Erik Leckner v. Gdit

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2021
• Docket: 21-70284
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIK LECKNER, No. 21-70284

Petitioner, ARB Case No. 2020-0028

v. MEMORANDUM* GENERAL DYNAMICS INFORMATION TECHNOLOGY; et al.,

Respondents.

On Petition for Review of an Order of the Department of Labor

Submitted October 12, 2021**

Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.

Erik Leckner petitions pro se for review of the Department of Labor’s

Administrative Review Board’s (“ARB”) final decision and order, and denial of

Leckner’s motion for reconsideration, affirming the Administrative Law Judge’s

(“ALJ”) summary dismissal of Leckner’s whistleblower retaliation complaint

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). against his former employers under the Clean Air Act (“CAA”), 42 U.S.C. § 7622,

the Comprehensive Environmental Response Compensation and Liability Act

(“CERCLA”), 42 U.S.C. § 9610, the Solid Waste Disposal Act (“SWDA”), 42

U.S.C. § 6971, the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2622, the

Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. § 1367, the Energy

Reorganization Act (“ERA”), 42 U.S.C. § 5851, and the Sarbanes-Oxley Act

(“SOX”), 18 U.S.C. § 1514A. We have jurisdiction under 42 U.S.C. § 7622(c)(1)

(CAA), 42 U.S.C. § 9610(b) (CERCLA), 42 U.S.C. § 6971(b) (SWDA), 15 U.S.C.

§ 2622(c)(1) (TSCA), 33 U.S.C. § 1367(b) (FWPCA), 42 U.S.C. § 5851(c)(1)

(ERA), and 18 U.S.C. § 1514A(b)(2)(A) (SOX). We review the ARB’s decisions

pursuant to the standard established in the Administrative Procedure Act (“APA”),

5 U.S.C. § 706. Under the APA, “we will reverse an agency’s decision only if it is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” Coppinger-Martin v. Solis, 627 F.3d 745, 748 (9th Cir. 2010) (citation and

internal quotation marks omitted). We review de novo an agency’s interpretation

or application of a statute. Schneider v. Chertoff, 450 F.3d 944, 952 (9th

Cir. 2006). We deny the petition.

The ARB properly affirmed the dismissal as untimely of Leckner’s

retaliation claims under the CAA, CERCLA, SWDA, TSCA and FWPCA because

Leckner failed to raise a genuine dispute of material fact as to whether he filed his

2 21-70284 whistleblower complaint within 30 days of his employers’ alleged retaliatory

decisions. See 29 C.F.R. § 24.103(d)(1) (requiring a complainant file an

administrative complaint within 30 days after an alleged violation of the employee

protection provisions of the CAA, CERCLA, SWDA, TSCA and FWPCA).

The ARB properly affirmed the dismissal of Leckner’s retaliation claim

under the SOX because Leckner failed to raise a genuine dispute of material fact as

to whether he engaged in protected activity under the SOX. See Van Asdale v. Int’l

Game Tech., 577 F.3d 989, 996-97, 1000-01 (9th Cir. 2009) (to be protected

activity an employee must have a subjective and objectively reasonable belief that

the reported conduct violated one of the listed categories of fraud or securities

violations under 18 U.S.C. § 1514A(a)).

The ARB properly denied Leckner’s request to admit new evidence because

Leckner failed to demonstrate that the evidence could not have been discovered

with reasonable diligence before the record closed. See 29 C.F.R. § 18.90(b)(1)

(“No additional evidence may be admitted unless the offering party shows that new

and material evidence has become available that could not have been discovered

with reasonable diligence before the record closed.”).

We do not consider Leckner’s contentions concerning his ERA claim, or his

other arguments and allegations raised for the first time on appeal. See Padgett v.

Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

3 21-70284 Leckner’s motion to supplement the record (Docket Entry No. 11) is denied.

Leckner’s motions to expedite (Docket Entry No. 21) and to file an

oversized reply in support of the motion to supplement the record (Docket

Entry No. 25) are denied as unnecessary.

Leckner’s motions to file a corrected and oversized reply brief (Docket

Entry Nos. 55, 57, 59 and 60) are granted. The Clerk will file the corrected reply

brief at Docket Entry No. 59-2.

PETITION FOR REVIEW DENIED.

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