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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13151
Non-Argument Calendar
________________________
Agency No. 2017-037
MICHAEL B. BROWN,
Petitioner,
versus
SECRETARY OF LABOR,
Respondent.
________________________
Petition for Review of a Decision of the
Department of Labor
________________________
(July 11, 2018)
Before ED CARNES, Chief Judge, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Michael B. Brown, proceeding pro se, appeals the Administrative Review
Board’s order dismissing as untimely his petition for review of the administrative
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law judge’s denial of his Sarbanes-Oxley whistleblower complaint. He also
appeals the Board’s order denying his motion for reconsideration.
Brown worked as an audit manager at Synovus Financial Corporation from
November 2007 to January 2014, when he was fired. In July 2014 he filed a
counseled whistleblower complaint with the Occupational Safety and Health
Administration alleging that Synovus retaliated against him after he complained
about potential Sarbanes-Oxley violations. After an investigation, OSHA
dismissed his complaint in April 2015, finding that there was no reasonable cause
to believe that Synovus violated the Sarbanes-Oxley Act when it fired him. Brown
objected to that finding and requested a hearing before an ALJ. Brown also
retained a new attorney to represent him before the ALJ. Synovus then moved for
summary judgment, which the ALJ granted on Friday, December 16, 2016.
Brown had 14 days to appeal the ALJ’s decision to the Administrative
Review Board, which means that he had to file his petition for review by Friday,
December 30, 2016. See
29 C.F.R. § 1980.110(a) (Mar. 2015). He did not file an
appeal by that deadline. Instead, on April 6, 2017 — over three months after the
deadline — he filed a pro se “Motion and Brief to Set Aside the Order Due to
Fraud on the Court” under Federal Rule of Civil Procedure 60(d)(3),1 alleging that
the ALJ intentionally omitted and misrepresented facts in favor of Synovus. The
1
Rule 60(d)(3) allows a court to “set aside a judgment for fraud on the Court.”
2
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Board construed the motion as a petition for review and stated that it was untimely.
But because the 14-day appeal deadline is not jurisdictional and is subject to
equitable tolling, the Board ordered Brown to show cause as to why his petition
should not be dismissed as untimely.
Brown responded to the show cause order by arguing that equitable tolling
should apply because his attorney was ineffective. He stated that after receiving
the ALJ’s order on December 19, 2016, he immediately called his attorney to
discuss an appeal. He spoke with and visited his attorney over the next several
days and stated that he believed that his attorney had filed his appeal by the
December 30 deadline. But on January 14, 2017, he learned that his attorney had
failed to file a timely appeal with the Board. Brown attached a sworn affidavit
from his attorney confirming those allegations. Synovus argued in response that
the Board had repeatedly rejected ineffective assistance as a ground for equitable
tolling.
On May 17, 2017, the Board issued an order denying Brown’s petition on
the ground that attorney error does not permit equitable tolling. It also noted that
even though Brown learned on January 14, 2017, that his attorney had not filed an
appeal, Brown did not file an appeal within 14 days from that date; instead, Brown
waited over three months to file his motion. Brown filed a pro se motion for
reconsideration requesting that the Board entertain an independent action to
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reconsider its decision and to set aside the ALJ’s order for fraud on the court. The
Board denied that motion on the ground that it did not address any of the Board’s
grounds for granting a motion for reconsideration. This is his appeal.
We review the Board’s “decision pursuant to the standard of review outlined
in the Administrative Procedure Act.” DeKalb County v. U.S. Dep’t of Labor,
812
F.3d 1015, 1020 (11th Cir. 2016) (quotation marks omitted). We review de novo
the Board’s legal conclusions and its “factual findings are reversed only if
unsupported by substantial evidence on the record as a whole.”
Id. (quotation
marks omitted). Brown contends that the Board erred in construing his motion to
set aside the ALJ’s decision as a petition for review, instead of a motion under
Rule 60(d)(3), and that it erred in dismissing his motion as untimely. He also
contends that the Board erred in denying his motion for reconsideration. Brown’s
contentions fail.
The Board did not err in construing his motion to set aside the ALJ’s order
as a petition for review instead of a Rule 60(d)(3) motion. The Board liberally
construes pro se filings, Svendsen v. Air Methods, Inc., ARB Case No. 03-074,
2004 WL 1923132, at *1 n.2 (Aug. 26, 2004), and there is no authority for
Brown’s argument that the Board is required to follow the Federal Rules of Civil
Procedure, see Henrich v. Ecolab, Inc., ARB Case No. 05-030,
2007 WL 7143174,
at *5 (May 30, 2007) (“Adopting the entire Federal Rules of Civil Procedure
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would prevent the Board from exercising the greater authority it possesses as the
decision-maker for the Department of Labor.”).
The Board also did not err in denying Brown’s petition as untimely. The
ALJ issued its decision on December 16, 2017, which gave Brown until December
30, 2017 to file his appeal with the Board.
29 C.F.R. § 1980.110(a). But, as
Brown admits, he did not timely file an appeal, and his argument that attorney
error warrants equitable tolling is a non-starter. See, e.g., Higgins v. Glen Raven
Mills, Inc., ARB Case No. 05-143, at *9 & n.60 (Sept. 29, 2006) (“In considering
whether attorney error constitutes an extraordinary factor for tolling purposes, the
Board has consistently held that it does not because ultimately, clients are
accountable for the acts and omissions of their attorneys.”) (quotation marks and
alterations omitted) (collecting cases). And, as the Board noted, even if equitable
tolling did apply, once Brown learned on January 14, 2017, that his attorney did
not file his appeal, he had another 14 days to file that appeal. See id.; see also
29
C.F.R. § 1980.110(a). But instead of doing that, he waited over three months until
April 6, 2017, to file his motion with the Board. As a result, the Board did not err
in denying his motion as untimely. 2
2
Brown also argues the merits of the original whistleblower complaint that he filed, but
because the Board dismissed his petition on procedural grounds, we do not address the merits of
his complaint. See Fla. Dep’t of Labor & Emp’t Sec’y v. U.S. Dep’t of Labor,
893 F.2d 1319,
1321 (11th Cir. 1990) (“As a general rule in administrative law cases, a reviewing court may not
affirm an agency decision on grounds not addressed by the agency, but, rather, will remand for
the agency to address the issue in the first instance.”).
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Finally, the Board did not err in denying Brown’s motion for
reconsideration, which did not address any of the Board’s grounds for
reconsideration and was simply an attempt to relitigate his petition. See Kirk v.
Rooney Trucking Inc., ARB No. 14-035, at *2 (Mar. 24, 2016) (denying motion
for reconsideration where party failed to address the Board’s grounds for
reconsideration, which include material differences in fact or law from what was
presented to the Board and which the movant could not have known through
reasonable diligence; new material facts or a change in law arising after the
Board’s decision; or failure to consider material facts presented to the Board before
its decision).
PETITION DENIED.
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