U.S. Department of Labor Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

MICHAEL BROOKS, ARB CASE NO. 2019-0078

COMPLAINANT, ALJ CASE NO. 2018-SOX-00046

v. DATE: April 21, 2020

AGATE RESOURCES, LLC1,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:

Michael Brooks; pro se; Coburg, Oregon

For the Respondent:

Reilley D. Keating, Esq.; and Stephen H. Galloway, Esq.; Stoel Rives 

LLP; Portland, Oregon

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge, and 

Heather C. Leslie and James A. Haynes, Administrative Appeals Judges 

 

1 The Order Granting Summary Judgement references the employer in the title

as Agate Health Care. While Complainant makes various arguments regarding Respondent’s 

corporate structure and the employer’s correct name, none of these arguments negate the 

untimely filing of the complaint, discussed more fully in the order. As Respondent points out, 

the correct name for Respondent is Agate Resources, which we will use, and have used in a 

prior order. See Brooks v. Agate Res., LLC, ARB No. 2017-0033, ALJ No. 2016-SOX-00037 

(ARB Mar. 25, 2019).

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DECISION AND ORDER

PER CURIAM. The Complainant, Michael Brooks, filed a retaliation complaint 

under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, 

Title VIII of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A (2010) (SOX) and its 

implementing regulations, 29 C.F.R. Part 1980 (2018) and the Affordable Care Act 

(ACA) 29 U.S.C. § 218c (2010). Complainant alleged that his former employer 

violated whistleblower protection provisions by retaliating against him for protected 

activity.2

Complainant filed his complaint of unlawful retaliation on July 3, 2018. On 

June 17, 2019, the Administrative Law Judge (ALJ) granted Respondent’s motion 

for summary decision, noting that Complainant filed the present complaint after a

different ALJ denied Complainant’s previous claim, filed on April 4, 2016, and 

involving the same set of facts as in the present complaint, as untimely filed. The 

ALJ dismissed the claim. Complainant filed a petition requesting that the 

Administrative Review Board (ARB or the Board) review the ALJ’s order. We 

affirm.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to review the ALJ’s SOX decision pursuant to 

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of 

Responsibility to the Administrative Review Board (Secretary’s discretionary review 

of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020). The ARB will affirm the 

ALJ’s factual findings if supported by substantial evidence but reviews all 

conclusions of law de novo. Summary decision is permitted where “there is no 

genuine dispute as to any material fact and the movant is entitled to decision as a 

matter of law.” 29 C.F.R. § 18.72(a) (2018). On summary decision, we review the 

record on the whole in the light most favorable to the non-moving party. Micallef v. 

Harrah’s Rincon Casino & Resort, ARB No. 2016-0095, ALJ No. 2015-SOX-00025, 

slip op. at 3 (ARB July 5, 2018). 

 

2 Complainant’s employment ceased on September 27, 2013. 

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DISCUSSION

Section 806 prohibits certain covered employers from discharging, demoting, 

suspending, threatening, harassing, or in any other manner discriminating against 

employees who provide information to a covered employer or a federal agency or 

Congress regarding conduct that the employee reasonably believes constitutes a 

violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank 

fraud), or 1348 (securities fraud), or any rule or regulation of the Securities and 

Exchange Commission, or any provision of Federal law relating to fraud against 

shareholders. 18 U.S.C. § 1514A(a)(1). SOX complaints must be filed “not later than 

180 days after the date on which the violation occur[red], or after the date on which 

the employee became aware of the violation.” 18 U.S.C. § 1514A(b)(1)(B).

In the case at bar, Complainant filed the complaint on July 3, 2018. As noted 

by the ALJ, the Complainant filed the complaint alleging the same set of facts as an

earlier complaint, which a different ALJ had concluded was untimely filed. The

ARB affirmed this earlier decision on March 25, 2019. Brooks v. Agate Res., LLC,

ARB No. 2017-0033, ALJ No. 2016-SOX-00037 (ARB Mar. 25, 2019). We agree with 

the ALJ’s summary of the procedural history of the case before us and that granting 

Respondent’s motion for summary decision was in accordance with the law. 

ORDER

Accordingly, we AFFIRM the ALJ’s Order Granting Motion for Summary 

Decision. 

SO ORDERED. 

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