Accordingly, the Board has recognized three situations in which tolling is proper:
(1) [when] the respondent has actively misled the complainant respecting the cause of action,
(2) the complainant has in some extraordinary way been prevented from asserting his rights, or
(3) the complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.[17 ]
[Page 5]
None of the recognized justifications for tolling apply to this case. OSHA complied with the STAA regulations by informing Smith of its findings, and Smith failed to object to those findings in a timely fashion. Compliance with the governing regulations does not constitute grounds for equitable tolling. The Board therefore affirms the ALJ's decision to dismiss the case against CRST.
Conclusion
Smith requested a hearing on his complaint against CRST more than 30 days after OSHA issued its findings and did not show cause why his request should not be denied as untimely. Smith's complaint against CRST, ALJ No. 2006-STA-31, is therefore DISMISSED.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2008). The STAA has been amended since Smith filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). We need not decide here whether the amendments are applicable to this complaint because even if the amendments applied to this complaint, they are not implicated by the issues presented here and thus would not affect our decision.
2 29 C.F.R. Part 1978 (2007).
3 Complaint at 1-2.
4 Objection at 2.
5 49 U.S.C.A. § 31105 (b)(2)(C); 29 C.F.R. § 1978.109 (c)(1) (2007).
6 Secretary's Order No. 1-2002, (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
7 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 2001-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
8 Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); McDede v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 2003-STA-012, slip op. at 3 (ARB Feb. 27, 2004).
9 5 U.S.C.A. § 557(b) (West 2004).
10 Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos. 2001-STA-022, -029, slip op. at 2 (ARB Oct. 31, 2003).
11 29 C.F.R. § 1978.105(a).
12 29 C.F.R. § 1978.105(b)(2).
13 Complainant's Brief at 6.
14 See 29 C.F.R. § 1978.104(b) ("The findings and the preliminary order shall be sent by certified mail, return receipt requested, to all parties of record. The letter accompanying the findings and order shall inform the parties of the right to object to the findings and/or the order and shall give the address of the Chief Administrative Law Judge.").
15 Complainant's Brief at 13.
16 Howell v. PPL Servs., Inc., ARB No. 05-094, ALJ No. 2005-ERA-014, slip op. at 4 (Feb. 28, 2007).
17 Bedwell v. Spirit-Miller NE, LLC, ARB No. 07-038, ALJ No. 2007-STA-006, slip op. at 4 (ARB Oct. 31, 2007), citing School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981) (citations omitted).