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 Feb. 1, 2001. Decided May 10, 2002.
291 F.3d 219
We note that the court‘s finding that “the witnesses against [Blount] refuted that testimony” was amply supported by the testimony of coconspirators such as Pollard, Best, Fluitt, and Troy Streater, discussed in Parts II.D.1. and 2. above, describing the functioning of Streater‘s organization and Blount‘s role as Streater‘s lieutenant.
CONCLUSION
We have considered all of defendants’ arguments on these appeals and have found in them no basis for reversal. The judgments of conviсtion are affirmed.
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 Feb. 1, 2001.
Decided May 10, 2002.
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.
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.”
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
Provided an employer files a timely notice of contest, the Secretary will fоrward 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.”
The OSH Act authorizes the Commission “to make such rules as are necessary for the ordеrly transaction of its proceedings.”
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 congressiоnal 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
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 limitаtions. 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 exеrcising 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
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
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 response to motions for relief from final judgment brought under
Although the Secretary has consistently opposed the Commission‘s asserted authority tо grant relief under
II. Factual Background.
In May 1998, OSHA issued five citations to Russell P. Le Frois Builder, Inc. (“Le Frois“) for “serious” violations of workplace safety-regulations that it discovered during an inspection conducted two months earlier. OSHA sent notice of the citations to Le Frois by certified mail proposing a total of $11,265 in penalties.
A Le Frois secretary retrieved the notice from the post оffice but subsequently misplaced it. Apparently it slipped behind a seat in her automobile. She did not discover the notice until July 6, 1998, well after the fifteen-working-day deadline for Le Frois to file a notice of contest. Nonetheless, Le Frois promptly contacted the Commission and filed its notice of contest on July 8. OSHA forwarded the notice to the Commission and moved before the ALJ assigned to the matter to dismiss the notice as untimely.
The ALJ applied
On remand, the Secretary maintained the position that the Commission lacked jurisdiction to entertain the notice of contest because of the fifteen-working-day deadline in § 10(a). The ALJ nonetheless vacated the citations, and the Commission declined to review the vacatur, making the ALJ‘s ruling a final, appeаlable order. See
DISCUSSION
I. Appellate Jurisdiction
We address at the outset whether this matter presents an Article III case or controversy over which we have appellate jurisdiction. The Secretary, appearing by the Solicitor of the Department of Labor, brought and perfected this appeal. Apparently because of the relatively modest sum at stake, however, Le Frois refrained from employing counsel to represent it on appeal. It submitted only a letter from a lay company-official asking us to affirm “based upon the decision rendered and the evidentiary record below.”7 Consistent with its agency practice, the Commission also declined to file a brief or make an appear-
Under these circumstances, we requested letter briefs from the Secretary, the Commission, and amici addressing whether Le Frois‘s absence on appeal divests us of jurisdiction. All of the parties contend that it does not, and upon consideration, we agree. Le Frois‘s decision not to participate actively affects neither the adverse status of the parties nor the concrete nature of their controversy. Le Frois stands to lose more than $11,000 if we reverse; conversely, the Secretary stands to lose the right to impose that sanction if we affirm. Confronted with similar circumstances, other federal courts of appeals have sustained appellate jurisdiction. See, e.g., Brennan v. OSHRC (Hanovia Lamp Div., Canred Precision Indus.), 502 F.2d 946, 948 (3d Cir.1974); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230, 232 (5th Cir.1973); see also Casco Indemn. Co. v. R.I. Interlocal Risk Mgt. Trust, 113 F.3d 2, 3-4 (1st Cir.1997) (considering an appeal where only the appellant filed a brief and collecting cases finding this practice appropriate); cf.
II. Standard of Review
We uphold an order of an administrative agency such as the Commission unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
III. Analysis
A. Deference to Agency Interpretation
This dispute requires us to resolve a question of statutory interpretation as to which two administrative agents—the Secretary and the Commission—offer competing views. At the outset we must therefore decide (1) to which of these agents’ interpretations, if either, we owe deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), or Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); and (2) the nature and extent of that deference.
The Supreme Court recently held in United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), that an agency interpretation “qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority,” id. at 226-27, 121 S.Ct. 2164 (emphasis added). Otherwise, the Court noted, the agency‘s interpretation may merit the more limited deference recognized in Skidmore. See id., 533 U.S. at 234-35, 121 S.Ct. 2164. For purposes of analysis, then, we must first decide to whiсh administrative actor—the Secretary or the Commission—Congress “delegated authority ... to make rules carrying the force of law.” Id. at 226-27, 121 S.Ct. 2164. Only then can we decide the nature or extent of that deference.
1. The Delegation of Authority Under the OSH Act.
In Martin v. OSHRC, 499 U.S. 144, 152, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991), the Supreme Court deferred to the Secretary rather than the
Consistent with this allocation of authority, in order to decide where the Secretary‘s rule-making and enforcement power ends and the Commission‘s administrative jurisdiction begins, courts generally defer to the Secretary‘s interpretation of the OSH Act rather than the Commission‘s. See, e.g., Martin v. Pav-Saver Mfg. Co., 933 F.2d 528, 531-32 (7th Cir.1991) (deferring to the Secretary rather than the Commission in a dispute over the Commission‘s jurisdiction to conduct hearings when аn employer‘s notice of contest is made orally rather than in writing); Sec‘y of Labor v. Barretto Granite Corp., 830 F.2d 396, 398-400 (1st Cir.1987) (same); Donovan, 713 F.2d at 930 n. 18 (declining to defer to the Commission in determining whether it has jurisdiction to review settlement agreements between cited employers and the Secretary).
Because Congress delegated rulemaking authority under the OSH Act to the Secretary, we similarly conclude that the Secretary, not the Commission, has authority to interpret the statute with respect to the present question, and we should therefore defer to the views of the Secretary rather than the Commission. See Mead Corp., 533 U.S. at 226-27, 121 S.Ct. 2164.
2. The Appropriate Level of Deference Following Mead.
To determine what level of deference we owe to the Secretаry‘s interpretation of the Act under Mead Corp., we consider whether “the agency interpretation claiming deference was promulgated in the exercise of [the Secretary‘s rule-making] authority,” id. at 227, 121 S.Ct. 2164. The Secretary‘s contention that § 10 of the Act does not confer on the Commission the power to excuse late filing pursuant to the terms of
An informal opinion, “which lack[s] the force of law,” does not receive full Chevron deference. Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Rather, we apply the more limited standard of deference set forth in Skidmore, 323 U.S. at 140, 65 S.Ct. 161. See Mead Corp., 533 U.S. at 234-35, 121 S.Ct. 2164; Christensen, 529 U.S. at 587, 120 S.Ct. 1655. Applying Skidmore deference, an agency opinion is “‘entitled to respect,’ ... but only to the extent that [it has] ‘the power to persuade.‘” Christensen, 529 U.S. at 587, 120 S.Ct. 1655 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). Skidmore requires consideration of an agency‘s “thorоughness, ... the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161; see also Mead Corp., 533 U.S. at 234-35, 121 S.Ct. 2164 (reiterating the Skidmore test); Thomas W. Merrill & Kristin E. Hickman, Chevron‘s Domain, 89 Geo. L.J. 833, 836, 855 (2001) (explaining that Skidmore compels a “more nuanced, context-sensitive rubric” whereby “courts must assess [agency] interpretation against multiple factors and determine what weight they should be given“).
Applying Skidmore, we conclude that in this instance the Secretary‘s view merits deference. The case law stresses the delicacy and importance of the Secretary‘s role, contrasting it with the more limited function assigned by Congress to the Commission. See, e.g., Martin, 499 U.S. at 153, 111 S.Ct. 1171 (noting that as “the administrative actor in the best рosition” to develop “historical familiarity and policymaking expertise,” the Secretary has interpretative authority); Pav-Saver Mfg. Co., 933 F.2d at 531 (noting the Secretary‘s “multifaceted—and delicate—enforcement responsibilities” during the fifteen working days after issuance of a citation). Institutional competence thus militates in favor of deference to the Secretary‘s view. Furthermore, Congress made enforcement of the Act “the exclusive prerogative of the Secretary.” Pav-Saver Mfg. Co., 933 F.2d at 530 (citations omitted); see also Donovan, 713 F.2d at 927 (“[P]ublic rights created by the Act are to be protected by the Secretary.“). Finally, we have noted that “courts construing statutes enacted specifically to prohibit agency action ought to be especially careful not to allow dubious arguments advanced by the agency to thwart congressional intent expressed with reasonable clarity.” Indep. Ins. Agents of Am., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 838 F.2d 627, 632 (2d Cir. 1988). We conclude that this principle is applicable in this case because § 10(a) of the Act expressly mandates that where an employer fails to file a timely notice of contest in response to a citation, “the citation and the assessment shall be deemed a final order of the Commission and not subject to review by any court or agency.”
B. The Commission‘s Power under Rule 60(b)
We thus arrive at the principal question presented by this appeal: whether the Commission has jurisdiction under
Amici cite J.I. Hass Co. v. OSHRC, 648 F.2d 190 (3d Cir.1981), for the contrary proposition that “the Commission has some residual authority over uncontested citations,” such that it may, in the exercise of that аuthority, grant relief under
We disagree. In our view this interpretation fails to recognize the import of the word “deemed” in the statute. When an employer misses a deadline, the citation does not “become” a final order of the Commission on the basis of which it can grant
For these reasons, we conclude that the Commission may not exercise jurisdiction based on
C. Caveat: Section 10(a) as Statute of Limitations
No party to this appeal contends that Le Frois was entitled to equitable tolling, but
CONCLUSION
For the foregoing reasons, we grant the Secretary‘s petition for review and reverse the order of the Commission.
POOLER, Circuit Judge, dissenting.
I respectfully dissent. The majority describes the central question on this appeal as “whether the [Occupational Safety and Health Review Commission] has jurisdiction under
If, 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.
(emphasis added). In contrast, I believe there are two central issues: (1) whether the Commission has the inherent authority to reconsider or reopen its оwn deemed orders and (2) if so, whether the excusable neglect standard set forth in
“Review” used by itself suggests an examination of the determination of an inferior tribunal. See Black‘s Law Dictionary 1320 (7th ed.1999) (describing as forms of “review,” appellate review of the decisions of lower courts or administrative agencies). “Reconsider” and “reopen,” on the other hand ordinarily refer to a reexamination of a tribunal‘s own decision or order. Section 659(a) prohibits review but does not prohibit reconsideration or reopening. The absence of a prohibition is important because we have long recognized “that an agenсy may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review” as long as it does so reasonably promptly and on notice to the prevailing party. Dun & Bradstreet v. U.S. Postal Serv., 946 F.2d 189, 193 (2d Cir.1991). Section 659(a)‘s silence on reconsideration or reopening of Commission orders strongly suggests that the Commission has the inherent power to reconsider or reopen its own final orders including its deemed orders.
The majority, however, holds that because the Commission‘s order is only a “deemed” order, it is not subject to reopening or reconsideration. The premise underlying this holding is that the Commission never acquired jurisdiction over the controversy under
The Secretary also argues that even if the Commission has jurisdiction to reopen or reconsider its orders, it erred by reopening based only on a finding of excusable neglect. The Secretary contends that only facts sufficient to demonstrate equitable tolling will justify reopening a deemed order. Because the majority found no jurisdiction, it did not reach this alternative argument. Having concluded that the Commission did have jurisdiction, I also conclude that it properly employed an excusable neglect standard. The Commission сonducts its proceedings in accordance with the
In sum, although
Angelo F. GRILLO, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Nora Bassett, Individually and in her Official Capacity, Elizabeth Soto, Individually and in her Official Capacity, Bonnie Lee, Individually and in her Official Capacity, Karl Miller, Individually and in his Official Capacity, City of New York, NYC Department of City Wide Administrative Services, Peter Ingoglia, Richard Wachenheim, Defendants-Appellees.
Docket No. 01-7090.
United States Court of Appeals, Second Circuit.
Argued Dec. 4, 2001.
Decided May 17, 2002.
Notes
If, within fifteen working days from the receipt of the notice issued by the Secretary the еmployer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, 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.
Section 10(b) contains an identical finality provision regarding notices issued by the Secretary alleging that an employer has failed to correct a violation within the abatement period sеt forth in a prior citation. See
Nor do we think that the “review” that the statute prohibits encompasses only “examination of the determination of an inferior tribunal,” dissent at 230, and not “reexamination of a tribunal‘s own decision.” Indeed, Black‘s Law Dictionary defines “review” to include “consideration” and “inspection.” Black‘s Law Dictionary 1320 (7th ed.1999). The definition quoted by the dissent is under the heading of “Appellate Review.” Id.
In sum, we do not think that the Commission can “reconsider” that which it is prevented by law from considering in the first place.