Kehinde Taiwo v. Office of Compliance

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

KEHINDE TAIWO,
Petitioner,
v.
OFFICE OF COMPLIANCE,
Respondent.

2011-6002

On petition for review of a decision of the Board of Di-
rectors of the Office of Compliance, case no. 10-AC-25.

## ON MOTION

Before LOURIE, PROST, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

ORDER

The Office of Compliance moves for summary affir-
mance of the decision of the Board of Directors of the
Office of Compliance ("Board") that affirmed the Hearing
Officer's dismissal of Kehinde Taiwo's complaint for
failure to proceed and failure to prosecute. Mr. Taiwo

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TAIWO V. OOC

opposes. The Office of Compliance replies. Mr. Taiwo
also moves for leave to proceed in forma pauperis.

Mr. Taiwo, represented by counsel, filed with the Of-
fice of Compliance a complaint against the Office of the
Architect of the Capitol on August 26, 2010. On October
5, 2010, the Hearing Officer set October 18, 2010 as the
hearing date. After neither Mr. Taiwo nor his counsel
appeared for the hearing, the Hearing Officer issued
orders directing Mr. Taiwo to show cause for the failure to
appear at the scheduled hearing or for the failure to
timely request an extension of the hearing date. Mr.
Taiwo responded.

In December of 2010, the Hearing Officer dismissed
the complaint for failure to proceed and for failure to
prosecute. Regarding the failure to proceed, and specifi-
cally the failure to attend the hearing, the Hearing Officer
made the following finding in his dismissal order:

Complainant's counsel did not contact the
Hearing Officer until one hour after the
scheduled start of the hearing, after mes-
sages had been left in his voice mail. Com-
plainant's counsel proffered the excuse that
he suffered an automobile failure, but failed
to provide an explanation for why Complain-
ant did not appear.

The Hearing Officer also found that Mr. Taiwo and coun-
sel failed to provide the requested information regarding
why there was no timely request for an extension of the
hearing date.

Regarding the failure to prosecute, the Hearing
Officer also held that Mr. Taiwo and counsel failed to
timely file the required "Jurisdictional Statement." The
Hearing Officer considered counsel's response on the issue

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and stated that counsel's response was insufficient to
justify the belated filing of the Jurisdictional Statement
and that the late-filed Jurisdictional Statement lacked
the requisite information.

Through counsel, Mr. Taiwo filed an appeal seeking
review by the Board. Mr. Taiwo requested an extension of
time to file his brief with the Board. The Board granted
an extension of time and ordered that "no further exten-
sions would be granted." After the extended date expired,
Mr. Taiwo requested an additional extension of time
which was denied. Counsel for Mr. Taiwo states that he
sought reconsideration of that order and that reconsidera-
tion was denied. Thus, no brief was filed with the Board
and no arguments were made to the Board why the Hear-
ing Officer's dismissal of the complaint should be re-
versed.

On May 13, 2011, the Board affirmed the dismissal of
the complaint, noting that "[t]he appellant did not file a
supporting brief." The Board stated that it agreed with
the Hearing Officer's determinations that Mr. Taiwo
failed to proceed and failed to prosecute and that those
failures warranted dismissal of the complaint. Mr. Taiwo
now petitions this court for review of the Board's decision.

The Office of Compliance moves this court to summa-
rily affirm the Board's decision that affirmed the Hearing
Officer's dismissal order. The Office of Compliance also
argues that Mr. Taiwo cannot now raise arguments to
this court that were not first made before the Board.
Summary disposition of a case "is appropriate, inter alia,
when the position of one party is so clearly correct as a
matter of law that no substantial question regarding the
outcome of the appeal exists." Joshua v. United States, 17
F.3d 378, 380 (Fed. Cir. 1994).

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Mr. Taiwo argues that this court should review the
Board's refusal to grant an extension of time to file his
brief after the Board had ordered that no further exten-
sions would be granted. The Board clearly has discretion
to schedule such matters, and Mr. Taiwo has shown no
abuse of that discretion in his response to the motion for
summary affirmance. Having thus determined that the
Board's procedural rulings should be affirmed, we also
determine that the other issues raised by Mr. Taiwo are
not properly before this court.

In his response to the motion for summary affir-
mance, Mr. Taiwo also makes arguments concerning the
Hearing Officer's dismissal of his complaint. The Office of
Compliance correctly notes that those arguments are not
before this court because he failed to file a brief first
presenting those issues to the Board.

In Sims v. Apfel, 530 U.S. 103 (2000), the Supreme
Court considered circumstances in which an appellant or
petitioner may not raise issues to a court of appeals that
were not first raised before the agency on review. The
Court explained that there may be three sources for a
ruling that a petitioner is precluded from raising issues in
a court of appeals that were not first raised before the
agency: (1) in the statute requiring issue exhaustion; (2)
in an agency's regulation requiring issue exhaustion; or
(3) in the absence of a statute or regulation, issue exhaus-
tion may also be required if the administrative proceeding
is adversarial in nature. Id. at 107-110. In Sims, the
Court held that no statute or regulation required issue
exhaustion and that the Social Security proceedings on
review in the court of appeals were "inquisitorial rather
than adversarial." Id. at 111.

In this case, the Office of Compliance argues that one
of its procedural rules, OOC Procedural Rule § 8.01(b)(1),
supports issue exhaustion because it requires the appel-

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lant to file a brief that "shall identify with particularity
those findings or conclusions in the decision and order
that are challenged and shall refer specifically to the
portions of the record and the provisions of statutes or
rules that are alleged to support each assertion made on
appeal." The Office of Compliance also argues that review
by the Board is an adversarial proceeding in which issue
exhaustion should be required. Mr. Taiwo does not re-
spond to either of these arguments. We agree with the
Office of Compliance that the proceedings before the
Board are adversarial, unlike the proceedings in Sims,
and that issue exhaustion is required in the circum-
stances. "Where the parties are expected to develop the
issues in an adversarial administrative proceeding, it
seems to us that the rationale for requiring issue exhaus-
tion is at its greatest." Sims, 530 U.S. at 110.

Accordingly,

\-

IT IS ORDERED THAT:

(1) The motion for summary affirmance is granted.

(2) The motion to proceed in forma pauperis is moot.

FOR THE COURT

FEB 2 7 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Dalton J. Howard, Jr., Esq.
Peter A. Eveleth, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 2 7 2012
JAN HORBALY
CLERK