Stephen Durham v. Dep't of Labor

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0162n.06
No. 11-4312
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Feb 13, 2013
DEBORAH S. HUNT, Clerk
STEPHEN P. DURHAM, :
:
Petitioner, :
: ON PETITION FOR REVIEW
: FROM THE OFFICE OF
v. : ADMINISTRATIVE LAW
: JUDGES, UNITED STATES
DEPARTMENT OF LABOR; : DEPARTMENT OF LABOR
TENNESSEE VALLEY AUTHORITY, :
:
Respondents. :
BEFORE: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge.*
OPINION
PER CURIAM:
Mr. Stephen Durham petitions for review of the Administrative Review Board’s dismissal
of his appeal for failing to timely file his opening brief as instructed by the Board’s brief scheduling
order and failing to show good cause. We DENY the petition for review.
As an initial matter, we reject Durham’s request to review the Board’s decision to dismiss
his appeal using a standard of review requiring bad faith. Final orders of the Secretary of Labor
under the Clean Air Act are reviewed by courts using the standard outlined in the Administrative
* The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-4312
Durham v. Department of Labor; Tennessee Valley Authority
Procedure Act, 5 U.S.C. § 706 (2). See 42 U.S.C. § 7622(c). The Board’s dismissal represents a
final order of the Secretary and, as such, the standard of review in the APA guides our analysis.
Second, the Board’s dismissal for Durham’s failure to comply with both the briefing order
and the show cause order was not an abuse of its discretion under the Clean Air Act. The
Administrative Review Board has authority to “specify the terms under which any briefs are to be
filed.” 29 C.F.R. § 24.110(b). The Board has “power to control its docket via dismissal . . . similar
in all significant respects to that vested in the courts,” Consol. Coal Co. v. Gooding, 703 F.2d 230,
232 (6th Cir. 1983), and judicial review of a Board dismissal is governed by the APA’s abuse of
discretion standard. See Ellison v. Department of Labor, 384 F. App’x 860, 863 (11th Cir. 2010)
(per curiam).
Durham and his attorney separately received copies of the Notice of Appeal and Order
Establishing Briefing Schedule, as well as the Board’s Order to Show Cause; both orders carried the
warning that failure to comply with the order could result in dismissal. As a result, Durham received
sufficient notice on two separate occasions that dismissal would result from a failure to comply with
the Board’s order.
Additionally, Durham’s method of responding to the Board’s show cause order, by email,
was expressly prohibited by the Board. Even this improper medium of responding to the Show
Cause Order failed to provide any justification for Durham’s procedural deficiencies in pursuing his
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No. 11-4312
Durham v. Department of Labor; Tennessee Valley Authority
appeal, and prompted the Board to state: “Durham’s reply to the Board’s show cause order offers no
comprehensible explanation for his failure to timely file his opening brief.”
In light of the Board’s clear provision of notice regarding the consequences that would result
from successive procedural failures in conjunction with the repeated deficiencies exhibited in
Durham’s responses, we find that the Board’s dismissal does not represent a clear error in judgment,
nor was it based on information which did not reasonably support dismissal. See Carpenter v. Solis,
439 F. App’x 480, 484 (6th Cir. 2011)(“An abuse of discretion occurs when we are left with the
‘definite and firm conviction that a trial court committed a clear error of judgment.’”) (citation
omitted).
The Administrative Review Board is authorized to reject briefs that do not comply with its
filing instructions in order to “achieve the orderly and expeditious disposition of cases.” Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Durham and his counsel repeatedly failed to comply
with these orders, in spite of the Board’s attempts to obtain a reasonable explanation for the
unreasonable delay. The Board thus acted within its discretion in dismissing Durham’s appeal.
For the foregoing reasons, we DENY the petition for review.
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