and Complainant file supplemental briefs in support of, or in opposition to, Respondent's motion for a protective order, and expressly directed Sprint to "identify, at a minimum, specific statements and or documents which it contends are covered by the attorney-client privilege." Ibid.

    Before responding to my January 27, 2006 order, Sprint filed on February 10, 2006 a Motion to Dismiss or, Alternatively, for Summary Decision ("Mot. to Dismiss"). According to Respondent:

[T]his case should not go forward because complainant Jack Jordan cannot establish a prima facie case of Sarbanes-Oxley protected activity without introducing privileged and confidential attorney-client information and work product. The ARB held two years ago that a case under another whistleblower statute could not go forward for that very reason and, although the ARB's decision was reversed by the Fifth Circuit, the Board's considered decision compels dismissal here or, at a minimum, certification to the ARB for interlocutory review regarding whether it will continue to adhere to the rule it articulated in that case. See Willy v. The Coastal Corp., ARB No. 98-060 (Feb. 27, 2004), rev'd sub nom., 423 F.3d 483 (5th Cir. 2005) . . . .

Mot. to Dismiss at 2-3. With respect to its assertion that I should follow the Board's decision in Willy rather than the decision by the Fifth Circuit overruling the ARB's decision, Sprint argues simply that I should do so based on the fact that "[a]dministrative agencies have long ascribed to the doctrine of ‘nonacquiescence,' under which an agency will decline to accede to a court of appeals precedent that conflicts with the agency's interpretation of the law it administers." Id. at 21 (italics added).

    Sprint's motion to dismiss and/or for summary judgment is predicated on Rule 12(b)(6) of the Federal Rules of Civil Procedure and on 29 C.F.R. § 18.40, respectively. Mot. to Dismiss at 12-13.

    Neither 29 C.F.R. Part 1980 (Sarbanes-Oxley whistleblower provisions) nor 29 C.F.R. Part 18 (procedures for administrative law judge hearings) address dismissal for failure to state a claim. Therefore, the standards set forth in the Federal Rules of Civil Procedure are applicable to Sprint's motion. 29 C.F.R. § 18.1(a) ("The Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation."). Under Rule 12(b)(6), a party may move to dismiss a claim based on the opposing party's "failure to state a claim upon which relief can be granted, ...." Fed. R. Civ. Pro. 12(b)(6). In considering whether dismissal is appropriate, the facts alleged in the complaint are taken as true, and all reasonable inferences are made in favor of the non-moving party. If the factual allegations, after having been accepted as true and construed most favorably on behalf of the non-moving party, present a cognizable claim if proved by a preponderance of the evidence, dismissal is not proper. Jones v. City of Lakeland,

Tennessee, 175 F.3d 410 (6th Cir. 1999). However, failure to allege a prima facie case is grounds for immediate dismissal. See Lovermi v. Bell South Mobility, Inc., 962 F. Supp. 136, 139 (S.D. Fla. 1997); Briggs v. Sterner, 529 F. Supp. 1155, 1164 (S.D. Iowa 1981).

    With respect to summary judgment, applicable regulations provide that 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 opposing party "may not rest upon the mere allegations or denials of such pleading .... [but] must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c).

    Section 18.40 is modeled on Rule 56 of the Federal Rules of Civil Procedure, pursuant to which "the judge does not weigh the evidence or determine the truth of the matter asserted, but only determines whether there is a genuine issue for trial" by viewing "all the evidence and factual inferences in the light most favorable to the non-moving party." Stauffer v. Wal-Mart Stores, Inc., USDOL/OALJ Reporter (HTML), ARB No. 99-107, ALJ No. 99-STA-21 at 6 (ARB Nov. 30, 1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1985)). The party moving for a summary decision has the initial burden of showing that there is no genuine issue of material fact. This burden may be discharged by simply stating that there is an absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Moreover, there is no requirement that the moving party support its motion with affidavits or other similar material negating the opponent's claim. See Celotex, 477 U.S. at 324; Fed. R. Civ. Pro. 56(b). However, if a motion is properly supported, then the nonmoving party must go beyond the pleadings to overcome the summary judgment motion. He may not rest upon mere allegations, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 248.

   A. Request to Dismiss Individually Named Respondents.

    As a preliminary matter, I note that Sprint has taken the position that Claudia Toussaint, Thomas Gerke, and Gary Forsee, the three individually named Respondents in this case, are not parties to this litigation. In its Motion to Dismiss, counsel for Respondent wrote:

In the proceedings before OSHA, complainant Jack Jordan named Sprint as the sole respondent. On review, however, he has attempted to name three Sprint executives as additional respondents – Gary Forsee, Tom Gerke, and Claudia Toussaint. Service has never been made on those individuals in the manner required by the rules of the Office of Administrative Law Judges. Further, the individuals may not be added as defendants at this stage because any claims against them personally were "not investigated and considered by OSHA" and are "untimely, as [they were] made more than ninety days after the alleged violation." Finally, there is no prejudice to the complainant in denying him the ability to add these three individuals to the case, since complete relief is available against the corporate defendant and indeed the individuals have only been added for vexatious purposes. . . .

    Contrary to Sprint's assertion, Mr. Jordan has expressly and consistently identified these individuals as persons who violated the whistleblower provisions of the Sarbanes-Oxley Act. For example, in his original complaint he wrote: "I have been subject to retaliation by my supervisor [Ms. Toussaint], by Sprint's General Counsel [Mr. Gerke], and by Sprint's CEO [Mr. Forsee] for having reported various types of inappropriate conduct at Sprint." Complaint of Jack R. T. Jordan at 1. Similarly, in his appeal to this office, he wrote: "The named persons should include the individual company representatives who were named in the complaint as having engaged in the retaliation." Dec. 28, 2005 Request for Hearing and Notice of Initial Objections of Jack R. T. Jordan at 1.

    Denial of Sprint's request to dismiss Mr. Jordan's complaint against these three persons is appropriate for several reasons.

whistleblower case filed under several statutes, including Sarbanes-Oxley, after the complainant had appealed OSHA's dismissal of her claim to the Office of Administrative Law Judges. Judge Chapman noted, in relevant part, that Pinnacle Airlines was not a publicly traded company subject to the whistleblower provisions of Sarbanes-Oxley and that the complainant was simply trying to add Northwest Airlines, a publicly traded corporation, as a respondent to cure this deficiency. Powers v. Pinnacle Airlines, Inc., supra., slip op. at 2. She further wrote:

The Complainant filed her complaint at the OSHA level against Pinnacle, not Northwest Airlines, Inc. The Complainant cannot get around the fact that her Employer, Pinnacle, is not a publicly traded company by unilaterally adding another corporate entity that is publicly traded, i.e., Northwest Airlines, Inc. as a respondent, after the investigation and determination by OSHA.

Id. at 4 (italics added). She also noted that the complainant had not "even alleged any facts that would justify piercing the corporate veil and ignoring the separate corporate entities." Ibid. Finally, she wrote:

[A]ny complaint against Northwest Airlines, Inc., is not only not properly before me, as it was not investigated and considered by OSHA, it is untimely, as it was made more than ninety days after the date of the alleged violation.

Ibid. The facts presented in Powers are thus substantially different from those presented here.

    Second, the Sarbanes-Oxley Act makes clear that the misconduct it protects against is not only that of a publicly traded company itself, but also that of "any officer, employee, contractor, subcontractor, or agent of such company," who retaliates or otherwise discriminates against the whistleblowing employee. See 18 U.S.C. § 1514A(a). Similarly, the regulations implementing the Act state, in relevant part:

Sarbanes-Oxley provides for employee protection from discrimination by companies and representatives of companies because the employee has engaged in protected activity pertaining to a violation or alleged violation of [various federal statues and regulations] relating to fraud against shareholders.

29 C.F.R. § 1980.100(a) (italics added). Consistent with the express provisions of the Act, the term "company representative means any officer, employee, contractor, subcontractor, or agent of a company." § 1980.101. Furthermore, the term "named person means the employer and/or the company or company representative named in the complaint who is alleged to have violated the Act." Ibid. (some italics added).

    Ms. Toussaint, Mr. Gerke, and Mr. Forsee are clearly officers of Sprint. Furthermore, Mr. Jordan clearly and expressly asserted in his complaint that:

I have been subjected to retaliation by my supervisor [Claudia Toussaint], Sprint's General Counsel [Thomas Gerke], and by Sprint's CEO [Gary Forsee] for having reported various types of inappropriate conduct at Sprint. The retaliatory actions

that occurred on or after January 13, 2005, are clearly included within the 90 day period before the filing of the current complaint. In addition, retaliatory incidents that occurred as early as November 2003 have been included in the current complaint because the retaliatory nature of these actions was concealed by my supervisor and by the General Counsel and the CEO, including by means of continued denial of information that I have requested. In addition, the events that occurred on or after January 13, 2005 were based on or were a continuation of the prior retaliatory events.

Complaint of Jack R. T. Jordan at 1. He further wrote:

I can support many of my statements with documentation such as emails and memoranda. However, some of the evidence supporting my statements is necessarily within the exclusive control of the Sprint executives who are implicated in my allegations

Id. at 4. Thus Mr. Jordan has properly identified Ms. Toussaint, Mr. Gerke, and Mr. Forsee as individual respondents in his Sarbanes-Oxley claim since the inception of this matter.

    Additionally, viewing the facts set forth in his complaint as true, as I am required at this juncture to do, Mr. Jordan has clearly alleged facts that warrant their inclusion as individual respondents in this case. Having properly named these individuals in his complaint, and having also alleged facts sufficient to establish a prima facie claim under the Act, Complainant has satisfied the requirements of both the regulations and Rule 12(b)(6).

    Third, the fact that the December 21, 2005 letter setting forth OSHA's findings on the complaint names only Sprint Corporation as a respondent in this matter is not dispositive of whether Ms. Toussaint, Mr. Gerke, and Mr. Forsee are proper parties at this stage of the proceeding. Applicable regulations expressly provide, in relevant part:

Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the named person (or named persons) of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint (redacted to protect the identify of any confidential informants)

fact without again relying on confidential and privileged information [and he thus cannot establish the existence of an element essential to his claim]." Id. at 12-13.

       (1) Failure to Adequately Assert Privilege.

    As noted in my prior order, the attorney-client privilege applies where: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or a subordinate thereof and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by the client (b) without the presence of strangers (c) for the purposes of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. United States v United Shoe Machinery Corp., 89 F.Supp. 357, 358 (D. Mass. 1950). As further noted in my prior order, blanket assertions that the privilege is applicable are unacceptable – the privilege must be asserted statement-by-statement and document-by-document so that a court considering its application may rule with specificity. Foster v. Hill, 188 F.3d 1259, 1264 (10th Cir. 1999); United States v. White, 970 F.2d 328, 334 (7th Cir. 1992); United States v. Rockwell International, 897 F.2d 1255 (3rd Cir. 1990); In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994 (1980).

    In this case, contrary to the terms of my January 27, 2006 order, Sprint has again failed to expressly identify, either in its Motion to Dismiss or its Supplemental Brief, any individual statement or document which it believes is protected by the attorney-client privilege. On the contrary, it has taken the position that each of the protected activities identified by Mr. Jordan in his original complaint can only be proven by disclosure of privileged information, and all statements and documents that Mr. Jordan can produce in support of his allegations are protected. I find, solely for purposes of deciding its motion to dismiss and/or for summary judgment, that Sprint has failed to properly assert, and thus cannot rely on, the attorney-client privilege inasmuch as it has not identified any specific communication to which the attorney-client privilege applies. This finding alone justifies the denial of Sprint's motion since the allegations set forth in Mr. Jordan's complaint, which are assumed to be true and viewed in Complainant's favor, are more than adequate to establish a prima facie claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6). Furthermore, viewing the facts set forth in the response to Sprint's motion in the light most favorable to Mr. Jordan, as I am required to do, there is clearly a dispute with respect to many facts material to this litigation, and summary judgment is thus inappropriate.

      (2) Inapplicability of ARB's Willy Decision.

    An even more compelling reason for denying Sprint's motion is its misplaced reliance on the decision of the ARB in Willy v. The Coastal Corp., ARB No. 98-060 (Feb. 27, 2004) despite the Fifth Circuit's reversal of that decision in Willy v. Admin. Rev. Bd., 423 F.3d 483 (5th Cir. 2005). According to Sprint

Jordan's claims of retaliation focus on legal advice he provided and disagreements he purportedly had with other in-house Sprint legal personnel about that advice. Under the clear holding of Willy v. The Coastal Corp., ARB No. 98-060 (ARB Feb. 27, 2004), because Jordan's ‘whistleblower' claim rests exclusively upon privileged attorney-client material and confidential client information obtained in the course of representing Sprint, his complaint must be dismissed.

should remain in effect and was primarily concerned with the right of the public – particularly, the press – to have access to court records, not with the attorney's use of the confidential information against his client/employer.... The Siedle court neither explicitly nor implicitly held that the attorney could never use confidential information against his employer. It merely reversed the district court's order that the seal should be lifted.

Id. at 497-98. The court further found the ARB's conclusion, that the self-defense exception to the privilege was limited to a breach of duty a lawyer owes a client, was "a strained interpretation of the language of the exception itself." Id. at 500. Citing the ABA Model Rules of Professional Conduct, the court wrote:

[T]he Model Rules specifically provide that "[a] lawyer may reveal . . . information [relating to representation of a client] to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.... " That a lawyer may assert a "claim" against his client means that the client breached a duty to the lawyer, not the opposite, as the ARB held. The American Bar Association endorses this view as well:

The Model Rules do not prevent an in-house lawyer from pursuing a suit for retaliatory discharge when a lawyer was discharged for complying with her ethical obligations. An in-house lawyer pursuing a wrongful discharge claim must comply with her duty of confidentiality to her former client and may reveal information to the extent necessary to establish her claim against her employer. The lawyer must take reasonable affirmative steps, however, to avoid unnecessary disclosure and limit the information revealed.

Ibid. citing MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(2) and AMERICAN BAR ASS'N FORMAL ETHICS OPINION 01-424 (Sep. 22, 2001) (italics in original). Based on the foregoing, the Fifth Circuit vacated the ARB's decision and remanded the case for a decision on the merits based on the ALJ's and Secretary's prior determinations. Id. at 501.

    Here, as was the case in Willy, an in-house attorney is alleging that he was discharged in retaliation for disclosing what he reasonably perceived to be violations of law governed by a federal whistleblower statute. Here, also as in Willy, the ability of Complainant to prove his case is dependent upon his access to, and use of, statements and documents generated during the course of his professional endeavors on behalf of his employer. And here, as the court found in Willy, I find that Complainant is entitled to use and rely on such communications in support of his claim against Sprint. The ABA's Formal Ethics Opinion cited by the Fifth Circuit further supports this conclusion.

    In its September 22, 2001 ethics opinion, the ABA expressly interpreted the term "claim" used in Rule 1.6(b)(2). It wrote, in relevant part:

The term "claim is not defined under the Model Rules. In the predecessor Code of Professional Responsibility, DR 4-101(C) allowed a lawyer to reveal "confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct." When the Model Rules were adopted in 1983, the Comments explained: "With regard to paragraph (b)(2), DR 4-101(c)(4) provided that a lawyer may reveal ‘confidences or secrets necessary to establish or collect his fee or to defend himself or his employers or associates against an accusation of wrongful conduct.' Paragraph (b)(2) enlarges the exception to include disclosure of information relating to claims by the lawyer other than for the lawyer's fee – for example, recovery of property from the client." Recently, the Montana Supreme Court concluded that Rule 1.6 of the Montana Rules of Professional Conduct, which is identical to Model Rule 1.6, contemplates revealing confidential client information by a former in-house lawyer pursuing a retaliatory discharge claim against her former employer. We conclude that a retaliatory discharge or similar claim by an in-house lawyer against her employer is a "claim" under Rule 1.6(b)(2).

ABA Formal Ethics Opinion 01-424 at 1 (footnote references omitted) (italics added). The ABA expressly noted in its opinion that "[r]etaliatory discharge actions provide relief to employees fired for reasons contradicting public policy" and that "[t]he Model Rules do not prevent an in-house lawyer from pursuing a suit for retaliatory discharge when a lawyer was discharged for complying with her ethical obligations." Id. at 2. The opinion thus makes clear that the Model Rules adopted in 1983 expanded the instances in which an attorney might rely on otherwise confidential information to include his or her affirmative use of such information in a claim of retaliatory discharge against a former employer.

    In the instant case, Mr. Jordan alleges that he was discharged as in-house counsel for Sprint because he "reported various types of inappropriate conduct at Sprint [relating to, inter alia, the filing of inaccurate financial information with the SEC]." Complaint of Jack R. T. Jordan at 1-2. Mr. Jordan was required to report any evidence of a what he believed to be a material violation of federal securities laws pursuant to the provisions of the Act, as well as regulations adopted by the Securities and Exchange Commission ("SEC") pursuant to that statute. See 17 C.F.R. Part 205 (prescribing minimum standards of professional conduct for attorneys appearing and practicing before the SEC adopted pursuant to Section 307 of Sarbanes-Oxley Act, 15 U.S.C. § 7245). His conduct thus falls squarely within the parameters of the ABA's Formal Ethics Opinion.

    Finally, it bears noting that Sprint relies, in part, on the First Circuit's decision in Siedle in support of its motion to dismiss and/or for summary judgment. Mot. to Dismiss at 23-24. As the Fifth Circuit noted, however, the Siedle court was only determining whether Defendant was entitled to a protective seal, not whether the case should be dismissed. See Siedle v. Putnam Investments, Inc., supra, 147 F.3d at 9. Furthermore, the applicable Massachusetts disciplinary rule the court relied upon in Siedle was a superseded version of DR 4-101, not Model Rule 1.6. Ibid. As the ABA's 2001 Formal Ethics Opinion makes clear, Model Rule 1.6 enlarges the

exception previously permitted by DR 4-101 to include disclosure of information relating to claims by the lawyer other than for the lawyer's fee.

    Based on the foregoing, I find that Mr. Jordan is not precluded from relying on statements or documents covered by the attorney-client privilege in pursuit of his Sarbanes-Oxley whistleblower complaint against Sprint. I further find, however, that Mr. Jordan is obligated to take care not to disclose such information beyond that reasonably necessary to establish his claim, and that, at least at this juncture, the parties' pleadings filed in this case must remain sealed.

    Sprint requests that, in the event its motion to dismiss and/or for summary judgment is denied, it should be allowed to "seek interlocutory review by the ARB and stay the proceedings in the interim." Mot. to Dismiss at 25. In support of its request, Sprint offers three reasons why an interlocutory appeal is appropriate: (1) "there plainly would be substantial grounds for disagreement with [my decision that the ARB's vacated decision in Willy does not support dismissal of Mr. Jordan's complaint] . . . ;" (2) an immediate appeal of my denial of the motion would materially advance the termination of the litigation; and (3) because of the "special sensitivity presented by disclosure of privileged information [which should be resolved before the case proceeds]." Id. at 26. I find, for the reasons set forth below, that interlocutory review by the ARB of my denial of Sprint's motion is appropriate.

decision that Mr. Jordan may rely on privileged information to support his claim, such decision would entirely dispose of the case.

    I further agree that resolution of the issue at this stage of the proceeding will promote, rather than impede, the litigation process. Clear guidance from the Board on the right of an attorney to proceed in a retaliatory discharge claim under Sarbanes-Oxley by using privileged information will, if the case goes forward, serve to facilitate any decision I may have to make prior to, or at, the formal hearing in this matter regarding the disclosure or use of such information. I thus find that this case falls within the collateral order exception to the provisions of 28 U.S.C. § 1291 and that interlocutory review is appropriate.

devices until such time, if at all, that an exception to the attorney-client privilege is shown to apply.

    At the present time, the pleadings and other filings of the parties in this matter have been placed under seal, and they will remain under seal until such time as the Board determines whether it will conduct an interlocutory review of my denial of Sprint's motion. In the event the Board determines that Respondent's reliance on Willy is misplaced, and that its motion was properly denied, the case will then be remanded to me for further consideration. At that time, Sprint will be required to comply with my prior order that it specifically identify statements, documents, and/or portions of documents which it asserts are protected from disclosure by the attorney-client privilege. Mr. Jordan will then be permitted to respond to Sprint's designations, and a ruling on the applicability of the privilege will follow. In the event the Board determines that an in-house counsel, such as Mr. Jordan, may not rely on protected communications to prove his Sarbanes-Oxley complaint, such a decision would, as noted above, dispose of the case, and the matter would thereafter be dismissed. In that event, my protective order sealing the present record would remain in effect, and Sprint's reliance on the privilege would be vindicated.

    Based on the foregoing, IT IS HEREBY ORDERED that Respondents' motion to dismiss and/or for summary judgment be, and hereby is, DENIED.