November 28, 2018
Petition tor Review or an Order of the United States
Department of Labor No. 2016-FDA-004
ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
her discharge from Kenco Logistics ("Kenco"), Mary
Madison filed a complaint with the Occupational Safety and
Health Administration ("OSHA") charging that she
was terminated in retaliation for engaging in protected
activity. OSHA dismissed her complaint, and in a subsequent
de novo proceeding conducted at Madison's request, an
administrative law judge ("ALJ") entered a summary
decision against her. Madison asked the Department of
Labor's Administrative Review Board ("ARB" or
the "Board") to review the ALJ's decision, but
the Board dismissed her appeal as untimely. Madison now seeks
review in this court. Finding no error in the Board's
decision as to the timeliness of Madison's appeal to the
Board, we deny the petition for review.
employed Madison as a quality engineer from May 13, 2013
until August 9, 2013, when it discharged her. Kenco provided
warehousing services to Mars, Inc., a global manufacturer of
candy and other food products. Madison alleges that her
discharge was the culmination of a series of adverse
employment actions the company took against her in
retaliation for the food safety concerns she had raised with
after her termination, Madison filed a complaint with OSHA
under section 402 of the FDA Food Safety Modernization Act
("FSMA"), which in relevant part gives
whistle-blower protection to employees of firms "engaged
in the manufacture, processing, packing, transporting,
distribution, reception, holding, or importation of
food." 21 U.S.C. § 399d(a); see also id.
§ 399d(b)(1) (authorizing employee subject to
retaliation for lawful whistleblowing to file complaint with
Secretary of Labor); Secretary of Labor Order No. 1-2012
(Jan. 18, 2012), 77 Fed. Reg. 3912-01, 2012 WL 194561 (Jan.
25, 2012) (delegating authority to receive and investigate
such complaints to Assistant Secretary of Labor for
Occupational Safety and Health); 29 C.F.R. § 1987.105(a)
(providing that after investigation, Assistant Secretary of
Labor will enter written findings as to whether there is
reasonable cause to believe retaliation has occurred and, if
so, will issue preliminary order granting relief to
complainant). In February 2016, an OSHA investigator
dismissed Madison's complaint.
her right, Madison requested a de novo hearing before an ALJ.
See 29 C.F.R. § 1987.106(a). Kenco filed a
motion asking the ALJ to enter a summary decision resolving
the case in its favor. After initially denying the motion,
the ALJ granted Kenco's motion to reconsider and entered
a detailed summary decision in Kenco's favor. Sep. App.
50-76. In view of the facts as to which there was
no dispute, the ALJ agreed that Kenco had legitimate,
non-discriminatory reasons for firing Madison and indeed
would have discharged her regardless of whether she had
engaged in activity protect by the FSMA. The ALJ issued that
order on November 22, 2017. Sep. App. 65-74.
had 14 days from the date of the ALJ's decision to
petition for discretionary review by the ARB of the ALJ's
decision against her. 29 C.F.R. § 1987.110(a). A notice
of appeal rights set forth on the final pages of the
ALJ's decision expressly admonished Madison and her
counsel of the deadline for such a petition. Sep. App. 74.
Filing such a petition is a precondition to seeking judicial
review of the Secretary's action. See id.
§§ 1987.109(e), 1987.110(b). Thus, if a timely
petition for review is not filed with the Board, the
ALJ's decision becomes the final decision of the
Secretary on the merits of the case and is not subject to
judicial review. 29 C.F.R. §§ 1987.109(e),
paralegal specialist at the Department of Labor's Office
of Administrative Law Judges mailed a copy of the ALJ's
November 22nd decision to Madison's counsel, Jordan T.
Hoffman, but to Hoffman's former rather than current
address. As of that date, Hoffman had not yet filed a formal
change of address notice with the ALJ's office-he would
subsequently do so in January 2018-but there is no dispute
that the ALJ's paralegal nonetheless was in possession of
his current address. The mis-addressed envelope was returned
to the ALJ's office as undeliverable, as was a copy of
the decision that had been mailed to Kenco itself. On return
of the copy sent to attorney Hoffman, the paralegal re-mailed
another copy of the decision to his correct address on
December 1, 2017. She also sent an email that same day to
Kenco's counsel, Julia P. Argentieri, noting the return
of the copy mailed to Kenco and soliciting the company's
I know the parties already have an electronic decision on the
above matter, but we received the hard copy back for Kenco
Could you please provide me with their new address?
I also received the hard copy back addressed to Mr. Hoffman
(his old address) so I sent another hard copy ...