CASE SUMMARY

An official at the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration civilly penalized Metal Conversion Technologies for allegedly violating Hazardous Materials Regulations, despite not being properly appointed to adjudicate its case. DOT never informed Metal Conversion of the official’s improper appointment, preventing the company from appealing the civil penalty on that basis in court by the normal statutory deadline. NCLA asks an en banc U.S. Court of Appeals for Eleventh Circuit to grant a legally required extension for the company to appeal its punishment by an unconstitutional adjudicator.

In July 2022, DOT revealed that PHMSA Chief Safety Officer Harold McMillan was never properly appointed by the President or Secretary of Transportation to adjudicate administrative proceedings, as the U.S. Supreme Court’s 2018 Lucia v. SEC decision requires. Metal Conversion’s administrative appeal of its original penalty order was pending before McMillan at the time, and the company only learned that he lacked proper appointment in October 2022. Metal Conversion received this revelation from an attorney for NCLA client Polyweave Packaging, Inc., whose own McMillan-ordered civil penalty was ultimately vacated at DOT’s request.

Metal Conversion filed an appeal of McMillan’s final civil penalty order with the Eleventh Circuit in December 2022, meeting the statutorily required 60-day filing deadline if that deadline is moved to 60 days after the company discovered his lack of proper appointment, under the “equitable tolling” principle. Nevertheless, by wrongly applying court procedure rules, an Eleventh Circuit panel decided Metal Conversion had missed its deadline to appeal because equitable tolling is categorically unavailable to any petition to review an agency’s order. That decision clearly conflicted with U.S. Supreme Court precedent requiring a presumption in favor of equitable tolling for statutory deadlines unless the statute’s text or structure shows that Congress intended to preclude equitable tolling.