Case Information
*1 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 *3 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 re- file 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] strikes the pending motion, the Court is free 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 *4 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 was July 3, 2012, sixty days after the final order. Nyffeler seems to concede that its July 5 petition was late. However, Nyffeler provides three reasons *5 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 is timely filed is a question of fact, 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 fails to appeal "within
the time limited by the acts of Congress, [the case] must be dismissed for want of
jurisdiction." Bowles v. Russell,
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,
Despite this clear jurisprudence on the issue, precedent predating this circuit's
now-prevailing view suggests that 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.,
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
*7
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,
Finally, we reject Nyffeler's argument that the Secretary was required to appeal
the transfer order to challenge the district court's findings 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,
III. CONCLUSION
We dismiss the petition for review for want of jurisdiction.
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