Id. at 12. Finally, Salsbury contends that tolling the time limitation would not be prejudicial to the VA because the delay did not hamper its defense. Id. at 13.
These arguments are not persuasive. First, Salsbury's reliance on Hibler is misplaced. In that case, the ARB denied review of Exelon's interlocutory appeal of the ALJ's denial of its motion to dismiss because of lack of service. Hibler's request for a hearing was timely filed, and the ARB did not endorse the ALJ's comment that dismissal of Hibler's complaint would be "too harsh" a penalty for his failure to serve Exelon pursuant to 29 C.F.R. § 24.4(d)(3).
Second, Salsbury's reliance on Goldstein is also misplaced because the complainant's hearing request in that case was timely filed, albeit by telegram. A complainant who relies on alternative means for delivery of his hearing request, e.g., by regular mail, assumes the risk that the hearing request may be received beyond the due date, and therefore be untimely. See Backen v. Entergy Operations, Inc., ALJ No. 95-ERA-46, slip op. at 4 (Sec'y June 7, 1996) (complaint dismissed where the hearing request was sent by regular mail in violation of applicable regulations and was untimely); Staskelunas v. Ne. Utils. Co., ARB No. 98-035, ALJ No. 98-ERA-007, slip op. at 2 (ARB May 4, 1998) (complaint dismissed where the hearing request was filed by certified mail in violation of the applicable regulations and was untimely); Crosier v. Westinghouse Hanford Co., ALJ No. 92-CAA-003, slip op. at 10 (Sec'y Jan. 12, 1994) (request for hearing was not timely where it was filed by mailgram, rather than telegram, and received 10 days after the time limit). Thus, Salsbury was charged with the duty of ensuring that his hearing request was properly filed. His "scrivener's error" would not have occurred had he followed the specific directions for filing a request for a hearing by
[Page 9]
facsimile, telegram, or next-day delivery. Having chosen to ignore the plain instructions, Salsbury must bear the consequences of his action.
Third, Salsbury's estoppel argument is factually flawed. OSHA's September 29, 2003 determination letter was sent by certified mail, and Salsbury admitted that he had received notice of a certified letter around October 1, 2003. Regardless of who signed the return receipt, the VA cannot be faulted for Salsbury's failure to take delivery of the determination letter.
Fourth, mere clerical errors do not constitute "extraordinary circumstances" for purposes of equitable tolling. Howlett v. Ne. Utils./Ne. Nuclear Energy Corp., ARB No. 99-044, ALJ No. 99-ERA-001, slip op. at 2 (ARB Mar. 13, 2001). Such circumstances would ordinarily be outside the control of a complainant and the misaddressed envelope was completely within Salsbury's control. See Wakileh v. W. Ky. Univ., ARB No. 04-013, ALJ No. 03-LCA-023, slip op. at 5 (ARB Oct. 20, 2004) (ARB rejected argument that a delay in receiving the determination letter constitutes an extraordinary circumstance that prevented the complainant from timely filing his request for a hearing).
Finally, Salsbury argues that since the VA has not asserted that equitable tolling would prejudice its defense, the time limit should be tolled. To the contrary, the VA did assert in responding to the ARB's show cause order that tolling of the limitations period would place the VA in the position of having to defend stale claims "many years after the fact." Reply to Complainant's Response to Show Cause Order at 5. Further, an absence of prejudice to the other party "is not an independent basis for invoking" the doctrine of equitable tolling and "sanctioning deviations from established procedures." Baldwin County Welcome Ctr., 446 at 152; Santamaria v. U.S. Envtl. Prot. Agency, ARB No. 04-063, ALJ No. 04-ERA-6, slip op. at 4 (ARB May 31, 2006).
In any event, the VA has no burden of proof to show any prejudice to its defense in arguing against tolling. Rather, it is Salsbury's burden to demonstrate his entitlement to equitable tolling. Herchak v. Am. W. Airlines, Inc., ARB No. 03-057, ALJ No. 2002-AIR-12, slip op. at 5 (ARB May 14, 2003). Because Salsbury has failed to meet his burden, equitable tolling will not lie.
The ALJ's sovereign immunity analysis
Prior to dismissing this complaint on procedural grounds, the ALJ provided a lengthy exposition of whether the VA had waived sovereign immunity. He determined that our decision in Pastor v. Veterans Affairs Med. Cent., ARB No. 99-071, ALJ No. 99-ERA-011 (ARB May 30, 2003) applied "narrowly to claims in which only compensatory damages are sought." R. D. & O. at 5-6. The ALJ concluded that because Salsbury sought equitable remedies, the Administrative Procedure Act waived sovereign immunity for Salsbury's claim for reinstatement with back pay. R. D. & O. at 10.
We affirm the ALJ's dismissal of Salsbury's complaint on the untimely filing of his request for a hearing and, therefore, do not need not to determine the issue of waiver
[Page 10]
of sovereign immunity. See Prybys v. Seminole Tribe of Fla., ARB No. 96-064, ALJ No. 95-CAA-096, slip op at 3-4 n.3 (ARB Nov. 27, 1996) (upholding the ALJ's dismissal of a complaint on the basis of timeliness and declining to address the Tribe's argument that sovereign immunity applied). The OSHA determination finding no merit in Salsbury's complaint becomes the final decision of the Department of Labor.
Conclusion
The regulation implementing the ERA requires complainants to file a request for a hearing within five business days of their receipt of OSHA's determination letter. Salsbury did not file his request within the allotted time frame. Further, we find no basis upon which to toll the statute of limitations. Therefore, we DISMISS Salsbury's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 The statute provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee" notified a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refused to engage in a practice made unlawful by the ERA or AEA, testified regarding provisions or proposed provisions of the ERA or AEA, or commenced, caused to be commenced or is about to commence or cause to be commenced, or testified, assisted or participated in a proceeding under the ERA or AEA to carry out the purposes of this chapter or the AEA as amended. 42 U.S.C.A. § 5851(a)(1).
2 On March 7, 2003, Salsbury signed a settlement agreement with the Hines VA hospital, which put him on leave without pay status from August 23, 2002, until September 2003; accepted his resignation effective September 1, 2003; and expunged from his personnel file all disciplinary and removal actions. Salsbury agreed to waive "any and all actions, claims, complaints, grievances, appeals, and proceedings of whatever nature" related to "any conduct or act occurring prior to the execution of this Agreement, against the VA, its officers, and employees…."
3 A copy of the letter was sent to the NRC, Salsbury, and the Office of Administrative Law Judges, which marked it received on October 3, 2003.
4 Higgins v. Glen Raven Mills, Inc., ARB No. 05-143, ALJ No. 05-SDW 007, slip op. at 8 (ARB Sept. 29, 2006), citing School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (internal quotations omitted).
5 Salsbury does not argue that he filed a timely request for a hearing in the wrong forum or that the VA actively misled him. Nor does he contend that he was ignorant of his rights or lacked actual or constructive notice of those rights. Therefore, we need not address these equitable tolling principles. Reid, slip op. at 8.