, ARB No. 98-075, ALJ No. 96-CAA-8, slip op. at 1, 6 (ARB Mar. 13,
2001), (applying 12(b)(6) standard
to complaint brought under TSCA, CERCLA, SWDA, SDWA, ERA, and CAA).
Insofar as the 12(b)(6) standard has been modified by any
of the statutes under which the complaint is brought, or any of the regulations
implementing those statues, we apply the applicable statutory standard. To
date, we have not had occasion to determine whether the “gatekeeper” provisions
in AIR 21 and SOX in fact set forth a more stringent standard than otherwise
would apply to determinations regarding 12(b)(6)-type challenges to employment
discrimination complaints. See 69 Fed. Reg. 52104, 52106-10 (Aug. 24, 2004) (discussing content of SOX complaint and gatekeeper requirement); 68
Fed. Reg. 31860, 31861-62 (May 28, 2003) (noting similarity of SOX gatekeeper
requirement to AIR 21 gatekeeper requirement); 68 Fed. Reg. 14100 (Mar. 21, 2003) (Procedures for the Handling of Discrimination Complaints under AIR 21 – Final Rule) (noting similarity between AIR 21 gatekeeper requirement and ERA gatekeeper
requirement); 67 Fed. Reg. 15454, 15455 (Apr. 1, 2002) (same); 63 Fed. Reg. 6614, 6618-19 (Feb. 9, 1998) (Procedures for the Handling of Discrimination
Complaints Under Federal Employee Protection Statutes – Final Rule) (discussing
ERA gatekeeper requirement); 59 Fed. Reg. 12506, 12506 (Mar. 16, 1994)
(Procedures for the Handling of Discrimination Complaints Under Federal
Employee Protection Statutes – Proposed Rule) (noting ERA gatekeeper
requirement).
[17]
The clear majority of ARB decisions have
recognized that if a complaint alleges
sufficient factual matter to survive 12(b)(6) dismissal, then to prevail the
complainant still must establish those
allegations – i.e., prove them or show them to be true. See, e.g., Stephenson v. NASA,
ARB No. 98-025, ALJ No. 1994-TSC-5, slip op. at 13-14
(ARB July 18, 2000) (Secretary’s decision that complainant had stated a claim did
not constitute decision that complainant actually had engaged in protected
activity). Although stray terminology in a few decisions may appear to suggest
that the complaint itself must establish the complainant’s allegations,
the use of such terminology appears to have been inadvertent because none
of those decisions includes any explicit discussion of any intent to depart
from the standard in 12(b)(6). See, e.g., Harvey v. Home Depot, ARB Nos. 04-114, 115, ALJ
Nos. 2004-SOX-20/36, slip op. at 11-12 (ARB June 2, 2006) (suggesting that Harvey’s
“‘complaint’” had to “establish[] his right to recover,” but also
stating that his complaint “could . . . be dismissed under a Fed. R. Civ. P.
12(b)(6) analysis”) (emphasis added); Cummings v. USA Truck, Inc., ARB
No. 04-043, ALJ No. 2003-STA-47, slip op. at 4 (ARB Apr. 26, 2005) (suggesting
that complainant has burden of “first establishing and ultimately proving” the
elements of his claim, but also stating that “Fed. R. Civ. P. 12(b)(6)” was
“properly applied” in determining whether a complaint states a claim); Howick
v. Campbell-Ewald Co., ARB No. 03-156, ALJ No. 2003-STA-06, slip op. at 10
(ARB Nov. 30, 2004) (suggesting that because Howick had failed to “show”
adverse employment action, Howick had failed to “allege” such action,
but in fact deciding case under summary decision standards rather than 12(b)(6)
standard) (emphases added); Mourfield v. Frederick Plaas & Plaas, Inc.,
ARB Nos. 00-055, 056, ALJ No. 1999-CAA-13, slip op. at 5 (ARB Dec. 6, 2002) (suggesting
that “[t]o state a claim under the environmental acts, the complainant .
. . must prove by a preponderance of the evidence that the employer
discriminated intentionally,” but actually deciding case under the
preponderance of the evidence standard because a hearing already had been held)
(emphases added); Moore v. U.S. Dep’t of Energy, ARB No. 99-094, ALJ No.
1999-CAA-14, slip op. at 3 (ARB July 31, 2001) (suggesting that “to state a
claim under the environmental acts, the complainant must show” the elements
of the claim, but neither discussing nor explicitly diverging from the
precedential holdings stating that the ARB applies the standard in 12(b)(6))
(emphasis added).
[18]
Powers filed an initial complaint on February 27, 2004. She amended it on March 3, 2004 to add references to several other
statutes including the LMRA, LMRDA, and RLA. See March. 3, 2004 Amended Complaint at 1, 14, 21,
37-40, 43; Complainant’s Brief at 8. After OSHA had dismissed the
complaint but before Powers received notice of that dismissal, Powers sent OSHA
what she called a “First Amendment” to her complaint. See March 22,
2004 First Amendment; Complainant’s Motion to Amend/Alter the Harmful Errors in
the April 14, 2004 Order in 2004-AIR-19, at 1 n.1 (alleging that Powers received
OSHA’s March 15, 2004 notice on March 26, 2004); Complainant’s Brief at 4, 15
(same). Perhaps more properly identified as a supplement to the complaint, the
First Amendment does not repeat the information in the February 27 and March 3
complaints, but instead presents information about events that occurred
subsequent to the filing of the February 27 complaint; for example, it alleges
that Davies denied Powers a promotional opportunity. Although we discuss the
allegations Powers made in her First Amendment, we do not here determine
whether those allegations properly should be considered part of her complaint.
[19]
See 29 C.F.R. §§ 24.2(b)
(Environmental Acts) (prohibiting discrimination against an employee who has “[a]ssisted
or participated . . . in any manner in . . . a proceeding” filed under any of
the Environmental Acts); 1979.102 (AIR 21) (prohibiting discriminate[ion] . . .
because the employee has . . . [f]iled . . . a proceeding relating to any
violation or alleged violation . . . of [an AIR 21-listed rule] . . . [or] [a]ssisted
or participated in such a proceeding.”); 1980.102(b) (SOX) (protecting against
“discrimination . . . for any lawful act . . . [t]o file . . . [or] participate
in . . . a proceeding . . . relating to an alleged violation [of a SOX-listed
rule]”).
[20]
Powers has filed several previous
whistleblower complaints with the DOL. See Powers v. Pinnacle Airlines,
Inc., 2006-AIR-4 and 5 (dismissed by ALJ March 3, 2006 for failure to
cooperate in discovery and follow ALJ orders, dismissed on appeal because
uncorrected non-conforming brief was struck and thus no brief was filed; see
ARB No. 06-178 (ARB June 28, 2007)); Powers v. Pinnacle Airlines, Inc.,
ALJ No. 2005-SOX-65 (dismissed by ALJ Nov. 30, 2005 because SOX claim filed in
federal district court); Powers v. Pinnacle Airlines, Inc., ALJ No.
2004-AIR-32 (dismissed by ALJ for failure to cooperate in discovery, dismissal
affirmed in ARB No. 05-022 (ARB Jan. 31, 2006) and ARB No. 05-022 (ARB July 27,
2007) (denying reconsideration)); Powers v. Pinnacle Airlines, Inc., ALJ
No. 2004-AIR-06 (dismissed by ALJ for failure to cooperate in discovery,
dismissed on appeal for uncorrected non-conforming briefs; see ARB No.
04-102 (ARB Jan. 5, 2005) and ARB No. 04-102 (ARB Feb. 17, 2005) (denying
motion for reconsideration)); Powers v. Pinnacle Airlines, Inc., ALJ No.
2003-AIR-12 (dismissed by ALJ Dec. 10, 2003; dismissal affirmed in ARB No.
04-035 (ARB Sept. 28, 2004).
[21]
We express no view as to whether those
expressions of concern did in fact constitute protected activity, nor do we
express any view as to whether Powers engaged in protected activity by
expressing concern about Pinnacle’s other alleged violations.
[22]
Powers specified not only the alleged
rule and regulatory violations giving rise to her concerns, but also the dates
(various dates in January 2004) and the individual (Davies) to whom she
expressed these concerns. See Complaint at 3-4, 37. Therefore, the ALJ
may wish to revisit her statement that “nowhere in [Powers’] complaint does she
allege facts that would conceivably support a finding that she
engaged in any protected activity.” Order at 3 (emphases added).
[23]
See Hirst v. Southeast Airlines, Inc.,
ARB Nos. 04-116, 160, ALJ No. 2003-AIR-47, slip op. at 11-12 & n.28 (ARB Jan. 31, 2007)
(applying Burlington and noting Supreme Court’s injunction in
Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993) that
standards applied by Supreme Court must be given retroactive effect in cases still
on direct review); Keener v. Duke Energy Corp., ARB No. 04-091, ALJ No.
2003-ERA-12, slip op. at 12 & n.94 (ARB July 31, 2006) (same).
[24]
The regulations implementing the SOX, like
those implementing AIR 21, prohibit “any . . . manner” of discrimination. Compare
29 C.F.R. § 1980.102(a) (SOX) (“No company . . . may discharge, demote,
suspend, threaten, harass or in any other manner discriminate against
any employee with respect to . . . employment”) (emphasis added) with §
1979.102(b) (AIR 21) (“It is a violation . . . to intimidate, threaten,
restrain, coerce, blacklist, discharge or in any other manner
discriminate” against an employee) (emphasis added). The Environmental Acts
also provide broad protection. See 29 C.F.R. § 24.2(a) (“No employer . .
. may discharge any employee or otherwise discriminate . . . with respect to
the employee’s compensation, terms, conditions, or privileges of employment”).
[25]
See Smith v. W. Sales & Testing,
ARB No. 02-080, ALJ No. 2001-CAA-17, slip op. at 12 (ARB Mar. 31, 2004) (pro se complaints should be liberally construed).
[26]
The SOX’s expansive coverage is broader than
the coverage in AIR 21 and the Environmental Acts, all of which cover only an
employer. Compare 29 C.F.R. § 1980.100-101 (SOX) (extending coverage to
company representatives) with 29 C.F.R. §§ 24 .101-102 (Environmental
Acts) (limiting coverage to employers) and 29 C.F.R. 1979.102(a) (AIR 21)
(limiting coverage to air carriers and contractors and subcontractors thereof).
[27]
Although AIR 21 and the Environmental Acts
cover only a complainant’s employer, the SOX extends coverage both to employers
and to their “company representative[s].” 29 C.F.R. §§ 1980.102(a) (extending
coverage to both a “company” and a “company representative”), 101 (defining
“company representative” to include “any officer, employee, contractor,
subcontractor, or agent” of a company); see also Klopfenstein v. PCC Technologies Holdings, Inc., ARB No. 04-149, ALJ No. 2004-SOX-11, slip op. at 12-16 (ARB May 31, 2006) (SOX coverage extends to employer’s officers, employees, and agents).
[28] Our listing of these and other allegations
in the complaint should not be understood as a determination that these
allegations are timely or sufficient to support a whistleblower complaint.
[29]
We note the complaint’s allegation that Monroe followed Hall’s “advice” without deciding whether the giving of such advice
justifies SOX coverage over Hall and Piper Rudnick.
[30]
Powers also offers multiple arguments that
appear to relate only to other cases, all of which have been finally decided.
See, e.g., Complainant’s Brief at 17-20 (presenting arguments that a
discovery request served in a prior case did indeed request relevant
information, and taking issue with arguments that it did not), 20-23
(presenting other arguments related to other cases). Because those cases were
never consolidated with this one, we ignore any arguments that relate only to
such other cases. Insofar as Powers seeks sanctions against Hall and Piper
Rudnick, we understand her request to be based upon their alleged behavior in
one or more prior cases. As we noted previously, there is no indication that
Hall or Piper Rudnick have entered an appearance in this case. We therefore
ignore any such request.
[31] Although the record does not contain any
indication that the ALJ answered it, Powers does appear to have filed a recusal
motion with the ALJ as required by 29 C.F.R. § 18.31(b). See Order at 1
(acknowledging filing of, but not answering, recusal motion); see also
Complainant’s Motion for Recusal of ALJ Chapman in 2004-AIR-6 & 2004-AIR-19, received April 22, 2004. We treat the ALJ’s silence as a decision to deny recusal.
[32] Powers argues that Federal Rules of Civil
Procedure “5, 7, 8, or 12” require that all filings be “served at the same time
as filed directly with the ALJ.” Complainant’s Brief at 11. Even if these
service rules apply – and we make no decision as to whether they do – no such
requirement is contained within those rules. Indeed, Rule 5 states that filing
may be made by hand delivery, mailing, faxing, or leaving a copy with the clerk
of the court (if the person has no known address). See Fed. R. Civ. P.
5. There is no suggestion in the rule that, for example, hand delivery to one
party is invalid unless all other parties are also hand-served at the same
instant.
[33] It is true that in cases brought under AIR 21, SOX,
and the Environmental Acts the ARB “generally” does not accept appeals of matters
not raised in a petition for review. 29 C.F.R. § 24.110(a) (Environmental
Acts); see also 29 C.F.R. §§ 1979.110(a) (AIR 21), 1980.110(a) (SOX).
In order to avoid any harm to Powers from the delay she experienced in
receiving PACE’s motion, we address Powers’ argument relating to the alleged ex
parte motion even though she did not include it in her initial petition for
review.
