By letter dated October 9, 1998, the Complainant's counsel requested a hearing before an administrative law judge. (ALJ EX 2) In that letter, counsel attested that although a newly retained employee of his office received the Letter of Determination by certified mail on July 1, 1998, Complainant's counsel did not see it until October 7, 1998 due to the misfiling of the document. (ALJ EX 3) According to the certified mail return receipt, the Complainant received the Letter of Determination by certified mail on June 30, 1998. (ALJ EX 3)

   On October 21, 1998, this Judge issued an Order to Show Cause as to why the appeal should not be dismissed as untimely filed. (ALJ EX 4) The governing regulation provides that

(2) The notice of determination shall include or be accompanied by notice to the complainant and the respondent that any party who desires review of the determination or any part thereof, including judicial review, shall file a request for a hearing with the Chief Administrative Law Judge within five business days of receipt of the determination... If a request for hearing is not timely filed, the notice of determination shall become the final order of the Secretary.

(3) ...A request for a hearing shall be filed with the Chief Administrative Law Judge by facsimile (fax), telegram, hand delivery, or next-day delivery service...

are not to be given narrow hypertechnical readings." See Response, at p. 3. The above-summarized analysis in the Daugherty case, however, was applied to the issue of whether or not the Complainant's filing of an appeal by letter, rather than telegram, was sufficient notice pursuant to the regulation then in effect. In regards to the timeliness issue presented in that case, the ALJ held that complainant timely filed his appeal with the Chief Administrative Law Judge.

   The Administrative Review Board has held that the law is clear that the time limitation period for filing an appeal in a whistleblower action is to be strictly construed unless a complainant can demonstrate the right to avail him or herself of equitable tolling. See Generally Degostin v. Bartlett Nuclear, Inc., 98-ERA-7 (ARB 05/04/98); Staskelunas v. Northeast Utilities Co., 98-ERA-7 (ARB 05/04/98); Backen v. Entergy Operations, Inc., 95-ERA-46 (06/07/96). The principal tolling exceptions, which are demonstrative and not exclusive, are (1) where the employer has concealed or misled the employee; (2) where the employee was prevented from asserting his rights in some extraordinary way; or (3) where the employee raised the precise statutory claim in the wrong forum. Backen, supra, at n. 5 (citing School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3rd Cir. 1981)). See Also Crosier v. Westinghouse Hanford, Co., 92-CAA-3 (Sec'y 01/12/94), recon. denied, (Sec'y 12/08/94). The Secretary has noted that a complainant who received notice late because he was traveling fails to come within any exception, Crosier, supra (Sec'y 01/12/94), and that a complainant who seeks tolling based on ill health must show legal incapacity. Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (Sec'y 09/23/92).

   The Courts and the Secretary have indicated that equitable tolling is not appropriate where an employee was represented by counsel during the limitations period. Keyse v. California Texas Oil Corp., 590 F.2d 45 (2d Cir. 1978); Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978); Hall v. EG&G Defense Materials, Inc., 97-SDW-9 (ARB 09/30/98); McKinney v. Tennessee Valley Auth., 92-ERA-22 (Sec'y 11/16/93); Mitchell v. EG&G, 87-ERA-22 (Sec'y 07/22/93); Tracy v. Consolidated Edison Co., 89-CAA-l (Sec'y 07/08/92). Cf. Miriello v. Carolina Power and Light Co., 87-ERA-17 Decision and Order to Show Cause (Sec'y 01/23/92), Order of Dismissal (Sec'y 03/20/92) (holding complainant did not receive constructive notice through service to her attorney because the ERA requires notice to the complainant and her attorney, see 42 U.S.C. §5851(b)(2)(A), and because there was no attorney client relationship at the time the letter of determination was issued).

   The Respondent, in urging that this case be dismissed because of Complainant's untimely filing of an appeal, relies upon the Supreme Court's decision in the matter of Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 93 (1990), reh'g denied, 498 U.S. 1075 (1991). The plaintiff in Irwin filed a race and physical disability suit; but, although both he and his attorney acknowledged receiving notice of the Equal

Employment Opportunity Commission's final disposition of his claim, neither the plaintiff nor his attorney on his behalf filed a civil action within the thirty days permitted by statute. The Supreme Court denied the request to equitably toll the filing period based on the fact that plaintiff's lawyer was out of the office on travel at the time that the EEOC notice arrived and stated "the principles of equitable tolling...do not extend to what is at best a garden variety claim of excusable neglect." Id. at 96.

   Respondent noted that the Supreme Court's decision in Irwin was cited by an administrative law judge in McKinney v. Tennessee Valley Authority, 92-ERA-22 (ALJ 03/17/92). The Secretary's final order, however, neither relied upon that case as legal precedent, see Final Decision and Order (Sec'y 11/16/93), nor rejected its application to an environmental whistleblower case. The Irwin case, however, was cited in Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y 08/05/92). (case decided pursuant to the commercial trucking employee whistleblower statute). Therefor, this Judge deems Irwin an appropriate precedent to apply to the present claim.

   In this case, both the Complainant and his attorney were sent the Letter of Determination by certified mail. Counsel attested that he received it on July 1, 1998 (ALJ EX 2), and Complainant received it on June 30, 1998. (ALJ EX 3) Neither Complainant nor his attorney timely exercised the right to appeal. The only explanation offered for the Complainant's failure to appeal was that he understood his attorney would respond appropriately to any correspondence. Complainant's attorney, however, did not appeal because his employee misfiled the certified letter. While this is regretful, it is not sufficient grounds to invoke the rarely exercised concept of equitable tolling. As the Second Circuit has opined, lack of due diligence on the part of a complainant or the complainant's attorney is insufficient to justify application of equitable tolling. South v. Saab Cars USA, Inc., 28 F.3d 9 (2d Cir. 1994) (dismissing the complaint where plaintiff's counsel mistakenly relied on state procedure for filing of a federal complaint).

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:jw

NOTICE: This Recommended Order of Dismissal will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).