NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK LECKNER, No. 21-70284
Petitioner, ARB Case No. 2020-0028
v.
MEMORANDUM*
GENERAL DYNAMICS INFORMATION
TECHNOLOGY; et al.,
Respondents.
On Petition for Review of an Order of the
Department of Labor
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Erik Leckner petitions pro se for review of the Department of Labor’s
Administrative Review Board’s (“ARB”) final decision and order, and denial of
Leckner’s motion for reconsideration, affirming the Administrative Law Judge’s
(“ALJ”) summary dismissal of Leckner’s whistleblower retaliation complaint
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
against his former employers under the Clean Air Act (“CAA”), 42 U.S.C. § 7622,
the Comprehensive Environmental Response Compensation and Liability Act
(“CERCLA”), 42 U.S.C. § 9610, the Solid Waste Disposal Act (“SWDA”), 42
U.S.C. § 6971, the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2622, the
Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. § 1367, the Energy
Reorganization Act (“ERA”), 42 U.S.C. § 5851, and the Sarbanes-Oxley Act
(“SOX”), 18 U.S.C. § 1514A. We have jurisdiction under 42 U.S.C. § 7622(c)(1)
(CAA), 42 U.S.C. § 9610(b) (CERCLA), 42 U.S.C. § 6971(b) (SWDA), 15 U.S.C.
§ 2622(c)(1) (TSCA), 33 U.S.C. § 1367(b) (FWPCA), 42 U.S.C. § 5851(c)(1)
(ERA), and 18 U.S.C. § 1514A(b)(2)(A) (SOX). We review the ARB’s decisions
pursuant to the standard established in the Administrative Procedure Act (“APA”),
5 U.S.C. § 706. Under the APA, “we will reverse an agency’s decision only if it is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Coppinger-Martin v. Solis, 627 F.3d 745, 748 (9th Cir. 2010) (citation and
internal quotation marks omitted). We review de novo an agency’s interpretation
or application of a statute. Schneider v. Chertoff, 450 F.3d 944, 952 (9th
Cir. 2006). We deny the petition.
The ARB properly affirmed the dismissal as untimely of Leckner’s
retaliation claims under the CAA, CERCLA, SWDA, TSCA and FWPCA because
Leckner failed to raise a genuine dispute of material fact as to whether he filed his
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whistleblower complaint within 30 days of his employers’ alleged retaliatory
decisions. See 29 C.F.R. § 24.103(d)(1) (requiring a complainant file an
administrative complaint within 30 days after an alleged violation of the employee
protection provisions of the CAA, CERCLA, SWDA, TSCA and FWPCA).
The ARB properly affirmed the dismissal of Leckner’s retaliation claim
under the SOX because Leckner failed to raise a genuine dispute of material fact as
to whether he engaged in protected activity under the SOX. See Van Asdale v. Int’l
Game Tech., 577 F.3d 989, 996-97, 1000-01 (9th Cir. 2009) (to be protected
activity an employee must have a subjective and objectively reasonable belief that
the reported conduct violated one of the listed categories of fraud or securities
violations under 18 U.S.C. § 1514A(a)).
The ARB properly denied Leckner’s request to admit new evidence because
Leckner failed to demonstrate that the evidence could not have been discovered
with reasonable diligence before the record closed. See 29 C.F.R. § 18.90(b)(1)
(“No additional evidence may be admitted unless the offering party shows that new
and material evidence has become available that could not have been discovered
with reasonable diligence before the record closed.”).
We do not consider Leckner’s contentions concerning his ERA claim, or his
other arguments and allegations raised for the first time on appeal. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
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Leckner’s motion to supplement the record (Docket Entry No. 11) is denied.
Leckner’s motions to expedite (Docket Entry No. 21) and to file an
oversized reply in support of the motion to supplement the record (Docket
Entry No. 25) are denied as unnecessary.
Leckner’s motions to file a corrected and oversized reply brief (Docket
Entry Nos. 55, 57, 59 and 60) are granted. The Clerk will file the corrected reply
brief at Docket Entry No. 59-2.
PETITION FOR REVIEW DENIED.
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