Madison v. U.S. Dep't of Labor, 924 F.3d 941

Madison worked as a quality engineer for Kenco from May to August 2013 and was discharged; she alleges retaliation for raising food-safety concerns under the FSMA whistleblower provisions.
She filed an OSHA complaint that was dismissed; she requested a de novo hearing before an ALJ, who granted Kenco summary decision on November 22, 2017.
The ALJ’s decision informed parties they had 14 days to petition the Administrative Review Board (ARB); the ALJ’s mailed copy to Madison’s counsel was sent to a former address and returned, and a correctly addressed hard copy was mailed December 1 and received December 6.
On December 1 an ALJ paralegal emailed counsel (copying Madison’s counsel to an incorrect email); Kenco’s counsel replied correcting the email address and indicating a decision had been issued—Madison’s counsel received that corrected email but says he did not see it until later.
Madison’s counsel filed a petition for review with the ARB on December 17 (untimely). The ARB dismissed the appeal as untimely, refusing to equitably toll the 14-day filing period because counsel lacked due diligence after receiving notice on December 1.
The Seventh Circuit affirmed: the ARB’s denial of equitable tolling was not an abuse of discretion because counsel had notice on December 1 and failed to act promptly (request copy, file petition, or seek extension).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the ARB should equitably toll the 14-day appeal deadline	Madison: initial mailing to counsel was defective; equitable tolling should run from counsel’s receipt of the correctly mailed copy (Dec. 6)	DOL/Kenco: counsel had notice by Dec. 1 email and failed to act with due diligence; no extraordinary circumstance	Held: No equitable tolling—ARB did not abuse discretion; dismissal affirmed
Whether attorney error or misservice by ALJ’s office excuses untimely filing	Madison: misdirected first mailing prevented timely filing; this is an exceptional circumstance	DOL: even assuming misservice, December 1 email removed obstacle and counsel still failed to act	Held: Even assuming initial misservice, counsel’s inaction after Dec. 1 defeats tolling claim
Standard of review for ARB’s denial of tolling	Madison: ARB’s discretion should be exercised in her favor	DOL: ARB’s decision reviewed for abuse of discretion under APA	Held: Abuse-of-discretion review; ARB’s reasoning rational and not arbitrary or capricious
Whether attorney’s failure to monitor email constitutes extraordinary cause	Madison: counsel did not actually see the Dec. 1 emails, so notice was ineffective	DOL: attorneys are responsible for monitoring communications; failure to do so is not extraordinary	Held: Court agrees with ARB that counsel’s failure to check email is within counsel’s control and not an extraordinary circumstance

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (agency must articulate reasoned connection between facts and action)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary-and-capricious standard for agency action)
Lozano v. Montoya Alvarez, 527 U.S. 1 (equitable tolling pauses limitations when diligent plaintiff is blocked by extraordinary circumstance)
Holland v. Florida, 560 U.S. 631 (burden to show both diligence and extraordinary circumstance for equitable tolling)
Johnson v. Gonzales, 478 F.3d 795 (equitable-tolling principles and diligence requirement)
Gladney v. Pollard, 799 F.3d 889 (limitations on scope of equitable tolling)