# U.S. Department of Labor

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A3d5c869fddb4ca1a

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

IN THE MATTER OF:
HANNAH FURLONG-NEWBERRY,
COMPLAINANT,
v.

ARB CASE NO. 2022-0017
ALJ CASE NO. 2019-TSC-00001
DATE: November 9, 2022

EXOTIC METALS FORMING
COMPANY, LLC,
RESPONDENT.
Appearances:
For the Complainant:
Mary Schultz, Esq.; Mary Schultz Law, P.S.; Spangle, Washington
For the Respondent:
Erik M. Laiho, Esq. and Christopher L. Hilgenfeld, Esq.; Davis Grimm
Payne & Marra; Seattle, Washington
Before HARTHILL, Chief Administrative Appeals Judge, and GODEK and
PUST, Administrative Appeal Judges
DECISION AND ORDER AFFIRMING IN PART AND
VACATING AND REMANDING IN PART
PUST, Administrative Appeals Judge:
Hannah Furlong-Newberry (Complainant) filed a complaint with the
Department of Labor’s Occupational Safety and Health Administration (OSHA) on
or about October 10, 2018. Complainant alleged that her former employer, Exotic
Metals Forming Company, LCC (Respondent)1 terminated her employment because
Exotic Metals Forming Company, LLC was acquired by Parker Hannifin
Corporation (Parker) on September 16, 2019, and is currently operated as a standalone
1

2
she engaged in activity protected by the Toxic Substance Control Act of 1986 and its
implementing regulations (TSCA).2 After a formal hearing, on December 6, 2021, an
Administrative Law Judge (ALJ) issued two orders: (1) a Decision and Order
Denying Complaint (D. & O.); and (2) an Order Closing Case and Sealing Decision
and Order (Order Sealing D. & O.). In the Order Sealing D. & O., the ALJ sealed
the D. & O. from public access, noting that it “contains and relies on ‘technical data’
within the meaning of 22 C.F.R. of 22 C.F.R. Part 120 of the International Traffic in
Arms Regulations (ITAR)” and that “[a]ttempting to adequately redact the full
(D. & O.) runs an unacceptable risk of an unauthorized disclosure.”3
On December 16, 2021, Complainant petitioned the Administrative Review Board
(Board or ARB) for review of both the D. & O. and the Order Sealing D. & O., plus a
Protective Order issued on February 12, 2020 and two related orders giving rise to
and amending the Protective Order.4 For the reasons discussed below, we affirm the
D. & O. on the merits, vacate the Order Sealing D. & O. and continue to hold in
effect the Protective Order pending our remand to the ALJ for further proceedings
consistent with decision in this matter.5

division of Parker. See Parker’s public website, accessed October 14, 2019, at Parker
Hannifin Completes Acquisition of Exotic Metals.
2

15 U.S.C. § 2622 and 29 C.F.R. Part 24 (2022).

Order Sealing D. & O. at 1.
Complainant’s Petition for Review identified the following additional orders as
subjects of her appeal: Order Granting in Part and Denying in Part Motion for Protective
Order and Order Modifying Protective Order and Minutes of Conference Call.
3
4

The Board recognizes that the Order Sealing D. & O. directs the parties to maintain
the terms of the D. & O. as confidential under the Protective Order. The Board is not bound
by the terms of the ALJ’s Order Sealing D. & O. See West v. Bell Helicopter Textron, Inc.,
2014 WL 12908077, at *4 n.1 (D.N.H. Sept. 30, 2014) (quoting 32 C.F.R. § 250.5(h)(4).):
5

[ITAR] regulations place restrictions on the export of certain
data. They do not classify that data or otherwise restrict its
public disclosures, at least by those who are not subject to the
regulations—such as this court—and, indeed, ITAR specifically
allows the disclosure of protected data ‘as may be required by
[law or] court order.
However, given the ALJ’s conclusion that his D. & O. contains information protected
by ITAR, in this Decision and Order the Board will only cite to non-technical, factual,
publicly available information in the D. & O. as necessary to transparently address the
legal issues currently before it in this matter.

3
BACKGROUND
During the relevant timeframe, Respondent operated two sheet metal
assembly facilities, one located in Kent, Washington, and the other in Airway
Heights, Washington.6 Complainant worked for Respondent in the Airway Heights
facility as a Senior Project Manager from May 2016 until her termination from
employment in September 2018.7 She reported to Chris Schoenwald (Schoenwald),
the Airway Heights Site Manager. Complainant received positive performance
reviews from Schoenwald.8
Complainant’s Earlier Compliance Reports
From March to August 2018, Complainant made multiple reports regarding
safety issues relating to the Maintenance Department’s work at the Airway Heights
facility, including reports about the inventory management system, mislabeled
paint, and barrel-sealing issues.9 Her May 23, 2018 report of the labeling and the
barrel-sealing issues resulted in a verbal confrontation with Gene Raczykowski
(Raczykowski), the Maintenance Department Supervisor at Airway Heights.10 Upon
being notified of the confrontation, the Director of Human Resources, Jennifer
McMasters (McMasters), directed the Human Resources Manager, John Cvitanich
(Cvitanich), to investigate the matter, which he did.11 The investigation resulted in
coaching of Raczykowski regarding productive workplace communication and no
action with respect to Complainant.12
Complainant’s Involvement in the IPP Project
Sometime in mid-2018, Respondent decided to transfer two projects, the
“IPP” project and the “APU” project,13 from its Kent facility to its Airway Heights
facility.14 The IPP project involved the transfer of Respondent’s production line,
which Respondent produced via a subcontract with another party as part of that

6

D. &. O. at 5.

7

Id. at 4-5.

8

Id. at 6.

9

Id. at 4, 6-10.

10

Id. at 7-8.

11

Id. at 8-9.

12

Id. at 9.

13

What the acronyms stood for was not disclosed in the admitted record.

14

D. & O. at 4.

4
entity’s larger Department of Defense contract.15 The parts that Respondent
produced for its contract partner were required to be coated with a specified paint.16
After deciding to transfer a project, Respondent generally creates a
communication plan describing the transfer’s rollout schedule to prevent
miscommunication amidst its employees.17 Respondent enforces the confidentiality
of its communication plans during the early phases of a project transfer to ensure
the timing and sequence of the rollout and to prevent workers’ concerns about a
project’s potential for future negative effects on the labor force.18 In Respondent’s
communication plans, the sequence of steps is more important than the exact
timing initially forecast for any specific step.19
Ernie Antin (Antin), Respondent’s Director of Manufacturing, created the
communication plans for both the IPP and APU project transfers.20 The
communication plan for the IPP project (IPP Communication Plan) consisted of an
Excel spreadsheet within which each row addressed a different step of the planned
communications roll-out.21 The phrase “KEEP CONFIDENTIAL” appeared
throughout the IPP Communication Plan at each step when additional people were
to be informed about the project transfer. The directive to “KEEP CONFIDENTIAL”
ceased to appear after the entry for September 6, 2018, at 9:30 a.m., when the IPP
project transfer was to be publicly announced.22 On August 28, 2018, Antin emailed
the IPP Communication Plan to various individuals managing the transfer rollout,
not including Complainant.23 On September 4, 2018, Antin emailed the same
individuals24 and advised them to keep the details of the IPP Communication Plan
confidential until 9:30 a.m. on Thursday September 6, 2018, the date and time
scheduled for “the broader team [to receive] communication.”25

15

Id. at 16-17; PX 43A.

16

D. & O. at 30, 36.

17

Id. at 10.

18

Id.

19

Id.

20

Id. at 7, 10.

21

Id at 10.

22

Id.

23

Id. at 11.

24

One additional person was added to the email chain; Complainant was not included.

PX 43.
25

D. & O. at 11.

5
Schoenwald decided that Complainant should be assigned to manage the IPP
project transfer.26 He did so, in part, because of her background on military projects
and her attention to detail.27
On the morning of Wednesday, September 5, 2018, Schoenwald, Antin, and
Chief Operations Officer Doug Gines (Gines) met with Complainant and Darrin
Moir (Moir), Complainant’s co-worker, at Airway Heights.28 During this meeting,
Complainant was assigned to be the project manager for the IPP project transfer,
and Moir was assigned as the project manager for the APU project transfer.29
Complainant asked what IPP stood for but no one at the meeting knew.30
Throughout the meeting, Antin, Gines, and Schoenwald repeatedly stressed that
Complainant and Moir were to keep the transfers confidential as set out in the
communication plans; Complainant nodded in acknowledgement of her
understanding of that directive.31
Complainant’s Conversations with Olsen and Others
On Thursday, September 6, 2018, at approximately 6:30 or 7:00 a.m.,
Complainant called Doug Olsen (Olsen), a Project Manager at the Kent facility
whom she knew from other projects.32 During the call, Complainant asked Olsen
what “IPP” stood for and was told he did not know.33
After his phone conversation with Complainant, Olsen went to speak to his
supervisor, Ed Schatz (Schatz), Director of Capital Assets.34 Olsen told Schatz that
he had learned about the project transfers from Complainant, and Schatz confirmed
that the transfers were occurring.35 Schatz reviewed the IPP Communication Plan

26

Id.

27

Id.

28

Id.

29

Id.

30

Id.

31

Id.

32

Id. at 11-12.

Id. at 11. At the hearing, Complainant testified that she had not told Olsen about
the transfers of the IPP and APU projects during the call, while Olsen testified that
Complainant did tell him about the IPP and APU project transfers during this phone
conversation. Id.
33

34

Id. at 12.

35

Id.

6
with Olsen, noting that Olsen should not have learned about the project transfer
until later that day at a scheduled meeting of the Asset Management Team.36
During the same timeframe, Complainant told Moir about her conversation
with Olsen.37 Moir told Complainant to call Olsen back and tell him to keep the
contents of the first conversation confidential.38 Within an hour of this conversation
with Complainant, Moir called Olsen himself and told Olsen that what Complainant
had told him was and should be kept confidential.39
After speaking with Moir, Complainant called Olsen a second time and asked
him to keep their first phone conservation confidential.40 Olsen agreed to do so but
did not tell her that he had already spoken to Schatz and to Moir.41
Management Learns About Complainant’s Breach of Confidentiality
Within three hours of the first call from Complainant to Olsen on September
6, 2018, Antin, Schatz, Gines, and Schoenwald engaged in multiple communications
regarding the matter. At 9:52 a.m., Schatz emailed Antin, copying Gines and
advising that Complainant had told Olsen about the IPP project transfer and that
Schatz would have preferred for Olsen to hear about it from him.42 One minute later
Gines responded, advising that he wanted to discuss the matter further and
possibly discuss it with Schoenwald, Complainant’s supervisor.43 At 10:16 a.m.,
Antin forwarded Schatz’s 9:52 a.m. email to Schoenwald asking for his thoughts on
the matter.44
Sometime before 11:43 a.m., Schoenwald approached Complainant and asked
her about her phone conversation with Olsen.45 Complainant acknowledged that
they had talked about projects but denied that she specifically told Olsen about the

36

Id. at 12-13.

37

Id. at 12.

38

Id.

39

Id.

40

Id.

41

Id.

42

Id. at 13.

43

Id.

44

Id.

45

Id.

7
IPP or APU project transfers.46 Complainant did not inform Schoenwald about her
second phone conversation with Olsen.47
At 11:43 a.m., Schoenwald emailed Antin stating that he had spoken to
Complainant and the situation with Olsen had been a miscommunication.48
Schoenwald stated that Complainant spoke to Olsen about projects in general but
not specific to the IPP and APU transfers.49 Schoenwald explained that
Complainant knew that the IPP project transfer was confidential until the full
execution of the IPP Communication Plan.50
Sometime after the late afternoon of September 6, 2018, and before 6:58 a.m.
on September 7, 2018, Schatz had a second conversation with Olsen.51 Olsen told
Schatz about his second phone conservation with Complainant during which she
had asked Olsen to keep their first phone conversation confidential.52
On Friday September 7, 2018, at 6:29 a.m., Complainant sent a message to
Cvitanich, Raczykowski and other IPP team members, copying Moir and Olsen,
advising them that she knew about the IPP project transfer and was planning to
travel to Kent later that month.53 At 6:40 a.m., Complainant emailed Schoenwald
and copied Moir, indicating that she had contacted other individuals to inform them
that they could share information about the transfer of the IPP project.54 Moir also
emailed the group advising that he was planning a trip to Kent for the APU
project.55 At 10:59 a.m., Schoenwald responded via email to Complainant and Moir,
telling them both that they should readjust their expectations about travel relative
to the next steps of the communication plans because he wanted to give people time
to understand how the transfer would move forward. He attached a highlighted
copy of the IPP Communication Plan.56 In his email, Schoenwald told Complainant
and Moir that he felt they were “storming the gates,” asked them to pause and

46

Id.

47

Id.

48

Id.

49

Id.

50

Id.

51

Id. at 14.

52

Id.

53

Id.

54

Id.

55

Id.

56

Id. at 15.

8
regroup on the matter and to schedule a meeting for the following Monday.57 Two
minutes later, Complainant responded by scheduling a meeting and asking if she
could move forward with making reservations for travel because the Kent
stakeholders were available the week of September 17, 2018.58
At 6:58 a.m. on September 7, 2018, Schatz emailed Schoenwald, documenting
what he had been told about Olsen’s conversations with Complainant, including
their second phone conversation and Moir’s phone call to Olsen.59 Schatz felt
confident that Olsen’s description of events was accurate because Olsen knew
specific information about the IPU and APU projects that was not public at the
time.60 At 9:30 a.m., Schoenwald emailed Schatz stating that he was unaware of
Complainant’s second phone conversation with Olsen or Moir’s phone call to Olsen,
adding, “I got this.”61 At 2:26 p.m., Schatz forwarded Schoenwald’s email to Antin
and Gines.62
Before 12:00 p.m. on September 7, 2018, Schoenwald met with Complainant
and advised her that he knew that Olsen found out about the project transfers
before the public announcement and that Olsen could not have known about them
unless he had heard the news from Complainant or someone else in Kent.63
Complainant denied speaking to anyone about the IPP project transfer until
September 7, 2018.64 Schoenwald told Complainant that her version of events was
inconsistent with what Olsen had known about the project transfers, and
Complainant reiterated that she had not told Olsen specifics about the project
transfers.65 Complainant did not tell Schoenwald about her second phone call to
Olsen.66

57

Id.

58

Id.

59

Id. at 14.

60

Id.

61

Id. at 15.

62

Id.

63

Id. at 15-16.

64

Id. at 16.

65

Id.

66

Id.

9
Communications About Paint Availability
On Friday, September 7, 2018, Complainant learned about a paint
availability issue relating to the IPP project.67 At 10:58 a.m., Robby Robinson
(Robinson), a member of the Kent IPP project team, emailed the minutes of the
Kent team’s weekly IPP status meeting to Complainant, which indicated that
Respondent’s paint supplier had estimated that the supply of the paint required for
the IPP project was only available through October of 2018.68 The status report also
indicated Respondent’s employees were working with their contract partner to
identify and test other paint options, and that testing was expected to be completed
within a month.69 At 1:22 p.m., Complainant forwarded Robinson’s email and status
report to Schoenwald.70 At 2:36 p.m., Complainant sent an email, copying
Schoenwald and stating that she believed the paint used on the project was being
discontinued by the manufacturer because the paint was under a state ban.71
Complainant also stated that the Kent team was working with the contract partner
to find a new source for the paint and that there would be enough paint to last
through October 2018.72
At 1:14 p.m. on Monday, September 10, 2018, Complainant emailed the IPP
team members her draft Statement of Work (SoW) for the IPP project transfer. 73 In
the SoW, Complainant listed risks associated with the IPP project transfer,
including a need to identify a new source for paint—referencing the issue that the
Kent team had already identified.74 From September 11 to September 13, 2018,
Complainant worked on a draft IPP Project Proposal, which she emailed to
Schoenwald for review on September 13.75 Complainant’s draft Project Proposal
reported that there was enough IPP project paint to last through October of 2018,
but that the paint’s manufacture was discontinued.76

67

Id.

68

Id.

69

Id.

70

Id. at 16.

71

Id. at 16-17.

72

Id.

73

Id. at 19.

Id. Complainant’s SoW listed “[h]aving a new source for paint” as a risk associated
with the IPP project transfer, not that the paint was banned. Id.; PX 301a.
74

75

D. & O. at 19.

76

Id.

10
Human Resources (HR) Investigation
In the context of the flurry of communications relaying different versions of
relevant facts, at 3:00 p.m. on September 6, 2018, Antin emailed Schoenwald and
Schatz, copying Gines and directing Schoenwald and Schatz to compare notes to
ensure “clarity, truthfulness, and effectiveness of communication” within the Project
Management team.77 On either September 6 or 7, 2018, Schoenwald had a phone
conversation with Antin and Gines, advising that Complainant had denied telling
Olsen that the IPP project was being transferred.78 Antin directed Schoenwald to
engage HR staff to make sure Complainant understood Schoenwald’s question.79
Schoenwald also informed Cvitanich that he had been told that Complainant had
informed Olsen of both the IPP and APU project transfers out of sequence with the
communication plans, but that Complainant had denied doing so.80
On Friday, September 7, 2018, Cvitanich facilitated an HR investigation by
looping in McMasters.81 McMasters assigned Dawn Finlayson (Finlayson), part of
Respondent’s HR staff, to interview Olsen and determine whether Complainant had
asked or told Olsen about the project transfers.82 Finlayson met with Olsen in the
early afternoon on September 7, 2018.83 Olsen relayed to Finlayson that
Complainant had mentioned the IPP and APU project transfers to him and that,
when Olsen denied knowing about the project moves, Complainant asked him
specifically about the IPP project.84 Olsen also informed Finlayson about his
conversation with Schatz, Moir’s phone call to Olsen, and Olsen’s second phone
conversation with Complainant.85
At 8:09 a.m. on Monday, September 10, 2018, Finlayson emailed Cvitanich
the typed notes from her investigative conversations with Olsen.86 At 9:04 a.m.,
Cvitanich forwarded the notes to McMasters and Antin, copied Schoenwald, and
proposed a phone conversation.87 Both McMasters and Antin forwarded the email
77

D. & O. at 13; PX 331.

78

D. & O. at 14.

79

Id.

80

Id.

81

Id.

82

Id. at 16.

83

Id. at 17.

84

Id.

85

Id.

86

Id.

87

Id.

11
chain to Gines, and Gines subsequently emailed McMasters, stating that he had
concerns he wanted to discuss with her.88
At 10:04 a.m., Cvitanich emailed himself notes he had taken of his
conversation with Schoenwald a few minutes earlier during which Schoenwald had
stated that Complainant had denied mentioning the transfer to Olsen in his first
conversation with her.89 Cvitanich wrote that during Schoenwald’s second
conversation with Complainant, on September 7, 2018, Schoenwald told her that he
had gotten more information about her communications with Olsen, that Olsen
knew about the project transfers before the announcement, and that Olsen would
not have learned about the transfers unless someone in Kent had told him about
them.90 Complainant again denied telling Olsen about the transfers.91 At 11:03
a.m., Cvitanich emailed himself his thoughts on disciplinary action against both
Complainant and Moir.92 Cvitanich believed Complainant’s employment should be
terminated because she violated confidentiality after being given specific direction
not to do so and she was not forthcoming or honest with Schoenwald about her
conversations with Olsen.93 Cvitanich also believed Moir should be given a
reprimand based on his poor judgment in telling Complainant to call Olsen back
and instruct him not to divulge the first call.94
Respondent’s Decision to Terminate Complainant’s Employment
After a senior staff meeting that ended at approximately 11:30 a.m. on
Monday, September 10, 2018, Antin, Gines, Schoenwald, Cvitanich and McMasters
met and discussed Complainant’s breach of confidentiality that occurred during her
phone calls to Olsen, Complainant’s conversations with Schoenwald, Finlayson’s
interviews with Olsen, and the question of appropriate discipline.95 They did not
discuss Complainant’s IPP project paint reports or her earlier environmental or
safety reports.96 As Complainant’s supervisor, Schoenwald was responsible for
deciding how to discipline Complainant; he recommended termination because he

88

Id.

89

Id.

90

Id. at 18.

91

Id.

92

Id.

93

Id.

94

Id.

95

Id.

96

Id.

12
no longer felt that he could rely on Complainant to be truthful.97 Antin and Gines
indicated they would support Schoenwald’s recommendation, and Cvitanich and
McMasters discussed past instances when Respondent had terminated employees
for similar acts of dishonesty.98 All those in attendance unanimously agreed that
termination was appropriate and that Respondent would move forward to terminate
Complainant’s employment.99
No one at the meeting discussed limiting or stopping Complainant’s access to
confidential information or locking her computer before the termination of her
employment.100 Respondent did not tell Complainant to stop working on the IPP
project transfer.101 Complainant was allowed to continue her work without
knowledge of her pending termination while Respondent’s HR team processed the
action and considered severance payment options.102
At the end of Complainant’s shift at approximately 2:30 p.m. on Friday,
September 14, 2018, Schoenwald asked Complainant to come to his office.103 Once
there, Schoenwald terminated Complainant’s employment.104
Subsequently, Moir took over as Project Manager of the IPP project
transfer.105 Moir submitted an updated Statement of Work for the IPP project,
which made no mention of the potential unavailability of the required paint.106
Complainant Challenges Her Termination
On or about October 10, 2018, Complainant filed two complaints with OSHA,
alleging that Respondent unlawfully retaliated against her for engaging in activity
protected under the TSCA and under Section 11(c) of the Occupational Safety and
Health Act (“OSH Act”) when it terminated her employment.107 Complainant
contends that Respondent was motivated to terminate her employment because of
97

Id. at 18-19.

98

Id. at 19.

99

Id.

100

Id. at 20.

101

Id.

102

Id. at 19-20.

103

Id. at 19.

104

Id.

105

Id. at 21.

106

Id.

107

Id. at 2.

13
Respondent’s concerns about her raising issues related to the IPP paint prior to a
scheduled Defense Contract Management Agency (DCMA) audit.108
Later, Complainant asked OSHA to terminate its investigation of her TSCA
claim so that she could pursue the claim before the Office of Administrative Law
Judges.109 On January 14, 2019, OSHA issued a final determination letter
dismissing the TSCA claim and postponing investigation of the OSH Act claim.110
Following OSHA’s dismissal of her claims of unlawful termination, Complainant
timely requested a hearing before an ALJ.111 The matter was assigned to an ALJ on
March 4, 2019112 and later set for hearing on February 18, 2020.113
Proceedings Before the ALJ
In discovery, Complainant requested information from Respondent, including
copies of work-related email correspondence sent by Complainant to supervisors
and co-workers during her final week of employment in mid-September 2018.
Respondent’s formal written discovery responses stated that no responsive
documents had been identified, though discovery was ongoing.114 Respondent later
produced redacted copies of documents related to Complainant’s communications on
November 22, 2019.115
In anticipation of the close of the discovery period on November 29, 2019,116
the parties commenced discussions regarding the entry of a protective order in
October 2019.117 The parties exchanged draft orders into December 2019 but were
unable to agree on final language related to a restriction preventing Complainant’s

108

Id. at 46-47.

109

Id. at 2.

110

Id.

111

D. & O. at 2.

112

Id.

113

Id. at 3.

114

Complainant’s Objection to Entry of Protective Order, at 4-7 (Jan 2, 2020).

Declaration of Complainant’s Counsel filed in reference to Complainant’s Objection
to Protective Order, at 3-4 (Dec. 30, 2019).
115

Furlong-Newberry v. Exotic Metals Forming Co., LLC, ALJ No. 2019-TSC-00001
(ALJ Apr. 30, 2020) (Order Amending Briefing Schedule).
116

Furlong-Newberry v. Exotic Metals Forming Co., LLC, ALJ No. 2019-TSC-00001
(ALJ Feb. 10, 2020) (Order Granting in Part and Denying in Part Motion for Protective
Order).
117

14
use of provided documents to file and/or prosecute future claims against
Respondent.118
In conference calls held on both December 16, and 23, 2019, Respondent
represented to the ALJ that materials withheld from discovery contained
information protected by the International Traffic in Arms Regulations (ITAR), 22
C.F.R. §§ 120-30, issued under the Arms Export Control Act, 22 U.S.C. § 2278.119
Without viewing or examining any specific information for which the protections
were claimed120 but upon motion brought by Respondent and opposed by
Complainant, the ALJ issued an Order Granting in Part and Denying in Part
Motion for Protective Order on February 10, 2020, adopting in part protective
procedures identified in Burt v. AVCO Corp.121
On February 12, 2020, the ALJ issued a Protective Order defining as
“Confidential Material” any newly produced unclassified materials and “technical
data,” within the meaning of 22 C.F.R. Part 120 of the ITAR, as well as excerpts or
compilations of Confidential Material or testimony that might reveal such.122 By its
terms, the Protective Order requires that the party designating newly produced
information as “Confidential Material” bears the burden of persuasion on any
motion challenging such designation, and that challenges are not time-barred.
Further, the Protective Order provides that no person can be provided access to
Confidential Material without signing an “End-User Agreement - Confidential U.S.
Person Acknowledgment and Agreement to be Bound” (End-User Agreement). The
ALJ ordered Respondent to produce, as soon as possible and no later than February
15, 2020, the material withheld from production in discovery. Respondent produced

118

Id.

Furlong-Newberry v. Exotic Metals Forming Co., LCC, ALJ No. 2019-TSC-00001,
slip op. at 2 (ALJ Feb. 14, 2020) (Order Modifying Protective Order and Minutes of
Conference Call).
119

120

Id. at n.1.

2015 WL 12912366 at *2 (C.D. Cal. Nov. 17, 2015) (The district court upheld the
magistrate judge’s discovery order which directed the parties, who were working together in
pursuit of a protective order, “to enter into an ‘end-user agreement’ whereby Plaintiffs’
counsel would sign an agreement acknowledging that certain documents are subject to
ITAR and that Plaintiffs’ counsel would be responsible for adhering to ITAR when
disseminating the technical information to any third parties, namely, non-testifying expert
consultants.”).
121

Furlong-Newberry v. Exotic Metals Forming Co., LCC, ALJ No. 2019-TSC-00001,
slip op. at 1-2 (ALJ Feb. 12, 2020) (Protective Order). Because the ALJ determined that no
classified material, “defense articles” or “defense services” were implicated in the matter,
these categories of protected information were not addressed in the Protective Order. Id.
122

15
56 new pages of unredacted documents marked as Confidential Material, within a
larger production containing hundreds of documents.123
Complainant then requested a modification to the Protective Order to allow
for electronic transmission of confidential material, which the Protective Order
barred. Complainant also moved for a hearing continuance and requested sanctions
for late discovery production. On February 14, 2020, the ALJ issued an Order
Modifying Protective Order allowing electronic transmission of the newly produced
documents and denying Complainant’s motion for a continuance. The ALJ also
ordered Respondent to produce an index of the newly produced documents, noting
the discovery request to which they are responsive. The ALJ found that allowing
electronic transmission and requiring an index of the 56 new pages ameliorated any
prejudice from the production occurring less than a week prior to the formal
hearing.
A hearing was held in the matter from February 19 to 21 and February 2425, 2020. During the hearing, the ALJ admitted the following seven exhibits
designated as confidential and sealed under the Protective Order pursuant to ITAR:
PX 122b, 180b, 184b, 201a, 201b, 201c, and 206d.124
On December 6, 2021, the ALJ issued the D. & O. and the Order Sealing
D. & O. In the D. & O., the ALJ reviewed the record and explained the basis for his
conclusion that Complainant failed to show by a preponderance of the evidence that
any protected activity under the TSCA was a motivating factor in the termination of
her employment. In the Order Sealing D. & O., the ALJ noted that the full D. & O.
contained and relied on “technical data” protected under ITAR, though the ALJ did
not specify what “technical data” was included.125
Three of the seven exhibits designated as confidential are never cited in the
D. & O. The remaining four protected exhibits are cited between three and eight
times. In total, there are 19 instances on which a protected exhibit citation appears
in the 53-page, 31,006-word D. & O. Nevertheless, in the Order Sealing D. & O., the
ALJ found that “[a]ttempting to adequately redact the full Decision and Order runs
an unacceptable risk of an unauthorized disclosure” of technical data protected
under ITAR.126 As such, even the members of the Board were required to execute an

123

Order Modifying Protective Order and Minutes of Conference Call at 1-2.

124

D. & O. at 3.

Furlong-Newberry v. Exotic Metals Forming Co., LCC, ALJ No. 2019-TSC-00001,
slip op. at 1-2 (ALJ Dec. 6, 2021) (Order Closing Case and Sealing Decision and Order); see
22 C.F.R. § 120.10(a).
125

126

Order Sealing D. & O. at 2.

16
End-User Agreement in order to review the D. & O. and access the record below
upon which the D. & O. is based.127
Complainant timely appealed the ALJ’s identified decisions to the Board.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated to the ARB authority to review ALJ
decisions and issue agency decisions in cases arising under the Environmental Acts,
including the TSCA.128 The ARB reviews questions of law presented on appeal de
novo, but is bound by the ALJ’s factual determinations as long as they are
supported by substantial evidence.129 Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”130
The Board reviews an ALJ’s procedural rulings under an abuse of discretion
standard.131
DISCUSSION
Complainant raises the following issues on appeal: (1) whether the ALJ
applied the correct legal causation standard in environmental whistleblower cases;
(2) whether the ALJ’s finding that Complainant did not establish by a
preponderance of the evidence that her protected activity was a motivating factor in
her termination was supported by substantial evidence; (3) whether the ALJ abused
his discretion in his determinations on procedural issues; and (4) whether the ALJ
abused his discretion by sealing the D. & O. We discuss each issue below.

Upon any appeal of this matter following further proceedings required by this
Decision and Order, the Board will, if appropriate, address the legal authority relied upon
by the ALJ in requiring the Board’s assigned judges and staff to execute an End-User
Agreement in order to access the sealed D. & O.
127

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020); 29
C.F.R. § 24.110. The Environmental Acts include the TSCA, the Safe Drinking Water Act,
42 U.S.C. § 300j-9(i), the Federal Water Pollution Control Act, 33 U.S.C. § 1367, the Solid
Waste Disposal Act, 42 U.S.C. § 6971, the Clean Air Act, 42 U.S.C. § 7622, and the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. § 9610.
128

29 C.F.R. § 24.110(b); Evans v. U.S. Env’t Prot. Agency, ARB No. 2017-0008, ALJ No.
2008-CAA-00003, slip op. at 8 (ARB Mar. 17, 2020) (citing Kaufman v. U.S. Env’t Prot.
Agency, ARB No. 2010-0018, ALJ No. 2002-CAA-00022, slip op. at 2 (ARB Nov. 30, 2011)).
129

130

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938) (citations omitted).

Vander Boegh v. EnergySolutions, Inc., ARB No. 2015-0062, ALJ No. 2006-ERA00026, slip op. at 7 (ARB Feb. 24, 2017) (citation omitted).
131

17
1. The ALJ Applied the Correct Causation Standard
Complainant argues that the ALJ made a legal error by applying an incorrect
theory of causation.132 Initially, Complainant contends that under 22 C.F.R. §
24.109(b)(2) a whistleblower may show causation under a “mixed-motive” analysis,
with the determination to be made being whether any factor, alone or in connection
with other factors, tends to affect the outcome of the decision.133 Complainant
argues that once a whistleblower demonstrates the presence of an improper motive
in a mixed-motive case, the prima facie case of causation has been established.134 In
her Reply Brief, Complainant modifies her argument by conceding the applicability
of the standard of “motivating factor,” but continues to insist that the evidence she
presented regarding the paint availability issue135 sufficiently demonstrated the
presence of an improper motive and, therefore, she met her burden in establishing a
prima facie case of causation.136
In whistleblower cases under the Environmental Acts, including the TSCA, a
complainant must prove by a preponderance of the evidence that she (1) engaged in
protected activity, (2) suffered an adverse action, and (3) can show that the
protected activity was a motivating factor in the adverse action.137 A complainant
need only show that the protected activity was a motivating factor, not the
motivating factor.138 “A complainant must prove more when showing that protected
activity was a ‘motivating’ factor than when showing that such activity was a
‘contributing’ factor.”139 This approach is consistent with courts’ use of the
motivating factor standard in cases arising under analogous Environmental Acts.140
132

Complainant’s Opening Brief at 37.

133

Id.

134

Id.

Complainant frames her entire motivating factor argument around her protected
activity involving the paint availability issue. She does not argue before the Board that her
May 2018 reports of unlabeled material and barrel-sealing issues motivated Respondent’s
termination of her employment in any manner.
135

136

Id. at 41.

137

29 C.F.R. § 24.109(b)(2).

138

Id. (emphasis added).

See Lopez v. Serbaco, Inc., ARB No. 2004-0158, ALJ No. 2004-CAA-00005, slip op. at
4-5 n.6 (ARB Nov. 29, 2006).
139

See 29 C.F.R. § 24.109(b)(2) (applying the standard of “motivating factor” to the
whistleblower protection provisions of the Safe Water Drinking Act (42 U.S.C. § 300j-9(i)),
the Federal Water Pollution Control Act (33 U.S.C. § 1367), the Solid Waste Disposal Act
(42 U.S.C. § 6971), the Clean Air Act (42 U.S.C. § 7622), and the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9610)).
140

18
If a complainant meets her burden of proof, a respondent may nevertheless avoid
liability if it proves by a preponderance of the evidence that it would have taken the
same adverse action in the absence of the complainant’s protected activity.141
The ALJ correctly applied this legal standard, noting that “Complainant
must show by a preponderance of the evidence that her protected activity was a
motivating factor in Respondent’s adverse action.”142 After considering the
proximity in time between Complainant’s protected activities and her termination,
the structure of Respondent’s investigation, and other evidence of alleged animus,
the ALJ found “Complainant ha[d] the burden to prove that her protected activity
was a motivating factor in her termination by a preponderance of the evidence” but
had not done so.143 For the reasons discussed below, we hold that the ALJ properly
applied the correct legal standard in this case.
2. Complainant Failed to Establish Her Protected Activity Was a
Motivating Factor in her Termination
The ALJ determined that Complainant had met her burden to establish two
of the required three elements of her TSCA retaliation claim. The ALJ found that
Complainant engaged in activity protected under the TSCA when she reported the
unlabeled paint and the unsealed barrel issues in May of 2018 and when she
reported her concerns about the unavailability of the IPP project paint on
September 7, 2018.144 The ALJ also found that Complainant suffered an adverse
action when her employment was terminated.145 Complainant failed to present any
arguments on appeal connecting the termination of her employment to her
reporting of the labeling issue or the barrel-sealing issue in May of 2018, and
thereby waived any reliance on those findings as a basis for reversing the ALJ’s
ultimate causation determination.146 As such, our decision ultimately turns on
whether Complainant met her burden to establish that her reporting of the IPP
paint availability issue was a motivating factor in her termination.
Complainant only has to prove that her protected activity was a motivating
factor in the adverse action, even if other legitimate factors also motivated the
141

29 C.F.R. § 24.109(b)(2).

142

D. & O. at 42 (emphasis in original).

143

Id. at 53.

144

Id. at 39.

145

Id. at 41.

Clemmons v. Ameristar Airways, Inc., ARB No. 2008-0067, ALJ No. 2004-AIR-00011,
slip op. at 12 (ARB May 26, 2010) (citing Walker v. American Airlines, Inc., ARB No. 20050028, ALJ No. 2003-AIR-00017, slip op. at 9 (ARB Mar. 30, 2007) (argument not raised on
appeal is waived)); 29 C.F.R. § 24.110(a).
146

19
adverse action.147 A motivating factor is not established merely by evidence that
protected activity occurred and that an employee suffered adverse action.
Establishing that protected activity was a “motivating factor” requires proof, by a
preponderance of the evidence, that some nexus existed between the activity and
the adverse action.148 That nexus is missing if the protected activity takes place
after or is otherwise unconnected to the adverse action.149
Complainant contends that the ALJ erred in finding she did not establish
that her reporting of the paint availability issue was a motivating factor in her
termination.150 Having reviewed the evidentiary record as a whole, the Board
concludes that substantial evidence supports the ALJ’s findings, as addressed
below.
It is undisputed that Complainant engaged in protected activity at or about
the same time Respondent investigated her breach of confidentiality, and during
the time Respondent made the decision to terminate her employment. Complainant
relies almost exclusively on the temporal proximity between her protected activity
and her termination to establish her claim’s “motivating factor” element. Temporal
proximity alone is not necessarily sufficient. Although an inference of
discrimination may arise when an adverse action closely follows a protected
activity, an intervening event diminishes the inference.151 Here, the ALJ gave due
consideration to the proximity in time between Complainant’s protected activity and
her termination, but also took account of the intervening events surrounding
Complainant’s breach of confidentiality and her lack of truthfulness in advising the
management team about her actions. Although the intervening nature of these facts
may be less evident when described textually, when laid out in temporal order they
reveal substantial support for the ALJ’s conclusion that the only motivating factor
for Respondent’s decision to terminate Complainant’s employment was her breach
of confidentiality and associated dishonesty, discovered on September 6, 2018, and
147

See Lopez, ARB No. 2004-0158, slip op. at 6-8.

Beaumont v. Sam’s East, Inc., ARB No. 2015-0025, ALJ No. 2014-SWD-00001, slip
op. at 4 (ARB Jan. 12, 2017) (citing 29 C.F.R. § 24.109(b)(2) and Jenkins v. U.S. Env’t. Prot.
Agency, ARB No. 1998-0146, ALJ No. 1988-SWD-00002, slip op. at 17-18 (ARB Feb. 28,
2003)); see also Higgins v. Alyeska Pipeline Serv. Corp., ARB No. 2001-0022, ALJ No. 1999TSC-00005, slip op. at 5 (ARB June 27, 2003).
148

See Kesterson v. Y-12 Nuclear Weapons Plant, ARB No. 1996-0173, ALJ No. 1995CAA-00012, slip op. at 5 (ARB Apr. 8, 1997).
149

150

Complainant’s Opening Brief at 37, 41-42, 46.

See Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082,
slip op. at 6-13 (ARB Jan. 22, 2020) (Decision and Order of Remand) (analyzing temporal
proximity, inference of retaliation, intervening events, and proof by a preponderance of the
evidence).
151

21
The ALJ found credible Respondent’s witnesses’ testimony that the paint
availability issue was not considered during, and therefore played no role in, the
decision-making leading to Complainant’s termination of employment. The Board
defers to those credibility decisions,153 finding them to be consistent with the
objective facts also found by the ALJ, including that:
•
•
•
•

Through its Kent IPP team, Respondent was already aware of the
paint availability issue prior to Complainant’s learning of and
reporting it.154
It was not in Respondent’s self-interest to cover up or avoid the issue
given Respondent’s ongoing contractual relationship which required
Respondent to provide the ducts as specified and approved.155
Respondent had already identified the issue to their contract partner,
making it implausible that avoidance of sharing that information
motivated Respondent’s actions.156
The paint was not in fact unavailable and caused no problems for the
timely completion of the IPP project transfer.157

Based on these facts, the ALJ rejected Complainant’s unevidenced contention
that her termination was decided to avoid negative ramifications of the paint
availability issue in an upcoming DCMA audit at Respondent’s facilities.
Considering the substantial evidence of these facts as set forth in the record, the
ALJ found “Complainant ha[d] the burden to prove that her protected activity was a
motivating factor in her termination by a preponderance of the evidence” but failed
to meet that burden.158 We affirm that determination.159
The ARB generally defers to an ALJ’s credibility determinations unless they are
“‘inherently incredible or patently unreasonable.’” Kanj v. Viejas Band of Kumeyaay
Indians, ARB No. 2012-0002, ALJ No. 2006-WPC-00001, slip op. at 6 (ARB Aug. 29, 2012)
(quoting Caldwell v. EG&G Def. Materials, Inc., ARB No. 2005-0101, ALJ No. 2003-SDW00001, slip op. at 12 (ARB Oct. 31, 2008) (quotation omitted).
153

154

D. & O. at 46.

155

Id.

156

Id. at 46-47

157

Id. at 47.

158

D. & O. at 53.

Because Complainant did not meet her burden to establish that her protected
activity was a motivating factor for her termination, the ALJ was not required to reach the
issue of Respondent’s affirmative defense “that it would have taken the same adverse action
in the absence of the protected activity.” 29 C.F.R. § 24.109(b)(2). Noting that it was
unnecessary to reach the issue, the ALJ nevertheless addressed the issue and concluded
that he would have found that Respondent had established by a preponderance of the
159

22

3. The ALJ Did Not Abuse his Discretion in Evidentiary Rulings
The ARB reviews an ALJ’s determinations on procedural and evidentiary
rulings under an abuse of discretion standard.160 “ALJs have wide discretion to set
or limit the scope of discovery and will be reversed only when such evidentiary
and discovery rulings are arbitrary or an abuse of discretion.”161 To meet this
standard, at a minimum Complainant is required to identify “‘with some precision’”
the information she should have received and how that information would have
altered the evidence submitted at hearing.162 “Mere speculation” is insufficient.163
Complainant argues that the ALJ abused his discretion in denying her
request during the formal hearing for the production of additional documents.
Specifically, Complainant argues that the ALJ’s ruling denied her due process
because she did not have access to materials under the ALJ’s February 12
Protective Order until a week before the formal hearing commenced. She asserts
that this untimely production prevented her from investigating, developing,
organizing, or requesting more documents from Respondent relating to what had
just been revealed to her in the February 12 materials.164
Importantly, Complainant does not address the fact that she failed to bring a
motion to compel production during the discovery period but instead waited until
during the hearing to request such relief. The fact that the parties had been
negotiating regarding the issuance of a protective order at length after the close of
discovery is not a sufficient reason to find error in the ALJ’s ruling. Complainant
had an obligation to diligently seek the discovery she needed, and her failure to
earlier seek to compel production rebounds to her peril.
evidence that it would have terminated Complainant’s employment due to her breach of
confidentiality and lack of honesty, even if she had never engaged in protected conduct. See
D. & O., at 53 n.82. The Board concludes that substantial evidence supports the ALJ’s
determination that Respondent would have decided to terminate Complainant for her
confidentiality breach and her lack of truthfulness about the breach even if no protected
activity had taken place. The Board affirms that determination.
James v. Suburban Disposal, Inc., ARB No. 2010-0037, ALJ No. 2009-STA-00071,
slip op. at 4 (ARB Mar. 12, 2010).
160

Nieman v. Se. Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021, slip op.
at 21 (ARB Oct. 5, 2020).
161

See Bucalo v. United Parcel Serv., Inc., ARB No. 2010-0107, ALJ Nos. 2008-SOX00053, 2008-STA-00059, slip op. at 4 (ARB Mar. 21, 2012) (quoting Moore v. U.S. Dep’t of
Energy, ARB No. 1999-0047, ALJ No. 1998-CAA-00016, slip op. at 4 (ARB June 25, 2001)).
162

163

Nieman, ARB No. 2018-0058, slip op. at 21.

164

Complainant’s Opening Brief at 58-61.

23

Complainant has not established that the ALJ abused his discretion in
denying her motion to compel further production of documents during the hearing.
Thus, the Board finds no abuse of discretion in the ALJ’s rulings issued during the
hearing.
Even if Complainant had sought to compel production in a more diligent and
timely manner, it is not apparent that the result would have been different. The
only specific information that Complainant identifies as unprovided and necessary
to her case is the actual name of the IPP project paint. Given the ALJ’s
determination that Complainant’s reporting related to the paint issue was protected
activity but not a motivating factor for Respondent’s termination decision, and the
Board’s current affirmance of those determinations, it is difficult to envision that
the production of the paint’s formal name would have had any impact on the result
in this case. Complainant’s insistence to the contrary is the “mere speculation”
which is insufficient to establish an abuse of discretion by the ALJ.
Complainant also assigns as error the ALJ’s credibility determinations
related to “Respondent’s executives,” presumably including Gines, Antin, Schatz,
McMaster, Cvitanich, and Schoenwald. Because an ALJ observes all witnesses
throughout a hearing, the Board will uphold an ALJ’s credibility determinations
unless they are “inherently incredible or patently unreasonable.”165 If a “‘decision is
based on testimony that is coherent and plausible, not internally inconsistent, and
not contradicted by external evidence,’” the Board will defer to an ALJ’s credibility
determinations.166
In this case, the ALJ issued a thorough and well-reasoned D. & O. in which
he made and relied upon specific credibility determinations for each witness,
including Complainant and Respondent’s executives. We find these determinations
to be consistent with the record and well within the ALJ’s discretion to make. As
such, Complainant has failed to establish any abuse of discretion.

Mizusawa v. United Parcel Serv., ARB No. 2011-0009, ALJ No. 2010-AIR-00011, slip
op. at 3 (ARB June 15, 2012) (quoting Jeter v. Avior Tech. Ops., Inc., ARB No. 2006-0035,
ALJ No. 2004-AIR-00030, slip op. at 13 (ARB Feb. 29, 2008)); see also Negron v. Vieques Air
Link, Inc., ARB No. 2004-0021, ALJ No. 2003-AIR-00010, slip op. at 5 (ARB Dec. 30, 2004).
165

Jenkins v. U.S. Env’t Prot. Agency, ARB No. 2015-0046, ALJ No. 2011-CAA-00003,
slip op. at 39 (ARB Mar. 1, 2018) (quoting Bobreski v. J. Givoo Consultants, ARB No. 20130001, ALJ No. 2008-ERA-00003, slip op. at 26 (ARB Aug. 29, 2014)).
166

24
4. The ALJ Abused His Discretion in Sealing the Entire D. &. O. and
Issuing the Protective Order Without Sufficient Factual Record
In the Order Sealing D. & O., the ALJ sealed the D. & O. from public access,
noting that it “contains and relies on ‘technical data’ within the meaning of ITAR
and that “[a]ttempting to adequately redact the full (D. & O.) runs an unacceptable
risk of an unauthorized disclosure.”167 Relying on ITAR, the ALJ had issued the
Protective Order a week before the hearing commenced. For the reasons discussed
below, we remand to the ALJ for further proceedings.
A. ITAR
The Arms Export Control Act (AECA)168 “regulates the export and import (i.e.
disclosure or transfer) of “defense articles” and “defense services” (and any
“technical data” thereto) out of and into the United States.”169 The purpose of the
AECA is to “restrict the international market in defense articles by closely
controlling the flow of such articles out of this country.”170
ITAR, the implementing regulations for AECA, defines the United States
Munitions List (USML),171 made up of 21 categories of identified defense articles
and defense services which, with related “technical data,” require compliance with
specified licensing controls absent an authorized exception.172 ITAR specifically
defines “technical data” with respect to each of the 21 USML categories relying
upon the baseline definition of the term, as follows:
Information, other than software as defined in § 120.40(g),
which is required for the design, development, production,
manufacture, assembly, operation, repair, testing,
maintenance or modification of defense articles. This
includes information in the form of blueprints, drawing,
photographs, plans, instructions or documentation.[173]
167

Order Sealing D. & O. at 1.

168

22 U.S.C. § 2778; 22 C.F.R. §§ 120.6, 120.9(a)(2).

169

Burt, 2015 WL 12912366, at *2-3.

170

Kuhali v. Reno, 266 F.3d 93, 109 (2d Cir. 2001).

171

22 C.F.R. Part 121.

172

22 C.F.R. §§ 121.1; 123-125.

22 C.F.R. § 120.33(a)(1); see 22 U.S.C. § 2778(a)(1) (“The items so designated shall
constitute the United States Munitions List.”); 22 C.F.R. § 120.10(a) (“The articles . . . and
related technical data designated as defense articles . . . constitute the U.S. Munitions
List.”).
173

25

ITAR provides that any party that is appropriately licensed “is responsible for the
acts of employees, agents, brokers, and all authorized persons to whom possession
of the defense article, which includes technical data, has been entrusted regarding
the operation, use, possession, transportation, and handling of such defense article
abroad.”174 Being “responsible” under ITAR does not equate to being liable for
another party’s unauthorized disclosure in violation of the statute.175 ITAR requires
that a discloser maintain a list of persons to whom disclosure is made and that
those persons be United States citizens or of other identified status.176 For purposes
of the current matter, the Board concludes that Respondent is responsible for
complying with the terms of ITAR, which in turn makes it responsible for the
handling of any technical data entrusted to Complainant.177
Even so, the mere invocation of ITAR does not cloak all of Respondent’s
actions in secrecy. “[T]he purpose of ITAR is to further ‘world peace and security,’
not to permit parties to avoid their discovery duties.”178 Neither is the purpose of
ITAR to shield from the public’s view information that does not constitute protected
“technical data” or is already in the public domain.179 The ALJ relied on ITAR as
the basis for issuing both the Protective Order and the Order Sealing D. & O. Given
the overlap and interplay between the Protective Order and the ALJ’s Order
Sealing D. & O., the Board finds it necessary to address each separately in order to
clarify the factual record and legal authorities in this case.

174

Id. at § 127.1(c).

175

Burt, 2015 WL 12912366, at *3.

176

22 C.F.R. § 120.15.

While Respondent may be “responsible” for any unauthorized disclosure, that does
not equate to Respondent being “liable” for any of Complainant’s actions in violation of
ITAR. See Burt, 2015 WL 12912366, at *3.
177

178

Id. at *4.

See 22 C.F.R. § 120.33(b) (explaining that technical data “does not include
information concerning information . . . in the public domain” as defined in 22 C.F.R. §
120.34).
179

26
B. Order to Seal D. & O.
Unlike the standard required for issuance of a protective order, the law
requires much more to support the sealing of judicial records from public view. A
court must identify “compelling reasons supported by specific factual findings” in
order to outweigh the strong public policies favoring disclosure.180 “A party seeking
to seal judicial records must specify facts that causally connect the documents at
hand to sufficiently compelling reasons that justify overriding the strong
presumption favoring public access.”181 “The trial court must weigh relevant factors
including the “public interest in understanding the judicial process and whether
disclosure of the material could result in improper use of the material for
scandalous or libelous purposes or infringement upon trade secrets.”182 The fact that
a protective order has issued does not present sufficient compelling reasons to seal
the record.183
In the present case, the ALJ issued an Order Sealing D. & O. without
identifying or applying the compelling reasons standard. In the entirety of its
relevant parts, the Order Sealing D. & O. reads as follows:
The full Decision and Order contains and relies on
“technical data” within the meaning of 22 C.F.R. Part 120
of the International Traffic in Arms Regulations (ITAR).
The ITAR implement the Arms Export Control Act (AECA),
which contains disclosure-limiting provisions that are a
recognized exception to the Freedom of Information Act.
Council for a Livable World Educ. Fund v. U.S. Dep’t of
State, No. CV 96-1807 (HHK), 1998 WL 36034416, at *3-4
(D.D.C. Jan. 21, 1998) (discussing FOIA Exemption 3).
The technical data in this case was subjected to
special handling under a protective order I issued on
February 12, 2020 to limit its disclosure. See generally 22
Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir.2010) (quoting Kamakana
v. City & County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006)).
180

181

Tokarski v. Med-Data, Inc., 2022 WL 683250, at *1-2 (W.D. Wash. Mar. 8, 2022).

Pintos, 605 F.3d at 679 n.6 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th
Cir. 1995)).
182

See Chaney v. Auto Trackers & Recovery N., LLC, 2021 WL 6137298, at *1-2 (E.D.
Wash. Mar. 25, 2021) (“[T]he existence of a private Protective Order is not a compelling
reason to seal a document in the Court Record.”); Ponomarenko v. Shapiro, 2017 WL
3605226, at *3 (N.D. Cal. Aug. 21, 2017) (Where, as here, a protective order has been
entered, “an agreement among the parties to keep a document confidential does not
establish a compelling reason to seal.”)
183

27
C.F.R. Part 127; see also 22 C.F.R. § 125.2(c) (prohibiting
unlicensed transfer of unclassified technical data to a
“foreign person”). Attempting to adequately redact the full
Decision and Order runs an unacceptable risk of an
unauthorized disclosure. I therefore find that sealing the
full Decision and Order is the only adequate means to
protect the interest in non-disclosure and outweighs the
presumption of public access to the full Decision and Order.
See 29 C.F.R. § 18.85. I note that the public’s interest is at
least in part satisfied by disclosure of the ultimate result
in this case, as set out above.[184]
In effect, the ALJ’s only basis for issuing the Order Sealing D. & O. is the fact that
the Protective Order had been issued earlier based on ITAR-related concerns. That,
in and of itself, is not sufficient under the law.
Instead, like every other application of statutory authority, ITAR requires the
consideration of the components of the statute in light of the specific information at
issue in order to determine whether and where the bar to public transparency
should be set. ITAR’s multi-pronged test is best described in West v. Bell Helicopter
Textron, Inc.,185 which examined an attempt to seal trial exhibits on the basis that
the helicopter at issue in that product liability case contained technology restricted
from export under ITAR.
[ITAR] prevents the disclosure of only that technical data
which both ‘disclose[s] critical technology with military
and space application’ and appears on the Munitions List,
and the relevant provisions of the List cover only that data
which itself both ‘directly related to the manufacture and
production’ of certain ‘specifically designed’ components of
the [helicopter] and ‘required for the design, development,
production, manufacture, assembly, operation, repair,
testing, maintenance, or modification’ of those articles.
Thus…, obtaining relief from the disclosure of
documents based on ITAR requires them to explain “how
each document (1) discloses critical technology with
military or space application, (2) directly relates to the
manufacture of specifically designed components of the
[helicopter], and (3) is required for the design,
development,
production,
manufacture,
assembly,
184

Order Sealing D. & O. at 1-2.

185

2014 WL 12908077 (D.N.H. Sept. 30, 2014).

28
operation, repair, testing, maintenance, or modification of
those components, all of which is necessary to bring a
document within the scope of [ITAR].[186]
The West court found that it was insufficient to conclude that, because one engine
model subjected to testing described in a specific exhibit was installed in a military
aircraft covered by ITAR, “[a]ny technical data related to the design, development,
production, manufacture, assembly, operation, repair [sic] of the Kiowa, its engine,
and its ECU is restricted under ITAR.”187 The court found that “[t]his assertion does
not match up to the requirements of ITAR, i.e., that the data “directly relate[ ] to
the manufacture of specifically designed components” of critical military technology
(rather than simply “relate” to components “installed in” military technology), nor
that the data be “required” for “the design, development, production, manufacture,
assembly, operation, repair, maintenance, or modification” of those articles (rather
than simply “related to” those tasks).188
As in West, nothing in the record before the Board establishes that the ALJ
applied the required legal standard for sealing the entire D. & O. Neither does the
factual record support the ALJ’s action. It is apparent that many of the facts set
forth in the D. & O., even many of the facts referenced in the seven specifically
identified exhibits designated as confidential, are not technical data. For example,
the fact that Complainant sent an email to a co-worker and copied her supervisor on
a specific date, absent discussion of the content, in no way “discloses critical
technology with military or space application, (2) directly relates to the
manufacture of specifically designed components of the [product at issue], and (3) is
required for the design, development, production, manufacture, assembly,
operation, repair, testing, maintenance, or modification of those components,” all of
which is necessary to bring a document within the scope of [ITAR].189 Although the
content of the email may, or may not, meet the ITAR test, that determination was
never specified by the ALJ, nor was it impossible to redact whatever information
the ALJ may have determined did meet the statutory definition in this instance.
In addition, a vast majority of the facts stated in the D. & O. were already
within the public domain at the time this case was commenced, and thus are

186

Id. at *4-5 (internal citations omitted; bolding added; other emphasis in original).

187

Id. at 5.

188

Id.

189

Id.

29
specifically excluded from the scope of both ITAR190 and the Protective Order191
including the following:
•
•

•
•
•
•
•
•

Names of the parties, including the Respondent’s current name
Fact that Respondent manufactures “high-temperature, high-pressure
air and exhaust management solutions for aircraft and engines,” and
can “engineer, manufacture, and provide aftermarket support on vital
systems and components for virtually every commercial airliner and
military aircraft in active service today,” which is noted on its website
at https://www.exoticmetals.com/about-us
Names of relevant employees
Supervisory relationship(s) between employees
Employment responsibilities of various supervisors and coworkers,
including reference to “IPP Project” available on LinkedIn
Fact that Respondent produces certain generically described products,
see https://www.parker.com/us/en/search?searchbox=duct and
https://www.exoticmetals.com/catalog/our-products.
Fact that Respondent uses “paint” and “coatings” in various
manufacturing processes, see https://ph.parker.com/us/en/emishielding-paints
Complainant’s allegations that she reported to Respondent’s decisionmakers that a necessary paint might be unavailable for a specific
project to which she had been assigned, an allegation made in her
complaint to OSHA in October 2018, well before the issuance of the
Protective Order in February 2020 and referenced throughout the
proceedings below well before any ITAR-related concerns were
advanced by Respondent

Even so, the ALJ determined, without any identified and thus reviewable
basis in the record, that “attempting to adequately redact the full Decision and
Order runs an unacceptable risk of an unauthorized disclosure [of technical
data.]”192 We have exhaustively combed the entire record, including but not limited
to the seven specifically identified and protected exhibits, and been unable to
identify sufficient “technical data” that supports the suppression of the entire
D. & O. Although there may, or may not, be technical data included in the
descriptions of and references to projects, processes or substances addressed in the
See 22 C.F.R. § 120.33(b) (explaining that technical data “does not include
information concerning information . . . in the public domain” as defined in 22 C.F.R. §
120.34).
190

Protective Order at 2 (“However, the protections conferred by this agreement do not
cover information that is in the public domain or becomes part of the public domain through
trial or otherwise.”).
191

192

D. & O. at 2.

30
seven specific exhibits marked as Confidential Material within the D. & O., it is
unreasonable to conclude that those few references could not have been redacted
and/or otherwise anonymized. As other courts have found, while “portions of the
documents [may] contain ITAR and EAR controlled information, that fact is not a
compelling reason to seal the documents in their entirety.”193
If the protected technical data resides in the seven specified exhibits or in
other documents used as exhibits at hearing or in depositions, the law may support
a determination that those specific exhibits should be sealed while the D. & O.
should not. At this point in the proceeding, the Board is unable to examine that
issue due to the ALJ’s failure to identify—even by high-level category—what
“technical data” supports the imposition of ITAR-related protections in this matter.
The ALJ made no findings of a compelling reason to seal and left no record of
having engaged in such examination—neither of the seven specifically cited exhibits
marked as Confidential Material during the hearing nor of the entire 53-page D. &
O. Without such, the Board is left with no factual basis upon which to uphold the
ALJ’s determination, and thus finds such to be an abuse of discretion.194 As such,
the Board remands this matter to the ALJ with the direction to make specific
findings of sufficiently compelling reasons to maintain a seal over limited
components of entire documents in the record and as cited in the resulting D. & O.
after conscientiously balancing the competing interests of the public in having
access to judicial records. 195
C. Protective Order
An ALJ has authority to grant a protective order “to protect against undue
disclosure of privileged communications, or sensitive or classified matters.”196 To
appropriately do so, the ALJ must determine “whether ‘good cause’ exists to protect
th[e] information from being disclosed to the public by balancing the needs for
discovery against the need for confidentiality.’”197 We review de novo whether the

193

TSI Inc. v. Azbil BioVigilant Inc., 2014 WL 880408, at *3 (D. Ariz. Mar. 6, 2014).

See United States v. Doe, 662 F. App’x 515, 516 (9th Cir. 2016) (court’s failure to
identify and apply correct legal standard provides sufficient grounds to find abuse of
discretion).
194

See Comphy Co. v. Amazon.com, Inc., 371 F. Supp. 3d 914, 929-30 (W.D. Wash. 2019)
(noting that failure to provide necessary specification “leaves the Court with no factual
basis for maintaining [] allegedly confidential material under seal.”).
195

196

29 C.F.R. § 18.85(a).

Pintos, 605 F.3d at 678 (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)).
197

31
ALJ used the correct legal standard when granting the Protective Order, and we
review the application of that correct legal standard for abuse of discretion.198
In this case, the ALJ specifically found that “the restrictions on export of
technical data established by ITAR . . . and recordkeeping obligations attendant to
those restrictions, provide good cause for granting a protective order.”199 Although
Complainant challenges that finding in this appeal, we find that the ALJ cited to
the correct standard in issuing the Protective Order in the case. We affirm this
aspect of the ALJ’s action.
The critical issue is whether the ALJ correctly applied the good cause
standard. The law is clear that “[a] party asserting good cause bears the burden, for
each particular document it seeks to protect, of showing that specific prejudice or
harm will result if no protective order is granted.”200 For the same reasons as set
forth above regarding the lack of a record upon which the ALJ’s determination of
ITAR-related protections was based with respect to the Order to Seal D. & O., we
find that the ALJ abused his discretion in failing to make an adequate record with
regard to his application of the good cause standard. Accordingly, we remand the
Complainant’s challenges to the Protective Order and the two identified related
orders to the ALJ for further action. We note that the Protective Order itself
contains provisions defining procedures for challenging confidentiality designations,
and to the extent that those provisions restrict the right to challenge to the
Respondent alone,201 for reasons of comity and fairness to the parties we direct the
ALJ to accept and act upon motions brought by either party. To be clear, we direct
the ALJ to apply the good cause standard, not the compelling reasons standard, to
the necessary analysis relevant to the Protective Order and related orders. We do
not now vacate the Protective Order but instead hold it in full force and effect until
the completion of the directed further analysis by the ALJ. Our decision reflects an
Petitt, v. Delta Air Lines, Inc., ARB No. 2019-0087, ALJ No. 2018-AIR-00041, slip op.
at 2 (ARB Aug. 26, 2020); see also In re Midland Nat. Life Ins. Co. Annuity Sales Pracs.
Litig., 686 F.3d 1115, 1119 (9th Cir. 2012) (citing Phillips ex rel. Estates of Byrd, 307 F.3d
at 1210).
198

Furlong-Newberry v. Exotic Metals Forming Co., LLC, ALJ No. 2019-TSC-00001, slip
op. at 2 (ALJ Feb. 10, 2020) (Order Granting in Part and Denying in Part Motion for
Protective Order).
199

200

Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130-31 (9th Cir. 2003).

The Protective Order limits judicial intervention to situations where “the
designating party may file and serve a motion to retain Confidentiality.” In this case,
Respondent was the party that designated the material as confidential, and thus by the
terms of the Protective Order Respondent is the only party authorized to file a relevant
motion. See Protective Order at 4 (“If the parties cannot resolve a challenge without the
presiding judge’s intervention, the designating party may file and serve a motion to retain
Confidentiality.”).
201

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A3d5c869fddb4ca1a. Public record. Not legal advice.