Kossen v. Asia Pacific Airlines, ARB No. 2021-0012, ALJ No. 2019-AIR-00011 (ARB Oct. 28, 2021) (per curiam) (Order Denying Reconsideration and Motions to Reopen the Record)
MOTION TO REOPEN/RECONSIDER; COMPLAINANT'S PROFFER OF ADDITIONAL EXHIBITS FAILED TO PERSUADE THE ARB TO REOPEN THE RECORD, OR TO RECONSIDER ITS DECISION
In Kossen v. Asia Pacific Airlines, ARB No. 2021-0012, ALJ No. 2019-AIR-00011 (ARB Oct. 28, 2021) (per curiam), the ARB denied Complainant's motions to reopen the record. The ARB noted that it "may order an ALJ to reopen the record based upon 'newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.'” Slip op. at 2 (footnote omitted). The ARB also noted that it will grant such relief only in exceptional circumstances.
The first motion presented five exhibits that Complainant asserted added substantial weight to his retaliation claim. Complainant asserted, without supporting evidence, that he had been unable to obtain this evidence earlier because the FAA had been hiding documents and because the FAA and Defendant were working together to prevent Complainant from piloting commercial flights. The ARB found that these newly proffered exhibits did not persuade the ARB that they would likely produce a different result at a new hearing.
The second motion presented two exhibits that appeared to be responses to FOIA requests to the FAA, and appeared to be portions of FAA investigative reports related to Complainant's whistleblowing activity. The ARB observed that Complainant appeared to admit that the FOIA requests had been made a year-and-a-half after the ALJ hearing, and determined that without an explanation as to why the requests could not have been made before the hearing or how Complainant could not have discovered such evidence by due diligence prior to the hearing, the ARB could not grant the relief sought. The ARB further stated that these new exhibits did not persuade the ARB that they would likely produce a different result at a new hearing, such evidence merely being cumulative of established facts in the record.
In a footnote, the ARB noted that the motions to reopen were essentially included within motions for reconsideration, which would be denied because the arguments made by Complainant for admitting new evidence did not fall within the limited circumstances in which the ARB will reconsider its decisions.
Ellis v. Goodheart Specialty Meats, ARB No. 2021-0005, ALJ No. 2019-FDA-00006 (ARB Oct. 26, 2021) (per curiam) (Order Denying Complainant's Second Motion for Reconsideration)
MOTION FOR RECONSIDERATION; ARB DENIED SECOND MOTION FOR RECONSIDERATION WHICH REITERATED PRIOR ARGUMENTS; ARB STATED THAT IT WOULD NOT ENTERTAIN ANY ADDITIONAL MOTIONS FOR RECONSIDERATION
In Ellis v. Goodheart Specialty Meats, ARB No. 2021-0005, ALJ No. 2019-FDA-00006 (ARB Oct. 26, 2021) (per curiam), the ARB found that Complainant's second motion for reconsideration only presented arguments that had already been considered, and denied the motion. The ARB stated that it would not consider any additional motions for reconsideration, and that Complainant had 60 days to file a petition for review in the U.S. Court of Appeals.
Govindarajan v. N2 Services, Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001 (ARB Oct. 26, 2021) (per curiam) (Order Denying Fourth Motion for Reconsideration)
MOTION FOR RECONSIDERATION; ARB DENIED FOURTH MOTION FOR RECONSIDERATION WHICH REITERATED PRIOR ARGUMENTS; ARB STATED THAT IT WOULD NOT ENTERTAIN ANY ADDITIONAL MOTIONS FOR RECONSIDERATION
In Govindarajan v. N2 Services, Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001 (ARB Oct. 26, 2021) (per curiam), the ARB denied Complainant's fourth motion for reconsideration which only raised arguments previously considered and rejected by the ARB in ruling on the first motion for reconsideration. The ARB stated that it would not consider any additional motions for reconsideration.
Gloss v. Tata Chemicals North America, ARB No. 2021-0039, ALJ No. 2020-CAA-00008 (ARB Oct. 22, 2021) (per curiam) (Order of Remand)
SUMMARY DECISION ON PROTECTED ACTIVITY; ALJ GRANTED SUMMARY DECISION FINDING THAT REPORTING TO THIRD-PARTY ACCOUNTANTS POTENTIAL LIABILTY FOR PENALTIES FOR ENVIRONMENTAL VIOLATIONS WAS NOT PROTECTED ACTIVITY UNDER THE CAA BECAUSE THIS REPORTING WAS SOLELY FOR PURPOSES OF COMPLIANCE WITH ACCOUNTING STANDARDS; THE ARB, HOWEVER, REMANDED BECAUSE THE ALJ FAILED TO CONSIDER COMPLAINANT'S CONTENTION THAT HE HAD COMPELLED RESPONDENT TO SELF-REPORT THE VIOLATIONS TO THE STATE ENVIRONMENTAL AGENCIES, AND HAD DISCUSSED THE MATTER WITH THE CEO AND ENVIRONMENTAL STAFF
In Gloss v. Tata Chemicals North America, ARB No. 2021-0039, ALJ No. 2020-CAA-00008 (ARB Oct. 22, 2021) (per curiam), Complainant filed a Clean Air Act (CAA) whistleblower complaint, later amended to include SOX and Dodd-Frank counts. As to the CAA complaint, the ALJ granted Respondent's motion for summary decision on the ground that Complainant had not engaged in CAA protected activity when he reported to Respondent's third-party accountants potential penalties resulting from fraudulent environmental reporting that Respondent had self-reported to the state department of environmental quality. The ALJ found that Complainant's reporting to the accountants was in accordance with professional accounting standards, whereas the CAA prohibits retaliation against an employee for engaging in a proceeding related to public health or the environment.
On appeal, the ARB found that the ALJ had failed to adequately consider Complainant's contentions that he also engaged in protected activity when he followed up, after the report of the issue to the accountants, with Respondent's CEO to ensure the previous fraudulent environmental reporting was cured. Specifically, Complainant had contended in response to the motion for summary decision that he engaged in protected activity by compelling Respondent to self-file non-compliance reports with the state agency, and by having discussions with the CEO and the environmental compliance staff. The ARB thus remanded for the ALJ to address all of Complainant's alleged protected activities.
SUMMARY DECISION ON SOX COVERAGE; THE ALJ GRANTED SUMMARY DECISION BECAUSE RESPONDENT AND ITS PARENT COMPANIES WERE NOT PUBLIC COMPANIES, AND COMPLAINANT'S ARGUMENT THAT A SUBSIDIARY'S PARTNERSHIP WITH PUBLIC COMPANIES WAS TOO TENUOUS TO ESTABLISH SOX COVERAGE; THE ARB REMANDED BECAUSE COMPLAINANT’S ARGUMENT WENT BEYOND MERELY DOING BUSINESS WITH THE PUBLIC COMPANIES, BUT ASSERTED THAT THE BUSINESS RELATIONSHIP RESULTED IN CONSOLIDATED FINANCIAL STATEMENTS – RESULTING IN A GENIUNE ISSUE OF MATERIAL FACT SUFFICIENT TO SURVIVE SUMMARY DECISION
In Gloss v. Tata Chemicals North America, ARB No. 2021-0039, ALJ No. 2020-CAA-00008 (ARB Oct. 22, 2021) (per curiam), Complainant filed a CAA whistleblower complaint, later amended to include SOX and Dodd-Frank counts. As to the SOX complainant, the ALJ granted Respondent's motion for summary decision on the ground that Respondent was not a covered employer under the SOX whistleblower statute, Respondent having demonstrated that neither it nor its parent companies were registered under Section 12 or required to file reports under section 15(d). Complainant argued that SOX applied because one of Respondent's subsidiaries was in joint venture partnerships with two public companies, with financial results consolidated into their financial statements. The ALJ found that this contention was too tenuous to apply the SOX.
On appeal, Complainant argued that the ALJ had not fully considered the issue. The ARB, agreed, stating:
- The ALJ viewed Respondent’s relationship with the public companies as merely conducting business, citing SOX case law dismissing coverage based on commercial transactions. The decision’s analysis section did not discuss whether Respondent was a “subsidiary or affiliate whose financial information is included in the consolidated financial statements of [any of the public] companies.” In his response to Respondent’s motion for summary decision, Complainant in effect argued that the SOX whistleblower provision covered Respondent as a subsidiary or an affiliate whose financial information is consolidated into the financial statements of public companies. Viewed in a light most favorable to him as the non-moving party, this created a genuine issue of material fact, because Respondent concedes the shared ownership of 25% of TCSAP by a public company. The question to be answered is whether this ownership or any other relationship between TCNA or TCSAP and public companies results in consolidated financial statements under the applicable accounting rules of the public company. We therefore must reverse the ALJ’s decision granting summary decision on the SOX claim, and remand the claim for further proceedings. On remand, the ALJ may allow for further discovery and briefings on the matter as she sees fit.
Slip op. at 6-7 (footnotes omitted). Respondent argued that Complainant had first raised this argument on appeal. The ARB conceded that Complainant's response to the summary decision was terse on this point, but stated that, construing the filing liberally based on Complainant's pro se status, he had had adequately raised the issue.
Carlisle v JB Hunt Transportation, ARB No. 2021-0065, ALJ No. 2021-STA-00040 (ARB Oct. 20, 2021) (per curiam) (Order of Dismissal)
The ARB dismissed Complainant's appeal when she failed to identify in writing why she was objecting the ALJ's dismissal of her STAA complaint.
Govindarajan v. N2 Services, Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001 (ARB Oct. 8, 2021) (per curiam) (Order Denying Motions for Reconsideration)
The ARB denied Complainant's additional motions for reconsideration where they only raised arguments already considered and rejected by the ARB when ruling on Complainant's first motion for reconsideration.
Administrator, Wage and Hour Div., USDOL v. Frank's Nursery LLC, ARB Nos. 2020-0015, -0016, ALJ No. 2018-TAE-00028 (ARB Oct. 4, 2021) (per curiam) (Order Denying Reconsideration)
MOTION FOR RECONSIDERATION DENIED WHERE THE ONLY MATTER RAISED THAT HAD NOT BEEN PREVIOUSLY CONSIDERED BY THE ARB WAS THAT FORM ETA-790 NOTED THAT SOCIAL SECURITY TAXES HAD TO BE PAID; ONE VIOLATION CHARGED HAD BEEN IMPERMISSIBLE DEDUCTIONS FOR SOCIAL SECURITY AND MEDICARE TAXES; THE ARB FOUND THAT THE ETA-790 HAD BEEN IN THE RECORD AND THAT RESPONDENT HAD AMPLE OPPORTUNITY TO HAVE RAISED THIS POINT
In Administrator, Wage and Hour Div., USDOL v. Frank's Nursery LLC, ARB Nos. 2020-0015, -0016, ALJ No. 2018-TAE-00028 (ARB Oct. 4, 2021) (per curiam), the ARB had found in its Decision and Order that Respondent committed all the violations of H-2A program requirements that the WHD Administrator had charged, one of which was making impermissible deductions for Social Security and Medicare taxes. The ARB denied Respondent's motion for reconsideration. Most of Respondent's arguments had already been considered and rejected by the ARB. The one proffer Respondent had not previously made was to point out that the Form ETA-790 included Social Security as a potential deduction an employer might make from workers' wages. The ARB interpreted this as a contention that the deductions Respondent made for Social Security and Medicare taxes had been permissible. The ARB, however, found that this was not a basis for reconsideration, as the Form ETA-790 had been available as part of the record before the ALJ and on appeal, and Respondent thus had many prior opportunities to make arguments about the significance of the types of deductions listed on the form.