Department of Labor: 05 060

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U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 In the Matter of: ANTHONY F. GONZALEZ, COMPLAINANT, v. COLONIAL BANK and THE COLONIAL BANCGROUP, INC., RESPONDENTS. ARB CASE NO. 05-060 ALJ CASE NO. 2004-SOX-39 DATE: May 31, 2005 BEFORE: Appearances: THE ADMINISTRATIVE REVIEW BOARD For the Complainant: Stanford R. Solomon, Esq. and Hallie S. Evans, Esq., The Solomon Tropp Law Group, P.A., Tampa, Florida and Thomas M. Gonzalez, Thompson
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, N.W.Washington, D.C. 20210 USDOL/OALJ   R EPORTER P AGE 1 In the Matter of:ANTHONY F. GONZALEZ, ARB CASE NO. 05-060COMPLAINANT, ALJ CASE NO. 2004-SOX-39v. DATE: May 31, 2005COLONIAL BANKandTHE COLONIAL BANCGROUP, INC.,RESPONDENTS.BEFORE: THE ADMINISTRATIVE REVIEW BOARDAppearances:For the Complainant:Stanford R. Solomon, Esq. and Hallie S. Evans, Esq., The Solomon Tropp Law Group, P.A., Tampa, Florida and   Thomas M. Gonzalez  , Thompson,Sizemore & Gonzalez, P.A., Tampa, Florida For the Respondents:Peter W. Zinober, Esq., Karen Meyer Buesing, Esq., Jay P. Lechner, Esq.,  Zinober & McCrea, P.A., Tampa, Florida and Ben H. Harris, III, Esq.,  Miller, Hamilton, Snider, & Odom, LLC  ,  Mobile, Alabama FINAL ORDER DISMISSING INTERLOCUTORY APPEAL This case arose when the Complainant, Anthony F. Gonzalez, filed a complaintwith the Department of Labor’s Occupational Safety and Health Administration (OSHA)alleging that the Respondent, Colonial Bank, terminated his employment in violation of    USDOL/OALJ   R EPORTER P AGE 2 the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002 (SOX) 1   andits implementing regulations. 2 On August 17, 2004, a Department of LaborAdministrative Law Judge (ALJ) issued an order Granting Gonzalez’s motion to amendhis complaint to permit Gonzalez to add The Colonial BancGroup, Inc. as a respondentand to have the amendment relate back to the filing of the srcinal complaint for purposesof determining the timeliness of Gonzalez’s complaint against BankGroup. 3 The ALJsubsequently denied the Respondents’ motion to reconsider the O.A.C. and their requestthat he certify the question to the Administrative Review Board for interlocutory appeal.The question before the Board is whether we should consider the Respondents’petition for interlocutory review of the O.A.C. and order denying reconsideration despitethe fact that the ALJ denied the Respondents’ certification request. As we discuss below,we find that the ALJ did not abuse his discretion in denying the certification request andthat the Respondents have failed to demonstrate a compelling reason to depart from ourwell-established policy disfavoring interlocutory appeals. B ACKGROUND   When Anthony Gonzalez initially filed his SOX complaint with OSHA he namedColonial Bank as the sole respondent. On July 16, 2004, he filed a motion with the ALJto amend the complaint to add the Colonial BancGroup, Inc. as a respondent.Respondent Colonial Bank opposed Gonzalez’s motion. The ALJ granted Gonzalez’smotion by order dated August 17, 2004. The Respondents requested reconsideration of the ALJ’s Order. The ALJ denied this request by order dated December 20, 2004.The Respondents requested the ALJ to certify the O.A.C. and order denyingreconsideration to the Board for interlocutory review. By order dated February 7, 2005, 1   18 U.S.C.A. § 1514A (West 2002). Title VIII of Sarbanes-Oxley is designated theCorporate and Criminal Fraud Accountability Act of 2002. Section 806 covers companieswith a class of securities registered under section 12 of the Securities Exchange Act of 1934,15 U.S.C § 78l, and companies required to file reports under section 15(d) of the SecuritiesExchange Act of 1934 (15 U.S.C. 780(d)), or any officer, employee, contractor,subcontractor, or agent of such companies. Section 806 protects employees who provideinformation to a covered employer or a Federal agency or Congress relating to allegedviolations of 18 U.S.C. 1341, 1343, 1344, or 1348, or any rule or regulation of the Securitiesand Exchange Commission, or any provision of Federal law relating to fraud againstshareholders. In addition, employees are protected against discrimination when they havefiled, testified in, participated in, or otherwise assisted in a proceeding filed or about to befiled against one of the above companies relating to any such violation or alleged violation.68 FR 31864 (May 28, 2003 2   29 C.F.R. Part 1980 (2004). 3   Order Granting Motion to Amend Complaint (O.A.C.) at 3-4.   USDOL/OALJ   R EPORTER P AGE 3 the ALJ denied the certification request. The Respondents filed a petition for review of the ALJ’s Order Denying Request for Certification of the Interlocutory Appeal onFebruary 22, 2005.The Board initially issued a Notice of Appeal and Order Establishing BriefingSchedule on February 24, 2005. On March 3, 2005, the Board issued an OrderSuspending the Briefing Schedule and to Show Cause. The Board stated in this Orderthat it had issued the Notice of Appeal and briefing schedule in error and that instead, inaccordance with the Board’s usual practice, the Board should have ordered theRespondents to show cause why the Board should not deny its interlocutory appeal giventhe Board’s policy disfavoring such appeals. Accordingly, the Board ordered theRespondents to show cause why the Board should not dismiss their interlocutory appealand permitted Gonzalez to file a reply to the Respondents’ response. S TATEMENT OF J URISDICTION   The Secretary of Labor has delegated her authority to issue final administrativedecisions in cases arising under SOX to the Administrative Review Board. 4 TheSecretary’s delegation of authority to the Board includes, “discretionary authority toreview interlocutory rulings in exceptional circumstances, provided such review is notprohibited by statute.” 5   D ISCUSSION   An administrative law judge may permit a complainant to amend a complaintwhen the amendment is reasonably within the scope of the srcinal complaint, theamendment will facilitate a determination of a controversy on the merits of the complaintand there is no prejudice to the public interest and the rights of the parties. 6   An amendedcomplaint will relate back to the srcinal complaint for purposes of determining thetimeliness of the complaint when the amendment adds a party against whom a claim isasserted if the claim in the amended pleading arose out of the conduct, transaction, oroccurrence described in the srcinal pleading. Furthermore, an amended complaintrelates back if, within the limitations period, the party to be added received notice of thefiling of the action such that the party will not be prejudiced in maintaining a defense onthe merits, and the party knew or should have known that, but for a mistake concerning 4 Secretary’s Order 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002). 5    Id  . at 64273. 6   29 C.F.R. § 18.5(e)(2004).   USDOL/OALJ   R EPORTER P AGE 4 the identity of the proper party, the complainant would have brought an action against theproper party. 7  Gonzalez, in support of his motion to amend the complaint, argued thatBancGroup is the publicly-held parent company of the Respondent Colonial Bank andwas so identified in the initial complaint that Gonzalez filed with OSHA. 8 Gonzalez alsoasserted that BancGroup appointed him to his position with Colonial, BancGroup’s CEOapproved the decision of Colonial’s CEO to terminate Gonzalez’s employment, and thetwo CEOs acted in concert to discriminate against him. He also argued that BancGroupwould suffer no prejudice from the amendment because it has known of the claim since itwas filed and that the complaint was served on BancGroup, its Executive Vice-Presidentand its CEO.The Respondents countered that the relation back provision does not apply to thiscase because Gonzalez knew of BancGroup’s identity when he filed the complaint andrelation back only applies in cases of mistaken or incorrect identification of a party, not incases in which the complainant seeks to add a new party of whose identity thecomplainant was aware, but did not realize might be liable, or had simply chosen not tosue.The ALJ, citing the Secretary’s decision in Wilson v. Bolin Assocs. , 9 found thatGonzalez should be permitted to amend his complaint to add BancGroup as a respondentand that the amendment related back to the srcinal complaint. The ALJ rejected theRespondents’ argument that the amendment can not relate back because Gonzalez’sfailure to name BancGroup srcinally was not the result of a mistake in the identity of thenamed respondent. The ALJ found that Wilson and the cases cited in the decision standfor the proposition that a mistake encompasses not just a mistake in identity of the namedrespondent but also a mistake in identifying the responsible party. 10 Arguing that thequestion whether the amendment rendered the complaint against BancGroup timely was acontrolling question of law that would immediately terminate the litigation, theRespondents requested the ALJ to certify the question to the Board for interlocutoryreview. 7   Fed. R. Civ. Pro. 15(c). See also 29 C.F.R. § 18.1(a) ( “The rules of Civil Procedurefor the District Courts of the United States shall be applied in any situation not provided foror controlled by these rules, or by any statute, executive order or regulation.”). 8 O.A.C. at 1. 9   91-STA-4 (Dec. 30, 1991). 10   O.A.C. at 2.
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