                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0453n.06

                                               No. 08-4058                                       FILED
                                                                                              Jul 26, 2010
                             UNITED STATES COURT OF APPEALS
                                                                                       LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


HARRY SMITH,                                          )
                                                      )
        Petitioner,                                   )
                                                      )    ON PETITION FOR REVIEW OF A
v.                                                    )    FINAL DECISION OF THE
                                                      )    ADMINISTRATIVE REVIEW BOARD
HILDA SOLIS, Secretary of Labor,                      )    OF THE U.S. DEPARTMENT OF
                                                      )    LABOR
        Respondent,                                   )
                                                      )
CRST INTERNATIONAL, INC., LAKE                        )
CITY ENTERPRISES, INC.,                               )
                                                      )
        Intervenors.                                  )




Before: BATCHELDER, Chief Circuit Judge; DAUGHTREY, Circuit Judge; and VAN
TATENHOVE,* District Judge.


        PER CURIAM.           The petition for review in this case concerns the timeliness of

petitioner Harry Smith’s request to the respondent Secretary of Labor for a hearing after

a decision by the Occupational Safety and Health Administration (OSHSA) of the

Department of Labor finding no merit to the complaint Smith had filed under the anti-

retaliation provisions of the Surface Transportation and Assistance Act, 49 U.S.C. § 31105

(the Transportation Act). We conclude, under the particular circumstances of this case,



        *
        Hon. Gregory Van Tatenhove, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
No. 08-4058
Smith v. Solis

that despite the fact that the request was technically late, the doctrine of equitable tolling

should have been applied to render Smith’s request timely. We therefore grant review and

remand the case to the Administrative Review Board for appropriate action.


                     FACTUAL AND PROCEDURAL BACKGROUND


       At the time the controversy arose, Smith was an over-the-road truck driver for Lake

City Enterprises, Inc., “through an assignment or other arrangement with CRST

International, Inc.” Some two months after he was hired by Lake City, he complained to

the company that a trailer he was hauling was in a structurally unsafe condition, telling the

dispatcher “to get me another trailer or get yourself another driver.” The trucking company

opted to interpret Smith’s ultimatum as a resignation and terminated his employment.

Following his discharge, on November 15, 2005, Smith filed a single complaint with OSHA

against both Lake City and CRST, invoking 49 U.S.C. § 31105 of the Transportation Act.

That provision prohibits covered employers from discharging or otherwise discriminating

against an employee in retaliation for the employee’s engagement in certain protected

activities. In this case, the protected activity allegedly consisted of Smith’s refusal to drive

unsafe equipment provided by Lake City and his subsequent notice to Lake City that he

intended to report the company’s use of unsafe equipment to the Department of

Transportation.


       Although Smith filed a single complaint, OSHA ran separate investigations of Lake

City, headquartered in Columbia Station, Ohio, and CRST, headquartered in Atlanta,

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Smith v. Solis

Georgia. Smith received a finding of no merit as to his complaint against Lake City in a

letter from OSHA’s area director in Toledo, dated May 12, 2006, with a copy to his

attorney, Richard Renner. OSHA informed Smith that he could contest the finding by filing

an objection and request for a hearing within 30 days of his receipt of the notice. Renner

filed an objection to the Lake City decision on behalf of his client and a request for a

hearing against both Lake City and CRST on May 24, 2006, noting that he had not yet

received a decision on the merits of the complaint against CRST and deemed the “failure

to determine that case on a timely basis” as a “constructive denial” of his client’s complaint.


       As it turned out, however, OSHA’s Atlanta director had mailed a notice to Smith

dated March 21, 2006, informing him that his complaint against CRST had also been found

non-meritorious because CRST and Lake City were not “joint” or “integrated” companies

and, therefore, CRST could not be considered his employer for purposes of the

Transportation Act. That letter also notified Smith that he had 30 days to appeal the ruling

and, like the subsequent Lake City notice, indicated that a copy had been sent to Renner,

Smith’s lawyer. The record indicates that Smith received the notice by certified mail and

signed for it on March 25, 2006, although he later said that he did not remember doing so.

Meanwhile, Renner, who had been in contact with both the Toledo and Atlanta OSHA

offices on Smith’s behalf, did not receive a copy of the CRST notice until May 22, 2006,

when he signed for a piece of certified mail that was post-marked May 17, 2006.




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       When on June 1, 2006, the department of Labor moved to dismiss the petitioner’s

request for a hearing on the complaint against CRST as untimely, Renner responded with

a request for equitable tolling, citing similar cases in which the Administrative Review Board

had permitted a late filing or had granted an extension of time. The administrative law

judge who reviewed Smith’s case nevertheless held that because Smith had been

“properly notified” and because “[t]here [we]re no credible facts to support a finding that

[Smith] was prevented from filing his written objections or requesting a formal hearing

within thirty days of receiving notice,” there was no basis upon which to hold “that the

statutory limitations should be tolled.”


                                       DISCUSSION


       We disagree, and we find the ruling on equitable tolling impossibly narrow. But,

whether we have jurisdiction to review an untimely request for a hearing is a question of

first impression in this circuit. The Fifth Circuit has examined this issue, albeit in the

context of the agency’s failure to comply with the Transportation Act’s time restrictions, and

has rejected the proposition “that the regulatory time restrictions in [theTransportation Act]

are jurisdictional, rather than directory in nature.” Roadway Express v. Dole, 929 F.2d

1060, 1066 (5th Cir. 1991). Recognizing that the Supreme Court had expressed concern

over the drawn-out nature of actions filed under the Transportation Act, the Fifth Circuit

commented that Roadway Express, the party raising the untimeliness issue in the case

before it, had not demonstrated any prejudice to it from the delay. See id. at 1067. Here,


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Smith v. Solis

CRST has conceded in its brief on appeal, and the Secretary conceded at oral argument,

that CRST would not be prejudiced if Smith were granted tolling in this case. Moreover,

the Secretary conceded at oral argument that the Act’s time limitations are not jurisdictional

and that equitable tolling is available in this case. We therefore turn to the question of

whether equitable tolling should have been applied.


       In their briefs, both parties and intervenor CRST cite Irwin v. Department of

Veterans Affairs, 498 U.S. 89 (1990), as reflecting the governing principles underlying the

availability of equitable tolling. There, the Supreme Court said that:


       We have allowed equitable tolling in situations where the claimant has
       actively pursued his judicial remedies by filing a defective pleading during the
       statutory period, or where the complainant has been induced or tricked by his
       adversary's misconduct into allowing the filing deadline to pass. We have
       generally been much less forgiving in receiving late filings where the claimant
       failed to exercise due diligence in preserving his legal rights.


Id. at 96. As we have noted, “[r]epeatedly throughout our judicial history, the Supreme

Court has approved the application of equitable tolling to statutes of limitations to prevent

unjust results in cases arising at law as well as at equity.” Jones v. TransOhio Sav. Ass’n,

747 F.2d 1037, 1039-40 (6th Cir. 1984) (collecting cases).


       In deciding whether equitable tolling is appropriate in a given case, we have pointed

to five factors that may be useful: “(1) lack of actual notice of filing requirement; (2) lack

of constructive knowledge of filing requirement; (3) diligence in pursuing one's rights; (4)

absence of prejudice to the defendant; and (5) a plaintiff's reasonableness in remaining

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Smith v. Solis

ignorant of the notice requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988).

But, we have also noted that the Andrews factors, while analytically helpful, are not

comprehensive, and they are not all relevant in all cases. See Cook v. Stegall, 295 F.3d

517, 521 (6th Cir. 2002). Instead, “the decision whether to equitably toll a period of

limitations must be decided on a case-by-case basis.” Truitt v. County of Wayne, 148

F.3d 644, 648 (6th Cir. 1998).


       The facts in the record in this case indicate clearly that both OSHA offices knew that

Smith was represented by an attorney, and that the attorney had filed the original complaint

on Smith’s behalf. The OSHA offices also knew that the attorney had been in personal

contact with the agency officials in both Toledo and Atlanta during the period from

November 2005, when the complaint was filed with OSHA, to March 2006, when the CRST

notice was sent to Smith but not to Renner. Because the letter Smith received on March

25 indicated that a copy had also been sent to his attorney, under the circumstances it was

reasonable for Smith to assume that Renner would file any necessary response to that

notice, as he did in response to the notice they both received concerning the complaint

against Lake City. Renner did, in fact, promptly file an objection and request for a hearing

in the CRST matter on May 24, 2006, two days after he finally received his copy of the

notice and some 30 days after the deadline for filing with OSHA had passed. The reaction

by the agency was to put all the blame for any negligence in the handling of the process

on Smith. But, it appears to us that it falls even more heavily at the feet of OSHA, in failing



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Smith v. Solis

to send the notice to Renner for some two months after the fact, despite the indication to

Smith to the contrary.


       To hold that the doctrine of equitable tolling should be applied in this case is clearly

in keeping with the principle underlying our opinion in Andrews, the cases upon which it

relied and the opinions that it spawned: that a complainant should not be punished for

missing a filing deadline when he is affirmatively misled in a manner that causes the delay.

As we observed in Jones, equitable tolling is appropriate when “congressional purposes

[are] effectuated by tolling the statute of limitations in given circumstances.” 747 F.2d at

1040 (quoting Burnett v. New York Central R.R. Co., 380 U.S. 424 (1965)).


       The purpose of the Transportation Act’s employee-protection provisions is “to

encourage employee reporting of noncompliance with safety regulations governing

commercial motor vehicles.” Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987).

When a statute permits a complainant’s representation before an agency by counsel and

counsel has informed the agency that he represents the complainant and has provided the

agency with his contact information, the complainant may reasonably expect that counsel

will at least be copied on the agency’s communications to him. When the agency sends

its findings directly to the complainant with a clear indication that his counsel has

contemporaneously received those same findings, but does not actually notify counsel until

after expiration of the statutory period for filing objections, the refusal to permit a late

objection is unjust. This injustice threatens the purposes of the Act’s employee-protection


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Smith v. Solis

provisions, and a grant of equitable tolling in Smith’s case is consistent with effectuating

them.




                                      CONCLUSION


        For the reasons set out above, we GRANT review of the Board’s final order in this

matter and REMAND the case for further proceedings consistent with this opinion.




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