Karl Seuring v. Delta Air Lines, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARL SEURING, No. 19-73334
Petitioner, LABR No. 2018-AIR-00033
v.
MEMORANDUM*
DELTA AIR LINES, INC.,
Respondent.
On Petition for Review of an Order of the
Department of Labor
Submitted December 9, 2020**
Seattle, Washington
Before: BERZON, MILLER, and BRESS, Circuit Judges.
Karl Seuring petitions for review of an order of the Department of Labor’s
Administrative Review Board (ARB) denying for failure to comply with ARB rules
Seuring’s petition for review of an Administrative Law Judge (ALJ) decision. We
have jurisdiction under 49 U.S.C. § 42121(b)(4)(A). We may set aside the ARB’s
*
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).
order if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see 49 U.S.C. § 42121(b)(4)(A)
(providing that review of an ARB order in the court of appeals “shall conform to
chapter 7 of title 5, United States Code”). We deny the petition.
Seuring’s original petition before the ARB failed to comply with 29 C.F.R.
§ 1979.110(a), which requires that “[t]he petition for review must specifically
identify the findings, conclusions, or orders to which exception is taken.” Rather
than deny the petition on that basis, the ARB gave Seuring another opportunity to
file a complying petition, but made clear he must do so “on or before October 9,
2019,” or else “his petition for review will be DISMISSED.” Seuring filed his
amended petition one day late, on October 10, 2019. Seuring in a separate motion
claimed he was close to retaining counsel who would seek to file a further amended
petition. The ARB then waited another eighteen days before denying Seuring’s
original petition for non-compliance with 29 C.F.R. § 1979.110(a) and declining to
accept his amended petition as untimely. Under the circumstances, this decision was
reasonable and not an abuse of discretion.
Seuring errs in claiming he was not given an opportunity to argue equitable
tolling before the ARB. Seuring did not request an extension of time before the ARB
or explain why his untimeliness should be excused. Regardless, the ARB considered
that “Complainant is self-represented and is seeking counsel” and concluded, after
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giving Seuring eighteen more days to secure counsel or provide a status update, that
“further delay is not in the interests of justice.” “Equitable tolling applies when the
plaintiff is prevented from asserting a claim by wrongful conduct on the part of the
defendant, or when extraordinary circumstances beyond the plaintiff’s control made
it impossible to file a claim on time.” Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir.
1999), as amended (Mar. 22, 1999). Seuring has not demonstrated why he is entitled
to equitable tolling or why the ARB’s adherence to its procedural rules was an abuse
of discretion or otherwise contrary to law.
PETITION DENIED.
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