Levi renewed his coal plant suggestion and raised allegations of racial discrimination by ABI supervisors. In general, Levi's letters to ABI reiterate claims of racial discrimination, poor business decision-making and workplace safety. R. D. & O. (Levi I) at 15-16.

   In late 2001, ABI began to warn Levi about his letters. On April 30, 2002, an ABI senior manager expressed concerns about the tone of Levi's letters. R. D. & O. (Levi I) at 12. In the letter, ABI indicated that Levi was rehashing unfounded rumors and half-truths, which were disruptive and needed to stop. ABI's letter indicated that this was Levi's final notice and that if the insubordination continued, Levi might receive discipline up to and including discharge. R. D. & O. (Levi I) at 12.

   Levi continued to write letters. Levi wrote a May 4, 2002 letter to the CEO claiming retaliation for his letters concerning safety violations, wasting company resources and violations of federal law. R. D. & O. (Levi I) at 12. As a result of his May 4 letter to the CEO, on June 2, 2002, ABI suspended Levi for four weeks. ABI charged that his letters were harassing and injurious to fellow employees. In July of 2002, Levi was suspended again for a week for using abusive language and confronting an employee. R. D. & O. (Levi I) at 13-14.

   On September 24, 2002, Levi wrote a letter to Harvey Pitt, Chairman of the SEC, informing the SEC of several concerns with ABI. In the letter, Levi claimed that ABI engaged in "bad corporate behavior" that had an unspecified negative impact on shareholders. Levi generally complained about excessive executive compensation but failed to identify ABI company policies or SEC rules or regulations that might be at issue. Levi enclosed attachments with the letter but did not produce these attachments for the ALJ. R. D. & O. (Levi I) at 19.

   On May 23, 2006, shortly after filing his appeal in Levi I, Levi filed a second complaint generally alleging ABI retaliation for filing his first complaint, specifically that ABI counsel made false statements in its March 14, 2006 motion to dismiss. In Levi II, Levi claims these false statements were designed to "derail" his SOX complaint and blacklist him from rehire and other future employment. R. D. & O. (Levi II) at 1. OSHA dismissed the complaint as a matter pending before the Board in Levi I. Levi appealed to an ALJ. On August 25, 2006, ABI filed a motion to dismiss and motion to consolidate. Levi objected. The ALJ held a telephone conference on September 8, 2006. During the conference call, the ALJ asked if the parties had filed testimony or affidavits in Levi I. The ALJ explained the summary decision process and gave Levi 30 days to respond to the motion to dismiss or amend his complaint. On October 11, 2006, Levi filed a supplemental brief alleging that counsel for ABI lied in the September 8, 2006 telephone conference. The ALJ ruled that Levi's claims in Levi II were "subsumed" in his earlier action and that Levi failed to show that ABI's actions gave rise to an independent claim

1. Whether the ALJ erred in dismissing Levi's original complaint as untimely filed (Levi I).

2. Whether the ALJ erred in dismissing Levi's claim of false

allegations and in granting summary decision to ABI against Levi's claim of blacklisting (Levi II).

3. Whether the ALJ erred in dismissing Levi's third complaint as duplicative and untimely and in refusing to recuse himself (Levi III).

   In view of the substantial identity of the legal issues and the commonality of much of the evidence, and in the interest of judicial and administrative economy, Levi's appeals in his three complaints (Levi I, II, and III) are hereby consolidated for the purpose of review and decision. Harvey v. Home Depot, ARB Nos. 04-114, 115, ALJ Nos. 2004-SOX-020, 036, slip op. at 8 (ARB June 2, 2006); Agosto v. Consol. Edison Co. Inc., ARB Nos. 98-007, 152, ALJ Nos. 1996-ERA-002, 1997-ERA-054, slip op. at 2 (ARB July 27, 1999).

    The ARB's jurisdiction to review the ALJ's decision is set out in Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002), which delegated to the ARB the Secretary's authority to review ALJ decisions issued under the SOX. 18 U.S.C.A. § 1514A.

    The ARB reviews the ALJ's factual determinations under the substantial evidence standard. 29 C.F.R. § 1980.110(b). In reviewing the ALJ's conclusions of law the ARB, as the Secretary's designee, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b) (West 1996). Therefore, the Board reviews the ALJ's conclusions of law de novo. Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-051, slip op. at 7 (ARB June 29, 2006).

    The Board reviews an ALJ's recommended grant of summary decision de novo, i.e., the same standard that the ALJ applies in initially evaluating a motion for summary judgment governs our review. Nixon v. Stewart & Stevenson Servs., Inc., ARB No. 05-066, ALJ No. 2005-SOX-001, slip op. at 6 (ARB Sept. 28, 2007); Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ No. 2000-ERA-036, slip op. at 4 (ARB Mar. 25, 2003). The standard for granting summary decision is essentially the same as the one used in Fed. R. Civ. P. 56, the rule governing summary judgment in the federal courts. Hasan v. Burns & Roe Enter., Inc., ARB No. 00-080, ALJ No. 2000-ERA-006, slip op. at 6 (ARB Jan. 30, 2001). Thus, pursuant to 29 C.F.R. § 18.40(d) (2007), the ALJ may issue summary decision "if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision."

A. Governing Law

   The employee protection provision of the SOX, Section 806, prohibits covered employers from retaliating against covered employees for providing information or assisting in investigations related to listed categories of fraud or securities violations

(a) Whistleblower Protection For Employees Of Publicly Traded Companies. No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by

(A) a Federal regulatory or law enforcement agency;
(B) any Member of Congress or any committee of Congress; or
(C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or

(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.

18 U.S.C.A. § 1514A(a).

    Section 806 thus protects employees who provide information to a covered employer or a federal agency or Congress regarding conduct that the employee reasonably believes constitutes a violation of 18 U.S.C.A. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank fraud), or 1348 (securities fraud), or any rule or regulation of the Securities and Exchange Commission

(see, e.g., 17 C.F.R. Part 210 (2007), Form and Content of the Requirements for Financial Statements), or any provision of federal law relating to fraud against shareholders. In addition, employees are protected against discrimination when they have filed, testified in, participated in, or otherwise assisted in a proceeding filed or about to be filed against one of the above companies relating to any such alleged violation. 68 Fed. Reg. 31,864 (May 28, 2003); 18 U.S.C.A. § 1514A(a).

   Actions brought pursuant to the SOX are governed by the legal burdens of proof set forth in the employee protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C.A. § 42121 (West Supp. 2005) (AIR 21). 18 U.S.C.A. § 1514A(b)(2)(C). Accordingly, to prevail, a SOX complainant must prove by a preponderance of the evidence that (1) he engaged in a protected activity or conduct (i.e., provided information or participated in a proceeding); (2) the respondent knew that he engaged in the protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action. Harvey, slip op. at 10; Getman v. Southwest Sec., Inc., ARB No. 04-059, ALJ No. 2003-SOX-008, slip op. at 8 (ARB July 29, 2005). The respondent can avoid liability by demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity. 49 U.S.C.A. § 42121(a)-(b)(2)(B)(iv); Harvey, slip op. at 10; Getman, slip op. at 8; Peck v. Safe Air Int'l, Inc., ARB No. 02-028, ALJ No. 2001-AIR-003, slip op. at 7 (ARB Jan. 30, 2004).

   An employee alleging retaliation in violation of the SOX should file his or her complaint with the OSHA Area Director responsible for enforcement activities in the geographical area where the employee resides or was employed, but may file with any OSHA officer or employee. 29 C.F.R. § 1980.103(c). "No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations." 29 C.F.R. § 1980.103(b). The complaint alleging retaliation must be filed within 90 days of the alleged violation; i.e., when the discriminatory act has been both made and communicated to the complainant. 18 U.S.C.A. § 1514A(b)(2)(D) ("An action . . . shall be commenced not later than 90 days after the date on which the violation occurs."); 29 C.F.R. § 1980.103(d) ("Time for filing. Within 90 days after an alleged violation of the Act occurs (i.e., when the discriminatory decision has been both made and communicated to the complainant), an employee who believes that he or she has been discriminated against in violation of the Act may file, or have filed by any person on the employee's behalf, a complaint alleging such discrimination.").

B. Levi I

   Before we turn to the question at hand, whether Levi filed a timely SOX complaint, we discuss two preliminary issues. The ALJ treated ABI's motion for dismissal as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). R. D. & O. (Levi I) at 4-5; Fed. R. of Civ. P. 12(b)(1). But since the ALJ in effect accepted jurisdiction to determine whether Levi had filed a cognizable SOX complaint, we will consider dismissal under a Rule 12(b)(6) (failure to state a claim upon which relief can be granted) analysis, applying the standard set forth in 29 C.F.R. § 1980.103(b). To the extent that we consider correspondence and pleadings in addition to Levi's November 19, 2004 letter, we apply the summary decision

standard. 29 C.F.R. § 18.40(d). Under the summary decision standard, Levi's submissions, considered singly or collectively, fail to create a genuine issue of material fact concerning whether he filed a timely claim for relief under the whistleblower protection provisions of the SOX.

   The ALJ's use of the word "complaint" requires some clarification that is not fully evident in the R. D. & O. To succeed in establishing a prima facie case and ultimately on the merits, Levi must have made a SOX-protected "complaint" prior to his discharge from employment. He must have been a whistleblower. Specifically, his letters to the ABI Board or outside government officials must have "provide[d] information" regarding ABI's conduct that Levi "reasonably believe[d]" constituted a violation of 18 U.S.C.A. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank fraud), or 1348 (securities fraud), or "any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders." 18 U.S.C.A. § 1514A(a)(2); 29 C.F.R. Part 1980.

   But after the unfavorable personnel action that he claims was in retaliation for his protected activities, in this case his discharge, Levi must have filed a "complaint" in a different sense of the word. He must allege retaliation and the right to recover for his whistleblowing. Specifically, he must have filed a timely "complaint" with the DOL (or another agency under the tolling theory) that establishes his right to recover against ABI for the company's violation of the SOX, i.e., his protected activities (e.g., "complaints" of fraud or securities violations) were a contributing factor in the unfavorable personnel action (discharge) ABI took against him. Only then does he state a claim that entitles him to relief. Our inquiry is largely concerned with "complaint" in this latter sense of the word.

   November 19, 2004 Letter to the Secretary

became final. Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980). Even if the ALJ had used the August 6, 2003 date, when he said the discharge became final, or the September 22, 2003 date of the arbitrator's decision as the date on which Levi's cause of action accrued, Levi's November 19, 2004 complaint would still have been untimely, as not filed within 90 days. Therefore, the ALJ correctly dismissed Levi's complaint as untimely filed. R. D. & O. (Levi I) at 6.

   If the November 19 letter were the only correspondence in question, Levi would be outside the 90-day period, rendering his claim time-barred as a matter of law. However, Levi argued before the ALJ that his other correspondence also constitutes SOX complaints. Levi's March 28, 2006 response to motion to dismiss at 13-15. Thus, in the course of affirming the ALJ's determination that Levi failed to file a timely SOX complaint, we also examine, as did the ALJ, Levi's other correspondence.

   March 3, 2003 letter

   On March 3, 2003, Levi wrote a letter to the Secretary of Labor discussing wage-hour concerns, racial discrimination and workplace safety issues. The ALJ concluded that the March 3, 2003 letter itself does not include a viable SOX whistleblower complaint. R. D. & O. (Levi I) at 9. The March 3 letter identified employer practices but did not assert a simple statement of facts that ABI retaliated against him for engaging in SOX-protected activity. Nor does it request any specific relief on his behalf. Therefore, we agree with the ALJ that the March 3 letter fails to state a cause of action for which relief can be granted. R. D. & O. (Levi I) at 9; 29 C.F.R. § 1980.103(b).

corporate expenditures with which the employee disagrees, or even possible violations of other federal laws . . . standing alone, is not protected conduct under the SOX." Harvey, slip op. at 14. To bring himself under the protection of the act, the information the employee provides must directly relate to the listed categories of fraud or securities violations. 18 U.S.C.A. § 1514A(a); 29 C.F.R. §§ 1980.104(b), 1980.109(a). Thus, Levi does not allege facts which, taken in the light most favorable to him, point to SOX-protected activity.

   But even if this correspondence were read to provide notice to ABI of fraud or securities violations, and thus protect Levi from retaliation, it was all written before notice of Levi's discharge, and therefore could not as a matter of law state a viable claim for relief for retaliation that had not yet occurred. We agree with the ALJ that, reading the March 3, 2003 letter together with its attached pre-termination letters, Levi fails to state a cause of action under which relief can be granted under the SOX. 29 C.F.R. § 1980.103(b).

   April-June OSHA Correspondence

   In late March 2003, Levi filed a complaint with OSHA identifying what he claimed were unsafe conditions at an ABI plant. In the correspondence, Levi complained of retaliation and safety problems with ABI boilers, which could, according to Levi, result in dangerous conditions. April 15, 2003 response from ABI to OSHA at 1. OSHA followed up on Levi's complaint, and based on ABI's responses, determined that ABI had corrected any potential safety hazards. None of his correspondence with OSHA contained any possible SOX-related allegations. Thus, for the reasons discussed above, the ALJ was correct to conclude that the April-June OSHA correspondence was not a valid SOX complaint for which relief can be granted. R. D. & O. (Levi I) at 18.

   Equitable Tolling

   Although Levi did not timely file a SOX complaint with OSHA or the Secretary of Labor, the SOX's limitations period is not jurisdictional and therefore is subject to equitable tolling. Harvey, slip op. at 16; Moldauer v. Canandaigua Wine Co., ARB No. 04-022, ALJ No. 2003-SOX-026, slip op. at 5 (ARB Dec. 30, 2005). Thus, we next consider whether existing circumstances would warrant equitable tolling of the deadline for filing a SOX complaint.

    When deciding whether to relax the limitations period in a particular case, the Board is guided by the principles of equitable tolling that courts have applied to cases with statutorily-mandated filing deadlines. Harvey, slip op. at 16; Moldauer, slip op. at 5. The Third Circuit recognized three situations in which tolling is proper:

(1) [when] the defendant has actively misled the plaintiff respecting the cause of action,

(2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or

(3) the plaintiff has raised the precise statutory claim in

issue but has mistakenly done so in the wrong forum.

Sch. Dist. of the City of Allentown v. Marshall, 657 F.2d 16, 18-20 (3d Cir. 1981) (citation omitted).

    Levi bears the burden of justifying the application of equitable tolling principles. Harvey, slip op. at 17. Though Levi's inability to satisfy one of these elements is not necessarily fatal to his claim, courts "have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Herchak v. Am. W. Airlines, Inc., ARB No. 03-057, ALJ No. 2002-AIR-012, slip op. at 5 (ARB May 14, 2003); Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (pro se party who was informed of due date, but nevertheless filed six days late was not entitled to equitable tolling because she failed to exercise due diligence). Furthermore, an absence of prejudice to the other party "is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures." Baldwin County Welcome Ctr., 446 U.S. at 152.

   The ALJ concluded that Levi did not satisfy the grounds for equitable tolling. R. D. & O. (Levi I) at 22-23. Levi argues, among other things, that the timing limitations of SOX should be tolled because he had contacted Congressman Richard Gephardt, who, Levi contends, had a duty to direct him to SOX, and that ABI prevented Levi from presenting a timely complaint. Petition (Levi I) at 6, 8. We do not agree. Levi has failed to support any claim of interference and the failure of a Congressman to direct Levi to SOX does not constitute a ground for tolling. In considering Levi's claim for equitable tolling, we note with emphasis that following Levi's termination, and within the SOX time limits, Levi fully participated in a detailed correspondence with OSHA, complaining about ABI boilers. April-June 2003 OSHA correspondence. Levi has failed to reconcile how he can simultaneously argue that he was estopped from making a similar complaint to OSHA concerning SOX-related protected activity. Therefore, we agree with the ALJ that Levi was not prevented from filing a SOX complaint with OSHA. Harvey, slip op. at 16; Marshall, 657 F.2d at 18, 21.

   A final tolling question the ALJ addressed was whether Levi "has raised the precise statutory claim in issue, but has mistakenly done so in the wrong forum." Marshall, 657 F.2d at 20. As we have said, in September of 2002, Levi asked the SEC to investigate ABI because ABI's bad "behavior" and "arrogance" hurts shareholders in unidentified ways. Sept. 24, 2002 letter to the SEC at 1. Levi noted in the letter that "[t]his is not accounting fraud, it is much worse." Id. Levi did not specify the behavior and arrogance which was "much worse," but if the previous letters, allegedly attached to the September 24, 2002 letter, were representative, then the worse behavior and arrogance by ABI relates to workplace safety, alleged racial discrimination and poor ABI decision-making, the subject matter of Levi's earlier letters. As noted above, none of. Levi's specific allegations, taken as true and in the light most favorable to him, relates to mail fraud, wire fraud, bank fraud or securities fraud. Likewise, his allegations do not point to violations of SEC rules and regulations, which regulate the issuance of, and transactions involving, the securities of publicly traded corporations. Levi's Sept. 24, 2002 letter to the SEC, like much of his other correspondence, was written before the notice of his termination. Even if that correspondence were read to provide notice to the SEC of fraud or securities violations, it

COBE Labs., Inc., 208 F.3d 227, 2000 WL 235241, at *13 (10th Cir. Mar. 2, 2000)(unpublished). The ALJ pointed out that false statements would go to the party's credibility and not to whether the party established an element of its case. Accordingly, the statements of ABI's counsel do not constitute a separately actionable adverse action.

   The ALJ correctly granted summary decision to ABI on Levi's blacklisting claim because, after an opportunity to do so, Levi failed to present any evidence that ABI had blacklisted him from rehire or future employment. R. D. & O. (Levi II) at 3-4. Having reviewed the record, we agree with the ALJ's determination that Levi failed to produce sufficient evidence to present a genuine issue of a material fact concerning his blacklisting claim. Consequently, we conclude that the ALJ was correct and we affirm the ALJ's grant of summary decision in favor of ABI on that issue.

    Untimely blacklisting claims

   Besides false statements, Levi's petition for review in Levi III charges that ABI blacklisted his employment with Aerotek. Levi concedes, however, that he has no basis to support such a claim. Levi writes in his petition for review in Levi III: "I [have] no idea if Aerotek contacted AB[I] about my work record in 2005, 2006, or 2007. . . . There was no basis for me to claim that AB[I] had anything to do with Aerotek ending my employment in 2005." Petition (Levi III) at 4.

   Even if not purely speculative, Levi's blacklisting claim is untimely. By his own admission, he did not "sit still" on the issue of seeking unemployment compensation based on his employment with Aerotek. He notes in his petition in Levi III that he pursued the matter of his separation from Aerotek through three levels of state appeals. Petition (Levi III) at 4. Levi was thus aware of the injury and the facts that would support a blacklisting claim during his pursuit of the Aerotek matter. Only after failing in state appeals against Aerotek did he attempt, well beyond the 90-day limitations period for filing a complaint, to bring a blacklisting claim against ABI.

   Similarly, the ALJ found that Levi's claim of blacklisting with respect to his 2003 personnel file stating he was fired for "misconduct," taken as true, would have occurred sometime between 2003 and 2005 to affect his employment with Aerotek. Thus, a possible blacklisting by ABI with Aerotek would have taken place prior to October 2005. Levi filed Levi III on December 1, 2006, well beyond the 90-day requirement. Therefore, the ALJ correctly concluded that Levi's claim of blacklisting in Levi III was untimely.

   Finally, in adjudicating the untimely blacklisting claim, the ALJ also considered equitable estoppel but found that Levi did not satisfy the requirements for equitable estoppel. R. D. & O. (Levi III) at 8. Because Levi failed to file a timely complaint concerning his blacklisting claim, we affirm the ALJ's finding that Levi's claim of blacklisting is time-barred.

   Recusal

    Levi also argues that the ALJ erred in failing to recuse himself. The ALJ for Levi III was the same ALJ assigned in Levi I. Absent specific allegations of personal bias, prejudice, or interest, neither a judge's prior adverse rulings, nor his participation in a related or prior proceeding is sufficient to require recusal. Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981); 13A Charles Allen Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3542 (West Supp. 2008). Federal courts have required personal bias rather than judicial bias to support recusal. Id. The ARB has held that previous unfavorable dispositions do not amount to personal bias. Eash v. Roadway Express, Inc., ARB No. 00-061, ALJ No. 1998-STA-028, slip op. at 8 (ARB Dec. 31, 2002) (ALJ twice recommended dispositions contrary to Eash's interests, which fact was found insufficient to show personal bias); Roach v. National Transp. Safety Bd., 804 F.2d 1147, 1160 (10th Cir. 1986). Consequently, the ALJ did not err in failing to recuse himself.

E. Other motions

   During the course of proceedings before the Board, Levi filed an emergency motion (1) to refer investigation to the Justice Department, the Federal Bureau of Investigation and the SEC, (2) for a protective order forbidding the destruction of documents, (3) for reopening the record and (4) for economic reinstatement. We deny these motions. Further, Levi raises miscellaneous points of error including venue requests, the ALJ's citation to cases, and requests to compel discovery. Consideration of Levi's motions and other issues he raises is not necessary to our disposition of his case, dismissal for failing to file a timely SOX complaint.

    The record supports the ALJ's recommendation to dismiss Levi's original complaint (Levi I) as untimely. Within 90 days of his termination, Levi failed to allege facts, either to the DOL or to another forum, that he had engaged in SOX-protected activity before his termination and that he had been terminated as a consequence. We therefore AFFIRM the ALJ's R. D. & O. in Levi I and DISMISS Levi's original complaint.

    Because Levi failed to create a genuine issue of a material fact to support his blacklisting and retaliation claims, the ALJ did not err in dismissing Levi's second claim. Therefore, we AFFIRM the ALJ's R. D. & O. in Levi II and hereby DISMISS Levi's second complaint.

   Because Levi's third complaint is beyond the statute of limitations and repeats claims made in Levi II, we AFFIRM the ALJ's R. D. & O. in Levi III and hereby DISMISS Levi's third complaint as duplicative and time-barred.

   SO ORDERED.

            WAYNE C. BEYER
            Administrative Appeals Judge

            M. CYNTHIA DOUGLASS
            Chief Administrative Appeals Judge