                                                           [DO NOT PUBLISH]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,

                                                       Respondents.

                        ________________________

                  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

                                           5
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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