F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 27, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BRIAN M. TURGEAU,
Petitioner,
v. No. 05-9503
ADMINISTRATIVE REVIEW
BOARD, UNITED STATES
DEPARTMENT OF LABOR,
Respondent,
and
THE NORDAM GROUP, INC.,
Intervenor.
PETITION FOR REVIEW
OF AN ORDER OF THE ADMINISTRATIVE REVIEW BOARD OF THE
UNITED STATES DEPARTMENT OF LABOR
(No. ARB 04-005)
Submitted on the briefs: *
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Randall D. Huggins, Jonathan E. Shook, Shook, Huggins & Johnson, P.C., Tulsa
Oklahoma, for Petitioner.
Howard M. Radzely, Steven J. Mandel, Paul L. Frieden, Joan Brenner, United
States Department of Labor, Washington, D.C., for Respondent.
Stephen L. Andrew, D. Kevin Ikenberry, Andrew, Williams, & Ikenberry, Tulsa,
Oklahoma, for Intervenor.
Before HENRY, McKAY, and MURPHY, Circuit Judges.
McKAY, Circuit Judge.
This equitable tolling case revolves around one crucial legal point–that a
completely preempted state law claim becomes the federal claim that Congress
enacted to replace the state remedy. Respondent Department of Labor and
Intervenor The NORDAM Group, Inc. have not appreciated this key point. They
therefore incorrectly argue, and the Department of Labor’s Administrative Review
Board (ARB) incorrectly held, that petitioner Brian Turgeau was not entitled to
equitable tolling of his untimely filed federal administrative claim because his
timely–and completely preempted–state complaint asserted a different claim.
Because the agency’s stated reason for denying equitable tolling is invalid,
the case is reversed. And because the agency does not argue that there is any
further analysis of petitioner’s claim for equitable tolling to be done, we remand
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with directions for the agency to toll the statute of limitations on his federal
administrative claim.
I. Background
A. Petitioner Filed Suit Against His Former Employer in State Court
Intervenor NORDAM is certified by the Federal Aviation Administration
(FAA) as an air repair station and manufacturer of aircraft parts–in other words,
NORDAM is a contractor for air carriers. NORDAM hired petitioner on May 10,
1999, to work as a “Manufacturer-B,” Pet’r Br. at 1, and terminated him on
September 27, 2002. In petitioner’s view, NORDAM fired him because he
complained to NORDAM that some of its manufacturing practices were outside
the original manufacturer’s specifications and violated FAA regulations.
Petitioner filed suit in Oklahoma state court on November 22, 2002, fifty-six days
after his termination. He purported to assert two claims under state law for
wrongful discharge and failure to pay wages, asserting that he was fired in
retaliation for complaining about NORDAM’s manufacturing processes.
B. Petitioner’s Former Employer Removed the Suit to Federal Court
On December 26, 2002, NORDAM filed a notice of removal, asserting that
petitioner’s wrongful discharge claim, “although pled as a state-law cause of
action,” was nevertheless a federal claim for jurisdictional purposes because it
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was completely preempted by “AIR21”–the Whistleblower Protection Program in
Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century, 49 U.S.C. § 42121. Admin. R., Doc. 17, Ex. B at 1-2. AIR21 was
enacted on April 5, 2000, as an amendment to the Airline Deregulation Act of
1978. Pub. L. No. 106-181, 114 Stat. 61. Petitioner disagreed that his state
wrongful discharge claim was completely preempted by federal law, and moved to
remand. NORDAM then moved to dismiss petitioner’s suit because he had failed
to exhaust his administrative remedies under AIR21 by filing a complaint with the
Secretary of Labor. See Admin. R., Doc. 17, Ex. A at 12.
Because NORDAM had attached some materials to its motion to dismiss,
the district court treated it as a summary judgment motion. Id. at 1 n.2. On
April 8, 2003, the court issued an order agreeing with NORDAM (after a lengthy
analysis) that petitioner’s state wrongful discharge claim was completely
preempted and replaced by AIR21. Id. at 11, 12. The court also held that since
petitioner had not filed an AIR21 complaint with the Secretary of Labor and
received a final administrative order (as required by 49 U.S.C. § 42121(b)(1),
(3) & (4)), he had failed to exhaust his administrative remedies under AIR21 and
the court lacked jurisdiction to proceed. See Admin. R., Doc. 17, Ex. A at 12-13
& n.12. The court therefore granted summary judgment to NORDAM on
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petitioner’s wrongful discharge claim. Id. at 13. 1 In a footnote, the court noted
that AIR21’s ninety-day statute of limitations had expired, but that the delay in
the case “was due to a good faith legal dispute regarding an unsettled question of
federal preemption.” Id. n.12. The court concluded that it lacked jurisdiction to
consider whether equitable tolling should apply and, apparently assuming that
petitioner would file an administrative complaint, stated that it was for the
Secretary of Labor to settle that question. Id.
C. Petitioner Filed an Administrative Complaint Against His Former Employer
Petitioner did not appeal the district court’s order. Instead, on April 11,
2003, he filed an AIR21 complaint with the Secretary of Labor, asserting a
virtually identical claim as in his state suit, see Pet’r Br. at 4-5, and arguing that
AIR21’s statute of limitations should be equitably tolled. After the agency’s
investigation resulted in a letter stating that petitioner’s claim had no merit
because it was untimely, petitioner requested a hearing before an administrative
law judge (ALJ), which was set for November. On September 3, 2003, NORDAM
moved for summary judgment, arguing that petitioner’s administrative complaint
was untimely. Considering that petitioner was terminated on September 27, 2002,
his April 11, 2003 administrative complaint was filed 202 days after his
1
It is not apparent from the materials what happened to petitioner’s claim for
unpaid wages.
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termination–112 days late under AIR21’s ninety-day statute of limitations. But if
equitable tolling is applied, then petitioner’s complaint was timely. He filed his
state complaint fifty-six days after his termination, well within AIR21’s
ninety-day statute of limitations.
D. The ALJ Dismissed Petitioner’s Administrative Complaint as Untimely
On October 3, 2003, the ALJ dismissed the complaint as untimely filed.
Admin. R., Doc. 17, Ex. C. The ALJ used a three-part test for equitable tolling
taken from cases from the Second and Third Circuits. That test allows
a court to apply equitable tolling under three conditions: “(1) [when]
the defendant has actively misled the plaintiff respecting the cause of
action; [(2)] [when] the plaintiff has in some extraordinary way been
prevented from asserting his rights, or [(3)] [when] the plaintiff has
raised the precise statutory claim in issue but has mistakenly done so
in the wrong forum.
Id. at 2 (citing Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.
1981) (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.
1978) (internal quotation marks omitted; emphasis added))). The ALJ added that
there are two corollaries to the third condition: (3a) “the claim filed in the wrong
forum must have been filed within the time limits that would have applied had the
complaint been filed in the correct forum[,]” and (3b) “the plaintiff must have
used the same statutory foundation when filing both the original claim and the
subsequently filed claim.” Id.
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The ALJ considered only the third condition under which he believed
equitable tolling could apply (and it is apparent that the first and second
conditions do not help petitioner, anyway). 2 Id. The ALJ noted that the district
court had held that petitioner’s state retaliation complaint “was preempted by
AIR21, verifying that the Complainant had filed his complaint in the wrong
forum.” Id. (emphasis added). But the ALJ held that while petitioner’s state
complaint was filed within AIR21’s statute of limitations, it was not “made under
the same statute” and it was insufficient that the underlying facts were the same.
See id. at 2-3. Petitioner pointed out to the ALJ that another ALJ had applied
equitable tolling in another case in essentially the same posture. See Pet’r Br.
at 6 n.2; Admin. R., Doc. 17, Ex. E. The ALJ said that he disagreed with that
other decision as being contrary to the weight of the law. Admin. R., Doc. 17,
Ex. C at 3 n.2.
E. The ARB Dismissed Petitioner’s Administrative Complaint as Untimely
On appeal, the ARB issued a decision on November 22, 2004, granting
summary judgment to NORDAM and dismissing petitioner’s complaint for almost
2
Petitioner pointed out some circumstances in which we have applied
equitable tolling, but none of these help him: where the plaintiff was actively
deceived, was lulled into inaction, was actively misled, or was in some
extraordinary way prevented from asserting his rights. Montoya v. Chao,
296 F.3d 952, 957 (10th Cir. 2002) (citing prior cases).
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the same reasons as the ALJ. Id., Doc. 21. The ARB repeated the ALJ’s
misstatement of the district court’s holding, stating that petitioner’s state claim
was “preempted” rather than “completely preempted.” Id. at 2. Then the ARB
dismissed because petitioner’s state suit cited state law instead of the “precise
statutory claim,” AIR21. Id. at 4. The ARB also stated that an AIR21 claim had
different requirements of pleading and proof than petitioner’s state claim, and was
therefore not the same. Id. The ARB also stated that equitable tolling is
generally unavailable when a claimant is represented by counsel. Id. (An
examination of the one circuit case upon which the ARB relied shows that this
was not an independent basis for that court to deny equitable tolling, but a factor
in determining whether the plaintiff was misled into missing his filing deadline.
See Smith, 571 F.2d at 109-10.)
II. This Appeal
In this petition for review of the ARB’s dismissal, petitioner argues that the
claim he asserted in state court amounts to an AIR21 claim–he just cited state law
instead of AIR21. For this reason, he argues, AIR21’s statute of limitations
should be equitably tolled.
A. Standard of Review
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AIR21 specifies that the standard of review is in the Administrative
Procedure Act (APA), 5 U.S.C. § 706. 49 U.S.C. § 42121(b)(4)(A). Under
§ 706(2)(A), the ARB’s action shall be set aside if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Our case law
further states that
[w]hen we review an agency’s decision under the arbitrary,
capricious, or abuse of discretion standard, our review is narrow and
deferential; we must uphold the agency’s action if it has articulated a
rational basis for the decision and has considered relevant factors.
However, these limitations do not apply to questions of law. The
[f]ailure to apply the correct legal standard or to provide this court
with a sufficient basis to determine that appropriate legal principles
have been followed is grounds for reversal.
Mountain Side Mobile Estates P’ship v. Sec’y of HUD, 56 F.3d 1243, 1250
(10th Cir. 1995) (quotations and citation omitted). Under the first sentence of
§ 706, “the reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or applicability
of the terms of an agency action.” See also Phillips Petroleum Co. v. FERC, 786
F.2d 370, 374 (10th Cir. 1986).
In this case, the agency did not purport to disagree with the district court’s
holding that petitioner’s state law claim was completely preempted, but its
analysis of equitable tolling did not acknowledge or apply the legal consequences
of the district court’s complete preemption holding.
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B. Issues on Appeal
Petitioner’s stated issue is a general one–whether the ARB erred by
granting summary judgment on the basis that his administrative complaint was
untimely and the time to file his AIR21 complaint was not equitably tolled. Pet’r
Br. at 1. Petitioner restates his issue more specifically later as whether his state
complaint was a “defective pleading” within the meaning of Supreme Court and
Tenth Circuit cases that allowed equitable tolling when a defective pleading was
filed in the wrong forum. Id. at 9. Petitioner also asserts that the ARB
misconstrued and misapplied the test for equitable tolling by relying on Second
and Third Circuit cases that require that the timely complaint state the precise
statutory claim as the later, untimely complaint before equitable tolling can apply.
Id. at 7.
NORDAM and the Department of Labor argue that this case is controlled
by Johnson v. Railway Express Agency, 421 U.S. 454 (1975), a Supreme Court
case which they contend holds that equitable tolling requires a “complete identity
of claims” between the original complaint in the wrong forum and the later,
untimely complaint in the correct forum. Resp’t Br. at 14-18; Intervenor Br.
at 8-10. While we do not dispute their characterization of the holding in Johnson,
an important distinction in the facts of that case leads us to conclude that Johnson
does not control the outcome of this case.
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Because the agency did not dispute the district court’s holding that
petitioner’s state law claim was completely preempted by AIR21, our case law
demands the conclusion that his state complaint did state the precise statutory
claim as his later administrative complaint because his state claim was an AIR21
claim. As a result, the agency’s basis for denying equitable tolling is erroneous.
III. Analysis
A. Equitable Tolling is Available to Excuse Late Filings
Based on Counsel’s Legal Errors
The parties do not dispute that AIR21’s statute of limitations is not
jurisdictional and is therefore subject to equitable tolling. Resp’t Br. at 11; see
Intervenor Br. at 6. They dispute whether equitable tolling can be applied in this
case.
“Statutes of limitations are primarily designed to assure fairness to
defendants.” Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965). They
“promote justice by preventing surprises through the revival of claims that have
been allowed to slumber until evidence has been lost, memories have faded, and
witnesses have disappeared.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554
(1974) (quotation omitted). “The theory is that even if one has a just claim it is
unjust not to put the adversary on notice to defend within the period of limitation
and that the right to be free of stale claims in time comes to prevail over the right
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to prosecute them.” Id. (quotation omitted). But “[t]his policy of repose,
designed to protect defendants, is frequently outweighed . . . where the interests
of justice require vindication of the plaintiff’s rights.” Burnett, 380 U.S. at 428.
Thus, equitable tolling excuses a plaintiff’s untimely filing of a federal claim
when the court determines that Congress intended that the plaintiff’s federal
rights should be enforced, despite his untimely filing. See id. at 426-27.
The Supreme Court “ha[s] allowed equitable tolling in situations where the
claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
& n.3 (1990) (emphasis added). Thus, the Court tolled the statute of limitations
when a federal suit was mistakenly filed initially in a city court, reasoning that
[a]n action is ‘commenced’ [within the meaning of the relevant
federal statute] when instituted by service of process issued out of a
state court, even if one which itself is unable to proceed to judgment,
if the state law or practice directs or permits the transfer through
change of venue or otherwise to a court which does have jurisdiction
to hear, try, and otherwise determine that cause.
Herb v. Pitcairn, 325 U.S. 77, 78-79 (1945).
The Court also excused a late filing in federal court where counsel simply
made a mistake by filing his client’s federal claim initially in the wrong venue of
a state court and it was dismissed for improper venue because the state had no
statute allowing the suit to be transferred to the proper venue. Burnett, 380 U.S.
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at 426, 432-33. The Court reasoned that Congress did not intend to bar a suit
where
[p]etitioner . . . did not sleep on his rights but brought an action
within the statutory period in the state court of competent jurisdiction
[but improper venue]. Service of process was made upon the
respondent notifying him that petitioner was asserting his cause of
action. . . . Petitioner, then, failed to file an . . . action in the federal
courts, not because he was disinterested, but solely because he felt
that his state action was sufficient [to assert the very same claim].
Id. at 429 (bracketed sections added).
The Court also tolled the statute of limitations on motions to intervene in a
lawsuit by potential members of a class action, after the trial court ruled that the
case would not proceed as a class action because the class was not so numerous
that joinder of all members was impracticable. Am. Pipe & Constr. Co., 414 U.S.
at 552-56. The Court reasoned that the initial filing by the purported class
representative put the defendants on notice “[w]ithin the period set by the statute
of limitations, [of the] essential information necessary to determine both the
subject matter and size of the prospective litigation,” even if the actual trial
would proceed “as a principal suit with additional intervenors” instead of as a
class action. Id. at 554-55. This tolling rule has also been extended to include
putative class members who later seek to file independent actions. Crown, Cork
& Seal Co. v. Parker, 462 U.S. 345, 353-54 (1983).
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These Supreme Court cases appear favorable to petitioner, who argues that
he did not sleep on his rights, but timely put NORDAM on notice that he was
asserting a “whistleblower” action against the company by filing suit in state
court. See Pet’r Br. at 9-13. To paraphrase a statement in Burnett, NORDAM
could not have relied on the policy of repose since it filed a notice of removal
asserting the complete preemption of petitioner’s state claim, showing that
NORDAM knew that an AIR21 claim had been timely filed against it. See
Burnett, 380 U.S. at 429-30. Here, the state court, and in fact the federal district
court, could not have adjudicated petitioner’s AIR21 claim because the statute
requires that the claim be filed initially with the Department of Labor. We have
found no authority that would have allowed the case to be transferred from either
the state court or the district court to the administrative agency. Nevertheless, the
holding in Burnett suggests that it is not always necessary that the case be
transferable to the correct tribunal for tolling to apply. See id. at 426, 432-33.
We have noted the Supreme Court’s comment that it “ha[s] allowed
equitable tolling in situations where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period.” E.g.,
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002) (quoting Irwin, 498 U.S.
at 96). Petitioner argues that his timely state court complaint was a defective
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pleading to which equitable tolling applies, and correctly asserts that we have
never defined “a defective pleading.”
Because a “defective pleading” has never been clearly defined by either the
Supreme Court or this court and none of the cases address AIR21, however, these
cases do not compel a decision in favor of petitioner in this case.
B. Equitable Tolling is Not Available Where Separate, Distinct, and Independent
Remedies Exist, and Plaintiff Sleeps on His Rights with Regard to One of Them
As noted above, the Department of Labor and NORDAM argue that this
case is controlled by Johnson, 421 U.S. 454, which they contend requires a
“complete identity of claims” between the timely filing in the wrong tribunal and
the later, untimely filing in the correct tribunal, and which they contend is
factually similar to this case. See Intervenor Br. at 9; see also Resp’t Br.
at 16-17. Indeed, Johnson was the basis for the second corollary the ALJ and the
ARB used in their test for equitable tolling. See Admin. R., Doc. 17, Ex. C at 2.
Unlike the parties, we do not believe that the legal holding of Johnson is a
problem for petitioner. More importantly, Johnson is clearly distinguishable on
the facts.
In Johnson, the plaintiff filed a timely discrimination claim against his
employer with the Equal Employment Opportunity Commission (EEOC), which,
after a lengthy administrative delay in issuing the right-to-sue letter, eventually
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led to plaintiff filing a complaint under Title VII, and then later filing a
supplemental complaint adding a claim under 42 U.S.C. § 1981. Johnson,
421 U.S. at 455-56. The § 1981 claim was dismissed as untimely. Id. at 456.
Plaintiff argued that the timely filing of his administrative complaint with the
EEOC tolled the statute of limitations on his § 1981 claim. Id. at 457. The
Supreme Court disagreed, holding that equitable tolling does not apply when the
plaintiff has “separate, distinct, and independent” remedies, and has simply slept
on his rights with regard to one of them. Id. at 461, 465-66. Therefore, the
timely filing of the Title VII claim was not sufficient to lead to tolling on the
§ 1981 claim.
The Department of Labor argues that this is the case here–that petitioner
slept on his rights with regard to his AIR21 claim. Resp’t Br. at 16-17. But the
district court’s holding that petitioner’s state wrongful discharge claim was
completely preempted and replaced by AIR21 means that petitioner had no
separate, distinct, and independent remedy under state law; the only remedy
petitioner had for the alleged wrongful discharge from his aviation-related job
was AIR21. Indeed, that argument was the basis of NORDAM’s notice of
removal. See Admin. R., Doc. 17, Ex. B at 1-2.
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Neither the ALJ nor the ARB purported to decide anew whether petitioner’s
state wrongful discharge claim was completely preempted, and their decisions do
not dispute the district court’s holding on this point, although they misstated the
district court’s holding, saying that the court held that petitioner’s state claim was
“preempted” rather than “completely preempted.” Admin. R., Doc. 17, Ex. C.
at 2; Doc. 21, at 2. This is a meaningful difference. Under our case law, a
completely preempted state claim states a federal claim. Therefore, the agency’s
grant of summary judgment in favor of NORDAM based on the conclusion that
petitioner did not establish the complete identity of claims for purposes of
equitable tolling was wrong.
C. Preemption (Defensive) v. Complete Preemption (Artful Pleading)
“In deciding whether [a] suit arises under federal law, [the court] is guided
generally by the ‘well-pleaded complaint’ rule, under which a suit arises under
federal law ‘only when the plaintiff’s statement of his own cause of action shows
that it is based’ on federal law.” Schmeling v. NORDAM, 97 F.3d 1336, 1339
(10th Cir. 1996). Neither the plaintiff’s anticipation of a federal defense nor the
defendant’s assertion of a federal defense is sufficient to make the case arise
under federal law. Id. “The plaintiff is the ‘master of the claim’ and may prevent
removal [to federal court] by choosing not to plead a federal claim even if one is
available.” Id. (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).
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“Under the ‘artful pleading’ doctrine, however, a plaintiff may not defeat removal
by failing to plead federal questions that are essential elements of the plaintiff’s
claim.” Id. (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 22 (1983)).
“The ‘complete preemption’ doctrine has been referred to as a corollary or
an exception to the well pleaded complaint rule.” Id. (citations omitted). “When
the doctrine is properly invoked, a complaint alleging only a state law cause of
action may be removed to federal court on the theory that federal preemption
makes the state law claim ‘necessarily federal in character.’” Id. (quoting Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)). A completely preempted
claim “becomes a federal claim and can be the basis for removal jurisdiction.”
Coldesina v. Estate of Simper, 407 F.3d 1126, 1137 (10th Cir. 2005). “[A] state
law claim is only ‘completely preempted’ under Taylor if it can be recharacterized
as a claim under [federal law].” See Felix v. Lucent Tech., Inc., 387 F.3d 1146,
1156 (10th Cir. 2004); accord Schmeling, 97 F.3d at 1342 (holding that tension in
Supreme Court cases can be resolved by reading “complete preemption” as a term
of art–“a description of the specific situation in which a federal law not only
preempts a state law to some degree but also substitutes a federal cause of action
for the state cause of action, thereby manifesting Congress’s intent to permit
removal”). But cf. Coldesina, 407 F.3d at 1139 (holding that inability to recast
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plaintiff’s completely preempted state law claim as a federal claim simply left
plaintiff without a remedy).
Under the description of “complete preemption” set out above, it is
irrelevant what law the plaintiff cited in his state complaint, once the court
decided that his purported state claim was completely preempted by and actually
arose under federal law. See, e.g., Schmeling, 97 F.3d at 1339 (noting that
plaintiff may not defeat removal by failing to plead federal questions that are
essential elements of the plaintiff’s claim). As a result, the agency’s insistence in
this case that petitioner’s state claim did not state an AIR21 claim because he did
not cite AIR21 is unfounded. The ALJ’s and the ARB’s misstatement of the
district court’s holding indicate that these tribunals did not appreciate the
distinction between a “preempted” claim and a “completely preempted” claim.
See Admin. R., Doc. 17, Ex. C at 2; Doc. 21, at 2. Otherwise, their conclusions
would have been different on equitable tolling, at least under the principles they
purported to be following.
IV. Conclusion
Petitioner challenges the test the agency used, but only to the extent it
required that the “precise statutory claim” be asserted in both the timely claim in
the wrong forum and the untimely claim in the proper forum. Pet’r Br. at 7.
Because the complete preemption of petitioner’s state claim established the
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complete identity of claims the ARB’s test demanded, it is unnecessary for us to
address petitioner’s challenge to the test the agency used. Petitioner also urges us
to close the gap in our case law and define a “defective pleading” for purposes of
equitable tolling, but it is unnecessary for the same reason.
For the reasons set out in detail above, we remand for equitable tolling to
be applied because petitioner has shown that he meets the third condition of the
test the agency used. The agency has waived any argument that there is any
further analysis of petitioner’s claim for equitable tolling to be done.
The petition for review is GRANTED, and the case is REVERSED for
application of equitable tolling.
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