Haiducek v. American Airlines, Inc. (agency decision, December 30, 2021)

Plain-English summary

Mark Haiducek filed a late petition asking the Board to review his AIR21 claim against American Airlines. After the Board ordered him to show why the appeal should not be dismissed, he explained that he could not afford outside counsel and needed time to prepare the petition himself. The Board held that this explanation did not fit the recognized grounds for modifying the filing period and was not an extraordinary circumstance that prevented a timely filing. It also noted that Haiducek did not claim ignorance of the deadline and could have filed the petition before obtaining counsel. The Board dismissed the complaint for failure to show good cause for the late appeal.

Decision snapshot

• Cited authority: 49 U.S.C. § 42121
• Outcome: Untimely petition for review dismissed.
• Key point: Difficulty financing counsel does not excuse a late AIR21 petition when the claimant could file first and seek counsel later.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:

MARK HAIDUCEK                                    ARB CASE NO.       2022-0010

             COMPLAINANT,                        ALJ CASE NO.       2020-AIR-00019

      v.                                         DATE: December 30, 2021

AMERICAN AIRLINES, INC.,

             RESPONDENT.

Before: James D. McGinley, Chief Administrative Appeals Judge and
Thomas H. Burrell, Administrative Appeals Judge


                       ORDER DISMISSING COMPLAINT

       PER CURIAM. On November 19, 2021, the Administrative Review Board issued
an Order to Show Cause based on Complainant Mark Haiducek’s petition for review
arising out of his AIR-21 claim.1 Under the terms of the Order, Complainant was to
show cause regarding the reasons why the Board should not dismiss his untimely
petition for review no later than December 20, 2021.

       On December 16, 2021, Complainant filed a response to the order, stating
“[t]he singular fact of my inability to timely file my petition for review in a timely
matter stems from my inability to finance outside counsel to further the appeal
process at which time I had to create the petition pro se. It is for this reason alone
that I was unable to timely file a petition for review.”

       The Board’s Order provided three principal situations in which a modification
to the period of time that a petition for review must be filed may apply.
Complainant’s explanation that he was unable to secure counsel for the appeal
process does not fall under these three principal situations, nor is it an
extraordinary situation that could have prevented him from filing a timely petition

1     49 U.S.C. § 42121, as implemented by the regulations at 29 C.F.R. Part 1979 (2020).
                                       2

for review. Complainant does not contend that he was unaware of the time period for filing a timely petition for review, and filing a timely petition for review would not have prevented Complainant from securing counsel at a later point of the appeal process.

  Accordingly, because Complainant has failed to show good cause as to why

the Board should not dismiss his untimely petition for review, we DISMISS his complaint.

  SO ORDERED.