NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARL SEURING,

Petitioner,

v.
DELTA AIR LINES, INC.,

Respondent. No. 19

- 73334

LABR No. 2018

- AIR

- 00033

MEMORANDUM *

On Petition for Review of an Order of the

Department of Labor

Submitted December 9, 2020 * * Seattle, Washington

Before: BERZON, MILLER, and BRESS, Circuit Judges.
Karl Seuring petitions for review of an order of the Department of Labor’s

Administrative R eview Board (ARB) denying for failure to comply with ARB rules
Seuring’s petition for review of an Administrative Law Judge (ALJ) decision. We

have jurisdiction under 49 U.S.C. § 42121(b)(4)(A) . We may set aside the ARB’s

* 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). 

# FILED

DEC 11 2020

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

order if it is “ arbitrary, capri cious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); see 49 U.S.C. § 42121(b)(4)(A)
(providing that review of an ARB order in the court of appeals “shall conform to
chapter 7 of title 5, United States Code”). We deny the petition.
Seuring’s original petition before the ARB failed to comply with 29 C.F.R.

§ 1979.110(a), which requires that “[t] he petition for review must specifically

identify the findings, conclusions, or orders to which exception is taken. ” Rathe r
than deny the petition on that basis, the ARB gave Seuring another opportunity to
file a complying petition, but made clear he must do so “on or before October 9,

2019 ,” or else “his petition for review will be DISMISSED .” Seuring filed his

amended peti tion one day late, on October 10, 2019. Seuring in a separate motion

claimed he was close to retaining counsel who would seek to file a further amended

petition. The ARB then waited another eighteen days before denying Seuring’s

original petition for non

- compliance with 29 C.F.R. § 1979.110(a) and declining to

accept his amended petition as untimely. Under the circumstances, this decision was

reasonable and not an abuse of discretion.

Seuring errs in claiming he was not given an opportunity to argue equitable

tolling before the ARB. Seuring did not request an extension of time before the ARB

or explain why his untimeliness should be excused. Regardless, the ARB considered
that “Complainant i s self

- represented and is seeking counsel” and concluded, after3

giving Seuring eighteen more days to secure counsel or provide a status update, that
“further delay is not in the interests of justice.” “Equitable tolling applies when the

plaintiff is preve nted from asserting a claim by wrongful conduct on the part of the
defendant, or when extraordinary circumstances beyond the plaintiff’s control made
it impossible to file a claim on time.” Stoll v. Runyon , 165 F.3d 1238, 1242 (9th Cir.

1999), as amended (Mar. 22, 1999). Seuring has not demonstrated why he is entitled
to equitable tolling or why the ARB’s adherence to its procedural rules was an abuse

of discretion or otherwise contrary to law.

PETITION DENIED.