Sparre v. U.S. Dep't of Labor

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18‐1105, 18‐2348
JOHN E. SPARRE,
Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE
REVIEW BOARD,
Respondent,
and
NORFOLK SOUTHERN RAILWAY CO.,
Intervening Respondent.
____________________
Petitions for Review of
Orders of the United States Department of Labor.
Nos. 2016‐FRS‐00038 & 18‐022
____________________
ARGUED NOVEMBER 28, 2018 — DECIDED MAY 10, 2019
____________________
Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. John Sparre, a locomotive engi‐
neer who previously worked for Norfolk Southern Railway
2 Nos. 18‐1105, 18‐2348
Company, challenges the final orders and judgments entered
in his lawsuit asserting violations of the Federal Railroad
Safety Act, 49 U.S.C. § 20109. This case involves two appeals:
one from the entry of summary judgment by an administra‐
tive law judge (No. 18‐1105), and one from the dismissal of
Sparre’s case by the Administrative Review Board (No.
18‐2348). Because Sparre failed to timely exhaust his adminis‐
trative remedies before appealing to this court, we deny his
petition for review of No. 18‐1105 for lack of jurisdiction. We
affirm the Board’s final decision in No. 18‐2348 on the merits
dismissing Sparre’s appeal.
I.
Sparre began working for Norfolk Southern Railway
Company (“Norfolk”) as a locomotive engineer in 1999. In
March 2010, he reported a safety violation to the Federal Rail‐
road Administration, which resulted in the assessment of an
$8,000 civil penalty against his employer. In November 2014,
Norfolk terminated Sparre for, among other things, exces‐
sively exceeding the speed limit while operating a locomotive.
Sparre then filed a complaint with the Occupational Safety
and Health Administration (“OSHA”) alleging Norfolk fired
him in retaliation for reporting the safety concern in 2010,
which would violate the Federal Railroad Safety Act, 49
U.S.C. § 20109 (“FRSA”). Upon concluding its investigation,
OSHA found Sparre’s complaint had no merit and dismissed
the matter.
Under the FRSA and its implementing regulations, Sparre
requested a hearing on the record before an administrative
law judge. 49 U.S.C. § 20109(d)(2)(A) (citing 49 U.S.C.
§ 42121(b)(2)(A)); 29 C.F.R. § 1982.106(a). The parties engaged
in years‐long, extensive discovery. On November 14, 2017, the
Nos. 18‐1105, 18‐2348 3
ALJ found there were no genuine issues of fact in dispute and
granted Norfolk’s motion for summary decision.1 Specifically,
the ALJ held that Sparre presented no evidence showing
Sparre’s protected activity (reporting the safety violation in
2010) was a contributing factor in Norfolk’s decision to fire
him, or that there was any “temporal proximity” between the
two events. The ALJ’s decision contained instructions to peti‐
tion for review, including the 14‐day timeline, which was
mailed to Sparre and his attorneys that same day.
Thirty days later, on December 14, 2017, Sparre appealed
the ALJ’s entry of summary decision to the Administrative
Review Board. Without waiting for the Board to decide
whether to accept his untimely appeal, Sparre filed a petition
for review of the ALJ’s decision directly with this court, dock‐
eted as No. 18‐1105.
The Secretary of Labor moved to dismiss No. 18‐1105 for
lack of jurisdiction because Sparre failed to timely exhaust his
administrative remedies before appealing directly to this
court. This court declined to take up the case and instead
remanded it to the Board for the limited purpose of ruling on
Sparre’s December 14 petition for review. The Board found
that Sparre’s petition was untimely and he was not entitled to
equitable tolling. See 29 C.F.R. § 1982.110(a). Based on these
findings, the Board issued a final order affirming the ALJ’s
decision and dismissing Sparre’s appeal.
1 In cases before an administrative law judge, the standard for sum‐
mary decision is analogous to the standard developed under Rule 56 of
the Federal Rules of Civil Procedure. Fredrickson v. The Home Depot, U.S.A.,
Inc., ARB No. 07‐100, slip op. at 5 (ARB May 27, 2010).
4 Nos. 18‐1105, 18‐2348
Sparre filed a second appeal—this time, a timely petition
for review of the Board’s decision, docketed with this court as
No. 18‐2348. As a final order of the Secretary, this court has
jurisdiction to review the Board’s decision that Sparre appeals
in No. 18‐2348. 49 U.S.C. § 20109(d)(4); 29 C.F.R. § 1982.112(a).
We address only No. 18‐2348 on appeal.
II.
Judicial review under the Federal Railroad Safety Act is
governed by the standard set forth in the Administrative Pro‐
cedures Act, 5 U.S.C. § 706(2); see Roadway Exp., Inc. v. U.S.
Dept. of Labor, 612 F.3d 660, 664 (7th Cir. 2010). The Board’s
decision to dismiss an appeal as untimely may be set aside
only if arbitrary and capricious, Bensman v. U.S. Forest Serv.,
408 F.3d 945, 963 (7th Cir. 2005), while its decision to deny
equitable tolling is reviewed for abuse of discretion. Lombardo
v. United States, 860 F.3d 547, 551 (7th Cir. 2017) (citations
omitted).
A. Dismissal of Untimely Appeal
An employee alleging retaliation in violation of the FRSA
must exhaust administrative remedies by filing a complaint
with the Secretary within 180 days of the violation. 49 U.S.C.
20109(d)(2)(A)(ii); 29 C.F.R. 1982.103(d). The Secretary dele‐
gates responsibility for investigating retaliation claims to
OSHA, and either party may file objections to OSHA’s deter‐
mination within 30 days and request a hearing on the record
before an ALJ. 49 U.S.C. 42121(b)(2)(A); 29 C.F.R. 1982.106(a).
After the ALJ issues a decision, any party seeking further
review, “including judicial review,” must file a petition for re‐
view with the Board within 14 days. 29 C.F.R. 1982.110(a). If
the Board accepts the case for review, the Board’s order—not
Nos. 18‐1105, 18‐2348 5
the ALJ’s decision—is the final order of the Secretary and is
reviewable in a federal court of appeals. 49 U.S.C. 20109(d)(4).
The arbitrary and capricious standard is a “narrow”
standard of review under which an agency must “examine
the relevant data and articulate a satisfactory explanation for
its action,” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,
513 (2009) (citation omitted), “including a rational connection
between the facts found and the choice made.” Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (citation omitted). In dismissing Sparre’s
appeal, the Board reviewed the above regulatory timeline and
the facts surrounding Sparre’s untimely filing. As the Board
acknowledged, the FRSA and its implementing regulations
require that a petition for review “be filed within 14 days of
the date of the decision of the ALJ.” 29 C.F.R. § 1982.110(a).
The Board noted that 14 days from the date of the ALJ’s deci‐
sion was November 28, 2017. Attached to the ALJ’s decision
were complete instructions for filing a petition for review that
repeated the regulatory 14‐day deadline and cited the govern‐
ing regulatory provisions. Despite the governing regulations
and the ALJ’s decision with directions that a petition for re‐
view be filed by November 28, Sparre did not file his appeal
until December 14, 2017—over two weeks past the filing
deadline.
After reviewing Sparre’s timeline, including his failure to
submit his petition by the required deadline, the Board con‐
cluded: “Pursuant to 29 C.F.R. § 1982.110(a), Sparre’s petition
for review was untimely.” Sparre v. Norfolk S. Ry. Co., ARB No.
18‐022, ord. at 2 (ARB May 31, 2018). The Board articulated,
based on the relevant facts and regulations, its reasons for
finding that Sparre missed the deadline. The Board cabined
6 Nos. 18‐1105, 18‐2348
its analysis to the facts Sparre presented, and matched those
facts to the deadline requirements under the FRSA—the law
under which Sparre chose to sue Norfolk—and its imple‐
menting regulations. In contrasting Sparre’s 30‐day timeline
to the regulatory 14‐day deadline, it was rational for the Board
to conclude that Sparre missed the filing date by 16 days, and
that his appeal was, thus, late. Ultimately, the Board ex‐
plained, as it has many times before in similar cases, that the
deadline simply was not met.
When the Board articulates a satisfactory explanation for
finding an appeal untimely, based on its examination of the
relevant facts and law—as it has here—its decision is neither
arbitrary nor capricious. We agree with the Board’s decision
to dismiss Sparre’s petition as untimely.
B. Denial of Equitable Tolling
The 14‐day period for filing a petition for review under the
FRSA regulations is not jurisdictional and therefore is subject
to equitable tolling. Bohanon v. Grand Trunk W. R.R. Co., ARB
No. 16‐048, slip op. at 3 (ARB Apr. 27, 2016). This court has
held that the doctrine of equitable tolling “creates a defense
to statutes of limitations and other nonjurisdictional filing
deadlines for cases in which, despite due diligence, the plain‐
tiff cannot sue within the statutory deadline … .” Yuan Gao v.
Mukasey, 519 F.3d 376, 377 (7th Cir. 2008). In this circuit,
“[e]quitable tolling is granted sparingly only when extraordi‐
nary circumstances far beyond the litigant’s control pre‐
vented timely filing.” Sidney Hillman Health Ctr. of Rochester v.
Abbott Labs., Inc., 782 F.3d 922, 930 (7th Cir. 2015) (quoting
Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010) (citations
omitted). The plaintiff bears the burden of showing he “dili‐
gently” pursued the claim and “some extraordinary
Nos. 18‐1105, 18‐2348 7
circumstances” prevented him from filing his complaint
within the statute of limitations. Blanche v. United States, 811
F.3d 953, 962 (7th Cir. 2016).
The Board has recognized four principal situations in
which equitable tolling may apply: (1) when the opposing
party has actively misled the movant about the cause of ac‐
tion; (2) when the movant has in some extraordinary way
been prevented from filing his or her appeal before the Board;
(3) when the movant has raised the precise statutory claim in
issue but has done so in the wrong forum; and (4) when the
opposing party’s own acts or omissions have lulled the mo‐
vant into forgoing prompt attempts to vindicate his rights. Bo‐
hanon, ARB No. 16‐048, slip op. at 3 (citation omitted).
Sparre does not argue that Norfolk or the Board actively
misled him on his claims; that his cause of action was raised
in the wrong forum; or that Norfolk distracted him from filing
an appeal. Sparre admits he missed the filing deadline, but
claims he had been prevented in some extraordinary way
from filing his action within the statute of limitations. At‐
tempting to prove extraordinary circumstances existed,
Sparre presented the Board with a “smorgasbord of argu‐
ments”: the ALJ issued the decision too quickly and unan‐
nounced; the Board was confused about the appropriate lim‐
itations period; Sparre’s attorney mistakenly assumed he had
30 days to appeal; he and each of his three attorneys were
traveling or otherwise out of the office; he and his attorneys
had medical issues and were generally “busy with other mat‐
ters”; and neither he nor his attorneys were expecting the ALJ
to issue a final decision during the Thanksgiving holiday. See
Sparre, ARB No. 18‐022, ord. at 4.
8 Nos. 18‐1105, 18‐2348
The Board determined that despite his “laundry list of ex‐
cuses,” id. at 5, Sparre failed to show extraordinary circum‐
stances. As an initial matter, the Board rejected Sparre’s un‐
supported contention that error or neglect on the part of
Sparre and his attorneys constitutes an extraordinary event.
The Board has recognized that parties represented by counsel
are ordinarily not entitled to equitable tolling. See Brown v.
Synovus Fin. Corp., ARB No. 17‐037, slip op. at 3 (ARB May 17,
2017). An attorney practicing before the Board is expected to
familiarize himself with the applicable regulations. Bohanon,
ARB No. 16‐048, slip op. at 3‐4; see also Sysko v. PPL Corp., ARB
No. 06‐138, slip op. at 5 (ARB May 27, 2008) (counsel is “pre‐
sumptively aware of whatever legal recourse may be availa‐
ble to [his or her] client”) (citation omitted). This includes
knowing not only “that there are such things as statutes of
limitations,” but also when they toll. Arteaga v. United States,
711 F.3d 828, 834 (7th Cir. 2013). Sparre gains no benefit from
claiming ignorance of his attorneys’ negligence because
“[u]ltimately, clients are accountable for the acts and omis‐
sions of their attorneys.” Higgins v. Glen Raven Mills, Inc., ARB
No. 05‐143, slip op. at 9 (ARB Sept. 29, 2006); see also Arteaga,
711 F.3d at 835 (extraordinary event for equitable tolling
purposes “cannot be premised on the incompetence of the
plaintiff’s lawyer”).
The Board considered the extent of Sparre’s attorneys’
negligence and noted “it is simply not credible that none of
[Sparre’s attorneys] could have spared the fifteen minutes it
would have taken” to request a time extension for filing.
Sparre, ARB No. 18‐022, ord. at 6. Such “garden variety”
neglect displayed by Sparre’s attorneys fails to meet the ex‐
traordinary standard for tolling the limitations period. Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (Equitable
Nos. 18‐1105, 18‐2348 9
tolling principles do not apply to “what is at best a garden
variety claim of excusable neglect.”); see also Bohanon, ARB
No. 16‐048, slip op. at 3‐4 (rejecting parties’ reliance on
“excusable neglect” to meet extraordinary circumstances
standard in pursuing equitable tolling on FRSA appeal). Even
when taken together, the instances of neglect here (mistakenly
assuming the filing deadline was 30 days instead of 14, miss‐
ing the deadline due to travel, medical reasons, or being
“busy with other matters,” not expecting the ALJ’s decision to
issue over a holiday), are “nothing but ordinary” and do not
add up to an extraordinary circumstance. Carpenter v. Douma,
840 F.3d 867, 872 (7th Cir. 2016) (finding Petitioner’s excuses,
even when combined, did not rise to the level of “extraordi‐
nary” required for equitable tolling because all instances were
“common parts of prison life”); see, e.g., Irwin, 498 U.S. 89
(finding no extraordinary circumstances when Petitioner’s
lawyer missed the filing deadline because he was out of his
office at the time the EEOC notice was received, despite Peti‐
tioner filing within 30 days of the day on which he personally
received notice).
As we review the denial of equitable tolling for an abuse
of discretion, we examine whether the Board’s reasoning was
sound and supported. See Carpenter, 840 F.3d at 870 (quoting
Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013); see also
Simms, 595 F.3d at 781 (lower court’s “reasoning [was] sound”
on abuse of discretion review); Roadway, 612 F.3d at 664 (ARB
decisions upheld if “supported” by evidence that “a reasona‐
ble mind might accept as adequate to support the
conclusion”) (citation omitted). In analyzing whether Sparre
diligently pursued his claims and could show extraordinary
circumstances for equitable tolling, the Board relied on the ev‐
idence that Sparre presented and matched that evidence
10 Nos. 18‐1105, 18‐2348
against the required regulatory timeline under the FRSA. The
Board limited the scope of its analysis to Sparre’s timely filing
and equitable tolling claims, as this court requested. The
Board took into account the extensive and lengthy intra‐
agency appeals process in this case, which spanned three
years of substantial discovery with several depositions,
lengthy mediation, and multiple rounds of briefing. In its final
order, it applied its own existing precedent, as well as binding
decisions of the Supreme Court of the United States and this
circuit. Given its sound and supported reasoning, the Board
did not abuse its discretion in denying Sparre’s request for
equitable tolling. Sparre simply failed to meet the filing dead‐
line and has failed to produce evidence he is entitled to a tim‐
ing extension.
Sparre has not shown that an extraordinary circumstance
existed that would trigger equitable tolling of the filing dead‐
line. For these reasons, we DENY Sparre’s petition for review,
and AFFIRM the Board’s dismissal of his petition.