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                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ______________________

                                     No. 18-10038
                                 Non-Argument Calendar
                              _________________________

                                Agency No. 2010-SOX-038



ANITA JOHNSON,
                                                    Petitioner,

versus

U.S. DEPARTMENT OF LABOR,
                                                    Respondent,

ANTHEM, INC.
f.k.a. WellPoint, Inc.,
                                                    Intervenor.

                               ________________________

                          Petition for Review of a Decision of the
                                    Department of Labor
                                ________________________

                                       (May 18, 2020)

Before HULL and MARCUS, Circuit Judges, and ROTHSTEIN, * District Judge.


*
 The Honorable Barbara J. Rothstein, United States District Judge for the Western District of
Washington, sitting by designation.
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PER CURIAM:

         Petitioner Anita Johnson (“Johnson”) seeks review of a final order of the

Department of Labor’s Administrative Review Board (“ARB”) affirming an

Administrative Law Judge’s (“ALJ”) dismissal of her whistleblower-related

complaint brought under the Sarbanes-Oxley Act of 2002 (“SOX”), 18 U.S.C. §

1514A. Johnson argues she provided substantial evidence demonstrating that she

engaged in protected activity and was terminated in violation of the statute by her

former employer, WellPoint Inc. (“WellPoint”)1, as a result. After thorough review

and with the benefit of oral argument, the ARB’s determination is affirmed.

                                                 I.

         In 2007, Johnson was promoted to Director of Customer Care at WellPoint, a

for-profit health insurance company that contracts with states to administer state-

sponsored Medicaid and Medicare Plans. Johnson managed WellPoint’s Camarillo,

California and Savannah, Georgia correspondence centers. Johnson’s tenure at these

facilities was rocky and brief. In mid-2008, WellPoint’s Ethics and Compliance

Department (“E&C Department”) received two complaints that workers at the

Savannah facility had been instructed by Johnson to close correspondence logs in

the company’s computer system without actually processing them. The E&C


1
    WellPoint Inc. is now owned by Anthem Inc.


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Department’s investigation revealed reports from several employees that they had

been directed to close correspondence logs without working on them. One such

employee specifically identified Johnson as the origin of this direction.

      After its investigation, the E&C Department wrote a report of its findings,

which included evidence that Johnson and her subordinate manager had directed

employees to close correspondence logs without completing them, in violation of

WellPoint’s ethics requirements mandating that employees actually have done the

work they represent as completed. The report also recommended Johnson and her

subordinate be terminated. In October 2008, WellPoint fired Johnson and two other

managers implicated by the E&C Department’s investigation.

      After her termination, Johnson filed a SOX complaint with the Regional

Administrator of the Department of Labor’s Occupational Safety and Health

Administration (“OSHA”) alleging that WellPoint had terminated her employment

for engaging in SOX-protected activity.        Specifically, she claimed she was

terminated after telling WellPoint that its correspondence practices were fraudulent

and a violation of SOX.

      OSHA dismissed the complaint, finding that it was only after Johnson was

terminated that she raised these concerns. Following OSHA’s dismissal, Johnson

requested a hearing before an ALJ and then WellPoint filed a motion to dismiss and




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a motion for summary judgment.2 On remand, following discovery and a formal

hearing, the ALJ again dismissed Johnson’s complaint. Johnson appealed the ALJ’s

ruling to the ARB, which affirmed the ALJ’s decision to dismiss Johnson’s

complaint and denied her motion for reconsideration on the grounds that she failed

to establish that she had engaged in any protected activity under SOX and did not

meet at least one of the conditions needed to allow the ARB to reconsider its final

decision. She then appealed the ARB’s decision.

                                            II.

       Our review of the ARB’s ruling is governed by 5 U.S.C. § 706. See 18 U.S.C.

§ 1514A(b); 49 U.S.C. § 42121(b)(4)(A). We review the ARB’s legal conclusions

“de novo, keeping in mind that agencies often receive deference in construing the

statutes they administer.” DeKalb Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1020

(11th Cir. 2016). We can only overturn the ARB’s factual decision if it “is

unsupported by substantial evidence or if it is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance of law.” Fields v. U.S. Dep’t of Labor Ad.

Rev. Bd., 173 F.3d 811, 813 (11th Cir. 1999) (quoting 5 U.S.C. § 706(2)(A), (E)).

See Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1132 (11th




2
 The ALJ granted WellPoint’s motions and dismissed Johnson’s complaint finding that she had
not engaged in SOX-protected activity. On appeal, the ARB found that issues of fact existed,
vacated the dismissal and remanded the case to the ALJ for formal hearing.


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Cir. 2012) (reviewing, de novo, the Secretary of Labor’s legal conclusions but testing

his factual findings for substantial evidence).

      Substantial evidence “means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Stone, 684 F.3d at 1132. Under

this standard, the Court is prohibited from “deciding the facts anew, making

credibility determinations, or re-weighing the evidence.” Id. at 1133; see also

DeKalb Cty., 812 F.3d at 1020.

                                         III.

      Before addressing the merits, WellPoint argues that we do not have

jurisdiction over this appeal. WellPoint’s argument is as follows: 18 U.S.C. §

1514A(b), governing SOX-whistleblower protections, and 49 U.S.C. §

42121(b)(4)(A), codifying the SOX enforcement procedures, both require a petition

for review challenging a final order of the ARB to be brought within 60 days of the

order. See 18 U.S.C. § 1514A(2)(A). The ARB’s Final Decision and Order was

issued on August 31, 2017. Johnson did not file an appeal with this Court until

January 3, 2018. Instead, she filed a motion for reconsideration on October 2, 2017.

      WellPoint argues that since there is no statutory provision for reconsideration

of decisions of the ARB, the motion for reconsideration had no effect of the finality

of the August 31, 2017 order. Thus, Johnson’s petition for review in this Court was

untimely.



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        WellPoint is wrong; this Court has jurisdiction over this appeal. First, the 60-

day deadline in 49 U.S.C. § 42121(b)(4)(A) is a claim-processing rule rather than

one with jurisdictional consequences. The essential inquiry as to whether a filing

deadline is jurisdictional is whether Congress “wanted [it] to be treated as

jurisdictional.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 438–439

(2011). Because “filing deadlines . . . are quintessential claim-processing rules,” id.

at 435, such a rule regarding the time within which a party must file for review of an

administrative ruling, “however emphatic,” Arbaugh v. Y&H Corp., 546 U.S. 500,

510 (2006), is generally non-jurisdictional absent a “‘clear statement’ that the rule is

jurisdictional,” Corbett v. Trans. Sec. Admin., 767 F.3d 1171, 1177 (11th Cir. 2014)

(quoting Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)).

        Nothing in 49 U.S.C. § 42121(b)(4)(A) suggests “much less provide[s] clear

evidence, that the provision was meant to carry jurisdictional consequences.” Avila-

Santoyo v. U.S. Atty. Gen., 713 F.3d 1357, 1360 (11th Cir. 2013); see also Corbett,

767 F.3d at 1177 (finding 60-day statutory requirement to file a petition after an

order is issued “does not suggest Congress intended the deadline to have

jurisdictional consequences”).     The Supreme Court and this Circuit have also

interpreted similar provisions to have no jurisdictional consequences.              See

Henderson, 562 U.S. at 435; Corbett, 767 F.3d at 1177; Avila-Santoyo, 713 F.3d at

1360.



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      Additionally, we find that the ARB has the inherent and implied authority to

hear motions for reconsideration. Absent a statute or regulation prohibiting an

administrative agency from reconsidering a final order, agencies have the inherent

authority to do so. See Alabama Envtl. Council v. Adm’r, U.S. E.P.A., 711 F.3d

1277, 1290 (11th Cir. 2013) (recognizing an implied authority in agencies “to

reconsider and rectify errors even though the applicable statute and regulations do

not expressly provide for such reconsideration”); see also Gun South, Inc. v. Brady,

877 F.2d 858, 862 (11th Cir. 1989). The Supreme Court has also stated that an

“agency like a court, can undo what is wrongfully done by virtue of its order.”

United Gas Improvement Co. v. Callery Properties, 382 U.S. 223, 229 (1965); see

also American Trucking Assoc. v. Frisco Trans. Co., 358 U.S. 133, 145 (1958) (“the

presence of authority in administrative offices and tribunals to correct . . . errors has

long been recognized—probably so well that little discussion has ensued in the

reported cases”).

      Because the ARB had the implied authority to hear Johnson’s motion for

reconsideration, it tolled the filing deadline for her appeal to this Court. Such a

motion effectively renders the agency’s initial decision non-final until it is ruled

upon. Lewis v. U.S. Dep’t of Labor, Ad. Rev. Bd., 368 F. App’x 20, 29 (11th Cir.

2010) (citing Macktal v. Chao, 286 F.3d 822, 825-26 (5th Cir. 2002) (holding a




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“motion for reconsideration, filed within a reasonable time after the order [with the

DOL ARB], [is] effective to toll the appeal period”).

                                         IV.

      Turning to the merits of Johnson’s challenge to the ARB’s ruling, to prevail

on her whistleblower claim under SOX, Johnson had to prove by a preponderance

of the evidence that: (1) she engaged in protected activity; (2) WellPoint knew or

suspected that she engaged in the protected activity; (3) she suffered an adverse

action; and (4) the protected activity was a contributing factor in the adverse action.

See Bechtel v. Admin. Review Bd., U.S. Dep’t of Labor, 710 F.3d 443, 446–48 (2d

Cir. 2013) (setting forth the elements and burdens of proof for SOX whistleblower

retaliation claims); 29 C.F.R. § 1980.109 (providing that a complainant must

establish “by a preponderance of the evidence that protected activity was a

contributing factor in the adverse action alleged in the complaint) ). If the employee

establishes these four elements, the employer may avoid liability if it can prove “by

clear and convincing evidence” that it “would have taken the same unfavorable

personnel action in the absence of that protected behavior.” Bechtel, 710 F.3d at

446–48.

      Our review of the ARB’s August 31 order is limited to whether substantial

evidence in the record supports it. See Stone, 684 F.3d at 1132. Johnson argues the




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ARB erred in dismissing her complaint and affirming the ALJ’s finding that she

failed to show that she engaged in protected activity under SOX.

       At the heart of this case is a credibility determination between the conflicting

testimony of Johnson on the one hand and the WellPoint employees involved in her

investigation and termination. According to the WellPoint employees, Johnson

never mentioned anything about fraud, criminal activity, or any other protected

activity until after she was fired. After a two-day hearing and witness testimony, the

ALJ explained his reasoning for believing Johnson’s manager and those who

investigated the allegations against her over Johnson’s story. This Court must defer

to the ALJ’s credibility determinations unless plainly wrong. See Stone, 684 F.3d at

1133 (“[t]he substantial evidence standard limits the reviewing court from deciding

the facts anew, making credibility determinations, or re-weighing the evidence”);

N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1423 (11th Cir. 1998). See also

Warrior Met Coal Mining, LLC v. Sec’y of Labor, Fed. Mine Safety, 663 F. App’x

809, 813 (11th Cir. 2016) (rejecting appellant’s call to “re-weigh conflicting

evidence and the ALJ’s credibility determinations”). After a review of the record,

this Court finds no basis to set aside the ALJ’s credibility determinations. There is

substantial evidence to support his findings that Johnson did not engage in protected

activity.

                                               VI.



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     In conclusion, the ARB’s determination was supported by substantial

evidence and is therefore AFFIRMED.




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