F. Barron STONE, Plaintiff-Appellant, v. DUKE ENERGY CORPORATION; Duke Energy Business Services, LLC, Defendants-Appellees.
No. 04-2562.
United States Court of Appeals, Fourth Circuit.
Decided Dec. 15, 2005.
Argued Sept. 21, 2005.
In sum, as would be expected of that which has as its object the ideal rather than the actual or the real, the “Platonic form” has yielded up for the majority an interpretation that produces what is sensed to be the ideal for which resort to “the Form” was made, but, alas, it is an interpretation that is able to claim no support whatsoever in that which is of the actual—that with which we as judges are to be concerned.
Because the majority appears to believe itself forced to its interpretation by what it perceives to be the unintended and unacceptable consequences of my interpretation, I should finally, perhaps, address myself to those consequences at least to say that I am not troubled at all about those that would appear to follow from the straightforward reading of the regulation, and even if I were, I would not yield to a troubled mind in this circumstance. To read the regulation as it is written does not, in any sense that I can discern, produce an absurd result. In fact, it would appear to produce a perfectly reasonable one. However, if perchance it is not the result intended or wished, the Department can simply amend the regulation forthwith. And far better that than the courts persist in all manner of linguistic contortion in effort to give judicial imprimatur to what it is only guessed to have been the intention of those who promulgated the regulation that is the source of our conjecture.
Were it the case that I disagreed with some parts of the majority‘s opinion, but agreed with others, I believe it would be incumbent upon me to say more than simply that “I dissent.” However, given that I disagree not merely with some of the majority‘s opinion but with the whole of that opinion, I do not believe that more is required of me to be said. I am, in other words, satisfied that none will misunderstand the statement “I dissent” to mean that while I dissent from some parts of my colleagues’ opinion, I concur in the remainder of the parts. Except perhaps those for whom the “Platonic form” is irresistible temptation.
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WIDENER and Judge MICHAEL joined.
OPINION
NIEMEYER, Circuit Judge.
F. Barron Stone commenced this action under the Sarbanes-Oxley Act of 2002, alleging that his employer, Duke Energy Corporation, retaliated against him for filing complaints of potential corporate fraud with the Securities and Exchange Commission and state utilities commissions, in violation of the whistle-blower
By order dated December 1, 2004, the district court dismissed Stone‘s complaint for lack of subject matter jurisdiction. The court apparently concluded that Stone was required to appeal from the agency directly to the Court of Appeals because the administrative law judge had issued what the court believed was a “final decision” disposing of Stone‘s administrative complaint.
Because the district court misconstrued its jurisdiction, we vacate its December 1, 2004 order and remand for further proceedings.
* * *
Stone filed an administrative complaint with the Department of Labor on October 30, 2002. After the Secretary of Labor issued findings and a preliminary order stating that “it is reasonable to believe that [Duke Energy] did not violate” the Sarbanes-Oxley Act, Stone filed timely objections with the Office of Administrative Law Judges. See
Accordingly, the United States District Court . . . has assumed jurisdiction and this case is no longer before the Office of Administrative Law Judges.
Eventually, on February 11, 2004, the district court dismissed Stone‘s complaint without prejudice because the complaint violated pleading requirements of
Stone filed a “Restated Complaint” on June 7, 2004, although he docketed his “Restated Complaint” as a separate action. On Duke Energy‘s motion, the district court again dismissed his complaint, but this time on the ground that the court did not have subject matter jurisdiction. The district court believed that the ALJ‘s June 19, 2003 order constituted a final decision of the agency that was appealable only to the Court of Appeals. See
In dismissing Stone‘s “Restated Complaint,” the district court failed to recognize that the ALJ‘s June 19 order was not an appealable final decision on Stone‘s administrative complaint. First, the ALJ did not decide the merits of Stone‘s complaint. Rather, he only acknowledged that he no longer had jurisdiction because the district court assumed jurisdiction when a complaint was filed there. Second, and more important, even if the ALJ‘s June 19, 2003 order could be taken as a “final decision,” it was a nullity because it was entered after jurisdiction had vested in the district court. Section 1514A(b)(1)(B) con-
Duke Energy contends that the district court lost jurisdiction when it dismissed Stone‘s first judicial complaint on February 11, 2004, for defects in pleading and because Stone filed a new complaint, rather than amending his existing one. While it is curious that Stone did not file his “Restated Complaint” in the then-pending case, but rather filed it as a new action, this fact is jurisdictionally irrelevant. The district court dismissed the initial complaint without prejudice to Stone, and Stone‘s second complaint was grounded on the same jurisdictional basis as was his first—i.e., that he had an administrative complaint in which a final decision had not been issued within 180 days. As of June 7, 2004, when Stone filed his “Restated Complaint,” the ALJ still had not entered a “final decision.”
Accordingly, we vacate the district court‘s December 1, 2004 order and remand for further proceedings.
VACATED AND REMANDED.