ELLERBEE v. ANNETT HOLDINGS INC TMC (2019)

Jamel Ellerbee petitions for review of an order of the Department of Labor's (DOL) Administrative Review Board (ARB) dismissing as untimely his petition for review of the Administrate Law Judge's (ALJ) decision dismissing his complaint alleging violations of the Surface Transportation Assistance Act of 1982 (STAA), see 49 U.S.C. § 31105 (2012). Initially, Ellerbee has forfeited our review of the ARB's determination that his petition for review of the ALJ's decision was untimely. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief); United States v. Copeland, 707 F.3d 522, 530 (4th Cir. 2013) (recognizing that this Court generally does not consider arguments newly raised in reply). And, because Ellerbee failed to timely petition the ARB for review, we lack authority to exercise judicial review over the ALJ's decision. See 49 U.S.C. § 31105(d) (requiring STAA judicial review to conform with Administrative Procedure Act (APA)); 29 C.F.R. §§ 1978.109(e), 1978.110(a), (b) (2019); see also Darby v. Cisneros, 509 U.S. 137, 147, 152-53, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (recognizing circumstances under which regulation may establish intra-agency appeal as prerequisite to judicial review under APA).

Accordingly, we deny the petition for review. We grant Ellerbee's motions to submit on the briefs and to amend the record. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

PETITION DENIED

PER CURIAM:

Petition denied by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.