Henin v. Soo Line Railroad Company d/b/a Canadian Pacific (agency decision, March 22, 2019)

Plain-English summary

The Board initially dismissed Kenneth Henin's Federal Rail Safety Act appeal because his petition appeared to arrive three days after the 14-day deadline. Certified-mail records later showed that he did not receive the ALJ decision until January 22, 2019. Applying the three added days allowed when service is not completed on the date stated, the Board found his January 28 petition timely and granted reconsideration. Henin had meanwhile filed for de novo review in federal court after 210 days passed without a final agency decision and without bad-faith delay. The Board reinstated the timely appeal and then dismissed the administrative complaint in favor of the court action.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109(d)(3); 29 C.F.R. §§ 1982.110(a) and 1982.114
• Outcome: Reconsideration granted and appeal reinstated as timely; complaint then dismissed after de novo district-court filing.
• Key point: Actual delayed delivery added three days to the appeal period, making the petition timely, but the later federal-court filing ended Board review.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  IN THE MATTER OF:


  KENNETH HENIN,                              ARB CASE NO. 2019-0028

                  COMPLAINANT,                ALJ CASE NO. 2017-FRS-00011

         v.                                   DATE:         March 22, 2019

  SOO LINE RAILROAD COMPANY,
  d/b/a CANADIAN PACIFIC,

                  RESPONDENTS.


  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD

  Appearances:

  For the Complainant:
        Keith E. Ekstrom, Esq., and Fredric A. Bremseth, Esq.;
        Bremseth Law Firm, P.C.; Minnetonka, Minnesota

  For the Respondent:
        Daniel Oberdorfer, Esq., Tracey Holmes Donetsky, Esq., and
        Greta Bauer Reyes, Esq.; Stinson Leonard Steet LLP;
        Minneapolis, Minnesota

  Before: James A. Haynes and Daniel T. Gresh, Administrative
  Appeals Judges

  PER CURIAM


      ORDER GRANTING RECONSIDERATION, REINSTATING
    COMPLAINANT’S APPEAL AS TIMELY FILED AND DISMISSING
                       COMPLAINT




         This case arises under the whistleblower protection provisions of the
  Federal Railroad Safety Act of 1982 (FRSA) and its implementing
  regulations. 1 On January 28, 2019, Complainant filed a petition for review of
  a Department of Labor Administrative Law Judge’s (ALJ) Decision and
  Order Granting Summary Decision for Respondent (D. & O.), issued on
  January 11, 2019. On February 5, 2019, the Clerk of the Appellate Boards,
  on behalf of the Administrative Review Board, issued a notice of appeal,
  constituting the Board’s acceptance of the petition for review. Subsequently,
  on February 8, 2019, the Board received Respondent’s Motion to Dismiss
  Complainant’s Petition as Untimely. On February 26, 2019, Complainant
  informed the Board of his intention to file an action in federal court, as a final
  order of the Secretary of Labor had not been issued prior to that date.

           Also on February 26, 2019, the Board issued an Order Granting
  Respondent’s Motion to Dismiss Complainant’s Petition as Untimely.
  Specifically, the Board noted that pursuant to 29 C.F.R. § 1982.110(a), “[a]
  petition must be filed within 14 days of the date of the decision of the ALJ.”
  In addition, the Board noted that it has adopted principles employed by
  federal courts under the Federal Rules of Appellate Procedure. 2 So in this
  case, the Board determined that the petition for review was due on or before
  January 25, 2019, in accordance with Rule 26(a)(1) of the Federal Rules of
  Appellate Procedure. 3 Because Complainant filed the petition for review in
  this case on January 28, 2019, the Board held that his petition for review was
  not timely filed. In addition, the Board noted that 29 C.F.R. § 1982.110(b)
  provides, “[i]f no timely petition for review is filed, . . . the decision of the ALJ
  will become the final order of the Secretary” and “the resulting final order is
  not subject to judicial review.”

          On February 28, 2019, the Board received a copy of a federal complaint
  filed in the United States District Court for the District of Minnesota as
  authorized by 49 U.S.C. § 20109(d)(3) for de novo review of the claim
  currently pending before the Board. In addition, Complainant filed a Motion
  for Reconsideration of the Board’s Order Granting Respondent’s Motion to
  Dismiss Complainant’s Petition as Untimely.

         The ARB is authorized to reconsider a decision upon the filing of a

  1      49 U.S.C. § 20109 (2008); 29 C.F.R. Part 1982 (2018).

  2       See OFCCP v. Fla. Hosp. of Orlando, ARB No. 11-011, ALJ No. 2009-OFC-
  002, slip op. at 4 (ARB July 22, 2013).

  3      See Fed. R. App. P. 26(a)(1)(A)-(C).




  motion for reconsideration within a reasonable time of the date on which the
  Board issued the decision. 4 In considering whether to reconsider a decision,
  the Board has applied a four-part test to determine whether the movant has
  demonstrated:

                  (i) material differences in fact or law from that presented to
                  a court of which the moving party could not have known
                  through reasonable diligence, (ii) new material facts that
                  occurred after the court’s decision; (iii) a change in the law
                  after the court’s decision, and (iv) failure to consider a
                  material fact presented to court before its decision. 5

          In his Motion for Reconsideration, Complainant states that he did not
  receive the ALJ’s D. & O. Granting Summary Decision for Respondent, issued
  on January 11, 2019, until January 22, 2019. A review of the ALJ’s D. & O.,
  filed with Complainant’s petition for review, indicates that it was issued on
  January 11, 2019, and that a copy of the D. & O. was sent that same day via
  certified mail to Complainant. The Board subsequently received the record in
  this case including a copy of the ALJ’s docket sheet which again indicates
  that the ALJ’s D. & O. was issued on January 11, 2019. But the record also
  contains a copy of the ALJ’s D. & O. indicating, inexplicably, that it was
  issued on January 15, 2019. In its review of the record, the Board also
  noted that it contained the certified mail receipts providing the receipt
  numbers for the copies that were sent to Complainant and his counsel. A
  review of those certified mail receipt numbers confirms that Complainant did
  not receive the ALJ’s D. & O. until January 22, 2019.

         Pursuant to Rule 26(c) of the Federal Rules of Appellate Procedure:

                  When a party may or must act within a specified time after
                  being served, 3 days are added after the period would otherwise
                  expire under Rule 26(a), unless the paper is delivered on the
                  date of service stated in the proof of service.

  Because the ALJ’s D. & O. was not delivered to the Complainant until
  January 22, 2019, and because “3 days are added after the period would
  otherwise expire”, the petition for review in this case was due on or before
  January 28, 2019, under Rule 26(c) of the Federal Rules of Appellate

  4    Wimer-Gonzales v. J.C. Penney Corp., Inc., ARB No. 10-148, ALJ No. 2010-
  SOX-045, slip op. at 2-3 (ARB Feb. 7, 2012).

  5      Wimer-Gonzales, ARB No. 10-148, slip op. at 3.




  Procedure. 6 Complainant filed the petition for review on January 28, 2019,
  and therefore his petition for review was timely filed. 7

          Complainant has presented sufficient information in his Motion for
  Reconsideration to alert the Board to the error in its Order Granting
  Respondent’s Motion to Dismiss Complainant’s Petition as Untimely, issued
  on February 26, 2019. Because the Board was unaware of a material fact,
  i.e., that the ALJ’s D. & O. was not delivered to the Complainant until
  January 22, 2019, Complainant’s Motion for Reconsideration is granted and
  his appeal is reinstated on the Board’s docket as timely filed. 8

         Because the Board has not issued a final decision in this case within
  210 days of the date on which the Complainant filed the complaint, and there
  is no showing that the Complainant has acted in bad faith to delay the
  proceedings, the Complainant may bring an action at law or equity for de
  novo review in the appropriate United States district court, which will have
  jurisdiction over the action without regard to the amount in controversy. 9
  Accordingly, because the Complainant has filed a de novo complaint in this
  action in federal district court as provided in 49 U.S.C. § 20109(d)(3) and 29
  C.F.R. § 1982.114, we dismiss this complaint.

                                         CONCLUSION

         Accordingly, Complainant’s Motion for Reconsideration is GRANTED,
  Complainant’s appeal is REINSTATED as timely filed, and given that
  Complainant has filed a de novo complaint in this action in federal district
  court as provided in 49 U.S.C. § 20109(d)(3) and 29 C.F.R. § 1982.114, this
  complaint is DISMISSED.

          SO ORDERED.



  6       See Fed. R. App. P. 26(c).
  7
           If the ALJ’s D. & O. was issued and sent on January 15, 2019, as the copy contained in
  the record indicates, because Complainant filed the petition for review on January 28, 2019, his
  petition for review would also be timely filed within the 14 day time period provided at 29 C.F.R.
  § 1982.110(a).
  8
         As Complainant actually did timely file his petition for review, the decision of the ALJ
  below did not become the final order of the Secretary, as the Board had previously indicated in its
  Order Granting Respondent’s Motion to Dismiss Complainant’s Petition as Untimely issued on
  February 26, 2019.
  9
          49 U.S.C. § 20109(d)(3); 29 C.F.R. § 1982.114.