U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

MICHAEL B. BROWN,

COMPLAINANT,

v.

ARB CASE NO. 2019-0007

ALJ CASE NO. 2015-SOX-00018

DATE:

JUN 1 9 2019

SYNOVUS FINANCIAL CORPORATION,

RESPONDENT.

Appearances:

For the Complainant:

Michael B. Brown; prose; Columbus, Georgia

For the Respondent:

Margaret H. Campbell, Esq. and Amy E. Jensen, Es q.; Olgetree,

Deakins, Nash, Smoak & Stewart, P.C.; Atlanta, Georgia

Before: William T. Barto, Chief Administrative Appeals Judge; James A.

Haynes and Daniel T. Gresh, Administrative Appeals Judges.

FINAL DECISION AND ORDER

This case a rises unde r t he whistle blower provision of t he Sarba ne -Oxley Act

of 2002 (SOX), 18 U.S.C. § 1514A (2010) a nd its impleme nt ing r egulation at 29

C. F .R. P art 1980 (2015). Brown brough t his original compla int (B rown I') again st

Synovus Fina ncial Corpor ation in 2014. The Occup a tion al Safety and H ealt h

Admini t r a tion (OSHA) di missed the complaint. Brown objected a nd reque ted a

hearing. The Admini t r a tive Law Judge (ALJ) s ubseque n tly assigned to the case

gr a nted Synovus' motion for umm a ry decision on Decembe r 16, 2016 a nd provided

Brown notice of hi right to timely a ppeal t he ALJ's decision . The SO X's

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whistleblower provision gives parties fourteen days to appeal an ALJ's decision. 29

C.F.R. 1980. ll0(a). On April 6, 2017, over three months after the ALJ's decision,

Brown filed a motion with the Administrative Review Board (ARB or Board) to set

aside the ALJ's decision for alleged "fraud on the Court." The ARB treated Brown's

motion as a petition for review and denied it as untimely filed. Brown v. Synovus

Financial Corp., ARB No.17-037, ALJ No. 2015-SOX-018 (ARB May 17, 2017). After

the ARB denied Brown's subsequent motion for reconsideration, Brown appealed

the ARB's final decision to the United States Court of Appeals for the 11th Circuit,

which affirmed the ARB's decision. Brown v. Sec'y of Labor, No. 17-13151, 739 Fed.

Appx. 978 (11th Cir., July 11, 2018)(unpub.). The court also denied Brown's

subsequent motion for reconsideration.

Following the court's denial, Brown filed a motion with the ALJ for relief

under Fed. R. Civ. P. 60(d), again asserting fraud on the court (Brown II). On

October 30, 2018, the ALJ denied his motion, concluding specifically that Brown

alleged no new information or discovery of fraud but rather moved for relief based

on facts and content already known to him in December 2016 when the matter was

before the ALJ the first time. The ALJ found that Brown's motion for relief was an

attempt to reargue his case which the ARB and the court of appeals had already

denied.

Brown has now petitioned the ARB for review of the ALJ's decision. 1 Upon

review of the ALJ's Order, we conclude that the ALJ's Order is well-reasoned and

based on the undisputed facts and the applicable law. The ALJ properly concluded

that the motion failed to allege proper grounds of fraud on the court. The ALJ

correctly concluded that Brown seeks to relitigate his case in the form of a motion

for relief. Accordingly, we adopt and attach the ALJ's Order Denying Motion to

Relieve Party from Judgment, Order, or Proceeding to Set Aside the Order due to

Fraud on the Court. Brown's Motion at issue is thereby DENIED.

SO ORDERED.

The ARB has jurisdiction to review the ALJ's decision under Secretary's Order No. 01-2019

(Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 84

Fed. Reg. 13,072 (Apr. 3, 2019) and 29 C.F.R. Part 1980.110. The ARB reviews the ALJ's factual

determinations for substantial evidence and conclusions of law de novo. Dietz v. Cypress

Semiconductor Corp., ARB No. 15-017, ALJ No. 2014-SOX-002, slip op. at 6 (ARB Mar. 30, 2016); see

29 C.F.R. 1980.ll0(b).

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U.S. Department of Labor

@

Office of Ad'mlniStl'alive Law Judgw&

11B70 Merchants Walk - Suite 204

Nowport New&, VA 23606

.

(757) 591-5140

(757) 591-5150 (FAX)

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Issue Date: 30 October 2018

CASE NO.:

2015-SOX-00018

In the Matter of:

MICHAEL B. BROWN,

Complailltll1t,

v.

SYNOVUS FINANCIAL CORP.,

Respondent.

ORDER DENYING MOTION TO RELIEVE PARTY FROM JUDGMENT, ORDER, OR

PROCEEDING TO SET ASIDE THE ORDER DUE TO FRAUD ON TUE COURT

This matter was docketed in the Office of Administrative Law Judges on May 22, 20 I 5,

and assigned to Administrative Law Judge Al1111 L Bergstrom. On December 16, 2016, Judge

Bergstrom granted a motion for summary decision filed by Respondent Synovus Financial Corp.

On October 10, 2018, Complainant Michael B. Brown filed a motion entitled

"Complainant Michael B. Brown's Rule 60(d)(l)(3) Motion, Bric:t; and Independent Action to

Relieve a Party from a Judgment, Order, or Proceeding to Set Aside the Order Due to Fraud on

1he Court." Respondent Synovus Financial Corporation filed a timely response. For the reasons

:.et forth below, Mr. Brown's motion will be denied. 1

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Bagkground

Complainant filed a complaint under the employee-protection provisions of the SarbanesO·,dey Act on July 3, 2014. He alleged that Synovus retaliated against him by reassigning him,

placing him on a performance improvement program, and ultimately terminating him, after he

raised concerns about the company's disregard of his audits and its blocking him from reporting

his concerns to management After the required investigation, OSHA determined that there was

no reasonable canse to believe that Synovus violated Mr. Brown's rights under SOX. Mr. Brown

objected to that determination and requested a hearing, and the matter was forwarded to the

Office of Administrative Law Judges, where it was assigned to ALJ Alan L. Bergstrom.

On December 16, 2016, Judge Bergstrom issued a Decision and Order granting Synovus'

motion for summary decision wid dismissing the complaint. That Decision and Order informed

' Mr. Brown has also filed a complaint ofjudicial misconduct against Judge Bergstrom. That macter hub=

ro!',,n,,d Jo tho Chiof Administrative Law Judge, and will not be addressed iii this Order.

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Mr. Brown of his appt:al rights, and instructed him that any appeal to the Administrative Review

Board must be filed within 14 days of the date-0f Judge Bergstrom's decision. Complainant did

not :'!?pea( to the ARB within 14 days. On April 6, 2017 - 79 days after Judge Bergstrom's

Dec1s1on and Order - Mr. Brown filed a Motion and Briefto Set Aside the Order Due to Fraud

Up~~ the Court. '!he A.Ra co~strued th~ ~otion as a petition for review of Judge Bcrgstroril'':S

dec~ton, and ult1111ately demed the petition as untimely. Complainant appealed the ARB's

decmon to the U.S. Court of Appeals for the 11 111 Circuit; that Court affirmed the ARB's

dismissal of his appeal on July 11, 2018. By order dated September 10, 2018, the Court of

Appeals denied Mr. Browu's motion for reconsideration of its decision affinning the ARB. Mr.

Brown thereafter filed the motion that is before me now.

Discussion

Mr. Brown brings his motion under Rule 60(d)(3)2 of the Federal Rules of Civil

Procedure. That rule provides that it "does not limit a court's power to ... set aside a judgment

for fraud on the court." He argues that Judge Bergstrom misrepresented and misconstrued the

facts, and misapplied the-law, in granting summary decision to Synovus.

The proper procedure to challenge a ruling of an administrative law judge in a SOX

proceeding is to petition the ARB for a review of that ruling. As Judge Bergstrom advised Mr.

Brown in the December 2016 Decision and O<der:

To appeal, you must file a Petition for Review ("Petition") with the

Administrative Review Board (''Board") within fourteen (14) days of the date of

issuance of the administrative law judge's decision.

This Mr. Brown did not do. He filed nothing with the ARB for several months, and when he did,

it was not a petition for review. The ARB nevertheless chose to construe it as a petition for

review, and denied it as lliltimely, noting that not only did Mr. Brown fail to file it within 14 days

cifthe Decision and Ordllf, he failed to file it within 14 days of becoming aware that his previous

a.ttomey had not filed it either. By failing to file a timely petition for review, Mr. Brown forfeited

his right to have Judge Bergstrom's De.cision and Ordllf examined for factual and legal

corTectness. Having chosen to sit on his rights, he cannot now re-litigate his case.

.. Mr. Brown poinrs out that there is no dine limit"fcir tiringmgaRiile 60(d)(3)'motion; imif

that is true. ' Had he discovered for the first time, almost three years after the Decision and

Order, that there bad been fraud, he might be able· to bring such a motion. But in this case, Mr.

£1rown bases his entire argument on evidence that was known to him before December of 2016,

and on statements and analysis by Judge Bergstrom that became known to him in that month.

This is clearly an attempt to re-arille his case, and not a demonstration of any type of fraud, and

h: is precisely the type of argument that :!hould have been made on appeal to the ARB.

---------' Complainant styles U as a

motion undor Rule 60(d)(l)(3), but there is no such rulo. Given his focus on the notion

of"thuid upon the courtt l conclude that the moti\,n is brought under Rule 60(d)(3).

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' raesume for the sake of this Order that Ruic 60(d)(3) is applicable to administrative hearings in the Department of

Labor, al!houpi that is far from clear.

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Fina.lly, I note that Mr. Brown has not alleged any fraud on the AU, .but has alleged fraud

by the ALJ. The case law he cites, as well as that cited by Respondent, establishes the

proposition that Rule 60(d)(3) is implicated when there-has been egregious misccmduct by a

party in the case, not by the court itself. For example, the Eleventh Circuit has held that "only the

most egregious misconduct, such as bribery ofajudge or members of a jury, or the fabrication of

evidence by a party in which an attorney is implicated, will constitute a fraud on the court."

Gupta v, Walt Disney World Co., 482 F. App'x 458, 459 (11th Cir. 2012); Rozier v. Ford Motor

Co., 573 F.2d 1332, .1338 (5th Cir. 1978), Even assuming that Judge Bergstrom improperly

found the factli and misapplied the law, his actions (a) are not fraudulent, (b) even if deemed

fraudulent, do not rise to the level of fraud required for Rule 60(d)(3) relief, and (c) clearly are

not a fraud on the court.

ORDER.

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For the foregoing reasons, IT IS ORDEREb that Complainant Michael B. Brown's Rule

60(d)(3) motion is DENIED.

SO ORDERED .

•

PAUL C. JOHNSON, JR.

District Chief Administrative Law Judge

PCJ, Jr./ksw

Newport News, Virginia

NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for Review ("Petition")

with the Administrative Review Board ("Board") within fourteen (14) days of the date of

issuance of the ·administrative law judge's decision, The Board's address is: Administrative

Review Board, .U.S. Dmpartment -of Labor, Suite S-5220, 200 Constitution Avenue, NW,

Washington DC 20210, for traditional paper filing. Alternatively, the Board offers an Elecu-onic

File and Service Request (EFSR) system. The EFSR for electronic filing (eFile) permits the

rubmission of forms and documents to the Board through the Internet instead of using postal

mail and fax. The EFSR portal allows parties to file new appeals eloctronically, receive

~lectronic service of Board issuances, file briefs and motions electronically, and check the status

1Jf existing appeals via a web-based interface accessible 24 hours every day. No paper copies

need be filed,

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An e-Filer must register as a user, by filing an online registration form. To register, the e-Filer

must have a valid e-mail address. The Board must validate thee-Filer before he or she may file

uny e-Filed document. After the Board has accepted an e-Filing, it is handl_ed just as it would be

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had it belln filed in a more traditional manner. e-Filers will also have access to electronic service

(eService), which is simply a way to receive documents, issued by th~ Board, through the

Internet instead of mailing paper notices/documents.

Information regarding registration for access to the EFSR system, as well as a step by step user

guide and FAQs can be found at; https://dol-appeals.entellitrak.com. If you have any questions or

comments, please contact: Boards-EFSR-Help@dol.gov

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Your Petition is considered filed on the date of its postmark, facsimile transmittal, ore-filing; but

if you file it in person, by hand-delivery or other means, it is filed when th,:; Board receives it.

See 29 C.F.R. § 1980.l lO(a). Your Petition should identify the legal conclusions or orders to

which YoU object. You may be found to have waived any objections you do not raise specifically.

See 29 C.F.R. § 1980.l lO(a).

When you file the Petition with the Boar4, you must serve it on all parties as well as the Chief

Administn,tive Law Judge, U.S. Department of Labor, Office of Administrative Law Judge•, 800

K Street, NW, Suite 400-North, Washington, DC 20001-8002. You must also serve the Assistant

Secretary, Occupational ·Safety and Health Administration and on the Associate Solicitor,

Division of Fair Labor Standards, U.S. Department of Labor. See 29 C.F.R. § 1980.l I0(a).

If filing paper copies, you must file an original and four copies of the petition for review with the

Board, together with one copy of this decision. In addition, within 30 calendar days of filing the

petition for review you must file with the Board an original and four copies of a supporting legal

brief of points and authorities, not to exceed thirty double-spaced typed pages, and you may file

an appendix (one copy only) consisting of relevant excerpts of the record of the proceedings

from which the appeal is taken, upon which you J"ely in support of your petition for review. If

you e-File your petition and opening brie:t; only one c<:ipy need be uploaded.

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Ally response in opposition to a petition for review must be filed with the Board within 30

calendar days from the date of filing of the petitioning party's supporting legal brief of points

and authorities. Toe response in opposition to the petition for revi,;,w must include an original

and four copies of the responding party's legal brief of points and authorities in opposition to the

petition, not to exceed thirty double-spaced typed pages, and may include an appendix (one copy

only) consisting of relevant excerpts of the record of the proceedings from which appeal has

been taken, upon which -the responding party relies. If you e-File yoi.tr responsive briet; only on~

copy need be uploaded.

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Upon receipt of a legal brief filed in opposition to a petition for review, the petitioning party may

file a reply brief (original and four copies), uot to exceed ten double-spaced typed pages, within

such time period as may be ordered by the Board. If you e-File your reply brief; only one copy

need be uploaded.

If no Petition is timely filed, the administrative law judge':. deci:.iou becomes the final order of

the Secretary of Labor pursuant to 29 C.F.R. §§ 1980.109(e) and 1980.ll0(b). Even ifa Petition

is timely filed, the administrative law judge's decision becomes the final order of the Secretary of

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Labor unless the Board issues an order within thirty (30) days of the dat" the Petition is filed

notifying the parties tha! it has accepted the Casi\ for review. See 29 C.F.R. § 1980.l!0(b).

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