How can a SOX whistleblower appeal an ALJ’s decision?
A SOX whistleblower can file a petition for review with the ARB within 10 days after the ALJ renders a decision. The petition must identify every part of the ALJ’s decision that the whistleblower seeks to challenge.[i] The ARB will then decide whether to review the case. An ALJ’s decision becomes final after 10 days if no petition for review has been filed, or after 30 business days if the ARB has not issued an order accepting a timely filed petition for review.[ii] If the ARB accepts the case for review, the ALJ’s decision is inoperative, but a reinstatement order becomes effective while the appeal is pending.[iii]
The ARB reviews conclusions of law de novo and reviews the ALJ’s findings of facts under a substantial evidence standard.[iv] A finding is supported by “substantial evidence” if evidence in the record logically supports the finding, and the record as a whole does not countervail that evidence.[v]
Note that the failure to appeal an ALJ decision can have a preclusive effect on other claims. For example, in Tice v. Bristol-Myers Squibb, the Third Circuit affirmed summary judgment for the employer, holding that a DOL ALJ’s determination that the employer had a legitimate reason for terminating SOX plaintiff Carol Tice’s employment should be accorded preclusive effect in related employment actions.[vi] Ms. Tice had initially filed a SOX retaliation claim with OSHA, alleging that her employment was terminated in violation of SOX because she opposed management’s direction to employees to falsify sales call reports. A SOX ALJ dismissed Ms. Tice’s claim, concluding that the employer demonstrated that it would have terminated Ms. Tice absent her disclosure because Ms. Tice herself falsified sales call reports. Ms. Tice did not appeal the ALJ’s order and subsequently brought a separate action against her former employer in federal court alleging age discrimination and gender discrimination. The summary judgment dismissal of Ms. Tice’s discrimination claims likely could have been avoided if Ms. Tice had appealed the DOL ALJ’s order.
[i] 29 C.F.R. § 1980.110(a).
[ii] 29 CFR § 1980.110(b).
[iii] 29 CFR § 1980.110(b).
[iv] Clark v. Hamilton Hauling, LLC, ARB No. 13-023, ALJ No. 2011-STA-7, at 4-5 (ARB May 29, 2014).
[v] Bobreski v. J. Givoo Consultants, Inc., ARB No. 13-001, ALJ No. 2008-ERA-3, at 13-14 (ARB Aug. 29, 2014).
[vi] Tice, 325 F. App’x 114 (3d Cir. 2009).
SOX Whistleblower Protection Law
To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.
Client Reviews from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters
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