Finally, the court acknowledges that the current situation represents a departure from the adjudication scheme envisioned by Congress. Sarbanes-Oxley was established to protect against the chilling effect of retaliation on whistleblowers by providing a remedy of reinstatement in a
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short amount of time. As a result, Congress set forth specific procedures to ensure that complaints would be quickly adjudicated by the Department of Labor, and that appeals within the administrative process would likewise progress quickly, taking a matter of days. Although this was the intent of Congress, the court recognizes that the Secretary has not complied with this mandate. Over eighteen months after the ALJ has issued his preliminary order of reinstatement, Welch has still not received a final administrative adjudication of his status. The court agrees that the delay in the administrative process has been inordinate.
However, even in this case, Welch has not been left without recourse. Title 18, section 1514A(b)(1) provides for a remedy to overcome delay of the Secretary. That section confers jurisdiction upon the district court to review a case de novo "if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant." 18 U.S.C. § 1514A(b)(1)(B).
Based on the plain language of the statute, the court concludes that it does not have jurisdiction to enforce the preliminary order of the ALJ. The court's construction is further supported by the general principle that federal courts can only review final agency determinations, by the comparison of AIR21 to provisions of the STAA, and by the need to promote the efficient administration of justice. Accordingly, the court will grant the defendants' motion to dismiss.
CONCLUSION
Under our constitutional scheme and Supreme Court precedent, this court is required to strictly interpret a statutory grant of subject matter jurisdiction rather than to overread a congressional enactment. It is not for the court to fashion a remedy, even in those circumstances
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in which principles of fairness might counsel intervention, when Congress has chosen not to provide for the form of redress sought by the plaintiff.
For the reasons stated, the defendants' motion to dismiss will be granted and the plaintiffs' petition to enforce the order of reinstatement will be denied. An order in conformity will be entered this day. The court's opinion should not be read as expressing any view as to the merits of plaintiff's claim of retaliation.
The Clerk is directed to send certified copies of this Memorandum Opinion and the accompanying Order to all counsel of record.
ENTER: This 5th day of October, 2006
/s/ Glen Conrad
United States District Judge
[ENDNOTES]
1 The motion to dismiss was filed by Cardinal Bankshares Corporation on August 2, 2006. Since that time, J. Howard Conduff, Jr.; William R. Gardner, Jr.; Kevin D. Mitchell; R. Leon Moore; A. Carole Pratt; Dorsey H. Thompson; and G. Harris Warner, Jr., have been joined as defendants, and counsel for these defendants presented argument on the motion to dismiss at the hearing.
2 At the time of the court's earlier consideration of this matter, there was also some uncertainty as to whether the order should be deemed "preliminary" or "final."
3 The American Association of Bank Directors has filed a memorandum of law in support of the motion to dismiss. While informative, the brief is primarily concerned with policy considerations and has little bearing on the court's decision based upon statutory construction.
4 Title 18, section 1514A(b)(1)(B) is not at issue in this case, as Welch has not applied to this court seeking de novo review.
5 The statute does not explicitly discuss orders issued by the ALJ. The precise procedures for appeal of orders by OSHA are set forth in 29 C.F.R. § 1980.106 et seq. The fact that the order issued by the ALJ is not discussed in the statute does not impact the court's conclusion, however, as the enforcement provisions in paragraphs (5) and (6) refer only to the final order issued by the ARB, and do not provide for enforcement in the district court of any preliminary orders preceding this final order.
6 In the interim between this court's decision in Welch v. Cardinal Bankshares Corp., 407 F.Supp.2d 773, 777 (W.D.Va.2006), and the filing of the instant case, the United States Court of Appeals for the Second Circuit decided Bechtel. Although Bechtel is distinguishable from this case in a number of ways and the Court did not issue a majority opinion, this court finds portions of that opinion instructive in interpreting AIR21, SOX, and the accompanying regulations. Bechtel involved an appeal of a preliminary order of reinstatement issued by OSHA. 448 F.3d at 470-71. Judge Jacobs concluded that § 1514A did not confer judicial enforcement power over preliminary orders of reinstatement. Id. at 475. Judge Leval concurred in the judgment, finding that due process requirements were not satisfied, but failing to answer the question of whether the court had the power to enforce a preliminary order of reinstatement. Id. at 476. Judge Straub, however, concluded that the court did have jurisdiction to enforce a preliminary order of reinstatement. Id. at 490.
7 Adding to the potential for inconsistent and confusing results is the intervening allegation by the defendant that the plaintiff would have been discharged in any event based upon other circumstances discovered after the discharge. This assertion could change the factual posture of the case.