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The Occupational Safety and Health Review Commission denied a petition to review an order by one of its administrative law judges even though the commission agreed that the judge’s order was erroneous.
The commission rejected by a 2-1 margin a Jan. 23, 2018, petition seeking interlocutory review of Administrative Law Judge John Gatto’s order denying the Secretary of Labor’s motion to dismiss the late Notice of Contest of Apopka, Florida-based plumbing, heating and air conditioning contractor Randall Mechanical Inc., according to commission documents. The company received a citation from the U.S. Occupational Safety and Health Administration on July 3, 2017, and had until July 25 to submit a timely notice under the 15-working-day period specified in the Occupational Safety and Health Act. If the employer fails to notify the department within this period that it contends to contest the citation or the proposed penalty, the citation is deemed a final order of the commission.
But Randall waited until Sept. 19 to submit its notice, which the judge determined was due to “excusable neglect.” The judge applied factors outlined by the U.S. Supreme Court in a 1993 case called Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. P’ship in determining that granting relief would not result in prejudice to the secretary, the length of delay would not adversely affect the judicial proceeding, and Randall acted in good faith.
Randall attributed the delay to OSHA not informing the company that the notice had to be in writing, but the judge determined this excuse lacked merit because the citation explicitly provided the relevant information – that the notice had to be in writing – in underlined, bold text. However, the judge granted relief based on the other three factors favoring Randall and on his finding that Randall alleged a meritorious defense – a decision challenged by the secretary.
In their opinion, Commission Chair Heather MacDougall and Commissioner James Sullivan determined that petitions for interlocutory review should be granted “sparingly.”
“In many of the petitions for interlocutory review filed with the commission, the issues presented are familiar and almost routine – these are no more worthy of immediate appeal than any other interlocutory rulings,” they said. “Indeed, to grant interlocutory review in these cases would open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.”
“While the commission’s decision to permit interlocutory review is a discretionary one, the kind of error likely to warrant such review is typically one of law that involves an issue on which the commissioners could reasonably disagree, as opposed to an incorrect application of law to facts,” they said.
The commissioners said, “error alone, even if obvious, is typically not a basis for interlocutory review,” in rejecting the Secretary of Labor’s review petition.
But the commissioners noted that precedent determines that employers “have an obligation to read a citation with sufficient care.”
“If the reason for the delay is, itself, inexcusable, then a late (notice of contest) cannot possibly be the result of excusable neglect,” the judges stated.
However, Commissioner Cynthia Attwood dissented from the denial of interlocutory review because the judge’s order “flatly contradicts clear commission precedent on an ‘important question of law or policy about which there is substantial ground for difference of opinion.’”
“My colleagues appear to agree that the judge’s order is erroneous but nonetheless decline to grant interlocutory review presumably because there is not ‘substantial ground for difference of opinion,’” Ms. Attwood said. “In other words, my colleagues appear to have concluded that a judge’s plain error cannot be corrected through interlocutory review even though such correction would result in dismissal of the case.”
Ms. Attwood said she found it “very troubling” that the judge explicitly acknowledged precedential factors in the case.
“A commission judge is not free to decide cases in ways that directly conflict with commission precedent,” she said. “Because the judge in this case obviously ignored binding commission precedent, interlocutory review is warranted.”
An OSHA spokesperson could not be immediately reached for comment.
President Donald Trump plans to nominate Heather L. MacDougall to the Occupational Safety and Health Review Commission, the White House said in a statement Tuesday.