NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0678n.06 No. 09-4394 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J AMES CARP ENTER, Petitioner,

v. HI L DA S. SOL I S; UNI TED STATES DEPARTMENT OF L AB OR, Respondents, BI SHOP W EL LSERVI CES C ORP., I nterve nor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW OF AN ORDER OF THE U N I T E D S T A T E S DEP ARTMENT OF L AB OR ADMI NI STRATI VE REVI EW BO ARD

BEF ORE: NORRI S, GI BB ONS, and GRI FF I N, Circuit J udg es. GRI FF I N, Circuit J udg e. J am es Carpente r seeks revie w of a decision by the United States Depa rtment of L abor ’s Administrative Review Boar d (“A RB”) , holding that he failed to prove that his employ er, Bishop Well Service s, reta liated ag ainst him in violation of the employ ee protec tion provisions of the Clean Air Act (“CAA” ), 42 U.S.C. § 7622, Safe Drinking Water Act (“SDWA”), 42 U.S.C. § 300j-9(i), Energ y Reorg anization Act (“ERA” ), 42 U.S.C. § 5851, Tox ic Substances Control Act (“TSCA”) , 15 U.S.C. § 2622, Comprehensive Environmental Response, Compensation and L iability Act (“ C E RCL A”) , 42 U.S.C. § 9610, and Pipeline Safety I mprovement Act (“PSI A”) , 49 U.S

. C

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Carpenter v. Solis

60129. Carpente r contends that the Administrative L aw J udg e’s (“A L J ”) proce dural and evidentiar y ruling s deprived him of a fair he aring . We disag ree and ther efor e deny the petition. I

. I n 1992, Carpente r was hired by David Bishop, the owner of Bishop Well Service s, as a rig operator. Whil e working i n 2 0 0 5, he was injured by a utilit y hose. After filing a worke rs’ compensa tion claim, Carpente r was place d on “li gh t d u ty ,” which allowed him to sit in a truck observing the work w hile rec eiving full pay

. At sever al worke rs’ compensa tion hear ings during the spring of 2006, Carpente r soug ht additional work restric tions, which Bishop contested. Bishop claims that in Marc h 2006 he decide d to “terminate Carpente r’s lig ht duty position,” but refra ined from doing so beca use C arpe nter wa s schedule d to underg o “non work rela ted surg ery” in April 2006, and his “surg ical nonwork-r elated restric tions” would expi re on Ma y 29, 2006. I n April 2006, Carpente r notified Bishop of a mecha nical problem with one of the company ’s service rig s. Bishop direc ted an operator and a mecha nic to resolve the problem. On May 16, 2006, Carpente r ca l l ed the United States Depa rtment of L abor’ s Occ upational Safety and Hea lth Administration (“O SHA”) and repor ted that Bishop Well’s “‘hig h pressure hoses are not safe ’” and that its “‘handr ails on the trucks a re missing .’” On May 23, 2006, OSHA inspected the sites wher e Bishop Well Service s was operating. I t issued two citations direc ting additional trai n i n g for the employ ees, which wer e unrela ted to

- 2 -No. 09-4394

Carpenter v. Solis Carpente r’s complaints. On that same day , the Workers’ Compensation Bur eau denied Carpente r’s claim. On May 26, 2006, Bishop g ave pay raises to all of his employ ees, except Carpente r beca use he “‘ha d alre ady decide d to le t [Carpe nter] g o.’” On May 30, 2006, Bishop’s bigg est client, Gre at L akes Energ y Partners, told Bishop that Carpente r was not doing any actua l work and that they did
not want him or any other light duty employ ee sent to any of their work sites. Bishop subsequently
te r minated Carpente r on May 31, 2006, explaining that he could no longe r acc ommodate Carpente r ’ s light duty restric tions. On J une 20, 2006, Carpente r filed a complaint with OSHA, alleg ing that Bis h o p had unlawfully discharg ed him in violation of the employ ee protec tion provisions of the CAA, SDWA, ERA, TSCA, CER CL A, PSI A, and Sec tion 11(c) of the Occ upational Safe ty

and He alth Act. See 29 U.S.C. § 660(c)

. OSHA conducte d an investiga tion and ultimately deter

mined that there was no

rea sonable cause to believe that Bishop had violated the employ ee prot ec t i o n p ro visions of the statutes and dismissed Carpente r’s c omplaint. Carpente r filed objections and reque sted a hear i n g o n all of his claims, save for his claim under the OSH Act. An AL J was a ssigne d to the case and a hearing was held on October 31, and November 1, 2006. At the hear ing, the AL J denied Carpente r’s motion to continue the hear ing, g ave Carpente r six ty day s to take depositions of cer tain witnesses who wer e not at the hear ing, and permitted B ishop to present expert testimony reg arding Ohio’s worke rs’ c ompensation law.

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On Marc h 6, 2007, the AL J issued a rec ommended d ec i s ion and order concluding that Carpente r’s claim failed beca use his complaint to OSHA did not constitute protec ted activity

. The AL J also cre dited Bishop’s testimony that he made the decisi o n t o terminate Carpente r in Marc h 2006, prior to Carpente r’s OSHA complaint; and it found that Bishop was not awa re of any protec ted activity at the time of the termination decision , s u ch t hat Carpente r had failed to prove that his alleg edly protec ted ac tivity

led to his discharg e. Carpente r filed a timely petition for revie w with the ARB, arguing that he did not rec eive a fair trial beca

use of sever al of the AL J ’s proc edura l and evidentiar y ruling s. The ARB conclude d that the AL J had not abused his discretion in any of the ruling s challeng ed by Carpente r. The ARB al s o fo und that Carpente r had not eng ag ed in protec ted activity

. I t there fore aff irmed th e ALJ ’s dismiss al of Car

penter ’s claim and de nied his subsequent motion for re consideration. Carpente r timely

petitions for revie w. I I

. The parties do not dispute that we have jurisdiction over Carpente r’s petition for revie w. Howeve r, we have an independe nt duty to inquire into the basis of our j u ri s d i ct i o n and satisfy ourselves that jurisdiction exis ts. Campanella v. Commerce Exc h. Bank, 137 F.3d 885, 890 (6th Cir. 1998) (noting that “it is beyond question that fede ral courts have a continuing obligation to inquire into the basis of subject-matter jurisdiction to satisfy themselves that jurisdiction to enter tain an

ac t i o n ex ists”); see also Carroll v. United States , 354 U.S. 394, 399 (1957) (“I t is axiom atic, a s a matter of history as well as doctrine, that the exis tence of appellate jurisdiction in a specific fede ral

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court over a g iven t y

pe of case is depende nt upon authority expressly confe rre d by statute.”). For the most part, we find that we have jurisdiction to revie w the ARB’ s decision under the respe ctive
statutes. See 42 U.S.C. § 7622(c) (1); 42 U.S.C. § 300j-9(i)(3) (A); 15 U.S.C. § 2622(c) (1); 42 U.S.C. § 5851(c) (1); 49 U.S.C. § 60129(b)( 4)(A)

. CERCL A, howeve r, vests exclusive jurisdiction in the fede ral district courts. See 42 U.S.C. §§ 9610(b), 9613(b). As the Ninth Circuit has observe d, this “ra ises a knotty jurisdictional question” – namely , “[w]here an ag ency issues a decision that has two

o r m o re d i stinct bases of authority providing separ ate paths of judicial revie w, does the appella t e court have jurisdiction to revie w the entire proce eding ? ” Ruud v. U.S. Dep’ t of Labor , 347 F.3d 1086, 1087 (9th Cir. 2003). The Ni n t h C i rc uit answe red this question in the aff irmative. After noting that “[s] ever al circ uits

. . . have held that wher e an ag ency decis i o n h as m o re than one basis of authority , one of which provides for revie w in the court of appea ls, considera tions of judi ci al ec o nomy and consistency justify revie w of the entire proce eding by the court of appea ls,” it outlined the “vene rable history of judicially cr ea t ed doctrines acknow ledg ing the need in some case s for the prag matic application of jurisdictional principles” and explained why “[p] ermitting consolidated revie w in the
court of appea ls makes particula rly g ood sense.” Id. at 1088-90. Acc ording ly , the Ninth Circuit held that it would “ente rtain a petition to revie w an ag ency decision made purs u an t t o t h e ag ency ’s authority under two or

more statutes, a t least one of w hich provides f or direc t review in the courts of appea ls, wher e the petition involves a comm o n fa ct u al backg round and raises a common leg al question.” Id. at 1090. T h e T en t h Circuit has also adopted this approa ch. See Anderson v. U.S.

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Carpenter v. Solis Dep’ t of Labor , 422 F.3d 1155, 1157 n.3 (10th Cir. 2005). Be cause we find the Ninth Circuit’s

rea soning persua sive, and beca use the instant petition involves a common fac tual backg round (i.e., the AL J ’s rul i ng s) and a common leg al question (i.e., whether those ruling s violated Carpente r’s rig ht to due proce ss), we w ill ex erc ise jurisdiction over Carpe nter’s CERCL A claim. I I I

. We review final decisions of the ARB pursuant to the standards set forth in the Administrative Procedur e Act (“A PA”), 5 U.S.C. § 706. See, e.g. , 42 U.S.C. §§ 9610(b), 9613(j)(2) ; 4 2 U.S.C. § 5851(c) , 49 U.S.C. § 60129(b)( 4)(A)

. Under the APA, we will set aside the AR B’ s order only if it is unsupported by substantial evidenc e or is arbitra ry an d capricious, an abuse of discretion, or otherwise not in acc ordanc e with law. 5 U.S.C. § 706. An abuse of discretion occur s when we are left with the “def inite and firm conviction that a trial court committed a clea r err or of judgme nt.” Bowling v. Pfizer, Inc. , 102 F.3d 777, 780 (6th Cir. 1996). Additionally , “[a]n ag ency ’s violation of its proce dural rules will not result in reve rsible err or absent a showing that the claimant has been prejudice d on the merits or deprive d of substantial rig hts beca use of the agency ’s proce dural lapses.” Connor v

. U.S. Civil Serv. Comm’n , 721 F.2d 1054, 1056 (6th Cir. 1983) ; see also Hoffma n v. Solis , 636 F.3d 262, 273-74 (6th Cir. 2011); 5 U.S.C. § 706 (“I n making the fore g oing de terminations . . . due ac count shall be take n of the rule of pre judicial err or.”)

. I V. The whistleblower provisions of the CAA, SDWA, ERA, TSCA, CERCL A, and PSI A prohibit employ ers from discharg ing or discriminating ag ainst employ ees for repor ting violations

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or instit uting proce eding s resulting from the administration or enfor ceme nt of eac h of the respe ctive
statutes. See 42 U.S.C. § 7622; 42 U.S.C. § 300j-9(i); 42 U.S.C. § 5851; 15 U.S.C. § 2622; 42 U.S.C. § 9610; 49 U.S.C. § 60129. To state a claim under these provisions, a plaintiff must establish that his employ er reta liated ag ainst him beca use he eng ag ed in protec ted activity

. Id. ; see, e.g. , American Nuclear Res., Inc. v. U.S. Dep’ t of Labor , 134 F.3d 1292, 1295 (6th Cir. 1998). The AL J and ARB found that Carpe nter did not make suc h a showing

. I n the prese nt petition for revie w, Carpente r argu es that he is entitled to a new hear ing beca use the AL J ’s proce dural and evidentiar y ruling s deprive d him of the “opportunity to be hear d
at a meaning ful time and in a meaningfu l m anner ” in violation of the Fifth Amendment’s due proc es s gu ar antee. See Mathews v. Eldridge , 424 U.S. 319, 333 (1976). Bishop argues that Carpente r’s due proce ss claim is not prese rved beca use he failed to raise it befor e the ARB. Bishop and the Sec reta

ry of L abor a lso arg ue that if the c laim is not forf eited, it fails because the AL J did not abuse his discre tion in re ndering any of the challeng ed ruling s and beca use any such abuses of discretion wer e harmless. Assumi n g , without deciding , that Carpente r’s due proce ss claim is prese rved, w e re

ject it for the r easons e x plained below. Carpente r argues that his rig ht to a fa i r h ear ing was violated beca use the AL J abused his discretion by (1) denying his motion t o co m p el d i scover y response s; (2) denying his motion to continue the hear ing; (3) allowing Ba rbar a Knapic to testify ; and (4) r efusing to compel B ishop to produce Gar

y Schupbach at the hear ing or at a late r deposition. We addre ss these cla ims in t urn.

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A. Motion to Com pel Discove ry Responses Carpente r first contends that the AL J abused his discretion by summarily denying his motion
to compel discovery response s. Acc ording to Carpente r, the AL J should have order ed the response s that Bishop ref

used to provide, beca

use the Depa

rtment of L abor reg

ulations and fed er al ca s elaw permit liberal discovery , and beca use he neede d the response s to show evidenc e of the all ege d underlying violations, e vidence of alleg ed reta liatory motive, the rela tionship betwe en Bishop and Gre at L akes, and to challeng e the cre dibilit y of cer tain witn es s es. We find Carpente r’s argument unavailing

. Discover y matters “do not amount to reversible e rror unless there is a

n abuse of

discretion and substantial prejudice .” Int’l Union, UAW v. Michigan , 8 8 6 F. 2 d 7 66, 771 (6th Cir. 1989); accord Miller v. Am. President L ines, Ltd. , 989 F.2d 1450, 1466 (6th Cir. 1993). Her e, assuming that the AL J ’s denial of Carpente r’s motion was an abuse of discretion, there is no prejudice beca use Carpente r has not shown that a ny of the discovery reque sts de nied by the AL J would allow him to prove that he enga g ed in protec ted activity

. Cf. Lewis v. Synagro Tech., Inc., 2004 WL 384727, 1
at *9 (ARB Feb

. 2 7, 2004) (AL J ’s denial of discovery was neither arbitra ry nor an abuse of discretion wher e it “would not chang e the AL J ’s proper finding s that WEF is not a cover ed employ er under the applicable whistleblower statutes” ); Hoffman , 636 F.3d a t 273-74. Carpente r’s sug g esti o n t hat he does not need to make such a showing beca use the AL J ’s 1 decision will be vaca

ted if we find t h at h e was denied due proce ss is simply incorre ct. His due proce ss claim is based solely on the AL J ’s alleg edly err o n eo u s proce dural ruling s, and he cannot have been denied th e opportunity to prese nt his claim at a meaning ful time and in a meaning ful manner if those ruling s had no eff ect on his case . Cf. Hamby v. N eel , 368 F.3d 549, 562 ( 6th Cir. 2004). - 8 -No. 09-4394

Carpenter v. Solis

To be sure, Carpente r does asser t that “whe n an employ er mistakenly b el i ev es that an employ ee eng ag ed in protec ted activity , the employ ee may still make a claim for unlawful reta liation even thoug h the employ ee e ng ag ed in no protec ted ac tivity at all” and that “[i] n this re g ard, a new hear ing with d i s cover

y of Bishop’s rec ords about the pay raise for ever y one but Carpente r, his personne l rec ords and the testimony of Gar ry Schupbach could lead to a differ ent result.” Yet while Carpente r is corr ect that some courts have appl i ed an employ er- perc eption theory of protec ted activity in other contexts, see F o g el ma n v. Merc

y Hosp., Inc. , 283 F.3d 561, 565 (3d Cir. 2002) (addr essing the Amer icans with Disabilities Act, the Ag e Discrimination in E mploy ment Act, and the Pennsy lvania Human Relations Act); S a f f els v. Rice , 40 F.3d 1546, 1549 (8th Cir. 1994) (addr essing the Fa ir L abor Standards Act); Brock v. Richardson , 812 F.2d 121, 123-25 (3d Cir. 1987) (addr essing the Fa ir L abor Standards Act), Carpente r has cited no case , and we have found none, that applies that theory

in the context of the statutes at issue here

. 2 More importantly , the whistleblower provis i o n s of the rele vant statutes “g ener ally do not protec t complain t s re s t ricted solely to occupational safe ty and health, unless the complaints also encompa ss public safety

and hea lth or the environment.” Post v. Hense l Phelps Constr. Co. , AL J No. 94-CAA-13, slip op. at 2 (Sec’ y Aug

. 9, 1995); see also Dev ine v. Blue Star Enters., Inc. , ARB

I ndeed, ARB decisions apply ing these statutes consistent ly hold, as the ARB held in this 2 case , that engaging in protected activity is an essential element of re t al i at i o n claims. See, e.g., Back us v. Ind. Mich. Pow er Co . , AR B No. 06-129, AL J No. 2005-ERA-008, slip op. at 10 (ARB Sept. 30, 2008); De ve r

s v. Kaiser Hill Co. , ARB No. 03-113, AL J No. 2001-SWD-00003 (ARB Marc h 31, 2005); Kester v. Carolina Power & Light C o. , ARB No. 02- 007, AL J No. 00-ERA-31, slip op. at 6-8 (Sept. 30, 2003); Payne s v. Gulf States Utils. Co. , ARB No. 98-045, AL J No. 93-ERA-47, slip op. at 4-5 ( ARB Aug . 31, 1999). - 9 -No. 09-4394

Carpenter v. Solis

No. 04-109, AL J No. 2004-ERA-010, slip op. at 6 (ARB Aug

. 31, 2006); Kester , ARB No. 02-007, slip op. at 9; Knox v. U.S. Dep’ t of the Interior , ARB No. 03-040, AL J No. 01-CAA-3, slip op. at 4 (ARB Sept. 30, 2004); Culli gan v. Am. Heav

y Lift ing Shipping Co. , ARB No. 03-046, AL J Nos. 00-CAA-20, 01- CAA-09, 01-CAA- 11, slip op. at 9 ( ARB June 30, 2004). Allowing Carpente r to p ro cee d on an employ er- perc eption theory of protec ted activity when he does not challeng e t h e AL J ’s and ARB’ s deter

minations that his complaint was restric ted solely to occupational safe ty and health would ef

fec tively evisce rate this li mitation. Finally , the rationa l e underlying the employ er- perc eption theory of protec ted activity is inapplicable in the prese nt case . Courts apply ing the theory in other contexts have done so beca use they conclude it is nece ssary to reduc e the preva lence of workplac es in which employ ees are afr aid
to repor t their employ er’ s violations of law. See, e.g. , Brock , 812 F.2d at 125. That conce rn car ries

no weig ht here beca

use there is no question that Carpente r’s repor t to OSHA is protec ted under the OSH Act and that that Act contains provisions which deter employ ers from eng ag ing in conduct that would cre ate such workplac e environments. See 29 U.S.C. § 660(c) (“N o person shall discharg e or in any manner discriminate aga i n st any employ ee beca use such employ ee has filed any complaint . . . under or

rela ted to this chapter” and “A ny employ ee w ho believes tha t he has been disc harg ed

o r o t h er wi s e discriminated ag ainst by any person in violation of this subsection may . . . fi l e a complaint with the Secre tary alleg ing such discrimination.”). Acc ording ly , we hold that the AL J ’s denial of Car

penter ’s motion to compel discovery was not er

ror r equiring reve rsal.

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B. Motion to Continue the Hea ring Next, Carpente r arg ues t hat t h e AL J ’s denial of hi s motion to continue the hear ing was an abuse of discretion. Where, as in this case , the motion for a continuance is f iled less than fourtee n day s befor e the schedule d hear ing date, an AL J may g rant the continuance only upon a showing of g ood cause . See 29 C.F.R. § 18.28(b). The AL J ’s “g rant or denial of a continuance

. . . will not be
overturne d absent a

clea r showing of abuse. Such an abuse will be found only wher e the e x erc ise of discretion is demonstrated to clea rly prejudice the appea ling party .” Malpass v. Gen. Elec. Co. , ARB Nos. 85-ERA-38, 85-ERA-39, 1994 WL 897244, at *3 (Sec’ y Marc h 1, 1994) (quoting NLRB

v. Pan Scape Corp. , 607 F.2d 198, 201 (7th Cir. 1979)) (interna l q u otation marks and citations omitted); cf. United States v. Gar ner , 507 F.3d 399, 408 (6th Cir. 2007) (“We revie w denial of a motion for a continuance for abuse of discretion. To demonstrate reve rsible err or, the defe ndant must show that the denia l resulted in ac tual prejudice . . . .”) ( internal c itation omit ted). We find a couple of case s instructive. First, in Jack son v. Butler & Co. , ARB Nos. 03-116, 03-144, AL J No. 2003-S TA-26, 200 4 W L 1 9 5 5 4 3 6 (ARB Aug

. 31, 2004), t he ARB held t hat t he AL J did not abuse its discr etion in de ny ing a motion to continue the hear ing wher e the responde nt reque sted a continuance seven day s befor e trial. Id

. at * 4

. I n s o finding , the ARB reje cted the responde nt’s newly -ra ised argument that its counsel neede d more time to secur e the testimony of a witness beca

use the responde nt failed to show that the witness’s absenc e was prejudicia l. Id. Also helpful is Brace v. Commissioner of Social Security , 97 F. App’x 589 (6th Cir. 2004). I n that case , the petitioner argued that “the AL J err ed in denying his reque st to postpone his hear ing.” Id. at 592.

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We noted, howeve r, that the petitioner’s “counse l did not reque st a continuance of the hear ing until less than one wee k prior to the schedule d hear ing[,]” and that “[t] he AL J allowed Br ace thirty day s afte r the hear ing to submit additional medical evidenc e to support his claim.” Id. We t h erefore conclude d that “the AL J did not commit re v er s ible err or in denying Br ace a continuance of his administrative hea

ring .” Id. The same conclusion applies here

. There is no dispute that Carpente r filed his motion less than one wee k befor e the hear ing. And, despite Carpente r’s curr ent asser tion that the AL J ’s decision
to proce ed with the hear ing, despite his conflicting appointment, was “outra g eous,” Carpente r appar ently worke d with the AL J to prese nt his testimony out of order so that he could attend the appointment while his attorney was questioning and cross-e x amining other witnesses, and he has not explained how this arr ang ement prejudice d him. Moreove r, even though the AL J found Carpente r 3 remiss in not subpoenaing the Bi s hop-employ ee witnesses befor e the hear ing, the AL J

acc ommodated Carpente r’s reque st for this discovery by permitting him to take depositions within six ty day s following the hear ing. On this rec ord, we conclude that the AL J acte d within his discretion in denying Carpente r’s motion to conti n ue the hear ing and that Carpente r was not prejudice d by

that decision.

A petition e r ’ s c o mp le te a

b sence from a hear ing will, of course , violate due proce ss inasmuch 3 as the petitioner is denied the opportunity “to prese nt evidenc e and to state his or her position.” See Stoner v. Sec’y of HHS , 837 F.2d 759, 760-61 (6th Cir. 19 8 8 ); s ee a l s o Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985). Howeve r, Carpente r only missed a portion of the hear ing in this case, a

nd the re cord shows tha t he was not de nied the opportunity to present e vidence or state his positi on. - 12 -No. 09-4394

Carpenter v. Solis C. Allowing B arba ra K napic to Te stify Carpente r also asser

ts that the AL J abused his discretion when he permitted Ba rbar a Knapic to testify reg arding Ohio’s worke rs’ c ompensation law, e ven thoug h Bishop had not disclosed her

as an ex p er t wi tness during discovery

. He points out that in response to an interrog atory , Bishop stated, “No decision has y et been made as to whether Respondent will c all an expert witness.” He claims that Bishop’s failure to disclose Knapic wa s prejudicia l beca use he did not rec eive pre- hear ing answe rs to the interrog atories reg arding her qualifica tions, prepa

ration, opinions, and the bases for those opinions, a nd beca use it wa s not until afte r Knapic testified that he lear ned that she is the sister of Bishop’s counsel, and he was thus deprive d of that basis for cross-e x amination. Bishop Well counte rs that it did not dec ide to call Kna pic until the first day of the hear ing, when the AL J expressed concern reg arding the complex and conf u sing nature of Ohio’s workers’ compensa tion sy stem. Bishop Well claims that upon the AL J expressing his conce rn, it asked to call

an expert witness on Ohio worke rs’ compensa tion law, and the AL J g rante d that reque st. Be cause prior to the first day of the hear ing it had no intention of calling Knapic or any other expert witness, Bishop Well asser

ts that it could not have disclosed Knapic p ri o r t o t h e hear ing. Additionally , Bishop Well contends that Carpe nter suff ere d no prejudice as a r esult of this nondisclosure. We substantially ag ree with Bishop Well. As mentioned, discovery matters do not amount to r ever sible err or unless there is a n abuse of discretion and substantial pr ejudice. See M iller , 989 F.2d at 1466 (applying this standard in the context of a trial court’s decision to allow testimony from undisclosed witnesses). Ag ain, Carpente r has failed to show prejudice

. He was allowed to

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cr o s s -e x am i n e Knapic at the hear ing, and the AL J g ave him six ty day s leave to depose his own workers ’ compensa tion expert to rebut Knapic’ s testimony , which he failed to do. Although C ar p en t er contends that he was prejudice d beca use he was not able to cross-e x amine Kna p i c reg arding her familial rela tionship with Bishop’s counsel, that asser tion is unconvincing g iven that Carpente r neve r attempted to re but the substance of Knapic’ s testimony

. Acc ording ly , we f ind no

reve rsible er

ror. D. Refusing to Compel Bishop to Produce Ga ry Schupbach Finally , Carpente r argues that the AL J abused his discretion in ref using to compel Bishop to produce its employ ee, Gar y Schupbach, for the hea ri n g, as well as for a post-hear ing deposition. Bishop counters t hat Carpe nter wa ived his rig ht to compel Schupbach beca use (1) he waited until the night befor e the hear ing to reque st Schupbach’ s prese nce, (2) he could have timely reque sted a subpoena or asked the AL J to otherwise use its authority to compel S ch u p b ac h to appea r at the hear ing, (3) the partie s s t i p u l ated as to what Schupbach would testify to at the hear ing, and (4) C ar penter conce ded that he did not need to depose Schupbach afte r the hear ing. Bishop al s o contends that, even if the AL J abused his discr etion in r efusing to c ompel Schupbach’ s attendanc e at the hea ring , the er

ror wa s harmless. We conclude that Carpente r waived his rig ht to call Schupbach as a witness. I n deter mining whether Schupbach neede d to appea r at the hear ing, the AL J asked Carpente r’s counsel for a proff er of S chupbac h’s proposed testimony

. Carpente r an d Bi s h o p then s tipulated as t o what S chupbac h would testify to if prese nt at the hear ing, and the AL J acc epted the stipulated testimony as evidenc e.

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Carpenter v. Solis Carpente r di d not sug g est that Schupbach would testify to any thing else; nor did Carpente r obj ect to the AL J excusing Schupbach as a witness. Acc ordin gl y , Carpente r cannot now complain that Schupbach did not testify at the hear i n g o r cre dibly contend that he was entitled to an adver se infere nce ba sed on B ishop’s failure to produce Schupbach. Carpente r also conce ded that he did n o t n ee d Schupbach to testify at a post-hear ing deposition. When discussing the leng th of time Carpente r would need to take post-hear ing depositions of the Bishop-e mploy ee witnesses, the AL J stated: “I thought, [S chupbac h] we’ ll live, we’ re g oing to live with, without a deposition. But y ou wa nt a deposition nonetheless of [S chupbac h]? I thought the stipulation that Mr. Bishop told somebody that the rig s –.” Carpente r’s counsel, afte r a brief interruption from Bishop’s counsel, replied: “That ’s corr ect – that it’s not

nece ssary , Your Honor.” I n light of this exchang e, we conclude that t h e AL J did not abuse his discretion in quashin g C arpe nter’s post-hear ing subpoena direc ting Schupbach to appea r for a deposition. Having found no err or requiring reve rsal with reg ard to the AL J ’s challeng ed ruling s, we

rea dily conclude that those ruling s did not deprive Carpente r of a fair hear ing in violation of the Fifth Amendment. V. For these re asons, we de ny

the petition for re view.

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