PATRICIA MICALLEF V. U.S. DEPARTMENT OF LABOR, No. 18-72418 (9th Cir. 2020)
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FILED NOT FOR PUBLICATION JAN 13 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT PATRICIA MICALLEF, No. Petitioner, U.S. COURT OF APPEALS 18-72418 LABR No. 16-095 v. MEMORANDUM* U.S. DEPARTMENT OF LABOR, Respondent, CAESAR’S ENTERTAINMENT CORPORATION, INC.; HCAL, LLC, Real Parties in Interest. On Petition for Review of an Order of the Administrative Review Board, Department of Labor Submitted January 8, 2020** Before: CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges. Patricia Micallef petitions pro se for review of the Department of Labor’s Administrative Review Board’s (“ARB”) final decision and order affirming the * 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). Micallef’s request for oral argument, set forth in her opening brief, is denied. dismissal of Micallef’s whistleblower retaliation complaint against her former employer under the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A. We have jurisdiction under 18 U.S.C. § 1514A(b)(2)(A). 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 of Micallef’s whistleblower retaliation complaint because Micallef failed to establish a prima facie case of retaliatory discrimination under SOX. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 996-97, 1000-01 (9th Cir. 2009) (discussing requirements for prima facie case of retaliation under SOX; an “employee’s communications must definitively and specifically relate to [one] of the listed categories of fraud or securities violations under 18 U.S.C.[ ] § 1514A(a)(1)” and the employee must have a subjective and objectively reasonable belief that the reported conduct violated a listed law (alterations in original) (internal quotation marks omitted)). The ARB did not err by denying Micallef’s request to admit new evidence because Micallef 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) (a party offering new evidence must demonstrate that “new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed.”). 2 18-72418 We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). PETITION DENIED. 3 18-72418
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