Lewis v. American Express (agency decision, December 6, 2024)

Plain-English summary

Sophia Lewis appealed an administrative judge's Sarbanes-Oxley decision involving American Express. After missing an extended opening-brief deadline, she notified the Board that she intended to file a de novo federal action. The Board explained that an expression of intent did not end the administrative case and ordered her either to provide proof of a court filing or submit the missing brief. Lewis then filed her complaint in the District of Arizona and provided the Board with the electronic filing proof available from that court. The Board found substantial compliance with the filing-copy requirement and dismissed the administrative appeal because the Labor Department no longer had jurisdiction.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114(a); 29 C.F.R. § 1980.114(c)
• Outcome: Administrative appeal dismissed for lack of jurisdiction after de novo federal-court action was filed.
• Key point: A stated intent to proceed in court does not transfer a SOX case, but filing the federal complaint and providing proof ends Labor Department 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:


SOPHIA R. LEWIS,                              ARB CASE NO. 2024-0058

           COMPLAINANT,                       ALJ CASE NOS. 2023-SOX-00010
                                                            2023-SOX-00011
     v.                                       ALJ CHRISTOPHER LARSEN

AMERICAN EXPRESS,                             DATE: December 6, 2024

           RESPONDENT.

Appearances:

For the Complainant:
Stephani L. Ayers, Esq.; Government Accountability Project;
Washington, District of Columbia

For the Respondent:
Amy J. Gittler; Jackson Lewis, PC; Phoenix, Arizona

Before WARREN, Acting Chief Administrative Appeals Judge, and THOMPSON, Administrative Appeals Judge

                           ORDER OF DISMISSAL

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.1 On August 12, 2024, Complainant Sophia R. Lewis filed a Petition for Review with the Administrative Review Board (Board) of Administrative Law Judge Christopher Larsen’s Decision and Order, issued on August 8, 2024. On August 26, 2024, the Board issued a Notice of Appeal Acceptance, Electronic Filing Requirements, and Briefing Order which, among

1 18 U.S.C. § 1514A, as implemented by 29 C.F.R. Part 1980 (2024). 2

other things, directed Complainant to file an opening brief on or before September 23, 2024. After the parties requested two extensions to the briefing schedule, the Board extended Complainant’s deadline to file an opening brief to November 4, 2024.

    Complainant did not file an opening brief by the deadline. Instead, on

November 4, 2024, Complainant filed a Notice of Intent to File in U.S. District Court (Notice). Citing 29 C.F.R. § 1980.114, Complainant stated that she “provides notice to the [Board] of her intent to bring an action for de novo review in the appropriate district court of the United States for equitable and monetary relief and a trial by jury.”

   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 of Labor’s Occupational Safety and Health Administration.2 To invoke this right, a complainant must file the de novo complaint in the appropriate federal district court and then file a file-stamped copy of the complaint with the Board within seven days.3

   Although Complainant expressed in the Notice that she intended to file a

complaint in district court, she did not file a copy of a file-stamped complaint with the Board or otherwise give any indication that she had in fact filed a complaint at that time. Consequently, the Board issued an Order on November 12, 2024, advising Complainant that until she filed a complaint in federal court, the case remained pending and active before the Board and she was required to comply with the Board’s orders, including the order to file an opening brief by November 4, 2024. Therefore, the Board ordered Complainant to either file a file-stamped copy of a district court complaint pursuant to 29 C.F.R. § 1980.114 or to file an opening brief by November 26, 2024.

  On November 26 and 27, 2024, Complainant filed with the Board copies of a

SOX complaint filed on November 26, 2024, in the United States District Court for the District of Arizona.4 Since Complainant has now filed an original action in

2 18 U.S.C. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114(a). 3 29 C.F.R. § 1980.114(a), (c). 4 Complainant first filed a copy of her federal complaint with the Board on November 26, 2024, and then filed a second copy on November 27, 2024, noting that the complaint had to be edited and reformatted to be accepted by the federal electronic filing system. Although neither copy was “file-stamped,” as required by 29 C.F.R. § 1980.114(c), Complainant represented that the federal filing system in Arizona does not allow immediate access to a file-stamped copy, so she instead attached a proof of filing generated by the filing system. Thus, Complainant substantially complied with the regulation. 3

district court, the Department of Labor no longer has jurisdiction over this case. Accordingly, we DISMISS the appeal.5

   SO ORDERED.




                               ____________________________________
                               IVEY S. WARREN
                               Acting Chief Administrative Appeals Judge




                               ____________________________________
                               ANGELA W. THOMPSON
                               Administrative Appeals Judge

5 The regulation also requires Complainant to serve a copy of the complaint “on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.” 29 C.F.R. § 1980.114(c). Complainant should promptly serve a copy of the complaint on these individuals, if she has not yet done so.