Fifth Circuit Reverses Occupational Safety and Health Commission’s Ruling on Late Response to Citation Notice

On November 6, 2019 the United States Court of Appeals for the Fifth Circuit reversed the Occupational Safety and Health Commission’s (the “Commission”) decision that a company’s late response to a citation notice, which rendered the citation an unreviewable final order, constituted “inexcusable neglect” when the delay was caused by a “single instance of unforeseen human error.” See Coleman Hammons Construction Co. v. Occupational Safety and Health Review Commission, 942 F.3d 279 (5th Cir. 2019). The plaintiff, Coleman Hammons, received four citation notices from the Occupational Safety and Health Administration (“OSHA”), which had sent the notices via certified mail. Coleman Hammons’s normal procedure for delivering time-sensitive mail was that the office manager would forward the mail to the appropriate project superintendent at the job site. However, on the day the notices were received, the office manager was not present and another employee simply left the OSHA notices on the superintendent’s desk at the office rather than forwarding them to the superintendent at the job site. The superintendent did not return to the office from the job site until over a month later, after the deadline to respond had passed.

Coleman Hammons argued to an Administrative Law Judge (ALJ) that, although its response was untimely, the error was “excusable neglect” under Federal Rule of Civil Procedure 60(b)(1) and that the company should be released from the order rendering the OSHA citations final and unreviewable.  The ALJ rejected the argument, holding that the error was “inexcusable” and the citation orders were final since the reason for the delay was within the company’s control. The Commission upheld the ALJ’s ruling.

The Fifth Circuit reversed the Commission’s decision, holding that the company’s error was “excusable neglect” and that it should be allowed to file its challenges to the citation notices with the Commission, even though they were untimely. The Court held the error was “excusable neglect” because the delay was not caused by the company’s bad faith, did not delay the proceedings, and did not prejudice the government. Further, the Court found the company’s procedures for processing mail were adequate and the mistake was clearly a “single instance of unforeseen human error.” The Court also rejected the Commission’s virtually exclusive emphasis on whether the reason for delay was within the company’s control, holding that such an approach was inconsistent with the United States Supreme Court’s “more lenient and comprehensive standard” when interpreting Rule 60(b)(1). Accordingly, the Court held Coleman Hammons’s error constituted “excusable neglect” and that it was entitled to assert its defenses to OSHA’s citation notices.

Stanley Reuter has experience in handling both employment law and administrative law matters and can help your business navigate similarly challenging situations.