Ellison v. United States Department of Labor

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13054 ELEVENTH CIRCUIT
JUNE 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. 08-119-ARB
ANTHONY ELLISON,
Petitioner,
versus
UNITED STATES DEPARTMENT OF LABOR,
ADMINISTRATIVE REVIEW BOARD,
Respondent.
________________________
Petition for Review of an Order from the
Administrative Review Board, Department of Labor
________________________
(June 17, 2010)
Before EDMONDSON, BIRCH and COX, Circuit Judges.
PER CURIAM:
Anthony Ellison filed a complaint against his employer with the Occupational
Safety and Health Administration (“OSHA”), alleging that he was terminated in
retaliation for activities protected under whistleblower provisions of the Clean Air
Act, Toxic Substances Control Act, Safe Drinking Water Act, Federal Water
Pollution Control Act, Solid Waste Disposal Act, and the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). OSHA found
the complaint without merit, and Ellison requested a hearing with the Department of
Labor Office of Administrative Law Judges. Prior to the hearing, his employer filed
a motion for summary disposition, which an ALJ granted before Ellison filed a
response to the employer’s motion. Ellison appealed to the Department of Labor
Administrative Review Board (ARB), which remanded the case after concluding that
the ALJ had incorrectly calculated the due date for Ellison’s response to the motion
for summary disposition and had prematurely issued its summary decision order. On
remand, the ALJ once again granted Ellison’s employer summary disposition, and
Ellison appealed to the ARB.
The ARB issued a scheduling order, which provided that “Complainant may
file an initial brief . . . on or before September 2, 2008. If the Complainant fails to
file the initial brief on time, the Board may dismiss the Complainant’s appeal.” (R.1-
57 at 1) (emphasis omitted). On September 6, 2008, Ellison’s counsel sent his initial
brief to the ARB via Federal Express. The ARB received the brief on September 8.
Ellison’s employer filed a motion to strike the brief as untimely filed, and the ARB
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issued an order to show cause why the brief should not be stricken and the appeal
dismissed. Ellison responded to the order and contended that the brief was timely
filed. He argued that regulations he believes apply to proceedings before the ARB
add five days to the filing period when a document is filed by mail and an additional
five days when an order requesting the filing of a document is served by mail. So,
according to Ellison, his brief was timely filed because it was received by the ARB
before September 12, 2008. In addition, believing that language in the ARB’s order
to show cause reflected that it had prejudged the issue of the timeliness of his brief,
Ellison requested that the ARB and its counsel recuse and/or disclose the names of
those involved in issuing the order as well as disclose any ex parte communications
that may have occurred. The ARB denied these requests and dismissed Ellison’s
appeal because it concluded that his brief was untimely filed and that counsel’s
explanation for the late filing was not credible.
Ellison petitioned this court for review of the ARB’s order. The petition
challenges: (1) the ARB’s conclusion that his initial brief was untimely filed; (2) the
failure of the ARB to recuse board members that issued the show cause order or to
disclose information regarding bias; and (3) the failure to remand his case for
consideration of claims against his employer’s parent corporation, who Ellison claims
is a named defendant in this case that did not respond to his complaint and is in
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default. In an order dated September 10, 2009, we dismissed Ellison’s petition as to
claims under the Clean Air Act, Toxic Substances Control Act, and Safe Drinking
Water Act because his petition was untimely filed with this court. In this order, we
also held that his petition was timely filed and his case could proceed as to claims
under the Federal Water Pollution Control Act, Solid Waste Disposal Act, and
CERCLA.
The ARB does not have its own procedural regulations. Instead, implementing
regulations for the statute under which complaints are filed generally govern an
appeal to the ARB. See 29 C.F.R. § 24.100 (providing that 29 C.F.R. Part 24
implements procedures for handling retaliation complaints under certain
environmental protection statutes, including those that formed the basis for Ellison’s
claims). The implementing regulation at 29 C.F.R. § 24.110 refers to ARB
proceedings. Subsection (b) states that “[t]he Board will specify the terms under
which any briefs are to be filed.” This means that in the absence of a separate
regulation addressing the timing of the filing of briefs, the ARB has discretion, during
the course of proceedings before it, to set deadlines for the filing of briefs, to assess
compliance with those deadlines, and to determine the consequences for a failure to
comply.
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Ellison argues that 29 C.F.R. Part 24 “incorporates” 29 C.F.R. Part 18, which
is titled “Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges.” And, Ellison interprets certain regulations in
Part 18 to add at least five, and possibly ten days to the deadline for the filing of the
initial brief in his appeal. See 29 C.F.R. § 18.4(c)(1) and (3). The regulation
delimiting the scope of Part 18, however, states that Part 18 applies to proceedings
before ALJs; nothing suggests that it applies to proceedings before the ARB. See 29
C.F.R. § 18.1. And, a separate provision in Part 18 suggests that its rules do not
apply to procedures for appeals. See 29 C.F.R. § 18.58 (“The procedures for appeals
shall be as provided by the statute or regulation under which hearing jurisdiction is
conferred.”) See also Herchak v. America West Airlines, Inc., ARB No. 03-057, ALJ
No. 02-AIR-12, slip op. at *2 (Dep’t of Labor Admin. Rev. Bd. May 14, 2003)
(rejecting argument that an untimely petition for review was rendered timely by 29
C.F.R. § 18.4(c)(3)). While in certain contexts, the ARB “often looks to the Rules of
Practice and Procedure for Administrative Hearings . . . for guidance on procedural
matters,” Madonia v. Dominick’s Finer Foods, Inc., ARB No. 99-001, ALJ No. 98-
STA-2, slip op. at *3 (Dep’t of Labor Admin. Rev. Bd. January 29, 1999), the ARB
is not bound to do so, and it has never suggested that it would apply the procedures
for administrative hearings to determine filing deadlines. Rather, pursuant to 29
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C.F.R. § 24.110, the ARB may prescribe, through orders in each proceeding before
it, the terms for the filing of briefs. And, we will not disturb those rulings unless the
ARB abuses its discretion in setting or enforcing filing deadlines.
In the scheduling order for Ellison’s appeal, the ARB stated that his brief must
be filed “on or before” September 2, 2008. And, it stated that a failure to comply with
this deadline could result in the dismissal of the appeal. The ARB, in the exercise of
its discretion to manage proceedings before it, informed Ellison of the filing deadline
and informed him of the potential consequence for failing to meet that deadline. Even
so, Ellison, whose counsel has litigated a number of cases before the ARB and should
have been familiar with its procedures, failed to meet the deadline. After providing
Ellison an opportunity to show cause why his appeal should not be dismissed and
after concluding that he had not offered a credible explanation for the delay, the board
applied the same consequence that is contemplated in its order—dismissal of the
appeal. We acknowledge that the dismissal of an appeal is a harsh sanction for a
procedural error. But because the scheduling order was unambiguous, because
Ellison’s counsel was an experienced litigator familiar with ARB procedures, and
because Ellison was offered an opportunity to justify the filing delay, we cannot
conclude that this sanction amounts to an abuse of discretion in this case. We also
conclude that Ellison’s other contentions on appeal are without merit. Ellison has not
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presented sufficient evidence of bias to justify disturbing the ARB’s order in this
case. And, the caption of Ellison’s complaint shows that his employer is the only
named defendant in this case. (R.1-1 at 1.) Therefore, the ARB had no reason to
remand Ellison’s case for consideration of claims against another party.
AFFIRMED.
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