Michael Neely v. Usdol

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 4, 2024
• Docket: 22-70100
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL NEELY, No. 22-70100

Petitioner, LABR No. 2018-AIR-00019 ARB Case No. 2020-0071 v.

U.S. DEPARTMENT OF LABOR, MEMORANDUM*

Respondent,

THE BOEING COMPANY,

Intervenor.

On Petition for Review of an Order of the Department of Labor

Submitted September 3, 2024**

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.

Michael Neely petitions pro se for review of the Department of Labor's

Administrative Review Board's (“ARB”) decision and order dismissing his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). complaint under the Wendell H. Ford Aviation Investment and Reform Act for the

21st Century (“AIR21”). We have jurisdiction under 49 U.S.C. § 42121(b)(4)(A).

We review the ARB’s decisions in accordance with the Administrative Procedure

Act (“APA”), “under which the ARB’s legal conclusions must be sustained unless

they are arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law, and its findings of fact must be sustained unless they are

unsupported by substantial evidence in the record as a whole.” Calmat Co. v. U.S.

Dep’t of Labor, 364 F.3d 1117, 1121 (9th Cir. 2004). We deny the petition.

The ARB properly dismissed Neely’s claim. Assuming, without deciding,

that Neely made a prima facie showing of discrimination, Boeing established by

clear and convincing evidence that it would have fired Neely even if he had not

engaged in protected activity. See 49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R.

§ 1979.109(a) (relief may not be ordered if employer “demonstrates by clear and

convincing evidence that it would have taken the same unfavorable personnel

action in the absence of any protected behavior”). The record includes substantial

evidence that Neely was fired because, among other things, the budget for his

assigned project was reduced, and no other projects were available for Neely after

his assigned project ended.

Neely’s arguments on appeal lack merit. The ARB properly enforced the

applicable statute of limitations, and also considered events outside the time limit

2 as relevant background. 49 U.S.C. § 42121(b)(1) (discrimination complaints must

be filed within 90 days after an alleged violation); 29 C.F.R. § 1979.103(d) (same);

see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (discrete

discriminatory acts are not actionable if time bared, though employee may use

prior acts as background evidence in support of a timely claim). In addition,

Neely’s arguments that the ARB ignored or misinterpreted evidence are not

supported by the record.

The ARB did not abuse its discretion in denying Neely’s motion for relief

under Federal Rule of Civil Procedure 60(b), which he filed with the ARB while

his appeal was still pending. See, e.g., Williams v. Woodford, 384 F.3d 567, 586

(9th Cir. 2004) (explaining that the proper procedure to seek Rule 60(b) relief

during the pendency of an appeal is to ask the lower court whether it wishes to

entertain the motion, or to grant it, and then move the appellate court, if

appropriate, for remand of the case).

Neely’s motion to compel excerpts of record (Docket Entry No. 51) is

denied as moot.

PETITION FOR REVIEW DENIED.