                                                                       FILED
                                                                        MAY 22 2018
                            NOT FOR PUBLICATION                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


ROBERT POWERS,                                   17-70676

              Petitioner,                        ARB Case No. 13-034
                                                 Department of Labor
 v.

U.S. DEPARTMENT OF LABOR,                        MEMORANDUM*

              Respondent,

UNION PACIFIC RAILROAD
COMPANY (UNION PACIFIC),

              Respondent-Intervenor.


                       On Petition for Review of an Order of
                       the United States Department of Labor

                             Submitted May 8, 2018**
                                Portland, Oregon




        *
             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).
Before: RAWLINSON and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.***

      Robert Powers petitions for review of a Final Decision and Order of the

Department of Labor’s Administrative Review Board (“ARB”), affirming the

Administrative Law Judge’s (“ALJ”) order of dismissal of Powers’ retaliation

claim under the Federal Railroad Safety Act (“FRSA”). We have jurisdiction

pursuant to 49 U.S.C. § 20109(d)(4), and we affirm.

      In May 2007, Powers notified his employer, Union Pacific Railroad Co.

(“Union Pacific”), of a work-related injury–an action that is protected under the

FRSA, 48 U.S.C. § 20109(a)(4). After being terminated in September 2008,

Powers filed a complaint with the Occupational Safety and Health Administration

(“OSHA”) against Union Pacific under 49 U.S.C. § 20109(d)(1). OSHA

investigated the complaint and made a preliminary finding of reasonable cause that

a violation had occurred. Union Pacific timely requested a de novo hearing, which

was held before an ALJ.

      The ALJ made a factual finding that Union Pacific’s decision to terminate

Powers was based on its reasonable belief that Powers had been dishonest about

his activities while on medical leave, and the reporting of his work injury was not a


        ***
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
                                          2
contributing factor to the termination. Reviewing the ALJ’s determination under

the substantial evidence standard, the ARB affirmed, dismissing Powers’

complaint.

      We review the ARB’s decision “in accordance with the Administrative

Procedure Act, under which 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) (citing 5 U.S.C. § 706). “This

standard of review is ‘highly deferential, presuming the agency action to be valid

and affirming the agency action if a reasonable basis exists for its decision.’” Nat’l

Mining Ass’n v. Zinke, 877 F.3d 845, 866 (9th Cir. 2017) (quoting Nw. Ecosystem

Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)).

      Substantial evidence supports the ALJ’s conclusions, including, inter alia,

that Powers continued to work for Union Pacific for 16 months before he was

fired; Union Pacific provided accommodations for the work injury during that

time; credible testimony established that Union Pacific officials reasonably

believed that Powers had been dishonest; and credible evidence established that

Powers had engaged in physical activities that were inconsistent with his medical

                                           3
restrictions. The ALJ’s credibility assessments were reasonable, and all evidence

was properly considered. We do not substitute our judgment for that of the

agency. Lockert v. U.S. Dep’t of Labor, 867 F.2d 513, 520 (9th Cir. 1989).

      We do not consider Powers’ argument related to his complaint filed under

the Federal Employers’ Liability Act as a protected activity because it was not

raised in the administrative proceedings below. Balser v. Dep’t of Justice, 327

F.3d 903, 908 (9th Cir. 2003).

      PETITION DENIED.




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