Henin v. Soo Line Railroad Company d/b/a Canadian Pacific (agency decision, February 26, 2019)

Plain-English summary

Kenneth Henin petitioned for review of a January 11, 2019, ALJ decision in his Federal Rail Safety Act case. The Board initially calculated the 14-day deadline by excluding the decision date, counting weekends and holidays, and making January 25 the due date. Henin filed on January 28 and did not respond to the railroad's motion to dismiss. The Board therefore granted the motion, dismissed the appeal as untimely, and stated that the ALJ decision became the Secretary's final order. This was the Board's ruling on the record then before it.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. § 1982.110
• Outcome: In this February order, the review petition was dismissed as untimely; the Board later reconsidered and reinstated it.
• Key point: The initial calendar calculation omitted additional time later found applicable because the decision had not been delivered on its stated service date.

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. 19-0028

                  COMPLAINANT,                         ALJ CASE NO. 2017-FRS-00011

         v.                                            DATE: February 26, 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 RESPONDENT’S MOTION TO DISMISS
                   COMPLAINANT’S PETITION AS UNTIMELY

         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. Complainant has not responded to the Respondent’s
  motion.

         This case arises under the whistleblower protection provisions of the Federal
  Railroad Safety Act of 1982 (FRSA) and its implementing regulations. 1 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, as the Board has previously noted, in the absence of its
  own rule, the Board has adopted principles employed by federal courts under the Federal
  Rules of Appellate Procedure. 2 Under Rule 26(a)(1) of the Federal Rules of Appellate
  Procedure, in computing a time period when the period is stated in days, as in this case
  under 29 C.F.R. § 1982.110(a), the period will:

         (A)      exclude the day of the event that triggers the period;

         (B)    count every day, including intermediate Saturdays, Sundays, and legal
         holidays; and

         (C)     include the last day of the period, but if the last day is a Saturday, Sunday,
         or legal holiday, the period continues to run until the end of the next day that is
         not a Saturday, Sunday, or legal holiday.

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

          Consequently, under the 14 day time period within which a petition for review of
  an ALJ’s decision must be filed, a petition for review was due on or before January 25,
  2019. Complainant filed the petition for review in this case on January 28, 2019. His
  petition for review was not timely filed. In addition, 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.”

        Accordingly, Respondent’s Motion to Dismiss Complainant’s Petition as
  Untimely is GRANTED and Complainant’s appeal is DISMISSED.


         SO ORDERED.



  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).