JOHN F. GUERRA, JR., Appellant v. CONSOLIDATED RAIL CORPORATION (CONRAIL)
No. 18-2471
United States Court of Appeals for the Third Circuit
Filed: August 21, 2019
PRECEDENTIAL. On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-17-cv-06497). District Judge: Hon. Claire C. Cecchi. Argued June 13, 2019. Before: HARDIMAN, PORTER, COWEN, Circuit Judges.
Robert E. Myers
Lawrence A. Katz [ARGUED]
COFFEY KAYE MYERS & OLLEY
Two Bala Plaza, Suite 718
Bala Cynwood, PA 19004
Counsel for Appellant
Robert S. Hawkins
Joseph P. Sirbak, II [ARGUED]
COZEN O‘CONNOR
1650 Market Street, Suite 2800
Philadelphia, PA 19103
Counsel for Appellee
PORTER, Circuit Judge.
The Federal Railway Safety Act (“FRSA“) provides that railroad carriers may not retaliate against employees who blow the whistle on certain safety violations. If a carrier breaks this rule, the aggrieved employee may seek relief by filing a complaint with the Occupational Safety and Health Administration (“OSHA“) “not later than 180 days” after the alleged retaliation occurred. See
This case asks whether FRSA‘s 180-day limitations period is “jurisdictional.” That is, if an employee fails to file a timely complaint with OSHA, does that divest a district court of subject matter jurisdiction? Or is the limitations period simply a claim-processing rule, the breach of which may defeat an employee‘s claim, but not a district court‘s jurisdiction to hear the case?
After considering the text, context, and history of the provision, and mindful of the Supreme Court‘s decisions in this area, we hold that FRSA‘s 180-day limitations period in
I
A
Congress enacted FRSA in 1970 “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.”
In 2007, Congress amended FRSA again, untangling its retaliation-dispute-resolution scheme from the Railway Labor Act and giving it to the Secretary of Labor, subject to expanded judicial oversight. See
Today, FRSA and its accompanying regulations provide for a straightforward, multi-step adjudication process for retaliation complaints.
First, if an employee thinks she has been wronged in violation of the Act, she must file a complaint with OSHA “not later than 180 days after the date on which the alleged violation ... occurs.”
Third, within 14 days of the ALJ‘s decision, any party may petition for review from the Administrative Review Board (“ARB“).
Finally, any person “adversely affected or aggrieved” by the Secretary‘s final decision as issued by the ARB3 may, within 60 days, “obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation.”
This process is what happens if the agency is expeditious. But if the agency takes too long to issue a final decision, FRSA provides a so-called “kick-out” option for claimants to seek “de novo review” in federal district court.
De novo review.—With respect to a complaint under paragraph (1), if the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury.
B
John Guerra, Jr. worked as a conductor and brakeman for Consolidated Rail Corporation (“Conrail“). He alleges that, in late 2015, Conrail urged him to cut corners and ignore safety regulations to increase productivity. When he refused, Conrail threatened him and eliminated certain incidental perks of his job. Guerra reported this alleged retaliation to Conrail‘s compliance office, which told him that his complaints would be “handled in a confidential manner.” App. 29. But Conrail did nothing to alleviate his concerns. Instead, he says, he was told that he needed to “play ball” with the company and that, if he kept reporting safety issues, there would be “undesirable consequences.” App. 29–30. Likewise, in early 2016, Guerra filed six complaints about allegedly defective braking systems in two Conrail locomotives. Yet again, he says, the only response was that he needed to toe the company line for his own good.
Shortly after that, a train Guerra was operating failed to brake properly and ran
On May 10, 2016, Guerra‘s attorney, Lawrence Katz, allegedly “filed a FRSA complaint with the Secretary of Labor‘s Region II [OSHA] Whistleblower Office.” Guerra v. Consol. Rail Corp., No. 17-cv-6497, 2018 WL 2947857, at *2 (D.N.J. June 13, 2018). Six months passed by. Seeing no response from OSHA, on November 28, 2016, Katz followed up with OSHA by email and attached a copy of the complaint.
OSHA notified Guerra in early 2017 that his claim was dismissed as untimely because his complaint had been filed more than 180 days after the alleged violation. According to the agency‘s letter, Conrail‘s alleged retaliation against Guerra happened on April 6, 2016, but OSHA first received Guerra‘s complaint on November 28, 2016—237 days later. As for Guerra‘s supposed May 10 complaint:
There is no evidence that such a complaint was filed with the Regional Office. Furthermore, previous complaints filed by Complainant‘s attorney in other matters were faxed or sent by tracked delivery. There is nothing to indicate this complaint was ever filed with OSHA or circumstances to allow tolling.
App. 57.
Guerra objected to OSHA‘s dismissal and requested a hearing before an ALJ. He submitted affidavits from his attorneys that detailed their normal procedures for preparing and mailing complaints to OSHA. These affidavits, Guerra argued, provided enough evidence to invoke the common-law mailbox rule‘s presumption of delivery. But the ALJ thought otherwise, finding that Guerra‘s “self-serving affidavits” nowhere revealed “who drafted the complaint, who dictated the complaint, and most importantly, who mailed the complaint.” App. 117. So the ALJ held that the mailbox rule did not apply and dismissed Guerra‘s claim for untimeliness.
Guerra initially appealed the ALJ‘s decision to the ARB, but then opted to kick out his claim to federal court because more than 210 days had elapsed since OSHA had received his complaint. See In re: Guerra v. Consolidated Rail Corp., (Conrail), ARB No. 2017-069, 2018 WL 6978223 (DOL Admin. Rev. Bd. June 29, 2018).4 Conrail moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), asserting that Guerra‘s failure to file a timely complaint with OSHA deprived the District Court of jurisdiction over the case. Conrail also moved in the alternative under Rule 56 for summary judgment on the grounds that the record refuted Guerra‘s only theory of timeliness. In response, Guerra agreed that the District Court would lack jurisdiction if his complaint had been untimely filed, but asserted that, under the mailbox rule, his attorneys had timely mailed his complaint to OSHA on May 10.
The District Court accepted without scrutiny the parties’ agreement that the Court would lack jurisdiction if Guerra had untimely filed his complaint with OSHA.
II
The District Court had putative jurisdiction under
At the outset, the District Court erred by accepting without scrutiny the parties’ accord on its supposed lack of jurisdiction. The Court had “an independent obligation to determine whether subject-matter jurisdiction exist[ed], even in the absence of a challenge from any party.” Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 267 (3d Cir. 2016) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). So even though both sides agreed that jurisdiction would not exist over an untimely complaint, the District Court was still obliged to make sure the parties were right. Id. And because, as we explain below, the parties were wrong, the Court, by accepting their agreement, also failed its “strict duty to exercise the jurisdiction that [was] conferred upon [it] by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (“[F]ederal courts ‘have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not.‘” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))).
Thus, on appeal, “regardless of the acquiescence or wishes of the parties, we must question whether the District Court properly treated [FRSA‘s statute of limitations] as a jurisdictional issue under Rule 12(b)(1).” Hartig, 836 F.3d at 267. We exercise de novo review over that legal conclusion. Id. at 267 n.8.
III
This case presents two questions. First, does an untimely administrative complaint under FRSA‘s 180-day statute of limitations deprive a district court of subject matter jurisdiction? Second, did Guerra timely file his complaint with OSHA?
A
The first question presented “concerns the distinction between two sometimes confused or conflated concepts: federal-court ‘subject-matter’ jurisdiction over a controversy; and the essential ingredients of a federal claim for relief.” Arbaugh, 546 U.S. at 503. To keep these concepts distinct, the Supreme Court has classified statutory requirements (for example, FRSA‘s 180-day limitations rule) as either “jurisdictional conditions” or “claim-processing rules.” See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010). The distinction between these types “can be confusing in practice,” so we must conduct a “close analysis” of the provision at issue. Id.
“Jurisdiction,” properly defined, refers to a court‘s “adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443, 455 (2004). This authority—the “judicial Power“—flows from Article III of the Constitution,
Claim-processing rules, by contrast, “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Rules of this sort, even if important and mandatory, “do[] not reduce the adjudicatory domain of a tribunal.” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng‘rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009); see United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015).
The difference between these categories is not mere semantics. Among other things, although our adversarial legal system generally adheres to the principle of party presentation,5 as noted above, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction[.]” Henderson, 562 U.S. at 434. So if a statutory condition is jurisdictional, a court must “raise and decide” whether that condition has been satisfied, even if the parties overlooked or elected not to press the issue. Id.; Arbaugh, 546 U.S. at 514; Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1849 (2019). Likewise, jurisdictional defects cannot be forfeited or waived by the parties and are not subject to equitable tolling, while the opposite is true of claim-processing defects. See Arbaugh, 546 U.S. at 514; Union Pac., 558 U.S. at 81–82; see also United States v. Kalb, 891 F.3d 455, 459–60 (3d Cir. 2018). As a result, “[j]urisdictional rules may also result in the waste of judicial resources and may unfairly prejudice litigants.” Henderson, 562 U.S. at 434; see Arbaugh, 546 U.S. at 508–09 (explaining that the defendant first raised a supposed jurisdictional defect two weeks after trial).
Because of these “harsh consequences” that flow from labeling a statute “jurisdictional,” we apply a bright-line test, looking for whether Congress has “clearly state[d]” that this treatment is appropriate. See Davis, 139 S. Ct. at 1849–50 (citations omitted); Arbaugh, 546 U.S. at 515–16. This is not a matter of magic words. Yet absent a clear indication that Congress intended to imbue a condition with jurisdictional significance, we will “treat the restriction as nonjurisdictional in character.” Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 153–54 (2013) (internal quotation marks and citations omitted); Davis, 139 S. Ct. at 1850. We look for a clear statement in the statute‘s “text, context, and relevant historical treatment.” Kalb, 891 F.3d at 460 (quoting Muchnick, 559 U.S. at 166).
Finally, we consider these principles against the backdrop that Congress has
1
The plain text of FRSA‘s 180-day statute of limitations nowhere shows that it bears jurisdictional weight. See
To be sure, Congress used mandatory language—“[a]n action ... shall be commenced not later than 180 days....”
2
Nor does the provision‘s context speak in jurisdictional terms. Indeed, subsection (d)(2) is titled simply “Procedure,” which “suggests Congress regarded the [180]-day limit as a claim-processing rule.” Henderson, 562 U.S. at 439;
Conrail argues otherwise, relying on a series of linking inferences between three other subsections. First, subsection (d)(1) requires that “any petition or other request for relief ... be initiated by filing a complaint with the Secretary of Labor.”
3
Nor do the provision‘s history or purpose display any clear congressional intent to create a jurisdictional bar. And without such a clear statement, we refuse to divine the legislative history. See Kwai Fun Wong, 135 S. Ct. at 1633 (“[E]ven assuming legislative history alone could provide a clear statement (which we doubt), none does so here.“).
This lack of jurisdictional pedigree distinguishes this case from Bowles v. Russell, 551 U.S. 205 (2007). There, because of its “longstanding treatment” of Article III appellate deadlines as jurisdictional, the Supreme Court held that a party‘s failure to timely appeal a district court judgment divested jurisdiction from the court of appeals. Bowles, 551 U.S. at 210–11; Union Pac., 558 U.S. at 82 (explaining that Bowles “rel[ied] on a long line of this Court‘s decisions left undisturbed by Congress“). No such “longstanding treatment” exists here.
Instead, FRSA‘s statute of limitations is simply another example of the Supreme Court‘s admonition that “most time bars are nonjurisdictional.” Kwai Fun Wong, 135 S. Ct. at 1632; see Auburn, 568 U.S. at 154 (“[W]e have repeatedly held that filing deadlines ordinarily are not jurisdictional.” (citations omitted)); Henderson, 562 U.S. at 435 (“Filing deadlines, such as the 120–day filing deadline at issue here, are quintessential claim-processing rules.“); Scarborough v. Principi, 541 U.S. 401, 413–14 (2004); Kontrick, 540 U.S. at 455–56; see also T-Mobile Ne. LLC v. City of Wilmington, 913 F.3d 311, 324 (3d Cir. 2019) (“Caution is indeed warranted because statutes of limitations and other filing deadlines ordinarily are not jurisdictional.” (internal quotation marks and citation omitted)). Overall, these cases emphasize that “Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional[.]” Kwai Fun Wong, 135 S. Ct. at 1632.
So too here. Congress has not clearly stated that FRSA‘s statute of limitations is jurisdictional. Not only are we the first federal appellate court to address this specific question, but agency filing deadlines are typically nonjurisdictional. So the provision has no longstanding jurisdictional pedigree. See Bowles, 551 U.S. at 210–11. We thus decline to read a jurisdictional bar into the statute.
4
Conrail makes two arguments in rebuttal. Neither is persuasive.
But this argument falters from the start because it is nowhere “fairly discernible in the statutory scheme” that Congress intended “to preclude district court jurisdiction.” Adorers of the Blood of Christ v. FERC, 897 F.3d 187, 195 (3d Cir. 2018) (citing Thunder Basin, 510 U.S. at 207). On the contrary, at issue is FRSA‘s kick-out provision, which effectively allows an employee to start her case over from scratch in a federal district court, bringing “an original action at law or equity for de novo review.”
Second, Conrail analogizes FRSA to the Sarbanes-Oxley Act of 2002 (“SOX“),
But these cases are all merely “drive-by jurisdictional rulings” that easily “miss the critical differences between true jurisdictional conditions and nonjurisdictional limitations on causes of action.” Muchnick, 559 U.S. at 161 (internal quotation marks and citations omitted); see, e.g., King v. Ind. Harbor Belt R.R., No. 2:15-CV-245-JD-PRC, 2017 WL 9565363, at *7–9 (N.D. Ind. Feb. 1, 2017) (analyzing and critiquing the haphazard “jurisdictional” language used by many district courts in the SOX context). In other words, these decisions are “less than meticulous” with how they “use[] the label ‘jurisdictional.‘” Kontrick, 540 U.S. at 454–55. They simply assume that SOX‘s time limit implicates courts’ subject matter jurisdiction, without ever applying Arbaugh‘s clear-statement test. So Conrail‘s argument-by-analogy fails.
B
Although the District Court incorrectly dismissed Guerra‘s complaint for lack of jurisdiction, Conrail moved in the alternative before the District Court for summary judgment under Rule 56. We “may affirm the District Court‘s order on any basis supported by the record,” United States v. Rivera-Cruz, 904 F.3d 324, 326 (3d Cir. 2018) (internal quotation marks and citation omitted), and we will do so if “there is no genuine issue as to any material fact and ... [Conrail] is entitled to judgment as a matter of law.” Phila. Marine Trade Ass‘n-Int‘l Longshoremen‘s Ass‘n Pension Fund v. Comm‘r, 523 F.3d 140, 143 (3d Cir. 2008) (quoting
As explained above, FRSA‘s statute of limitations is simply a nonjurisdictional
So we must determine when Guerra first filed his complaint with OSHA. He says that his lawyers filed it by first-class mail on May 10, 2016. But OSHA found that it first received the complaint on November 28, 2016, when Guerra‘s lawyers contacted OSHA by email. The former date would have been timely, the latter would not. Guerra tries to escape this pickle by invoking the common-law mailbox rule.
In general, statutory filing conditions require “actual, physical delivery.” Phila. Marine, 523 F.3d at 147. Since this is doable by mail, we apply the common-law mailbox rule “[t]o help determine when the pertinent document was physically delivered.” Id. The gist of this rule is that, “if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed ... that it reached its destination at the regular time, and was received by the person to whom it was addressed.” Lupyan v. Corinthian Colls. Inc., 761 F.3d 314, 319 (3d Cir. 2014) (internal quotation marks and citation omitted).
The record contains affidavits from Guerra‘s lawyers—Lawrence Katz and Robert Myers. Katz verified that his normal practice was, after preparing a cover letter and complaint, to instruct his assistant to send them “by both certified mail and Fax.” App. 141, 159. He also noted that, on top of certified mail and fax, these documents “would also sometimes be transmitted by ordinary first-class mail.” Id. But Katz and Myers conceded that Guerra‘s complaint was supposedly sent only by first-class mail. This discrepancy, they say, was “due to a clerical oversight.” Appellant‘s Br. 9; see id. at 21.
This evidence is not enough to invoke the mailbox rule‘s presumption of delivery. To be sure, “receipt can be proven circumstantially by introducing evidence of business practices or office customs related to mail,” at least where the affiant has “personal knowledge of the procedures in place at the time of the mailing.” Lupyan, 761 F.3d at 319–20 (internal quotation marks and citations omitted). But Guerra‘s circumstantial evidence of his lawyers’ typical mailing procedures is irrelevant because, “due to a clerical oversight,” those procedures were admittedly not followed. So this case is not like Lupyan, where the sender produced two affidavits, both of which showed “personal knowledge of [the sender‘s] customary
Here, by contrast, we have only Katz‘s and Myers‘s bare assertions—artfully phrased in the passive voice—that Guerra‘s complaint “was transmitted” to OSHA by first-class mail. App. 148, 157; see App. 153. But neither affiant was involved in the mailing process. We agree with the District Court that these unsupported, second-hand accounts cannot invoke the mailbox rule‘s presumption.7
Guerra protests that this logic is “blatantly unreasonable” because it puts “such a high evidentiary burden on the employee.” Appellant‘s Br. 25. We disagree. The person or entity mailing a complaint, letter, notice, or other document is in the best position to control whether direct evidence exists later to confirm that mailing if it becomes an issue. See Lupyan, 761 F.3d at 322 (“In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated [complaint].“). Guerra failed to do that here, and his circumstantial evidence is too thin to create a genuine issue of material fact.
IV
FRSA‘s 180-day statute of limitations is a nonjurisdictional claim-processing rule. The District Court thus incorrectly held that it lacked subject matter jurisdiction. But Guerra‘s claim still fails because he has not produced enough reliable evidence to invoke the common-law mailbox rule. So his administrative complaint was untimely and his claim is barred. We will thus affirm the District Court‘s judgment on other grounds.
Notes
An employee who alleges discharge, discipline, or other discrimination in violation of subsection (a), (b), or (c) of this section, may seek relief in accordance with the provisions of this section, with any petition or other request for relief under this section to be initiated by filing a complaint with the Secretary of Labor.