1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 The complainant was represented by counsel during the initial phases of his appeal before this Board, but ultimately filed briefs on his own behalf.
3 Duncan's petition for review of the ALJ's RDO initially was filed with the Labor Department's Chief Administrative Law Judge, rather than with the Board. The filing with the ALJ occurred within the 10-business day time limitation required by the Labor Department's regulations at 29 C.F.R. §24.8(a); however, by the time the petition was re-submitted to the Board, the 10-day time period had lapsed, and the petition could have been viewed as untimely. We ordered briefing on whether the appeal should be accepted as timely. The Assistant Secretary appeared as an amicus in this case solely on the issue of timeliness, submitting a letter brief arguing that the appeal should be accepted. The Board issued an order accepting the petition for review on September 1, 1999, and ordered briefing on the merits of the case.
4 Before the Board, SMAQMD contends that it also is entitled to prevail under a collateral estoppel theory pursuant to Sawyers v. Baldwin Union Free School District, No. 85-TSC-1 (Sec'y Oct. 24, 1994), arguing the Board should give preclusive effect to an arbitration decision that was adverse to Duncan. Because we adopt the ALJ's merits finding that SMAQMD's discharge of Duncan was not unlawful under the CAA, it is unnecessary for us to address this argument.