Williams v. United States Department of Labor

FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY L. WILLIAMS, No. 10-71595
Petitioner, LABR No. 08-063
v.
MEMORANDUM *
UNITED STATES DEPARTMENT OF
LABOR,
Respondent.
On Petition for Review of an Order of the
Department of Labor
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Anthony L. Williams petitions pro se for review of the Department of
Labor’s Administrative Review Board (“ARB”) order denying his complaint under
the Whistleblower Protection Provision of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (“AIR 21”), 49 U.S.C. § 42121.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 49 U.S.C. § 42121(b)(4)(A). We review the ARB’s
decision pursuant to the Administrative Procedure Act (“APA”). Id. Under the
APA, “the ARB’s legal conclusions must be sustained unless they are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law, and its
findings of fact must be sustained unless they are unsupported by substantial
evidence in the record as a whole.” Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d
1117, 1121 (9th Cir. 2004). We deny the petition.
The ARB properly denied Williams’s complaint as untimely and concluded
that equitable principles did not apply to toll the limitations period. See 29 C.F.R.
§ 1979.103(d) (requiring a complainant file an administrative complaint “[w]ithin
90 days after an alleged violation of [AIR 21] occurs”); Stoll v. Runyon, 165 F.3d
1238, 1242 (9th Cir. 1999) (“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.”); Venezuela v. Kraft, Inc., 801 F.2d 1170,
1174-75 (9th Cir. 1986) (equitable tolling is warranted where the plaintiff showed
due diligence in pursuing his claim in the wrong forum), amended, 815 F.2d 570(1987).
Williams’s remaining contentions are unpersuasive.
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We deny Williams’s “Motion to file Motion of Summary Disposition
Beyond Briefing Period,” filed on March 9, 2011. See 9th Cir. R. 3-6. We deny as
moot Williams’s July 6, 2011 request for determination.
PETITION FOR REVIEW DENIED.
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