MARY MADISON, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent.
No. 18-1800
In the United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 28, 2018 — DECIDED MAY 24, 2019
ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
Petition for Review of an Order of the United States Department of Labor No. 2016-FDA-004
Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
I.
Kenco employed Madison as a quality engineer from May 13, 2013 until August 9, 2013, when it discharged her. Kenco provided warehousing services to Mars, Inc., a global manufacturer of candy and other food products. Madison alleges that her discharge was the culmination of a series of adverse employment actions the company took against her in retaliation for the food safety concerns she had raised with her superiors.
Shortly after her termination, Madison filed a complaint with OSHA under section 402 of the FDA Food Safety Modernization Act (“FSMA“), which in relevant part gives whistleblower protection to employees of firms “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.”
As was her right, Madison requested a de novo hearing before an ALJ. See
Madison had 14 days from the date of the ALJ‘s decision to petition for discretionary review by the ARB of the ALJ‘s decision against her.
I know the parties already have an electronic decision on the above matter, but we received the hard copy back for Kenco Logistics.
Could you please provide me with their new address?
I also received the hard copy back addressed to Mr. Hoffman (his old address) so I sent another hard copy to his new address.
Sep. App. 33. Hoffman was copied on that email, but to an incorrect email address, so he did not receive it. However, Kenco‘s counsel Argentieri promptly responded to the paralegal‘s email with a correctly-addressed copy to Hoffman. Sep. App. 32. As that response included the history, a review of the email would have disclosed the paralegal‘s inquiry and her reference to a decision having been rendered in the case. We note, however, that the paralegal‘s representation that the parties “already have” an electronic copy of the decision appears to have been incorrect. Madison had not consented to electronic service of the ALJ‘s orders,2 and the record does not otherwise indicate that Madison and her counsel had in fact received electronic copies of the decision.
Hoffman has represented that he did not see this email exchange until weeks later, after he had already filed Madison‘s petition for review with the Board. Why he did not see the email sooner has not been explained to us.
Hoffman‘s office received the second, correctly-addressed copy of the ALJ‘s order on December 6 (the 14th day following the ALJ‘s November 22nd order), and he represents that he first saw it on December 7. By that time, of course, the period for seeking review by the Board had expired. Madison filed her petition for review with the Board ten days later, on December 17, 2017. Prior to filing the petition, Hoffman did not file a motion asking for an extension of time in which to do so, nor (so far as the record reveals), did he make any other effort to contact the Board to advise them that he had not received a copy of the ALJ‘s order until December 6.
On receipt of the petition for review, the Board issued an order directing Madison to show cause why the petition should not be dismissed as untimely. App. 14. The Board‘s order acknowledged that the 14-day appeals period is not jurisdictional and was subject to equitable modification; the order also referred to the four principal situations in which equitable modification
Madison filed a response to the order to show cause in which she argued that the original service of the ALJ‘s order was defective because it was sent to her counsel at an incorrect address, and that her appeal should be deemed timely because it was filed within 14 days of her counsel‘s receipt of the second, correctly-addressed mailing of the ALJ‘s order. Sep. App. 29-30. Madison attached the email correspondence between the paralegal and Kenco‘s counsel indicating that the first mailing to Hoffman had been returned as undeliverable. She noted that the ALJ‘s office was in possession of Hoffman‘s current mailing address. The response also indicated that Madison herself had been out of town for an extended period when the copies of the ALJ‘s order were mailed such that she herself was unaware of the ALJ‘s decision. Sep. App. 29–30.
On review of Madison‘s response to the order to show cause (and Kenco‘s own response), the ARB dismissed her appeal as untimely. App. 7–10. The Board was not convinced that Madison had demonstrated the presence of extraordinary circumstances that warranted exercise of the Board‘s discretion to equitably toll the 14-day deadline for her appeal. Extraordinary circumstances, the Board noted, are typically those in which a timely filing would not have occurred even in the exercise of due diligence. App. 9. Although the Board acknowledged that Madison‘s counsel had not received the mailed copy of the ALJ‘s decision until December 6, it pointed out that Hoffman had notice by way of the December 1 email exchange that the ALJ had rendered a decision. At that point, five days remained of the 14 following the ALJ‘s November 22nd decision, yet Hoffman pursued neither of the two options available to him at that point in time: filing a petition for review, or moving for an extension of time in which to do so. App. 9.
Instead, he unilaterally decided, without consulting the Board, that (1) Madison was entitled to toll the due date for filing because the original decision was sent to the wrong address, and (2) that he had fourteen days from the date he received the decision, rather than fourteen days from the date the ALJ issued it, to file the petition. Counsel was incorrect on both counts. Had Madison‘s counsel contacted the Board and explained the reasons for requiring an enlargement of time, it is likely that the Board would have granted that request, but he failed to ask for such an enlargement and thereby has failed to establish due diligence.
App. 9 (footnote omitted). Although these were Hoffman‘s acts and omissions rather than Madison‘s, the Board noted that attorney error ordinarily does not amount to an extraordinary circumstance warranting equitable relief, as clients are accountable for the acts and omissions of their lawyers. App. 9.
Madison asked the Board to reconsider the dismissal of her appeal. Sep. App. 13–16. She noted first that although her attorney was copied on the December 1 email exchange between the ALJ‘s paralegal and Kenco‘s counsel, Hoffman did not actually have knowledge of the ALJ‘s decision as of that date. Sep. App. 13–14. She emphasized that the December 1 email exchange neither included an electronic copy of the ALJ‘s decision nor discussed the ALJ‘s disposition of the case. Thus, not until Hoffman received the (second) mailed copy of the decision on December 6 and reviewed it on December 7 could he have known precisely what the ALJ decided. By that time, the 14-day window in which to appeal the ALJ‘s November 22nd ruling, as well as the time in which to request an
The Board denied reconsideration. App. 1–3. The Board explained that its refusal to grant Madison the benefit of equitable tolling was premised not on the notion that Madison‘s counsel had actually read the ALJ‘s decision on December 1, when he was copied on the email exchange between the ALJ‘s paralegal and Kenco‘s counsel, but rather on the notion that Hoffman was on notice as of that date that the ALJ had rendered a decision.
Having notice that the Administrative Law Judge had issued “the decision,” an attorney, exercising the necessary due diligence and knowing of the 14-day deadline for filing a petition for review, would not simply have waited around hoping for the decision to be delivered in time for the filing of a timely petition. Instead, he would have contacted the Judge and requested a copy of the decision. Madison‘s counsel failed to do so, and thus, failed to act with due diligence.
App. 2 (emphasis in original). The Board added that Madison had failed to address an alternative ground for its decision (which had been pressed by Kenco and acknowledged in the Board‘s dismissal decision)—namely, that Madison had failed to file her petition for review within 14 days of the date on which the ALJ‘s clerk had mailed a second copy of the decision to Hoffman. App. 2.
II.
Under the Administrative Procedure Act (“APA“), we will sustain the Board‘s decision so long as it is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
As the Board recognized and the government agrees, the 14-day time limit on filing a petition for review with the Board is not jurisdictional and consequently is subject to equitable tolling. See Sparre, 2019 WL 2064060, at *3; DOL Br. 16. Whether or not to grant a litigant the benefit of equitable tolling requires an agency to weigh intangible factors specific to the individual case, Johnson v. Mukasey, 546 F.3d 403, 405 (7th Cir. 2008), abrogated on other grounds by Kucana v. Holder, 558 U.S. 233, 237 (2010), and in accordance with the terms of the APA, we therefore review the Board‘s decision to deny Madison the benefit of equitable tolling for abuse of discretion. Sparre, 2019 WL 2064060, at *2; Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007).
As relevant here, equitable tolling “pauses the running of, or ‘tolls’ a statute of limitations when a litigant has
We need not decide whether the agency‘s mistake in directing the initial mailing of the ALJ‘s decision to counsel‘s former address amounts to an extraordinary circumstance which stood in the path of Madison‘s pursuit of her rights. The responsibility for that error arguably lay with Hoffman, who had not (yet) filed a formal change of address notice with the ALJ‘s office. At the same time, there is no dispute that the ALJ‘s paralegal was aware of Hoffman‘s new address and indeed sent the second copy of the ALJ‘s decision to that address without having to be asked to do so, once the original copy was returned as undeliverable. We may therefore give Madison the benefit of the doubt on this point and assume, solely for the sake of argument, that the responsibility for the error belonged to the ALJ‘s office, and that the misdirected mailing prevented Madison from filing an appeal. Madison had not consented to electronic service of the ALJ‘s orders, so she and her counsel were depending on service by mail to apprise her counsel of the ALJ‘s decision. Thus, when the first copy of the ALJ‘s decision was mailed to the wrong address, Hoffman was left in the dark as to the fact that the ALJ had ruled on the merits of the case and the clock was ticking on his client‘s right to appeal. But even with the benefit of this generous assumption, Madison cannot show that the Board abused its discretion in refusing to equitably toll the statutory appeals period long enough to deem her appeal timely. Subsequent events removed any obstacle that arguably may have prevented her from filing a timely appeal.
As of December 1, the circumstances changed materially, and not just because the ALJ‘s paralegal on that date directed a second copy of the ALJ‘s decision to the correct mailing address for Hoffman. On that same day, the paralegal sent an email to counsel for both parties in which she noted, among other things, that the copies of the decision sent to both Kenco and Hoffman had been returned and that she had mailed another copy of the decision to Hoffman‘s current address. The paralegal used an incorrect email address for Hoffman on that email, but in replying to the paralegal (with history), Kenco‘s counsel, Argentieri, corrected that error so that Hoffman would see both the paralegal‘s email and Argentieri‘s reply. There is no dispute that Hoffman received Argentieri‘s email; and by virtue of that electronic correspondence, Hoffman was on notice there
As we have noted, Hoffman represents that he did not actually see the December 1 email exchange until weeks later, after he had already received a copy of the ALJ‘s decision in the mail and filed the (untimely) petition for review on Madison‘s behalf. It is not apparent why he did not see the email sooner; but in any event, this was a matter that was within Hoffman‘s control. Today, courts and agencies routinely communicate with counsel electronically, and attorneys likewise communicate with one another via email. Even where, as here, a party has not consented to electronic service of agency orders, counsel can foresee that there may be electronic correspondence from both the agency and opposing counsel in the course of the case, and he can be expected to check (or have someone in his office monitor) his email on a regular basis to keep abreast of developments in litigation. The record reflects that Hoffman had previously exchanged emails with the ALJ‘s paralegal regarding a prior order issued in the proceeding. Sep. App. 85-86. Had he, or someone in his office, checked his email and looked at the December 1 exchange between the paralegal and Kenco‘s counsel, Hoffman would have known that there was a need to act. It was therefore entirely reasonable for the Board to rely on December 1 as a point at which due diligence would have required Hoffman to take affirmative action to obtain a copy of the ALJ‘s order and to preserve his client‘s appellate rights. And yet Hoffman took no immediate action to lodge an appeal or request an extension of time. See Yuan Gao v. Mukasey, 519 F.3d 376, 378 (7th Cir. 2008) (“a litigant who learns, or had he been diligent would have learned, all the facts he would need in order to be able to file his claim while time remained in the limitations period, must file it before the period ends“) (emphasis in original) (collecting cases).
Even if we were to ignore the December 1 email exchange altogether, the record still would not support the notion that Hoffman acted with appropriate diligence. As we have assumed arguendo, in view of the mis-addressed first mailing, Madison and Hoffman were prevented from taking action in pursuit of her appellate rights until such time as the paralegal sent a second copy of the ALJ‘s decision to Hoffman‘s current address. Madison was arguably entitled to equitable tolling of the 14-day appeals period for that length of time. But, once the second copy was mailed to Hoffman‘s correct address, there was no longer an obstacle preventing Hoffman and Madison from pursuing her appellate rights. She could be expected to file an appeal (or a request for extension of time) within the ensuing 14 days, just as
In short, while Madison arguably may have been prevented from doing anything in pursuit of her appellate rights prior to December 1, the second mailing on that date and the email correspondence on the same day removed the obstacle. After that point, Madison‘s counsel could be expected in the exercise of due diligence to take action more quickly than he did. Timely review of the email would have permitted Hoffman to obtain quick access to the ALJ‘s order and to pursue a timely appeal. Even granting Madison the benefit of limited equitable tolling from November 22 to December 1, her counsel still failed to act with appropriate dispatch. His 10-day delay in filing the petition for review after he had received and reviewed the mailed copy of the ALJ‘s decision on December 6 is inconsistent with due diligence.
III.
The Board did not abuse its discretion in declining to equitably toll the appeals deadline so as to deem Madison‘s belated appeal timely, given the lack of due diligence on the part of her counsel. The decision to dismiss her appeal as untimely was therefore not arbitrary and capricious. We DENY the petition for review and AFFIRM the Board‘s dismissal of her intra-agency appeal as untimely.