See id.; see also 29 C.F.R. §§ 1980.105,
[Page 11707]
.109 (listing the remedies that can be awarded by the agency, all of which are compensatory). We conclude that, under Chao, the private nature of the remedy sought by the DOL demonstrates that the agency is in privity with Leon. See also EEOC v. U.S. Steel Corp., 921 F.2d 489, 496 (3d Cir. 1990) (determining that privity is satisfied when the agency "seeks individualized benefits under the ADEA for particular grievants").
[9] Because all of the requirements of res judicata are satisfied, the district court erred in denying the injunction based on lack of privity. We therefore reverse the order denying the injunction and remand for the district court to consider whether it should, in the exercise of its discretion, enjoin the DOL's proceedings under the All Writs Act. See Clark v. Busey, 959 F.2d 808, 813 (9th Cir. 1992) (discussing application of the All Writs Act to injunctions of administrative proceedings); DeNardo v. Murphy, 781 F.2d 1345, 1348 (9th Cir. 1986) (discussing application of the All Writs Act to injunctions of adjudicative proceedings).
CONCLUSION
The district court did not abuse its discretion when it imposed a terminating sanction dismissing with prejudice Leon's action and imposed a monetary sanction. Because, however, the court erred in concluding that the privity element of res judicata was not satisfied, we reverse and remand the case to the district court to determine whether an injunc-
[Page 11708]
tion should be issued pursuant to the All Writs Act. IDX shall recover of Leon its costs on appeal.
In No. 04-35938, the judgment is AFFIRMED.
In No. 05-35426, the order denying the injunction is REVERSED and REMANDED for further proceedings consistent with this opinion.
[ENDNOTES]
1 The district court's reference here to "April 30, 2004" appears to be a typographical error. The quoted sentence clearly is referring to the letter of April 30, 2003, to Leon's counsel, which is mentioned in the sentence immediately preceding the quoted sentence.
2 While the parties refer to the agency as the "DOL," the specific agency within the DOL responsible for the SOX investigation is the Occupational Safety and Health Administration ("OSHA").
3 Presumably because of the DOL's findings and order, summarized above, the parties do not pursue the investigative/adjudicative nature of the DOL proceeding on appeal. Because the parties have not raised it, we do not address it. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (stating that "issues which are not specifically and distinctly argued and raised in a party's opening brief are waived") (citation omitted).
4 Although this five-factor test is usually used to review the propriety of Rule 37 sanctions, this same test was applied in Anheuser-Busch to review sanctions granted under a court's "inherent power." See 69 F.3d at 348. Accordingly, we also apply the five-factor test.
5 The first two Anheuser-Busch factors, although not discussed by the district court, support the district court's decision to dismiss Leon's case. Leon's destruction of 2,200 files on his employer-issued computer "greatly impeded resolution of the case" by obscuring the factual predicate of the case and consuming months of sanction-related litigation. See Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987) (holding, in a brief but "independent" review of the five factors, that the first two factors supported the dismissal sanction because the district court was prevented from adhering to its trial schedule). Here, there was ample evidence of the time and resources spent in investigating and resolving the spoliation issues.
6 For example, one of the wiped files identified in the computer forensics report was named "SAGE_assesment_Key strategic issues.doc."
7 Because we conclude that the district court erred in denying IDX's motion for an injunction, we need not address the appeal from the court's denial of reconsideration.
8 The fact that Leon did not actually bring a SOX claim does not preclude the satisfaction of the identity of claims requirement, because he could have amended his complaint to add the SOX claim after 180 days had passed without any action by the DOL. See 18 U.S.C. § 1514A (b)(1)(B) ("[I]f the Secretary has not issued a final decision within 180 days of the filing of the complaint" a litigant can "bring[ ] an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action.").
9 Leon contends that the DOL seeks broader, non-private remedies because the DOL ordered that IDX, in addition to providing back wages, compensatory damages, and attorneys' fees, was also required to "post the enclosed Notice to Employees in a conspicuous place" for 60 days. The Notice to Employees states, inter alia, that the employer agrees not to discharge or discriminate against any employee who files a complaint under the whistle-blower provisions of SOX. SOX and its implementing regulations, however, do not appear to authorize this type of remedy. See 18 U.S.C. § 1514A; 29 C.F.R. § 1980.105. It is therefore, at the least, unclear what authority supports the issuance of such an order. In any event, we are not persuaded that the mere additional requirement of posting a notice alone is sufficient to alter the private nature of the remedy sought by the DOL. We note further that, although it filed a brief in the district court, the DOL has not participated in these proceedings on appeal.