United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-3104

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 17-1595

RANDALL MECHANICAL, INC.,

Respondent.

DECISION AND ORDER OF DISMISSAL

In the Occupational Safety and Health Act of 1970 (“Act”), 29 U.S.C. §§ 651–678, 

Congress established a deadline to appeal the issuance of a citation or proposed penalty by the 

Secretary of Labor. Thus, “the employer has fifteen working days within which to notify the 

Secretary that he wishes to contest the citation or proposed assessment of penalty.” 29 U.S.C. 

§659(a). In the present case, the Secretary issued a citation and proposed penalty to Randall 

Mechanical, Inc. (Randall) on June 27, 2017, which was received by Randall on July 3, 2017. 

Therefore, the last day for Randall to timely file a Notice of Contest (NOC) was July 25, 2017. 

By operation of law, the citation and proposed penalty became a final order of the Commission on 

July 26, 2017. 

Randall filed a late NOC with the Secretary on September 19, 2017. In response to the late 

NOC, the Secretary filed a motion to dismiss the NOC. Randall subsequently sought relief under 

Federal Rule of Civil Procedure 60(b)(l), (3), and (6).1 In Elan Lawn & Landscape Serv., Inc., 22 

BNA OSHC 1337, 1338 (No. 08-0700, 2008), the Commission held “[u]nder ‘long-standing 

 

1 Rule 60(b) provides in relevant part that “[on motion and upon such terms as are just, the court may relieve a party 

or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise, or excusable neglect[;] ... (3) ... misrepresentation, or other misconduct of an adverse party [;] 

... or (6) any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b).
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Commission precedent,’ relief may be granted under Rule 60(b) from a final judgment that is due 

to a late-filed NOC.”2 

Although this Court rejected Rule 60(b)(3) and (6) as grounds for relief, it granted relief 

under Rule 60(b)(l), finding that Randall's failure to submit its NOC in a timely fashion was due 

to “excusable neglect.” In reaching this conclusion, this Court addressed factors identified as 

 

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In Plessey, Inc., 2 BNA OSHC 1302 (No. 946, 1974), the Commission held that it could apply Rule 60(b) to 

modify a decision and order of an administrative law judge that became final pursuant to section 12(j) of the Act, but 

it could not grant Rule 60(b) relief to modify a citation and penalty that became a final order pursuant to section 10(a) 

of the Act. In holding that it could not provide Rule 60(b) relief to modify such an order, the Commission stated that, 

since the employer failed to file a timely notice of contest, the Commission did not have subject-matter jurisdiction 

and, thus, was barred by the express language of section 10(a) from affording relief. The Plessey rule was abrogated 

in Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) when the Commission held that even in 

late notice of contest cases, the employer may be granted relief under Rule 60(b). The Court notes Branciforte appears 

to be inconsistent with subsequent Supreme Court precedent, which would mandate a late NOC be dismissed for want 

of jurisdiction. 

In Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13 (2017), the Supreme Court recently reminded us 

that “an appeal filing deadline prescribed by statute will be regarded as ‘jurisdictional,’ meaning that late filing of the 

appeal notice necessitates dismissal of the appeal.” Hamer, 138 S. Ct. at 17 (citing Bowles v. Russell, 551 U.S. 205, 

210–213 (2007)). “[I]t is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal 

jurisdiction.” Id. (citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)); see also, Sibbach v. 

Wilson & Co., 312 U.S. 1, 10 (1941) (noting “the inability of a court, by rule, to extend or restrict the jurisdiction 

conferred by a statute”). “Accordingly, a provision governing the time to appeal in a civil action qualifies as 

jurisdictional only if Congress sets the time.” Hamer 138 S. Ct. at 17. 

In cases not involving the transfer of adjudicatory authority from one Article III court to another, such as in 

Commission cases, the Supreme Court applies the following rule: a statutory limitation on coverage is jurisdictional 

“[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional.” Arbaugh 

v. Y & H Corp., 546 U.S. 500, 515 (2006). “This is not to say that Congress must incant magic words in order to 

speak clearly. We consider ‘context, including this Court's interpretations of similar provisions in many years past,’ 

as probative of whether Congress intended a particular provision to rank as jurisdictional.” Reed Elsevier, Inc. v. 

Muchnick, 559 U.S. 154, 168 (2010). Here, Congress set the time to appeal in the OSH Act by mandating that an 

employer notify the Secretary within fifteen working days from its receipt of an OSHA citation if it wishes to contest 

the citation and proposed penalty. 29 U.S.C. § 659(a). Traditional tools of statutory construction also plainly show 

that Congress imbued a procedural bar with jurisdictional consequences since it mandated if a NOC is not filed by the 

employer within such time, “the citation and the assessment, as proposed, shall be deemed a final order of the 

Commission and not subject to review by any court or agency.” Id. Therefore, Congress clearly intended this particular 

provision to rank as jurisdictional. 

“Failure to comply with a jurisdictional time prescription, we have maintained, deprives a court of adjudicatory 

authority over the case, necessitating dismissal—a ‘drastic’ result.” Hamer, 138 S. Ct. at 17 (quoting Henderson v. 

Shinseki, 562 U.S. 428, 435 (2011). “[W]hen an ‘appeal has not been prosecuted ... within the time limited by the acts 

of Congress, it must be dismissed for want of jurisdiction.’ ” Bowles, 551 U.S. at 213 (citation omitted). The 

jurisdictional defect is not subject to waiver or forfeiture and may be raised at any time in the court of first instance 

and on direct appeal. Kontrick, 540 U.S., at 455. In contrast to the ordinary operation of our adversarial system, 

courts are obliged to notice jurisdictional issues and raise them on their own initiative. Shinseki, 562 U.S. at 434. In 

light of the Supreme Court’s holdings in Hamer, Shinseki, Bowles, Kontrick, and Sibbach, if this Court were not bound 

by the Commission’s Branciforte holding, it would dismiss the late NOC for lack of jurisdiction. 
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pertinent by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. 

P'ship, 507 U.S. 380 (1993), and relied on in Commission cases, to assess whether there was a 

basis for finding excusable neglect. 

The Secretary filed a petition seeking interlocutory review of this Court’s order granting 

Rule 60(b)(l) relief and the Commission subsequently issued a Notice on the petition, which found 

the standard for interlocutory relief has not been met. Nonetheless, the Commission noted that 

under long-settled Commission precedent, “[a] key factor in evaluating whether a party's delay in 

filing was due to excusable neglect is ‘the reason for the delay, including whether it was within

the reasonable control of the movant.’” Commission Notice, p. 4 (February 22, 2018) (emphasis 

in original) (quoting A. W. Ross, Inc., 19 BNA OSHC 1147, 1148 (No. 99-0945, 2000) (emphasis 

added)). The Secretary has now moved the Court to reconsider its order granting Rule 60(b)(l)

relief in light of the Commission’s Notice. 

This Court is compelled to follow Commission precedent since a Commission judge is not 

free to decide cases in ways that directly conflict with Commission precedent. See Gulf & W. Food 

Prods. Co., 4 BNA OSHC 1436, 1439 (No. 6804, 1976) (consolidated) (orderly administration of 

Act requires that administrative law judges follow Commission precedent). See also Grossman 

Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188 (No. 4409, 1976) (Commission requires its 

judges to follow precedents established by the Commission, unless reversed by the Supreme 

Court); Maxwell Well Serv. Inc., d/b/a Circle M Well Servicing, 13 BNA OSHC 2109, 2110 (No. 

87-1534, 1989) (“Commission’s judges are bound by Commission precedent.”). Accord AccuNamics, Inc. v. Occupational Safety & Health Review Comm'n, 515 F.2d 828, 834 (5th Cir. 1975) 

(the statutory scheme contemplates that the Commission is the fact-finder, and the judge is an arm 

of the Commission for that purpose). 

This Court already found no merit in Randall’s assertion it was delayed in filing its NOC 

due to its inability to obtain relevant procedural information. This was so because the explicit 

terms of the citation issued to Randall informed Randall in underlined and bold text: “Unless you 

inform the Area Director in writing that you intend to contest the citation(s) and/or proposed 

penalty(ies) within 15 working days after receipt, the citation(s) and the proposed 

penaltv(ies) will become a final order of the Occupational Safety and Health Review 

Commission and may not be reviewed by any court or agency.”
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As the Commission noted in its notice, it “has previously rejected Rule 60(b)(l) relief where 

the Respondent's excuse ‘boil[ed] down to an admission that [the company president] failed to 

read the citation’; the Commission held in that case that ‘[e]mployers have an obligation to read a 

citation with sufficient care’ and that ‘[h]andling important business matters in this manner cannot 

be considered excusable neglect[.]’” Commission Notice, p. 5 (quoting A. W. Ross, Inc., 19 BNA 

OSHC at 1149) (employer's failure to read citation does not constitute excusable neglect under 

Rule 60(b)(l)). 

Applying the Commission's longstanding excusable neglect analysis that a “key factor” is 

the reason for the delay, including whether it was within Randall’s reasonable control, the Court 

concludes the reason for the delay is, itself, inexcusable, since it was within Randall’s reasonable 

control. This Court is required to apply the Commission’s “key factor” analysis, even though this 

Court agrees with Randall that under Eleventh Circuit precedent, where this case is likely to be 

appealed, “[t]he Supreme Court held that excusable neglect encompasses situations of negligence 

within the defaulting party's control and placed primary importance on the prejudice prong of the 

analysis.” Coniglio v. Bank of America, NA, 638 F. App'x 972 (11th Cir. 2016) (emphasis added).

Accordingly,

IT IS HEREBY ORDERED THAT the Secretary’s motion for reconsideration and his motion 

to dismiss Randall’s late NOC are GRANTED and Randall’s late NOC is DISMISSED. 

SO ORDERED.

/s/

JOHN B. GATTO, Judge

Dated: April 11, 2018

Atlanta, GA