Henry Klein v. Bank of America (agency decision, March 31, 2022)

Plain-English summary

Henry Klein asked the Board to review his Sarbanes-Oxley Act retaliation claim against Bank of America. After Klein did not file his opening brief on time, the Board ordered him to explain why the appeal should not be dismissed. Klein responded before the show-cause deadline but did not address why he had failed to follow the Board's briefing schedule. The Board dismissed the complaint for failure to show good cause. It did not decide the underlying retaliation claim on its merits.

Decision snapshot

• Cited authority: 18 U.S.C. § 1514A
• Outcome: Appeal dismissed because Klein did not show good cause for failing to file his opening brief on time.
• Key point: Responding to a show-cause order does not prevent dismissal when the response does not explain the missed filing deadline.

Full text (DOL official public release)

U.S. Department of Labor            Administrative Review Board
                                    200 Constitution Ave. NW
                                    Washington, DC 20210-0001

In the Matter of:

HENRY KLEIN, ARB CASE NO. 2022-0016

            COMPLAINANT,                       ALJ CASE NO.         2020-SOX-00039

      v.                                       DATE: March 31, 2022

BANK OF AMERICA,

            RESPONDENT.

Appearances:

For the Complainant:
Henry Klein; pro se; Kansas City, Missouri

For the Respondent:
Charles Edward Solley, Esq.; Moser Law Co.; Atlanta, Georgia

Before: James D. McGinley, Chief Administrative Appeals Judge and Thomas H. Burrell, Administrative Appeals Judge

                      ORDER DISMISSING COMPLAINT

   PER CURIAM. On February 3, 2022, the Administrative Review Board issued an

Order to Show Cause based on Complainant Henry Klein’s petition for review arising out of his Sarbanes-Oxley Act of 2002 (SOX) claim.1 Under the terms of the Order, Complainant was to show cause regarding the reasons why the Board should not dismiss his case for not timely filing his opening brief no later than February 18, 2022.

1 18 U.S.C. § 1514A (2010), as implemented by the regulations at 29 C.F.R. Part 1980 (2021).

                                      2


  On February 17, 2022, Complainant filed a response to the order, but did not

address why he failed to timely follow the Board’s Notice of Appeal and Order Establishing Briefing Schedule. As explained in the Board’s Order to Show Cause, the Board has authority to dismiss a case for a party’s failure to comply with the Board’s orders and briefing requirements.2

  Accordingly, because Complainant has failed to show good cause as to why the

Board should not dismiss his appeal after failing to timely file his opening brief, we DISMISS his complaint.

  SO ORDERED.

2 Jessen v. BNSF Railway Co., ARB No. 2012-0107, ALJ No. 2010-FRS-00022, slip op. at 2 (ARB July 26, 2013).