and that all proceedings at this level are STAYED pending the Administrative Review Board's ruling on the interlocutory appeal or refusal to accept the appeal for consideration.
SO ORDERED
STEPHEN L. PURCELL
Administrative Law Judge
Washington, D.C.
[ENDNOTES]
1 Sprint has contested Mr. Jordan's right to include the three individually named parties as respondents in this matter. As explained further below, I find that they have been properly named as parties in this case, and any reference to "Sprint" or "Respondent" in this order should be construed as including both the corporate and individual respondents.
2 In my order denying Respondents' request to proceed using pseudonyms, I noted that Complainant had not yet filed a response to the motion but that, since Respondent had requested expedited consideration and Complainant would not be prejudiced by my ruling denying Respondent's request, it was appropriate to rule on Sprint's motion with out awaiting Mr. Jordan's response. On February 1, 2006, I received Complainant's Response in Opposition to Sprint Nextel's Motion for a Protective Order to Proceed Under Seal.
3 While I find that continuing the temporary seal of all pleadings in this matter is appropriate, given my decision to certify review of this order to the ARB, Sprint must, once this case proceeds, expressly identify those individual statements and documents, or portions of documents, which it reasonably believes should be subject to a protective order. Its failure to do so will be viewed as a waiver of any claim to the protections afforded by the attorney-client privilege for any statements or documents, or portions of documents, not so identified by Sprint.
4 Discrimination complaints under Sarbanes-Oxley are expressly governed by the rules set forth in 29 C.F.R. Part 1980. There is no requirement under 29 C.F.R. Part 1980 that a respondent file an answer or otherwise respond either to an initial complaint filed with OSHA or to a request for hearing filed by a complainant with the Office of Administrative Law Judges after a complaint has been denied or dismissed. Inasmuch as Respondent was not required to respond to either of Complainant's filings, Respondent did not waive its right to contest Mr. Jordan's allegations or, as it has done here, to seek summary judgment.
5 The rule governing the filing of motions provides, in relevant part, that any application for an order or any other request shall be made by motion, and, within ten days after a motion is served, any party to the proceeding may file an answer. 29 C.F.R. § 18.6(a)-(b). The rule further provides that "[u]less the administrative law judge provides otherwise, no reply to an answer, response to a reply, or any further responsive document shall be filed." Ibid. Although I did not previously authorize the filing of Sprint's reply, it is relevant to the issues raised, and I will thus grant it's motion for leave to file. However, the parties are hereby put on notice that similar filings by either party will be viewed unfavorably, and no motion to file such a reply will be granted absent exceptional circumstances.
6 More recently, counsel for Sprint filed on March 10, 2006, a motion on behalf of the individual respondents in this case ("Non-Party Mot. to Dismiss") in which it again asserts, inter alia, that Ms. Toussaint, Mr. Gerke, and Mr. Forsee are not properly named as respondents in this proceeding. Nothing in its newly-filed motion, however, requires any change in my instant ruling denying Sprint's motion to dismiss and/or for summary judgment with respect to these three individuals. As explained below, the Act and its implementing regulations expressly permit employees to bring Sarbanes-Oxley complaints against a corporate employer and its officers. The complaint filed by Mr. Jordan in this matter expressly identified these three corporate officers as individuals who were directly involved in the incidents which gave rise to his departure from Sprint, and he has continued to identify them as individuals who were involved in these events in the request for hearing he filed with the Office of Administrative Law Judges after his complaint was denied by OSHA. Furthermore, Respondent's assertion that these three individuals "should not be parties for the additional reason that individual officers and employees should not be held individually liable under Sarbanes-Oxley Section 806, as consistent with other federal employment discrimination and retaliation statutes that do no provide individual liability" Non-Party Mot. to Dismiss at 2, is not only unsupported by any citation to legal authority, it is directly contrary to the express provisions of the Act and its implementing regulations. Finally, to the extent Mr. Jordan may not have served copies of any pleadings filed with this office based on his mistaken belief that Sprint's counsel represented both the corporation and these officers, I find, for the reasons stated below, that these individuals are now, and clearly have been, cognizant of the existence and substance of this litigation since its inception, as evidenced by, inter alia, Sprint's Non-Party Motion to Dismiss.
7 Respondent incorrectly asserts that Judge Chapman's March 5, 2003 order in Powers was affirmed by a September 28, 2004 decision of the Administrative Review Board. However, Judge Chapman's March 5, 2003 order was an Order Granting Respondent's Request for Partial Dismissal and Denying Complainant's Request for Default Judgment. The ARB decision which Sprint cites as affirming the March 5 order was a Final Decision and Order of Dismissal issued by the ARB following Judge Chapman's issuance of a December 10, 2003 Recommended Decision and Order Granting Respondent, Pinnacle Airlines, Inc.'s Request for Summary Judgment. Dismissal by the Board was predicated on "Powers's continued delay and contumacious refusal to conform her brief to the Board's briefing requirements, along with her failure in her April 13, 2004 filing to provide any legitimate legal basis for her appeal . . . ," Powers v. Pinnacle Airlines, Inc., ARB Case No. 04-035 (Sept. 28, 2004) slip op. at 4, and it was not an affirmance of Judge Chapman's March 5, 2003 order.
8 Indeed, Mr. Jordan expressly identified Thomas Gerke, Sprint's General Counsel, as the person whom he believed to be the appropriate contact at Sprint with respect to his Sarbanes-Oxley complaint. Complaint of Jack R. T. Jordan at 1.
9 As the Board noted there, "the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections." Id., slip op. at 6 quoting Henderson v. United States, 517 U.S. 654, 671 (1996).
10 According to Sprint's motion, this document, and five Exhibits A-E attached thereto, have been redacted to protect privileged and confidential information. Mot. to Dismiss at 4, n. 2.
11 Respondent notes that the laptop computer was issued to Jordan by Sprint for official purposes only and not for personal use. In his response to Sprint's motion to dismiss, Mr. Jordan asserts that these documents are confidential and constitute attorney-work product. Inasmuch as users of Sprint's computers are expressly informed, via a written statement that appears on the computer's screen when accessed that "[u]se of Sprint Computing and communications systems, with or without proper authority, is subject to monitoring and recording," Ex. 5 to Mot. to Dismiss, I find that Mr. Jordan had no reasonable expectation of privacy with respect to any documents found on his work-provided laptop computer.
12 While courts will generally give great deference to an agency's interpretation of a statute it administers, the issue presented in this case, i.e., whether a complainant in a retaliatory discharge action may rely on statements or documents covered by the attorney-client privilege, is not such an issue, nor is it unique to any statute administered by the Department of Labor. Thus, Sprint's reliance on, for example, the Board's decision in In the Matter of Suburban Air Freight, Inc., ARB No. 98-160 (ARB Aug. 21, 2000), Mot. to Dismiss at 21, holding that airline pilots are not "learned professionals" under the Service Contract Act is inapposite inasmuch as the Board there was clearly interpreting a statute administered by the Department of Labor. The applicability of the attorney-client privilege is an issue which arises in many varied contexts, both criminal and civil, and it is highly unlikely that a reviewing court would grant substantial, if any, deference to an agency's decision on that issue.
13 The procedural history of the case is considerably more lengthy and convoluted. After the Wage and Hour Division of the Department of labor (OSHA's predecessor in responsibility for investigating whistleblower complaints) found in Willy's favor, the presiding ALJ recommended dismissal of the complaint based in part on then-existing precedent which required that a whistleblower contact a governmental entity with respect to purported environmental violations. Prior to this decision, the ALJ had granted Willy's motion to compel production by Coastal of the Belcher report, but the report had not been produced before the ALJ's recommended decision was appealed. The Secretary (then the reviewing authority for ALJ decisions in whistleblower cases) rejected the ALJ's recommended dismissal of Willy's complaint, and it remanded the case for further proceedings. Coastal continued to refuse to produce the Belcher report, and the ALJ subsequently admitted into evidence two drafts of the report prepared by Willy when he was employed by Coastal. The ALJ thereafter found in favor of Willy and the decision on liability was reviewed and affirmed by the Secretary. The presiding ALJ in the case thereafter issued a recommended decision and order awarding damages, and that decision was appealed to the ARB, which by then had replaced the Secretary as the reviewing authority in whistleblower cases.
14 It further noted that the procedure for obtaining interlocutory review of an ALJ's order as being identical to that for appealing interlocutory orders from federal district courts. The statute providing for appellate review of district court orders states, in pertinent part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.
28 U.S.C. § 1292(b).
15 449 U.S. 368, 374 (1981) quoting Cobbledick v. United States, 309 U.S. 323, 325 (1950).
16 Although it is conceivable that a corporation's attorney may learn of suspected wrongdoing by the corporation's officers or directors outside the scope of his professional duties as a lawyer, such instances will surely be rare, if they in fact ever occur.
17 See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
18 See, e.g., In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 451 (6th Cir. 1983).
19 The purpose of the Act is "to protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws, and for other purposes." Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat 745.
20 The rules applicable to Sarbanes-Oxley cases expressly provide that "[a]ny party desiring to seek review . . . of a decision of the administrative law judge . . . must file [within 10 business days of the date of the decision of the administrative law judge] a written petition for review with the [ARB] " 29 C.F.R. § 1980.110(a). It is thus incumbent upon Sprint to initiate interlocutory review by the Board by filing such petition within the prescribed period.