Barron v. Duke Energy Corp., No. 3:03-CV-256 (W.D.N.C. June 10, 2003) (case below ALJ No. 2003-SOX-12)

F. BARRON STONE,        Plaintiff,     v. DUKE ENERGY CORPORATION, DUKE ENERGY BUSINESS SERVICES (DEBS),        Defendants.

O R D E R

   THIS MATTER comes before the Court upon Plaintiff's motion for stay, filed June 5, 2003.

   On October 30, 2002 Plaintiff Barron Stone, an employee of Duke Energy Corporation, filed a complaint with the Secretary of Labor. In his complaint to the Secretary, Plaintiff alleged that Duke Energy had discriminated and retaliated against him for being a "whistleblower," in violation of Section 806 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. The Secretary issued, after investigation, an initial opinion that Duke Energy did not violate 18 U.S.C. § 1514A. See Findings and Preliminary Order, at unnumbered page 4. Case No. 4-0520-03-002, May 3, 2003. As was his right, Plaintiff filed objections to the Findings and Preliminary Order. The matter was then scheduled for a June 18, 2003 hearing before an Administrative Law Judge. See ALJ Order, Case No. 2002-SOX-00012, April 22, 2003. On May 21, 2003 counsel for Plaintiff wrote to the Administrative Law Judge informing communicating that Plaintiff was filing this civil action pursuant to 18 U.S.C. § 1514A(b)(1)(B) and would therefore no longer continue with the administrative proceeding. Plaintiff has since filed a complaint invoking the

jurisdiction of this Court. Most recently, the Administrative Law Judge issued a ruling stating that he would retain jurisdiction over the case, and the pending Summary Judgment motion filed by Duke Energy, until such time as the motion is decided or until "a Judge in the District Court agrees with Claimant and asserts that he or she has jurisdiction." See ALJ Order, Case No. 2002-SOX-00012, May 29, 2003. Plaintiff now seeks an Order from this Court staying the Department of Labor proceeding. Title 18 United States Code section 1514A states, in pertinent part, that:

A person who alleges discharge or other discrimination by any person in violation of [the substantive portion of the civil enforcement provisions of Sarbanes Oxley] may seek relief ... by (A) filing a complaint with the Secretary of Labor; or (B) if the Secretary has not issued a final decision within 180 days of the filing of the complaint ... bringing an action at law or equity for de novo review in the appropriate district court of the United States.

More than 180 days have passed since Plaintiff filed his original complaint with the Department of Labor on October 30, 2002. No final decision has issued from the Secretary. There is no indication that the 180-day limit was reached because of Plaintiff's bad faith or delay.

   It is interesting to note that, while the statute provides for a cause of action allowing the Court to hear the case under its federal question jurisdiction, it does not specifically limit the remedies available to the Court once it exercises jurisdiction. For example, the Secretary of Labor has opined, in a recent interim final rule, that a Court might, upon a finding that significant resources have been expended by the Department of Labor to adjudicate the dispute, and that findings of fact have been made after ample process, choose to exercise its discretion by issuing a writ of mandamus compelling the Secretary to complete the administrative proceeding. 29 CFR § 1980.114. Note that the statute specifically authorizes equitable remedies. So both mandamus and the stay Plaintiff seeks would be available remedies.

   The instant case, the Court must conclude, is not an appropriate one for the remedy of

mandamus. The Secretary has not issued a final order, and does not appear ready to do so anytime in the immediate future. While the Secretary has certainly expended some resources on the matter. there is no indication that anything more than an initial investigation has occurred. The Court believes that this case should be resolved in the manner of a typical federal question case.

   THEREFORE, IT IS HEREBY ORDERED that Plaintiff's motion to stay proceedings before the Secretary of Labor is GRANTED.

   This, the 10th day of June, 2003.

         GRAHAM C. MULLEN
         CHIEF UNITED STATES DISTRICT JUDGE