Coleman Hammons Construction Company sought to challenge four OSHA citations it had received for workplace safety violations that occurred at one of the company’s construction sites in Pearl, Mississippi, an ALJ and the Occupational Safety and Health Review Commission agreed that the challenge should be dismissed as untimely. Coleman didn’t dispute that its notice of contest arrived 18 working days after the statutory deadline, see 29 U.S.C. § 659(a). Instead, Coleman argued that its error amounted to “excusable neglect” and deserved relief from the statutory under Federal Rule of Civil Procedure 60(b)(1), which applies to Commission proceedings. See 29 U.S.C. § 661(g).

The Commission acknowledged that Coleman was acting in good faith; no prejudice resulted from the delay; and the Secretary stipulated that the company “has a meritorious defense.” Nonetheless, the Commission, in a split decision, concluded the company’s failure was inexcusable because Coleman could have avoided the delay had it exercised reasonable diligence. The Commission explained that Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993), established an equitable, multi-factor test for assessing whether delay was due to “excusable neglect.” Nevertheless, the Commission enforced its longstanding rule that the “key” consideration is whether the delay was within the reasonable control of the movant and, on that basis, affirmed the ALJ’s decision refusing to hear Coleman’s defenses.

The Fifth Circuit in an opinion by Judge Jones held that the Commission erred in placing virtually exclusive emphasis on the reason for Coleman’s delay instead of giving due weight to all of the equitable factors identified in Pioneer. Applying the proper totality of the circumstances standard itself, the Fifth Circuit concluded that the Commission’s refusal to hear Coleman’s defenses was an abuse of discretion.

The Court also dropped this interesting footnote:

We note that a circuit split exists regarding whether the Commission may use Rule 60(b) to grant relief following an untimely notice of contest. Compare Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 228-29 (2d Cir. 2002) with J.I. Hass Co., Inc. v. OSHRC, 648 F.2d 190, 194 (3d Cir. 1981). Here, however, we assume arguendo that Rule 60(b) applies because the parties do not contest its applicability.

Judge Jones also wrote a separate concurring opinion because she “believe[d] a further explanation of [the result] is warranted.” Although the Court “relies on the Third Circuit’s decisions in cases like George H. Harmsand Avon Contractors by reviewing the totality of circumstances and finds the Commission’s decision arbitrary and capricious,” Judge Jones says that “deeper reason for our overruling the Commission lies in its failure to conform its approach to Pioneer with the default judgment case law prevalent under Rule 60(b)(1).”

I’d like to focus on Judge Jones’s discussion of the deference owed (or not) to the Commission in this case:

The Occupational Safety and Health Act provides that the “Commission is authorized to make such rules as are necessary for the orderly transaction of its proceedings. Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.” 29 U.S.C. § 661(g). Federal Rule Civ. Proc. 60(b) statutorily governs this case because the Commission has not determined otherwise. Whether because of its incorporation by statute into OSHRC matters, or simply because the Rule itself is part of the Federal Rules that pertain to federal civil litigation, Rule 60(b)(1) should be interpreted by courts de novo and without deference to the Commission’s unusual and unforgiving approach to the Pioneer decision.”

Judge Jones packs at least three interesting claims into that paragraph:

  1. Courts owe no deference to agency interpretations of Rule 60(b)(1) because it applies to OSHRC matters by statute;
  2. Courts owe no deference to Commission interpretations of Rule 60(b)(1) because it is a Federal Rule of Civil Procedure; and
  3. Courts owe no deference to the Commission’s “approach” to Pioneer.

I agree with the third point, but the first two give me pause. Starting with the claim that courts shouldn’t defer to Commission interpretations of Rule 60(b)(1) because it applies to OSHRC matters by statute, I would assume that, all things being equal, Chevron applies to portions of a statute that are incorporated by reference. If I’m right about that, then why wouldn’t Chevron apply to Federal Rules incorporated into a statute by reference? Perhaps the argument is that no deference to the Commission’s interpretation is warranted since courts have held that Congress delegated interpretive authority under the OSH Act to the Secretary and not the Commission. Fair enough, but that doesn’t support Judge Jones’s claim that courts owe no deference because Rule 60(b)(1) applies to OSHRC matters by statute.

Judge Jones’s second point presumes that courts should not defer to the Commission’s interpretations of the Federal Rules because they “pertain to federal civil litigation.” True enough, but it isn’t obvious to me why that makes courts the best expositors of their meanings (as Judge Jones proceeds to argue). Perhaps the claim is that federal courts are experts in federal civil litigation. Even assuming that expertise in a subject matter makes one a better expositor of laws pertaining to that subject matter, that principle would only support deference to judicial interpretations of the rules as applied in federal civil litigation—not administrative proceedings before the Commission.

Perhaps Judge Jones’s point is that courts write the Rules, see 28 U.S.C. § 2072(a), so they are in the best position to know what they mean. Justice Kagan, in part II.A. of her Kisor opinion (a part joined by only three other Justices) seemed to make a similar point regarding the theoretical justification for Auer deference: “If you want to know what a document means,” she quipped, “ask its author.” But that view is far from unanimously held. See, e.g., Blackstone and Justice Gorsuch.

The case raises some interesting questions and is certainly worth a read.

Deference to Agency Interpretations of Federal Rules: Coleman Hammons Construction Co. v. OSHRC, No. 18-60559 (5th Cir. Nov. 6, 2019)
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