Because this argument clears the screening hurdle, it warrants reconsideration.
C. Reconsideration
As we have indicated, Powers argues that the Board lost jurisdiction over her entire
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complaint when she removed the SOX portion of it to federal court, and further argues that the Board’s order of remand was therefore void. Petition at 2.
The Board previously has recognized that once a complainant files a SOX complaint in federal district court, an "ALJ no longer has jurisdiction to enter any order in the case other than one dismissing it on the ground that" it has been removed. Powers v. Pinnacle Airlines, Inc., ARB No. 05-138, ALJ No. 2005-SOX-65, slip op. at 5 (ARB Oct. 31, 2005).
But the Board also has held that upon removal of a complaint brought under both SOX and another statute, the Board "retain[s] jurisdiction" over those claims brought pursuant to the other statute. Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32, slip op. at 9 (ARB Jan. 31, 2006). Therefore the Board had jurisdiction to issue its order of remand at least with respect to the AIR 21 and environmental claims Powers asserted.
Regarding the SOX claim Powers asserted, we have determined that this claim should have been dismissed because Powers has flied a notice of removal to federal court, and the filing of such notice divests the ARB of jurisdiction over the claim.
Therefore, we revise our August 31, 2007 Order of Remand as follows:
We replace the second sentence of the second full paragraph on page 2 with the following passage:
Because Powers has filed a notice of removal to federal court, we dismiss the SOX-based portion of her claim. See Notice of Intent, received May 24, 2005; see also Powers v. Pinnacle Airlines, Inc., ARB No. 05-138, ALJ No. 2005-SOX-65, slip op. at 5 (ARB Oct. 31, 2005) (filing of a Notice of Intent divests Board of jurisdiction and requires dismissal of claim). We retain jurisdiction of Powers’ claims under the other seven acts under which Powers brings her complaint, see Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32, slip op. at 9 (ARB Jan. 31, 2006) (upon removal of a complaint brought under both SOX and another statute, the Board "retain[s] jurisdiction" over those claims brought pursuant to the other statute), and conclude that the ALJ may have erred in determining that the complaint does not state a claim under any of them.
In the first line of page 3, we replace the phrase "the SOX, AIR 21," with the phrase "AIR 21." In the third line of that page, we delete the phrase "18 U.S.C.A. § l514A (same, SOX);".
In the first full paragraph on page 7, we delete the phrase "SOX and" from the third line. We replace the first citation sentence with the following: "29 C.F.R. § 1979.108(a)(1) (AIR 21); see 29 C.F.R. § 1979.101 (AIR 21) (defining "named person" as "the person alleged to have violated the act)." We replace the second citation sentence with the following: "See 29 C.F.R. §
[Page 12]
1979.109(a) (making Part 18 rules applicable to AIR 21 cases)."
In line 5 of page 13, we delete the phrase "the SOX and" and add to the beginning of the next sentence the phrase "Construed generously, as we must construe the complaint of a pro se litigant." We also move footnote 25 so that it appears at the end of this added phrase.
We delete the first full paragraph on page 13, the paragraph that continues from page 13 to page 14, and the first full paragraph on page 14.
In the first line of the second full paragraph on page 14, we replace the phrase "The ALJ also" with the phrase "For example, the ALJ".
In the first line of page 15, we replace the word "The" with the phrase "Moreover, the".
We also alter the following footnotes: In footnote 7, we delete the first reference. In line four of the second paragraph of footnote 16, we delete the phrase "and SOX," replace the word "provisions" with the word "provision," and replace the word "set" with the word "sets." In footnote 19, we delete the last reference. In footnote 24, we delete the first sentence. We delete footnotes 26, 27, and 29. Finally, from the first line of footnote 33 we delete the phrase ", SOX," and from the fourth line of that same footnote we delete the phrase ", 1980.110(a) (SOX)."
Finally, upon review of our opinion we noticed a phrase that could benefit from clarification. Therefore we replace the last phrase of the paragraph that ends at the top of page 13 with the phrase "when interpreted in light of ARB caselaw — most recently Hirst — reaffirming the continuing relevance of the "tangible consequences" standard." The reissued Order of Remand also corrects certain formatting inconsistencies in the previous Order.
The revised Order of Remand is attached.
SO ORDERED.
A. LOUISE OLIVER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 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. Our listing of the statutes pursuant to which Powers has filed her claim should not be construed as a decision about whether Powers has in fact stated a claim under any of these statutes.
2 See Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-51, slip op. at 2-4 (ARB May 30, 2007) (concluding that ARB has authority to reconsider decisions made pursuant to the SOX); Leveille v. N.Y. Air Nat’l Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4, slip op. at 4 (ARB May 16, 2000) (concluding that ARB has authority to reconsider decisions made under SDWA, the CWA, and the CERCLA); Jones v. EG&G Def. Materials, Inc., ARB No, 97-129, ALJ No. 1995-CAA-3, slip op. at 2-3 (ARB Nov. 24, 1998) (concluding that ARB has authority to reconsider decisions made pursuant to the CAA, the TSCA, and the SWDA).
3 Although the Board has twice ruled upon a petition seeking reconsideration in an AIR 21 case, the Board rejected both petitions and — perhaps for this reason — did not explicitly examine its authority to reconsider a decision issued pursuant to AIR 21. See Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32, slip op. at 2 n.4 (ARB July 27, 2007) (noting the Board’s authority to reconsider decisions issued under statutes, but not explicitly discussing the Board’s authority to reconsider decisions issued pursuant to AIR 21); Powers v. Pinnacle Airlines, Inc., ARB No. 04-102, ALJ No. 2004-AIR-6, slip op. at 1 n.2 (ARB Feb. 17, 2005) (same).
4 The implementing regulations do, however, explicitly refer to the possibility that a motion for reconsideration may be filed with the ALJ. See 29 C.F.R. § 1979.110(c) (conclusion of hearing is date of ALJ’s decision unless "within 10 days . . . a motion for reconsideration has been filed"); see also 68 Fed. Reg. 14,099, 14,106 (Final Regulation, Mar. 21, 2003) (same); 67 Fed. Reg. 15,453, 13,436 (Interim Final Regulation, Apr. 1, 2002) (same, but using 15 day-deadline).
5 Henrich, slip op. at 11. Because of the similarity between the employee protection provisions of AIR 21 and the SOX, see, e.g., 68 Fed. Reg. 31,860, 31,860 (May 28, 2003) (Interim Final Rule), our conclusion in Henrich — that the SOX did not alter this default reasonable-time standard — also applies to AIR 21.
6 Although in several instances in 1992 the Board of Service Contract Appeals (BSCA) permitted litigants 30 days to seek reconsideration, the BSCA did not describe that time period as short. See Henrich, slip op. at 11 n.24. Moreoever, in each of those instances the dismissal decision was issued sua sponte on the basis of mootness and the BSCA allowed not only parties but also "interested person[s]" to seek reconsideration. Thus it appears that the BSCA deliberately selected a longer time period in order to give non-parties ("interested person[s]") time to learn of the decision and object.
7 We recognize that Powers asserts she did not receive our decision until September 7, 2007. Even if this is so, she still waited a full 27 days before submitting her petition. Thus, we have no need to decide here whether the "short" time period begins upon a decision’s issuance or upon its receipt by a party, nor need we address whether the period includes only business days.
8 67 Fed. Reg. 64,272, 64,273 (Oct. 17, 2002).
9 Henrich, slip op. at 16 n.31. As we stated in Henrich, "[T]he grounds justifying a Rule 60(b) petition for relief from a judgment are quite different from those justifying a petition seeking to alter that judgment [on rehearing]. The first and third Rule 60(b) grounds stem from errors or misconduct by a party. See Fed. R. Civ. P. 60(b)(1) (permitting court to relieve party from judgment "for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect" by petitioner), 60(b)(3) (permitting relief for "(3) fraud ... misrepresentation, or other misconduct of an adverse party"). The second and fifth grounds allow relief from the judgment based upon incidents that occur after the entry of judgment. See Fed. R. Civ. P. 60(b)(2) (permitting relief for "(2) newly discovered evidence"); 60(b)(5) (permitting relief when "(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application"). The fourth ground allows relief because the judgment never was valid in the first place. See Fed. R. Civ. P. 60(b)(4) (permitting relief where "(4) the judgment is void"). Finally, Rule 60(b)’s catch-all ground permits relief when "there is a reason justifying relief," Fed. R. Civ. P. 60(b)(6) — but few if any grounds for rehearing can justify relief. See 11 WRIGHT, MILLER & KANE, § 2863 (Rule 60(b) "does not allow relitigation of issues that have been resolved by the judgment.")." Id.
10 Powers did not in her original brief and reply brief argue that the basis for her assertion of ALJ bias was the ALJ’s purported failure to allow Powers to respond to PACE’s motion to dismiss. See Brief at 23-26, Reply at 8-9. Although Powers did argue in her reply brief that "the material undisputed fact that the ALJ rendered her RDO without providing complainant an opportunity to respond to the untimely PACE Union May 7, 2004 Motion to Dismiss" constituted "reversible error," see Reply at 8-9, Powers did not argue that this "fact" also constituted evidence of ALJ bias — nor did Powers in either brief provide any evidence to rebut the presumption that because the ALJ in her May 7 order of dismissal did not mention having received PACE’s May 7 motion, the ALJ had not in fact received that motion prior to issuing her decision.
11 Contrary to Powers’ assertion, PACE did not participate in any "checking of the complete original record." Nor did PACE initiate any "ex parte" communications. Rather, as the August 31, 2007 Order of Remand explained, Board staff requested from PACE duplicate copies of certain pleadings so that the Board could consult those pleadings while the original record was unavailable and thus provide a quicker review of this case. PACE complied with the Board’s request without providing any new documents or arguments. This purely administrative contact with the Board’s staff did not give PACE any preferential opportunity to influence the Board’s decision. Moreover, as the August 31 Order of Remand explained, before issuance of its decision the Board reviewed the complete original record — which by then had become available — and thus did not in any way "rel[y]" upon the duplicate documents provided by PACE. Although the Board regrets the administrative oversight that resulted in Powers not receiving a simultaneous copy of the Board’s request for duplicate pleadings, that oversight alone does not provide any reason to alter the judgment or relieve Powers from it — particularly because the Board in its opinion disclosed the nature and extent of its staff’s contact with PACE. Therefore, whether this argument is a rehearing-type argument or a Rule 60(b)-type argument, it does not meet the threshold screening criteria.
12 Separate administrative records were created for this appeal and for the interlocutory appeal Powers had earlier filed, which at the time she filed her Notice had not yet been resolved; and the Notice also applied to "all former Crewmember Powers’ pending cases before the US DOL ARB," see Supplemental Petition at 4 & n.3 (emphasis in original), and it is possible that the Notice was filed only in one of the other relevant records. Those other records are no longer available to the ARB.
13 The argument is not waived, however, because subject matter jurisdiction may be challenged at any time.
14 With regard to PACE, we first discussed the unclear circumstances of PACE’s inclusion as a party. Order at 4-5. We then noted that "it is possible that PACE is not a proper party" and, without deciding whether PACE in fact was a proper party, we invited the ALJ on remand to determine, if appropriate (i.e., if the ALJ determined that PACE was not itself a party), whether PACE should be permitted to remain in the action for some other reason. Order at 8 (emphasis added). With regard to the possible extinguishment of Powers’ claims by the operation of the bankruptcy laws, we first noted that several of the named parties had passed through bankruptcy, Order at 2, then noted that ordinarily this would operate to extinguish any claims, Order at 8, and then asked the ALJ to determine — by examining any relevant "evidence" that Powers might produce — whether Powers’ particular claims had been extinguished, Order at 8.
15 In her supplemental pleading Powers provides further argumentation related to her position that the ALJ erred in issuing her order of dismissal (specifically, that the ALJ did not have authority to dismiss her complaint because the ALJ was required first to schedule a de novo hearing, and failed to do so), Supplemental Petition at 11-12, but we were not able to discern in this section any argument that the ARB had erred — let alone any argument based upon a Rule 60(b)-type claim. Therefore, we ignore this portion of the supplemental petition.
16 This alleged error might also be characterized as a "failure to consider material facts presented to the [Board] before its decision." Knox, slip op. at 3. But an argument that the Board failed to consider such facts is a rehearing-type argument and thus — at this stage — untimely.
