Department of Labor: 05 9503

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United States Court of Appeals Tenth Circuit PUBLISH UNITED STATES CO URT O F APPEALS TENTH CIRCUIT F I L E D April 27, 2006 Elisabeth A. Shumaker Clerk of Court B RIA N M. TU RG EA U , Petitioner, v. AD M INISTRATIVE REVIEW BO AR D, UN ITED STATES DEPARTM ENT OF LABOR, Respondent, and THE NORDAM GROUP, IN C., Intervenor. No. 05-9503 PETITION FOR REVIEW O F A N O RD ER OF TH E A DM IN ISTR ATIV E R EV IEW BO AR D O F TH E U NITED STA TES D EPA RTM EN T O F LA BO R (No. ARB 04-005) Submitted
  After examining the briefs and appellate record, this panel has determined * unanimously to grant the parties’ request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument. FILED United States Court of AppealsTenth Circuit April 27, 2006 Elisabeth A. ShumakerClerk of Court PUBLISH UNITED STATES COURT OF APPEALSTENTH CIRCUIT BRIAN M. TURGEAU,Petitioner,v.ADMINISTRATIVE REVIEWBOARD, UNITED STATESDEPARTMENT OF LABOR,Respondent,andTHE NORDAM GROUP, INC.,Intervenor. No. 05-9503 PETITION FOR REVIEWOF AN ORDER OF THE ADMINISTRATIVE REVIEW BOARD OF THEUNITED STATES DEPARTMENT OF LABOR (No. ARB 04-005) Submitted on the briefs: * Randall D. Huggins, Jonathan E. Shook, Shook, Huggins & Johnson, P.C., TulsaOklahoma, for Petitioner.  -2-Howard M. Radzely, Steven J. Mandel, Paul L. Frieden, Joan Brenner, UnitedStates Department of Labor, Washington, D.C., for Respondent.Stephen L. Andrew, D. Kevin Ikenberry, Andrew, Williams, & Ikenberry, Tulsa,Oklahoma, for Intervenor.Before HENRY , McKAY , and MURPHY , Circuit Judges. McKAY , Circuit Judge.This equitable tolling case revolves around one crucial legal point–that acompletely preempted state law claim becomes the federal claim that Congressenacted to replace the state remedy. Respondent Department of Labor andIntervenor The NORDAM Group, Inc. have not appreciated this key point. Theytherefore incorrectly argue, and the Department of Labor’s Administrative ReviewBoard (ARB) incorrectly held, that petitioner Brian Turgeau was not entitled toequitable tolling of his untimely filed federal administrative claim because histimely–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 anyfurther analysis of petitioner’s claim for equitable tolling to be done, we remandwith directions for the agency to toll the statute of limitations on his federaladministrative claim.  -3-I. BackgroundA. Petitioner Filed Suit Against His Former Employer in State CourtIntervenor 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 onSeptember 27, 2002. In petitioner’s view, NORDAM fired him because hecomplained to NORDAM that some of its manufacturing practices were outsidethe srcinal manufacturer’s specifications and violated FAA regulations.Petitioner filed suit in Oklahoma state court on November 22, 2002, fifty-six daysafter his termination. He purported to assert two claims under state law for wrongful discharge and failure to pay wages, asserting that he was fired inretaliation for complaining about NORDAM’s manufacturing processes.B. Petitioner’s Former Employer Removed the Suit to Federal CourtOn 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 itwas completely preempted by “AIR21”–the Whistleblower Protection Program inSection 519 of the Wendell H. Ford Aviation Investment and Reform Act for the21st Century, 49 U.S.C. § 42121. Admin. R., Doc. 17, Ex. B at 1-2. AIR21 was  It is not apparent from the materials what happened to petitioner’s claim for  1 unpaid wages.-4-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 statewrongful discharge claim was completely preempted by federal law, and moved toremand. NORDAM then moved to dismiss petitioner’s suit because he had failedto exhaust his administrative remedies under AIR21 by filing a complaint with theSecretary 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. OnApril 8, 2003, the court issued an order agreeing with NORDAM (after a lengthyanalysis) 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 andreceived 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 andthe 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. In a footnote, the court noted 1 that AIR21’s ninety-day statute of limitations had expired, but that the delay inthe case “was due to a good faith legal dispute regarding an unsettled question of 
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