Shi v. Moog, Inc. (agency decision, February 27, 2020)

Plain-English summary

Charles Shi alleged that a Chinese subsidiary of Moog terminated him for making aviation-safety complaints. The Board had affirmed dismissal because Congress did not make AIR21's employee-protection provision extraterritorial and Shi's complaint was not a domestic application of the law. Shi sought reconsideration based on his asserted right to a hearing, alleged deceit and aircraft-safety concerns, the effects of the conduct in the United States, and the Board's treatment of his submissions. The Board held that none of those arguments showed new material facts, a change in law, an overlooked material fact, or another limited ground for reconsideration. It denied reconsideration and also denied Shi's motions to compel disclosure and strike Moog's brief.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. Part 1979
• Outcome: Reconsideration was denied, along with motions to compel disclosure and strike the respondent's brief.
• Key point: Reconsideration requires a qualifying factual or legal change or an overlooked material fact, not renewed disagreement with the Board's extraterritoriality ruling.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  CHARLES SHI,                                        ARB CASE NO. 2017-0072

                  COMPLAINANT,                        ALJ CASE NO. 2016-AIR-00020

         v.                                           DATE: February 27, 2020

  MOOG INC., AIRCRAFT GROUP,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Charles Shi; pro se; Shanghai, China

  For the Respondent:
        Robert J. Lane, Jr., Esq. and Jessica L. Copeland, Esq.; Hodgson
        Russ, LLP; Buffalo, New York

  Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge,
  James A. Haynes and Heather C. Leslie, Administrative Appeals Judges.


                      ORDER DENYING RECONSIDERATION

        PER CURIAM. The Complainant, Charles Shi, filed a retaliation complaint
  under the employee protection provision of the Wendell H. Ford Aviation
  Investment and Reform Act for the 21st Century (AIR 21 or Act) 1 with the
  Department of Labor’s Occupational Safety and Health Administration (OSHA).

  1      49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29 C.F.R.
  Part 1979 (2019).

USDOL/OALJ REPORTER PAGE 1
Complainant alleged that his employer, a Chinese subsidiary of Respondent Moog
Inc., terminated his employment in retaliation for making safety-related
complaints. An Administrative Law Judge (ALJ) dismissed Complainant’s
complaint sua sponte for lack of jurisdiction because adjudication of Complainant’s
complaint would require impermissible extraterritorial reach. Complainant
appealed. Applying Morrison v. Nat’l Australia Bank, Ltd., 561 U.S. 247 (2010), we
affirmed, concluding that Congress did not intend for AIR 21 to apply
extraterritorially and that Complainant’s case did not represent a domestic
application of AIR 21. On January 15, 2020, Complainant requested
reconsideration of our decision.

          The Board is authorized to reconsider our decisions under AIR 21. 2 We will
  reconsider our decisions under limited circumstances, which include: (i) material
  differences in fact or law from those presented to a court of which the moving party
  could not have known through reasonable diligence, (ii) new material facts that
  occurred after the court's decision, (iii) a change in the law after the court's decision,
  or (iv) failure to consider material facts presented to the court before its decision. 3

         Complainant contends that we should reconsider our decision for reasons
  including that he is entitled to a hearing, Respondent’s has engaged in deceit, there
  are safety concerns on aircraft, the purposes of AIR 21, that the effects of the
  activity he complained about are felt in the United States, and that the Board
  “probably” did not read his petition and evidentiary support. To the contrary, we
  have reviewed all of Complainant’s submissions, but continue to hold that the
  employee protection provisions of AIR 21 are not extraterritorial and that in this
  case there is no permissible domestic application allowing for adjudication of this
  matter. None of Complainant’s arguments fall within any of the four limited
  circumstances under which we will reconsider our decisions. Therefore, we DENY
  Complainant’s motion. We also DENY his motions to compel Respondent to disclose
  information and to strike Respondent’s brief.

         SO ORDERED.




  2    See Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union
  (PACE), ARB No. 04-111, ALJ No. 2004-AIR-00019, slip op. at 3-4 (ARB Dec. 21, 2007).
  3     Williams v. United Airlines, ARB No. 08-063, ALJ No. 2008-AIR-003, slip op. at 2-3
  (ARB June 23, 2010).

USDOL/OALJ REPORTER PAGE 2