Schooler v. Ford Motor Co. (agency decision, May 6, 2024)

Plain-English summary

Charles Schooler alleged that Ford Motor Company retaliated against him in violation of the Sarbanes-Oxley Act. An administrative judge entered summary decision for Ford after finding that Schooler had not engaged in protected activity. Schooler missed the Board's opening-brief deadline and then asked to withdraw the appeal so he could seek de novo review in federal district court. The Board delayed dismissal for 30 days because withdrawing before filing in court could affect whether a district court would hear the case, but Schooler did not submit a file-stamped federal complaint or report that he had filed one. The Board then granted his request and dismissed the administrative appeal.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. §§ 1980.111(c), 1980.114, and 1980.115
• Outcome: Petition for review withdrawn and administrative appeal dismissed.
• Key point: A SOX complainant seeking de novo district-court review should account for the filing sequence because withdrawing the administrative appeal first may affect federal-court jurisdiction.

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:


CHARLES SCHOOLER,                            ARB CASE NO. 2024-0014

           COMPLAINANT,                      ALJ CASE NO. 2023-SOX-00015
                                             CHIEF ALJ STEPHEN R. HENLEY
     v.
                                             DATE: May 6, 2024
FORD MOTOR COMPANY,

           RESPONDENT.

Appearances:

For the Complainant:
Charles Schooler; Pro Se; Little Elm, Texas

For the Respondent:
Michael Jaskiw, Esq., Jesenka Mrdjenovic, Esq., and Katherine V.A.
Smith, Esq.; Gibson, Dunn & Crutcher LLP; Washington, District of
Columbia, and Los Angeles, California

Before HARTHILL, Chief Administrative Appeals Judge, and WARREN, Administrative Appeals Judge

               ORDER GRANTING COMPLAINANT’S
            REQUEST TO DISMISS PETITION FOR REVIEW

PER CURIAM:

   This case arises under the whistleblower protection provisions of Section 806

of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act (SOX), as amended, and its implementing regulations.1 Complainant Charles Schooler (Complainant) alleges that Respondent Ford Motor

1 18 U.S.C. § 1514A, as implemented by 29 C.F.R. Part 1980 (2023). 2

Company (Respondent) took adverse action against him because he engaged in activity protected by SOX.

   On January 10, 2024, a United States Department of Labor (Department)

Administrative Law Judge (ALJ) issued an Order Granting Respondent’s Motion for Summary Decision (D. & O.), in which the ALJ determined that the undisputed facts demonstrated that Complainant did not engage in activity protected by SOX. On January 16, 2024, Complainant filed a Petition for Review with the Administrative Review Board (ARB or Board) seeking review of the D. & O.

   On February 1, 2024, the Board issued a Notice of Appeal Acceptance,

Electronic Filing Requirements, and Briefing Order (Briefing Order). In the Briefing Order, the Board ordered Complainant to file an Opening Brief in support of the Petition for Review by February 29, 2024.

  Complainant did not file an Opening Brief. Consequently, the Board issued

an Order to Show Cause on March 20, 2024. In the Order to Show Cause, the Board ordered Complainant to file a response by April 3, 2024, explaining why the Board should not dismiss his appeal for failing to file an Opening Brief. The Board also ordered Complainant to file an Opening Brief with his response.

  On March 29, 2024, Complainant filed a document titled “Show of Cause.”

Complainant apologized for not submitting a timely Opening Brief and stated that he overlooked the email notifying him of the Briefing Order. Complainant also stated that he would be more diligent in the future and asked that his case not be dismissed based on his failure to comply with the Briefing Order. Nevertheless, Complainant still did not file an Opening Brief.

   Complainant also filed a second document on March 29, 2024, titled “Request

to Kick Out.” Complainant stated “[p]ursuant to 29 C.F.R. § 1980.114, I inten[d] to file an action for de novo review in an appropriate District Court of the United States. Accordingly, I request that my appeal before the Board be dismissed.”

   SOX’s regulations give the ARB the discretion to decide whether to grant a

petitioner’s request to withdraw a petition for review.2 The regulations also provide that “[i]n special circumstances not contemplated by the provisions of this part, or

2 29 C.F.R. § 1980.111(c) (“The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review.”). 3

for good cause shown, the ALJ or the ARB on review may, upon application, after three days’ notice to all parties, waive any rule or issue any orders that justice or the administration of the Act requires.”3 Pursuant to the authority granted to the Board by these regulations, and in recognition of Complainant’s pro se status, his failure to file an Opening Brief, his expressed desire to exercise his right to proceed with a de novo action in federal district court, and the potential consequences of granting Complainant’s request for dismissal before he actually filed a complaint in federal district court, we concluded that immediately granting Complainant’s request to dismiss his Petition for Review was not appropriate in the unique circumstances of this case.

   On April 4, 2024, the Board issued a Notice Of Order Granting Complainant’s

Request To Dismiss Petition For Review (Notice). In the Notice, the Board noted that the SOX permits a complainant to file a de novo complaint in federal district court if the Secretary of Labor has not issued a final decision on the complainant’s SOX claims within 180 days of the filing of the administrative complaint with the Department’s Occupational Safety and Health Administration.4 To invoke this right, a complainant need only file the de novo complaint in the appropriate federal district court, and then file a file-stamped copy of the complaint with the Department within seven days.5 The Board also noted that Complainant risked being barred from seeking de novo review if he withdrew his Petition for Review

3 Id. § 1980.115.
4 Notice at 3 (citing 18 U.S.C. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114(a)). A complainant may not pursue a SOX action de novo in federal district court if the Department’s delay in issuing a final decision was due to the bad faith of the complainant. 18 U.S.C. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114(a). 5 Notice at 3 (citing 29 C.F.R. § 1980.114(c)). 4

before filing a complaint in district court,6 and his only recourse would be to instead file an appeal with the appropriate United States court of appeals.7

    Accordingly, the Board declined to immediately grant Complainant’s request

to withdraw his Petition for Review. Instead, in light of the unique circumstances of the case, and balancing the interests of the parties with the Board’s interest in achieving orderly and expeditious disposition of its cases, the Board gave notice to the parties of its intent to grant Complainant’s request to withdraw his Petition for Review and dismiss his appeal thirty days after the issuance of the Notice.8 We also advised Complainant that if he filed a complaint for de novo review in district court before the Board granted his request to withdraw his Petition for Review, he must file a copy of the file-stamped complaint within seven days of filing.9 Thus, the Board gave notice to the parties of our intent to dismiss this appeal thirty (30) days after issuance of the Notice.10

  Thirty days have passed since the Board issued the Notice and Complainant

has not filed a copy of a federal complaint with the Board or otherwise indicated to

6 Notice at 3; see Mullen v. Norfolk S. Ry. Co., No. 2:14-cv-00917, 2015 WL 3457493, at
*7-11 (W.D. Pa. May 29, 2015) (unpublished) (finding complainant was barred from seeking de novo review in federal district court under similar regulations under the Federal Railroad Safety Act, where ARB issued a final decision dismissing complainant’s appeal after complainant expressed his intention to file in federal court, but before complainant filed his complaint). Although we noted this potential interpretation of the SOX statute and regulations, we emphasized that the Board is not the tribunal responsible for deciding whether a federal district court would have jurisdiction over Complainant’s complaint if he withdrew his Petition for Review or if his case is otherwise dismissed before he actually filed his complaint in district court. That decision must be made by the district court. 7 Notice at 3 (citing 29 C.F.R. § 1980.112(a), (b)). The court of appeals will not review Complainant’s case de novo. Rather, it will affirm the Secretary’s final decision if it is supported by substantial evidence and is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Notice at 3-4. (citations omitted). 8 Notice at 4 (citations omitted). 9 Id. (citing 29 C.F.R. § 1980.114(c)). 10 Id.; see also Ramos v. Globant S.A., ARB No. 2022-0042, ALJ No. 2022-SOX-00004, slip op. at 5-6 (ARB Sept. 9, 2022) (Notice of Order Granting Complainant’s Request to Withdraw Petition for Review) (giving notice that complainant’s appeal would be dismissed in forty-five days where complainant indicated intent to pursue de novo review of SOX claims); Jordan v. Sprint Nextel Corp., ARB Nos. 2010-0113, 2011-0020, ALJ Nos. 2006- SOX-00098, slip op. at 5 (ARB June 29, 2012) (giving notice that complainant’s appeal would be dismissed in thirty days where complainant indicated intent to pursue de novo review of some, but not all, of SOX claims). 5

the Board that he has filed a claim in district court. Accordingly, pursuant to the Board’s Notice, the Board hereby GRANTS Complainant’s request to withdraw his petition for review, and DISMISSES this appeal.

  SO ORDERED.



                                  ____________________________________
                                  SUSAN HARTHILL
                                  Chief Administrative Appeals Judge




                                  ____________________________________
                                  IVEY S. WARREN
                                  Administrative Appeals Judge