Substantial evidence supports this finding, and Ede and Phanthala do not challenge it.
[Page 5]
Conclusion
Finding no reason to depart from the First Circuit's Carnero decision that SOX section 806 does not protect employees such as Ede and Phanthala who work exclusively outside the United States, we affirm the ALJ's recommendation and DISMISS this complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514A (West Supp. 2005). The SOX implementing regulations are found at 29 C.F.R. Part 1980 (2006).
2 Declaration of Dr. Hanspeter Rentsch, General Counsel of the Swatch Group, para. 3; Exhibit 1.
3 Id. at para. 3-4.
4 Declaration of Edgar Geiser, Senior Vice President and Chief Financial Officer of the Swatch Group, para. 4; Exhibit 3. Ede's employment contract indicates that he resided in Azerbaijan when he was hired. Exhibit 3.
5 Id. at para. 4-5; Exhibits 3-4.
6 Id. at para. 6; Exhibit 5.
7 Id. at para. 13; Exhibit 8.
8 Id. at para. 17-18; Exhibit 11. Phanthala's employment contract indicates that he lived in Beijing, China when he was assigned to work in Hong Kong. Exhibit 11.
9 Id. at para. 18, 21; Exhibits 11-12.
10 Id.
11 18 U.S.C.A. § 1514A(a).
12 No. 04-10031-RWZ, 2004 WL 1922132 (D. Mass. Aug. 27, 2004).
13 Decision and Order at 2-3.
14 Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64272 (Oct. 17, 2002); 29 C.F.R. § 1980.110.
15 29 C.F.R. § 1980.110(b).
16 Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
17 Cf. Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993) (analogous provision of Surface Transportation Assistance Act); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1063 (5th Cir. 1991) (same).
18 Carnero v. Boston Scientific Corp., 433 F.3d 1, 4, 6-7 (1st Cir. 2006), cert. denied, __ U.S. __, 126 S.Ct. 2973 (June 26, 2006).
19 433 F. 3d at 18.
20 Id. at 18 n.17. The court noted that it decided the case "necessarily on its own facts" and did not decide "whether Congress intended to cover an employee based in the United States who is retaliated against for whistleblowing while on a temporary assignment overseas." Id.
21 Geiser Declaration, para. 3-6, 13, 17-18, 21; Exhibits 3-5, 8, 11, 12.
22 Decision and Order at 3.