Michael B. Brown v. Secretary of Labor

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 11, 2018
• Docket: 17-13151
• Status: Unpublished

Opinion

Case: 17-13151 Date Filed: 07/11/2018 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13151 Non-Argument Calendar ________________________

Agency No. 2017-037

MICHAEL B. BROWN,

Petitioner,

versus

SECRETARY OF LABOR,

Respondent.

________________________

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

(July 11, 2018)

Before ED CARNES, Chief Judge, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Michael B. Brown, proceeding pro se, appeals the Administrative Review

Board’s order dismissing as untimely his petition for review of the administrative Case: 17-13151 Date Filed: 07/11/2018 Page: 2 of 6

law judge’s denial of his Sarbanes-Oxley whistleblower complaint. He also

appeals the Board’s order denying his motion for reconsideration.

Brown worked as an audit manager at Synovus Financial Corporation from

November 2007 to January 2014, when he was fired. In July 2014 he filed a

counseled whistleblower complaint with the Occupational Safety and Health

Administration alleging that Synovus retaliated against him after he complained

about potential Sarbanes-Oxley violations. After an investigation, OSHA

dismissed his complaint in April 2015, finding that there was no reasonable cause

to believe that Synovus violated the Sarbanes-Oxley Act when it fired him. Brown

objected to that finding and requested a hearing before an ALJ. Brown also

retained a new attorney to represent him before the ALJ. Synovus then moved for

summary judgment, which the ALJ granted on Friday, December 16, 2016.

Brown had 14 days to appeal the ALJ’s decision to the Administrative

Review Board, which means that he had to file his petition for review by Friday,

December 30, 2016. See 29 C.F.R. § 1980.110(a) (Mar. 2015). He did not file an

appeal by that deadline. Instead, on April 6, 2017 — over three months after the

deadline — he filed a pro se “Motion and Brief to Set Aside the Order Due to

Fraud on the Court” under Federal Rule of Civil Procedure 60(d)(3),1 alleging that

the ALJ intentionally omitted and misrepresented facts in favor of Synovus. The

1 Rule 60(d)(3) allows a court to “set aside a judgment for fraud on the Court.”

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Board construed the motion as a petition for review and stated that it was untimely.

But because the 14-day appeal deadline is not jurisdictional and is subject to

equitable tolling, the Board ordered Brown to show cause as to why his petition

should not be dismissed as untimely.

Brown responded to the show cause order by arguing that equitable tolling

should apply because his attorney was ineffective. He stated that after receiving

the ALJ’s order on December 19, 2016, he immediately called his attorney to

discuss an appeal. He spoke with and visited his attorney over the next several

days and stated that he believed that his attorney had filed his appeal by the

December 30 deadline. But on January 14, 2017, he learned that his attorney had

failed to file a timely appeal with the Board. Brown attached a sworn affidavit

from his attorney confirming those allegations. Synovus argued in response that

the Board had repeatedly rejected ineffective assistance as a ground for equitable

tolling.

On May 17, 2017, the Board issued an order denying Brown’s petition on

the ground that attorney error does not permit equitable tolling. It also noted that

even though Brown learned on January 14, 2017, that his attorney had not filed an

appeal, Brown did not file an appeal within 14 days from that date; instead, Brown

waited over three months to file his motion. Brown filed a pro se motion for

reconsideration requesting that the Board entertain an independent action to

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reconsider its decision and to set aside the ALJ’s order for fraud on the court. The

Board denied that motion on the ground that it did not address any of the Board’s

grounds for granting a motion for reconsideration. This is his appeal.

We review the Board’s “decision pursuant to the standard of review outlined

in the Administrative Procedure Act.” DeKalb County v. U.S. Dep’t of Labor, 812

F.3d 1015, 1020 (11th Cir. 2016) (quotation marks omitted). We review de novo

the Board’s legal conclusions and its “factual findings are reversed only if

unsupported by substantial evidence on the record as a whole.” Id. (quotation

marks omitted). Brown contends that the Board erred in construing his motion to

set aside the ALJ’s decision as a petition for review, instead of a motion under

Rule 60(d)(3), and that it erred in dismissing his motion as untimely. He also

contends that the Board erred in denying his motion for reconsideration. Brown’s

contentions fail.

The Board did not err in construing his motion to set aside the ALJ’s order

as a petition for review instead of a Rule 60(d)(3) motion. The Board liberally

construes pro se filings, Svendsen v. Air Methods, Inc., ARB Case No. 03-074,

2004 WL 1923132, at *1 n.2 (Aug. 26, 2004), and there is no authority for

Brown’s argument that the Board is required to follow the Federal Rules of Civil

Procedure, see Henrich v. Ecolab, Inc., ARB Case No. 05-030, 2007 WL 7143174,

at *5 (May 30, 2007) (“Adopting the entire Federal Rules of Civil Procedure

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would prevent the Board from exercising the greater authority it possesses as the

decision-maker for the Department of Labor.”).

The Board also did not err in denying Brown’s petition as untimely. The

ALJ issued its decision on December 16, 2017, which gave Brown until December

30, 2017 to file his appeal with the Board. 29 C.F.R. § 1980.110(a). But, as

Brown admits, he did not timely file an appeal, and his argument that attorney

error warrants equitable tolling is a non-starter. See, e.g., Higgins v. Glen Raven

Mills, Inc., ARB Case No. 05-143, at *9 & n.60 (Sept. 29, 2006) (“In considering

whether attorney error constitutes an extraordinary factor for tolling purposes, the

Board has consistently held that it does not because ultimately, clients are

accountable for the acts and omissions of their attorneys.”) (quotation marks and

alterations omitted) (collecting cases). And, as the Board noted, even if equitable

tolling did apply, once Brown learned on January 14, 2017, that his attorney did

not file his appeal, he had another 14 days to file that appeal. See id.; see also 29

C.F.R. § 1980.110(a). But instead of doing that, he waited over three months until

April 6, 2017, to file his motion with the Board. As a result, the Board did not err

in denying his motion as untimely. 2

2 Brown also argues the merits of the original whistleblower complaint that he filed, but because the Board dismissed his petition on procedural grounds, we do not address the merits of his complaint. See Fla. Dep’t of Labor & Emp’t Sec’y v. U.S. Dep’t of Labor, 893 F.2d 1319, 1321 (11th Cir. 1990) (“As a general rule in administrative law cases, a reviewing court may not affirm an agency decision on grounds not addressed by the agency, but, rather, will remand for the agency to address the issue in the first instance.”). 5 Case: 17-13151 Date Filed: 07/11/2018 Page: 6 of 6

Finally, the Board did not err in denying Brown’s motion for

reconsideration, which did not address any of the Board’s grounds for

reconsideration and was simply an attempt to relitigate his petition. See Kirk v.

Rooney Trucking Inc., ARB No. 14-035, at *2 (Mar. 24, 2016) (denying motion

for reconsideration where party failed to address the Board’s grounds for

reconsideration, which include material differences in fact or law from what was

presented to the Board and which the movant could not have known through

reasonable diligence; new material facts or a change in law arising after the

Board’s decision; or failure to consider material facts presented to the Board before

its decision).

PETITION DENIED.