R. D. & O. at 19.

   Linda Gass has filed a "Protective Petition for Review" with the Administrative Review Board from the ALJ's November 20, 2002 R. D. & O. The Board received the Protective Petition for Review by facsimile transmission on December 18, 2002. Counsel for Gass "notes" in the Petition, "[Complainant] did not receive the ALJ's decision until ten days ago [December 8, 2002] due to complications associated with USPS forwarding of mail and delivery of it to her by the management at her new address."

   On December 23, 2003, the ALJ issued a Notice of Referral to Administrative Review Board – Complainant's December 20, 2002 Telefax Response. In the Notice the ALJ stated:

On November 20, 2002, the [R. D. & O.] was mailed to the named parties and their counsel at the last known addresses. Specifically, a copy was sent to Mr. Slavin in Saint Augustine and Ms. Gass in Jacksonville, Florida. On December 20, 2002, by telefax, I received notice from the complainant, Ms. Gass, that her attorney, Mr. Slavin, intended to file and request a stay of the Recommended Decision and Order, pending resolution of another case involving Ms. Gass (200CAA22) that is pending before Administrative Law Judge Michael Lesniak. … Additionally, Ms. Gass explained that she had problems communicating with her counsel and receiving mail and messages at her new address in Jacksonville, Florida (which is the same address that appears on the Recommended Decision and Order service sheet). In closing Ms. Gass states "I am within 10 days of notification of this decision."

A copy of the Telefax from Gass was attached to the ALJ's Notice.

   The regulations establishing the deadline for filing a timely petition for review provide:

Any party desiring to seek review, including judicial review, of a recommended decision of the administrative law judge shall file a petition for review with the Administrative Review Board ("the Board"), which has been delegated the authority to act for the Secretary and issue final decisions under this part. To be effective, such a petition must be received within ten business days of the date of the recommended decision of the administrative law judge, and shall be served on all parties and on the Chief Administrative Law Judge.

29 C.F.R. § 24.8(a). As provided in the regulations, to be effective, the Board must have received Gass's petition for review no later than December 5, 2002. On January 6, 2003, LMES filed a Response to Complainant's Untimely Petition for Review. Lockheed averred:

On its face, the Complainant's Petition must fail, as it both shows appropriate delivery of the Administrative Law Judge's Recommended Decision, and fails to assert a factual basis for the untimely filing. Initially, it must be noted that the service sheet for the Recommended Decision shows Service of Process on counsel for the Complainant at the same address as used by him on the face of the Petition for Review. … Further, the Petition does not even allege that the address shown in the Service Sheet for the Recommended Decision for the Complainant is incorrect, and certainly makes no assertions under oath of any failure of delivery, etc. The fact that an extra copy, sent as a courtesy to the Complainant, was not received by her is immaterial; the same was received by her attorney of record, and the time for review has passed.

Response of Lockheed Martin Energy Systems, Inc., to Complainant's Untimely Petition for Review at 2.

   On January 10, 2003, the Board ordered Gass to show cause no later than January 24, 2003, why the Board should not dismiss the appeal because Gass has failed to file a timely petition for review. The Board permitted the Respondents to file a response no later than February 7, 2003.

   Gass failed to file a timely response to the Show Cause Order. On January 29, Gass filed by facsimile, Complainant's Response to Show Cause Order, Motion to File Instanter, and Motion to File a Supplemental Brief. Gass stated, "The January 10, 2003 Order to Show Cause was received here by fax this morning from ARB, and leave is requested to file instanter, and to file a supplemental brief." Gass stated once again that her receipt of the R. D. & O. was "delayed through no fault of her own due to mail problems at her new residence. Ms. Gass did not receive the ALJ's RDO until December 8 due to complications associated with USPS forwarding of mail and delivery of it to her by the management at her new address." Finally, Gass concluded, "[I]f a declaration is required, leave is requested to get in touch with Ms. Gass after counsel's return from an out-of-town EEOC trial that commences tomorrow. Leave is requested to file a supplemental brief on the timeliness issue phrased by ARB." Complainant's Response to Show Cause Order, Motion to File Instanter, and Motion to File a Supplemental Brief at 1.

   LMES replied to Gass's untimely response to the Board's Order to Show Cause, stating that it adopted its original response to the untimely petition and further noting, "Complainant continues to refuse to file documents within the time required by regulation or Order, and offers no excuse for that failure." Reply of Lockheed Martin Energy Systems, Inc., to Complainant's Response to Show Cause Order at 1.

   On February 11, 2003, the Board issued a second Show Cause Order, ordering Gass "to show cause no later than February 24, 2003, why her case should not be dismissed for her failure to timely reply to the Board's January 10, 2003 show cause order." Gass responded by facsimile on February 24, that her counsel was ill with the flu and had no recollection of seeing the Order to Show Cause until January 29, 2003, when he received a telephone call and facsimile copy of the Order from the Board. Attached to the response was Declaration from Nahum Litt stating that he spoke to Gass's counsel several times a day between January 15th and the 22nd and that he could tell that he was ill. While Gass reiterated her argument that her initial failure to timely file was not her fault, she did not dispute LMES's contention that even if Gass did not timely receive the R. D. & O., there is no indication that her counsel did not timely receive the R. D. & O. Complainant's Response to February 11 Show Cause Order, Motion to File Instanter, and Motion to File Supplemental Brief at 1.

   LMES, in its reply to Gass's response, reiterated its earlier contentions that neither Gass's explanation of her failure to timely file a petition for review or to respond to the Board's initial show cause order were sufficient. Response of Lockheed Martin Energy Systems, Inc., to Complainant's Response of February 24, 2003.

   Gass subsequently filed Complainant's Further Response to February 11 Show Cause Order and Motion to Take Notice of Animus. Gass noted that the Board had been unable to locate any USPS return receipt card for the January 10, 2003 Order to Show Cause and that this failure, "proves the veracity of Ms. Gass' response." Gass also asked the Board to take judicial notice of LMES's "animus in its February 28, 2003 filing." Complainant's Further Response to February 11 Show Cause Order and Motion to Take Notice of Animus at 1.

   DOE replied that Gass had failed to establish why her untimely filings should be tolled under the principles of equitable tolling which the Board applies in determining whether to excuse untimely filing. DOE argued that even if it were true that the Board could not locate the certified mail receipt, "it is of no consequence, as the ARB's certificate of service indicates that the show cause order was mailed to complainant's attorney's proper address on January 10, 2003, and also to Complainant's proper address on that same date." Respondents' United States Department of Energy, et al. Response to Complainant's reply to the Administrative Review Board's Order to Show Cause at 4 n.3.

   The regulation establishing a ten-day limitations period for filing a petition for review under the environmental whistleblower acts at issue here is an internal procedural rule adopted to expedite the administrative resolution of cases. 29 C.F.R. § 24.1(b)(2003). Accord Hemingway v. Northeast Utilities, ARB No. 00-074, ALJ Nos. 99-ERA-014, 015, slip op. at 3 (ARB Aug. 31, 2000); Gutierrez v. Regents of the University of California, ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 3 (ARB Nov. 8, 1999). Because this procedural regulation does not confer important procedural benefits upon individuals or other third parties outside the ARB, it is within the ARB's discretion, under the proper circumstances, to accept an untimely-filed petition for review. Gutierrez v. Regents of the Univ. of Cal., ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 3; Duncan v. Sacramento Metro. Air Quality Mgmt. Dist., ARB No. 99-01, ALJ No. 97-CAA-121 (ARB Sept. 1, 1999). Accord American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970).

   The Board is guided by the principles of equitable tolling that courts have applied to cases with statutorily-mandated filing deadlines. Hemingway v. Northeast Utilities, ARB No. 00-074, ALJ Nos. 99-ERA-014, 015, slip op. at 4; Gutierrez v. Regents of the Univ. of Cal., ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 2. In School Dist. of the City of Allentown v. Marshall, 657 F.2d 16, 18 (3d Cir. 1981), the court held that a statutory provision of the Toxic Substances Control Act, 15 U.S.C. § 2622(b)(1976 & Supp. III 1979), providing that a complainant must file a complaint with the Secretary of Labor within 30 days of the alleged violation, is not jurisdictional and may therefore be subject to equitable tolling. The court recognized three situations in which tolling is proper:

(1) [when] the defendant has actively misled the plaintiff respecting the cause of action,

(2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or

(3) the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

Id. at 20 (citation omitted). Gass's inability to satisfy one of these elements is not necessarily fatal to her claim, however courts "‘have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.'" Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995), quoting Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). See also Baldwin County Welcome Ctr. v. Brown, 446 U.S. 147, 151 (1984)(pro se party who was informed of due date, but nevertheless filed six days late was not entitled to equitable tolling because she failed to exercise due diligence). Furthermore, while we would consider an absence of prejudice to the other party in determining whether we should toll the limitations period once the party requesting tolling identifies a factor that might justify such tolling, "[absence of prejudice] is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures." Baldwin County Welcome Ctr. v. Brown, 446 U.S. at 152.