                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-1322


LARRY DAN PRINCE,

                Petitioner,

          v.

HILDA L. SOLIS, Secretary, United States          Department   of
Labor; UNITED STATES DEPARTMENT OF LABOR,

                Respondents,

WESTINGHOUSE SAVANNAH RIVER COMPANY, LLC,

                Intervenor.



On Petition for Review of an Order of the United States
Department of Labor Administrative Review Board. (10-079)


Submitted:   May 7, 2012                     Decided:   June 15, 2012


Before AGEE, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John P. Batson, Augusta, Georgia, for Petitioner.     M. Patricia
Smith, Solicitor of Labor, Jennifer S. Brand, Associate
Solicitor, Jonathan T. Rees, Seema N. Patel, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents. Charles
F. Thompson, Jr., Columbia, South Carolina, for Intervenor.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Pursuant to 29 C.F.R. § 24.110(a), a petition for review of

an administrative law judge’s (“ALJ”) decision must be filed——

that    is     hand-delivered,               postmarked,        e-mailed,     or   facsimiled——

within ten business days of the date of the decision. Petitioner

Larry        Dan         Prince         contends          the    Department        of         Labor’s

Administrative             Review           Board     (“ARB”)     wrongly      dismissed          his

petition for review, which he filed eleven business days after

an ALJ’s dismissal of his complaint. Finding no error, we affirm

the order of the ARB.



                                                     I.

        As    part        of     a     staff       reduction,     Intervenor       Westinghouse

Savannah River Company, LLC (“WSRC”) discharged Prince, then a

quality       engineer           at     a     nuclear     research      facility,        in    2005.

Thereafter,          Prince           filed    a    complaint      with      the   Occupational

Safety        and        Health        Administration,          alleging      retaliation          in

violation           of     the        whistleblower         provisions        of   the        Energy

Reorganization            Act,        42    U.S.C.    § 5851,     the     Clean    Air    Act,     42

U.S.C. § 7622, the Solid Waste Disposal Act, 42 U.S.C. § 6971,

and     the     Toxic          Substances           Control     Act,    15    U.S.C.          § 2622.

Following an ALJ’s March 3, 2010 1 dismissal of his complaint,

       1
           All events occurred in 2010 unless otherwise indicated.


                                                      2
Prince had ten business days in which to file a petition for

review   with      the   ARB. 2     See    29    C.F.R.      §   24.110(a).     Prince’s

petition was thus due on or before March 17. Prince’s counsel

received the decision via post on March 8, seven business days

before a      petition       for   review       was   due.     Counsel   then   notified

Prince of the decision via e-mail. Although he received actual

notice   of    the    decision      from    his       counsel    on   March   8,   Prince

initially did not receive a copy of the order from the ALJ due

to a clerical error. The ALJ did, however, subsequently send

Prince a copy of the decision, which he received on March 15,

two business days before the ten-business-day deadline expired.

J.A. 157. 3

     On March 18, one day after the ten-business-day deadline

had expired, Prince’s counsel filed a petition for review. The

ARB received the petition, and, after WSRC objected, ordered

Prince to show cause why it should not dismiss the petition as

untimely. Prince filed a response on April 19 and an amended

response      on     April    23,    arguing,          among     other   things,      that

equitable     tolling     should     excuse       the    tardy     filing,    given    his



     2
       The Secretary of Labor has authorized the ARB to review
recommended decisions of ALJs in cases like Prince’s. See 29
C.F.R. § 24.110(a).
     3
       Citations to “J.A. --” refer to the Joint Appendix filed
by the parties in this appeal.



                                            3
“good     faith    belief        about      the       need   for     the     length    of    the

Petition,” and “how long it took to do the 43 page Petition.”

J.A. 97. On November 17, the ARB issued a final decision and

order dismissing Prince’s appeal as untimely under 29 C.F.R.

24.110(a),        finding    that          Prince      failed      to    demonstrate         that

equitable     tolling       of    the       filing      period     was       appropriate.     On

November 29, Prince filed a motion for reconsideration, which

the ARB denied on February 2, 2011. Prince filed the instant

petition     for    review       on    April      1,    2011,      within      the   sixty-day

filing period set forth in 42 U.S.C. § 5851(c)(1).



                                              II.

      Our review is governed by the Administrative Procedure Act,

5 U.S.C. § 706, under which the ARB’s decision will stand unless

it   is    unsupported      by    substantial           evidence        or    is   “arbitrary,

capricious,        an   abuse         of    discretion,         or      otherwise      not    in

accordance with law.” Yellow Freight Sys., Inc. v. Reich, 8 F.3d

980, 984 (4th Cir. 1993) (internal quotation marks and citation

omitted).     We    review       an    agency’s         decision        to   deny     equitable

tolling for abuse of discretion. Rouse v. Lee, 339 F.3d 238,

247, n.6 (4th Cir. 2003) (en banc); see also Chao v. Va. Dep’t

of Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).

          The thrust of Prince’s argument is that the ARB mistakenly

treated the ten-business-day period as a “limitations period,”

                                                  4
rather than a “claim-processing period,” and therefore felt it

could not consider his arguments for equitable tolling. 4 The

record, however, indicates otherwise. As the ARB made clear in

its   decision,       “the   regulation    establishing       a   ten-business-day

limitations period for filing a petition for review with the

Board      is   not    jurisdictional      and      is    therefore    subject    to

equitable modification.” J.A. 158.

          The record reflects that Prince and his counsel had actual

notice     of   the    ALJ’s   decision    prior     to    the    filing   deadline;

nonetheless, neither Prince nor his counsel provides a reason

that prevented the filing of a timely petition. In sum, the ARB

considered       Prince’s      arguments      for        equitable    tolling    and

concluded that Prince’s arguments were “unconvincing.” J.A. 159.

Having reviewed the record, we have no occasion to disagree, and

hold that the ARB did not abuse its discretion in dismissing

Prince’s petition.




      4
        To the extent that Prince’s briefs make additional
arguments, we find those without merit and therefore do not
discuss them further herein.



                                          5
                                   III.

      For the foregoing reasons, we affirm the order of the ARB.

We   dispense   with   oral   argument    because   the   facts   and   legal

contentions are adequately presented in the materials before the

Court and argument would not aid the decisional process.

                                                                   AFFIRMED




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