ARB CASE NO. 03-057
ALJ CASE NO. 02-AIR-12
DATE: May 14, 2003
In the Matter of:
SAM HERCHAK,
COMPLAINANT,
v.
AMERICA WEST AIRLINES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
James W. Howard, Esq., Joshua D. Moya, Esq., Meyers, Taber & Meyers, P.C., Phoenix, Arizona
For the Respondent:
Richard S. Cohen, Esq., Stephanie M. Cerasano, Esq., Lewis and Roca LLP, Phoenix, Arizona
FINAL DECISION AND ORDER
DISMISSING PETITION FOR REVIEW
Background
This case arose when the complainant, Sam Herchak, filed a complaint under the employee protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C.A. § 42121 (West 1997)(Cum. Ann. P. P. 2002), alleging that his employer, America West Airlines, Inc. (America West), retaliated against him because he communicated safety and regulatory concerns both to America West and to the Federal Aviation Administration. An Occupational Safety and Health Administration (OSHA) investigation determined that the complaint had merit. America West filed a request for a hearing by a Department of Labor Administrative Law Judge (ALJ).
After a hearing and post-hearing briefs, the ALJ concluded that the disciplinary actions of which Herchak complained were the result of his history of communication problems and confrontations with others and not of any protected activity on his part. Herchak v. America West Airlines, Inc., 2002-AIR-12 (ALJ Jan. 27, 2003).
[Page 2]
The ALJ issued his Decision and Order Denying Relief (D. & O.) on January 27, 2003. Pursuant to the applicable regulations:
The decision of the administrative law judge shall become the final order of the Secretary unless, pursuant to this section, a petition for review is timely filed with the Administrative Review Board . . .. Any party desiring to seek review, including judicial review, of a decision of the administrative law judge must file a written petition for review with the Board, which has been delegated the authority to act for the Secretary and issue final decisions under this part. To be effective, a petition must be received within 15 days of the date of the decision of the administrative law judge.
Accordingly, finding that Herchak did not timely file the petition and finding no grounds justifying equitable tolling of the limitations period, we DISMISS Herchak's petition for review.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 On April 1, 2002, OSHA published the interim final rules applicable to this case. 67 Fed. Reg. 15454. OSHA subsequently filed final rules effective March 21, 2003. These rules provide that a petition for review must be filed within ten business days of the date of the administrative law judge's decision, however, "the date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt." 29 C.F.R. § 1979.110, 68 Fed. Reg. 14100 (March 21, 2003). It is not necessary for the Board to determine whether Herchak's petition for review would have been timely under the amended regulations, and furthermore, Herchak has neither argued that the amended regulations are applicable to this case, nor that his petition would be timely thereunder.
2 See29 C.F.R. § 24.1(a) for a list of these statutes.
3 In the environmental whistleblower cases this period is ten business days. 29 C.F.R. § 24.8(a).
4 Of course, if Herchak believed that he had 20 days from receipt to file his petition, he may not have been unduly concerned whether Airborne delivered the package on February 11th. However, as America West points out, the attempt to send the petition overnight on February 10th, the 14th day, does strongly suggest that Herchak was aware that his petition was due on February 11th and that his argument that the petition was timely filed was simply a post hoc rationalization for his failure to file the petition in accordance with 29 C.F.R. § 1979.110(a).
5 The Court did note, however, "[I]f an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice." 370 U.S. at 634 n.10.