### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18

‐ 1105, 18

‐ 2348

J OHN E. S PARRE

,

Petitioner

,

v.

U NITED S TATES D EPARTMENT OF L ABOR

, A DMINISTRATIVE

R EVIEW B OARD

, Respondent,

and

N ORFOLK S OUTHERN R AILWAY C O

., Intervening Respondent.

____________________

Petitions for Review of

Orders of the United States Department of Labor.

Nos. 2016

‐ FRS

‐ 00038 & 18

‐ 022

____________________

A RGUED N OVEMBER 28, 2018

— D ECIDED M AY 10, 2019

____________________

Before R OVNER

, H AMILTON

, and B RENNAN

, Circuit Judges

.

B RENNAN

, Circuit Judge

. John Sparre, a locomotive engi

‐

neer who previously worked for Norfolk Southern Railway2 Nos. 18

‐ 1105, 18

‐ 2348

Company, challenges the fi nal 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

a ffi rm the Board’s fi nal 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 fi led a complaint with the Occupational Safety

and Health Administration (“OSHA”) alleging Norfolk fi red

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 ma tt er.

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, theNos. 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 Speci fi cally,

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 fi re

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 a tt orneys 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 fi led 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

fi ndings, the Board issued a fi nal order a ffi rming 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 fi led 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 fi nal 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

omi tt ed).

A. Dismissal of Untimely Appeal

An employee alleging retaliation in violation of the FRSA

must exhaust administrative remedies by fi ling 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 fi le 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 fi le 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—notNos. 18

‐ 1105, 18

‐ 2348 5

the ALJ’s decision—is the fi nal 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 omi tt ed), “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 omi tt ed). In dismissing Sparre’s

appeal, the Board reviewed the above regulatory timeline and

the facts surrounding Sparre’s untimely fi ling. As the Board

acknowledged, the FRSA and its implementing regulations

require that a petition for review “be fi led 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. A tt ached to the ALJ’s decision

were complete instructions for fi ling 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 fi led by November 28, Sparre did not fi le his appeal

until December 14, 2017—over two weeks past the fi ling

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

fi nding that Sparre missed the deadline. The Board cabined6 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 fi ling 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

fi nding 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 fi ling 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 fi ling

deadlines for cases in which, despite due diligence, the plain

‐

ti ff 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 fi ling.” Sidney Hillman Health Ctr. of Rochester v.

Abbo tt Labs.

, Inc., 782 F.3d 922, 930 (7th Cir. 2015) (quoting

Simms v. Acevedo

, 595 F.3d 774, 781 (7th Cir. 2010) (citations

omi tt ed). The plainti ff bears the burden of showing he “dili

‐ gently” pursued the claim and “some extraordinaryNos. 18

‐ 1105, 18

‐ 2348 7

circumstances” prevented him from fi ling 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 fi ling 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 a tt empts to vindicate his rights. Bo

‐

hanon

, ARB No. 16

‐ 048, slip op. at 3 (citation omi tt ed).

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 fi ling

an appeal. Sparre admits he missed the fi ling deadline, but

claims he had been prevented in some extraordinary way

from fi ling 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 a tt orney mistakenly assumed he had

30 days to appeal; he and each of his three a tt orneys were

traveling or otherwise out of the o ffi ce; he and his a tt orneys

had medical issues and were generally “busy with other mat

‐

ters”; and neither he nor his a tt orneys were expecting the ALJ

to issue a fi nal 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 ma tt er, the Board rejected Sparre’s un

‐ supported contention that error or neglect on the part of

Sparre and his a tt orneys 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 a tt orney 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 omi tt ed). 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 bene fi t from

claiming ignorance of his a tt orneys’ negligence because

“[u]ltimately, clients are accountable for the acts and omis

‐

sions of their a tt orneys.” 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

plainti ff ’s lawyer”).

The Board considered the extent of Sparre’s a tt orneys’

negligence and noted “it is simply not credible that none of

[Sparre’s a tt orneys] could have spared the fi fteen minutes it

would have taken” to request a time extension for fi ling.

Sparre

, ARB No. 18

‐ 022, ord. at 6. Such “garden variety”

neglect displayed by Sparre’s a tt orneys fails to meet the ex

‐ traordinary standard for tolling the limitations period. Irwin

v. Dep’t of Veterans A ff

airs

, 498 U.S. 89, 96 (1990) (EquitableNos. 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 fi ling deadline was 30 days instead of 14, miss

‐ ing the deadline due to travel, medical reasons, or being

“busy with other ma tt ers,” 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) ( fi nding 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

( fi nding no extraordinary circumstances when Petitioner’s

lawyer missed the fi ling deadline because he was out of his

o ffi ce at the time the EEOC notice was received, despite Peti

‐

tioner fi ling 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 omi tt ed). 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 evidence10 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 fi ling

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 brie fi ng. In its fi nal

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 fi ling 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 fi ling dead

‐

line. For these reasons, we DENY Sparre’s petition for review,

and AFFIRM the Board’s dismissal of his petition.