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Can a Sarbanes-Oxley whistleblower appeal an Administrative Law Judge’s decision?

Sarbanes-Oxley whistleblower can appeal an administrative law judge’s decision to the Department of Labor Administrative Review Board (ARB).    The petition for review must be filed within 10 business days following the ALJ’s decision.

A petition must specifically identify the findings, conclusions, or orders to which exception is taken.  29 C.F.R. § 1980.110(a).  If no petition is filed, the ALJ’s decision becomes final within 10 days.  If a petition for review is filed, but the ARB does not issue an order accepting the case for review within 30 business days of the ALJ’s decision, the ALJ decision becomes final.  29 CFR § 1980.110(b).

The ARB has been delegated the authority to act for the Secretary and issue final decisions under SOX and acts with all the powers the Secretary would possess in rendering a decision.  29 CFR § 1980.110(a).  If the ARB accepts a case for review, the ALJ’s decision becomes “inoperative,” except that a preliminary order of reinstatement remains effective while review is conducted.  29 CFR § 1980.110(b).  Unlike the Federal Rules of Appellate Procedure, the procedural regulations governing SOX claims do not provide for the filing of a cross-petition.  Accordingly, a party that prevails before the ALJ but may later wish to appeal a portion of the decision must file a protective appeal within 10 days of the issuance of the ALJ’s decision.

 

The ARB applies substantial evidence review, which the ARB has defined as follows:

[I]n conducting our review, we must uphold an ALJ’s findings of fact to the extent they are supported by substantial evidence, even if there is also substantial evidence for the other party, and even if we justifiably disagree with the finding. Bobreski v. J. Givoo Consultants, ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 8 (ARB June 24, 2011).  Substantial evidence is evidence that a reasonable person might accept to support a conclusion. Id. “[T]he determination of whether substantial evidence supports [an] ALJ’s decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion.” Id. (internal quotations and citations omitted).  “A determination whether evidence is substantial on the record considered as a whole must ‘take into account whatever in the record fairly detracts from its weight.’”  Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).  “‘A single piece of evidence will not satisfy the substantiality test if the [adjudicator] ignores, or fails to resolve, a conflict created by countervailing evidence.’”  Id. (quoting Dorf v. Bowen, 794 F.2d 896, 901 (3d Cir. 1986)).

Clark v. Hamilton Hauling, LLC, ARB No. 13-023, ALJ No. 2011-STA-7, at 4-5 (ARB May 29, 2014).  The ARB utilizes a three-part analysis for substantial evidence review:

Given these principles, the substantial evidence test requires us to apply a three-part analysis for each finding of fact relevant to the issues on appeal:  (1) whether the ALJ and/or the parties have identified record evidence for each of the material fact findings; (2) whether the supporting evidence logically supports the fact finding; and, if so, (3) whether the record as a whole overwhelms the fact finding or contains factual disputes that expose the fact finding as still unresolved.  We must be convinced that each fact finding has evidence allowing for a logical inference that arguably fits with the remaining record.  We listed these three analytical steps in a self-evident progressive order, but we recognize that any one of these steps alone can expose the lack of substantial evidence and that no particular order is required.

Bobreski v. J. Givoo Consultants, Inc., ARB No. 13-001, ALJ No. 2008-ERA-3, at 13-14 (ARB Aug. 29, 2014).

If you are seeking representation in a Sarbanes-Oxley whistleblower case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.