Turgeau v. Administrative Review Bd.
| Decision Date | 27 April 2006 |
| Docket Number | No. 05-9503.,05-9503. |
| Citation | 446 F.3d 1052 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | Brian M. TURGEAU, Petitioner, v. ADMINISTRATIVE REVIEW BOARD, United States Department of Labor, Respondent, and The Nordam Group, Inc., Intervenor. |
Randall D. Huggins, Jonathan E. Shook, Shook, Huggins & Johnson, P.C., Tulsa, OK, for Petitioner.
Howard M. Radzely, Steven J. Mandel, Paul L. Frieden, Joan Brenner, United States Department of Labor, Washington, DC, for Respondent.
Stephen L. Andrew, D. Kevin Ikenberry, Andrew, Williams, & Ikenberry, Tulsa, OK, for Intervenor.
Before HENRY, McKAY, and MURPHY, Circuit Judges.
This equitable tolling case revolves around one crucial legal point — that a completely preempted state law claim becomes the federal claim that Congress enacted to replace the state remedy. Respondent Department of Labor and Intervenor The NORDAM Group, Inc. have not appreciated this key point. They therefore incorrectly argue, and the Department of Labor's Administrative Review Board (ARB) incorrectly held, that petitioner Brian Turgeau was not entitled to equitable tolling of his untimely filed federal administrative claim because his timely — and completely preempted — state complaint asserted a different claim.
Because the agency's stated reason for denying equitable tolling is invalid, the case is reversed. And because the agency does not argue that there is any further analysis of petitioner's claim for equitable tolling to be done, we remand with directions for the agency to toll the statute of limitations on his federal administrative claim.
Intervenor NORDAM is certified by the Federal Aviation Administration (FAA) as an air repair station and manufacturer of aircraft parts — in other words, NORDAM is a contractor for air carriers. NORDAM hired petitioner on May 10, 1999, to work as a "Manufacturer-B," Pet'r Br. at 1, and terminated him on September 27, 2002. In petitioner's view, NORDAM fired him because he complained to NORDAM that some of its manufacturing practices were outside the original manufacturer's specifications and violated FAA regulations. Petitioner filed suit in Oklahoma state court on November 22, 2002, fifty-six days after his termination. He purported to assert two claims under state law for wrongful discharge and failure to pay wages, asserting that he was fired in retaliation for complaining about NORDAM's manufacturing processes.
On December 26, 2002, NORDAM filed a notice of removal, asserting that petitioner's wrongful discharge claim, "although pled as a state-law cause of action," was nevertheless a federal claim for jurisdictional purposes because it was completely preempted by "AIR21" — the Whistleblower Protection Program in Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121. Admin. R., Doc. 17, Ex. B at 1-2. AIR21 was enacted on April 5 2000, as an amendment to the Airline Deregulation Act of 1978. Pub.L. No. 106-181, 114 Stat. 61. Petitioner disagreed that his state wrongful discharge claim was completely preempted by federal law, and moved to remand. NORDAM then moved to dismiss petitioner's suit because he had failed to exhaust his administrative remedies under AIR21 by filing a complaint with the Secretary of Labor. See Admin. R., Doc. 17, Ex. A at 12.
Because NORDAM had attached some materials to its motion to dismiss, the district court treated it as a summary judgment motion. Id. at 1 n. 2. On April 8, 2003, the court issued an order agreeing with NORDAM (after a lengthy analysis) that petitioner's state wrongful discharge claim was completely preempted and replaced by AIR21. Id. at 11, 12. The court also held that since petitioner had not filed an AIR21 complaint with the Secretary of Labor and received a final administrative order (as required by 49 U.S.C. § 42121(b)(1), (3) & (4)), he had failed to exhaust his administrative remedies under AIR21 and the court lacked jurisdiction to proceed. See Admin. R., Doc. 17, Ex. A at 12-13 & n. 12. The court therefore granted summary judgment to NORDAM on petitioner's wrongful discharge claim. Id. at 13.1 In a footnote, the court noted that AIR21's ninety-day statute of limitations had expired, but that the delay in the case "was due to a good faith legal dispute regarding an unsettled question of federal preemption." Id. n. 12. The court concluded that it lacked jurisdiction to consider whether equitable tolling should apply and, apparently assuming that petitioner would file an administrative complaint, stated that it was for the Secretary of Labor to settle that question. Id.
Petitioner did not appeal the district court's order. Instead, on April 11, 2003, he filed an AIR21 complaint with the Secretary of Labor, asserting a virtually identical claim as in his state suit, see Pet'r Br. at 4-5, and arguing that AIR21's statute of limitations should be equitably tolled. After the agency's investigation resulted in a letter stating that petitioner's claim had no merit because it was untimely, petitioner requested a hearing before an administrative law judge (ALJ), which was set for November. On September 3, 2003, NORDAM moved for summary judgment, arguing that petitioner's administrative complaint was untimely. Considering that petitioner was terminated on September 27, 2002, his April 11, 2003 administrative complaint was filed 202 days after his termination — 112 days late under AIR21's ninety-day statute of limitations. But if equitable tolling is applied, then petitioner's complaint was timely. He filed his state complaint fifty-six days after his termination, well within AIR21's ninety-day statute of limitations.
On October 3, 2003, the ALJ dismissed the complaint as untimely filed. Admin. R., Doc. 17, Ex. C. The ALJ used a three-part test for equitable tolling taken from cases from the Second and Third Circuits. That test allows
a court to apply equitable tolling under three conditions: "(1) [when] the defendant has actively misled the plaintiff respecting the cause of action; [(2)] [when] the plaintiff has in some extraordinary way been prevented from asserting his rights, or [(3)] [when] the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum."
Id. at 2 (citing Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.1981) (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.1978) (internal quotation marks omitted; emphasis added))). The ALJ added that there are two corollaries to the third condition: (3a) "the claim filed in the wrong forum must have been filed within the time limits that would have applied had the complaint been filed in the correct forum[,]" and (3b) "the plaintiff must have used the same statutory foundation when filing both the original claim and the subsequently filed claim." Id.
The ALJ considered only the third condition under which he believed equitable tolling could apply (and it is apparent that the first and second conditions do not help petitioner, anyway).2 Id. The ALJ noted that the district court had held that petitioner's state retaliation complaint "was preempted by AIR21, verifying that the Complainant had filed his complaint in the wrong forum." Id. (emphasis added). But the ALJ held that while petitioner's state complaint was filed within AIR21's statute of limitations, it was not "made under the same statute" and it was insufficient that the underlying facts were the same. See id. at 2-3. Petitioner pointed out to the ALJ that another ALJ had applied equitable tolling in another case in essentially the same posture. See Pet'r Br. at 6 n. 2; Admin. R., Doc. 17, Ex. E. The ALJ said that he disagreed with that other decision as being contrary to the weight of the law. Admin. R., Doc. 17, Ex. C at 3 n. 2.
On appeal, the ARB issued a decision on November 22, 2004, granting summary judgment to NORDAM and dismissing petitioner's complaint for almost the same reasons as the ALJ. Id., Doc. 21. The ARB repeated the ALJ's misstatement of the district court's holding, stating that petitioner's state claim was "preempted" rather than "completely preempted." Id. at 2. Then the ARB dismissed because petitioner's state suit cited state law instead of the "precise statutory claim," AIR21. Id. at 4. The ARB also stated that an AIR21 claim had different requirements of pleading and proof than petitioner's state claim, and was therefore not the same. Id. The ARB also stated that equitable tolling is generally unavailable when a claimant is represented by counsel. Id.
In this petition for review of the ARB's dismissal, petitioner argues that the claim he asserted in state court amounts to an AIR21 claim — he just cited state law instead of AIR21. For this reason, he argues AIR21's statute of limitations should be equitably tolled.
AIR21 specifies that the standard of review is in the Administrative Procedure Act (APA), 5 U.S.C. § 706. 49 U.S.C. § 42121(b)(4)(A). Under § 706(2)(A), the ARB's action shall be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Our case law further states that
[w]hen we review an agency's...
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