                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0162n.06

                                             No. 11-4312

                           UNITED STATES COURT OF APPEALS                                   FILED
                                FOR THE SIXTH CIRCUIT                                   Feb 13, 2013
                                                                                 DEBORAH S. HUNT, Clerk

STEPHEN P. DURHAM,                             :
                                               :
        Petitioner,                            :
                                               :        ON PETITION FOR REVIEW
                                               :        FROM THE OFFICE OF
v.                                             :        ADMINISTRATIVE LAW
                                               :        JUDGES, UNITED STATES
DEPARTMENT OF LABOR;                           :        DEPARTMENT OF LABOR
TENNESSEE VALLEY AUTHORITY,                    :
                                               :
        Respondents.                           :



BEFORE: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge.*

                                              OPINION

PER CURIAM:

        Mr. Stephen Durham petitions for review of the Administrative Review Board’s dismissal

of his appeal for failing to timely file his opening brief as instructed by the Board’s brief scheduling

order and failing to show good cause. We DENY the petition for review.

        As an initial matter, we reject Durham’s request to review the Board’s decision to dismiss

his appeal using a standard of review requiring bad faith. Final orders of the Secretary of Labor

under the Clean Air Act are reviewed by courts using the standard outlined in the Administrative




* The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-4312
Durham v. Department of Labor; Tennessee Valley Authority



Procedure Act, 5 U.S.C. § 706 (2). See 42 U.S.C. § 7622(c). The Board’s dismissal represents a

final order of the Secretary and, as such, the standard of review in the APA guides our analysis.


       Second, the Board’s dismissal for Durham’s failure to comply with both the briefing order

and the show cause order was not an abuse of its discretion under the Clean Air Act. The

Administrative Review Board has authority to “specify the terms under which any briefs are to be

filed.” 29 C.F.R. § 24.110(b). The Board has “power to control its docket via dismissal . . . similar

in all significant respects to that vested in the courts,” Consol. Coal Co. v. Gooding, 703 F.2d 230,

232 (6th Cir. 1983), and judicial review of a Board dismissal is governed by the APA’s abuse of

discretion standard. See Ellison v. Department of Labor, 384 F. App’x 860, 863 (11th Cir. 2010)

(per curiam).


       Durham and his attorney separately received copies of the Notice of Appeal and Order

Establishing Briefing Schedule, as well as the Board’s Order to Show Cause; both orders carried the

warning that failure to comply with the order could result in dismissal. As a result, Durham received

sufficient notice on two separate occasions that dismissal would result from a failure to comply with

the Board’s order.


       Additionally, Durham’s method of responding to the Board’s show cause order, by email,

was expressly prohibited by the Board. Even this improper medium of responding to the Show

Cause Order failed to provide any justification for Durham’s procedural deficiencies in pursuing his



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No. 11-4312
Durham v. Department of Labor; Tennessee Valley Authority



appeal, and prompted the Board to state: “Durham’s reply to the Board’s show cause order offers no

comprehensible explanation for his failure to timely file his opening brief.”


       In light of the Board’s clear provision of notice regarding the consequences that would result

from successive procedural failures in conjunction with the repeated deficiencies exhibited in

Durham’s responses, we find that the Board’s dismissal does not represent a clear error in judgment,

nor was it based on information which did not reasonably support dismissal. See Carpenter v. Solis,

439 F. App’x 480, 484 (6th Cir. 2011)(“An abuse of discretion occurs when we are left with the

‘definite and firm conviction that a trial court committed a clear error of judgment.’”) (citation

omitted).


       The Administrative Review Board is authorized to reject briefs that do not comply with its

filing instructions in order to “achieve the orderly and expeditious disposition of cases.” Link v.

Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Durham and his counsel repeatedly failed to comply

with these orders, in spite of the Board’s attempts to obtain a reasonable explanation for the

unreasonable delay. The Board thus acted within its discretion in dismissing Durham’s appeal.


       For the foregoing reasons, we DENY the petition for review.




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