Ellerbee v. Annett Holdings, Inc. d/b/a TMC Transportation (agency decision, July 3, 2019)

Plain-English summary

Jamel Ellerbee sought Board review of an ALJ decision in his Surface Transportation Assistance Act case. The petition was due May 10, 2019, 14 days after the ALJ decision, but Ellerbee filed it on May 20. He explained delays reviewing his mail, online-filing problems, full-time employment, and the difficulty of proceeding without counsel. The Board found those circumstances ordinary rather than extraordinary, and Ellerbee did not claim that anyone prevented filing or that he timely filed in the wrong forum. It denied equitable tolling, dismissed the petition, and left the ALJ's ruling as the final order.

Decision snapshot

• Cited authority: 29 C.F.R. § 1978.110(a)
• Outcome: Petition for review dismissed as untimely; ALJ decision became the Secretary's final order.
• Key point: Ordinary mail, online-filing, work, and self-representation difficulties did not justify equitable tolling of the 14-day review deadline.

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:

  JAMEL ELLERBEE,                                      ARB CASE NO.      2019-0059

                  COMPLAINANT,                         ALJ CASE NO.      2019-STA-00011

         v.                                            DATE: July 3, 2019

  ANNETT HOLDINGS, INC.
  d/b/a TMC TRANSPORTATION,

                  RESPONDENT.


                   ORDER DISMISSING PETITION FOR REVIEW

         On May 21, 2019, the Administrative Review Board (Board) issued an Order
  to Show Cause in this case requiring Complainant to explain why his petition for
  review should not be dismissed as untimely filed. On May 24, 2019, the Board
  received Complainant’s response, in which he describes delays in reviewing his
  mail, 1 problems filing his petition online, and the difficulties inherent in being a
  self-represented litigant while employed full-time. Complainant makes no assertion
  that Respondent or any other person prevented his timely filing or that
  Complainant had misfiled the petition with another agency. The matters raised by
  Complainant are not extraordinary and are similar to those which confront any self-

  1      In this regard, Complainant asserts that the Decision and Order issued by the ALJ
  was not received by him until May 6, 2019. His petition for review was due four days later
  on May 10, 2019, which was 14 days after the date of the decision by the Administrative
  Law Judge. See 29 C.F.R. § 1978.110(a). Although not applicable to the instant facts, the
  Federal Rules of Appellate Procedure (FRAP) provide that three days are added to filing
  deadlines unless service of the document triggering the filing deadline was effected on the
  same day as stated in the proof of service; this could have extended Complainant’s filing
  deadline to May 13, 2019, had the facts favored Complainant and the Board elected to
  apply the FRAP standard to this matter. All that being noted, Complainant did not file his
  petition until May 20, 2019.



  represented individual attempting to file a petition with this Board. Accordingly,
  the Board declines to apply equitable tolling to extend the filing deadline in this
  matter, and Complainant’s petition for review is hereby DISMISSED as untimely.
  The decision and order of the Administrative Law Judge below, dated April 26,
  2019, is the final order of the Secretary of Labor.

  FOR THE ADMINISTRATIVE REVIEW BOARD:




  William T. Barto
  Chief Administrative Appeals Judge

  Note: Questions regarding any case pending before the Board should be directed to
  the Board’s staff. Telephone: (202) 693-6200, Facsimile: (202) 693-6220