my name is anthony tilden and have the pleasure of representing the petitioner randall mechanical incorporated thank you very much in advance for your time as issue presented before you today involves the administrative law judge in the trial courts conflicting application of an interpretation of occupational safety and health review commission which was placed over the precedent of the supreme court in pioneer in this court's controlling precedent in  rely on for persuasion i will ask her why you want to use the argument yes your honor will lean on cheney then which is a very similar analysis what we believe that we have here is an abuse of discretion by the lower court we're asking the th to rema this back to the lower court the abuse of discretion occurred when the trial court overturned its original order which granted rule sixty b really for by applying the pioneer factors for factors based on equitable analysis yet later after a notice or rather an instruction from the occupational safety and health review commission to applied not th circuit case law but to apply its a w ross incorporated a case from two thousand applying its own commission precedent over that of the th circuit you think that you think in the ail j apparently thought that the only difference between the two purported standards is the weight given to the fault of the party then seeking to take advantage of excusable neglect yes your honor in support of that what i would say is if we look st at the st or weighs all the factors actually cites to pioneer the equitable analysis and says that prejudice is the primary importance but looks at all of them and then following that we've got a nd order after this notice from the review commission in which it seems as though the ale jane is abandoned the other three pile pioneer factors in sort of made an exclusive decision based on reason for delay in your own marriage or position and that is not what was intended by the court and pioneer so your honor we have we have also cases that indicate that attorney error when a lawyer misinterprets a rule for example is not excusable neglect how do you get those cases to sort of harmonize with your position yes your honor so st i think what is very telling and we're talking about attorney mistake i will look to cine which was a council mistake in which they granted rule sixty bieber relief as well as pioneer it was councils mistake in this particular matter your honor we have a pro se litigant interpret ing and in for action by the occupational safety and health administration so i guess in trying to respond to your question your hon what pioneer said is that the movement itself can be negligent the movement can have been careless and yet can still be provided relief i think that's how i would respond to your inquiry we have a case called ronnie or rainy for example from  ninety seven which says it holds as follows this is a quote guided by the decision in pioneer and decisions in this circuit we hold that as a matter of law a lawyers failure to understand clear law cannot constitute excusable neglect and quote and so how do you put that together with the other cases that you cite for example cheney which allow a finding of excusable neglect so and i'm not i think that the analysis and i'm not terribly familiar with the rainy case in in front of me your honor but i would assume that the court there applied the four factors on an equitable basis from a  circumstances using pioneer and that particular case decided no it's not excusable neglect and i think that's what central to this issue is that be it rainy or cheney or the persuasive yes your honor the excusable neglect is part of the sixty basics analysis i believe that i believe that the analysis in pioneer was looking at i believe it was a sixty i'm sorry are i can't exactly recall if it was sixty b thirteen or six in pioneer i just know that they provided us with the definition of excusable neglect actually went into great detail to look at webster's definition of neglect and i think this is really key as to where a w ross in two thousand misses the ball a to be wrong seems to make it a single dispositive exclusive factor reason for delay it's almost as if it's pre determined that the ale j will look and see if there is reason for delay if there is a good reason for delay only then can the analysis start that's the way a debbie roll seems to frame itself also appears to create a threshold analysis either you have a good excuse or you don't if you have a good excuse only then will we proceed and that's not what pioneer said it's certainly not what this court said in cheney or in the analysis i think the a l j would look insecurities the cases ok or months so i'll i will step into the shoes of the ale j here and i'll ask myself did they did they find out looking at down looking at world wide web for example wishers relied on by the secretary did they know they were late and didn't do anything about it i think that's what my hypothetical is yes that's a boy they wait four months they're going to get the citation telling them you haven't done anything about it you're here by find x amount of dollars  i agree your honor in this case there are facts they continued to call osha saying hey what happened with that discussion back on the th we offered you one thousand five hundred dollars or we're going to resolve it silence those sort of items are what are the t circumstances which come into this pioneer analysis as to whether or not to grant excusable neglect so in your analysis your honor i think that the ale jay would have to ask when did they find out that they were behind when i think of particular note they hired an attorney in this matter who the nd this thing came across his desk i think it was september eighteen and there's a contest was filed in september th so had they waited had they wanted to talk about it for another four months i think judge gatto in the lower court would not of found excuse and want a gleg and that speaks sort of to what the secretary and the commission stand on which is hey if we grant excuses want to collect here no one ever has to fall of the fifteen day deadline and that's not true you have to examine all the factors which the court did in its st go round examined all the factors applied pioneer and applied cheney and said that there was excus my own yes try to appreciate it may please the court i'm amy try on behalf of the secretary of labor randall mechanical filed their notice of contest fifty six days late and the only reason they gave for doing so w that they didn't understand how and when they were required to file even though the citation they had received contains the required procedures in bold and underline type i take your argument and i'm sympathetic to it with this on the ale j took all that into a cow and said if i apply federal law i am allowing excusable neglect then when he gets to sort of suggestion from the agency reconsiders and says ok the agency is telling me to do something different and if i apply a slightly different standard different result that puts you in a bind i think you know the no all right but no so there will j issues a decision a final decision in the government appeal yes and they lose her act or whatever ground so now you have a final decision down there before the ale j and you want to reconsider if you want a nd bite of the apple i agree your honor that that wouldn't work but the difference here has to do with the structure of the commission on the commission  man in atlantic marine the same thing happened except except the employer did not move under sixty b the employer simply appealed to the commission the reversed yes let's suppose in this case that randall instead of moving for sixty b relief simply appeals to the commission the dismissal yes ok and now now now we receive it from the commission that we wouldn't be bound by rule six to be consideration would we well what i'm suggesting is that you could have two results on the same set of facts the only difference is whether or not there was a sixty b motion filed just as opposed to a straight appeal well but it's an abuse of discretion review either way your honor and i somehow impermissibly differs from pioneering from the circuits case all that is not true so the admittedly was little unusual that the commission issued this notice it was because we had the secretary and filed the petition for into law kotori review after and after the able g s initial decision on the commission said well this doesn't meet the legal standard for an unlock atory review but we do want to make you know we were issuing this noticed reminding me all day that that commission case law is to is to you that the reason for the delay factor not the key factor a key factor and randall has cited you know cases from this court that describe pioneer as placing primary importance on the prejudice factor but pioneer itself as well as every single one of this circuits excusable neglect cases at least all the ones that i've read they make clear that it's an equitable determination requiring consideration of all the relevant factors and while we certainly agree that the reason factor cannot always be dispositive sort of what pioneer was all about reviewing mixed circuit precedent some of which said as long as the reason for the delay is within the control of the movement then there's no excuse about neglect upon your said no you need to consider these other things too if there's a conflict between the standards that by the delay which they found was so inadequate that relief for excusable neglect was not appropriate the nd time around the nd time around yet the st time around he thought it was enough to allow relief that's right that's what i think your problem is because whether your ultimate lee right if you're looking at this no vote and if you might be right that th circuit law and commission law are reconcil harmonious and i conflicting yes the ael jay did not understand that to be the case because if not he would not have flipped he thought the commission was telling him to do something different whether that was a correct understanding or not he changed because of the commission's telegraph like a key factor underlined yes is the party's behavior because when he was applying straight federal law the st time around whether rightly or wrongly he found that there was enough to allow an excusable neglect party filing he did the st time but i guess i'm not sure i see how that matters your honor because there was an after the commission notice there was a motion  then the arrow jay says i am not going to reconsider a final judgment you already had a you do already took it upstairs and you and he got nothing it's a final judgment i'm going to stand on the then you would be appealing would you that's right appeal is over with in a to final judgment basically well i don't know what ruled as a commission then i guess i disagree about it but i write disagree with your honor's characterization of it as a final judgment you know what the elegies initial order they disagree well that's one decision said the commission said we didn't meet that standard of novel question of law on there was a dissent which said that the judge disagreed but yes that was what the commission held that we didn't meet that stringent standard  on any given issue on interlocutory review the secretary get to raise that same issue after final judgment if it loses on the merits or is that some sort which reasonable people were usable jurists could disagree with something along those lines it's not there's no right obviously it's an interlocutory appeal so but but in this case the when the you know when the secretary went back and saw and move under these commission cases you know your honor misapplied you the ail j you met your honor misapplied because you didn't give enough weight to the factor in these circumstances not in every circumstance but under these circumstances the fact should have been time randall suggested as entitled to relief under will sixty three for deception by the secretary the l g found that no such deception took place there's substantial evidence in the record supporting them in the form of the osha official provided sworn declaration testimony that she reminded randall of the deadline twice both in a meeting the day before the deadline and in a phone call the day of the deadline if we were to remand this case back with a whole day have to resolve the question of whether or not  reminder well i don't see how that matters but i think it doesn't matter you don't think it would matter if they all j made a credibility determination that they were told that they orally that the deadline expired today no i'm sorry yes of course that would bolster the failed at the finding the already made that there was no deception but my point is that the the findings the a l j has already made preclude granting relief under sixty three and as for sixty six this court has found that that as a catch all provision is mutually exclusive with other sixty provisions and you can't apply it in the last relief saw unless the parties claim couldn't be considered under the something different here there are there at the question is whether this is an excusable neglect or not or whether there was just option or not and there is no nothing no evidence of any extraordinary circumstances that would be separate from that that would somehow permit application your honor just very briefly i want to show you one item that the justices spoke to the department about we had an original order from the administrative law judge which applied the supreme court of united states precedent and performed a four prompt pioneer analysis nothing changed after that the facts remain the same the declarations from random mechanical worst were the same the declarations from casey kramer the assistant area director were the same there were there was no testimony there were no documents nothing changed what happened is the commission placed the o j on notice or rather instructed the ael j to follow not the th circuit controlling case law but to apply their case law in this is incredibly telling because it created an automatic change and it sort of speaks to our position that a w ross faulty because it is placing so much emphasis on key factor that it is creating exclusivity is creating it as a dispositive factor which all the sudden ignores the other three i don't know what w ail j gave to all four prongs and i certainly couldn't begin to do the hypothetical mathematical analysis but the weight that he applied to the key factor after being told to do so by a commission must be incredibly disproportionate he weighed all factors made an equitable decision on the merits and ruled in favor of relief nothing changed no new facts in the ail jay completely changed his decision conigliaro and we thank you for your time on the right thank you both very much we're in recess until tomorrow morning