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Anticipation of Litigation Advisor

A Cautionary Tale About the Importance of Staying on Top of Emails Madison v. United States Dept. of Labor 924 F.3D 941 (7th CIR. May 24, 2019)

August 27, 2019

By: Whitney G. Clegg

After Mary was fired from her warehousing job at Mars, Inc. in 2013, she filed a complaint with OSHA claiming she was fired in retaliation for blowing the whistle on food safety issues.  After an investigation, the OSHA investigator dismissed her complaint in February 2016.
Mary’s lawyer then asked for a review by the Labor Department’s Administrative Review Board (the “Board”).  Mars Warehousing moved to dismiss, and the Board entered an order granting that motion and dismissing the case on November 22, 2017.  Mary had only two weeks to file an appeal—by December 6, 2017. 
When the Board dismissed Mary’s complaint, a government paralegal mailed the November 22 decision to the parties using old addresses, and the mailings to both Mary’s lawyer and Mars Warehousing were returned as undeliverable.  On December 1, 2017, the paralegal re-mailed copies of the decision using updated mailing addresses, and she also sent an email that same day to counsel for Mars Warehousing and Mary’s lawyer advising them that the order had been mailed.  Unfortunately, the copy to Mary’s lawyer used an incorrect email address.  However, counsel for Mars Warehousing spotted the mistake and forwarded a copy of the email about the government’s decision to his correct email address.  Mary’s lawyer later claimed he didn’t see this email for several weeks.
On December 6, the re-mailed paper copy of the Board’s decision was delivered to the office of Mary’s lawyer.  December 6 was the 14th day following the Board’s November 22 decision, which was the appeal deadline set forth in the order.  Mary’s lawyer did not see the paper copy until the following morning after the deadline had passed.  Upon reading the order, he didn’t file any motion for extension of time or otherwise seek relief from the apparent missteps of the government’s notification efforts.  Rather, he waited until December 17 to file the appeal, which was more than 14 days after even the second mailing of the decision. 
The Board refused to equitably toll the appeal deadline, and Mary’s appeal was dismissed as untimely.  Among other things, the Board pointed to the December 1 email notifying the parties that a decision had been rendered and which Mars’ counsel had forwarded to Mary’s lawyer.  Had he requested a copy of the decision on that date, he would’ve had several days to timely file the appeal. 
There are a few important points to take to heart from this decision.  First, as a former law partner used to say, “It may not be your fault.  But it’s your problem.”  The government sometimes sends things out imperfectly.  So be aware of impending deadlines and be prepared to seek relief if needed.  Mary’s lawyer did nothing, and both the Board and the Seventh Circuit faulted him for it.
Second, it is critical that a lawyer keep his or her contact information current with courts and government agencies.  It might also be wise for a lawyer to have a back-up address on file, such as a secretary or paralegal, so a second person will receive the communication as a precaution. 
Third, Mary’s lawyer actually received the Board’s paper decision on the appeal due date.  Had he or someone at the firm looked at his mail, a timely appeal, or at least a motion for extension, could have been filed.  He also would have learned about the existence of the adverse decision if he had just been keeping up with his email and read the earlier email forwarded to him by Mars’ counsel.  At that point, he should have requested a copy of the decision and taken some action to protect Mary’s rights.
The Seventh Circuit didn’t cut Mary’s lawyer any slack for not keeping up with his email:

Today, courts and agencies routinely communicate with counsel electronically, and attorneys likewise communicate with one another via email.  Even where, as here, a party has not consented to electronic service of agency orders, counsel can foresee that there may be electronic correspondence from both the agency and opposing counsel in the course of the case, and he can be expected to check (or have someone in his office monitor) his email on a regular basis to keep abreast of developments in litigation.[1]

Stay on top of those emails, folks!
 Author:  Whitney G. Clegg, Assistant General Counsel and Member, Litigation and Energy Industry Group
© August 2019 Jackson Kelly PLLC

[1]  Madison v. U.S. Dept. of Labor, 924 F.3d 941, 948 (7th Cir. 2019).


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