                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                       June 12, 2019
                         _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    SHERVIS R. SMITH,

          Petitioner,

    v.                                                  No. 18-9547
                                                     (LABR No. 18-021)
    UNITED STATES DEPARTMENT
    OF LABOR,

          Respondent.
                          _________________________________

                          ORDER AND JUDGMENT *
                          _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

         Mr. Shervis R. Smith, a commercial truck driver, sued the

Department of Labor under the Surface Transportation Assistance Act,

49 U.S.C. § 31105. This statute protects employees from discrimination,

discipline, or termination for complaining about the need to drive vehicles

failing to meet safety standards. Brock v. Roadway Express, Inc., 481 U.S.


*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
252, 258 (1987). Mr. Smith unsuccessfully complained to the Department

of Labor and requested a hearing before an administrative law judge.

Dissatisfied with the outcome, Mr. Smith appealed to the Department of

Labor’s Administrative Review Board, which ordered dismissal of the

appeal. After the dismissal, he unsuccessfully filed two motions for

reconsideration by the Board and ultimately brought this petition for

judicial review. We lack jurisdiction, so we dismiss the petition.

I.   Background

     In the administrative proceedings, the administrative law judge

summarily dismissed the case (on 12/13/17) and notified Mr. Smith that he

had fourteen days (until 12/27/17) to file a petition for review with the

Administrative Review Board.

     After the appeal period expired, Mr. Smith filed multiple documents

with the Administrative Review Board (on 1/3/18). The Board construed

these documents as a petition for review and ordered Mr. Smith to (1)

serve the documents on his employers’ attorneys, (2) supply proof of

service, and (3) show cause why equitable tolling would apply. The Board

cautioned Mr. Smith that failure to timely comply with these requirements

could result in dismissal of his appeal. Despite the caution, Mr. Smith did

not respond to the Board.

     Over three weeks after its deadline expired, the Administrative

Review Board dismissed the petition (on 2/21/18) for failing to comply

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with procedural requirements. Mr. Smith moved to reconsider (on 2/25/18),

arguing the merits of his whistleblower claim. The Administrative Review

Board denied reconsideration (on 5/30/18), citing Mr. Smith’s failure to

address the issue of timeliness.

      Mr. Smith again sought reconsideration (on 6/9/18), focusing again

on the merits of his whistleblower claim. The Administrative Review

Board again denied reconsideration (on 6/29/18) on the basis that Mr.

Smith had not addressed the timeliness of his petition.

      Mr. Smith then filed a petition for judicial review in our court

(8/3/18), arguing the merits and stating that his time for appealing to the

Administrative Review Board should not have begun until he received the

administrative law judge’s order.




But we cannot reach the merits of the petition for judicial review. Mr.

Smith filed this petition too late to challenge the Board’s dismissal and

first denial of reconsideration, and the Board’s second denial of

reconsideration is unreviewable.

II.   Dismissal of the Administrative Appeal and Denial of the First
      Motion for Reconsideration

      Mr. Smith seeks review of the Board’s dismissal of his administrative

appeal. We are not sure whether Mr. Smith is also challenging denial of his
                                      3
first motion for reconsideration. Because Mr. Smith is acting pro se, we

liberally construe the petition for judicial review to encompass the denial

of his first motion for reconsideration. Yang v. Archuleta, 525 F.3d 925,

927 n.1 (10th Cir. 2008). But we lack jurisdiction to consider the Board’s

dismissal and its first denial of reconsideration.

      Mr. Smith would ordinarily have only 60 days (from issuance of the

Board’s order of dismissal) in which to file a petition for judicial review.

49 U.S.C. § 31105(d). The 60-day period for seeking judicial review is

tolled, however, by a timely motion for reconsideration. Interstate

Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284

(1987). Once the motion for reconsideration is decided, the 60-day period

resets and begins running. See Saban v. U.S. Dep’t of Labor, 509 F.3d 376

(7th Cir. 2007) (concluding that a petition for judicial review was timely

because it was filed within 60 days after the Administrative Review

Board’s denial of a first motion for reconsideration). But a second and

successive motion to reconsider does not again toll the deadline to seek

judicial review of the Board’s order of dismissal or denial of the first

motion to reconsider. See United States v. Cos, 498 F.3d 1115, 1135 (10th

Cir. 2007) (stating that a second motion for reconsideration does not toll

the deadline to appeal the judgment itself); accord In re Stangel, 68 F.3d

857, 859 (5th Cir. 1995) (affirming the dismissal of an appeal of a



                                       4
judgment and a denial of the first motion to reconsider because a second

and successive motion to reconsider did not toll the appeal period).

      Mr. Smith’s petition for judicial review is untimely with respect to

the Board’s initial order of dismissal and its denial of the first motion for

reconsideration. The Board dismissed Mr. Smith’s appeal of the

administrative law judge’s dismissal on February 21, 2018. Mr. Smith

sought reconsideration four days later, tolling the 60-day period in which

to seek judicial review. But when the Administrative Review Board denied

Mr. Smith’s motion for reconsideration, a new 60-day period for judicial

review began running. Mr. Smith’s second motion for reconsideration did

not toll that period, so the period for seeking judicial review expired on

Monday, July 30, 2018. 1 Even though Mr. Smith filed a second motion for

reconsideration, Mr. Smith did not file his petition for judicial review until

August 3, 2018—four days after the 60-day period had expired. So with

respect to the Board’s dismissal and denial of the first motion for

reconsideration, Mr. Smith’s challenge is untimely, precluding appellate

jurisdiction. Council Tree Inv’rs, Inc. v. F.C.C., 739 F.3d 544, 551 (10th

Cir. 2014).




1
     The fourth day fell on a Sunday. The deadline was thus the next
business day (Monday, July 30, 2018). Fed. R. App. P. 26(a)(1)(C).

                                       5
       Mr. Smith alleges a delay in his receipt of the administrative law

judge’s dismissal order. Though the order was dated December 13, 2017,

he contends that (1) he did not receive the order until after Christmas in

2017 and (2) it was unfair to start his 14-day deadline to seek

administrative review until he had actually received the order. These

contentions would not avoid the jurisdictional defect.

       Regardless of when Mr. Smith received the dismissal order, he could

have explained the delay to the Administrative Review Board when ordered

to do so. But he didn’t. His noncompliance with the order (not the delay in

receiving the order) is what caused the dismissal, triggering the time-

period to file a petition for judicial review.

       That time period was suspended when Mr. Smith filed his first

motion for reconsideration. But that time-period resumed when the

Administrative Review Board denied reconsideration on May 30, 2018. At

that point, Mr. Smith had only 60 days to file a petition for judicial review.

See pp. 4–5, above. This period expired on July 30, 2018, four days before

Mr. Smith filed a petition for judicial review. Thus, his petition for

judicial review would have been untimely irrespective of any delay in his

receipt of the administrative law judge’s dismissal order.

III.   Denial of the Second Motion for Reconsideration

       Review of the Board’s denial of Mr. Smith’s second motion for

reconsideration is governed by the Administrative Procedure Act, 5 U.S.C.

                                       6
§§ 701-06, see 49 U.S.C. § 31105(d). Under this Act, “refusals to

reconsider for material error” are not reviewable. Interstate Commerce

Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282 (1987).

      An error is considered material when it is based “on the same record

that was before the agency when it rendered its original decision.” Id. at

280. Thus, if reconsideration is sought “on the basis of new evidence or

changed circumstances[,] review [would be] available and the abuse-of-

discretion standard would apply; otherwise, the agency’s refusal to go back

over ploughed ground [would be] nonreviewable.” Id. at 284.

      Mr. Smith twice sought reconsideration for the alleged failure to

recognize that he had “presented direct evidence of [his employers] forcing

[him] to violate D.O.T. regulations.” R., Vol. II, Ex. 32 at 1; see also id.,

Ex. 34 at 2 (arguing that his employers “violat[ed] DOT rules and

regulations”). Because Mr. Smith’s second motion for reconsideration

involved a successive challenge to the administrative law judge’s view of

the evidence, the Administrative Review Board’s second denial of

reconsideration was not reviewable. See Tsegay v. Ashcroft, 386 F.3d 1347,

1356 (10th Cir. 2004).




                                       7
IV.   Conclusion

      We thus dismiss the petition for judicial review.
                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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