Petition for Writ of Certiorari — Erik Leckner, Petitioner v. General Dynamics Information Technology, et al.

Supreme Court briefApr 23, 2022

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ERIK LECKNER,

Petitioner,

GENERAL DYNAMICS, INC., GENERAL DYNAMICS

INFORMATION TECHNOLOGY, INC., CSRA, LLC,

ASGN, INC., APEX SYSTEMS, LLC,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Erik Leckner

Petitioner Pro Se

TAT S. Mission Road

Unit 2923

Fallbrook, CA 92088

/ (760) 459-7772

April 22,2022

RECEIVED

APR 2 6 2022

OFFICE OF THE CLERK

SUPREME COURT U.S.

QUESTIONS PRESENTED

1. Whether the court of appeals failed to recog

nize that SOX whistleblower protections does extend

to cybersecurity risks and breaches, especially those

which were used by Russia to cyberattack Ukraine

before the invasion.

2. Whether the court of appeals improperly denied

Leckner’s request to admit the same evidence that

Leckner was submitted before the record closed but

the Department of Labor failed to put it on record.

3. Whether the court of appeals improperly denied

Leckner’s motion to supplement the record with new

and material evidence that had become available

which could not have been discovered with reasonable

diligence before the record closed.

4. Whether the court of appeals failed to recog

nize that good faith attempts to file documents must

constitute filing.

5. Whether it was the Secretary of Labor’s duty

to ensure that Leckner’s evidence was put on record.

6. Whether the date of the first complaints must

be used if the complaints were filed within the whistle

blower provision’s filing period.

7. Whether equitable tolling doctrine applies

where Petitioner is allowed whatever time remains

under the applicable statute.

8. Whether Secretary of Labor (SOL) Scalia failed

to recuse himself because he was General Dynamics’

counsel when he was at Gibson, Dunn & Crutcher

LLP, prior to becoming the SOL.

9. Whether the court of appeals improperly

affirmed the dismissal as untimely of Leckner’s retal

iation claims under the CAA, CERCLA, SWDA, TSCA

and FWPCA because Leckner raised a genuine dispute

of material fact as to whether he filed his whistleblower

complaint within 30 days of his employers alleged

retaliatory decisions.

10. Whether the court of appeals improperly

affirmed the dismissal of Leckner’s retaliation claim

under the SOX because Leckner raised a genuine

dispute of material fact as to whether he engaged in

protected activity under the SOX.

11. Whether the court of appeals improperly

considered Leckner’s contentions concerning his ERA

claim, and his other arguments and allegations raised,

as Leckner had raised these issues on the first time

on appeal and in the ALJ proceeding.

12. Whether the court of appeals improperly

denied protections to the whistleblower because these

protections are mandated under the plain meaning of

the SOX whistleblower protection statute and each of

the other Acts.

13. Whether the court of appeals failed to recog

nize that a conflict between Brown-Root-Willy and the

Ninth Circuit may future discourage whistleblowers.

14. Whether the court of appeals failed to

recognize that context is a key factor of consid

erable importance.

15. Whether the court of appeals improperly

allowed two employers to unlawfully discriminate

against an employee because of lawful acts done by

the employee.

Ill

16. Whether the court of appeals failed to recog

nize that it is well-established that employers cannot

restrict the protected channels of raising concerns.

17. Whether the court of appeals failed to recog

nize that employers cannot restrict the protected

channels of opposition.

18. Whether the court of appeals failed to resolve

the conflict between Hukman and the Ninth Circuit

which it must have—otherwise if left standing, future

whistleblowers will become discouraged.

19. Whether the court of appeals failed to recog

nize that protected activity raised through un-official

channels under SOX is defined by the Passiac Valley

case and the authority upon which Passiac Valley

was based.

20. Whether the court of appeals failed to recog

nize that the Department of Labor has not changed

the Sylvester-Munsey-Guttman-Passaic Valley doctrines

and that they remain binding.

21. Whether the court of appeals failed to recog

nize that the present case is covered under the Munsey

standard.

22. Whether the court of appeals failed Leckner

need not establish that the concern he raised relates

to fraud on shareholders.

PARTIES TO THE PROCEEDINGS

Petitioner

• Erik Leckner

Respondents

• General Dynamics, Inc.

• General Dynamics Information Technology, Inc.

General Dynamics Corporation (NYSE: GD) is

the parent corporation of General Dynamics

Information Technology (GDIT) (formerly known

as CSRA, LLC).

• CSRA, LLC

• ASGN, Inc.

• Apex Systems, LLC

ASGN Incorporated (NYSE: ASGN) is the

parent corporation of Apex Systems (Apex).

LIST OF PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of Rule 14.1(b)(iii):

Leckner. v. General Dynamics and Apex Systems,

Inc., U.S. Department of Labor, ALJ Case No.

2019-SOX-00028, decided January 23, 2020.

Leckner. v. General Dynamics and Apex Systems,

Inc., U.S. Department of Labor, Administrative

Review Board, ARB Case No. 2020-0028, decided

October 22, 2020, reconsideration denied Decem

ber 15, 2020.

Leckner. v. General Dynamics and Apex Systems,

Inc., U.S. Court of Appeals for the Ninth Circuit,

No. 21-70284, decided October 18, 2021, rehearing

denied January 25, 2022.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..............................

PARTIES TO THE PROCEEDINGS...............

LIST OF PROCEEDINGS.................................

TABLE OF AUTHORITIES..............................

OPINIONS BELOW..........................................

JURISDICTION..................................................

STATUTORY PROVISIONS INVOLVED.......

STATEMENT OF THE CASE...........................

A. Introduction.............................................

B. Statement of Facts..................................

C. Procedural History..................................

1. The Department of Labor..................

2. The Appellate Court..........................

SUMMARY OF ARGUMENT...........................

REASONS FOR GRANTING THE PETITION...... 11

Protecting the Employees Is Mandated

Under the Plain Meaning of the SOX

Whistleblower Protection Statute........ 11

II. SOX Whistleblower Protection Does

Extend to Cybersecurity Risks and

Breaches....................................................... 13

III. The Conflict Between Brown-Root- Willy

and the Ninth Circuit Will Discourage

Whistleblowers.......................................... 18

Vll

TABLE OF CONTENTS - Continued

Page

IV. Good Faith Attempts to File Documents

Must Constitute Filing............................. 20

V. Leckner Timely Filed His Complaints..... 21

VI. Equitable Tolling Applies........................ 22

VII. Context Is a Factor of Considerable

Importance................................................. 23

VIII. No Company May Discriminate Against

an Employee Because of Any Lawful

Act Done by the Employee...................... 24

IX.

It Is Well Established That Employers

Cannot Restrict the Protected

Channels of Raising Concerns............. 25

It Is Well Established That Employers

Cannot Restrict the Protected

Channels of Opposition........................... 28

XI.

The Conflict Between Hukman and

the Ninth Circuit Will Discourage

Whistleblowers....................................... 29

XII. Protected Activity Raised Through

Un-Official Channels Under Sox Is

Defined by the Passaic Valley Case

and the Authority Upon Which Passaic

Valley Was Based..................................... 37

XIII. Employee Disclosures to Approved

Channels Are Entitled to a Higher

Level of Protection................................. 37

Vlll

TABLE OF CONTENTS - Continued

Page

XIV. The Department of Labor Has Not

Changed the Sylvester-MunseyGuttman-Passaic Valley Doctrines and

They Remain Binding to This Day.......... 39

XV. The Present Case Is Covered Under

the Munsey Standard.............................. 40

XVI. Leckner Does Not Need to Establish

That the Concerns He Raised Relates

to Fraud on Shareholders...................... 40

CONCLUSION

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Memorandum Order of the United States

Court of Appeals for the Ninth Circuit

(October 18, 2021)...............................................

Decision and Order of U.S. Department of Labor

(October 22, 2020)...............................................

Decision and Order Granting Summary

Decision of U.S. Department of Labor

(January 23, 2020................................................ 14a

Rehearing/Reconsideration Orders

Order of the United States Court of Appeals for

the Ninth Circuit Denying Petition for

Rehearing En Banc (January 25, 2022)........ 41a

Order of the U.S. Department of Labor Denying

Reconsideration (December 15, 2020)...........

43a

TABLE OF CONTENTS - Continued

Page

Other Documents

Exhibit I.

Initial Complaint.............................................. 47a

Exhibit II.

Objections to the Findings and Request for a

Hearing, Relevant Excerpts (“Request”)....... 53a

Exhibit III.

Retaliation......................................................... 63a

Exhibit IV.

Official Date of Discharge (June 13, 2018)..... 72a

Exhibit V.

U.S. Department of Labor Occupational safety

and Health Administration (OSHA) Coordina

tion with Federal Partner Agencies

(October 3, 2017)

74a

TABLE OF AUTHORITIES

Page

CASES

Bechtel Const. Co. v. Sec’y of Labor,

50 F.3d 926 (11th Cir. 1995).....................

Brockell u. Norton,

732 F.2d 664 (8th Cir. 1984).....................

Brown & Root v. Donovan,

747 F.2d 1029 (5th Cir. 1984)...................

CBOCS West, Inc. v. Humphries,

553 U.S. 442, 128 S. Ct. 1951 (2008)........

Clean Harbors Envtl. Servs. v. Herman,

146 F.3d 12 (1st Cir. 1998).........................

Crawford v. Metropolitan Government of

Nashville and Davidson County,

Tennessee, 129 S.Ct. 846 (2009)................

28, 29

Department of Homeland Security v. MacLean,

135 S. Ct. 913, 190 L. Ed. 2d 771 (2015)....

Deremer v. Gulfmark Offshore Inc.,

2006-SOX-2 (ALJ June 29, 2007)......... !.....

Dutkiewicz v. Clean Harbors Envtl. Servs.,

95-STA-34, D&O of ARB (Aug. 8, 1997)..

Ellis Fischel State Cancer Hosp. v. Marshall,

629 F.2d 563 (8th Cir. 1980).....................

English v. General Electric Co.,

496 U.S. 72, 110 S.Ct. 2270 (1990).............

12, 20

Fabricus v. Town of Braintree,

97-CAA-14, D&O of ARB (1999).................

Facebook Inc. v. Duguid,

926 F. 3d 1146 (9th Cir. 2021)..................

Xll

TABLE OF AUTHORITIES - Continued

Page

Gomez-Perez v. Potter,

553 U.S. 474 (2008)........................................

Hendrix v. American Airlines, Inc.,

2004-AIR-10, 2004-SOX-23 (ALJ 2004)......

Hughart v. Raymond James & Associates, Inc.,

2004-SOX-9 (ALJ 2004)..............................

Hukman v. US Airways Inc.,

ARB No. 2018-0048,

ALJ No. 2015-AIR-00003 (ARB 2020)...... passim

Jackson v. Birmingham Board of Education,

544 U.S. 167 (2005)......................................

Johnson v. Ry. Express Agency, Inc.,

421 U.S. 454, 95 S.Ct. 1716,

44 L.Ed.2d 295 (1975).................................. 22, 23

Jones u. Metropolitan Atlanta Rapid Transit

Auth., 681 F.2d 1376 (11th Cir. 1982)......

Klopfenstein v. PCC Flow Technologies

Holdings, Inc., ARB Case No. 04-149,

2004-SOX-ll (2006)....................................

Leckner v. Apex Systems, LLC, General

Dynamics Information Technology, Inc.,

and CSRC LLC,

Case No. WC-CM-648548 (2019)...............

Leveille v. New York Air Natl, Guard,

94-TSC-3/4, D&O of Remand by SOL (Dec.

11, 1995)..........................................................

Macktal u. Secretary of Labor,

923 F.2d 1150 (5th Cir. 1991)....................

Xlll

TABLE OF AUTHORITIES - Continued

Page

McMahan v. Calif. Water Quality Control Bd.,

90-WPC-l, D&O of SOL (July 16, 1993).... 26, 27

Munsey v. Federal Mine Safety and Health

Review Comm’n,

595 F.2d 735 (D.C. Cir. 1978)......

iii, 38, 39

Nichols v. Bechtel Construction, Inc.,

87-ERA-44, D&O of SOL (Oct. 26, 1992)

NLRB v. Scrivener,

405 U.S. 117(1972)....................................

Passaic Valley Sewerage Comm. v. U.S.

Department of Labor,

992 F.2d 474 (3rd Cir. 1993)......... 10, 12, 19, 39

Saporito v. Florida Power & Light Co.,

89-ERA-7/17, SOL Remand Order

(June 3, 1994)...................................

SEC v. First American Financial Corporation,

File No. 3-20367 (June 14, 2021).................

Smith v. Corning,

496 F.Supp.2d 244 (W.D. NY 2007)............

Sylvester v. Parexel International LLC,

ARB No. 07-123, ALJ Nos. 2007-SOX-039,

042 (May 25, 2011)..........................................

Talbert v. Washington Public Power Supply Sys.,

93-ERA-35, D&O of ARB (Sept. 27, 1996)....

United States ex rel. Clem et al. v. CSC

(GDIT), 16-cv-5160-LRS (E.D. Wash.)........

United States ex rel. Elms v. Accenture LLP,

No. 07-1361, 2009 WL 2189795

(4th Cir. 2009)..............................................

XIV

TABLE OF AUTHORITIES - Continued

Page

United States ex rel. Glenn v. Cisco Systems,

Inc., Case No. ll-cv-400 (W.D.N.Y. 2011).,

United States ex rel. Leckner v. Gen. Dynamics

Info. Tech., & Apex Sys.,

21-cv-1109-BAS-BLM (S.D. Cal. 2021)......

United States ex rel. Markus v. Aerojet

Rocketdyne Holdings, Inc.,

Case No. 2:15-cv-2245 WBS-AC (E.D. Cal.),

Williams v. American Airlines, Inc.,

ARB No. 2009-0018,

ALJ No. 2007-AIR-00004 (ARB 2010)........

Willy v. Administrative Review Bd.,

423 F.3d 483 (5th Cir. 2005)........................

STATUTES

15U.S.C. § 2622,

Toxic Substances Control Act

ii, 6

18U.S.C. § 1514A(1)(C).................

18U.S.C. § 1514A(a)(l).................

37, 42

18U.S.C. § 1514A(a)(2).................

18U.S.C. § 1514A(a),

Sarbanes-Oxley Act (SOX),...

passim

18U.S.C. § 1514A(b)......................

18U.S.C. § 1519..............................

3, 7, 21

28U.S.C. § 1254(1).........................

29U.S.C. § 660,

OSH Act....................................

TABLE OF AUTHORITIES - Continued

Page

33U.S.C. § 1367,

Federal Water Pollution Control Act.....

ii, 6

42 U.S.C. § 1981..................................................

42 U.S.C. § 300j-9(i),

Safe Drinking Water Act...........................

42 U.S.C. § 6971, Solid Waste Disposal Act....

ii, 6

42 U.S.C. § 7622,

Clean Air Act...............................................

ii, 6

42 U.S.C. § 9610, Comprehensive

Environmental Response Compensation

and Liability Act (CERCLA).....................

ii, 3, 6

Atomic Energy Act..............................................

Energy Reorganization Act of 1974................. passim

Reorganization Plan No.4 of 1970...................

Securities Exchange Act of 1934.....................

1, 2, 18

STATE STATUTES

Code of Conduct for U.S. Judges Canon

3C(3)(c)(i)

JUDICIAL RULES

Fed. R. Civ. P. 12(b)(6).

OALJ Rules of Practice

Securities Exchange Act Rule 13a-15(a)

14, 15

REGULATIONS

17 C.F.R. § 240.13a-15

14, 17

XVI

TABLE OF AUTHORITIES - Continued

Page

29 C.F.R. § 18.10(c)......

20, 30

29 C.F.R. § 18.72(e)(3).

29 C.F.R. § 18.90(b)(1).

29 C.F.R. § 1980.103(d)

4, 21

29 C.F.R. § 1980.105(b)

4, 21

LEGISLATIVE MATERIALS

Fed. Register Volume 80, Number 73

(April 17, 2015)..............................

S. Rep. No. 107-146 (2002)...................

10, 11, 40

OTHER AUTHORITIES

ACFE, 2010 Global Fraud Report..................... .

Civil Cyber-Fraud Initiative............................... .

Environmental Protection Agency,

EPA Overpaid Invoices Due to Insufficient

Contract Management Controls, https://

www.epa.gov/sites/default/files/2019-05/

documents/_epaoig_20190520-19-p-0157.

pdf (May 20, 2019)........................................ .

Environmental Protection Agency,

Radiological Emergency Response:

Authorities, http://www.epa.gov/radiation/

radiological-emergency-responseauthorities.......................................................

OPINIONS BELOW

The order of the United States Court of Appeals

for the Ninth Circuit is attached in the Appendix

(“App.”) at App.la. The decision and order of the U.S.

Department of Labor Administrative Review Board is

included at App.5a. The decision and order of the

U.S. Department of Labor Administrative Law Judge

is included at App. 14a.

JURISDICTION

A timely petition for rehearing was denied by the

United States Court of Appeals for the Ninth Circuit

on January 25, 2022. (App.41a). The petition for a

writ of certiorari was filed on April 22, 2022. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 1514A (SOX)—Civil action to protect

against retaliation in fraud cases.

(a) Whistleblower Protection for Employees of

Publicly Traded Companies. No company with a

class of securities registered under section 12 of

the Securities Exchange Act of 1934 (15 U.S.C.

781), or that is required to file reports under

section 15(d) of the Securities Exchange Act of

1934 (15 U.S.C. 78o(d)) including any subsidiary

or affiliate whose financial information is included

in the consolidated financial statements of such

company, or nationally recognized statistical

rating organization (as defined in section 3(a) of

the Securities Exchange Act of 1934 (15 U.S.C.

78c), or any officer, employee, contractor, subcon

tractor, or agent of such company or nationally

recognized statistical rating organization, may

discharge, demote, suspend, threaten, harass, or

in any other manner discriminate against an

employee in the terms and conditions of employ

ment because of any lawful act done by the

employee—

(1) to provide information, cause information to

be provided, or otherwise assist in an

investigation regarding any conduct which

the employee reasonably believes constitutes

a violation of section 1341, 1343, 1344, or

1348, any rule or regulation of the Securities

and Exchange Commission, or any provision

of Federal law relating to fraud against share

holders, when the information or assistance

is provided to or the investigation is con

ducted by—

(A) a Federal regulatory or law enforce

ment agency;

(B) any Member of Congress or any com

mittee of Congress; or

the employee (or such other person

working for the employer who has the

authority to investigate, discover, or ter

minate misconduct); or

(2) to file, cause to be filed, testify, participate

in, or otherwise assist in a proceeding filed

or about to be filed (with any knowledge of

the employer) relating to an alleged violation

of section 1341, 1343, 1344, or 1348, any rule

or regulation of the Securities and Exchange

Commission, or any provision of Federal

law relating to fraud against shareholders.

42 U.S.C. § 9610 (CERCLA)—

Employee Protection.

(a) Activities of employee subject to protection.

No person shall fire or in any other way discrim

inate against, or cause to be fired or discriminated

against, any employee or any authorized

representative of employees by reason of the fact

that such employee or representative has provided

information to a State or to the Federal Govern

ment, filed, instituted, or caused to be filed or

instituted any proceeding under this chapter, or

has testified or is about to testify in any

proceeding resulting from the administration or

enforcement of the provisions of this chapter.

18 U.S.C. § 1519—Destruction, alteration, or

falsification of records in Federal investigations

and bankruptcy.

Whoever knowingly alters, destroys, mutilates,

conceals, covers up, falsifies, or makes a false

entry in any record, document, or tangible object

with the intent to impede, obstruct, or influence

the investigation or proper administration of any

matter within the jurisdiction of any department

or agency of the United States or any case filed

under title 11, or in relation to or contemplation

of any such matter or case, shall be fined under

this title, imprisoned not more than 20 years, or

both.

29 C.F.R. § 1980.103(d)—Filing of retaliation

complaints.

Within 180 days after an alleged violation of the

Act occurs or after the date on which the

employee became aware of the alleged violation

of the Act, any employee who believes that he or

she has been retaliated against in violation of

the Act may file, or have filed on the employee’s

behalf, a complaint alleging such retaliation.

The date of the postmark, facsimile transmittal,

electronic communication transmittal, telephone

call, hand-delivery, delivery to a third-party com

mercial carrier, or in-person filing at an OSHA

office will be considered the date of filing. The

time for filing a complaint may be tolled for

reasons warranted by applicable case law. For

example, OSHA may consider the time for filing

a complaint equitably tolled if a complainant

mistakenly files a complaint with another agency

instead of OSHA within 180 days after becoming

aware of the alleged violation.

29 C.F.R. § 1980.105(b), Issuance of findings and

preliminary orders.

The findings, and where appropriate, the prelim

inary order will be sent by means that allow

OSHA to confirm delivery to all parties of record

(and each party’s legal counsel if the party is

represented by counsel). The findings, and where

appropriate, the preliminary order will inform

the parties of the right to object to the findings

and/or order and to request a hearing, and of the

right of the respondent to request an award of

attorney fees not exceeding $1,000 from the

administrative law judge (ALJ) regardless of

whether the respondent has filed objections, if

the complaint was frivolous or brought in bad

faith. The findings, and where appropriate, the

preliminary order, also will give the address

of the Chief Administrative Law Judge, U.S.

Department of Labor, or appropriate information

regarding filing objections electronically with

the Office of Administrative Law Judges. At the

same time, the Assistant Secretary will file with

the Chief Administrative Law Judge a copy of

the original complaint and a copy of the findings

and/or order.

STATEMENT OF THE CASE

Introduction

Never before has an ALJ issued a decision while

excluding and misstating in its fact finding and

analysis such vast amounts of information and not

complying with its own rules, regulations, statutes,

and policies. To an unprecedented extent, the ALJ

withheld all of Complainant’s facts, statements, infor

mation, and evidence, in order to justify its decision

flawed with errs, while fabricating facts and, instead,

took what the respondents had written as facts.

Whistleblowers who report wrongdoing frequently

are subject to reprisals. It cannot be over-stated how

vital are the avenues of legal redress, including

rights available under each of the acts. Even under

the best of circumstances, whistleblowers run enormous

risks and suffer retaliation for reporting wrongdoing.

If these acts enacted by Congress do not provide

adequate protections and remedies, and the Supreme

Court does not fix the appellate court and the agency’s

errors, then whistleblowers face even greater disincen

tives to expose misconduct or violations of law.

Statement of Facts

This case arises under the employee protection

(“whistleblower) provisions in the Sarbanes-Oxley

Act (“SOX”), 18 U.S.C. § 1514A; the Energy Reorgani

zation Act (“ERA”), 42 U.S.C. § 5851; the Federal

Water Pollution Control Act (“FWPCA”), 33 U.S.C.

§ 1367; the Clean Air Act (“CAA”), 42 U.S.C. § 7622;

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

§ 2622; the Solid Waste Disposal Act (“SWDA”), 42

U.S.C. § 6971; the Comprehensive Environmental

Response Compensation and Liability Act (“CERCLA”),

42 U.S.C. § 9610.1, the OSH Act (“OSH”), 29 U.S.C.

§ 660, and the Safe Drinking Water Act (“SDWA”),

42 U.S.C. § 300j-9(i).

Complainant was hired as the lead engineer for

the U.S. Environmental Protection Agency (“EPA”)

Emergency Management Portal (“EMP”) on behalf of

General Dynamics and ASGN. Complainant whistleblew that respondents committed economic theft and

fraud, cybersecurity violations, and other serious

violations against the U.S. government. Respondents

concealed their theft and violations by retaliating

against the Complainant, threatened him with termi

nation if he ever communicated directly with the

EPA, and unlawfully imposed chain-of-command of

restrictions.

Complainant’s evidence never made it to record.

Complainant’s submissions of evidence prove, however,

that the respondents conspired to alter, destroy,

cover up, falsify, and makes false entries in official

records, documents, and other tangible objects, with

the intent to improperly influence the investigation

and proper administration of this matter within the

jurisdiction of the agency.

The ALJ’s findings, conclusions, and decisions

relied solely on evidence submitted by the respondents.

Never before has an ALJ issued a decision while

excluding and misstating such vast amounts of infor

mation and not complying with the agency’s own

policies. The agency itself, in violation of 18 U.S.C.

§ 1519, withheld all of Complainant’s facts, evidence,

and information on which all of the ALJ’s decision’s

flawed conclusions depend, while fabricating its own

facts and, instead, taking what respondents had

written as facts.

Procedural History

1. The Department of Labor

On January 23, 2020, the ALJ improperly dis

missed the complaint in a Decision and Order granting

respondents’ motions for summary decision. The ALJ

incorrectly held that there is no genuine issue of

material fact as to whether Leckner: timely filed his

complaint under the environmental acts, worked for

an entity defined as an employer under the ERA, and

engaged in protected activity under the SOX. Leckner

filed timely formal complaints with OSHA and its

federal partner agency, the EPA, beginning on May

31, 2018, alleging that respondents violated nine

whistleblower laws by having discharged him from

his employment. Leckner had engaged in protected

activity under each of the relevant acts of this matter.

On October 22, 2020, the Administrative Review

Board (“ARB”) improperly affirmed, the ALJ’s Decision

and Order, denied Leckner’s complaint, and refused

to supplement the record with his submissions of

evidence. The ARB then improperly denied the petition

for rehearing on December 1, 2020.

2. The Appellate Court

On October 12, 2021, the panel improperly denied

Leckner’s pro se petition for review. The panel denied

that any member of the panel be recused using the

Code of Conduct for U.S. Judges Canon 3C(3)(c)(i),

claiming that no judge so participates, even though

they each had investments in General Dynamics.

The panel improperly affirmed the dismissal as

untimely of Leckner’s retaliation claims under the

environmental acts even though Leckner raised a

genuine dispute of material fact as to whether he had

timely filed his whistleblower complaints within 30

days of his employers’ retaliatory decisions, because

he had timely filed.

The panel improperly affirmed the dismissal of

Leckner’s retaliation claim under the SOX. Leckner

raised a genuine dispute of material fact as to

whether he was engaged in protected activity. The

panel improperly denied Leckner’s request to admit

the evidence which Leckner’s counsel had submitted

to OSHA, the EPA, and the ALJ via a memory drive.

Petition, Motion to Supplement the Record (Docket

Entry No. 11-3), pp. 2-7. Leckner clearly demonstrated

that the evidence was submitted to record before the

record closed. See 29 C.F.R. § 18.90(b)(1). The panel

improperly refused to consider Leckner’s contentions

concerning his ERA claim and all of his arguments

and allegations raised. Leckner’s contentions were

raised during OSHA, ALJ, and appellate proceedings.

The panel judges improperly voted to deny the

petition for panel rehearing. This voting occurred at

the same time that the largest cyberattacks in the

world gained international attention in the news.

Leckner had reported numerous cybersecurity risks

and attacks, which included the Log4j cyber vulner

abilities, which caused hundreds of millions of other

cyberattacks across the globe four years later. The

Log4j cyberattacks provided classified Ukraine defense

ministry information to the Russian defense ministry,

where Ukraine has been left in a bloody carnage of

dead civilians and military personnel later buried in

mass graves.

The full court was “advised” of the petition for

rehearing en banc by the panel. No judge requested a

vote on whether to rehear the matter en banc. As a

result, Leckner’s petition for panel rehearing and

rehearing en banc were denied.

The panel refused to address the fact the Secre

tary of Labor Scalia, was required to have recused

himself, as Scalia was previous counsel for General

Dynamics, and it was under Scalia, that all of Leckner’s

exhibits, including his initial filings, disappeared.

SUMMARY OF ARGUMENT

The plain text of each of the Acts prohibit public

companies and the subsidiaries of public companies

from retaliating. For example, the plain text of the

Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A(a)

states the following:

No company...or any officer, employee,

contractor, subcontractor, or agent of such

company..., may discharge, demote, suspend,

threaten, harass, or in any other manner

discriminate against an employee in the

terms and conditions of employment because

of any lawful act done by the employee....

Congress enacted the employee protection in SOX

as a “crucial” component of a comprehensive plan to

protect our economy from crises caused by frauds.

Senate Report No. (S. Rep.) 107-146 (2002) at 2.

Regardless of the specific whistleblower law at

issue in this matter, the principles setting forth the

appropriate interpretation of protected activity are

aligned, whether those activities occurred in the context

of safety protection, complex environmental protection

or within the complex and highly regulated nuclear

power industry. As explained by the Court of Appeals

in Passaic Valley Sewerage Comm. v. U.S. Department

of Labor, 992 F.2d 474 (3rd Cir. 1993):

The whistleblower provision of the Clean

Water Act mirrors that of other federal

environmental, safety and energy statutes.

To deny protection to a whistleblower, the panel

undermined well established principles of statutory

interpretation to reach a result inconsistent with the

plain meaning of the Acts, while protecting its own

investments in General Dynamics.

REASONS FOR GRANTING THE PETITION

Protecting the Employees Is Mandated

Under the Plain Meaning of the SOX

Whistleblower Protection Statute.

Congress created the SOX whistleblower protec

tion, 18 U.S.C. § 1514A(a), and the whistleblower

protections to address

a culture, supported by law, that discourage[s] employees from reporting fraudulent

behavior

not

only

the

proper

authorities...but even internally. This

‘corporate code of silence’ not only hampers

investigations, but also creates a climate

where ongoing wrongdoing can occur with

virtual impunity.

S. Rep. 107-146 (2002), at 5. Congress considered the

whistleblower protection to be a “crucial” component

of SOX for “restoring trust in the financial markets

by ensuring that corporate fraud and greed may be

better detected, prevented and prosecuted.” S. Rep.

107-146 (2002) at 2.

The plain text of this statute includes “contractors”

and “employers” among those prohibited from dis

charging employees on account of lawful disclosures

about frauds and other violations of securities rules.

When an employer or contractor fires its own employee

for engaging in protected activity, it has violated the

text of SOX and the other relevant acts.

To reach its tortured construction of SOX and

the other relevant acts, the panel had to reject the

historic broad construction of whistleblower protec

tions. Petition, Brief (Docket Entry No. 30-1), pp. 26,

56-61. Previously, courts have had no difficulty holding

that whistle-blower provisions must be given broad

scope to accomplish their remedial purposes. NLRB

v. Scrivener (1972), 405 US 117, 121-26; English v.

General Elec. Co., 496 U.S. 72, 82 (1990) (to “encour

age” employees to report safety violations and protect

their reporting activity); Passaic Valley Sewerage

Comm. v. Dep’t of Labor, 992 F.2d 474, 479 (3rd Cir.

1993).

Indeed, the public interest in protecting employ

ees from reprisals is so strong that this Court has

imputed a protection into laws that have no words

creating it. Jackson v. Birmingham Board of Educa

tion, 544 U.S. 167 (2005) (Title IX); CBOCS West,

Inc. u. Humphries, 553 U.S. 442, 128 S. Ct. 1951 (2008)

(42 U.S.C. § 1981); Gomez-Perez v. Potter, 553 U.S.

474 (2008) (ADEA).

The whistleblower provisions protect internal

whistleblowing. As Congress recognized, these internal

protections for whistleblowers are necessary both for

direct corporate employees, and employees who provide

those services through contractor-vendors. Employees

need SOX’s legal protection to feel safe as they submit

concerns to these “cornerstone” internal compliance

programs. If left standing, the decision below will

have a chilling effect detrimental to SOX’s objective

of increasing accountability.

The panel rejected the explicit policies of the

Department and the SEC. Petition, Brief (Docket

Entry No. 30-1), pp. 27-38, 67. This rejection invites

further inconsistency and uncertainty that undermines

the. encouragement employees need to come forward.

II.

SOX Whistleblower Protection Does

Extend to Cybersecurity Risks and

Breaches.

The AU improperly concluded that “SOX whistle

blower protection does not extend to cybersecurity

risks.” ALJ Decision, p.12. Counsel wrote,

Leckner noted other cybersecurity issues....

At each turn, Leckner attempted to report

to his supervisors...that additional cyber

security issues be addressed.

Leckner continually made it known...that

other cybersecurity issues....

The EPA’s contact, Rob Thomas, agreed

access to the SCR was critical....

Opposition, pp. 4-5.

On October 6,. 2021, Deputy Attorney General

Monaco launched the DOJ’s Civil Cyber-Fraud Initia

tive after flagging Leckner’s FCA complaint, which

combines the department’s expertise in civil fraud

enforcement, government procurement and cyber

security to combat new and emerging cyber threats

to the security of sensitive information and critical

systems.

“For too long, companies have chosen silence under

the mistaken belief that it is less risky to hide a

breach than to bring it forward and to report it,” said

Deputy Attorney General Lisa Monaco. ‘Well that

changes today. We are announcing today that we will

use our civil enforcement tools to pursue companies,

those who are government contractors who receive

federal funds, when they fail to follow required cyber

security standards—because we know that puts all of

us at risk.”

Based on Leckner’s qui tam case, Monaco relied

upon Leckner’s outline of three cybersecurity related

allegations, that the DOJ will now relentlessly pursue

against federal contractors under the FCA: (1) know

ingly providing deficient cybersecurity products or

services; (2) knowingly misrepresenting their cyber

security practices or protocols; or (3) knowingly violating

obligations to monitor and report cybersecurity

incidents and breaches. These allegations were made

by Leckner in his OSHA/EPA complaints, filed on May

31, 2018. Petition, Motion to Supplement the Record

(Docket Entry No. 11-6), p. 2.

On June 15, 2021, the SEC announced it settled

charges against real estate services company First

American Financial (“First American”), for alleged

violations of Rule 13a-15(a) of the Exchange Act.

SEC v. First American Financial Corporation, File

No. 3-20367. The SEC charged First American with

failure to maintain disclosure controls and proce

dures designed to ensure that all available, relevant

information concerning a software vulnerability that

led to a cybersecurity incident was filed - with the

Commission.

As a result of the conduct described above, First

American violated Exchange Act Rule 13a-15(a) [17

C.F.R. § 240.13a-15], which requires every issuer of a

security registered pursuant to Section 12 of the

Exchange Act to maintain disclosure controls and

procedures designed to ensure that information

required to be disclosed by an issuer in reports it

files or submits under the Exchange Act is recorded,

processed, summarized, and reported within the time

periods specified. First American agreed to cease and

desist from committing and causing future violations

of Exchange Act Rule 13a-15. By having violated

Exchange Act Rule 13a-15, First American violated

SOX.

In United States ex rel. Markus v. Aerojet

Rocketdyne Holdings, Inc., the relator alleged that

the defendant falsely asserted its compliance with

cybersecurity standards when entering into DOD con

tracts. The court refused to dismiss the FCA claims,

holding that the relator had sufficiently pleaded that

“defendants’ alleged failure to fully disclose its noncom

pliance was material to the government’s decision to

enter into and pay on the relevant contracts.” On

February 1, 2022, the court also denied summary

judgment on the relator’s promissory fraud claim

when “defendants made false statements regarding

[its] cybersecurity status by not disclosing the full

extent of [its] noncompliance with the DFARS and

NASA FARS clauses.” Id. at p. 10.

In United States ex rel. Glenn v. Cisco Systems,

Inc., Cisco sold equipment to government agencies

knowing that the equipment was vulnerable to a

cyberattack. Although no breach occurred, Cisco still

paid $8.6 million to resolve FCA claims stemming from

alleged misrepresentations regarding cybersecurity

risks. To mitigate FCA liability risks, government

contractors must consider conducting a cybersecurity

risk assessment of their products, services, and systems

before and during contracting with the government.

Leckner reported critical security flaws including

breaches and risks of our federal agencies which rely

on General Dynamics’ infrastructure and application

hosting environments. Rather than being rewarded

for his discoveries, his supervisors, the respondents

promptly retaliated harshly against him. Whistle

blower protections allow whistleblowers to report

fraud and misconduct in federal contracting. But

General Dynamics kept the vulnerability quiet for

years, not issuing a security alert, and yet to acknowl

edge “multiple security vulnerabilities” in the software,

services, and systems that they manage and operate.

Thus, the panel erred by failing to reject the ALJ’s

statement that SOX is not concerned with cyber

security risks. General Dynamics IT segment includes

contractually required monitoring and reporting of

cybersecurity vulnerabilities, breaches, and risks. Their

contract with the EPA states:

The contractor shall provide updates, status

and reports to the platform manager and

EPA TPOC, as required.

The contractor shall support EPA develop

ment and maintenance...complies with

governing Federal security standards.

Ad hoc compliance...reporting are also

required as dictated by emergency situations,

such as critical system patches and/or system

security control changes....

The contractor shall operate and maintain

EPA’s network security infrastructure devices

...This includes security operations over

sight and monitoring, security management

and reporting....

The panel refused to address the responsibility for

reporting cybersecurity breaches and risks even though

the company’s key business includes providing services

involving systems and data related to government

transactions. Nevertheless, as of April 2018, the

company didn’t exercise disclosure controls and proce

dures related to cyber security, including incidents

involving cyber breaches of systems and data.

Unbeknownst initially to senior executives at

General Dynamics, the company’s information security

personnel had been made aware of the vulnerabilities,

risks, and breaches for months and the company’s

information security personnel did not remediate it,

leaving all of its Federal clients’ systems, and billions

of data records exposed to unauthorized access. The

company’s senior executives thus first lacked certain

information to fully evaluate the company’s cyber

security responsiveness and the magnitude of the

breaches and risk from the vulnerabilities caused by

employees, at the time they approved the company’s

disclosures. As a result of the conduct described

above, General Dynamics violated Exchange Act Rule

13a-15(a) [17 C.F.R. § 240.13a-15], which requires every

issuer of a security registered pursuant to Section 12

of the Exchange Act to maintain proper disclosure

controls and procedures designed to ensure that

information required to be disclosed by an issuer in

reports it files or submits under the Exchange Act is

recorded, processed, summarized, and reported within

the time periods specified in the Commission’s rules

and forms.

As a result of having violated the Exchange Act,

General Dynamics violated SOX. As directed by Section

404 of the SOX of 2002, the SEC adopted rules

requiring companies subject to the reporting require

ments of the Securities Exchange Act of 1934 to

include in their annual reports a report of management

on the company’s internal control over reporting.

Therefore, SOX does extend to cybersecurity risks

and the panel erred in its affirmation of the flawed

agency decision and the decision must be vacated,

reversed, and remanded for trial based on the merits

of this case.

III. The Conflict Between Brown-Root-Willy

and the Ninth Circuit Will Discourage

Whistleblowers.

Whistleblower advocates have not seen such a

conflict between a circuit court of appeals and the

Department since the Fifth Circuit refused to protect

nuclear whistleblowers raising safety concerns inter

nally. Brown & Root u. Donovan, 747 F.2d 1029 (5th

Cir. 1984). No other circuit followed this holding. In

1992, Congress amended the Energy Reorganization

Act (ERA) to protect internal whistleblowing explicitly.

In 2005, the Fifth Circuit finally conceded that its

1984 holding “was incorrect.” Willy v. Administrative

Review Bd., 423 F.3d 483, 489, n. 11 (5th Cir. 2005).

The EPA’s emergency management portal allows

trusted agencies, including the DOE, to identify

individuals with expertise to assist local responders

in emergencies that may spring from natural or man

made disasters. Those disasters may relate to nuclear

incidents depending on whether or not the affect the

environment. Opposition, p.2 (citing C.Ex.42 (Page

Depo.), 25:1-14). Leckner’s counsel wrote:

“Such whistleblower provisions are intended

to promote a working environment in which

employees are relatively free from the debili

tating threat of employment reprisals for

publicly asserting company violations of

statutes protecting the environment, such

as...the nuclear safety statutes they are

intended to encourage employees to aid in

the enforcement of the statutes by raising

substantial claims to protected procedural

channels.” Passaic Valley Sewerage Commis

sioners v. U.S. Dept, of Labor, 992 F.2d 474,

478 (3d Cir. 1993).

Opposition, p.6. The EMP covers current and former

EPA employees and staff of other federal agencies,

including the DOE, posted at the EPA who are mem

bers of the national emergency management and

response community. Fed. Register Volume 80, Number

73 (April 17, 2015). There are separate response and

radiation authorities related to nuclear incidents.

Information on the EPA’s authorities related to releases

of radiological and nuclear material can be found at

http://www.epa.gov/radiation/radiological-emergencyresponse-authorities. The website provides the history

of EPA’s authorities related to nuclear radiation

protection in the Atomic Energy Act that were trans

ferred to EPA through the Reorganization Plan No.4

of 1970 and the Energy Reorganization Act of 1974.

General Dynamics settled in United States ex

rel. Clem et al. v. CSC (GDIT), 16-cv-5160-LRS (E.D.

Wash.) for FCA violations and lost in Clem and Spencer

v. CSC (GDIT), ARB No. 2020-0025, ALJ Nos. 2015ERA-00003, 00004 under ERA. General Dynamics

falsely argued before the ALJ that they are not an

ERA employer. Therefore, General Dynamics is an

ERA covered employer.

IV.

Good Faith Attempts to File Documents

Must Constitute Filing.

The main thrust of whistleblower protection

laws is their remedial purpose, which “encourages”

employees to report safety violations and protect their

reporting activity. English v. General Electric Co.,

496 U.S. 72, 73, 110 S.Ct. 2270, 2277 (1990). Because

a substantial number of whistleblower litigants are

pro se or are represented by counsel who only appear

before the OALJ infrequently, it is vitally important

that the OALJ Rules of Practice clearly reflect Con

gress’ intent that decisions be reached on the merits

of the employees’ claims, not on closely-parsed or

restrictive procedural rulings that deprive whistle

blowers of their “day in court.”

The OALJ rules already recognize the need for

flexibility through 29 C.F.R. § 18.10(c):

Upon notice to all parties, the presiding judge

may waive, modify, or suspend any rule under

this subpart when doing so will not prejudice

a party and will serve the ends of justice.

This court must order in whistleblower cases that

unsuccessful attempts to submit evidence should be

grounds for waiver, modification, and suspension of

the rules. That is, if a whistleblower litigant attempts

to submit evidence as counsel did via a process

service which can’t accept its enormous size and then

sends it on a drive, in opposition to a motion for

summary decision, the agency must accept that

evidence as filed on the date the litigant attempted

submission. Otherwise, cases such as Leckner’s will

be decided on technicalities and not on the merits.

Leckner Timely Filed His Complaints.

The Department of Labor concealed Leckner’s

EPA and OSHA complaints filed on May 31 and July

5, 2018, in the Ninth district when they transferred

the case to the Fourth district. This was a violation

of 18 U.S.C. § 1519, as the Department knowingly

destroyed, concealed, covered up, and made false

entries in the agency record with the intent to influence

the proper administration within the jurisdiction of

its own agency.

Thus, the agency also violated 29 C.F.R. § 1980.

103, as the first complaints and dates of filing are

required, by law, to be put on record by the Secretary.

Even if the ALJ failed to put the evidence from the

drive on record, the ALJ was required to put the first

complaints filed in the Ninth. Leckner made telephonic

and written complaints to OSHA and the EPA starting

on May 31, 2018. Leckner provided this evidence to

OSHA and the ALJ. Reference Exhibit I (the

“Initial Complaint”) at App.47a; Exhibit IV (the “Date

of Discharge”) at App.72a. Leckner’s counsel wrote,

Additionally, Leckner reported to the...

Occupational Health and Safety several times

between May 31, 2018 and July 5, 201[8],

well within the 30 days required under the

EPA.

Opposition, p. 7. The agency also violated 29 C.F.R.

§ 1980.105(b), which states,

[a]t the same time, the Assistant Secretary

will file with the Administrative Law Judge

a copy of the original complaint and a copy

of the findings and/or order.

The agency even violated its own procedures with its

Federal partner agencies. Reference Exhibit V (“Coor

dination with Federal Partner Agencies”) at App.74a.

The date the first complaint was filed with the EPA

must be used as the complaint was filed within the

whistleblower provision’s filing period. Leckner filed

his first complaints on May 31, fourteen days before

his discharge on June 13, 2018. Reference Exhibit I

(the “Initial Complaint”) at App.47a; Exhibit IV (the

“Date of Discharge”) at App.72a. His signed employ

ment contract was with Apex and so June 13, 2018 is

the only official discharge date. Leckner also notified

Apex and GDIT between May 31 and June 1 that he

filed formal complaints.

VI.

Equitable Tolling Applies.

Respondents deliberately concealed evidence and

misled the complainant regarding the retaliatory

grounds for the adverse actions in such a way as to

prevent him from knowing and discovering the

requisite elements of a prima facie case. Leckner did

not discover Page’s email until August 21, 2019.

Leckner showed that subsequent and specific actions

after the initial wrongdoings by the respondents

prevented the commencement of the action in a timely

manner.

The Supreme Court recognizes equitable tolling.

In Johnson v. Ry. Express Agency, Inc., 421 U.S. 454,

459-60, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the

Supreme Court held that,

Consistent with the common understanding

that tolling entails a suspension rather than

an extension of a period of limitations,

petitioner is allowed whatever time remains

under the applicable statute....

The panel’s erroneous holding squarely conflicts with

the Supreme court’s holding in Johnson. Therefore,

this petition is absolutely necessary to secure and

maintain uniformity of this court’s decisions.

VII. Context Is a Factor

Importance.

Considerable

The ALJ incorrectly relied upon one excerpt, an

email, taken out of its context from the request for

hearing. But the Supreme Court recently addressed

this type of issue in Facebook Inc. v. Duguid, 926 F. 3d

1146 (9th Cir. April 1, 2021), explaining, that context

is “a factor of considerable importance.” The Supreme

Court reversed, remanded, and explained this principle

by saying, “where a sentence contains several ante

cedents and several consequents,” courts should “read

them distributively and apply the words to the subjects

which, by context, they seem most properly to relate.”

Here, the ALJ improperly concluded that Leckner’s protected activity first began on Apr. 13, 2018,

by taking an email out of its context which had emails

dating before April 13. In particular, in the same

request for hearing, the April 13 email was a response

to an April 5 email. Reference Exhibit II (the “Request”)

at App.53a. Leckner’s protected activity began on

Jan. 30, as Leckner’s counsel asserted in opposition

with supported with evidence on a memory drive.

To be consistent with the Supreme Court’s

decisions, the Supreme Court must apply the same

principle in Facebook Inc. to this case, by concluding

that

where an email thread contains several

antecedents and several consequents, courts

must read them distributively and apply the

emails to the subjects and dates which, by

context, they seem most properly to relate.

It was certainly most inappropriate for the

appellate court to not substitute its understanding

for that of the agency on context as the appellate court

should have been satisfied the agency was wrong.

VIII. No Company May Discriminate Against an

Employee Because of Any Lawful Act

Done by the Employee.

The plain text of the Sarbanes-Oxley Act, 18

U.S.C. § 1514A(a) and each of the other Acts prohibit

public companies and the subsidiaries of public

companies from retaliating. Respondents retaliated

by discharging, outing, demoting, suspending, threat

ening, harassing, defaming, withholding wages, per

diem, and overtime compensation.

On the memory drive, Page’s email to her

supervisor proves retaliation:

Just wanted to give you a heads up that

we’re looking to replace Christian Leckner—

he’s really gotten out of control with his

communications and it’s overflowing to the

customer at this point.

Reference Exhibit III (the “Retaliation”) at App.63a.

The assertions and evidence strongly indicate

that Leckner had raised concerns in the form of

repeated complaints about fraud, safety and health

violations, and other violations. A nexus was estab

lished between Leckner’s protected activity and the

respondents’ adverse actions. Respondents’ defense

should never have been believable as the evidence

contradicts the false statements made by respondents,

and is considered a pretext for retaliation.

The fact that Page sent an email with, “[j]ust a

heads up”, on April 16, 2018, to her supervisor, who

was the only authorized decision maker, statements

made by respondents should have never been

believable that it was on April 9 that a decision was

made to replace the complainant. Since Leckner

asserted in opposition and his request for hearing,

the ALJ erred in reaching its flawed decision.

Respondents’ counsel knowingly altered, falsified,

and made a false entry in the record, by changing a

calendar invite’s subject to name Leckner, with the

intent to influence the proper administration of this

matter.

IX.

It Is Well Established That Employers

Cannot Restrict the Protected Channels

of Raising Concerns.

The panel decision squarely conflicts with

Supreme Court and U.S. Courts of Appeals decisions.

The error occurred when ALJ Berlin wrote:

Campbell requested that Reed counsel

Complainant about speaking directly with

EPA. Id. Reed complied: she told Com

plainant to bring any project management

concerns to Campbell and Reed. Id.

ALJ Decision, p. 8. Reed telling Leckner not to raise

issues directly with the EPA is strong evidence of

causation. In the whistleblower anti-retaliation arena,

it is well established that employers cannot restrict

the channels of raising protected concerns. A reprimand

for failing to consult with a supervisor before blowing

the whistle constitutes direct evidence of discrimina

tory motive. McMahan v. Calif. Water Quality Control

Bd., 90-WPC-l, D&O of SOL, p. 4 (July 16, 1993).

Once the law protects a disclosure, it does not

permit a chain of command reporting requirement.

In raising safety concerns, employees are under no

obligation to report their concerns to their supervisors.

Fabricus v. Town of Braintree, 97-CAA-14, D&O of

ARB, at 4 (February 9, 1999) (collecting cases); Talbert

v. Washington Public Power Supply Sys., 93-ERA-35,

D&O of ARB, at 8 (Sept. 27, 1996) (“chain of command”

restrictions on reporting concerns would “seriously

undermine the purpose of whistleblower law”).

Accordingly, the Department has adopted the

following rule: “an employer may not with impunity,

discipline an employee for failing to follow the chainof-command, failing to conform to established channels,

or circumventing a superior, when the employee raises

an environmental health or safety issue.” Leveille v.

New York Air Nat’l Guard, 94-TSC-3/4, D&O of

Remand by SOL, at 16-17 (Dec. 11, 1995). Consequent

ly, taking adverse action against an employee because

the employee “circumvented the chain of command”

constitutes a violation of the whistleblower protection

statutes. Dutkiewicz v. Clean Harbors Enutl. Servs.,

95-STA-34, D&O of ARB, at 7 (Aug. 8, 1997), affd,

Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12

(1st Cir. 1998); Ellis Fischel State Cancer Hosp. v.

Marshall, 629 F.2d 563, 565 (8th Cir. 1980).

Even the Supreme Court has recognized viola

tions of the whistleblower protection statutes. In

Department of Homeland Security v. MacLean, 135

S. Ct. 913, 190 L. Ed. 2d 771 (2015), the Supreme Court

even held that a federal air marshal was protected

by the Whistleblower Protection Act when he leaked

to the media an agency plan to stop air marshals from

traveling due to a budget constraint. This was certainly

a disclosure outside the chain of command. It even

violated official agency regulations. Still, the Supreme

Court held it was protected and MacLean was rein

stated as an Air Marshal.

In this vein, as the Supreme Court decided in

Department of Homeland Security v. MacLean, refer

enced above, employees are protected even if they go

“around established channels” in bringing forward a

safety complaint; go “over” their “supervisor’s head”

in raising a concern, Nichols v. Bechtel Construction,

Inc., 87-ERA-44, D&O of SOL, at 17 (Oct. 26, 1992);

violate or fail to follow the workforce “chain of com

mand” or normal procedure, McMahan v. California

Water Quality Control Board, 90-WPC-l, D&O of SOL,

at 4 (July 16, 1993); Brockell v. Norton, 732 F.2d 664,

668 (8th Cir. 1984); or refuse to disclose information

they confidentially told the government. Saporito v.

Florida Power & Light Co., 89-ERA-7/17, SOL Remand

Order, at 5, n. 4 (June 3, 1994).

Reviewing Nichols,

explained:

the

Eleventh

Circuit

Even without Chevron, it is appropriate to

give a broad construction to remedial statutes

such as nondiscrimination provisions in

federal labor laws. See, e.g., Jones v. Metropolitan Atlanta Rapid Transit Auth., 681

F.2d 1376, 1380 (11th Cir. 1982).... The

Secretary’s interpretation promotes the reme

dial purposes of the statute and avoids the

unwitting consequence of preemptive retali

ation, which would allow the whistleblowers

to be fired or otherwise discriminated against

with impunity for internal complaints before

they have a chance to bring them before an

appropriate agency. See, e.g., Macktal v.

Secretary of Labor, 923 F.2d 1150, 1152 (5th

Cir. 1991).

Bechtel Const. Co. v. Secy of Labor, 50 F.3d 926, 932-33

(11th Cir. 1995). The ability of an employee to com

municate directly with corporate, law enforcement or

regulatory authorities is a critical component of

employee whistleblowing.

It Is Well Established That Employers

Cannot Restrict the Protected Channels

of Opposition.

The panel decision conflicts with the Supreme

Court’s decision in Crawford v. Metropolitan Govern

ment of Nashville and Davidson County, Tennessee,

129 S.Ct. 846 (2009), construing an analogous anti

retaliation provision that suggests that an employee’s

disclosures are protected. The Supreme Court held in

Crawford that

when an employee communicates to her

employer a belief that the employer has

engaged in...a form of employment discrimi

nation, that communication’ virtually always

‘constitutes the employee’s opposition to the

activity.’ An example of protected activity in

the form of opposition include complaining

to management about discrimination against

oneself.

Leckner complained to management about discrimi

nation against himself from March to April 16, 2018

when his supervisors imposed unlawful chain-ofcommand restrictions on him, in violation of the

whistleblower protection provisions.

The panel’s erroneous holding conflicts with the

Supreme court’s holding in Crawford. Therefore, this

petition is necessary to secure maintain uniformity of

this court’s decisions.

XI.

The Conflict Between Hukman and the

Ninth Circuit Will Discourage Whistle

blowers.

In Hukman v. US Airways Inc., ARB No. 20180048, ALJ No. 2015-AIR-00003 (ARB Jan. 16, 2020),

Decision and Order, the Ninth Circuit’s holding below

squarely conflicts with the Department in Hukman.

SOX gives the Department responsibility to adjudicate

administrative complaints of whistleblower retaliation.

18U.S.C. § 1514A(b).

The ALJ erred by placing limits as to the form of

matters received from Leckner. In an apparent effort

to regulate the course of the proceedings without using

any evidence provided by Leckner, the ALJ issued its

decision flawed with errors. ALJ Berlin wrote,

Complainant offers no evidence and does not

argue in his opposition to summary decision

that he engaged in any other protected

activity. Indeed, Complainant did not submit

any evidence whatever with his opposition

to summary decision.

Decision, p.13. the ALJ continued,

In his brief, Complainant cites evidence which

Respondents submitted. He also cites exhibits

that neither he nor any other party put on

the record. On summary decision, “[i]f a party

fails to properly support an assertion of fact

or fails to properly address another party’s

assertion of fact,” the ALJ may “[g]rant sum

mary decision if the motion and supporting

materials—including the facts considered

undisputed—show that the movant is entitled

to it....” 29 C.F.R. § 18.72(e)(3).

Decision, p.13 fnl6. But it was the ALJ who declined

to credit any of Leckner’s submissions except for one

email taken out of context, and instead treated respond

ents’ false assertions as unopposed. In Hukman, the

Board held that this is legal error. See Hukman, p. 6.

The next error by the ALJ was his statements

limiting the complainant’s submissions in response

to respondents’ motions for summary decisions. The

non-exhaustive list of permissible methods promulgated

by the Secretary also includes “documents, electroni

cally stored information, stipulations (including those

made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” The ARB

in Hukman explained,

An ALJ may modify the permissible means

of proof listed or implied by the rule under

the authority granted him by the Secretary

at 29 C.F.R. § 18.10(c), but such limitation

may only be ordered to serve the ends of

justice and without prejudice to either party.

Hukman, pp. 6-7. The Board continued,

Even if such a constraining decision were

held to be lawful, the ALJ also erred in his

legal analysis of Complainant’s submissions.

As a threshold matter, it is important to keep

in mind that whenever a representative—or

an unrepresented party...—presents to an

ALJ “a written motion or other paper—

whether by signing, filing, submitting, or

later advocating it,” the presenter implicitly

certifies, inter alia, that the factual conten

tions in the document “have evidentiary

support.”

Hukman, p.7. The Assistant Secretary and the ALJ

failed to put Leckner’s submissions of evidence on

record, nor credit any of his submissions. The Board

explained in Hukman,

For the purposes of summary decision, an

ALJ must consider that the Complainant

could testify on the stand at hearing to

explain what he submitted and how it

supports his case.

The Board in Hukman explained improper fact

finding,

The ALJ improperly made findings of fact

in the course of summary decision in this

matter. When the ALJ makes findings of

fact in this context, the ALJ no longer is

analyzing the record for summary decision,

but is improperly making fact findings on

the record alone without having held a

hearing on the merits.

A judge’s task in considering a motion for

summary decision is to view the submissions in the

light most favorable to the non-moving party. In this

case, the ALJ instead viewed the evidence submitted

in favor of the moving party rather than the non

moving party to find and conclude that there was no

protected activity, no contributing factor causation,

the environmental complaints were not timely filed,

GDIT was not an ERA covered employer, and that

respondents proved their affirmative defense. All of

these findings were adverse to the non-moving party

despite Leckner’s submissions as will be more fully

explained below.

When Leckner alleged in his pleadings that he

reported serious violations and submitted narrative

reports about fraud, safety and health violations,

cyber violations, nuclear violations, he succeeded in

showing that a genuine issue of material fact existed

as to whether he thereby raised a reasonable belief

that he was reporting violations. The ALJ failed to

properly analyze the issue of protected activity by

having excluded all of Leckner’s evidence.

Relevant to Leckner’s burden to prove protected

activity are the documents submitted by Leckner to

the ALJ. What his submissions and assertions show

is that Leckner has sufficiently alleged and supported

with materials his allegations of protected activity to

survive summary decision, that he was covered under

ERA, and that he had timely filed under the environ

mental acts. All of the protected activities must be

further developed on remand in a hearing on the

merits.

When the AU analyzed whether Leckner’s plead

ings and submissions establish a genuine issue of

material fact that Complainant was subject to multiple

adverse actions to survive respondents’ motion for

summary decision, the ALJ also failed to see that

Leckner suffered multiple adverse actions. The ALJ,

in err, concluded that removal and termination adverse

actions were the only adverse actions.

The ALJ erred by not viewing wage theft is an

adverse action. In Leckner v. Apex Systems, LLC,

General Dynamics Information Technology, Inc., CSRC

LLC, Case No. WC-CM-648548 (Dec. 23, 2019), the

Labor Commissioner found all defendants guilty of

wage theft, another adverse action, before the ALJ

issued its decision on Jan. 23, 2020. The ALJ did not

use any evidence other than one email taken out of

context with his decision granting summary decision.

The ALJ erred in its flawed fact-finding that the

chain-of-command restriction did not constitute an

adverse action. The ALJ failed to consider that the

complainant showed how it had a tangible effect on

his employment. Chain-of-command restriction and

written discipline constitutes an adverse action,

under SOX, even in the absence of tangible effect, as

the ARB explained in Williams v. American Airlines,

Inc., ARB No. 2009-0018, ALJ No. 2007-AIR-00004,

Slip op. at 10-11 (ARB Dec. 29, 2010):

Fundamentals of statutory construction

dictate that, in determining whether or

not...[there is] adverse action within the

meaning of [Act], the starting point ‘“is the

language of the statute itself and the

implementing regulations construing the rele

vant statutory text, which we are duty bound

to follow in the [Act] case. As previously

discussed, [Act] prohibits “discrimination”

against an employee with respect to the

employee’s “compensation, terms, conditions,

or privileges of employment.”...By imple

menting regulation, the Department of Labor

has interpreted [Act] prohibition against

discrimination to include efforts “to intimi

date, threaten, restrain, coerce, blacklist,

discharge or in any other manner discrimi

nate against any employee” because the

employee has engaged in protected activity.

(emphasis added and citations omitted). Thus, under

each act as applied to the circumstances of this case

and in the instant procedural posture, the written

discipline cited by the ALJ presents a genuine dispute

of material fact as to whether it is an unfavorable

personnel action.

The ALJ, in err, excluded respondents’ other ten

adverse actions. One question a fact-finder may ask

in deciding whether an action is an adverse action

under the whistleblower statutes is whether it would

tend to dissuade a reasonable employee from engaging

in protected activity. The Board in Hukman held

that regardless of whether an action would dissuade

a reasonable employee, and excluding “isolated trivial

employment actions that ordinarily cause de minimus

harm or none at all to reasonable employees, an

employer should never be permitted to deliberately

single out an employee for unfavorable employment

action as retaliation for protected whistleblower

activity.”

Given their evident adverse and material effects

on the complainant, a genuine issue of material fact

was established as to whether and how each of these

adverse actions constituted unfavorable employment

action, and much more than trivial, and/or would tend

to dissuade a reasonable employee from engaging in

protected activity.

The Supreme Court must conclude that there is

a genuine issue of material fact as to whether

respondents took multiple adverse actions against

the complainant. Furthermore, a genuine issue of

material fact has been established as to whether

respondents took adverse action against complainant

in requiring him to follow chain-of-command restric

tions. Thus, the AU’s conclusion that the complainant

only established a genuine issue of material fact that

the complainant was subject to only the adverse actions

of removal and termination must be vacated.

To prevail against the respondents’ motions, the

complainant’s counsel cited admissible evidence that

established a genuine dispute as to whether he suffered

an unfavorable personnel action by respondents that

was caused, in whole or in part, by the complainant’s

protected communications. As such, this court must

consider that the complainant’s submissions, even if

the Department lost his counsel’s memory, established

a genuine dispute as to whether his protected activity

caused respondents to take the unfavorable personnel

action against him.

Respondents avers that it did not know about

any of the complainant’s protected activity. To the

contrary, Leckner averse that he engaged in protected

activity and the employers had knowledge of his

protected activity beginning in January 2018. Leckner’s

evidence proves that Page told her supervisor that

she was looking to replace him due to his communi-

cations having overflowed to the EPA. Leckner’s

assertions and evidence are sufficient to show that

respondents took multiple adverse actions.

Thus, if the April 16, 2018 statement was given

to a supervisory employee, and which the agency must

accept as true on summary decision, the documents

show a temporal proximity of less than five minutes

between respondents acknowledging the complainant’s

reports and adverse action taken against him on

April 16. This temporal gap is far too close to ignore

and therefore the complainant is entitled to defeating

summary decision as a matter of law.

When an ALJ renders a summary decision, the

ARB’s review is de novo, and as such the analysis

cannot be simply a matter of excluding the evidence

and not comparing the length of the temporal gap of

five minutes and deciding that there can be no causa

tion. This is because the determination must be made

in the context of the facts of the case. As the ARB

explained in Hukman,

determining what, if any, logical inference

may be drawn from the temporal relation

ship between the protected activity and the

unfavorable employment action is not a

simple and exact science but requires a

‘fact-intensive’ analysis.

The panel failed to have been cautious in affirming

summary decision against a complainant when the

complainant has provided prima facie evidence of

protected activity, numerous adverse actions, and

perhaps the shortest temporal proximity in history.

XII. Protected Activity Raised Through Un

official Channels Under Sox Is Defined by

the Passaic Valley Case and the Authority

Upon Which Passaic Valley Was Based.

The controlling precedent for interpreting the

scope of protected activity raised by an employee

using unofficial channels (i.e. such as complaining to

a supervisor) under SOX was established by Congress.

This court must apply this precedent to this case.

Congress was fully cognizant of the case law

when it enacted SOX, and by modeling SOX upon

these prior laws, Congress expressed its intention

that the Department follow this unbroken line of

precedent. If there was any doubt whatsoever about

the standard the DOL was required to apply in SOX

cases under 18 U.S.C. § 1514A(a)(l), Congress expli

citly re-affirmed the prior precedent of the DOL

when it cited, with approval, to the case of Passaic

Valley Sewerage Comm. v. U.S. Department of Labor,

992 F.2d 474, 478-79 (3rd Cir. 1993) in the legislative

history of SOX. As long as an internal complaint made

outside the formal reporting channels was made in

good faith and not frivolous, it was protected, period.

XIII. Employee Disclosures to Approved

Channels Are Entitled to a Higher Level

of Protection.

The Guttman-Passaic Valley standard was devel

oped in the context of informal employee complaints

to co-workers or supervisors. However, most whistle

blower laws also, implicitly, or explicitly, identify

channels of communication open to employees for

raising complaints. Depending on the law, these

official channels differ. In environmental protection,

the channels are the EPA project managers. SOX

itself established various official lines of communi

cation. § 806 explicitly identified supervisors and

internal corporate concerns programs as an approved

channel of communication (i.e. disclosures to persons

with the “authority to investigate, discovery, or

terminate misconduct”). 18 U.S.C. § 1514A(1)(C).

Case law concerning protected disclosures made

through these official lines of communication is even

broader than the informal disclosures protected under

the Guttman-Passaic Valley standard. Communica

tions made to these official reporting offices are very

broad-and designed to ensure that persons can freely

and without fear raise issues with the offices designed

to review the veracity of a complaint. Reference 18

U.S.C. § 1514A(a)(2).

The Munsey v. Federal Mine Safety and Health

Review Comm’n, 595 F.2d 735 (D.C. Cir. 1978) decision

set forth the proper scope of protected activity in the

context of an employee who raises concerns through

an established line of communication. In Munsey,

communications made through established channels—

even those established informally by custom and

usage, are near absolute. There are no heightened

standards or materiality requirements. Indeed, issues

raised through official channels are protected, period.

If complaints filed through proper channels could

be subject to a restrictive content analysis, such an

analysis would have a chilling effect on employee

speech. Employees would have to second-guess

themselves before raising concerns, even before

organizations or structures that are explicitly designed

to accept such complaints, and weed out the important

complaints from the frivolous complaints. Thus, if an

employee utilizes an established line of communication

to raise a concern, the ability of the ALJ to scrutinize

the contents of that complaint is extremely limited.

In the context of the SOX, complaints covered

under the Munsey Standard include not only com

plaints to the SEC, but also other internal complaints

to officials designated by the company to investigate

or correct misconduct, and supervisors, including the

EPA.

XIV. The Department of Labor Has Not

Changed the Sylvester-Munsey-GuttmanPassaic Valley Doctrines and They

Remain Binding to This Day.

Given the Congressional endorsement of the

Sylvester-Munsey-Guttman-Passaic Valley standards

in the context of the SOX, the panel cannot not overturn

these standards.

In Sylvester v. Parexel International LLC, ARB

No. 07-123, ALJ Nos. 2007-SOX-039, 042, the Board

rejected the “definitively and specifically* standard

and returned to the broad standard that better

comports with the statute’s remedial purpose. Not

only was the “definitively and specifically* standard

rejected, that standard undermined the purpose

behind SOX. Congress passed § 806 in response to:

a culture, supported by law, that discour

age^] employees from reporting fraudulent

behavior not only to the proper author

ities...but even internally. This “corporate

code of silence” not only hampers investi

gations, but also creates a climate where

ongoing wrongdoing can occur with virtual

impunity.

S. Rep. No. 107-146, at 5 (2002).

XV. The Present Case Is Covered Under the

Munsey Standard.

In the present case, respondents have already

set out the official channels for employees to use in

raising compliance concerns. It has adopted and

published the Code of Business Conduct and Ethics

and referred to it in its 10-K to inform both its

employees and its investors of the thoroughness of its

internal controls. These rules declare this Code is

intended to deter wrongdoing and to promote the

conduct of the Company business in accordance with

high standards of integrity and in compliance with

applicable laws and regulations.

Thus, reporting suspected violations of law to

one’s supervisor is the official channel for employees

to assure that the company is maintaining its internal

controls as required by SOX. Reporting up the chainof-command is the official proceeding to comply with

SOX. The complainant raised his concerns pursuant

to official channels, and thus the standard set forth

in Munsey applied and cannot be overturned by ALJ

Berlin nor the appellate court.

XVI. Leckner Does Not Need to Establish

That the Concerns He Raised Relates to

Fraud on Shareholders.

While SOX clearly prohibits frauds on share

holders, it also protects employees who disclose

suspicious activities that may indicate the existence

of a potential fraud. Employees have the right to

complain about improperly installed software because

it could indicate that a problem may arise in the

future. As explained by the Association of Certified

Fraud Examiners (ACFE), the heart of any statute of

policy designed to detect fraud is the protection of

early-warnings. Fraud is designed to be well hidden,

and employees are the most likely source of disclosures

that can lead to the detection of fraud. Consequently

the ACFE mandates that employees be encouraged

to report “suspicious activities.” ACFE, 2010 Global

Fraud Report, pp. 5, 17.

Leckner disclosed fraudulent activities that indi

cated the existence of fraud. The EPA in its early

investigation uncovered fraud based on Leckner’s

EPA complaints. See https://www.epa.gov/sites/default/

files/2019-05/documents/_epaoig_20190520-19-p-0157.

pdf. General Dynamics employees admitted to billing

the EPA for a transition that never occurred. Reference

Leckner’s FCA complaint: United States ex rel. Leckner

v. Gen. Dynamics Info. Tech., & Apex Sys., 21-cv-1109BAS-BLM (S.D. Cal. June 14, 2021).

Additionally, SOX coverage is not limited to fraud.

Far from it. SOX mandates cover every single

requirement that the SEC imposes on regulated

industry, whether these requirements are simply

reporting mandates, internal corporate structural

requirements or provisions of the securities laws

designed to ultimately protect shareholders. Every

rule, regulation and law administered by the SEC is

covered under SOX, not just laws related to the

protection of shareholders. SOX is a very broad statute.

If a company is negligent in failing to establish or

maintain its internal controls on cybersecurity, that

is a violation of its legal duties under SEC regulations.

There is no public purpose that is served by allowing

company managers to punish employees who raise

concerns about management’s neglect in failing to

maintain required internal controls, even if no fraud

is involved. Accord, Smith v. Corning, 496 F.Supp.2d

244, 248 (W.D. NY 2007).

In Klopfenstein v. PCC Flow Technologies Hold

ings, Inc., ARB Case No. 04-149, 2004-SOX-ll (May

31, 2006), the ARB addressed the scope of protected

activity under SOX. At p.17, the ARB explained:

SOX protection applies to the provision of

information regarding not just fraud, but

also “violation of...any rule or regulation of

the Securities and Exchange Commission.”

18U.S.C. § 1514A(a)(l).

Alleging fraud is not required for a SOX claim.

Accord Smith v. Corning, 496 F.Supp.2d 244, 248

(W.D. NY 2007); Deremer v. Gulfmark Offshore Inc.,

2006-SOX-2 (ALJ June 29, 2007); Hughart v. Raymond

James & Associates, Inc., 2004-SOX-9 (ALJ Dec. 17,

2004); Hendrix v. American Airlines, Inc., 2004-AIR10, 2004-SOX-23 (ALJ Dec. 9, 2004). There is no

requirement that protected activity include any “magic

words” to invoke protection. See U.S. ex rel. Elms v.

Accenture LLP, No. 07-1361, 2009 WL 2189795, at *4

(4th Cir. July 22, 2009) (finding plaintiff who alleged

he “expressed his misgivings” and stated the company

was “shortchanging the government” sufficiently

pleaded that he took action in furtherance of a qui

tarn suit to survive a Rule 12(b)(6) (dismissal)).

According to the ALJ’s decision, General Dynamics

argued that the complainant’s concerns were not

protected. This argument is wrong. General Dynamics’s

entire business is predicated on compliance with the

rules and regulations governing its practices. Its own

Form 10-K in place during the time period relevant

to this case (its 2018 10-K) readily establishes the

materiality of its practices. Not only are practices

material to the company’s stock prices, the entire

corporate reputation and business plan is predicated

on its reputation for demanding strict compliance

with its practices. We request that this court take

judicial notice of General Dynamics’ 10-K forms filed

with the SEC and provided to its investors, and

carefully review these forms in light of the ALJ’s

ruling.

It is inconsistent for General Dynamics to inform

investors that employees are required to report

potential misconduct to their supervisors, and then

for General Dynamics to inform the Department of

Labor that such disclosures are not protected. In fact,

General Dynamics’ conduct toward the employee in

this case also raises a regulatory issue for which the

SEC must investigate.

CONCLUSION

For the foregoing reasons, the Petitioner asks

this Court to grant this petition and reverse the

flawed decision of the Ninth Circuit.

Respectfully submitted,

Erik Leckner

Petitionee Pro Se

747 S. Mission Road

Unit 2923

FALLBROOK, CA 92088

(760) 459-7772

April 22,2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.