Reitz v. Moderna, Inc. (agency decision, July 2, 2026)

Plain-English summary

Naomi Reitz appealed an ALJ's dismissal of her Sarbanes-Oxley Act complaint after she failed to comply with discovery and deposition orders. She filed her petition for review eight days after the 14-day deadline and asked the ARB to excuse the delay through equitable tolling, equitable estoppel, or a waiver for special circumstances. The Board explained that the filing deadline can be modified in appropriate cases, but those remedies are rare and require circumstances beyond ordinary confusion or attorney error. It rejected Reitz's arguments that the absence of an appeal-rights notice, an untimely motion for reconsideration, the merits of her underlying claim, and alleged external legal constraints excused the late filing. The ARB dismissed the appeal.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. §§ 18.93, 1980.110(a), and 1980.115
• Outcome: The ARB dismissed Reitz's petition for review as untimely and denied equitable tolling, estoppel, and waiver.
• Key point: Confusion about appeal and reconsideration deadlines, including attorney error, did not establish the extraordinary circumstances or good cause required to excuse the late petition.

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:


    NAOMI REITZ,                                   ARB CASE NO. 2026-0039

                 COMPLAINANT,                      ALJ CASE NO. 2023-SOX-00028
                                                   ALJ STEWART F. ALFORD
          v.
                                                   DATE: July 2, 2026
    MODERNA, INC.,

                 RESPONDENT.

Appearances:

For the Complainant:
      Kimberly S. Courtney, Esq.; Higher Bar Law; Washington, District of
      Columbia

For the Respondent:
      Thomas A. Linthorst, Esq.; Morgan, Lewis & Bockius LLP; Princeton,
      New Jersey

Before KAPLAN and BURRELL, Administrative Appeals Judges


                                DECISION AND ORDER

      This case arises under the employee 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 Naomi Reitz appeals the decision of a United States Department of
Labor Administrative Law Judge (ALJ) dismissing her claim against Respondent
Moderna, Inc. For the reasons below, we dismiss Complainant’s appeal because it is
untimely.



1        18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2025).
                                              2


                                       BACKGROUND

      On April 22, 2026, an ALJ issued an Order Dismissing Matter, dismissing
Complainant’s complaint as a sanction for her failure to comply with the ALJ’s
orders to participate in discovery and sit for a deposition. To appeal the Order
Dismissing Matter, Complainant was required to file a Petition for Review with the
Administrative Review Board (ARB or Board) within 14 days of the date of the
ALJ’s decision—i.e., by May 6, 2026.2 Complainant did not file her Petition for
Review by the deadline.

       On May 14, 2026—eight days after the appeal deadline—Complainant filed a
Petition for Review, Application for Waiver, and Request for Equitable Tolling
(Petition) with the Board. In the Petition, Complainant recognized that her appeal
was late, but “applie[d] for a waiver of the timeliness rule pursuant to 29 C.F.R. §
1980.115,”3 and asserted that “equitable tolling and waiver are justified” to excuse
her untimely filing.4

       On May 19, 2026, Respondent filed an Opposition to Complainant’s Petition
for Review, Application for Waiver, and Request for Equitable Tolling. Respondent
argued that Complainant’s arguments in her Petition were insufficient to excuse
her late filing under applicable ARB precedent.5 Respondent also argued that there
was no reason to grant Complainant a waiver of the timeliness rules under 29
C.F.R. § 1980.115.6

      On May 28, 2026, the Board issued a Notice of Appeal and Order to Show
Cause, directing Complainant to file a brief explaining why the Board should not
dismiss this appeal as untimely. Complainant filed a Brief in Response to Order to
Show Cause, and Motion for Leave to File New Evidence in Camera on June 10,
2026. Respondent filed an Opposition to Complainant’s Response to Order to Show
Cause and Motion for Leave to File New Evidence in Camera on June 22, 2026.

2      See 29 C.F.R. § 1980.110(a) (“A petition must be filed within 14 days of the date of
the decision of the ALJ.”).
3      Petition at 1.
4      Id. at 3.
5     Opposition to Complainant’s Petition for Review, Application for Waiver, and
Request for Equitable Tolling at 1-3.
6      Id. at 3-4.
                                             3


                                       DISCUSSION

       Under the applicable regulations, Complainant was required to file a petition
for review with the Board by May 6, 2026.7 Complainant did not file her Petition
until May 14, 2026. Therefore, her appeal was untimely and is subject to dismissal.

       The time to file a petition with the ARB is not jurisdictional and, therefore, is
subject to equitable modification, including through equitable tolling and equitable
estoppel.8 Equitable tolling refers to a set of circumstances equitably excusing the
complainant’s inability to meet a deadline, such as when the movant has raised the
precise statutory claim in issue but has done so in the wrong forum, when the
movant has in some extraordinary way been prevented from filing, or when the
movant has some excusable ignorance of the respondent’s discriminatory act.9
Equitable tolling is a rare and “extraordinary measure that applies only when
plaintiff is prevented from filing despite exercising that level of diligence which
could reasonably be expected in the circumstances.”10 Equitable estoppel refers to
the employer or other respondents’ conduct that might have induced the
complainant to refrain from exercising her rights in a timely fashion.11

       The Board has recognized that “equitable relief from limitations periods is
‘typically extended . . . only sparingly.’”12 The party seeking equitable relief bears
the burden of establishing the need to apply equitable modification principles.13
Importantly, a Complainant pursuing a whistleblower retaliation claim is
responsible for determining which deadlines apply to her case and for meeting those
deadlines.14 As the Board has stated many times before, “ignorance of the law is no

7     See 29 C.F.R. § 1980.110(a).
8      Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at
7-8 (ARB June 8, 2023); Boles v. United Pac. R.R. Co., ARB No. 2021-0061, ALJ No. 2020-
FRS-00101, slip op. at 2 (ARB Nov. 1, 2021) (citation omitted).
9     Martin, ARB No. 2022-008, slip op. at 9 (citations omitted).
10    Id. (internal quotations and citations omitted).
11    Id. at 8.
12      Woods v. Boeing-South Carolina, ARB No. 2011-0067, ALJ No. 2011-AIR-00009, slip
op. at 8 (ARB Dec. 10, 2012) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990)).
13    Id. (citation omitted).
14    Martin, ARB No. 2022-0058, slip op. at 6.
                                             4


excuse” for missing a filing deadline.15 Likewise, “equitable tolling is generally not
appropriate when a complainant is represented by counsel because counsel is
presumptively aware of whatever legal recourse may be available to [his or her]
client,” and “attorney error does not constitute an extraordinary factor because
ultimately clients are accountable for the acts and omissions of their attorneys.”16
Applying these principles and standards, we find no basis to excuse Complainant’s
untimely Petition in this case.

        Complainant first contends that she is entitled to equitable relief from the
filing deadline because the ALJ did not include a Notice of Appeal Rights with the
Order Dismissing Matter, creating a “genuine misunderstanding regarding” the
applicable deadlines.17 The Board has held several times that an ALJ’s failure to
include a Notice of Appeal rights with his decision does not constitute grounds for
equitably tolling the limitations period.18 Although Notices of Appeal Rights may be
helpful to litigants, ALJs are not required by statute or regulation to include a
Notice of Appeal Rights with their decisions or advise parties of the appeal deadline.
Litigants, especially those represented by counsel, are ultimately responsible for
determining and meeting applicable deadlines.19 Notably, Complainant’s counsel
has not explained what efforts she took to familiarize herself with the applicable



15      Id. (quoting Warner v. Xcel Energy, ARB No. 2008-0112, ALJ No. 2008-ERA-00002,
slip op. at 8 (ARB Mar. 29, 2010)).
16     Madison v. Kenco Logistics, ARB No. 2018-0018, ALJ No. 2016-FDA-00004, slip op.
at 3 (ARB Feb. 15, 2018) (internal quotations and citations omitted).
17     Petition at 3.
18      Boles, ARB No. 2021-0061, slip op. at 4-5; Jaludi v. Citigroup, Inc., ARB No. 2021-
0053, ALJ No. 2021-SOX-00014, slip op. at 3 (ARB Aug. 25, 2021); Swinney v. Fluor Corp.,
ARB No. 2015-0044, ALJ No. 2014-SOX-00041, slip op. at 3 (ARB June 11, 2015);
Santamaria v. U.S. Env’t Prot. Agency, ARB No. 2005-0023, ALJ No. 2004-ERA-00025, slip
op. at 4-5 (ARB Mar. 31, 2005). We note that the complainants in these cases appeared
before the Board without legal representation. In this case, Complainant is represented by
counsel and counsel should have familiarized herself with the applicable filing deadline,
even in the absence of a Notice of Appeal Rights. See Madison, ARB No. 2018-0018, slip op.
at 3 (“[C]ounsel is presumptively aware of whatever legal recourse may be available to [his
or her] client.”) (internal quotations and citation omitted); see also Patino v. Birken Mfg.
Co., ARB No. 2009-0054, ALJ No. 2005-AIR-00023, slip op. at 4 (ARB Nov. 24, 2009)
(“[U]ltimately, clients are accountable for the acts and omissions of their attorneys.”)
(internal quotations and citation omitted).
19     Martin, ARB No. 2022-0058, slip op. at 6.
                                             5


rules—which are readily available online20—or why she was confused about the
deadlines that applied to Complainant’s case.

      Complainant next asserts that she filed a Motion for Reconsideration with
the ALJ on May 11, 2026, which the ALJ denied on June 3, 2026. Complainant
argues that she “operated under the reasonable, albeit mistaken, belief that a
Motion for Reconsideration (‘MFR’) would stay the appeal period and that the MFR
was not subject to a strict 10-day window.”21

       To be sure, a timely motion for reconsideration tolls the deadline to file a
petition for review with the ARB.22 However, an untimely motion for
reconsideration does not delay the start of the appeal period.23 In this case,
Complainant’s motion for reconsideration was not timely. Under the Office of
Administrative Law Judges Rules of Practice and Procedure, a motion for
reconsideration must be filed within 10 days after service of the decision—in this
case, by May 4, 2026.24 Complainant did not file her motion for reconsideration until
May 11, 2026—seven days after the deadline.25 Thus, the Motion for
Reconsideration did not toll the filing deadline.

      Complainant’s mistaken belief that her untimely Motion for Reconsideration
would toll the deadline to appeal also was not “reasonable” and does not excuse her
untimely Petition. It was incumbent on Complainant’s counsel to familiarize herself

20      The OALJ Rules of Practice and Procedure, including the rule related to Motions for
Reconsideration, are available at https://www.dol.gov/sites/dolgov/files/oalj/
PUBLIC/RULES_OF_PRACTICE/REFERENCES/REFERENCE_WORKS/OALJ_RULES_
OF_PRACTICE_AND_PROCEDURE_2015_WITH_CORRECTIONS.pdf. The SOX
regulation regarding filing petitions for review with the ARB is available at
https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1980/subpart-B/section-
1980.110.
21     Complainant-Appellant’s Brief in Response to Order to Show Cause, and Motion for
Leave to File New Evidence in Camera (Comp. Br.) at 5.
22     Phox v. The Savoy at 21c, ARB No. 2021-0057, ALJ No. 2019-FDA-00014, slip op. at
2-3 (ARB Jan. 6, 2022) (citations omitted).
23     Id. at 3 (citations omitted).
24     29 C.F.R. § 18.93. The tenth day fell on Saturday, May 2, 2026. Therefore, the
motion for reconsideration was due the next business day—Monday, May 4. See id. §
18.32(a)(1)(iii).
25     Accordingly, the ALJ denied the motion for reconsideration as untimely in an order
dated June 3, 2026.
                                             6


with the applicable rules and the regulations concerning motions for
reconsideration and petitions for review. We reiterate that “ignorance of the law is
no excuse” for missing a filing deadline, and counsel is “presumptively aware of
whatever legal recourse may be available to [his or her] client.”26 Once again,
Complainant’s counsel has not explained why she was confused about the deadlines
or what efforts she took to familiarize herself with the rules.27

       Next, Complainant argues that “strictly enforcing the procedural deadline . . .
would permanently cement the ALJ’s fundamentally flawed” decision dismissing
Complainant’s case.28 She asserts that her refusal to participate in discovery or sit
for a deposition—which prompted the ALJ to dismiss the case as a sanction—was
“compelled by binding external legal constraints that rendered compliance legally
impossible.”29 She argues that this resulted in “legally mandated paralysis,”
creating an “unprecedented environment of procedural confusion.”30 To support this
allegation, Complainant asks the Board for leave to file “new material regarding the
specific external legal constraints” in camera and ex parte.31




26      Martin, ARB No. 2022-0058, slip op. at 6 (citation omitted); Madison, ARB No. 2018-
0018, slip op. at 3 (internal quotations and citations omitted). We also note that
Complainant’s motion for reconsideration was not only filed after the deadline to file
motions for reconsideration with the ALJ (in this case, May 4, 2026), but also after the
deadline to file a petition for review with the Board (in this case, May 6, 2026). As
Complainant would have it, a complainant could miss the filing deadline for both a motion
for reconsideration and for filing a petition for review, file an untimely motion for
reconsideration with the ALJ anyway, and then file an untimely petition for review with
the ARB (before the ALJ rules on the untimely motion for reconsideration), and thereby
somehow revive the expired deadline for filing the petition for review. We do not consider
an interpretation of the rules that would provide such an end-around to the filing deadlines
“reasonable.”
27     Complainant’s assertion that her “confusion” over the motion for reconsideration
deadline “was severely compounded by the ALJ’s omission of a Notice of Appeal Rights” is
also unfounded. Comp. Br. at 1. As Respondent correctly points out, the Notice of Appeal
Rights often provided by ALJs typically does not include information concerning motions for
reconsideration or the deadlines related thereto, so could not have possibly aided (or
hindered) Complainant’s understanding of reconsideration rules.
28     Id. at 2.
29     Id. at 4.
30     Id. at 3.
31     Id. at 5-6.
                                                7


       Complainant’s arguments regarding the merits of her appeal and the ALJ’s
alleged errors in dismissing her claim are not relevant to the issue of whether we
should equitably modify the appeal deadline.32 Even if the supposed “legal
constraints” limited Complainant’s ability to participate in discovery below, she has
not alleged that, or explained how, the constraints limited her ability to file a timely
appeal. Instead, as Respondent correctly observes, Complainant acknowledged that
her delay in filing was due to her confusion as to the filing deadlines.33 As we have
explained, confusion is not a justifiable excuse for an untimely appeal.

       Complainant also argues that Respondent should be equitably estopped from
asserting timeliness as a defense. According to Complainant, Respondent
“weaponized Complainant’s inability to participate in discovery against her, despite
express knowledge of the fact that her participation was constrained by binding
external legal forces.”34 We reject this argument, too. Complainant has not argued
that Respondent did or said anything regarding the motion for reconsideration or
appeal deadlines that caused her to file late. Even if Respondent somehow took
advantage of the “legal constraints” that limited Complainant’s ability to participate
in discovery below, Complainant has not explained what that has do with the
confusion that resulted in Complainant’s late appeal.




32      See Patino, ARB No. 2009-0054, slip op. at 4-5 (rejecting argument that important
questions of public interest underlying complainant’s claim should be considered when
weighing whether to accept late filing; complainant “does not explain how judicial economy
and the public interest in air safety implicate equitable tolling”); see also Navy Chaplaincy
v. U.S. Navy, No. 23-5283, 2024 WL 5165606, at *3 (D.C. Cir. Dec. 19, 2024) (“Similarly,
appellants’ arguments on the merits of their discrimination claims were not relevant to the
sole issue on remand—equitable tolling—and were not properly before the district court.”);
Helton v. Sec’y for the Dep’t of Corrections, 259 F.3d 1310, 1314-15 (11th Cir. 2001) (“The
district court erroneously held that the merits of the case . . . ‘contribute[d] to the overall
extraordinariness of the circumstances.’ . . The ‘extraordinary circumstances’ standard [for
equitable tolling] applied in this circuit focuses on the circumstances surrounding the late
filing of the habeas petition, rather than the circumstances surrounding the underlying
conviction. . . . The district court erred, therefore, in focusing on the merits of the case to
justify equitable tolling.”). Accordingly, we deny Complainant’s request to file documents
concerning the “legal constraints” in camera and under seal.
33     See, e.g., Comp. Br. at 1 (“The delay in filing was not the result of a lack of diligence,
but was rather caused by a genuine misunderstanding of the interplay between the
deadlines for a Motion for Reconsideration and the appeal deadlines.”).
34     Id. at 4.
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       Finally, Complainant argues that the Board should exercise its “independent
discretion to waive the timeliness rule for special circumstances” under 29 C.F.R.
§ 1980.115.35 That regulation provides: “In special circumstances not contemplated
by the provisions of this part, or 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.”

       For all the reasons above, we do not find special circumstances or good cause
to waive the appeal deadline. Complainant’s confusion regarding the deadline does
not excuse her tardy filing and we see no reason to depart from well-established
principles concerning timeliness in the circumstances of this case.

      Accordingly, we DISMISS Complainant’s appeal.

      SO ORDERED.




                                ELLIOT M. KAPLAN
                                Administrative Appeals Judge




                                THOMAS H. BURRELL
                                Administrative Appeals Judge




35    Id. at 3.