In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2423
JANICE M. F LESZAR,
Petitioner,
v.
U NITED S TATES D EPARTMENT OF L ABOR,
Respondent.
Petition for Review of a Decision of the
Administrative Review Board
Nos. 07-091 & 08-061
A RGUED F EBRUARY 12, 2010—D ECIDED M ARCH 23, 2010
Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit
Judge, and SPRINGMANN, District Judge.^
E ASTERBROOK , Chief Judge. The American Medical
Association fired Janice Fleszar, who complained to the
Department of Labor that the discharge violated §806
of the Sarbanes-Oxley Act, a whistleblower-protection
provision. This law applies to a “company with a class of
^
Of the Northern District of Indiana, sitting by designation.
2 No. 09-2423
securities registered under section 12 of the Securities
Exchange Act of 1934 (15 U.S.C. 78l), or . . . required to file
reports under section 15(d) of the Securities Exchange
Act of 1934 (15 U.S.C. 78o(d))”. 18 U.S.C. §1514A(a).
The Department declined to investigate Fleszar’s allega-
tions, concluding that the AMA, a nonprofit membership
association that does not issue stock, is not covered. See
29 C.F.R. §1980.104(b). An administrative law judge
agreed, as did the Administrative Review Board, which
made the agency’s final decision.
Fleszar does not contend in this court that the AMA
has “a class of securities registered under” §12 of the
1934 Act. Section 15(d) provides that the SEC may require
any “issuer” of securities that has registered them under
the 1934 Act to file periodic reports for investors’ infor-
mation. Because the AMA does not have any outstanding
traded securities, it is not an “issuer,” and it is corre-
spondingly difficult to see how §15(d) could apply.
Instead of arguing that the record demonstrates that the
AMA is covered, Fleszar contends that the ALJ should
have ordered the Secretary to conduct an investiga-
tion—one that Fleszar hopes might turn up a connection
between the AMA and an issuer that would make §1514A
applicable. The Association formerly had an affiliated
broker-dealer (AMA Investment Advisers), through
which it offered mutual funds to its employees and
members for their retirement plans. The AMA told the
Department that it divested this affiliate during the 1990s
and that, since 2002, it has not filed, or been required to
file, any reports with the SEC—and that the reports it
No. 09-2423 3
used to file were required by ERISA rather than the
Securities Exchange Act of 1934. Fleszar believes that there
is a possibility that more evidence might show that the
AMA remains obliged to file reports (though under
what statute or regulation Fleszar does not say). And
§1514A(a) provides that its whistleblower-protection
rules apply to any “contractor, subcontractor, or agent” of
an entity that has stock covered by §12 or must file
reports under §15(d). Fleszar believes that an investiga-
tion by a team of bloodhounds at the Department of
Labor might turn up facts showing that the AMA is such
a “contractor, subcontractor, or agent”.
There is some question whether Fleszar’s complaints to
the Department (she filed two), and her administrative
appeals, were timely. We need not decide whether she
acted with the required dispatch, however, because the
Department does not ask us to dismiss the petitions on
account of any problems in the administrative process.
Belated administrative filings are not a jurisdictional
defect. Arbaugh v. Y&H Corp., 546 U.S. 500 (2006); Zipes
v. Trans World Airlines, Inc., 455 U.S. 385 (1982). The
Supreme Court distinguishes between mandatory case-
processing rules and true jurisdictional requirements.
See, e.g., Reed Elsevier, Inc. v. Muchnick, No. 08-103
(U.S. Mar. 2, 2010) (collecting authority). Rules of admin-
istrative procedure are in the former category. See
Union Pacific R.R. v. Brotherhood of Locomotive Engineers,
130 S. Ct. 584 (2009).
That is as far as Fleszar gets, however. She was the
applicant in the administrative process, so she bore the
4 No. 09-2423
burdens of production and persuasion. Director, OWCP v.
Greenwich Collieries, 512 U.S. 267 (1994); Harp v. Charter
Communications, Inc., 558 F.3d 722 (7th Cir. 2009); Allen
v. Administrative Review Board, 514 F.3d 468, 475–76 (5th
Cir. 2008). She did not satisfy either burden. Her pro-
posal to transfer those burdens to the Secretary not only
is incompatible with the Administrative Procedure Act
but also neglects the vital point that the Secretary’s deci-
sion whether to investigate and prosecute is not sub-
ject to review by an administrative law judge.
29 C.F.R. §1980.109(a). Nor is it open to judicial review.
Prosecutorial decisions are committed to agency discre-
tion. See 5 U.S.C. §701(a)(2); Heckler v. Chaney, 470 U.S.
821 (1985). (This aspect of the APA applies to whistle-
blower claims through a chain of references. See 18
U.S.C. §1514A(b)(2)(C), incorporating 49 U.S.C. §42121(b),
which in turn incorporates Chapter 7 of the APA.)
Fleszar believes that it would improve enforcement of
the Sarbanes-Oxley Act if the Secretary were more aggres-
sive in nosing out violations. But courts are not in the
business of inventing procedures that agencies must
follow; it is enough to enforce the statutes and regulations
on the books. Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).
An agency must be allowed the authority to decide
where its investigative and prosecutorial resources are
best applied. Judges do not know what is on the agency’s
menu and so cannot displace the agency’s choices
among projects. What sense would it make to direct the
Department to investigate the AMA, which almost cer-
tainly is not covered by §1514A? That would just reduce
No. 09-2423 5
the resources available to investigate and vindicate
claims by employees of publicly traded companies, the
statute’s main objects.
We don’t share Fleszar’s belief that the phrase “con-
tractor, subcontractor, or agent” means anyone who
has any contract with an issuer of securities. Nothing in
§1514A implies that, if the AMA buys a box of rubber
bands from Wal-Mart, a company with traded securities,
the AMA becomes covered by §1514A. In context, “con-
tractor, subcontractor, or agent” sounds like a reference
to entities that participate in the issuer’s activities. The
idea behind such a provision is that a covered firm, such
as IBM, can’t retaliate against whistleblowers by con-
tracting with an ax-wielding specialist (such as the char-
acter George Clooney played in “Up in the Air”). But
whether or not this is the right way to understand “con-
tractor, subcontractor, or agent”, Fleszar did not produce
evidence that the AMA fits this category, and the
Secretary was not legally obliged to assist her.
Fleszar’s reply brief contends that, if the Secretary did
not have to pitch in, the ALJ should have lent aid by
advising her how to conduct discovery more effectively.
She did not make such a request of the ALJ, however, or
contend on appeal to the Administrative Review Board
that the ALJ erred in this respect. Nor did Fleszar make
such an argument in her opening brief in this court.
Accordingly, we need not consider whether—and, if so,
when—an ALJ should depart from the role of a neutral
arbiter and act as a complainant’s legal adviser. Cf.
McNeil v. United States, 508 U.S. 106, 113 (1993). Statutes or
6 No. 09-2423
regulations create an obligation to assist pro se claimants
in some situations when entitlement to federal benefits
is at issue (e.g., Social Security disability proceedings,
see Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009));
such an obligation is less common when the agency
is adjudicating a dispute between private persons
(here, Fleszar versus the AMA). But this is an issue for
another day.
The petition for review is denied.
3-23-10