Kunkler v. Global Futures & Forex, Ltd., 2003-SOX-6 (ALJ Apr. 24, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue Date: 24 April 2003

Case No. 2003-SOX-00006

In the Matter of:

STEVEN KUNKLER,
    Complainant,

v.

GLOBAL FUTURES & FOREX, LTD.
    Respondent.

APPEARANCES:
Steven Kunkler
Pro Se

Michael J. Roth, Esq.
Susanne Watt, Esq.
On Behalf of Respondent

BEFORE:
    THOMAS F. PHALEN, JR.
    Administrative Law Judge

   This case arises out of a complaint of discrimination filed pursuant to the employee protection provisions of Public Law 107-204, Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A ("Sarbanes-Oxley") enacted on July 30, 2002. 18 U.S.C. § 1514A(b)(2)(B) provides that an action under § 806 of the Sarbanes-Oxley Act will be governed by 49 U.S.C. § 42121(b), which are the procedural regulations governing the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. The Sarbanes-Oxley Act affords protection from employment discrimination to employees of companies with a class of securities registered under section 12 of the Security Exchange Act of 1934 (15 U.S.C. § 781) and companies required to file reports under §15(d) of the Securities Exchange Act of 1934. Specifically, the law protects so-called "whistleblower" employees from retaliatory or discriminatory actions by the employer, because the employee provided information to their employer or a federal agency or Congress relating to alleged violations of 18 U.S.C. §§ 1341, 1343, 1344 or 1348, or any provision of Federal law relating to fraud against shareholders.

Procedural History

   Steven Kunkler ("Complainant") filed an appeal with the Office of the Administrative Law Judges on February 13, 2003, requesting a formal hearing, from a January 14, 2003 dismissal of his complaint by the Occupational Safety and Health Administration, U.S. Department of Labor. Following a telephone conference between the parties, Respondent was alerted by the undersigned of the option to file a motion for summary decision by the scheduling order dated March 26, 2003. On April 4, 2003, Employer filed a motion for summary decision and a brief in support of motion for summary decision. In accordance with the order dated March 26, 2003, Complainant filed a response to Respondent's motion for summary decision on April 21, 2003.

Issue

   Whether the Department of Labor has jurisdiction over a complaint of discriminatory conduct under § 806 of the Sarbanes-Oxley Act where the asserted protected activity and adverse employment activity occurred prior to the effective date of the Sarbanes-Oxley Act, and where the complaint was filed more than 90 days after the adverse employment action occurred.

   Complainant was terminated from his position of employment with Respondent on May 29, 2002. On January 8, 2003, Complainant filed a complaint with the Department of Labor asserting that his termination constituted discriminatory conduct in violation of § 806 of the Sarbanes-Oxley Act.

   An Administrative Law Judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. 29 C.F.R. § 18.40(d). The facts are simple and uncontested.

   A. Retroactive Application of the Sarbanes-Oxley Act

   Respondent argues that Complainant's complaint should be dismissed because the conduct alleged in the complaint occurred before the Act became effective.¹ (Respondent's Brief, p. 2, 3). Complainant was terminated on May 29, 2002, which he admits is "approximately 60 days before this act became law." (Complainant's Reply, p. 2). The Sarbanes-Oxley Act was enacted on July 30, 2002. 18 U.S.C. § 1514A. Complainant does not argue that the Sarbanes-Oxley Act applies retroactively. In fact, Complainant stated that he has not been able to obtain counsel because he was unable to find an attorney "who is willing to challenge the non-retroactive nature of this Act." (Complainant's Reply, p.2).

   Administrative Law Judge Thomas Burke thoroughly addressed the issue of whether the Sarbanes-Oxley Act applies retroactively in Gilmore v. Parametric Technology Corporation, 2003-SOX-1 (ALJ Feb. 6, 2003). In his recommended decision and order, Administrative Law Judge Burke found that the Sarbanes-Oxley Act did not apply retroactively based on his analysis of the Supreme Court's holding in Landgraf v. USI Film Products, 511 U.S. 244 (1994) (1991 Civil Rights Act did not apply to Title VII cases pending on appeal when the statute was enacted). In Landgraf, the Supreme Court cited to Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988) to identify the strong presumption against retroactive application of laws, and unless it is determined that retroactive application was the intent of Congress, courts should engage in the prospective application of laws. Landgraf, 511 U.S. at 263. Administrative Law Judge Burke added in a footnote that, although the legislative history of § 806 is silent with regard to the retroactive application, the general spirit of § 806 speaks to prospective application because the syntax chosen by Congress implies future conduct. Gilmore, 2003-SOX-1, p. 7, fn. 6. I agree with the analysis employed by Administrative Law Judge Burke, and conclude that such analysis is applicable to the present case.

¹I have carefully reviewed Complainant's response of April 21, 2003. I empathize with the quandry that he finds himself in, considering the nature of the response that he is required to file in the present matter and his inability to obtain competent counsel. However, neither the Sarbanes-Oxley Act nor the Administrative Procedure Act provide any authority for the undersigned to assign a pro bono attorney to assist Complainant or any other whistleblower. This request must be denied. However, there are private, non-governmental associations who do provide such help.