Chao v. Russell P. Le Frois Builder, Inc.

• Citation: 291 F.3d 219
• Decision Date: 10 May 2002
• Docket Number: Docket No. 00-4057.
• Parties: Elaine M. CHAO, Secretary of Labor, Petitioner, v. RUSSELL P. LE FROIS BUILDER, INC.; Occupational Safety and Health Review Commission, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

291 F.3d 219

Elaine M. CHAO, Secretary of Labor, Petitioner, v. RUSSELL P. LE FROIS BUILDER, INC.; Occupational Safety and Health Review Commission, Respondents.

Docket No. 00-4057.

United States Court of Appeals, Second Circuit.

Argued February 1, 2001.

Decided May 10, 2002.

COPYRIGHT MATERIAL OMITTED

Ronald J. Gottlieb, Office of the Solicitor, United States Department of Labor (Henry L. Solano, Solicitor of Labor, Joseph M. Woodward, and Ann Rosenthal, of counsel), Washington, DC, for Petitioner.

Arthur G. Sapper, McDermott, Will & Emery, Washington, DC, for Amici Curiae The National Federation of Independent Business and The Kitchen Cabinet Manufacturers Association.

Before: STRAUB, POOLER, and SACK, Circuit Judges.

SACK, Circuit Judge.

Title 29 U.S.C. § 661(g), a part of the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651-78 (the "OSH Act" or the "Act"), provides that the Occupational Safety and Health Review Commission (the "Commission" or the "OSHRC") shall, in the absence of a contrary rule adopted by the Commission, hold its proceedings "in accordance with the Federal Rules of Civil Procedure," id. § 661(g). This appeal requires us to decide whether the Commission may, by dint of this subsection, exercise jurisdiction to excuse an employer's failure to file a timely notice of contest in response to a citation by the Occupational Safety and Health Agency ("OSHA") based on the Commission's finding that the failure was caused by the employer's "inadvertence" or "excusable neglect." Fed.R.Civ.P. 60(b)(1). We hold that it may not.

BACKGROUND

I. Statutory Background

A. Relevant Provisions

Congress enacted the OSH Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b). It assigned responsibility for implementing the Act to two administrative actors: the Secretary of Labor (the "Secretary")¹ and the Commission. See Martin v. OSHRC, 499 U.S. 144, 147-48, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). The Act vests the Secretary with rule-making powers and charges him or her to "set[] and enforc[e] workplace health and safety standards." Id. at 147, 111 S.Ct. 1171. The Secretary exercises power largely through OSHA, see id. at 147 n. 1, 111 S.Ct. 1171, which enforces the Secretary's standards by, inter alia, issuing citations and proposing penalties against employers whom it finds to be in violation of them. See 29 U.S.C. §§ 658, 659. The Commission, by contrast, bears responsibility for "adjudicatory functions" under the Act. Id. § 651(b)(3). It provides a forum in which employers may contest the merits of OSHA citations and proposed penalties. See Martin, 499 U.S. at 148 111 S.Ct. 1171.²

If an OSHA inspection or investigation reveals that, in OSHA's view, an employer has violated the OSH Act or an OSHA rule or regulation, OSHA must issue a citation to the employer describing the violation and fixing a reasonable time for its abatement. See 29 U.S.C. § 658(a). Section 10(a) of the Act³ requires OSHA to "notify the employer by certified mail of the penalty, if any, proposed to be assessed" with respect to the alleged violation. 29 U.S.C. § 659(a). An employer may contest a citation or proposed penalty by filing a notice of contest with the Secretary within fifteen working days after receiving notice of the citation.⁴ See id.

Provided an employer files a timely notice of contest, the Secretary will forward it to the Commission. The Commission must then "afford [the employer] an opportunity for a hearing ... [and] thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief." 29 U.S.C. § 659(c).⁵ If a cited employer fails to file a timely notice of contest, however, the Secretary's citation and proposed penalty "shall be deemed a final order of the Commission and not subject to review by any court or agency." Id. § 659(a).⁶

The OSH Act authorizes the Commission "to make such rules as are necessary for the orderly transaction of its proceedings." Id. § 661(g). But "[u]nless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure." Id. Both the Secretary and the employer may seek judicial review of an adverse final order of the Commission in a federal court of appeals. See id. § 660(a), (b). But "unless otherwise ordered by the court," judicial "review" of orders that are deemed final under § 10(a), i.e., because of the employer's failure to contest the citation within fifteen working days, consists of no more than the entry of "a decree enforcing the order." Id. § 660(b).

B. Interpretations of the Commission's Jurisdiction

The Commission "is no more than a creature of Congress," Brennan v. OSHRC (S.J. Otinger, Jr., Constr.Co.), 502 F.2d 30, 32 (5th Cir.1974), and its jurisdiction and substantive powers therefore derive only from an affirmative congressional grant of authority. The Commission and the Secretary identify three textual bases in the Act for Commission jurisdiction, but disagree on which are valid.

First, both the Commission and the Secretary agree that, provided the Secretary advises the Commission of an employer's notice of contest, and the notice unequivocally satisfies the fifteen-working-day deadline, the Commission has jurisdiction under § 10. See 29 U.S.C. § 659(c). None of the parties contend that jurisdiction exists on this ground here.

Second, both the Commission and the Secretary assert that the Commission may interpret the fifteen-working-day deadline as the functional equivalent of a statute of limitations. If that is correct, then the Commission may have the authority to equitably toll the limitations period under certain circumstances. "Equitable tolling is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000); see, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (equitable tolling appropriate "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, [or] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass"); Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996) (equitable tolling appropriate where a party is "prevented in some extraordinary way from exercising his rights") (citation and internal quotation marks omitted). The Commission might, for example, decide to toll the fifteen-working-day period where extenuating circumstances prevented an employer's timely delivery of a notice of contest. This equitable power, if it exists, derives from the Commission's authority to interpret and apply § 10, the statutory provision that confers jurisdiction upon it. Some courts have upheld the application of the doctrine of equitable tolling by the Commission. See, e.g., Atl. Marine, Inc. v. OSHRC, 524 F.2d 476, 478 (5th Cir.1975) (per curiam) (noting that equitable tolling is permitted where the Secretary violates his or her own regulations and the employer suffers "actual prejudice" as a result). Because equitable tolling "do[es] not extend to what is at best a garden variety claim of excusable neglect," Irwin, 498 U.S. at 96, 111 S.Ct. 453, which, as we shall see, is the case here, even if the Commission has power to equitably toll the fifteen-working-day period, it could not do so in order to hear Le Frois's case.

Finally, the Commission alone contends that it can also exercise jurisdiction under 29 U.S.C. § 661(g), which provides that except where the Commission has adopted a different rule, its "proceedings shall be in accordance with the Federal Rules of Civil Procedure," id. The Commission interprets § 661(g) to authorize it to excuse an employer's untimely filing under some circumstances because Rule 60(b) of the Federal Rules of Civil Procedure allows the adjudicator to excuse a party "from a final judgment, order, or proceeding for [inter alia] ... mistake, inadvertence, surprise, or excusable neglect." Fed. R.Civ.P. 60(b)(1). Jurisdiction predicated on Rule 60(b), if it exists, would supplement the preceding two theories because § 10(a) does not, by its terms, authorize the Commission to exercise jurisdiction over inadvertently late filings that are barred by the fifteen-working-day deadline and not amenable to equitable tolling. See Irwin, 498 U.S. at 96, 111 S.Ct. 453. Rule 60(b), by contrast, vests the adjudicator with discretion to exercise jurisdiction under these circumstances.

In this case the sole issue is whether the Commission may consider a late-filed notice of contest where it finds that the employer's tardiness was caused by "inadvertence... or excusable delay," as it held in the present case. Russell B. Le Frois Builder, Inc., OSHRC Docket No. 98-1099, 1999 WL 820637, 1999 OSAHRC LEXIS 87 (Sept. 30, 1999). The answer would be "yes" under Fed.R.Civ.P. 60(b), but "no" under either of the first two theories of jurisdiction. See Irwin, 498 U.S. at 96, 111 S.Ct. 453 (noting that equitable tolling "do[es] not extend to ... excusable neglect"); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (distinguishing jurisdictional requirements from statutes of limitation, which are subject "to waiver, estoppel, and equitable tolling"). A decision in this case, then, requires only a determination whether the Commission has jurisdiction under Fed.R.Civ.P. 60(b).

C. Changing Interpretations of the Commission's Jurisdiction

The Commission and the Secretary's views on this issue have changed over time. Beginning in 1974, the Commission took the position that it lacked "subject matter jurisdiction" under § 10(a) to consider late-filed notices of contest under any circumstances, including in...