In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1800
MARY MADISON,
Petitioner,
v.
UNITED STATES DEPARTMENT OF
LABOR, ADMINISTRATIVE REVIEW
BOARD,
Respondent.
Petition for Review of an
Order of the United States Department of Labor
No. 2016-FDA-004
ARGUED NOVEMBER 28, 2018 — DECIDED MAY 24,2019
Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Following her discharge from Kenco
Logistics (“Kenco”), Mary Madison filed a complaint with the
Occupational Safety and Health Administration (“OSHA”)
charging that she was terminated in retaliation for engaging in
2 No. 18-1800
protected activity. OSHA dismissed her complaint, and in a
subsequent de novo proceeding conducted at Madison’s
request, an administrative law judge (“ALJ”) entered a
summary decision against her. Madison asked the Department
of Labor’s Administrative Review Board (“ARB” or the
“Board”) to review the ALJ’s decision, but the Board dismissed
her appeal as untimely. Madison now seeks review in this
court. Finding no error in the Board’s decision as to the
timeliness of Madison’s appeal to the Board, we deny the
petition for review.
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 manufac-
turer 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 retalia-
tion 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 Modern-
ization Act (“FSMA”), which in relevant part gives whistle-
blower protection to employees of firms “engaged in the
manufacture, processing, packing, transporting, distribution,
reception, holding, or importation of food.” 21 U.S.C. § 399d(a);
see also id. § 399d(b)(1) (authorizing employee subject to
retaliation for lawful whistleblowing to file complaint with
Secretary of Labor); Secretary of Labor Order No. 1-2012 (Jan.
18, 2012), 77 Fed. Reg. 3912-01, 2012 WL 194561 (Jan. 25, 2012)
No. 18-1800 3
(delegating authority to receive and investigate such com-
plaints to Assistant Secretary of Labor for Occupational Safety
and Health); 29 C.F.R. § 1987.105(a) (providing that after
investigation, Assistant Secretary of Labor will enter written
findings as to whether there is reasonable cause to believe
retaliation has occurred and, if so, will issue preliminary order
granting relief to complainant). In February 2016, an OSHA
investigator dismissed Madison’s complaint.
As was her right, Madison requested a de novo hearing
before an ALJ. See 29 C.F.R. § 1987.106(a). Kenco filed a motion
asking the ALJ to enter a summary decision resolving the case
in its favor. After initially denying the motion, the ALJ granted
Kenco’s motion to reconsider and entered a detailed summary
decision in Kenco’s favor. Sep. App. 50–76.1 In view of the facts
as to which there was no dispute, the ALJ agreed that Kenco
had legitimate, non-discriminatory reasons for firing Madison
and indeed would have discharged her regardless of whether
she had engaged in activity protect by the FSMA. The ALJ
issued that order on November 22, 2017. Sep. App. 65–74.
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. 29 C.F.R. § 1987.110(a). A notice of appeal
rights set forth on the final pages of the ALJ’s decision ex-
pressly admonished Madison and her counsel of the deadline
1
Citations to “Sep. App.” are to the separate appendix Madison has filed
in support of her petition for review, and citations to “App.” are to the
required appendix appended to her opening brief. The documents included
in these two appendices incorporate the relevant portions of the administra-
tive record.
4 No. 18-1800
for such a petition. Sep. App. 74. Filing such a petition is a pre-
condition to seeking judicial review of the Secretary’s action.
See id. §§ 1987.109(e), 1987.110(b). Thus, if a timely petition for
review is not filed with the Board, the ALJ’s decision becomes
the final decision of the Secretary on the merits of the case and
is not subject to judicial review. 29 C.F.R. §§ 1987.109(e),
1987.110(b).
A paralegal specialist at the Department of Labor’s Office
of Administrative Law Judges mailed a copy of the ALJ’s
November 22nd decision to Madison’s counsel, Jordan T.
Hoffman, but to Hoffman’s former rather than current address.
As of that date, Hoffman had not yet filed a formal change of
address notice with the ALJ’s office—he would subsequently
do so in January 2018—but there is no dispute that the ALJ’s
paralegal nonetheless was in possession of his current address.
The mis-addressed envelope was returned to the ALJ’s office
as undeliverable, as was a copy of the decision that had been
mailed to Kenco itself. On return of the copy sent to attorney
Hoffman, the paralegal re-mailed another copy of the decision
to his correct address on December 1, 2017. She also sent an
email that same day to Kenco’s counsel, Julia P. Argentieri,
noting the return of the copy mailed to Kenco and soliciting the
company’s correct address:
I know the parties already have an electronic deci-
sion on the above matter, but we received the hard
copy back for Kenco Logistics.
Could you please provide me with their new ad-
dress?
No. 18-1800 5
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 para-
legal’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 Madi-
son’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
2
Moreover, a prior order of the ALJ had noted that neither party had
requested or received permission to file documents electronically or via
facsimile, and the ALJ had thus admonished the parties that they should file
all future correspondence with the Office of Administrative Law Judges in
writing. Sep. App. 89.
6 No. 18-1800
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 of the time limit might be warranted.
App. 15.
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.
No. 18-1800 7
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. Extraordi-
nary 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 acknowl-
edged 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 deci-
sion, 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
8 No. 18-1800
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 account-
able 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 exten-
sion of time, had expired. “Having received the documents
after the expiration ought to be an exceptional circumstance to
qualify for equitable tolling and if not that at least a waiver of
the initial 14 day period,” she argued. Sep. App. 15.
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 Madi-
son’s counsel had actually read the ALJ’s decision on Decem-
ber 1, when he was copied on the email exchange between the
No. 18-1800 9
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 accor-
dance with law.” 5 U.S.C. § 706(2)(A). The decision to dismiss
Madison’s intra-agency appeal is one that we will sustain so
long as it is not arbitrary and capricious. See Sparre v. U.S. Dep’t
of Labor, — F.3d —, 2019 WL 2064060, at *2 (7th Cir. May 10,
2019). The scope of our review in this regard is narrow, and we
10 No. 18-1800
must not substitute our judgment for that of the agency. F.C.C.
v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S. Ct. 1800,
1810 (2009); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866 (1983);
Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng’rs, 893 F.3d
1017, 1024 (7th Cir. 2018). The agency’s obligation is to examine
the relevant evidence and articulate a satisfactory rationale for
its action that draws a rational connection between the under-
lying facts and the outcome. Motor Vehicle Mfrs. Ass’n, 463 U.S.
at 43, 103 S. Ct. at 2866.
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,
130 S. Ct. 827, 831 (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 pursued his
rights diligently but some extraordinary circumstance prevents
him from bringing a timely action.” Lozano v. Montoya Alvarez,
527 U.S. 1, 10, 134 S. Ct. 1224, 1231–32 (2014); see Sparre, 2019
WL 2064060, at *3. It is the burden of the litigant who invokes
No. 18-1800 11
equitable tolling to establish each of these two elements:
diligence in the pursuit of her rights and the existence of an
extraordinary circumstance that nonetheless stood in the way
of her making a timely filing. Menominee Indian Tribe of Wis. v.
United States, 136 S. Ct. 750, 755 (2016) (citing Holland v. Florida,
560 U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010). Where equitable
tolling applies, it applies only so long as the petitioner was
diligently pursuing his rights and extraordinary circumstances
prevented him from making a timely filing; it is that amount of
time which is not counted toward the relevant time limit.
Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015). Given the
compelling showing that is required to successfully invoke
equitable tolling and to show that an agency abused its
discretion, it will be the rare case in which we will find that an
agency’s refusal to equitably toll a time limit was out of
bounds. Johnson v. Gonzales, 478 F.3d at 799. This is not one of
those cases.
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 Madi-
son the benefit of the doubt on this point and assume, solely
for the sake of argument, that the responsibility for the error
12 No. 18-1800
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 assump-
tion, 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 re-
moved 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 had been a decision by the ALJ, with time
enough left to take appropriate action in the exercise of
No. 18-1800 13
diligence to preserve Madison’s appellate rights. True, the
email exchange did not reveal what the ALJ had ruled upon or
how the ALJ had ruled. But Hoffman was nonetheless on
notice that a decision had been issued, and by virtue of Kenco’s
pending motion to reconsider the denial of its request for a
summary decision, it was foreseeable to Hoffman that the ALJ
might have granted that motion. As the Board pointed out,
with the benefit of that notice, Hoffman had two options open
to him within the five days remaining in the 14-day appeals
window. He could have (a) requested that the paralegal send
him another copy of the ALJ’s decision by email or fax (as the
record reflects he had done in the past, see Sep. App. 85–86)
and prepared a timely petition for review, or (b) immediately
filed a motion to extend the 14-day time for lodging an appeal
to the Board. In short, the notice provided by the email
exchange removed the obstacle that had prevented Madison
from diligently pursuing her appellate rights.
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 Madi-
son’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
14 No. 18-1800
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 reason-
able for the Board to rely on December 1 as a point at which
due diligence would have required Hoffman to take affirma-
tive action to obtain a copy of the ALJ’s order and to preserve
his client’s appellate rights. And yet Hoffman took no immedi-
ate 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
No. 18-1800 15
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 she would have been had the decision
been mailed to the correct address in the first instance. Again,
she did not. Hoffman’s office received the second mailed copy
on December 6 and he saw it on December 7. At that point, he
had another eight days to take action under the tolled appeals
period beginning on December 1. But he took no action during
that time, and waited until December 17, a full ten days later,
to file a notice of appeal. As the Board suggested, it appears
from Madison’s response to the rule to show cause that
Hoffman was operating on the assumption that he had 14 days
to file an appeal commencing on the date he received the mailed
copy of the ALJ’s decision to appeal, rather than the date the
copy was mailed. That was both a misunderstanding of applica-
ble rules and contrary to the notice of appeal rights included in
the ALJ’s decision; and the responsibility for that error lies with
Hoffman (and by extension, Madison) rather than the Depart-
ment of Labor. See Sparre, 2019 WL 2064060, at *3.
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
16 No. 18-1800
filing the petition for review after he had received and re-
viewed 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.