IV. CONCLUSION
Being fully advised in the premises, having read the pleadings, and for the
reasons set forth above, the Court hereby orders that Defendant's motion to dismiss
Plaintiff's SOX claim is GRANTED.
[Page 11]
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: May 14, 2007
I hereby certify that a copy of the foregoing document was served upon counsel of
record on May 14, 2007, by electronic and/or ordinary mail.
s/:Carol A. Hemeyer
Case Manager
[ENDNOTES]
1 All references to the "Complaint" refer to Plaintiff's Amended Complaint.
2 Plaintiff cannot seek leave to amend his Complaint to add DaimlerChrysler AG
as a party. Since Plaintiff has not yet filed a complaint against that entity with the
Department of Labor, this Court would not have subject matter jurisdiction. 18 U.S.C. §
1514A(b)(1).
3 All such ALJ opinions are available at www.oalj.dol.gov.
4 Plaintiff's citation to Gonzalez v. Colonial Bank, 2004-SOX-00039 (A.L.J. Aug.
20, 2004), is also misplaced, given that in that case, and three others cited by the ALJ in
his opinion, the complainant had sued both his non-public employer as well as its public
parent. Thus, Gonzalez fails to support Plaintiff's argument on this point for the same
reason as Morefield and Powers.
Furthermore, Plaintiff is incorrect when he states that "[t]he First Circuit cited
Morefield's analysis with approval in Carnero v. Boston Scientific Corp., 433 F.3d 1, 6
(1st Cir. 2006)." (Pl.'s Resp. at 6.) There, the First Circuit merely cited Morefield and
assumed for purposes of argument that SOX covered the employee at issue in
Carnero–it did not engage in any analysis of the ALJ's reasoning in Morefield.
5 The Administrative Review Board of the Department of Labor serves the same
function relative to an ALJ as the Court of Appeals does to a district judge in the federal
Article III court system.
6 Since SOX's whistleblower protection provisions do not apply to Defendant, it is
unnecessary to address its alternative argument regarding the nature and immateriality
of the wrongdoings that Plaintiff alleged.