                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                 FOR THE TENTH CIRCUIT                      May 29, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
HUNTER R. LEVI,

               Petitioner,

v.                                                         No. 14-9583
                                                      (No. LABR-1: 13-047)
THOMAS PEREZ, Secretary,                               (Petition for Review)
United States Department of Labor,

               Respondent.

------------------------------

ANHEUSER-BUSCH INBEV NV/SA;
ANHEUSER-BUSCH, LLC,

               Intervenors.


                                 ORDER AND JUDGMENT*


Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.


       Hunter R. Levi, proceeding pro se, filed a complaint alleging that

Anheuser-Busch InBev and Anheuser-Busch LLC violated the Sarbanes-Oxley Act

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(SOX). An Administrative Law Judge (ALJ) dismissed the complaint, and the

Administrative Review Board (ARB) affirmed the ALJ’s dismissal. Mr. Levi now

petitions for review of the ARB’s decision. We have jurisdiction to consider the

petition for review pursuant to 18 U.S.C. § 1514A(b)(2)(A) and 49 U.S.C.

§ 42121(b)(4)(A). We deny the petition.

      I. Background

      Mr. Levi was an employee of Anheuser-Busch, LLC (formerly,

Anheuser-Busch, Inc.) for a number of years until he was suspended in February

2003. His suspension was converted to a discharge in March 2003. Mr. Levi’s union

challenged his termination but an arbitrator upheld the discharge in August 2003.

Mr. Levi filed several actions after his termination, alleging that he was discharged in

retaliation for engaging in protected activities under SOX. All of the cases were

ultimately dismissed.

      In May 2011, Mr. Levi requested an estimate of his pension benefits. He

disagreed with the estimated pension calculation, and shortly thereafter he filed a

complaint with the United States Department of Labor Occupational Safety and

Health Administration (OSHA). In his complaint, he alleged that Anheuser-Busch

InBev and Anheuser-Busch, LLC violated SOX when they allegedly changed his

termination date from August 6, 2003, to March 4, 2003, which purportedly affected

his pension calculation. OSHA investigated the complaint.




                                          -2-
      In August 2012, the Secretary of Labor, acting through the OSHA Regional

Administrator, found that there was no reasonable cause to believe that

Anheuser-Busch violated the Sarbanes-Oxley Act, and dismissed the complaint.

Mr. Levi then filed an objection to the Secretary’s decision and requested a hearing

before an ALJ.

      The ALJ initially set a hearing date for January 2013, but then cancelled and

continued the hearing date due to federal budgetary uncertainties. Both Mr. Levi and

Anheuser-Busch filed motions for summary decision. The ALJ issued a decision

denying Mr. Levi’s motion for summary decision, granting Anheuser-Busch’s

motion, and dismissing the complaint.

      Mr. Levi petitioned the ARB to review the ALJ’s decision. The ARB affirmed

the dismissal of Mr. Levi’s complaint. This proceeding followed.

      II. Discussion

      We review the ARB’s decision under the Administrative Procedure Act

(APA), 5 U.S.C. § 706. See Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d

1121, 1128 (10th Cir. 2013). As relevant here, a court may not overturn the agency’s

decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law” or “unsupported by substantial evidence.” 5 U.S.C.

§ 706(2)(A), (E). “Substantial evidence is such relevant evidence a reasonable

person would deem adequate to support the ultimate conclusion.” Lockheed Martin

Corp., 717 F.3d at 1129 (internal quotation marks omitted). “When applying the


                                          -3-
substantial-evidence standard, this court reviews the entire record, including the

ALJ’s recommendation and any evidence contrary to the Board’s decision.”

Id. (internal quotation marks and brackets omitted).

      The whistleblower provision of SOX provides in relevant part that no covered

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.” 18 U.S.C. § 1514A(a). To establish a

prima facie claim for a violation of § 1514A, an employee must show: (1) he

engaged in protected activity; (2) the employer was aware of such activity; (3) he

suffered an adverse personnel action; and (4) the protected activity was a contributing

factor in the adverse personnel action. Lockheed Martin Corp., 717 F.3d at 1129.

      Mr. Levi argued before the agency that Anheuser-Busch altered his

termination date from August 2003 to March 2003 in retaliation for his protected

SOX activities thereby reducing his future pension benefits. The ALJ determined,

however, that Mr. Levi could not establish a SOX claim because he did not suffer an

adverse personnel action.

      The record evidence shows that an employee’s benefit determination date is

the last day of the final month in which contributions are made to the plan on behalf

of the participant. The evidence further shows that the last day Mr. Levi worked was

February 14, 2003—the date he was suspended—and the last contribution that

Anheuser-Busch made on his behalf was in February 2003. His benefit determination


                                         -4-
date is therefore February 28, 2003, regardless of whether his effective termination

date is March 2003 or August 2003. The amount of an employee’s pension benefit is

calculated on the number of days actually worked, not the effective date of

termination.

      Mr. Levi argues that the agency erred in its determination because he was

issued a check from Anheuser-Busch on August 14, 2003. Although Anheuser-Busch

did issue a check to Mr. Levi in August 2003, it is undisputed that the check was for

accrued vacation or sick pay and was not compensation for any hours worked after

February 14, 2003.

      Mr. Levi also argues that the Secretary erred by not finding Anheuser-Busch in

default for not answering his complaint within thirty days. In support of his

argument, Mr. Levi relies on 29 C.F.R. § 18.5. That regulation provides that within

thirty days after the service of a complaint, the respondent shall file an answer.

Id. § 18.5(a). If the respondent fails to file an answer, then the ALJ is authorized to

enter a decision in the complainant’s favor. Id. § 18.5(b).

      Mr. Levi argued in his motion for summary decision that his September 2012

objection to the dismissal of his complaint and request for a hearing before the ALJ

required Anheuser-Busch to file an answer under § 18.5. The ALJ ruled:

“Assuming, but not deciding, that section 18.5 applies to a party’s request for a

de novo hearing before an administrative law judge after receiving the Secretary’s

Findings denying a SOX complaint, Complainant did not properly serve


                                          -5-
Respondent’s attorney-of-record. Complainant’s motion for summary decision is

denied.” Admin. R. at 878 n.7 (citation omitted).

       The ALJ issued orders on October 3 and 19, both of which informed Mr. Levi

that he must serve all pleadings on counsel of record. The October 19 order specified

that Joseph J. Torres was Anheuser-Busch’s attorney of record. Mr. Levi continued

to file pleadings without serving them on Mr. Torres. On January 22, 2013, the ALJ

issued another order regarding Mr. Levi’s failure to serve counsel of record. The

ALJ noted that he had informed Mr. Levi in the October 19 order that all documents

must be served on Mr. Torres but that Mr. Levi had subsequently filed at least four

documents without serving counsel of record. The ALJ stated that Mr. Levi must

resend a copy of all of the prior filings to Mr. Torres and serve all future filings on

Mr. Torres or risk being subject to sanctions.

       Section 18.5 requires service of a complaint before a respondent must answer.

It is undisputed that Mr. Levi did not serve his objection and request for a hearing on

Joseph Torres, counsel of record.1 If the pleading was not properly served on counsel

of record, then the obligation to respond was not triggered. Moreover, as the ALJ

noted in his decision, it is not clear that § 18.5 applies to the situation here where the

pleading at issue was an objection and request for a hearing. In addition, although
1
       Mr. Levi’s pleadings indicate that they were sent to Governor James
Thompson at the Winston & Strawn law firm. Although Mr. Torres also works at
Winston & Strawn, Mr. Levi never included Mr. Torres’ name on the pleadings he
sent to that firm. As noted above, Mr. Levi was repeatedly informed that Mr. Torres
was counsel of record and that the pleadings must be served on him.


                                           -6-
§ 18.5 “authorize[s]” the ALJ to find in favor of the complainant for failing to

answer, it does not mandate such a result. Under these circumstances, the ALJ did

not abuse his discretion in denying the motion for summary decision based on

Mr. Levi’s request for default under § 18.5.2

      III. Conclusion

      Substantial evidence supports the agency’s determination that Mr. Levi’s

“pension benefits were calculated based upon the date of his employment suspension,

February 14, 2003, when his pay as an employee ended” and therefore the effective

date of his termination is irrelevant. Admin. R. at 1558. Because Mr. Levi failed to

demonstrate that he suffered an adverse personnel action, the agency concluded he

could not maintain a successful SOX claim and properly dismissed his complaint.

       The petition for review is denied. Mr. Levi’s “Request for Court Action

Under 18 U.S.C. 1514A (SOX)” is also denied. Mr. Levi’s request for leave to

proceed without prepayment of costs or fees (IFP) is granted.

                                                Entered for the Court


                                                John C. Porfilio
                                                Circuit Judge




2
       The ARB did not reach Mr. Levi’s default argument on the merits, deciding
instead that this argument was moot after determining that there was no adverse
personnel action. Because we disagree with the ARB that the default argument was
moot, we consider the ALJ’s ruling on the default issue.


                                         -7-
