Eighth Circuit Emphasizes 60-Day Period To Seek Judicial Review Of OSHA Citations Is Strict Deadline
The Occupational Safety and Health Act permits an employer to challenge a citation issued by the Secretary of Labor before the Occupational Safety and Health Review Commission. When this is done, the Review Commission appoints an ALJ to hear the grievance and issue a decision. That ALJ decision becomes the final order of the Review Commission absent further discretionary action by the Review Commission on the “thirtieth day following the date of docketing of the Judge’s report.” 29 C.F.R. § 2200.90(d). The aggrieved employer, however, can seek judicial review by filing a petition “in [the appropriate U.S. Court of Appeals] within sixty days following the issuance of such order.” 29 U.S.C. § 660(a).
With that background, consider an Omaha, Nebraska construction company’s recent challenge of OSHA citations for failing to use fall protection and failing to provide employees a training program to recognize fall hazards. Law school civil procedure professors will no doubt relish the following.
The reviewing ALJ docketed his report on April 4, 2012 upholding the citations. The Review Commission did not grant discretionary review. Accordingly, the ALJ decision became the Review Commission’s final order on May 4, 2012. The sixty day filing period in which to seek judicial review expired on July 3, 2012, but the company filed its petition on July 5. Adding to the complexity, the company filed its petition in the U.S. District Court for the District of Nebraska and not the U.S. Court of Appeals for the Eighth Circuit. In response to the filing, the U.S. Secretary of Labor filed a motion to transfer the case to the Eighth Circuit but in the motion, incorrectly informed the district court that the Review Commission’s order became final on May 7, 2012, which would have made the company’s appeal timely. The district court transferred the case to the Eighth Circuit pursuant to 28 U.S.C. § 1631. After the case was transferred, the Secretary of Labor realized that the appeal may not have been timely and moved to dismiss for lack of jurisdiction. The company moved to strike the dismissal motion given that the Secretary failed to comply with the Eighth Circuit’s Local Rule 47A(b) requiring an appellee to file a jurisdictional-based motion to dismiss within fourteen days after a case has been docketed. An administrative panel for the court then denied the Secretary’s motion to dismiss for lack of jurisdiction without explanation.
Yesterday, the Eighth Circuit concluded that it lacked jurisdiction over the case because of the company’s failure to seek judicial review within the sixty days provided by the Occupational Safety and Health Act. The court, finding that it has a duty to always consider its subject matter jurisdiction before deciding a case, rejected the company’s arguments that the Secretary waived the ability to challenge jurisdiction by informing the district court of the incorrect operative date and not objecting to jurisdiction at that stage. The court also rejected the company’s argument that the administrative panel’s ruling became the law of the case because it failed 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” (specifically, the decision could have been based on multiple reasons).
