                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1182


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

           v.

PESSOA CONSTRUCTION COMPANY,

                Respondent.



                              No. 15-1251


PESSOA CONSTRUCTION COMPANY,

                Petitioner,

           v.

NATIONAL LABOR RELATIONS BOARD,

                Respondent.



On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (05-CA-034547;
05-CA-034761; 05-CA-035083)


Argued:   October 27, 2015                  Decided:   December 21, 2015


Before TRAXLER,   Chief   Judge,   WILKINSON     and   DUNCAN,   Circuit
Judges.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.


ARGUED:   David  A.   Seid,  NATIONAL  LABOR  RELATIONS   BOARD,
Washington, D.C., for Petitioner/Cross-Respondent.   Michael E.
Avakian, WIMBERLY, LAWSON & AVAKIAN, Washington, D.C., for
Respondent/Cross-Petitioner. ON BRIEF: Richard F. Griffin, Jr.,
General Counsel, Jennifer Abruzzo, Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Robert J. Englehart, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Petitioner/Cross-Respondent.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Pessoa          Construction       Company     (“Pessoa”)         discharged        its

former      employee,           William    Membrino        (“Membrino”),         from      his

position as a Commercial Motor Vehicle (“CMV”) driver in 2008.

The    National         Labor    Relations    Board    (the       “Board”)    found       that

Pessoa had discharged Membrino for engaging in union activities,

in    violation         of   §§ 8(a)(1)    and    (a)(3)     of    the    National       Labor

Relations Act (“NLRA”), see 29 U.S.C. §§ 158(a)(1) and (a)(3),

and    ordered         Pessoa    to   reinstate     Membrino       with    backpay       plus

interest.         We enforced the Board’s order.                   See Pessoa Constr.

Co. v. NLRB, 507 Fed. Appx. 304 (4th Cir. 2013) (per curiam).

       In    supplemental         proceedings,       the    Board    has     now    ordered

Pessoa to pay Membrino $95,046.07, plus interest, in backpay.

Pessoa      petitions           for   review,     asserting        that      its    backpay

liability should be $24,054.                 The Board applies for enforcement

of its supplemental order.                We deny Pessoa’s petition for review

and grant the Board’s application for enforcement.

                                             I.

       Under 29 U.S.C. § 160(c) of the NLRA, the Board is granted

broad,      but    not       unlimited,   authority,       to   award     backpay     to    an

employee who has been fired for engaging in union activities.

See Coronet Foods, Inc. v. NLRB, 158 F.3d 782, 788, 798 (4th

Cir. 1998).            The goal is “to restore the situation ‘as nearly as

possible,         to    that     which    would     have    obtained       but     for     the

                                              3
[employer’s]       illegal       discrimination.’”              Id.    at       798     (quoting

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)).

       Because     “backpay        is       within      the    ‘empiric          process        of

administration’       Congress          entrusted       to    the     expertise         of    the

Board,” “we review the Board’s backpay order for an abuse of . .

. discretion.”        Id. (quoting Phelps, 313 U.S. at 194); see id.

at 789 (noting that “the Board’s choice of remedy, resting on

the    Board’s    ‘fund     of    knowledge       all    its    own,’       must      be     given

special respect by reviewing courts” (quoting NLRB v. Gissel

Packing Co., 395 U.S. 575, 612 (1969)).                         “We must enforce the

Board’s chosen remedy unless it is arbitrary, capricious, or

manifestly       contrary    to       the    statute.”         Id.    at     788      (internal

quotation marks omitted).               “The [Board’s] findings of fact must

stand    if   ‘supported         by     substantial       evidence         on    the       record

considered as a whole.’”                    Id. (quoting 29 U.S.C. § 160(f)).

“Only in very clear circumstances should courts override the

Board’s findings in th[is] area.”                   Id. at 799.

       Ordinarily,    an     unlawfully        discharged        employee          is   awarded

backpay from the date of the unlawful discharge to the date the

employer offers valid, unconditional reinstatement.                              See NLRB v.

Waco    Insulation,       Inc.,       567    F.2d    596,      603    (4th      Cir.       1977).

However, “[e]mployees who lose their jobs as a result of unfair

labor practices must mitigate their damages by seeking interim

employment.”       Coronet, 158 F.3d at 800.                   The employee “need not

                                              4
actually obtain work,” but he “must make . . . a reasonable

effort to obtain interim employment.”                    Id. (internal quotation

marks omitted).             A claimant’s willful loss of interim earnings,

such   as    when      he    voluntarily   resigns       employment       without     good

cause,      tolls      the    backpay   period.        See   NLRB    v.       Pepsi   Cola

Bottling Co., 258 F.3d 305, 310 (4th Cir. 2001).                              Similarly,

“[a]n employee who willfully loses employment by engaging in

deliberate or gross misconduct is not entitled to backpay for a

resulting earnings loss.”               Id. at 311 (internal quotation marks

omitted).

       In   all     cases,      however,   it    is    the   offending        employer’s

burden “to establish any affirmative defense which would lessen

the    amount     of    backpay    owed    to    the   victims      of    its   unlawful

practices.”         NLRB v. Mining Specialists, Inc., 326 F.3d 602, 605

(4th Cir. 2003).             “And any doubts arising with regard to alleged

affirmative defenses are to be resolved against the employer who

committed the unfair labor practice.”                     Id.; see also Coronet,

158 F.3d at 800 (noting that “[t]he Board may resolve any doubts

against” the employer).

                                           II.

       Membrino has worked as a commercial truckdriver since the

early 1990s and, in this capacity, held a Class A commercial

drivers license (“CDL”) authorizing him to drive a variety of

commercial        vehicles.        Membrino      began    working        at   Pessoa,   a

                                            5
highway construction contractor, in approximately 2003 or 2004.

He left in June 2006 for another job, but returned at Pessoa’s

request in June 2007.               On October 23, 2008, shortly after the

Laborers’       International        Union    of       North    America         successfully

unionized       Pessoa’s        employees,    Pessoa      fired       Membrino        for    his

participation in union activities, in violation of the NLRA.

The Board subsequently ordered Pessoa to reinstate Membrino with

backpay, but he was not offered reinstatement until February 8,

2013, shortly after we affirmed the Board’s original order.

     Pursuant to the safety regulations of the Federal Motor

Carrier       Safety   Administration         (“FMCSA”)        of    the    United       States

Department of Transportation (“DOT”), a CMV driver is required,

among other things, to undergo a medical examination and obtain

a medical examiner’s certificate that he or she is physically

qualified       to     safely      operate       a    CMV.          See    49    C.F.R.       §§

391.11(b)(4),        391.41,      391.43,    &       391.45.        The    driver     must    be

medically        certified         every     24       months.             See    49      C.F.R.

§ 391.45(b)(1).            However, if the driver’s “ability to perform

[his or her] normal duties has been impaired by a physical or

mental    injury       or       disease,”    medical         certification          is    again

required.       49 C.F.R. § 391.45(c).                A driver is not qualified to

drive    if    he    has    a   “current     clinical        diagnosis      of    myocardial

infarction, angina pectoris, coronary insufficiency, thrombosis,

or any other cardiovascular disease of a variety known to be

                                             6
accompanied by syncope, dyspnea, collapse, or congestive cardiac

failure.”        49 C.F.R. § 391.41(b)(4).

        Membrino’s CDL license was valid as of October 24, 2008,

the first day after his unlawful termination by Pessoa, and he

immediately          began    to    search     for   interim      employment     as    a    CMV

driver.         On    November       3,   2008,      however,     Membrino     experienced

chest pain and numbness in his arms.                            He was diagnosed with

unstable        angina       pectoris,       acute    ischemic     heart     disease,       and

hypertension.            He    underwent       a     coronary     angiography,        and   an

angioplasty to treat the condition.                        On November 4, Membrino was

released from the hospital with a prescription for high blood

pressure        and    cholesterol.           He     was    advised     to   refrain       from

driving for two days and from heavy lifting for two weeks, and

was told to follow-up with his physician in 1-2 weeks.

      On     November         29,    2008,    Membrino       resumed     his   search       for

interim employment.                 He initially had no luck, but ultimately

secured six interim terms of employment, the last of which he

opted      to    continue          instead    of     accepting     Pessoa’s      offer      of

reinstatement.

      Membrino landed his first interim job with Portable Storage

in   April      2010.         As    the   final      step    in   the   hiring    process,

Membrino was required to pass the DOT medical examination and

receive the medical examiner’s certification (the “DOT card”)

required under the FMCSA regulations to drive a CMV.                              On April

                                                7
23,   2010,    Membrino      passed    the       physical   and   received     his    DOT

card.      However, Membrino received only a temporary, 3-month card

due to his diagnosis of hypertension.                       Membrino began working

for Portable Storage on April 27.                     One week later, however,

Portable Storage eliminated his position, which had been newly

created, because the route was not cost-effective. 1

      On    May   14,   2010,       Membrino       successfully      applied    for    a

position with Aggregate Industries.                  Aggregate likewise required

Membrino to complete a DOT physical and obtain a new DOT card.

Membrino      again   passed    the     physical,       and    was   again     given   a

temporary 3-month DOT card due to his hypertension.                            Membrino

began working for Aggregate on June 2, 2010, and he passed at

least one additional DOT physical thereafter.                        On December 17,

however, Membrino was fired after he backed his truck into a

tree.      He began working at Cylos, Inc., on December 21, 2010,

but was fired on December 30, for leaving work without draining

the   water    lines    in    his     truck.        Membrino      claimed    that     the

mechanic was aware of the water in the lines and had assured

Membrino that he would drain them, but Membrino was terminated

nonetheless.

      1  A Portable Storage witness testified that Membrino was
fired for failing to report for work for three consecutive days.
However, the ALJ credited Membrino’s version of the events
because the Portable Storage witness had no personal knowledge
about the circumstances that led to Membrino’s departure.



                                             8
       On February 25, 2011, Membrino was hired by AD&C Management

Company, where he remained until he voluntarily left to begin

work for Reddy Ice.             He worked for Reddy Ice from June 1, 2011,

until the end of July 2011, when he was hired by the Washington

Suburban Sanitary Commission (“WSSC”).                    He began working at WSSC

on August 1, 2011.              By the time Pessoa made its valid offer to

reinstate Membrino on February 8, 2013, Membrino’s income from

WSSC   was     effectively        eliminating       Pessoa’s          backpay     liability.

Membrino declined the offer of reinstatement.

       A     compliance     specification          and    notice        of      hearing   was

thereafter       issued     to     Pessoa    in        order     to     resolve     Pessoa’s

outstanding backpay liability.                   Membrino’s gross backpay period

ran from October 24, 2008, the first day of his unemployment, to

February 8, 2013, when he was offered reinstatement, and his

gross backpay was calculated to be $199,285.90.                              The time period

from       November   3    to     November       28,     2008,        when     Membrino   was

admittedly        not      looking      for         employment           following        his

hospitalization,          was    excluded    from       the    gross     backpay     period.

Membrino’s wages from his interim employment were deducted from

the gross backpay calculation.               The General Counsel alleged that

Pessoa owed Membrino $107,929 in net backpay, plus interest.

Pessoa claimed that its backpay liability was only $912, all of

which was incurred prior to Membrino’s hospitalization.



                                             9
     At the conclusion of the hearing, the Administrative Law

Judge (“ALJ”) rejected Pessoa’s challenges to the gross backpay

calculation, including its claim that backpay liability should

have been tolled from November 3, 2008, to April 23, 2010, due

to Membrino’s medical condition.            However, the ALJ did reduce

the gross backpay to account for several periods when Membrino’s

CDL had been suspended for his failure to pay fines and support

obligations.     The ALJ found that Membrino had made reasonable

efforts   to    obtain   interim    employment,    and    that   Membrino’s

departures     from   Portable   Storage,    Aggregate     Industries,   and

Cylos, Inc., were not the result of willful misconduct.                  With

the adjustments, the final award was computed to be $95,046.07,

plus interest.    The Board affirmed.

                                    III.

                                     A.

     Pessoa’s     primary   claim   is     that   the    FMCSA   regulations

governing CMV drivers take precedence over the NLRA, and that

Membrino’s diagnosis of angina pectoris on November 3, 2008,

immediately disqualified him from driving a CMV.             Pessoa argues

that Membrino remained unavailable for work as a CMV driver, and

ineligible for backpay under the NLRA, until Membrino passed the

DOT physical and obtained his new DOT card on April 23, 2010,

for Portable Storage.



                                     10
     The ALJ rejected Pessoa’s claim, noting that neither Pessoa

“nor potential interim employers (such as Portable Storage and

Aggregate) required Membrino to present a current DOT card as a

precondition     to        considering   him      for   vacant      CDL   positions.

Instead,   potential         employers     allowed      Membrino     to   apply   for

vacant CDL positions, and then sent him for a DOT physical only

as a final step to fulfill before starting work.”                          J.A. 22.

Moreover, “Membrino complied with that procedure when asked to

do so, and passed his DOT physicals when they were required.”

J.A. 22.    “Since there [was] no evidence of a period of time

[after November 28, 2008] where Membrino would not have been

able to pass a DOT physical if requested,” the ALJ rejected

Pessoa’s “request to toll the backpay period on that basis.”

J.A. 22.   The Board affirmed.

     In its petition for review, Pessoa contends that Membrino

was ineligible to work as a CMV driver as a matter of law and,

therefore, that “the Board’s chosen remedy trenches upon” the

federal laws and regulations governing CMV operators, which are

“outside the Board’s competence to administer.”                     Hoffman Plastic

Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).                    We disagree.

     In Hoffman, the Supreme Court held that an undocumented

alien was disqualified from a backpay award under the NLRA, even

though he had been fired for engaging in union activities.                        The

employee   had        at     all   times        been    illegally     present     and

                                           11
unauthorized to work in the United States.                 He was subject to

criminal punishment for obtaining employment through the use of

false documents.       And he had, therefore, “qualifie[d] for the

Board’s award . . . only by remaining inside the United States

illegally.”    Id. at 150.      Under such circumstances, the Court

held that policy arguments counseled in favor of according the

federal immigration laws precedence over the NLRA.                  See id. at

150 (noting that “awarding backpay in a case like this not only

trivializes    the     immigration     laws,    it     also     condones      and

encourages future violations”).

      Here, unlike in Hoffman, the Board’s backpay award does not

“trench[] upon” the FMCSA regulations or the safety policies

that they serve.     id. at 147.      Membrino held a valid CMV license

for many years prior to and during his employment with Pessoa.

He was qualified for employment under the federal laws when he

was   unlawfully   terminated   and    when    he    began    his   search   for

interim employment.      Moreover, even if we were to conclude that

the FMCSA regulations required Membrino to be re-examined and

re-certified   after    his   hospitalization,       the     regulations     only

required him to do so prior to driving a CMV.                 The regulations

did not require Membrino to voluntarily undergo a DOT physical

at his own expense or hold a current DOT card in order to search

for suitable interim employment as a CMV driver to mitigate his



                                      12
losses.       Accordingly,        the    Board’s       remedial       order      does    not

conflict with the requirements of the FMCSA regulations.

     The Board’s remedial order also does not contravene the

safety    policies      served    by    the    FMCSA    regulations.            The     Board

required Pessoa to reinstate Membrino as a CMV driver and to

make him whole through the payment of backpay.                        But the Board’s

order did not require Pessoa to allow Membrino to drive a CMV

despite    any     regulatory      disqualification,           nor    would       it    have

required Pessoa to reinstate or recompense Membrino regardless

of his medical or legal qualification to return to work as a CMV

driver on or after November 29, 2008.

     Under the NLRA, Pessoa bore the burden of establishing an

affirmative       defense     based     upon    Membrino’s       unavailability           to

work, and any doubts must be resolved against it.                               See Mining

Specialists, 326 F.3d at 605.              Pessoa failed to demonstrate that

Membrino     had    a   current        clinical    diagnosis         of    acute       angina

pectoris    on     November    29,     2008,    that    would   have       rendered      him

physically       disqualified     from     operating      a    CMV,       and   failed    to

demonstrate that he would not have passed a DOT physical as of

that date.       Indeed, all indications are to the contrary.                         By all

accounts, the medical treatment Membrino received for his acute

angina    pectoris      was   a   success.         He    was    released         from    the

hospital on November 4, and told that he should avoid driving

for two days and heavy lifting for two weeks.                             He recuperated

                                           13
for several weeks, and resumed his efforts to obtain interim

work as a CMV driver on November 29.                        His follow-up health

appointments were uneventful and he passed every DOT physical

examination     that     he     was    required      to    take     by    his    interim

employers thereafter.

      Accordingly, we hold that the Board did not err as a matter

of law in rejecting Pessoa’s claim that the FMCSA regulations

mandated that it toll the backpay period from November 28, 2008,

to April 23, 2010.            Nor did the Board abuse its discretion in

finding that Pessoa failed to establish that Membrino suffered

from a medical condition that would have disqualified him from

obtaining a DOT card or from safely operating a CMV during that

time period.

                                          B.

      Pessoa    next    contends       that    the    Board    should     have    tolled

Membrino’s          backpay     period         because         he      made      several

misrepresentations        in     the    employment         applications         that   he

submitted to his interim employers.                  Membrino does not deny that

he made such misrepresentations.               For example, he indicated that

he had been self-employed as “Membrino Trucking” or “Membrino

Delivery Services,” to cover the gaps in his employment history.

He   failed    to    disclose    several      periods     of    time     that    his   CDL

license had been suspended or revoked.                    And he at times omitted

or concealed the fact that he had been convicted of two felonies

                                          14
more than 15 years before.                    Membrino “explained that he made

these    false    statements          and   omissions      because       he   desperately

needed work.”           J.A. 17 n.24; see also J.A. 13 n.11 (“Membrino

was clear and forthright in explaining that he was in dire need

of     employment       because       he    lacked      alternat[ive]         sources     of

income.”).       The Board credited (but did not condone) Membrino’s

explanation       for    why     he    made    the      misrepresentations          to    his

interim    employers,       and       declined     to    offset     Pessoa’s        backpay

liability for its illegal termination of Membrino on this basis.

       At the outset, we note that Pessoa’s argument on this basis

is   not   altogether       clear.          Pessoa      appears     to    contend        that

Membrino’s misrepresentations amounted to a willful violation of

the FMCSA regulations, which require truthful answers on such

applications.       See, e.g., 49 C.F.R. §§ 383.35, 391.21.                      However,

Pessoa has only explicitly sought to reduce the backpay award

for the period from November 28, 2008, to April 23, 2010 (to

$24,054),       based    upon     Membrino’s       medical    diagnosis        of    angina

pectoris and his DOT-card status.                    Any misrepresentations made

by Membrino to interim employers in or after April 2010, could

not have resulted in a failure on his part to mitigate losses

during the challenged time period.

       To the extent Pessoa argues that the Board was required to

find     that    similar        misrepresentations          might    have       prevented

Membrino from securing interim employment prior to April 2010,

                                              15
or     that     Membrino’s        misrepresentations               caused       him      to    lose

employment after April 2010, Pessoa has failed to demonstrate

that the Board erred as a matter of law or abused its discretion

in rejecting them.

       Membrino’s           misrepresentations,                  even      if         technically

violative       of    the       FMSCA     regulations,           did     not     automatically

disqualify him from being hired nor require that he be fired by

the employer.             See 49 C.F.R. § 383.35, 391.21.                        Consequently,

the    Board’s       backpay      order       does    not    conflict          with    the     FMCSA

regulations.              Nor    is     there        any    evidence          that     Membrino’s

misrepresentations affected the adequacy of his job search or

the retention of his interim employment.                           As noted by the Board,

Pessoa        “failed      to     show       that      Membrino’s         job         search     was

unreasonably         narrow      or    limited       in    any    respect”       and    “did     not

present       any    evidence         that    th[e]        false    statements          prevented

Membrino       from       obtaining      or    retaining          employment          during     the

backpay period.”           J.A. 24.

       We hold that the Board did not exceed its authority or

abuse its discretion by failing to toll the backpay period based

upon    misrepresentations             that     Membrino         made    in    the     employment

applications         to    his    interim       employers.              Even    if     Membrino’s

representations were willful in character, there is no evidence

that they actually resulted in an earnings loss.                                  If anything,

the misrepresentations inured to the benefit of Pessoa in that

                                                16
they     mitigated      the     earnings        losses     occasioned        by     Pessoa’s

illegal termination of Membrino under the NLRA.

                                             C.

       Pessoa’s final claim is that the ALJ erred in failing to

allow it to impeach Membrino’s credibility based upon his two

prior felony convictions.             We disagree.

       Pessoa argued before the ALJ that Membrino conducted an

inadequate search for interim employment and engaged in willful

misconduct that resulted in his being fired by Portable Storage,

Aggregate Industries, and Cylos.                   The ALJ found that Membrino’s

job    search     was     adequate     and        credited     Membrino’s          testimony

regarding the reasons for his terminations.                       The Board affirmed.

Pessoa contends that it should have been allowed to challenge

Membrino’s credibility as to the reasonableness of his efforts

to obtain and retain such interim employment with Membrino’s

criminal history.

       When    more     than    10   years      have     passed    since     a     witness’s

conviction,      the     conviction        is   not     admissible      to    attack      the

witness’s character for truthfulness unless: “(1) its probative

value,        supported        by    specific          facts      and    circumstances,

substantially         outweighs      its   prejudicial         effect;       and    (2)   the

proponent gives an adverse party reasonable written notice of

the intent to use it so that the party has a fair opportunity to

contest its use.”         Fed. R. Evid. 609(b).

                                             17
       During the hearing before the ALJ, Pessoa discovered that

Membrino had prior convictions for distribution of a controlled

substance in 1997 and for possession of a handgun in 1995, well

past the 10-year threshold set forth in Federal Rule of Evidence

609(b).        The ALJ ruled that Membrino’s criminal record was “not

admissible under Rule 609 because of the passage of time, the

fact    that     any     probative    value      of      the     evidence      does   not

substantially outweigh its prejudicial nature, and the fact that

[Pessoa] did not provide reasonable written notice of its intent

to use Rule 609 evidence such that the General Counsel would

have a fair opportunity to oppose the request.”                      J.A. 12.

       Although Pessoa claimed that it should be excused from the

prior-notice         requirement      because       it     had      not     learned    of

Membrino’s       felony    convictions      prior     to   the      hearing,    the   ALJ

noted that Pessoa had sufficient information in its employee

files     to    discover      the   convictions       well     in    advance     of   the

hearing.        And “to the extent that [Pessoa sought] to use the

proffered       Rule    609   evidence     to   establish        that     Membrino    made

false statements on job applications to interim employers,” the

ALJ ruled that the evidence was “cumulative and irrelevant in

light   of     the     admissions   that    Membrino       made     elsewhere    in   the

record.”       J.A. 12.       We find no abuse of discretion in the ALJ’s

decision to exclude evidence of Membrino’s prior convictions.



                                           18
       To     the   extent       Pessoa     otherwise          challenges       the     ALJ’s

credibility determinations regarding its affirmative defenses,

we likewise find no abuse of discretion.                             It is well settled

that       credibility     determinations          will      be    overturned      only      in

“extraordinary circumstances.”                    WXGI, Inc. v. NLRB, 243 F.3d

833, 842 (4th Cir. 2001) (internal quotation marks omitted).

Such “circumstances include those instances when a credibility

determination        is    unreasonable,      contradicts            other   findings        of

fact, or is based on an inadequate reason or no reason at all.”

Id.    (internal     quotation       marks    omitted).              Here,   there      is   no

extraordinary        basis    for     the     court       to      reverse    the      Board’s

credibility determinations.

                                             D.

       In its Reply Brief, Pessoa argues that the Board’s gross

backpay calculation was inflated because it was based in part on

overtime hours that Membrino had worked at Pessoa prior to his

termination. 2       Because Pessoa did not challenge the gross backpay

calculation         on    this     ground     before           the     Board,      we    lack

jurisdiction        to    consider    it.         See   29     U.S.C.    §   160(e)      (“No

objection that has not been urged before the Board, its member,

       2Pessoa also raised the issue in a Rule 28(j) letter after
it filed its opening brief, to which the Board filed a response.
Pending before us is the Board’s motion to strike Pessoa’s Reply
to the Board’s Response to Pessoa’s Rule 28(j) letter, which we
now grant. See Fed. R. App. P. 28(j).



                                             19
agent, or agency, shall be considered by the court, unless the

failure    or   neglect   to   urge    such    objection    shall    be       excused

because of extraordinary circumstances.”).                 Even if Pessoa had

raised the issue before the Board, we would decline to address

it here.      See U.S. S.E.C. v. Pirate Inv., LLC, 580 F.3d 233, 255

n.23   (4th     Cir.   2009)   (per    curiam)     (“Ordinarily      we       do    not

consider      arguments   raised      for    the   first   time     in    a        reply

brief.”).

                                       IV.

       For the foregoing reasons, we grant the Board’s application

for enforcement and deny Pessoa’s petition for review.

                                      APPLICATION FOR ENFORCEMENT GRANTED;
                                               PETITION FOR REVIEW DENIED.




                                        20
