Brown v. Synovus Financial Corporation (agency decision, June 19, 2019)

Plain-English summary

An ALJ granted summary decision against Michael Brown in his Sarbanes-Oxley case against Synovus Financial. Brown missed the 14-day Board appeal deadline, and both the Board and the Eleventh Circuit rejected his later challenges. He then returned to the ALJ with another fraud-on-the-court motion. The ALJ found no newly discovered fraud because Brown relied on facts and content already known when the original case was decided. The Board adopted that reasoning, concluded that the motion attempted to relitigate the closed case, and denied relief.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. § 1980.110
• Outcome: ALJ order adopted and renewed fraud-on-the-court motion denied.
• Key point: Repackaging known facts as fraud on the court does not reopen a case after the appeal and reconsideration routes have failed.

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:


  MICHAEL B. BROWN,                                ARB CASE NO. 2019-0007

                  COMPLAINANT,                     ALJ CASE NO. 2015-SOX-00018

         v.                                        DATE: June 19, 2019

  SYNOVUS FINANCIAL CORPORATION,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Michael B. Brown; pro se; Columbus, Georgia

  For the Respondent:
        Margaret H. Campbell, Esq. and Amy E. Jensen, Esq.; Olgetree,
        Deakins, Nash, Smoak & Stewart, P.C.; Atlanta, Georgia

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges.


                         FINAL DECISION AND ORDER

        This case arises under the whistleblower provision of the Sarbanes-Oxley Act
  of 2002 (SOX), 18 U.S.C. § 1514A (2010) and its implementing regulations at 29
  C.F.R. Part 1980 (2015). Brown brought his original complaint (Brown I) against
  Synovus Financial Corporation in 2014. The Occupational Safety and Health
  Administration (OSHA) dismissed the complaint. Brown objected and requested a
  hearing. The Administrative Law Judge (ALJ) subsequently assigned to the case
  granted Synovus’s motion for summary decision on December 16, 2016 and provided
  Brown notice of his right to timely appeal the ALJ’s decision. The SOX’s



  whistleblower provision gives parties fourteen days to appeal an ALJ’s decision. 29
  C.F.R. 1980.110(a). On April 6, 2017, over three months after the ALJ’s decision,
  Brown filed a motion with the Administrative Review Board (ARB or Board) to set
  aside the ALJ’s decision for alleged “fraud on the Court.” The ARB treated Brown’s
  motion as a petition for review and denied it as untimely filed. Brown v. Synovus
  Financial Corp., ARB No.17-037, ALJ No. 2015-SOX-018 (ARB May 17, 2017). After
  the ARB denied Brown’s subsequent motion for reconsideration, Brown appealed
  the ARB’s final decision to the United States Court of Appeals for the 11th Circuit,
  which affirmed the ARB’s decision. Brown v. Sec’y of Labor, No. 17-13151, 739 Fed.
  Appx. 978 (11th Cir., July 11, 2018)(unpub.). The court also denied Brown’s
  subsequent motion for reconsideration.

         Following the court’s denial, Brown filed a motion with the ALJ for relief
  under Fed. R. Civ. P. 60(d), again asserting fraud on the court (Brown II). On
  October 30, 2018, the ALJ denied his motion, concluding specifically that Brown
  alleged no new information or discovery of fraud but rather moved for relief based
  on facts and content already known to him in December 2016 when the matter was
  before the ALJ the first time. The ALJ found that Brown’s motion for relief was an
  attempt to reargue his case which the ARB and the court of appeals had already
  denied.

          Brown has now petitioned the ARB for review of the ALJ’s decision. 1 Upon
  review of the ALJ’s Order, we conclude that the ALJ’s Order is well-reasoned and
  based on the undisputed facts and the applicable law. The ALJ properly concluded
  that the motion failed to allege proper grounds of fraud on the court. The ALJ
  correctly concluded that Brown seeks to relitigate his case in the form of a motion
  for relief. Accordingly, we adopt and attach the ALJ’s Order Denying Motion to
  Relieve Party from Judgment, Order, or Proceeding to Set Aside the Order due to
  Fraud on the Court. Brown’s Motion at issue is thereby DENIED.

         SO ORDERED.



  1
         The ARB has jurisdiction to review the ALJ’s decision under Secretary’s Order No. 01-2019
  (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 84
  Fed. Reg. 13,072 (Apr. 3, 2019) and 29 C.F.R. Part 1980.110. The ARB reviews the ALJ’s factual
  determinations for substantial evidence and conclusions of law de novo. Dietz v. Cypress
  Semiconductor Corp., ARB No. 15-017, ALJ No. 2014-SOX-002, slip op. at 6 (ARB Mar. 30, 2016); see
  29 C.F.R. 1980.110(b).