Dickerson v. Iteris, Inc. (agency decision, July 28, 2023)

Plain-English summary

Michael Dickerson gave Federal Express his SOX petition on the filing deadline, but the Board received it two days later. The governing rule treats private-carrier delivery as filed upon receipt, unlike a mailed petition, which is filed on its postmark date. During the earlier hearing, however, the administrative judge had told the self-represented complainant that Federal Express pickup by the due date would suffice. The Board found Dickerson's reliance reasonable in these unique circumstances, equitably tolled the deadline, denied the employer's motion to dismiss, accepted the petition, and reestablished briefing. A later Board decision reached the merits and affirmed denial of the complaint.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. §§ 1980.110(a) and 1980.115
• Outcome: Motion to dismiss denied, late petition accepted, and briefing schedule reestablished; the later merits decision affirmed denial of the complaint.
• Key point: Equitable tolling can excuse a two-day private-carrier delay when a self-represented filer reasonably relied on the administrative judge's specific filing instruction.

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:

MICHAEL DICKERSON, ARB CASE NO. 2023-0026

           COMPLAINANT,                      ALJ CASE NO. 2019-SOX-00009
                                             ALJ STEVEN B. BERLIN
     v.
                                             DATE: July 28, 2023

ITERIS, INC.,

           RESPONDENT.

Appearances:

For the Complainant:
Michael Dickerson; pro se; San Juan Capistrano, California

For the Respondent:
Kevin D. Holden, Esq.; Jackson Lewis, P.C.; Richmond, Virginia

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL and WARREN, Administrative Appeals Judges

   ORDER DENYING MOTION TO DISMISS AND REESTABLISHING
                  BRIEFING SCHEDULE

WARREN, Administrative Appeals Judge:

   This case arises under the Sarbanes-Oxley Act of 2002 1 (SOX), as amended,

and its implementing regulations. 2 Complainant, Michael Dickerson (Complainant or Dickerson), filed a complaint alleging that Respondent, Iteris, Inc. (Respondent or Iteris), violated the SOX by terminating his employment. On March 21, 2023, an

1 18 U.S.C. § 1514A.
2 29 C.F.R. Part 1980 (2023).
 2

Administrative Law Judge (ALJ) denied the complaint by issuing a Decision and Order Denying Claim (D. & O.). On April 6, 2023, the Administrative Review Board (Board) received from Complainant a Petition for Review (Petition) of the D. & O.

   On May 17, 2023, Respondent filed a Motion to Dismiss Complainant’s

Petition (Motion). Respondent argues that, on April 4, 2023, Complainant instructed Federal Express, a private carrier, to deliver the Petition in two days; therefore, he knowingly ensured that the ARB would not receive the Petition by the April 4, 2023 deadline set forth in the D. & O. 3 Complainant filed a Response to Respondent’s Motion to Dismiss on May 31, 2023 (Response to the Motion). For the reasons set forth below, we deny Respondent’s Motion and reestablish the briefing schedule.

                                   BACKGROUND

   The D. & O. issued by the ALJ on March 21, 2023, included a “Notice of

Appeal Rights” (Notice) describing the amount of time Complainant was allotted to appeal the D. & O. to the Board. The Notice informed Complainant that, to appeal the D. & O., he was required to file a Petition with the Board “within fourteen (14) days of the date of the administrative law judge’s decision.” 4 The Petition would be considered filed “on the date of its postmark, facsimile transmittal, or e-filing,” 5 but if Complainant filed it “in person, by hand-delivery or other means, it would be considered “filed when the Board receives it.” 6

   Complainant was therefore required to file his Petition with the Board on

April 4, 2023. On that date, Complainant instructed Federal Express, a private carrier, to deliver his Petition to the Board. A delivery by a private carrier is considered delivery “in person, by hand-delivery or other means.” 7 The Board received the Petition on April 6, 2023, two days after the due date.

                                   JURISDICTION

  The Secretary of Labor has delegated to the Board the authority to issue

agency decisions in this matter. 8

3 See Motion at 2.
4 D. & O. at 20.
5 Id. (citing 29 C.F.R. § 1980.110(a)).
6 Id.
7 29 C.F.R. § 1980.110(a).
8 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020). 3

                                   DISCUSSION

   On May 17, 2023, Respondent filed a Motion arguing that, “[b]y instructing

Federal Express to deliver the Petition for Appeal in two days, Dickerson knowingly ensured that the ARB would not receive the petition for appeal by the deadline set forth in the [D. & O.]” 9

   In his Response to the Motion, Complainant asserts that “[t]hroughout this

entire whistleblower claim process, [he] has used the same method (Federal Express) . . . The majority of correspondence was shipped on the last date permitted per the Court order, yet no mention was ever made about the date of physical delivery being considered the ‘filing date.’” 10

  A complainant pursuing an appeal of a whistleblower retaliation claim must

meet certain deadlines. 11 These deadlines apply whether the complainant is represented by counsel or is proceeding pro se. 12 Potential complainants are responsible for determining which deadline applies to their case and for meeting that deadline: “‘[i]gnorance of the law is no excuse’ for missing a filing deadline.” 13

   However, the Board’s filing deadline is not jurisdictional and is therefore

subject to equitable tolling. 14 Accordingly, the Board may accept an untimely petition for review in appropriate circumstances.

   Equitable tolling refers to a set of circumstances equitably excusing the

complainant’s inability to meet a deadline and focuses on, among other things, “plaintiff’s excusable ignorance of the employer’s discriminatory act.” 15 Equitable tolling is a rare and “an extraordinary measure that applies only when plaintiff is

9 Motion at 2.
10 Response to the Motion at 2.
11 29 C.F.R. § 1980.110(a).
12 Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at 6 (ARB June 8, 2023) (citations omitted). 13 Id. (quoting Warner v. Xcel Energy, ARB No. 2008-0112, ALJ No. 2008-ERA-00002, slip op. at 8 (ARB Mar. 29, 2010)). 14 See 29 C.F.R. §§ 1980.110(a), 1980.115; see also Boechler, P.C. v. Comm’r of Internal Revenue, 142 S. Ct. 1493, 1500 n.1 (2022) (equitable tolling is not limited to Article III courts) (citations omitted); Martin, ARB No. 2022-0058, slip op. at 7-9. 15 Hyman v. KD Res., ARB No. 2009-0076, ALJ No. 2009-SOX-00020, slip op. at 6 (ARB Mar. 31, 2010). 4

prevented from filing despite exercising that level of diligence which could reasonably be expected in the circumstances.” 16

   In determining whether the Board should toll a statute of limitations, we

have recognized several principal situations in which a moving party may be entitled to the remedy, including (1) when the movant has raised the precise statutory claim in issue but has done so in the wrong forum; 17 (2) when the movant has in some extraordinary way been prevented from filing; 18 and (3) when the movant has some excusable ignorance of the respondent’s discriminatory act. 19

   The Board has repeatedly stated that the foregoing circumstances are not

exclusive, and a complainant’s inability to satisfy one is not necessarily fatal for his or her untimely appeal. 20 The party requesting tolling bears the burden of establishing circumstances that justify modifying the appeal deadline. 21

   The particular circumstances presented in this case justify equitably tolling

the appeal deadline and accepting Complaint’s untimely Petition. As stated above, Complainant instructed Federal Express to deliver his Petition on the day his appeal was due. However, he failed to account for the two days it would take Federal Express to deliver the Petition to the Board. As a result, he missed the appeal deadline by two days. If Complainant had instead mailed his Petition on April 4, it would have been timely filed even though mail delivery typically would have taken more than two days.

16 Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir. 2004) (citing Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)); see also Blanche v. United States, 811 F.3d 953, 962 (7th Cir. 2016) (internal citation omitted). 17 Hyman, ARB No. 2009-0076, slip op. 6-7 (citing Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981) (articulating situations in which equitable modification may apply under the whistleblower provisions of the Toxic Substances Control Act). 18 Woods v. Boeing-South Carolina, ARB No. 2011-0067, ALJ No. 2011-AIR-00009, slip op. at 8 (ARB Dec. 10, 2012). 19 See Hyman, ARB No. 09-076, slip op. at 6 (citing Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991) (“Equitable tolling focuses on the plaintiff’s excusable ignorance of the employer’s discriminatory act.”). 20 E.g., Mazenko v. Pegasus Aircraft Mgmt., LLC., ARB No. 2021-0032, ALJ No. 2019- AIR-00001, slip op. at 3 (ARB Sept. 7, 2021) (Order Accepting Complainant’s Appeal and Setting Briefing Schedule); Judy v. Covenant Transp., Inc., ARB No. 2021-0015, ALJ No. 2019-STA-00054, slip op. at 4 (ARB Nov. 8, 2021) (citation omitted); Sparre v. Norfolk S. Ry. Co., ARB No. 2018-0022, ALJ No. 2016-FRS-00038, slip op. at 3 (ARB May 31, 2018) (citation omitted). 21 Smith v. Franciscan Physician Network, ARB No. 2022-0065, ALJ No. 2020-ACA- 00004, slip op. at 4 (ARB Jan. 13, 2023) (Order Denying Motion to Dismiss and Reestablishing Briefing Schedule) (citing Mazenko, ARB No. 2021-0032, slip op. at 3). 5

   Here, the record suggests that Complainant had a valid reason for believing

that the date he instructed Federal Express to deliver his Petition met the deadline described in the Notice. As noted, Complainant argues that “[t]hroughout his entire whistleblower claim process, [he] has used the same method (Federal Express) to submit all briefs, responses, rebuttals, etc.” 22 Further, at the hearing on his complaint, Complainant, appearing pro se, informed the ALJ that he was utilizing Federal Express to deliver documents. The ALJ provided Complainant with instructions, indicating that the date upon which Federal Express completed a “pick up” of his brief satisfied the filing deadline:

        JUDGE BERLIN: So, because you won’t have the
        transcript for a few days after you’ve paid for it, I’m going
        to require that the opening brief be filed within 35 days
        after the invoice date. And for this purpose, usually under
        our rules something is not filed until it’s received at our
        office, but I don’t want to have to worry about the mail
        from Virginia or whatever. So, I’m going to use postmark
        dates, or if it’s sent by private service --
        MR. HOLDEN: I’m actually have a runner get it there by
        the end of the day -- I don’t know if you’ve noticed.
        JUDGE BERLIN: Well, if you have an office in San
        Francisco --
        MR. HOLDEN: We do.
        JUDGE BERLIN: -- it’s --
        MR. HOLDEN: -- it’s easier.
        JUDGE BERLIN: -- we do get a lot of things delivered by
        messenger. So, I understand. And then we’ll have a record
        of when it came.
        MR. HOLDEN: In all fairness to Mr. Dickerson, it is, I
        think, more difficult for him to make those same kind of
        arrangements. So, I’m perfectly -- I agree with you, I
        think postmark date -- it’s called the “mailbox rule,” that
        as long as it gets into the mailbox on the filing day -- that
        was the old rule.
        JUDGE BERLIN: It will be viewed as filed --
        MR. DICKERSON: In other words – postmarked --
        JUDGE BERLIN: It will be viewed as filed when it’s
        postmarked. So, if you waited – it’s not quite the mailbox
        rule -- if you’ve waited until the 35th day, go to the post
        office and get it postmarked.
        MR. HOLDEN: Right, right.

22 Response to the Motion at 2.
 6

          MR. DICKERSON: So, I've just been Fed-Exing it.
          JUDGE BERLIN: That’s fine.
          MR. DICKERSON: I always try to beat it --
          JUDGE BERLIN: If they pick it up from you by the 35th
          day.
          MR. DICKERSON: Yeah. 23

This exchange, which occurred near the close of the hearing, indicates that the ALJ told Complainant that the date upon which Federal Express received his brief would be considered a “postmark.” And the Notice informed Complainant that his Petition would be considered filed “on the date of its postmark, facsimile transmittal, or e-filing.” 24

   The ALJ conducted the hearing in this case in October 2019, but did not issue

the D. & O. until March 2023. According to Complainant, he made six attempts “to contact Judge Berlin’s office in the hopes of getting some sort of update on the status of this case to no avail.” 25 When Complainant finally received the D. & O., it was reasonable for him, as a pro se litigant, to rely on the ALJ’s then-most-recent instructions indicating that a document is timely filed when it is submitted to Federal Express on the due date.

  Although the ARB’s Rules of Practice and Procedure are available on the

Board’s website and through other sources, we understand, in the particular circumstances of this case, why Complainant misunderstood the definition of “postmark” and missed the deadline. 26

   This is not a case where Complainant unreasonably delayed filing by months,

weeks, or even days, or otherwise failed to act diligently to preserve his appeal rights. Instead, Complainant understandably, albeit erroneously, relied on his understanding that the “postmark” rule applied to Federal Express, in part based on an exchange with the ALJ regarding same. In the unique circumstances of this case, we conclude that equitable tolling is appropriate.

23 Hearing transcript at 779-81.
24 D. & O. at 20.
25 See Complainant’s September 19, 2022 Letter to the Office of Administrative Law Judges. 26 But cf. Jeanty v. Lily Transp. Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013, slip op. at 12 (ARB May 13, 2020) (stating that although pro se litigants are afforded certain latitudes, they are “not excused from the rules of practice and procedure . . . merely because of [their] pro se status.”). 7

                               CONCLUSION

   Accordingly, we DENY Respondent’s Motion, ACCEPT Complainant’s

Petition, and REESTABLISH the Briefing Schedule as set forth below. To ensure compliance with future deadlines and orders, Complainant is directed to familiarize himself with the ARB’s Rules of Practice and Procedure, 29 C.F.R. Part 26, available at https://www.dol.gov/agencies/arb/resources/rules. Complainant’s failure to comply with the Board’s Rules in the future may result in sanctions, including dismissal of his appeal. The Board encourages Complainant to register with the Board’s Electronic Filing and Service System available at https://efile.dol.gov, and as described in the Board’s April 20, 2023 Notice of Appeal Acceptance, Electronic Filing Requirements, and Briefing Schedule.

                         BRIEFING SCHEDULE

 Complainant filed his Opening Brief on May 17, 2023. Therefore, the

remaining briefing is due to be filed as follows.
• Response Brief: Within 28 calendar days of the date of this Order, the
opposing party may file with the Board a Response Brief in opposition to the
Opening Brief. The Response Brief may not exceed 50 double-spaced pages.

• Reply Brief: Within 14 calendar days from the date of service of a Response
Brief, the petitioner may file with the Board a Reply Brief. The Reply Brief
may not exceed 20 double-spaced pages.

  No additional briefs may be filed without the prior written permission of the

Board, issued by Order.

   SO ORDERED.


                                   __________________________________________
                                   IVEY S. WARREN
                                   Administrative Appeals Judge


                                   ____________________________________
                                   SUSAN HARTHILL
                                   Chief Administrative Appeals Judge


                                   __________________________________________
                                   THOMAS H. BURRELL
                                   Administrative Appeals Judge