Carnero v. Boston Scientific Corp., 2004-SOX-22 (ALJ Jan. 22, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 22 January 2004
Case No. 2004-SOX-22

................................................................
In the Matter of:

RUBEN CARNERO,
    Complainant,

    v.

BOSTON SCIENTIFIC CORPORATION,
    Respondent.
...............................................................

    Complainant filed a Notice of Filing of Action for De Novo Review and, Alternatively, Notice of Objections to Preliminary Findings and Request for Hearing on the Record, on January 16, 2004. Therein, Complainant states that on January 7, 2004, he commenced an action in the United States District Court for the District of Massachusetts because "the Secretary had not issued a final decision even though more than 180 days had elapsed since the filing of the complaint on July 2, 2003." Complainant's Notice, at 1. As this is an objection to the preliminary findings issued by the Department of Labor, Occupational Safety and Health Administration on December 19, 2003, this appeal has been docketed by this Office under the case number noted above.

    The whistleblower provision of the Sarbanes-Oxley Act of 2002, P.L. 107-204, § 806, 18 U.S.C. § 1514A, provides, in part:

if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.

18 U.S.C. § 1514A (b)(1)(B). In as much as Complainant has commenced an action in federal court, the Secretary no longer has jurisdiction over this matter. Jurisdiction now resides with the U.S. District Court for the District of Massachusetts. Accordingly,

    IT IS HEREBY ORDERED that this appeal shall be DISMISSED for lack of jurisdiction.

       Thomas M. Burke
       Associate Chief Administrative Law Judge

NOTICE OF APPEAL RIGHTS: This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1980.110, unless a petition for review is timely filed with the Administrative Review Board ("Board"), US Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210, and within 30 days of the filing of the petition, the ARB issues an order notifying the parties that the case has been accepted for review. The petition for review must specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily shall be deemed to have been waived by the parties. To be effective, a petition must be filed within ten business days of the date of the decision of the administrative law judge. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the Board. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1980.109(c) and 1980.110(a) and (b), as found OSHA, Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002; Interim Rule, 68 Fed. Reg. 31860 (May 29, 2003).