Title: Final Decision and Order

Title: Final Decision and Order Dismissing Interlocutory Appeal

JURISDICTION OVER SOX COMPLAINT ONCE COMPLAINANT FILES SUIT IN FEDERAL DISTRICT COURT

The Complainant had filed a complaint that pleaded both AIR21 and SOX whistleblower causes of action. The Respondent filed a motion to dismiss the SOX complaint and the ALJ issued an order directing the Complainant to respond. The Complainant filed a "Notice of Intent" to file a SOX claim in federal district court. The ALJ, however, found that she retained jurisdiction over the SOX claim and, about one month later, issued an order dismissing the SOX complaint for failure to state a claim upon which relief can be granted. The Complainant took an interlocutory appeal of this, and other rulings of the ALJ.

The ARB held that once the Complainant files her SOX suit in federal district court, the ALJ no longer had jurisdiction to enter any order in the case other than one dismissing it on the ground that the Complainant had removed the case to district court. Similarly, the ARB was divested of jurisdiction over the interlocutory appeal in regard to the SOX complaint.

INTERLOCUTORY APPEAL; FAILURE TO REQUEST ALJ CERTIFICATION

The proper procedure for obtaining an interlocutory appeal of an ALJ's orders is to request that the ALJ certify the issue in the same manner as a federal district court under 28 U.S.C.A. § 1292(b). Where the Complainant was aware of this procedure, having previously filed an interlocutory appeal in a prior case, but failed to follow that procedure, the ARB dismissed her interlocutory appeal. The ARB also found that even if the procedure had been followed, it would not exercise its discretion to consider the interlocutory appeal because the Complainant had failed to articulate sufficient grounds warranting departure from the Board's strong policy against piecemeal appeals.

INTERLOCUTORY APPEAL

The Complainant requested in her interlocutory appeal that the Board order OALJ to reassign her case to a different OALJ office, purportedly so she could save money on postage and delivery time. The Board denied the motion because the Complainant had not previously requested OALJ to transfer her case on these grounds, so there was no decision for the Board to review. The Board also observed that "absent proof of grounds for recusal, or in the rare case, change of venue, the OALJ’s case assignment policies are within its purview and are not subject to Board review." USDOL/OALJ Reporter at 8 (footnotes omitted).

Title: Decision and Order of Remand

SCOPE OF ARB AUTHORITY; DISTINCTION BETWEEN INVALIDATING A REGULATION AND INTERPRETING A REGULATION

The ARB's delegation of authority prohibits invalidating regulations or granting exemptions thereto. If a rule was promulgated by notice and comment, it can only be repealed by notice and comment and not through agency adjudication. However, interpretation of the meaning of a regulation -- how the regulatory text applies to the facts of a case -- is emphatically the responsibility of the ARB.

REQUEST FOR HEARING; SERVICE AND FILING REQUIREMENTS IN PART 24 ARE NOT JURISDICTIONAL

The ALJ had dismissed the complaint because the Complainant had not served a copy of his request for a hearing with the Respondent, finding that such failure deprived her of jurisdiction and that the Respondent had been inherently prejudiced by the failure. The ARB reversed. The Board found that the applicable regulations at 29 C.F.R. §§ 24.4(d)(2) and (d)(3) contain no language that makes a party's right to adjudication dependent on compliance with the requirements for service and filing found in section 24.4(d)(3). "[S]ervice requirements, generally, are imposed to afford notice that litigation has commenced, rather than to trigger a court's power to adjudicate a claim." USDOL/OALJ Reporter at 6. The Board also found no inherent prejudice because the regulations ensure that the opposing party learns of the hearing request in a short time because the ALJ must notify the parties of a hearing time and place within seven days of receipt of the hearing request. 29 C.F.R. § 24.6(a). The Board found that the Respondent had actual knowledge of the hearing request because the Respondent's in-house counsel communicated with the ALJ within 8 to 9 days of the hearing request. The Board found that the authority the ALJ had relied on had misconstrued the regulatory history of the hearing request regulation to evidence a shift from a "loose" to a "strict" regulatory scheme. The Board found nothing in the regulatory history to contradict its finding that the filing and service requirements are not jurisdictional. The Board observed that "[p]rocedural requirements that an agency uses to control administrative adjudications are presumptively subject to waiver, tolling, and equitable estoppel, i.e., not jurisdictional." USDOL/OALJ Reporter at 9 (citations omitted).

Title: Final Decision and Order

EVIDENCE; HEARSAY

The ARB affirmed the ALJ's finding that the Complainant was fired because of his disruptive behavior rather than his protected activity. The ARB found that the Complainant's argument on appeal that the ALJ improperly admitted hearsay evidence was meritless where (a) the Complainant did not show that, in fact, any hearsay evidence was admitted, (b) he failed to object to the admission of hearsay during the hearing, and (c) formal rules of evidence do not apply at hearings brought under AIR21. 29 C.F.R. § 1979.107(d).

Title: Final Decision and Order Approving Settlement Agreement

Title: Final Decision and Order Approving Settlement and Dismissing Complaint

Title: Final Decision and Order

DISMISSAL FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; FAILURE TO PLEAD ADEQUATE FACTS SHOWING EMPLOYER-EMPLOYEE RELATIONSHIP OR THAT THE AIRLINE TOOK, OR CAUSED TO BE TAKEN, ADVERSE ACTION

ONCE FACTS BEYOND THOSE ALLEGED IN THE COMPLAINT ARE REVIEWED, MOTION TO DISMISS IS TREATED AS A MOTION FOR SUMMARY DECISION

The ARB observed that since 29 C.F.R. Parts 18 and 24 do not contain a rule governing motions to dismiss for failure to state a claim upon which relief can be granted, it is appropriate to apply FRCP 12(b)(6). In the instant case, the ARB affirmed the dismissal of the complaint for failure to state of claim upon which relief could be granted against the Respondent airline where the Complainant, a supervisor for a company that had a cleaning services contract with the airline, failed to allege facts sufficient, if proved, to establish that the airline was her employer within the meaning of AIR21 and that it took or caused the cleaning services contractor to take adverse action against her.

The Board held that to state a cause of action under AIR21 "there must be an employer-employee relationship between an air carrier, contractor or subcontractor employer who violates the Act and the employee it subjects to discharge or discrimination, but that the violator need not be the employee’s immediate employer under the common law. * * * The crucial factor in finding an employer-employee relationship is whether the respondent acted in the capacity of an employer, that is, exercised control over, or interfered with, the terms, conditions, or privileges of the complainant’s employment. . . . Such control, which includes the ability to hire, transfer, promote, reprimand, or discharge the complainant, or to influence another employer to take such actions against a complainant, is essential for a whistleblower respondent to be considered an employer under the whistleblower statutes. ... If a complainant is unable to establish the requisite control and thus an employer-employee relationship, the entire claim must fail." USDOL/OALJ Reporter at 6-7 (citations omitted). In the instant case, the Complainant alleged facts showing that the Respondent airline controlled the quality of a contract employee's work performance, but did not claim that the airline had the ability to hire or fire her, or take any unfavorable personnel actions against her.

The ARB also ruled that to the extent that the ALJ and the ARB reviewed more than just the allegations of the complaint, the airline's motion to dismiss would be handled as a motion for summary decision under 29 C.F.R. § § 18.40, 18.41. The Complainant's mere conclusory allegation in her filings with the ALJ and the ARB that the airline had control over her work and had illegally terminated her were not sufficient under the summary decision standard to overcome the airline's denials that it played any part in the termination of the Complainant's employment. The ARB noted that the Complainant had opportunities to present facts demonstrating that the airline actually played a role in the adverse action taken by the cleaning service contractor, but failed to do so.

Title: Order Staying Final Decision and Order

STAY OF ORDER TO RE-PAY JTPA GRANT MONIES

The Complainant filed an unopposed motion with the ARB pursuant to FRAP 18(a)(1) seeking to stay the ARB's March 11, 2005 JTPA decision ordering the Complainant to pay almost nine million dollars to the USDOL in non-federal funds. The Complainant argued that it believed that it raised valid issues in its petition for federal court review, and that a stay would be necessary to maintain the status quo and provide for meaningful appellate review. The Complainant also argued that if a stay was not granted it would have to seek an appropriation from the Commonwealth's legislature. The ARB granted the motion, but noted that the stay would not affect any right of the USDOL to the accrual of interest under the Debt Collection Act.

Title: Order Denying Reconsideration

GROUNDS SUPPORTING RECONSIDERATION; FAILURE TO ESTABLISH THAT NEW EVIDENCE WAS MATERIAL:

The ARB is authorized to reconsider earlier decisions. In the absence of its own rule, the ARB has adopted principles federal courts employ in deciding requests for reconsideration. The ARB will reconsider under limited circumstances, including: "(i) material differences in fact or law from that presented to a court of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the court’s decision, (iii) a change in the law after the court’s decision, and (iv) failure to consider material facts presented to the court before its decision." USDOL/OALJ Reporter at 3 (citations omitted).

In the instant case the Complainant's new evidence was too lacking in credibility to establish that it was material to the central issue in the case -- whether when he expressed concerns or complaints to the Respondent's management officials about asbestos, he had a reasonable belief that the Respondent was violating the CAA by emitting asbestos into the air outside of its buildings. The ARB, thus, did not reach the question of whether the Complainant had failed to submit this evidence before the ALJ because of factors beyond his reasonable control or because of excusable neglect.