In the

United States Court of Appeals

For the Seventh Circuit

No. 18-1800

MARY MADISON,

Petitioner,

v.

UNITED STATES DEPARTMENT OF

LABOR, ADMINISTRATIVE REVIEW

BOARD,

Respondent.

Petition for Review of an

Order of the United States Department of Labor

No. 2016-FDA-004

ARGUED NOVEMBER 28, 2018 — DECIDED MAY 24,2019

Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.

ROVNER,Circuit Judge. Following her discharge from Kenco

Logistics (“Kenco”), Mary Madison filed a complaint with the

Occupational Safety and Health Administration (“OSHA”)

charging that she was terminated in retaliation for engaging in
2 No. 18-1800

protected activity. OSHA dismissed her complaint, and in a

subsequent de novo proceeding conducted at Madison’s

request, an administrative law judge (“ALJ”) entered a

summary decision against her.Madison asked the Department

of Labor’s Administrative Review Board (“ARB” or the

“Board”) to review the ALJ’s decision, but the Board dismissed

her appeal as untimely. Madison now seeks review in this

court. Finding no error in the Board’s decision as to the

timeliness of Madison’s appeal to the Board, we deny the

petition for review.

I.

Kenco employed Madison as a quality engineer from May

13, 2013 until August 9, 2013, when it discharged her. Kenco

provided warehousing services toMars,Inc., aglobalmanufacturer of candy and other food products. Madison alleges that

her discharge was the culmination of a series of adverse

employment actions the company took against her in retaliation for the food safety concerns she had raised with her

superiors.

Shortly after her termination, Madison filed a complaint

with OSHA under section 402 of the FDA Food Safety Modernization Act (“FSMA”), which in relevant part gives whistleblower protection to employees of firms “engaged in the

manufacture, processing, packing, transporting, distribution,

reception, holding, orimportation of food.” 21U.S.C. § 399d(a);

see also id. § 399d(b)(1) (authorizing employee subject to

retaliation for lawful whistleblowing to file complaint with

Secretary of Labor); Secretary of Labor Order No. 1-2012 (Jan.

18, 2012), 77 Fed. Reg. 3912-01, 2012 WL 194561 (Jan. 25, 2012)
No. 18-1800 3

(delegating authority to receive and investigate such complaints to Assistant Secretary of Laborfor Occupational Safety

and Health); 29 C.F.R. § 1987.105(a) (providing that after

investigation, Assistant Secretary of Labor will enter written

findings as to whether there is reasonable cause to believe

retaliation has occurred and, if so, will issue preliminary order

granting relief to complainant). In February 2016, an OSHA

investigator dismissed Madison’s complaint.

As was her right, Madison requested a de novo hearing

before an ALJ. See 29 C.F.R. § 1987.106(a). Kenco filed a motion

asking the ALJ to enter a summary decision resolving the case

in its favor. After initially denying the motion, the ALJ granted

Kenco’s motion to reconsider and entered a detailed summary

decision in Kenco’s favor. Sep. App. 50–76.1In view of the facts

as to which there was no dispute, the ALJ agreed that Kenco

had legitimate, non-discriminatory reasons forfiring Madison

and indeed would have discharged her regardless of whether

she had engaged in activity protect by the FSMA. The ALJ

issued that order on November 22, 2017. Sep. App. 65–74.

Madison had 14 days from the date of the ALJ’s decision to

petition for discretionary review by the ARB of the ALJ’s

decision against her. 29 C.F.R. § 1987.110(a). A notice of appeal

rights set forth on the final pages of the ALJ’s decision expressly admonished Madison and her counsel of the deadline

1 Citations to “Sep. App.” are to the separate appendix Madison has filed

in support of her petition for review, and citations to “App.” are to the

required appendix appended to her openingbrief. The documents included

in these two appendices incorporate the relevant portions of the administrative record.
4 No. 18-1800

for such a petition. Sep. App. 74. Filing such a petition is a precondition to seeking judicial review of the Secretary’s action.

See id. §§ 1987.109(e), 1987.110(b). Thus, if a timely petition for

review is not filed with the Board, the ALJ’s decision becomes

the final decision of the Secretary on the merits of the case and

is not subject to judicial review. 29 C.F.R. §§ 1987.109(e),

1987.110(b).

A paralegal specialist at the Department of Labor’s Office

of Administrative Law Judges mailed a copy of the ALJ’s

November 22nd decision to Madison’s counsel, Jordan T.

Hoffman, but to Hoffman’s formerratherthan current address.

As of that date, Hoffman had not yet filed a formal change of

address notice with the ALJ’s office—he would subsequently

do so in January 2018—but there is no dispute that the ALJ’s

paralegal nonetheless was in possession of his current address.

The mis-addressed envelope was returned to the ALJ’s office

as undeliverable, as was a copy of the decision that had been

mailed to Kenco itself. On return of the copy sent to attorney

Hoffman, the paralegal re-mailed another copy of the decision

to his correct address on December 1, 2017. She also sent an

email that same day to Kenco’s counsel, Julia P. Argentieri,

noting the return of the copy mailed to Kenco and soliciting the

company’s correct address:

I know the parties already have an electronic decision on the above matter, but we received the hard

copy back for Kenco Logistics.

Could you please provide me with their new address?
No. 18-1800 5

I also received the hard copy back addressed to Mr.

Hoffman (his old address) so I sent another hard

copy to his new address.

Sep. App. 33. Hoffman was copied on that email, but to an

incorrect email address, so he did not receive it. However,

Kenco’s counsel Argentieri promptly responded to the paralegal’s email with a correctly-addressed copy to Hoffman. Sep.

App. 32. As that response included the history, a review of the

email would have disclosed the paralegal’s inquiry and her

reference to a decision having been rendered in the case. We

note, however, that the paralegal’s representation that the

parties “already have” an electronic copy of the decision

appears to have been incorrect. Madison had not consented to

electronic service of the ALJ’s orders,2and the record does not

otherwise indicate that Madison and her counsel had in fact

received electronic copies of the decision.

Hoffman has represented that he did not see this email

exchange until weeks later, after he had already filed Madison’s petition for review with the Board. Why he did not see

the email sooner has not been explained to us.

Hoffman’s office received the second, correctly-addressed

copy of the ALJ’s order on December 6 (the 14th day following

the ALJ’s November 22nd order), and he represents that he

first saw it on December 7. By that time, of course, the period

2 Moreover, a prior order of the ALJ had noted that neither party had

requested or received permission to file documents electronically or via

facsimile, and the ALJ had thus admonished the parties that they should file

all future correspondence with the Office of Administrative Law Judges in

writing. Sep. App. 89.
6 No. 18-1800

for seeking review by the Board had expired. Madison filed her

petition forreview with the Board ten days later, on December

17, 2017. Prior to filing the petition, Hoffman did not file a

motion asking for an extension of time in which to do so, nor

(so far as the record reveals), did he make any other effort to

contact the Board to advise them that he had not received a

copy of the ALJ’s order until December 6.

On receipt of the petition for review, the Board issued an

order directing Madison to show cause why the petition

should not be dismissed as untimely. App. 14. The Board’s

order acknowledged that the 14-day appeals period is not

jurisdictional and was subject to equitable modification; the

order also referred to the four principal situations in which

equitable modification of the time limit might be warranted.

App. 15.

Madison filed a response to the order to show cause in

which she argued that the original service of the ALJ’s order

was defective because it was sent to her counsel at an incorrect

address, and that her appeal should be deemed timely because

it was filed within 14 days of her counsel’s receipt of the

second, correctly-addressed mailing of the ALJ’s order. Sep.

App. 29–30. Madison attached the email correspondence

between the paralegal and Kenco’s counsel indicating that the

first mailing to Hoffman had been returned as undeliverable.

She noted that the ALJ’s office was in possession of Hoffman’s

current mailing address. The response also indicated that

Madison herself had been out of town for an extended period

when the copies of the ALJ’s order were mailed such that she

herself was unaware of the ALJ’s decision. Sep. App. 29–30. 
No. 18-1800 7

On review of Madison’s response to the order to show

cause (and Kenco’s own response), the ARB dismissed her

appeal as untimely. App. 7–10. The Board was not convinced

that Madison had demonstrated the presence of extraordinary

circumstances that warranted exercise oftheBoard’s discretion

to equitably toll the 14-day deadline for her appeal. Extraordinary circumstances, the Board noted, are typically those in

which a timely filing would not have occurred even in the

exercise of due diligence. App. 9. Although the Board acknowledged that Madison’s counsel had not received the mailed

copy of the ALJ’s decision until December 6, it pointed out that

Hoffman had notice by way of the December 1 email exchange

that the ALJ had rendered a decision. At that point, five days

remained of the 14 following the ALJ’s November 22nd

decision, yet Hoffman pursued neither of the two options

available to him at that point in time: filing a petition for

review, or moving for an extension of time in which to do so.

App. 9.

Instead, he unilaterally decided, without consulting

the Board, that (1) Madison was entitled to toll the

due date for filing because the original decision was

sent to the wrong address, and (2) that he had

fourteen days from the date he received the decision, rather than fourteen days from the date the

ALJ issued it, to file the petition. Counsel was

incorrect on both counts. Had Madison’s counsel

contacted the Board and explained the reasons for

requiring an enlargement of time, it is likely that the

Board would have granted that request, but he
8 No. 18-1800

failed to ask for such an enlargement and thereby

has failed to establish due diligence. 

App. 9 (footnote omitted). Although these were Hoffman’s acts

and omissions rather than Madison’s, the Board noted that

attorney error ordinarily does not amount to an extraordinary

circumstance warranting equitable relief, as clients are accountable for the acts and omissions of their lawyers. App. 9. 

Madison asked the Board to reconsiderthe dismissal of her

appeal. Sep. App. 13–16. She noted first that although her

attorney was copied on the December 1 email exchange

between theALJ’sparalegal and Kenco’s counsel, Hoffman did

not actually have knowledge of the ALJ’s decision as of that

date. Sep. App. 13–14. She emphasized that the December 1

email exchange neitherincludedanelectronic copy of the ALJ’s

decision nor discussed the ALJ’s disposition of the case. Thus,

not until Hoffman received the (second) mailed copy of the

decision on December 6 and reviewed it on December 7 could

he have known precisely what the ALJ decided. By that time,

the 14-day window in which to appeal the ALJ’s November

22nd ruling, as well as the time in which to request an extension of time, had expired. “Having received the documents

afterthe expiration ought to be an exceptional circumstance to

qualify for equitable tolling and if not that at least a waiver of

the initial 14 day period,” she argued. Sep. App. 15.

The Board denied reconsideration. App. 1–3. The Board

explained that its refusal to grant Madison the benefit of

equitable tolling was premised not on the notion that Madison’s counsel had actually read the ALJ’s decision on December 1, when he was copied on the email exchange between the
No. 18-1800 9

ALJ’s paralegal and Kenco’s counsel, but rather on the notion

that Hoffman was on notice as of that date that the ALJ had

rendered a decision. 

Having notice that the Administrative Law Judge

had issued “the decision,” an attorney, exercising

the necessary due diligence and knowing of the 14-

day deadline for filing a petition for review, would

not simply have waited around hoping for the

decision to be delivered in time for the filing of a

timely petition. Instead, he would have contacted

the Judge and requested a copy of the decision.

Madison’s counsel failed to do so, and thus, failed to

act with due diligence.

App. 2 (emphasis in original). The Board added that Madison

had failed to address an alternative ground for its decision

(which had been pressed by Kenco and acknowledged in the

Board’s dismissal decision)—namely, that Madison had failed

to file her petition for review within 14 days of the date on

which the ALJ’s clerk had mailed a second copy of the decision

to Hoffman. App. 2. 

II.

Under the Administrative Procedure Act (“APA”), we will

sustain the Board’s decision so long as it is not “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The decision to dismiss

Madison’s intra-agency appeal is one that we will sustain so

long as it is not arbitrary and capricious. See Sparre v. U.S. Dep’t

of Labor, — F.3d —, 2019 WL 2064060, at *2 (7th Cir. May 10,

2019). The scope of ourreview in this regard is narrow, and we
10 No. 18-1800

must not substitute our judgment for that of the agency. F.C.C.

v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S. Ct. 1800,

1810 (2009); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866 (1983);

Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng’rs, 893 F.3d

1017, 1024 (7th Cir. 2018). The agency’s obligation is to examine

the relevant evidence and articulate a satisfactory rationale for

its action that draws a rational connection between the underlying facts and the outcome. Motor Vehicle Mfrs. Ass’n, 463 U.S.

at 43, 103 S. Ct. at 2866. 

As the Board recognized and the government agrees, the

14-day time limit on filing a petition for review with the Board

is not jurisdictional and consequently is subject to equitable

tolling. See Sparre, 2019 WL 2064060, at *3; DOL Br. 16. Whether

or not to grant a litigant the benefit of equitable tolling requires

an agency to weigh intangible factors specific to the individual

case, Johnson v. Mukasey, 546 F.3d 403, 405 (7th Cir. 2008),

abrogated on other grounds by Kucana v. Holder, 558 U.S. 233, 237,

130 S. Ct. 827, 831 (2010), and in accordance with the terms of

the APA, we therefore review the Board’s decision to deny

Madison the benefit of equitable tolling for abuse of discretion.

Sparre, 2019 WL 2064060, at *2; Johnson v. Gonzales, 478 F.3d 795,

799 (7th Cir. 2007).

As relevant here, equitable tolling “pauses the running of,

or‘tolls’ a statute of limitations when a litigant has pursued his

rightsdiligently but some extraordinary circumstanceprevents

him from bringing a timely action.” Lozano v. Montoya Alvarez,

527 U.S. 1, 10, 134 S. Ct. 1224, 1231–32 (2014); see Sparre, 2019

WL 2064060, at *3. It is the burden of the litigant who invokes
No. 18-1800 11

equitable tolling to establish each of these two elements:

diligence in the pursuit of her rights and the existence of an

extraordinary circumstance that nonetheless stood in the way

of her making a timely filing. Menominee Indian Tribe of Wis. v.

United States, 136 S. Ct. 750, 755 (2016) (citing Holland v. Florida,

560 U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010). Where equitable

tolling applies, it applies only so long as the petitioner was

diligently pursuing his rights and extraordinary circumstances

prevented him from making a timely filing; it is that amount of

time which is not counted toward the relevant time limit.

Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015). Given the

compelling showing that is required to successfully invoke

equitable tolling and to show that an agency abused its

discretion, it will be the rare case in which we will find that an

agency’s refusal to equitably toll a time limit was out of

bounds. Johnson v. Gonzales, 478 F.3d at 799. This is not one of

those cases.

We need not decide whether the agency’s mistake in

directing the initial mailing of the ALJ’s decision to counsel’s

former address amounts to an extraordinary circumstance

which stood in the path of Madison’s pursuit of herrights. The

responsibility for that error arguably lay with Hoffman, who

had not (yet) filed a formal change of address notice with the

ALJ’s office. At the same time, there is no dispute that the ALJ’s

paralegal was aware of Hoffman’s new address and indeed

sent the second copy of the ALJ’s decision to that address

without having to be asked to do so, once the original copy

was returned as undeliverable. We may therefore give Madison the benefit of the doubt on this point and assume, solely

for the sake of argument, that the responsibility for the error
12 No. 18-1800

belonged to the ALJ’s office, and that the misdirected mailing

prevented Madison from filing an appeal. Madison had not

consented to electronic service of the ALJ’s orders, so she and

her counsel were depending on service by mail to apprise her

counsel of the ALJ’s decision. Thus, when the first copy of the

ALJ’s decision was mailed to the wrong address, Hoffman was

left in the dark as to the fact that the ALJ had ruled on the

merits of the case and the clock was ticking on his client’s right

to appeal. But even with the benefit of this generous assumption, Madison cannot show that the Board abused its discretion

in refusing to equitably toll the statutory appeals period long

enough to deem her appeal timely. Subsequent events removed any obstacle that arguably may have prevented her

from filing a timely appeal.

As of December 1, the circumstances changed materially,

and not just because the ALJ’s paralegal on that date directed

a second copy of the ALJ’s decision to the correct mailing

address for Hoffman. On that same day, the paralegal sent an

email to counsel for both parties in which she noted, among

other things, that the copies of the decision sent to both Kenco

and Hoffman had been returned and that she had mailed

another copy of the decision to Hoffman’s current address. The

paralegal used an incorrect email address for Hoffman on that

email, but in replying to the paralegal (with history), Kenco’s

counsel, Argentieri, corrected that error so that Hoffman

would see both the paralegal’s email and Argentieri’s reply.

There is no dispute that Hoffman received Argentieri’s email;

and by virtue of that electronic correspondence, Hoffman was

on notice there had been a decision by the ALJ, with time

enough left to take appropriate action in the exercise of
No. 18-1800 13

diligence to preserve Madison’s appellate rights. True, the

email exchange did not reveal what the ALJ had ruled upon or

how the ALJ had ruled. But Hoffman was nonetheless on

notice that a decision had been issued, and by virtue of Kenco’s

pending motion to reconsider the denial of its request for a

summary decision, it was foreseeable to Hoffman that the ALJ

might have granted that motion. As the Board pointed out,

with the benefit of that notice, Hoffman had two options open

to him within the five days remaining in the 14-day appeals

window. He could have (a) requested that the paralegal send

him another copy of the ALJ’s decision by email or fax (as the

record reflects he had done in the past, see Sep. App. 85–86)

and prepared a timely petition for review, or (b) immediately

filed a motion to extend the 14-day time for lodging an appeal

to the Board. In short, the notice provided by the email

exchange removed the obstacle that had prevented Madison

from diligently pursuing her appellate rights.

As we have noted, Hoffman represents that he did not

actually see the December 1 email exchange until weeks later,

after he had already received a copy of the ALJ’s decision in

the mail and filed the (untimely) petition for review on Madison’s behalf. It is not apparent why he did not see the email

sooner; but in any event, this was a matter that was within

Hoffman’s control. Today, courts and agencies routinely

communicate with counsel electronically, and attorneys

likewise communicate with one another via email. Evenwhere,

as here, a party has not consented to electronic service of

agency orders, counsel can foresee that there may be electronic

correspondence from both the agency and opposing counsel in

the course of the case, and he can be expected to check (or have
14 No. 18-1800

someone in his office monitor) his email on a regular basis to

keep abreast of developments in litigation. The record reflects

that Hoffman had previously exchanged emails with the ALJ’s

paralegal regarding a prior order issued in the proceeding.

Sep. App. 85–86. Had he, or someone in his office, checked his

email and looked at the December 1 exchange between the

paralegal and Kenco’s counsel, Hoffman would have known

that there was a need to act. It was therefore entirely reasonable for the Board to rely on December 1 as a point at which

due diligence would have required Hoffman to take affirmative action to obtain a copy of the ALJ’s order and to preserve

his client’s appellate rights. And yet Hoffman took no immediate action to lodge an appeal or request an extension of time.

See Yuan Gao v. Mukasey, 519 F.3d 376, 378 (7th Cir. 2008) (“a

litigant who learns, or had he been diligent would have

learned, all the facts he would need in order to be able to file

his claim while time remained in the limitations period, must

file it beforethe period ends”) (emphasis in original) (collecting

cases).

Even if we were to ignore the December 1 email exchange

altogether, the record still would not support the notion that

Hoffman acted with appropriate diligence. As we have

assumed arguendo, in view of the mis-addressed first mailing,

Madison and Hoffman were prevented from taking action in

pursuit of her appellate rights until such time as the paralegal

sent a second copy of the ALJ’s decision to Hoffman’s current

address. Madison was arguably entitled to equitable tolling of

the 14-day appeals period forthat length of time. But, once the

second copy was mailed to Hoffman’s correct address, there

was no longer an obstacle preventing Hoffman and Madison
No. 18-1800 15

from pursuing her appellate rights. She could be expected to

file an appeal (or a request for extension of time) within the

ensuing 14 days, just as she would have been had the decision

been mailed to the correct address in the first instance. Again,

she did not. Hoffman’s office received the second mailed copy

on December 6 and he saw it on December 7. At that point, he

had another eight days to take action under the tolled appeals

period beginning on December 1. But he took no action during

that time, and waited until December 17, a full ten days later,

to file a notice of appeal. As the Board suggested, it appears

from Madison’s response to the rule to show cause that

Hoffman was operating on the assumption that he had 14 days

to file an appeal commencing on the date he received the mailed

copy of the ALJ’s decision to appeal, rather than the date the

copy was mailed. That was both a misunderstanding of applicable rules and contrary to the notice of appeal rights included in

the ALJ’s decision; and the responsibilityforthat errorlies with

Hoffman (and by extension, Madison) rather than the Department of Labor. See Sparre, 2019 WL 2064060, at *3.

In short, while Madison arguablymayhave been prevented

from doing anything in pursuit of her appellate rights prior to

December 1, the second mailing on that date and the email

correspondence on the same day removed the obstacle. After

that point, Madison’s counsel could be expected in the exercise

of due diligence to take action more quickly than he did.

Timely review of the email would have permitted Hoffman to

obtain quick access to the ALJ’s order and to pursue a timely

appeal. Even granting Madison the benefit of limited equitable

tolling from November 22 to December 1, her counsel still

failed to act with appropriate dispatch. His 10-day delay in
16 No. 18-1800

filing the petition for review after he had received and reviewed the mailed copy of the ALJ’s decision on December 6

is inconsistent with due diligence.

III.

The Board did not abuse its discretion in declining to

equitably toll the appeals deadline so as to deem Madison’s

belated appeal timely, given the lack of due diligence on the

part of her counsel. The decision to dismiss her appeal as

untimely was therefore not arbitrary and capricious. We DENY

the petition for review and AFFIRM the Board’s dismissal of

her intra-agency appeal as untimely.