Conclusion
Ubinger has conceded that he did not file a timely SOX complaint and he has failed to raise a genuine issue of material fact regarding the question whether he is entitled to tolling of the limitations period. Accordingly, we DISMISS Ubinger's SOX complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514(A)(West 2007). SOX's section 806 prohibits certain covered employers from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against employees who provide information to a covered employer or a Federal agency or Congress regarding conduct that the employee reasonably believes constitutes a violation of 18 U.S.C.A. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank fraud), or 1348 (securities fraud), or any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. Employees are also protected against discrimination when they have filed, testified in, participated in, or otherwise assisted in a proceeding filed or about to be filed relating to a violation of the aforesaid fraud statutes, SEC rules, or federal law.
2 29 C.F.R. Part 1980 (2007).
3 R. D. & O. at 3.
4 Complainant/Statement of Fact from James G. Ubinger to OSHA (Jan, 23, 2007).
5 Id.
6 Id.
7 Id.
8 Id.
9 Response to [ALJ's] Sua Sponte [Show Cause Order] at [2].
10 Id.
11 Secretary's Findings (Jan. 7, 2007).
12 Id.
13 See 29 C.F.R. § 1980.106(a).
14 R. D. & O. at 3.
15 See 29 C.F.R. § 1980.110(a).
16 Secretary's Order No. 1-2002, (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1980.110(a).
17 The ALJ decided this case on the basis of a sua sponte Order to Show Cause. There was no hearing. Because the parties relied on evidence outside of the pleadings in response to the ALJ's Order, we review it as we would a motion for summary decision under 29 C.F.R. § 18.40 and review the ALJ's R. D. & O. de novo. Accord Salsbury v. Edward Hines, Jr. Veterans Hosp., ARB No. 05-014, ALJ No. 2004-ERA-007, slip op. at 4 (ARB July 31, 2007).
18 Fed. R. Civ. P. 56.
19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
20 Bobreski v. United States EPA, 284 F. Supp. 2d 67, 72-73 (D.D.C. 2003).
21 Lee v. Schneider Nat'l, Inc., ARB No. 02-102, ALJ No. 2002-STA-025, slip op. at 2 (ARB Aug. 28, 2003); Bushway v. Yellow Freight, Inc., ARB No. 01-018, ALJ No. 2000-STA-052, slip op. at 2 (Dec. 13, 2002).
22 Bobreski, 284 F. Supp. 2d at 73 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
23 Bobreski, 284 F. Supp. 2d at 73.
24 29 C.F.R. § 18.40(c). See Webb v. Carolina Power & Light Co., 1993-ERA-042, slip op. at 4-6 (Sec'y July 17, 1995).
25 18 U.S.C.A. § 1514A(b)(2)(D).
26 Accord Hillis v. Knochel Bros., ARB Nos. 03-136, 04-081, 04-148; ALJ No. 2002-STA-050, slip op. at 3 (ARB Oct. 19, 2004); Overall v. Tennessee Valley Auth., ARB Nos. 98-111, 98-128; ALJ No. 1997-ERA-053, slip op. at 40-43 (ARB Apr. 30. 2001).
27 657 F.2d 16, 19-21 (3d Cir. 1981).
28 15 U.S.C.A. § 2622 (West 2004).
29 Allentown, 657 F.2d at 20 (internal quotations omitted).
30 Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995), quoting Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
31 Baldwin County Welcome Ctr. v. Brown, 446 U.S. 147, 152 (1984).
32 Accord Wilson, 65 F.3d at 404 (complaining party in Title VII case bears burden of establishing entitlement to equitable tolling).
33 Trachman v. Orkin Exterminating Co. Inc., ARB No. 01-067, ALJ No. 2000-TSC-003, slip op. at 6 (ARB Apr. 25, 2003); see also Martin v. Akzo Nobel Chems., Inc., ARB No. 02-031, ALJ No. 2001-CAA-016, slip op. at 2 n.2 (ARB July 31, 2003). But while we have acknowledged that adjudicators must accord a party appearing pro se fair and equal treatment, a pro se litigant "cannot generally be permitted to shift the burden of litigating his case to the courts, nor avoid the risks of failure that attend his decision to forego expert assistance." Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 1997-ERA-052, slip op. at 10 n.7 (ARB Feb. 29, 2000), quoting Dozier v. Ford Motor Co., 707 F.2d 1189, 1194 (D.C. Cir. 1983).
34 Ubinger letter to Chief Administrative Law Judge (Mar. 14, 2007).
35 Wakefield v. Railroad Retirement Bd., 131 F.3d 967, 970 (11th Cir. 1997); Moldauer v. Canandaigua Wine Co., ARB No. 04-022, ALJ No. 2003-SOX-026, slip op. at 6-7 (ARB Dec. 30, 2005), Hemingway v. Northeast Utilities, ARB No. 00-074, ALJ Nos. 1999-ERA-014, 015, slip op. at 4-5 (ARB Aug. 31, 2000). See also Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000)(court refused to toll a limitations period in case in which incarcerated pro se litigant claimed that he was unaware of the newly-enacted statute of limitations period and because of the inadequacies of the prison's library the law's text was inaccessible to him during the one-year period he had to file his claim).
36 Because we dismiss Ubinger's complaint on the ground that he failed to raise a genuine issue of material fact regarding the question whether he is entitled to tolling of the limitations period, we need not and do not reach CAE's arguments concerning SOX coverage and its extraterritorial application.