                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 3, 2008
                     UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT               Clerk of Court




    DARRELL ROLLINS, an individual,

                Petitioner,

    v.                                                  No. 07-9521
                                                        (No. 04-140)
    ADMINISTRATIVE REVIEW                           (Petition for Review)
    BOARD, UNITED STATES
    DEPARTMENT OF LABOR,

                Respondent.


    AMERICAN AIRLINES, INC.

                Intervenor.


                              ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.


         Darrell Rollins challenges an order of the Administrative Review Board

affirming the dismissal of a complaint he filed with the Department of Labor,


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under the whistleblower protection program in 49 U.S.C. § 42121, following the

termination of his employment with American Airlines. The Board held that

Mr. Rollins’ written complaint had not been filed within the ninety-day period

following the alleged violation as required by § 42121(b)(1), and refused to

consider a belatedly raised argument regarding an earlier oral complaint. We

review the Board’s decision under the standards set out in the Administrative

Procedures Act (APA), 5 U.S.C. §§ 701-706, see Anderson v. U.S. Dep’t of Labor,

422 F.3d 1155, 1173 (10th Cir. 2005), and affirm for the reasons explained below.

      We will set aside a decision of the Board only if we conclude that it is

“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). While, as the final phrase indicates, we review

matters of law de novo, the Board’s construction of the statutory scheme it is

charged with implementing is entitled to judicial deference under the principles

recognized in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 843-44 (1984). See Anderson, 422 F.3d at 1173. Thus, if the statute uses a

vague or ambiguous term, “we do not simply impose our own construction on the

statute, but rather, we must ascertain whether the [Board’s] interpretation is a

permissible construction of the statute.” Id. at 1173-74.

      The relevant chronology is not in dispute. On October 17, 2002, American

issued a “Career Decision Day” disciplinary advisory to Mr. Rollins, presenting

him with three choices: accept a transfer and comply with performance standards

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expected by American, resign with certain benefits, or be terminated. On October

22, 2002, Mr. Rollins (who believed the poor performance evaluation prompting

the advisory was a pretext to disguise retaliation for whistleblowing activities

protected under § 42121(a)) refused to sign the advisory, effecting his immediate

termination in accordance with its terms. He filed his administrative complaint

more than ninety days after October 17, 2002, but less than ninety days after

October 22, 2002. Thus, the timeliness issue here turns on the meaning and

application of the reference in § 42121(b) to “the date on which such violation [of

§ 42121(a)] occurs” – i.e., did the alleged retaliation occur when the disciplinary

advisory was issued or when Mr. Rollins chose the third of the three options

imposed by the advisory?

      The Board construed the statute to mean that “the limitations period begins

to run when the employer communicates to the employee its ‘final, definitive, and

unequivocal’ intent to implement an adverse employment decision [that violates

§ 42121(a)], rather than on the date on which the employee experiences the

consequences of that decision.” R. vol. 7, doc. 44 at 3. On that construction of

the statute, the Board concluded that the operative event was the issuance of the

advisory, which culminated the disciplinary process based on Mr. Rollins’ job

performance and required him to choose among three adverse consequences, viz.,




                                         -3-
reassignment with acknowledgment of deficient performance, resignation, or

termination. 1

      As the Board noted, the basic distinction between a discriminatory action

and subsequent consequences or effects of such action has been recognized by the

Supreme Court in a number of limitations contexts. Id. at 3 n.9 (citing Chardon

v. Fernandez, 454 U.S. 6, 8 (1981)); Del. State College v. Ricks, 449 U.S. 250,

258 (1980)); see also Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162,

2169 (2007). The consistency of the Board’s approach here with this line of

authority certainly bespeaks a “permissible construction” of the limitations

provision to which we should defer under Chevron.

      The question remains, however, whether the Board’s application of this

approach to the facts here was arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law. Fabi Constr. Co. v. Sec. of Labor,

370 F.3d 29, 33 (D.C. Cir. 2004) (court of appeals “may set aside the [agency’s]

application of legal standards to facts only if it is arbitrary, capricious, an abuse

of discretion or contrary to law” (quotation omitted)). In this regard, we ask

whether the Board’s “‘decision was based on a consideration of the relevant

factors and . . . whether there has been a clear error of judgment.’” Friends of the


1
      We note that § 42121(a) prohibits air carriers from “discharg[ing] an
employee or otherwise discriminat[ing] against an employee with respect to
compensation, terms, conditions, or privileges of employment.” (Emphasis
added).

                                          -4-
Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (quoting Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)); see City &

County of Denver v. Bergland, 695 F.2d 465, 477 (10th Cir. 1982). The Board’s

decision, that Mr. Rollins’ fate upon his rejection of a transfer or resignation had

been finally and unequivocally sealed by the advisory, reflects its evaluation of

relevant considerations, and we cannot say its conclusion constitutes a clear error

of judgment. That we might have reached a different conclusion does not afford

grounds to interfere with the Board’s judgment, Lamb v. Thompson, 265 F.3d

1038, 1045-46, 1050 (10th Cir. 2001), nor is our deferential standard of review

altered because the Board’s analysis diverged from that of the ALJ, 2 Varnadore v.

Sec. of Labor, 141 F.3d 625, 630 (6th Cir. 1998) (citing Universal Camera Corp.

v. NLRB, 340 U.S. 474, 496 (1951)); Blackburn v. Martin, 982 F.2d 125, 128

(4th Cir. 1992) (same), particularly as witness credibility is not at issue, Hall v.

U.S. Dep’t of Labor, 476 F.3d 847, 854 (10th Cir.) (noting Board’s rejection of

ALJ’s credibility findings triggers heightened scrutiny), cert. denied, 128 S. Ct.

489 (2007).

2
        The ALJ divided the challenged disciplinary action into two components,
one consisting of the advisory and the other of the termination, and applied
§ 42121(b) to each, holding the complaint time barred as to the advisory but not
as to the termination. The ALJ went on to reject the latter claim on the merits for
lack of evidence that the termination was an independently discriminatory act,
i.e., evidence showing that Mr. Rollins’ would not have been terminated, despite
his rejection of the alternatives in the advisory, had he not been a whistleblower
(showing, for example, that other employees were not terminated after rejecting
similar advisories).

                                          -5-
      Finally, Mr. Rollins challenges the Board’s refusal to hear his belatedly

raised argument regarding an alleged oral complaint made by his former attorney

within the § 42121 time period. 3 “[T]he general rule is well established that

reviewing courts will not overturn an agency’s strict application of its own

procedural regulations so long as the rule is applied uniformly or with reasoned

distinctions.” Tinker Air Force Base v. Fed. Labor Relations Auth., 321 F.3d

1242, 1246 (10th Cir. 2002). The Board denied Mr. Rollins’ request, citing its

own decisional law and saying: “Under our well-established precedent, we

decline to consider an argument that a party raises for the first time on appeal.”

R., Vol. 7, doc. 44 at 4 n.11. Mr. Rollins has provided no basis for concluding

that this was anything other than a straightforward application of a uniformly

applied procedural rule. 4 As such, it is not subject to our interference. And if it

were, we would not disturb the disposition of this administrative proceeding on



3
       We note that the attorney’s affidavit does not actually say she lodged an
oral complaint (and there is no agency record acknowledging such a complaint).
Rather, it indicates only that she spoke with agency personnel about how and
where to file the written complaint. See R, Vol. 5, doc. 32, ex. II.
4
       The only Board decision he cites in his briefing concerns the treatment of
newly discovered evidence relating to issues raised before and determined by the
ALJ, see Timmons v. Mattingly Testing Serv., No. 95-ERA-40, 1996 WL 363348
(Admin. Rev. Bd. June 21, 1996) (discussing new evidence bolstering claimant’s
showing of retaliatory motive). That is, of course, a matter distinct from the
interjection of entirely new arguments on appeal, and procedural uniformity does
not require that the Board’s approach to the one dictate or constrain its approach
to the other.


                                         -6-
the basis of the alleged oral complaint, given the equivocal nature of the proffered

evidence of the complaint, see supra note 3, and the availability of this evidence

from Mr. Rollins’ own former attorney.

      The petition for review is DENIED and the decision of the Administrative

Review Board is AFFIRMED.


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




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