United States Court of Appeals

For the Eighth Circuit

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No. 13-1933

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Nyffeler Construction, Incorporated

lllllllllllllllllllll Plaintiff - Appellant

v.

Secretary of Labor

lllllllllllllllllllll Defendant - Appellee

Andrea Christensen Luby; Office of the Solicitor

lllllllllllllllllllll Defendants

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Petition for Review of an Order of the

 Occupational Safety & Health Review Commission

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 Submitted: May 14, 2014

 Filed: July 28, 2014

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Before SMITH, BEAM, and SHEPHERD, Circuit Judges.

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BEAM, Circuit Judge.
Nyffeler Construction, Inc. (Nyffeler) petitions for review of an adverse agency

decision by the Occupational Safety and Health Review Commission (Review

Commission). Because we lack jurisdiction over this untimely petition, we dismiss.

I. BACKGROUND

Nyffeler is a residential construction company operating in Omaha, Nebraska. 

On February 24, 2011, while inspecting a nearby worksite, Occupational Safety and

Health Administration (OSHA) inspectors observed two Nyffeler employees on a roof

without fall protection at a Nyffeler worksite. The inspectors phoned other OSHA

compliance officers and alerted them of possible safety violations. Acting on the

referral, two compliance officers arrived at Nyffeler's worksite and observed and

photographed two employees installing roof sheathing without fall protection. 

Compliance officer Matthew Thurlby observed that the roof's slope was greater than

four in twelve (vertical to horizontal), and, upon further investigation, the officers

discovered the distance from the eave of the roof to the ground was ten feet, nine

inches. After making initial observations, the compliance officers made contact with

Greg Nyffeler, one of Nyffeler's owners, who complied with their inspection requests.

Eventually, OSHA issued a Citation and Notification of Penalty to Nyffeler,

alleging serious violations of the Occupational Safety and Health Act (the "Act"). 

Specifically, OSHA cited Nyffeler for failing to use fall protection and failing to

provide employees a training program to recognize fall hazards. Nyffeler challenged

the citation before the Review Commission. After hearing evidence, an

administrative law judge (ALJ) for the Review Commission affirmed the two cited

violations, but reduced the penalty from $8,400 to $3,400. The ALJ also noted that

Nyffeler challenged the constitutionality of the Act, but recognized that it did not

have jurisdiction to entertain constitutional challenges. On April 4, 2012, the ALJ

docketed his report and a Notice of Docketing was sent to Nyffeler. Nyffeler sought

further agency review by the Review Commission. The Review Commission denied

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discretionary review, making the ALJ's decision the Review Commission's final order

on May 4, 2012. 

Nyffeler then sought judicial review. However, instead of seeking review in

the appropriate court of appeals as the Act requires, see 29 U.S.C. § 660(a), on July

5, 2012, Nyffeler mistakenly filed for review in the United States District Court for

the District of Nebraska. Recognizing Nyffeler's mistake, the Secretary of Labor (the

"Secretary") requested that the district court transfer the case to the Eighth Circuit

Court of Appeals. In its transfer motion, the Secretary incorrectly informed the

district court that the Review Commission's order became final on May 7, 2012–three

days later than the actual final order date. Relying on the Secretary's representations,

the district court determined that if it dismissed the case and ordered Nyffeler to refile in the Eighth Circuit, its petition would be untimely. See id. (requiring petition

for judicial review to be filed within 60 days of order's issuance). Therefore, the

district court transferred the case to this court pursuant to 28 U.S.C. § 1631 (allowing

a court without jurisdiction to transfer the case to the appropriate court if the petition

for review is timely filed and the transfer serves the interest of justice).

After the case was transferred to this court, the Secretary, apparently

discovering that the Review Commission's order became final on May 4–not May 7,

as previously represented to the district court–moved to dismiss Nyffeler's petition

for review for lack of jurisdiction. Nyffeler moved to strike the Secretary's motion

for failing to comply with Eighth Circuit Rule 47A(b), which requires an appellee to

file a motion to dismiss based on jurisdiction within fourteen days after the case has

been docketed. Although Nyffeler moved to strike the Secretary's motion, it noted

that "even if [the court] strikesthe pending motion, the Court isfree to raise the issues

presented in the Secretary's motion sua sponte, if it sees fit, and such issues could be

addressed at oral argument or through briefing before or after oral argument." 

Without explanation, an administrative panel for this circuit denied the Secretary's

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motion to dismiss and, accordingly, denied Nyffeler's motion to strike as moot. The

petition for review remains pending before this court. 

II. DISCUSSION

In this petition for review, Nyffeler challenges OSHA's referral method and

inspection of Nyffeler's worksite on regulatory, statutory, and constitutional grounds. 

The Secretary, however, maintains that it is unnecessary to reach the merits, because

we lack subject matter jurisdiction. We begin and end with the jurisdictional

question. 

The Act permits an employer to challenge a citation issued by the Secretary

before the Review Commission. 29 U.S.C. § 659(c). When an employer challenges

a citation, an ALJ for the Review Commission shall hear the grievance and "make a

report of any such determination which constitutes his final disposition of the

proceedings." 29 U.S.C. § 661(j). Absent further discretionary action by a Review

Commission member, "[t]he report of the [ALJ] shall become the final order of the

Commission within thirty days after such report by the [ALJ]." Id. An agency

regulation clarifies that the ALJ's decision becomes the Review Commission's final

order the "thirtieth day following the date of docketing of the Judge's report." 29

C.F.R. § 2200.90(d). If the employer remains unsatisfied with the Review

Commission's final order, the Act allows the employer to seek judicial review by

filing a petition "in [the appropriate court of appeals] within sixty days following the

issuance of such order." 29 U.S.C. § 660(a). 

Here, the ALJ docketed his report on April 4, 2012, and because the Review

Commission did not grant discretionary review, the ALJ's decision became the

Review Commission's final order on May 4, 2012. Therefore, Nyffeler's final day to

seek judicial review wasJuly 3, 2012, sixty days after the final order. Nyffeler seems

to concede that its July 5 petition waslate. However, Nyffeler providesthree reasons

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why the untimely filing does not deprive this court of jurisdiction. First, Nyffeler

argues that because the Secretary did not object to subject matter jurisdiction before

the district court–and in fact provided the wrong final order date to the district

court–the Secretary has waived any challenge to this court's jurisdiction. Second,

according to Nyffeler, because an administrative panel of this court denied the

Secretary's motion to dismiss for want of subject matter jurisdiction, such ruling

became the law of the case. Finally, Nyffeler asserts that whether a petition for

review istimely filed is a question offact, and because the Secretary never challenged

the district court's finding of fact by appealing the transfer order, we are bound by

such factual finding. We find these arguments unpersuasive.

The Supreme Court "has long held that the taking of an appeal within the

prescribed time is mandatory and jurisdictional," and if a party failsto appeal "within

the time limited by the acts of Congress, [the case] must be dismissed for want of

jurisdiction." Bowles v. Russell, 551 U.S. 205, 209, 213 (2007) (internal quotations

omitted). The statutory limitation is rigid. "The parties cannot waive it, nor can a

court extend that deadline for equitable reasons." Dolan v. United States, 130 S. Ct.

2533, 2538 (2010). Not only may a party never waive the court's jurisdictional

authority to hear a case, but we "have an independent obligation to determine

whether subject-matter jurisdiction exists, even in the absence of a challenge from

any party." Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Accordingly, we find

it of no consequence that the Secretary mistakenly believed that Nyffeler's petition

was timely before the district court.

We are also unconcerned that a prior administrative panel for this circuit denied

the Secretary's motion to dismiss for want of jurisdiction. As the present case

illustrates, administrative panel review is generally "summary in character, made

often on a scanty record, and not entitled to the weight of a decision made after

plenary submission." In re Rodriguez, 258 F.3d 757, 759 (8th Cir. 2001) (per curiam)

(quotation omitted). Thus, the prevailing view in this circuit is that "a hearing panel

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of this court to whom the entire case has been referred for disposition isfree to revisit

a motion to dismiss for want of appellate jurisdiction even though an administrative

panel of the court has previously denied such a motion." Id. at 758; see also Iowa

League of Cities v. E.P.A., 711 F.3d 844, 854-55 n.1 (8th Cir. 2013) ("Our ability to

make a final decision on jurisdiction is unaffected by the rulings of [prior

administrative panels.]"); 18B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 4478.5 (2d ed.) (discussing appropriateness of merits panel

reconsidering jurisdiction and timeliness of appeal).

Despite this clear jurisprudence on the issue, precedent predating this circuit's

now-prevailing view suggeststhat an administrative panel's decision to deny a motion

to dismiss for lack of jurisdiction becomes "the law of the case, ordinarily to be

adhered to in the absence of clear error or manifest injustice." McCuen v. Am. Cas.

Co. of Reading, Pa., 946 F.2d 1401, 1403 (8th Cir. 1991); see also Ritchie Special

Credit Invs., Ltd v. United States Tr., 620 F.3d 847, 856 (8th Cir. 2010) (Colloton,

J., concurring). For the law of the case doctrine to have any application, however, the

prior administrative panel must have actually decided the specific jurisdictional issue. 

See 18B Wright & Miller, Federal Practice and Procedure § 4478 (2d ed.) ("Actual

decision of an issue is required to establish the law of the case. Law of the case does

not reach a matter that was not decided."). In this vein, we have refused to apply the

doctrine where a decision fails to provide "sufficient directness and clarity to

establish the settled expectations of the parties necessary for the subsequent

application of the law of the case doctrine." First Union Nat'l Bank v. Pictet Overseas

Trust Corp., 477 F.3d 616, 621 (8th Cir. 2007).

Here, there are at least three reasons the administrative panel may have denied

the Secretary's motion, two of which have nothing to do with the jurisdictional merits. 

To be sure, the panel may have denied the motion to dismiss for failing to satisfy the

fourteen-day rule time limitation. See 8th Cir. R. 47A(b). Additionally, the

administrative panel may have accepted Nyffeler's invitation to allow the hearing

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panel to decide the jurisdictional question. Consequently, even if a hearing panel

should "ordinarily" adhere to an administrative panel's jurisdictional determination

on a motion to dismiss, here, as is often the case, the administrative panel's decision

lacks "sufficient directness and clarity" for us to know whether the administrative

panel even reached the jurisdictional merits. Accordingly, to the extent McCuen and

other decisions, as the earlier precedent, arguably have precedential force on this

issue, see United States v. Johnson, 688 F.3d 494, 501 (8th Cir. 2012), we conclude

that the law of the case doctrine does not apply under present circumstances, and,

therefore, the prior administrative panel's ruling does not constrain our ability to

consider the jurisdictional question. 

Finally, we reject Nyffeler's argument that the Secretary wasrequired to appeal

the transfer order to challenge the district court'sfindings on the petition's timeliness. 

First, to label the district court's order as containing any findings of fact is a generous

reading of that order. Second, under the federal transfer statute, 28 U.S.C. § 1631,

"[a] transfer can remedy the mistake of filing in the wrong court, but not the mistake

of filing in an untimely manner." Hyun Min Park v. Heston, 245 F.3d 665, 667 (8th

Cir. 2001) (alteration in original) (quotation omitted). When a party files an untimely

notice of appeal in the wrong court, that court lacks authority to transfer. See id. 

And, even if a transfer order has not been appealed, "it is incumbent upon this court

to establish that it has jurisdiction as a result of that transfer as this court has only the

jurisdiction that Congress has conferred upon it by statute." In re Apex Oil Co., 884

F.2d 343, 346 (8th Cir. 1989) (internal quotation omitted); see, e.g., Waste Mgm't of

Ill. v. E.P.A., 945 F.2d 419, 421 (D.C. Cir. 1991) (per curiam) (dismissing untimely

petition for review after transfer from district court under § 1631). Here, due to the

untimely petition, the district court never had authority to transfer the case to this

court pursuant to § 1631, and regardless of whether that order has been appealed, we

must still determine whether we have jurisdiction as a result of the transfer. Given

the untimely petition, we have no jurisdiction under § 660(a).

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III. CONCLUSION

We dismiss the petition for review for want of jurisdiction. 

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