United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 17, 2021*

Decided August 18, 2021 

Before

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 21-1140 

GENE KATZ,

Petitioner, 

v. 

UNITED STATES DEPARTMENT OF 

LABOR, ADMINISTRATIVE REVIEW 

BOARD, 

Respondent, 

and, 

UL LLC,

Intervening Respondent.

Petition for Review of an Order of the 

United States Department of Labor. 

No. 2021-0006 

O R D E R

Gene Katz believes his former employer, intervening respondent UL LLC, fired 

him for blowing the whistle on its alleged illegal business practices. He filed a 

complaint under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A, with the 

* We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 21-1140 Page 2 

Department of Labor’s Occupational Safety and Health Administration (OSHA), which 

found that UL LLC was not covered by the Act and dismissed Katz’s complaint. After 

that finding was upheld by an administrative law judge, Katz asked the Department of 

Labor’s Administrative Review Board to review the decision, but the Board dismissed 

his appeal as untimely. Finding no error in the Board’s decision as to the timeliness of 

Katz’s administrative appeal, we deny his petition for review.

Katz began working for UL LLC in January 2017, but he soon became concerned 

about illegal activity, including monopolistic pricing, foreign corruption, and breaches

of fiduciary duty. He reported those concerns internally and to the government. 

UL LLC terminated his employment in January 2018. 

Believing UL LLC had retaliated against him for protected activity, Katz filed a 

complaint with OSHA under the Sarbanes-Oxley Act, which protects whistleblowers

employed by public companies (and their contractors and subcontractors) who expose 

certain types of corporate wrongdoing. See 18 U.S.C. § 1514A; Lawson v. FMR LLC, 

571 U.S. 429, 432–33 (2014). OSHA determined that UL LLC, a private company, was 

not a covered employer, so the Act did not protect Katz. 

Katz appealed to an ALJ, but the ALJ agreed with OSHA and dismissed Katz’s 

petition. The decision, issued September 30, 2020, included a notice of appeal rights

informing Katz that he had 14 days from the date of the decision to petition the 

Administrative Review Board for review. See 29 C.F.R. § 1980.110(a). The decision also 

contained a service sheet certifying that the decision was served on Katz that same day 

via the email address he had used throughout the proceedings. 

According to Katz, he did not receive the email, and he did not learn that his case 

had been dismissed until after the 14-day appeal period had expired. On October 6, 

Katz asked the ALJ to lift a stay on discovery. On October 15, the ALJ replied that she 

no longer had jurisdiction over the case because she had dismissed it. Six days later—21 

days after the ALJ’s dismissal—Katz filed a petition for review with the Board.

UL LLC filed a motion to dismiss the petition as untimely, which the Board 

granted. The Board concluded Katz had not filed the petition within the 14-day window 

or shown that he was entitled to equitable tolling. It reasoned that Katz’s explanation 

for his tardiness—someone “mysteriously kept” the ALJ’s decision from his email

inbox—did not establish extraordinary circumstances that prevented him from timely 

filing because the certificate of service confirmed that the ALJ sent the document to the 
No. 21-1140 Page 3 

correct email address. Katz also had not shown diligence in pursuing his appellate 

rights. The ALJ’s decision was publicly available online, so Katz could have obtained a 

copy by monitoring the website. And, even after receiving the ALJ’s reply to his 

discovery request, alerting him to the dismissal, Katz waited six days before appealing. 

Katz timely petitioned for review in this court. We will uphold the Board’s 

decision so long as it was not arbitrary, capricious, or contrary to law. See Madison 

v. U.S. Dep't of Lab., 924 F.3d 941, 946 (7th Cir. 2019) (citing 5 U.S.C. § 706(2)(A)). We do 

not substitute our judgment for the agency’s; we ask only whether the agency 

“examine[d] the relevant evidence and articulate[d] a satisfactory rationale.” Id.

Katz first argues that his petition for review was timely because he filed it within 

14 business days of the ALJ’s decision. This argument is a non-starter. Katz relies on a 

Board decision that references an outdated version of the applicable regulations, which 

contained an appeal deadline of 10 business days. See Dampeer v. Jacobs Eng’g Grp., Inc., 

No. 12-006, 2011 WL 7142058, at *1 (ARB Dec. 5, 2011). OSHA changed the deadline 

from 10 business days to 14 days in 2015, explaining that the new version was 

consistent with deadlines for other types of filings, “which are also expressed in days 

rather than business days.” See Procedures for the Handling of Retaliation Complaints 

Under Section 806 of the Sarbanes-Oxley Act of 2002, as Amended, 80 Fed. Reg.

11865-02, 11875 (Mar. 5, 2015). The Board appropriately applied the current regulations, 

see 29 C.F.R. § 1980.110(a) (2020), and correctly concluded that Katz’s petition was late.

Citing Henrich v. Ecolab, Inc., No. 05-030, 2007 WL 1578490, at *3 (ARB May 30, 

2007), Katz also argues that the Board should have accepted his petition given his pro se 

status because he filed it within a “reasonable time.” But Henrich involved the 

timeliness of a motion to reconsider, not a petition for review, and the Board explained 

that it could consider such motions filed within a “reasonable time” because “statutory 

or regulatory authority [was] not to the contrary.” Id. at *3. Here, regulatory authority

specifies that petitions for review must be filed within 14 days. 29 C.F.R. § 1980.110(a).

Next, Katz argues that the Board should have granted him the benefit of 

equitable tolling. Because the 14-day appeal deadline is not jurisdictional, the Board can 

“pause” the running of a statute of limitations if a litigant proves that he diligently 

pursued his appellate rights but “extraordinary circumstances” outside his control 

prevented him from filing a timely appeal. Xanthopoulos v. U.S. Dep't of Lab., 991 F.3d 

823, 831–32 (7th Cir. 2021). We review the Board’s decision to deny Katz the benefit of 

equitable tolling for abuse of discretion. Madison, 924 F.3d at 946. 
No. 21-1140 Page 4 

In his opening brief, Katz asserts three reasons why his case presents

extraordinary circumstances. First, he continues to press that he did not receive the 

ALJ’s order by email on September 30 and now urges that the ALJ should have served 

the order by mail. Next, he says the October 6 letter about reopening discovery should 

have alerted the ALJ and UL LLC’s counsel that he had not received the decision, so

they should have informed him of it sooner than the ALJ’s October 15 response. Finally, 

Katz argues the letter could be seen as an improperly executed attempt to appeal. 

The Board did not abuse its discretion. As the Board reasonably articulated, no 

evidence contradicts the ALJ’s certification that the decision was served on the day it 

was issued to the email address that Katz used throughout the proceeding. Agency 

regulations authorize service by email, see 29 C.F.R. § 18.30(a)(2)(ii)(E), and as of 

April 2020, the Department of Labor announced that, in response to the COVID-19 

pandemic, it would not serve decisions by mail if the parties had email addresses on 

file, as Katz did. U.S. DEP’T OF LAB., OFFICE OF ADMIN. LAW JUDGES, Implementation of

Electronic Service During COVID-19 Pandemic, 2020-MIS-00007 (Apr. 16, 2020), 

https://www.dol.gov/agencies/oalj/COVID_19_AND_HEARINGS. Still, parties are 

expected to monitor their emails even when service by mail is required, see Madison, 

924 F.3d at 948, and Katz’s vague suggestion that someone must have prevented the 

email from reaching his inbox lacks both credibility and support. Indeed, Katz regularly 

corresponded with the court via email during this time without incident.

Further, while Katz contends that UL LLC “misled” him by failing to tell him 

that the ALJ had dismissed the case after he filed his October 6 letter, inaction is not 

deception. Neither opposing counsel nor the ALJ was under any obligation to inform

Katz of a decision that, as far as they knew, already was sent to his email. See Sparre v. 

U.S. Dep't of Lab., Admin. Rev. Bd., 924 F.3d 398, 403 (7th Cir. 2019) (noting that equitable 

tolling may be warranted where movant was “actively misled”).

Finally, Katz never argued to the Board that his October 6 letter should be 

construed as a petition for review, so the Board did not abuse its discretion by failing to 

do so. Even if he had, agency regulations require that, in their petitions for review, 

parties identify “the legal conclusions or orders to which they object, or the objections 

may be deemed waived.” 29 C.F.R. § 1980.110(a). The letter made no mention of the 

basis for the ALJ’s dismissal—that UL LLC was not a covered employer.
No. 21-1140 Page 5 

For the first time in his reply brief, Katz asserts that the COVID-19 pandemic 

posed an extraordinary circumstance warranting equitable tolling. He waived this 

argument twice over by failing to raise it before the Board or in his opening brief in this 

court. See Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 982–83 (7th Cir. 2016); Wonsey v. 

City of Chicago, 940 F.3d 394, 398–99 (7th Cir. 2019). And, regardless, he does not explain 

why the pandemic prevented him from filing a timely appeal, given that he filed other 

documents electronically without incident around the same time. 

Katz also argues that he exercised due diligence in pursuing his appeal, but the 

Board adequately supported its contrary finding. It noted that, even assuming Katz’s 

story about the missing email was true, he did not act immediately when he learned of 

the decision from the court’s October 15 letter, but rather waited six days to appeal. The 

Board had discretion to conclude that delay showed Katz was insufficiently diligent.

See Madison, 924 F.3d at 949 (concluding that a 10-day delay in filing petition for review

after receiving ALJ decision was “inconsistent with due diligence”).

 Katz next contends that the Board procedurally erred by allowing UL LLC to 

move to dismiss despite issuing a scheduling order saying the parties needed 

permission to file additional briefs and denying him an opportunity to respond to the 

motion. But the scheduling order permitted the parties to file motions. And Katz chose 

to file an opening brief instead of a direct response to UL LLC’s motion; he addressed

the timeliness arguments in his brief’s jurisdictional statement. The Board considered 

Katz’s arguments about the missing email, but it simply did not agree that they showed 

Katz deserved equitable tolling. 

Finally, Katz raises arguments about UL LLC’s supposedly fraudulent conduct 

throughout the litigation. But even if we accepted Katz’s wholly unsupported 

allegations, none of them suggest that UL LLC interfered with his ability to file a timely 

appeal. Therefore, these arguments have no bearing on this appeal.

For these reasons, we DENY Katz’s petition for review and AFFIRM the Board’s 

dismissal of his petition.