NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0162n.06 No. 11-4312 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
STE P HEN P. D URHAM, : : P etitioner , : : ON P ETIT ION F OR REVIEW : F ROM THE OFF ICE OF v. : ADMIN ISTRATIVE LAW : JUDG ES, UNITE D STATE S DEP ARTMENT OF LABOR; : DEP ARTMENT OF LABOR TENNES SEE VALLEY AUTHORITY, : : Respondents. :

BEFORE: M OORE an d COOK, Circ uit Jud ges; BERTELS MAN, D istrictJudge. * OPI NI ON PER C URI AM: Mr. Stephen Dur

ham petitions for re view of the Administrative Review B oard’ s dismis sal of his appea l for failing to timely file his opening brief as instructed by the Boa rd’s brief scheduling order and fa iling to show g ood cause . We DENYthe petition for re view. As an ini tial matter, we reje ct Durha m’s reque st to review the Boa rd’s decision to dismiss his appea l using a standard of revie w requiring bad faith. Final order s of the S ec re t ar y of L abor under the Clean Air Act are revie wed by courts u s ing the standard outlined in the Administrative

* T h e Ho n o ra ble Wil liam O. Be rtelsman, United States District J udg e for the Easter n District o f Kentucky , sitti ng by

desig nation.No. 11-4312

Durham v. D epartment of Labor; TennesseeValley Authority

Procedur e Act, 5 U.S.C. § 706 (2). See 42 U. S
. C
. § 7 6 2 2 (c)
. The Boar d’s di smissal repr esents a final orde r of the Sec reta

ry and, as suc h, the standar d of re view in the APA guides our ana ly sis. Second, the B oard’ s dismis sal for Durham’s failure to c omply with both the br iefingorder and the show cause order was not an abuse of its discretion under the Clean Ai r Act. The Administrative Review B oard ha s authority to “spec ify

the terms under

which any

briefs a re to be filed.” 29 C.F.R. § 24.110(b). The Boa rd has “powe r to control its docket via dismiss al
. . . simil ar in all signific ant respe cts to that vested in the courts,” Consol. Coal Co. v. Gooding , 703 F.2d 230, 232 (6th Cir. 1983), and judicial revie w of a Boa rd dismiss al is g overne d by the APA’s ab u s e of d iscretion st andar d. See Ellison v. Department of Labor , 384 F. App’x 860, 863 (11th Cir. 201 0 ) (per curiam). Durham and his attorney s ep ar at el y rec eived copies of the Notice of Appea l and Orde r Establishing Br iefing Schedule, as well as the Boa rd’s Orde r to Show Cause; both order s car ried the
war ning that failure to comply with the order could result in dismiss al. As a result, Durham rec eived sufficie nt notice on two separ ate occa sions that dismiss al would result from a failure to comply with the B oard’ s order
. Additionally , Durham’s method of responding to the Board’ s show cau s e o rd er, by email,
was expressly prohibited by the Boa rd. Even this improper medium of re s p o n d ing to the Show Cause Orde r failed to provide any justification for Durham’s proce dural defic iencies in pursuing his

2No. 11-4312

Durham v. D epartment of Labor; TennesseeValley Authority

appea l, and prompted the Boa rd to state: “Dur

ham’s reply to the Boa

rd’s show cause order offe rs no compre hensible explanation for his fa ilure to timely file his openingbrief.”
In light of the Boa

rd’s clea r provision of notice reg arding the conseque nces that would result from succe ssive proce dural fa i l ures in conjunction with the repe ated defic iencies exhibi ted in Durham’s response s, we find that the Boa rd’s dismiss al does not repr esent a clea r err or in judgme nt,
nor was it based on information which did not rea sonably support dismiss al. See Carpenter v. Solis, 439 F. App’x 480, 484 (6th Cir. 2011)(“ 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 o f judgme nt.’”) (citation omitted). The Administrative Review Boa rd is a uthorized to reje ct briefs that do not c omply with its filing instructions in order to “ac hieve the order ly and expeditious dispositi on of case s.” L i n k v. W abash R.R. Co. , 370 U.S. 626, 630-31 (1962). Durha m and his counsel repe atedly failed to comply with these order s, in spite of the Boa rd’s attempts to obtain a rea sonab l e ex p l an at i on for the
unrea sonable de lay . The B oard thus ac ted within its di scre tion in dis missing Durha m’s appea l.
For the fore g oing r easons, we DENY the petition for re view.

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