U.S. Department of Labor

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,

v.

ALJ CASE NO. 2023-SOX-00028

ALJ STEWART F. ALFORD

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. 2020FRS-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. 20210053, 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/section1980.110.

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. 20180018, 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.

8

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.