United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR, 

Complainant,

v.

RANDALL MECHANICAL, INC.,

Respondent.

OSHRC Docket No. 17-1595

APPEARANCES:

Karen E. Mock, Counsel; Amy S. Tyron, Senior Attorney; Tremelle I. Howard, Regional Solicitor; 

Kate S. O’Scannlain, Solicitor of Labor; U.S. Department of Labor, Washington, D.C. and Atlanta, 

GA

For the Complainant

Anthony D. Tilton, Esq.; Travis S. McConnell, Esq.; Cotney Construction Law, LLP, Tallahassee, 

FL

For the Respondent

REMAND ORDER

Before: SULLIVAN, Chairman; ATTWOOD and LAIHOW, Commissioners.

BY THE COMMISSION:

On June 27, 2017, the Occupational Safety and Health Administration issued Randall 

Mechanical, Inc. a one-item serious citation alleging a violation of 29 C.F.R. § 1926.350(a)(10). 

Randall failed to file a timely notice of contest, which resulted in the citation becoming a final 

order. 29 U.S.C. § 659(a) (failure to contest citation “within fifteen working days” results in 

citation being “deemed a final order of the Commission”). The company subsequently sought 
2 

relief from the final order under Federal Rule of Civil Procedure 60(b)(1), (3) and (6).

1 On April 

11, 2018, Administrative Law Judge John B. Gatto denied all three of these grounds for relief and 

dismissed the case. RandallMech., Inc., No. 17-1595, 2018 WL 2326109 (O.S.H.R.C.A.L.J., Apr. 

11, 2018). Randall timely filed a petition for discretionary review of the judge’s decision. The 

petition was not granted, and the decision became a final order of the Commission. 29 U.S.C. 

§ 661(j).

On appeal, the United States Court of Appeals for the Eleventh Circuit vacated the judge’s 

decision and remanded with instructions that the judge apply “Supreme Court and Eleventh Circuit 

precedent” to Randall’s “Rule 60(b)(1) motion.” 2 Randall Mech., Inc. v. Sec’y of Labor, 798 F. 

App’x 604, 605 (11th Cir. 2020) (unpublished). On remand, the judge dismissed the case again, 

this time on jurisdictional grounds, finding that under section 10(a) of the Occupational Safety and 

Health Act, 29 U.S.C. § 659(a), the Commission lacks jurisdiction to grant Rule 60(b) relief from 

a final order.3 Once again, Randall timely filed a petition for discretionary review and this time, 

it was granted.

1 As relevant, Rule 60 states as follows:

(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. On 

motion and just terms, the court may relieve a party or its legal representative from 

a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

. . . 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party;

. . .

(6) any other reason that justifies relief.

2 In seeking review of the judge’s decision, Randall raised all three grounds of relief that the judge 

rejected. The Eleventh Circuit limited its instructions on remand, however, to Randall’s request 

for relief under paragraph (1) of Rule 60(b). Accordingly, the scope of our remand decision is 

likewise limited.

3 Notably, this issue was neither raised by a party, nor mentioned by the Eleventh Circuit during 

oral argument or in its remand order. See Coleman Hammons Constr. Co., 942 F.3d 279, 282 n.1 

(5th Cir. 2019) (assuming “that Rule 60(b) applies because the parties do not contest its 

applicability”); David E. Harvey Builders, Inc. v. Sec’y of Labor, 724 F. App’x 7, 8 (D.C. Cir. 

2018) (unpublished) (“We assume Rule 60(b)(1)’s applicability to these proceedings because 

neither party contests it.”).
3 

We agree with Randall that the judge’s decision is erroneous. Neither the Supreme Court 

nor the Eleventh Circuit has considered the Commission’s jurisdiction to grant Rule 60(b) relief

under section 10(a), and the only two circuits that have done so—the Second Circuit and the Third

Circuit, neither of which are relevant here—are split on the issue.4 Under these circumstances, the 

judge was bound by the Commission’s longstanding precedent that it has the authority under 

section 10(a) to grant Rule 60(b) relief from a final order. Gulf & W. Food Prods. Co., 4 BNA 

OSHC 1436, 1439 (No. 6804, 1976) (consolidated) (“[T]he orderly administration of [the OSH 

Act] requires that the Commission’s administrative law judges follow precedents established by 

the Commission.”); see McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1110 (No. 97-1918, 

2000) (noting that Commission generally applies law of circuit to which appeal is likely, but 

concluding judge properly applied Commission precedent where pertinent circuit “neither decided 

nor directly addressed” issue). Indeed, the Commission has explicitly agreed “with the Third 

Circuit’s holding in J.I. Hass Co. v. OSHRC that, in cases where an employer files a late notice of 

contest, the employer may be granted relief from the final order under the terms of Rule 60(b).” 

Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981); see O’Harra’s 

Complete Plumbing Serv., LLC, No. 18-1225, 2018 WL 4491707, at *1 (O.S.H.R.C., Sept. 11, 

4 The Second Circuit and the Third Circuit disagree on whether the Commission has authority to 

grant relief under Rule 60(b) following an untimely notice of contest. Compare Chao v. Russell 

P. Le Frois Builder, Inc., 291 F.3d 219, 228-29 (2d Cir. 2002) (holding that section 10(a) of OSH 

Act precludes Commission from “exercising jurisdiction [over late-filed notice of contests] based 

on Rule 60(b)(1)”), with J.I. Hass Co. v. OSHRC, 648 F.2d 190, 194-95 (3d Cir. 1981) (holding 

“that the Commission has jurisdiction to entertain a late notice of contest under [R]ule 60(b)” and 

that “the Commission must have had jurisdiction at some point” since “[s]ection 10(a) . . . states 

that uncontested citations become final orders of the Commission”), and Chao v. Roy’s Constr., 

Inc., 517 F.3d 180, 183 n. 1 (3d Cir. 2008) (noting that in George Harms Construction Co. v. Chao, 

371 F.3d 156 (3d Cir. 2004), circuit reaffirmed its “earlier holding in [Hass], and declined to follow 

the Second Circuit’s contrary holding in [Le Frois]”). 

Two Fifth Circuit cases, which were issued before the circuit was split and are therefore binding 

precedent in the Eleventh Circuit, see Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th 

Cir. 1981), address circumstances in which relief from a final order under the OSH Act was 

considered, but neither case specifically addresses whether the Commission has jurisdiction under 

section 10(a) to grant Rule 60(b) relief. See Atl. Marine, Inc. v. OSHRC, 524 F.2d 476, 478 (5th 

Cir. 1975) (remanding for evidentiary hearing to determine “if the Secretary’s deception or failure 

to follow proper procedures is responsible for the late [notice of contest]” but neither citing nor 

discussing Rule 60(b)); Brennan v. OSHRC (S.J. Otinger Constr.), 502 F.2d 30, 34 (5th Cir. 1974) 

(holding that Commission could not use Rule 60(b) to extend 30-day period under section 12(j) of 

the OSH Act for considering whether to grant discretionary review).
4 

2018) (“[B]y operation of law [under section 10(a) of the OSH Act], an uncontested or untimely 

contested citation and proposed penalty must be deemed a final order of the Commission, unless 

entitlement to relief is demonstrated under Federal Rule of Civil Procedure 60(b).”). We therefore

vacate the judge’s order and remand the case to the judge once again. 

On remand, the judge shall, in accord with the Eleventh Circuit’s instructions, “apply 

Supreme Court and Eleventh Circuit precedent” and determine whether the company is entitled to 

relief under Rule 60(b)(1). Randall Mech., Inc., 798 F. App’x at 605. The four factors for making 

this determination were articulated by the Supreme Court in Pioneer Investment Services Co. v. 

Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993), and include: (1) “the danger 

of prejudice to the [nonmoving party],” (2) “the length of the delay and its potential impact on 

judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable 

control of the movant,” and (4) “whether the movant acted in good faith.” In its evaluation of the

Pioneerfactors, the Eleventh Circuit has “accorded primary importance to the absence of prejudice 

and to the interest of efficient judicial administration,” though the court has emphasized that “a 

determination of excusable neglect is an equitable one that necessarily involves consideration of 

all” the factors.5 In re Worldwide Web Sys., Inc. v. Feltman, 328 F.3d 1291, 1297 (11th Cir. 2003); 

5 We note that with regard to the reason for delay, the Eleventh Circuit has held “as a matter of 

law, that an attorney’s misunderstanding of the plain language of a rule cannot constitute excusable 

neglect such that a party is relieved of the consequences of failing to comply with a statutory 

deadline.” Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir. 1997); see United 

States v. Davenport, 668 F.3d 1316, 1325 (11th Cir.) (finding that “Government’s written notice 

of forfeiture and existing law were sufficient to alert [attorney] of the applicable deadline for filing 

a third-party petition on [his client’s] behalf,” and therefore his “misinterpretation of the deadline 

could not, as a matter of law, constitute excusable neglect to warrant relief under Rule 60(b)(1)”), 

cert. denied, 566 U.S. 1035 (2012). In contrast, the court has held that a factual misunderstanding 

by an attorney does not necessarily preclude a finding that a party’s neglect was excusable under 

Rule 60(b)(1). See Davenport, 668 F.3d at 1324 (“While an attorney error based on a 

misunderstanding or misinterpretation of the law generally cannot constitute excusable neglect, a 

mistake of fact, such as miscommunication or a clerical error, may do so under the pertinent 

factors.”); Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1356-57 (11th 

Cir. 2009) (finding relief was warranted under Rule 60(b)(1) where reason for delay resulted from 

“counsel’s erroneous assumption that its previous appearance had been filed in the tag along 

cases,” and “there is no discernable prejudice” to nonmoving party or “reason to conclude that 

allowing . . . untimely response . . . would adversely affect the judicial proceedings”). Here, 

Randall’s president asserts in his submitted declaration that he informed the OSHA assistant area 

director on the day after the late notice of contest was filed that Randall had hired an attorney, but 

it is unclear on the current record when Randall’s attorney first became involved in this matter.
5 

see Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (finding excusable 

neglect under Rule 60(b)(1) where nonmovant did not argue it suffered prejudice, delay was 

“minimal,” and reason for delay—“failure in communication between the associate attorney and 

lead counsel”—was “attributable to negligence”). In addition, in the context of a default judgment, 

in which the defaulting party is seeking relief under Rule 60(b), the Eleventh Circuit also requires

that party to show it has “a meritorious defense that might have affected the outcome.” In re 

Worldwide Web Sys., Inc., 328 F.3d at 1295. 

Having reviewed the record, we find an evidentiary hearing is necessary for the judge to 

determine whether—under Supreme Court and Eleventh Circuit precedent—Randall’s late notice 

of contest was due to excusable neglect. Both parties have submitted written declarations in 

support of their positions. These declarations contain conflicting assertions that bear directly on 

both Randall’s reason for the delay in filing its notice of contest and whether the company acted 

in good faith. Indeed, the declaration submitted by OSHA’s assistant area director asserting that 

he twice informed Randall of the deadline to file its notice of contest directly conflicts with the 

declarations submitted by Randall that assert the assistant area director never mentioned the 

deadline. The evidentiary hearing, however, should not be limited to resolving this one conflict—

a full record must be developed so that the judge can properly evaluate whether Randall is entitled 

to relief from the final order under Rule 60(b)(1). 

For all these reasons, we vacate the judge’s order dismissing the case and remand for 

further proceedings consistent with this opinion. 

SO ORDERED.

/s/ 

James J. Sullivan, Jr.

Chairman 

/s/ 

Cynthia L. Attwood

Commissioner

/s/ 

Amanda Wood Laihow

Dated: July 30, 2020 Commissioner
6 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 17-1595

RANDALL MECHANICAL, INC.,

Respondent.

ORDER OF DISMISSAL

This case is on remand from the United States Court of Appeals for the Eleventh Circuit.

Randall Mechanical, Inc. v. Sec’y of Labor, 798 F. App’x 604 (11th Cir. 2020) (unpublished). 

Section 10(a) of the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651–

678, mandates that “[i]f, within fifteen working days from the receipt of the notice issued by the 

Secretary the employer fails to notify the Secretary that he intends to contest the citation or 

proposed assessment of penalty . . . 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.” 29 U.S.C. §

659(a). There is no dispute the Secretary issued a citation and proposed penalty to 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 was July 25, 2017. There is also no dispute that Randall filed its 

notice with the Secretary on September 19, 2017. Therefore, by operation of law, the citation and 

proposed penalty was “deemed a final order of the Commission and not subject to review by any 

court or agency.” Id. 

The company subsequently sought relief under Federal Rule of Civil Procedure 60(b)(1) 

from the resulting final order. On April 11, 2018, this Court issued an order denying relief and 

dismissing the case. Randall, Docket No. 17-1595, 2018 WL 2326109 (O.S.H.R.C.A.L.J., Apr. 

11, 2018). Randall timely filed a petition for discretionary review with the Commission, which 

was not granted, and this Court’s order became a final order of the Commission. On appeal, the 
7 

Eleventh Circuit remanded the case with “instructions to apply Supreme Court and Eleventh 

Circuit precedent with respect to Randall’s Rule 60(b)(1) motion.” Randall, 798 F. App'x at 605.6

 Although not couched in terms of a “jurisdictional” issue, the Secretary raised subjectmatter jurisdiction as an issue in his motion to dismiss Randall’s late notice of contest when he 

asserted Randall’s notice of contest was untimely and must be dismissed. (Sec’y’s Mot. Dismiss 

at 4). And even if he had not raised a jurisdictional issue, “courts, including this Court, have an 

independent obligation to determine whether subject-matter jurisdiction exists, even in the absence 

of a challenge from any party,” since “subject-matter jurisdiction, because it involves a court's 

power to hear a case, can never be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 

514 (2006) (citation omitted). Even assuming arguendo, the Secretary’s motion to dismiss did not 

raise a jurisdictional issue, this Court notices a jurisdictional issue and raises it sua sponte. Further, 

this Court must address the jurisdictional issue before it can reach the merits of Randall’s motion 

for Rule 60(b) relief since “[f]ailure to comply with a jurisdictional time prescription ... deprives 

a court of adjudicatory authority over the case, necessitating dismissal—a ‘drastic’ result.” Hamer 

v. Neighborhood Hous. Servs. of Chi., ––– U.S. ––––, 138 S. Ct. 13, 17 (2017) (quotation omitted). 

 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 that became final after a proceeding held pursuant 

to section 12(j) of the Act, 29 U.S.C. § 661(j), but it could not grant Rule 60(b) relief to modify a 

citation and penalty that was “deemed” a final order pursuant to section 10(a). In holding that it 

could not provide such Rule 60(b) relief under section 10(a), the Commission concluded thatsince 

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 by the Commission in Branciforte Builders, Inc., 9 BNA 

OSHC 2113 (No. 80-1920, 1981) when it agreed with the Third Circuit’s holding in J. I. Hass Co. 

6 The history of this case is somewhat unique. After the Secretary filed his motion to dismiss, this Court 

issued an order holding the Secretary’s motion in abeyance and directing Randall to file a motion requesting 

Rule 60(b) relief, which Randall did, and on January 16, 2018, this Court entered an Order granting Rule 

60(b) relief and denying the Secretary’s motion to dismiss. The Secretary sought interlocutory review of 

that Order, which was denied by the Commission vis-à-vis a written “Notice,” wherein the Commission 

reminded this Court 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.” The Secretary thereafter filed a motion for reconsideration 

with this Court and this Court issued its April 11, 2018, Order vacating its previous Order granting Rule 

60(b) relief and dismissing the case, which is now on remand.
8 

v. Occupational Safety & Health Review Comm'n, 648 F.2d 190 (3d Cir. 1981), that the 

Commission has jurisdiction to reconsider its section 10(a) orders under Rule 60(b). Branciforte, 

9 BNA OSHC at 2117. In J.I. Hass, the Secretary took the same position as he does here, that the 

final clause of section 10(a) is jurisdictional and prohibits review of citations if an employer does 

not file a timely notice of contest. The Third Circuit held that under this interpretation of section 

10(a), “if an employee signed for citations and then was killed while returning from the post office, 

and the letter destroyed, an employer with a meritorious defense could still get no relief if 15 

working days elapsed before he learned of the citations. We do not believe Congress intended such 

a harsh result.” J.I. Hass, 648 F.2d at 194. However, as the Supreme Court has admonished, “a 

court must [enforce the dismissal] even if equitable considerations would support extending the 

prescribed time period.” United States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015) (citation 

omitted). 

After Branciforte, the Supreme Court set out in Arbaugh a “readily administrable bright 

line” to determine jurisdiction: “If the Legislature clearly states that a threshold limitation on a 

statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and 

will not be left to wrestle with the issue.” Arbaugh, 546 U.S. at 502. Thus, time limits to file an 

appeal are jurisdictional if they appear in a statute, Bowles v. Russell, 551 U.S. 205, 206–07(2007), 

but not if they appear in a court-made rule. Hamer, ––– U.S. ––––, 138 S. Ct. at 16–17]. While

the Arbaugh, Bowles, and Hamer cases involved review by Article III courts, in Henderson ex rel. 

Henderson v. Shinseki, the Supreme Court distinguished Article III cases with those involving 

review by an Article I tribunal, such as the Veterans Court, which are “as part of a unique 

administrative scheme.” Shinseki, 562 U.S. at 437–38. “Instead of applying a categorical rule 

regarding review of administrative decisions, we attempt to ascertain Congress' intent regarding 

the particular type of review at issue in this case.” Id. at 438. 

Litigation before the Commission, unlike cases involving veterans benefits, has all the 

hallmarks of ordinary civil litigation. The Act mandates that “[u]nless the Commission has adopted 

a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure[,]” 

29 U.S.C. § 661(g), and the Federal Rules of Evidence are applicable in such proceedings. 29 

C.F.R. § 2200.71. The employer must commence its notice of contest within the time specified by

statute, see § 659(a), the Secretary of Labor must thereafter file a complaint with the Commission 

no later than 21 days after receipt of the notice of contest, see 29 C.F.R. § 2200.34(a), the employer 
9 

must file an answer within 21 days after service of the complaint that must also include all 

affirmative defenses being asserted, see 29 C.F.R. § 2200.34(b), and the litigation is adversarial, 

see § 659(c). The Secretary must gather the evidence that supports his claims and generally bears 

the burden of production and persuasion, see ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 

1304, 1314 (11th Cir. 2013) (“the employer bears the burden on affirmative defenses only if the 

Secretary proves a prima facie case first.”). Both parties may appeal an adverse trial-type 

Commission decision to an applicable circuit court of appeals, see § 660, and a final judgment may 

be reopened only in narrow circumstances, see Fed. Rule Civ. Proc. 60. Thus, the type of review 

Congress established is more akin to the ordinary type of civil litigation in Arbaugh, Bowles, and 

Hamer rather than the unique administrative scheme at issue in Shinseki. 

 The Supreme Court has cautioned that even though time bars “cabin a court's power only 

if Congress has ‘clearly state[d]’ as much,” that “does not mean ‘Congress must incant magic 

words,’” but “traditional tools of statutory construction must plainly show that Congress imbued 

a procedural bar with jurisdictional consequences.” Kwai, 575 U.S. at 409-10 (quoting Sebelius v. 

Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013). Here, the time limit to file an appeal does speak 

in jurisdictional terms. Congress set a “fifteen working days” time bar in section 10(a). § 659(a). 

Congress also imbued a procedural bar with jurisdictional consequences. If the employer fails to 

meet the time limit, the citation shall “not subject to review by any court or agency.” Id. Thus, 

section 10(a) does not read “like an ordinary, run-of-the-mill statute of limitations, spelling out a 

litigant's filing obligations without restricting a court's authority.” Kwai, 575 U.S. at 411. Rather, 

section 10(a) specifically spells out an employer’s filing obligations and if the employer fails to 

meet the filing obligations, section 10(a) expressly restricts the authority of any court or agency to 

review the citation and proposed assessment deemed a final order under section 10(a). 

Applying the Supreme Court’s precedent after Branciforte, this Court concludes Congress 

“imbued a procedural bar with jurisdictional consequences,” Kwai, 575 U.S. at 410, and Randall’s

failure to timely file its notice of contest in accordance with the section 10(a) deprived this Court 

of subject-matter jurisdiction. Hamer, ––– U.S. at ––––, 138 S. Ct. at 17; Bowles, 551 U.S. at 213. 

As the Second Circuit has noted, and this Court agrees, “§ 661(g) provides for application of the 

Federal Rules of Civil Procedure only when the Commission has already commenced 

‘proceedings.’ Proceedings before the Commission never began here. To use Rule 60(b) to 

establish jurisdiction would be to bootstrap jurisdiction into existence[.]” Chao v. Russell P. Le 
10

Frois Builder, Inc., 291 F.3d 219, 228–29 (2d Cir. 2002). And as the Hamer Court admonishes, 

“it is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal 

jurisdiction.” Hamer, ––– U.S. ––––, 138 S. Ct. at 17 (citation omitted). Accordingly,

IT IS HEREBY ORDERED THAT the Secretary’s motion to dismiss is GRANTED and 

Randall’s notice of contest is DISMISSED with prejudice.7

SO ORDERED.

 /s/ 

First Judge John B. Gatto

Dated: June 10, 2020

 Washington, D.C.

7 Any pending motionsthat have not been ruled on have been considered and are DENIED.