                                                           [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                           No. 07-13997                       MAR 24, 2009
                       Non-Argument Calendar                THOMAS K. KAHN
                                                                CLERK
                     ________________________

                       Agency Nos. 05-026-ARB
                            05-054-ARB

GEORGE T. LUCKIE,

                                                       Petitioner,

                                versus

ADMINISTRATIVE REVIEW BOARD,
US Dept of Labor,

                                                       Respondent-Appellee,

UNITED PARCEL SERVICES, INC.,

                                                       Intervenor.

                     ________________________

                Petition for Review of a Decision of the
                          Department of Labor
                     _________________________

                          (March 24, 2009)
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Complainant-Appellant George T. Luckie appeals the decision of the

Administrative Review Board of the United States Department of Labor (“ARB”)

dismissing Luckie’s whistleblower retaliation claim brought under the Surface

Transportation Assistance Act (“STAA”), 49 U.S.C. § 31101 et seq., against his

former employer, United Parcel Service (“UPS”), intervenor in this matter. No

reversible error has been shown; we affirm.

      Luckie was notified on 1 November 2001, that he had been selected for a

lateral transfer to a larger district with greater responsibility. The transfer was

unacceptable to Luckie because of child-custody issues. Luckie was notified that,

if he would not agree to relocate, he had the option of accepting (i) a temporary

demotion that involved no relocation and would allow him to remain on the

promotion list; or (ii) a severance package. On 9 November 2001, Luckie rejected

all options; UPS treated this rejection as a voluntary resignation and terminated his

employment.

      Luckie initiated this suit claiming UPS’s insistence that he could not stay in

his position as District Security Manager for Alabama and the Florida panhandle

was in retaliation for complaints he had raised about UPS’s handling of a fire

incident on 30 October 2001. Luckie’s claim is based on the STAA. Under 49
                                            2
U.S.C. § 31105(a), an employee may not be discharged, disciplined, or otherwise

discriminated against because the employee filed a complaint or began a

proceeding related to a violation of a commercial motor vehicle safety regulation.

An employee covered by the STAA who believes he has been discriminated

against for engaging in activity protected under the whistleblower provisions of the

STAA may file a complaint with the Department of Labor. See 49 U.S.C. §

31105(b).

      OSHA, a Department of Labor agency, investigated Luckie’s complaint; it

concluded that Luckie was not an “employee” under the STAA and, as such, the

whistleblower protections of the STAA had no application to Luckie. At Luckie’s

request, a de novo hearing was held before an administrative law judge (“ALJ”).

See 49 U.S.C. § 31105(b)(2)(B). The ALJ issued a recommended decision and

order concluding that Luckie was a covered employee under the STAA, that he

engaged in protected conduct under the STAA, and that he suffered an adverse

employment act in retaliation for that conduct. The ALJ awarded Luckie

$123,200.00 in compensatory damages.

      UPS appealed to the Department of Labor’s Administrative Review Board

(“ARB”). The ARB rejected the ALJ’s recommendation; it reversed the ALJ’s

decision and dismissed Luckie’s complaint. The ARB concluded that (i) Luckie

was not a covered employee under the STAA; (ii) even if Luckie was a covered
                                          3
employee, he engaged in no protected activity under the STAA; and (iii) even if

Luckie was a covered employee who had engaged in protected activity, he failed

otherwise to establish his case by a preponderance of the evidence.

      The usual rules applicable to judicial review under the Administrative

Procedure Act govern review of cases arising under the STAA. See 49 U.S.C. §

31105(d). The legal conclusions of the ARB are due to be affirmed unless they are

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

law. See 5 U.S.C. § 706(2). The ARB’s factual findings must be accepted unless

they are unsupported by substantial evidence in the record as a whole, see id., but

the ARB is required to consider as conclusive the ALJ’s findings of fact if those

findings are supported by substantial evidence on the record as a whole. See 29

C.F.R. § 1978.109(c)(3). While we only are authorized to review the ARB’s

decision, see 49 U.S.C. § § 31105(d), that review must be mindful of the ARB’s

obligation vis á vis the ALJ’s factual findings.

      Luckie began his career with UPS in 1975 as a part-time package uploader

while attending college and succeeded through a number of promotions to

management-level assignments. At the time of his separation from UPS, Luckie

was District Security Manager for territory that included Alabama and the Florida

panhandle, a position he had held since 1994. As District Security Manager,

Luckie’s chief responsibilities related to resolving customer claims for lost, stolen,
                                           4
or damaged packages. In the course of his employment, Luckie sometimes

handled damaged packages in performing security checks and in resolving damage

claims. Luckie also was charged with conducting investigations into incidents of

employee theft and violations of UPS’s sexual harassment, honesty and integrity

policies, as well as overseeing certain security measures at UPS facilities in his

area. Luckie’s position largely was administrative; he managed a staff of 20 to 25

employees.

       A person seeking to avail himself of the whistleblower protections of the

STAA must be an “employee” as defined in section 31101.1 The ALJ determined

that Luckie was an “employee” because he was a “freight handler” by virtue of his

package handling; or because of his security responsibilities, Luckie was an

individual who directly affects commercial safety, or both. The ARB concluded

that substantial evidence failed to support the ALJ’s critical findings and that the

ALJ erred in his legal conclusions.



       1
           In relevant part, the STAA provides:

                 (2) “employee” means a driver of a commercial motor vehicle ..., a
                 mechanic, a freight handler, or an individual not an employer,
                 who-
                        (A) directly affects commercial motor vehicle safety in the course of
                        employment by a commercial motor carrier; and
                        (B) is not an employee of the United States Government, a State, or a
                        political subdivision of a State acting in the course of employment.

49 U.S.C. § 31101(2).
                                                  5
      About the ALJ’s characterization of Luckie as a “freight handler,” the ARB

concluded that the ALJ’s factual findings about Luckie’s package handling

responsibilities misstated the record evidence: where the ALJ found Luckie’s

testimony on this point to be unrefuted, the ARB concluded the record revealed

much evidence to the contrary. According to the ARB, as a department head,

Luckie’s occasional touching of packages -- unrelated to uploading, unloading, or

the sorting of packages -- failed as a matter of law to qualify Luckie as a freight

handler under the STAA.

      About the ALJ’s alternative reasoning that Luckie was “an individual who

directly affected commercial safety,” the ARB noted that the STAA requires more

for coverage as an employee than that found by the ALJ: the individual must

directly affect “commercial motor vehicle safety.” The ALJ failed to consider

whether Luckie’s security responsibilities directly affected commercial motor

vehicle safety. Reviewing the record, the ARB concluded as a matter of law that

Luckie’s job responsibilities -- which affected worker safety in UPS facilities -- did

not directly affect safety on the highways.

      After review of the record, we conclude that the ARB committed no error:

even accepting the factual findings of the ALJ, Luckie was not a covered employee

under the STAA. The ARB’s legal conclusion that these factual findings were

insufficient to trigger the STAA’s protections is supported by substantial evidence
                                           6
and is not arbitrary, capricious, or an abuse of discretion. See Yellow Freight

Systems, Inc. v. Reich, 8 F.3d 980, 984 (4th Cir. 1993). In the light of the

deference due the Secretary’s interpretation of the statute, the decision is due to be

affirmed.2

       AFFIRMED.




       2
        Because Luckie’s claim is uncovered by the STAA, we have no occasion to consider (i)
whether the activity he engaged in was protected; (ii) whether he suffered an adverse
employment act; and (iii) whether a causal relationship was shown between the claimed
protected activity and the claimed adverse act.
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