George Harms Constr v. Secretary Labor

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-9-2004
George Harms Constr v. Secretary Labor
Precedential or Non-Precedential: Precedential
Docket No. 03-2215
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PRECEDENTIAL Attorney for Petitioner
UNITED STATES Ronald J. Gottlieb, Esquire (Argued)
COURT OF APPEALS United States Department of Labor
FOR THE THIRD CIRCUIT Office of the Solicitor
Suite S-4004
200 Constitution Avenue, N.W.
No. 03-2215 Washington, D.C. 20210
Attorney for Respondent,
Secretary of Labor
GEORGE HARMS
CONSTRUCTION CO., INC.,
a New Jersey Corporation, OPINION OF THE COURT
Petitioner
v. SCIRICA, Chief Judge.
At issue is whether Petitioner
ELAINE L. CHAO,
George Harms Construction Company is
SECRETARY OF LABOR,
entitled to relief under the excusable
UNITED STATES
neglect standard of Fed. R. Civ. P.
DEPARTMENT OF LABOR and
60(b)(1), after it failed to timely file a
OCCUPATIONAL SAFETY &
notice of contest to Occupational Safety
HEALTH REVIEW COMMISSION,
and Health Administration citations and a
Respondents
notice of penalty delivered by certified
mail. We will vacate the Occupational
Safety and Health Review Commission’s
On Petition for Review of a Final Order
final order and remand for a hearing on the
of the Occupational Safety and Health
merits of the OSHA citations.
Review Commission
(OSHRC No. 02-0371) I.
Congress enacted the Occupational
Safety and Health Act to “assure so far as
Argued February 12, 2004
possible” safe working conditions for
“every working man and woman in the
Before: SCIRICA, Chief Judge,
Nation.” 29 U.S.C. § 651(b). The
ROTH and McKEE, Circuit Judges
Secretary of Labor is charged with
enforcement of the Act. But the Secretary
(Filed: June 9, 2004)
has delegated her enforcement duties to
the Assistant Secretary for Occupational
John F. Neary, Esquire (Argued)
Safety and Health, who heads OSHA.
101 Eisenhower Parkway, Suite 300
Secretary’s Order 5-2002, 67 Fed. Reg.
Roseland, New Jersey 07068
65008 (Oct. 22, 2002). OSHA inspects infractions.1 On December 13, 2001,
workplaces for violations. It may issue a O S H A sent citations to Ha rm s
citation for a violation, establish a date for Construction’s post office address by
abatement, and propose a civil penalty. 29 certified mail, return receipt requested.2
U.S.C. §§ 658, 659. An employer can Carol Pelsang, the Harms Construction
contest the citation and proposed penalty employee responsible for handling mail,
before the Occupational Safety and Health signed for receipt of the citations at least
Review Commission. 29 U.S.C. § 661. by December 31, 2001.3
Under section 10(a) of the Act, an
Harms Construction did not file a
employer must file a notice of contest
notice of contest within 15 working days
within 15 working days of receipt of the
of receipt. On January 22, 2002, the
citation or the “the citation and the
citations became final orders of the
assessment, as proposed, shall be deemed
Commission by operation of section 10(a)
a final order of the Commission and not
subject to review by any court or agency.”
29 U.S.C. § 659(a).
1
In the citations, OSHA alleges Harms
The Commission, an independent Construction violated 29 C.F.R. §
adjudicatory body separate from the 1926.350(h), by having a broken gauge on
Department of Labor, acts as a neutral an acetylene cylinder. It also alleges
arbiter in proceedings contesting OSHA Harms Construction violated 29 C.F.R. §
citations. Cuyahoga Valley Ry. Co. v. 1926.501(b)(1), by not providing a
United Transp. Union, 474 U.S. 3, 7 guardrail system, safety net system, or
( 1 9 9 5 ) ( p e r c u r i a m ) . A s s u min g personal fall arrest system on a 10 foot
jurisdiction, an Administrative Law Judge high railroad retaining wall. Both
of the Commission conducts a hearing and “infractions” were corrected during the
issues a report with his determination of course of the OSHA inspections.
the proceeding. 29 U.S.C. § 661(j).
Within thirty days, the Commission may 2
According to OSHA, when abatement
opt to review the ALJ’s report. Id. If no is not an issue, as is the case here, it would
Commissioner directs review, the ALJ’s not include a letter addressed to any
report becomes the Commission’s final particular employee with a citation.
decision. Id. Judicial review may then be
3
sought. 29 U.S.C. § 660. The received date stamped on the
return receipt card was partially obscured
II. by Pelsang’s signature, so the actual day in
OSHA conducted an inspection of December on which the citations were
Harms Construction’s work site in Clifton, received is unknown. They were at least
New Jersey from November 29, 2001 to received by the end of December 2001
December 11, 2001. OSHA found two because “December” and “2001” are
legible.
2
of the Act. 29 U.S.C. § 659(a). On required to sign for all certified mail not
February 28, 2002, more than a month marked “restricted delivery,” place the
after Harms Construction’s notice of mail in a mail handling box, and transport
contest was due, OSHA issued Harms the mail back to Harms Construction’s
Construction a delinquency notice. On headquarters. Then, she would open,
March 8, 2002, Edward Nyland, Harms stamp, sort, and earmark the mail for
Construction’s President, telephoned delivery. If a letter did not identify the
OSHA Assistant Area Director Steve intended recipient, she would determine
Kaplan, informing him he had no record of from prior management instructions who
the citations but that he wanted an should get the mail. Pelsang had been
opportunity to contest and possibly settle instructed to deliver OSHA-related mail to
the matter. Kaplan responded that the Harms Construction’s president. If
return receipt had been signed by an uncertain it was OSHA-related, she was
employee at Harms Construction. Kaplan instructed to ask any corporate officer for
recommended that Harms Construction assistance.
petition OSHA for settlement. That same
The matter was docketed before the
day, Nyland mailed a letter to the
Commission on March 14, 2002. On April
Commission requesting that Harms
1, 2002, the Secretary filed a motion for a
Construction be permitted to file a late
time extension to file her complaint in
notice of contest due to “clerical error” and
order to allow OSHA personnel to pursue
that they try to settle the matter.
settlement with Harms Construction.
Nyland undertook an investigation Three weeks later, on April 23, 2002,
to determine what transpired with the instead of filing a complaint, the Secretary
citations. He interviewed Pelsang, but she filed a motion to dismiss the proffered
told him she had no recollection of the notice of contest as untimely. Harms
citations because of the passage of time Construction cross-moved for excusal of
and the volume of mail that she routinely its tardy notice of contest. It alleged,
handles. Nyland thoroughly searched his among other things, that service was
office and inquired whether any of Harms improper, that it was entitled to relief
Construction’s corporate officers or other under Fed. R. Civ. P. 60(b)(1) or equitable
employees had seen or were aware of the tolling, and that the Secretary had waived
citations. But Nyland was unable to the right to challenge the timeliness of
uncover any information that a Harms Harms Construction’s notice of contest.
Construction employee knew anything On October 9, 2002, an Administrative
about the citations. Law Judge conducted hearings in
connection with the Secretary’s dismissal
Harms Construction’s mailing
motion. At the hearing, OSHA Assistant
procedure, according to Nyland, was for
Area Director Kaplan and Harms
Pelsang to pick up the mail at the
Construction President Nyland testified.
company’s post office box. She was
3
Harms Construction did not call Pelsang to standard when a notice of contest is
testify. untimely filed.4
On February 3, 2003, the ALJ filed III.
his decision and order granting the
A. The Commission’s Authority to
Secretary’s dismissal motion. See Sec’y of
Consider Relief under Fed. R. Civ. P.
Labor v. George Harms Constr. Co., No.
60(b)(1).
02-0371, 2003 OSAHRC LEXIS 19
(OSAHRC Feb. 3, 2003). Without Under section 10(a), if an employer
Pelsang’s testimony, the ALJ held that fails to timely contest a citation within 15
Harms Construction could not demonstrate working days, “the citation and the
excusable neglect. Id. at *5-6. He also assessment, as proposed, shall be deemed
determined that service was proper, that a final order of the Commission and not
the Secretary’s seeking of an extension to subject to review by any court or agency.”
file her complaint to explore settlement did 29 U.S.C. § 659(a). But section 12(g) of
not constitute a waiver of her right to seek the Act provides that the “Commission is
dismissal, and that Fed. R. Civ. P. 60(b)(6) authorized to make such rules as are
should not apply. Id. at *7-10. Harms necessary for the orderly transaction of its
Construction’s petition for discretionary proceedings. Unless the Commission has
review to the Commission, dated February adopted a different rule, its proceedings
18, 2003, was not granted, and the ALJ’s shall be in accordance with the Federal
decision became the final order of the Rules of Civil Procedure.” 29 U.S.C. §
Commission. 661(g). Fed. R. Civ. P. 60(b)(1) provides
that “[o]n motion and upon such terms as
Harms Construction appeals to
are just, the court may relieve a party or a
vacate the Commission’s order and
party’s legal representative from a final
remand for a hearing on the merits of the
judgment, order, or proceeding for the
underlying citations. Harms Construction
argues that it is entitled to the relief of
“excusable neglect” under Fed. R. Civ. P. 4
The Commission had jurisdiction
60(b)(1), that service was improper, that
under 29 U.S.C. § 659. We have appellate
the Secretary waived its challenge to the
jurisdiction under 29 U.S.C. § 660.
untimely notice of contest, that equitable
The Commission’s factual findings
tolling is warranted, and that relief should
must be affirmed if supported by
be granted under Fed. R. Civ. P. 60(b)(6).
substantial evidence on the record as a
Not only does the Secretary dispute those
whole. Reich v. D.M. Sabia Co., 90 F.3d
claims, she also contends that section 10(a)
854, 856 (3d Cir. 1996). Its adjudications
of the Act, 29 U.S.C. § 659(a), precludes
are to be affirmed unless they are arbitrary,
the Commission from considering the Fed.
capricious, an abuse of discretion, or
R. Civ. P. 60(b)(1) “excusable neglect”
contrary to law. Id. (citing 5 U.S.C. §
706(2)(A)).
4
f o ll o w i n g r e a s o n s : ( 1 ) m i s ta k e , desired, no circumstances would ever
inadvertence, surprise, or excusable permit a late notice of contest. Id. at 194.
neglect . . . .” Id. We did “not believe Congress intended
such a harsh result.” Id. For those
Harms Construction contends the
reasons, we held the Commission had
Commission should have found it was
jurisdiction to entertain a late notice of
entitled to relief under the “excusable
contest under Fed. R. Civ. P. 60(b). Id. at
neglect” standard. The Secretary
195.
maintains that under section 10(a),
citations that are not timely contested are The Secretary urges us to reevaluate
“not subject to review by any court or and overrule Hass, claiming that
agency,” which precludes the Commission intervening legal developments have
from applying Fed. R. Civ. P. 60(b)(1). weakened its “‘conceptual
underpinnings.’” United States v. Adams,
The Secretary acknowledges that
252 F.3d 276, 286 (3d Cir. 2001) (quoting
her contention conflicts with J.I. Hass Co.
Patterson v. McLean Credit Union, 491
v. OSHRC, 648 F.2d 190 (3d Cir. 1981), in
U.S. 164, 173 (1989)). The Secretary
which we set aside a Commission order
urges judicial deference to the reasonable
dismissing a late notice of contest and
interpretations of the federal agency
directed the Commission to consider
charged with implementing an ambiguous
whether the employer was entitled to relief
provision of a statute, in this case the
under Fed. R. Civ. P. 60(b). Id. at 195.
Secretary of Labor. See Chevron U.S.A.,
After examining Fed. R. Civ. P. 60(b)’s
Inc. v. Natural Res. Def. Council, Inc., 467
general applicability to Commission
U.S. 837, 842-43 (1984). Since Hass was
proceedings, we held Rule 60(b)
decided, the Secretary notes, the Supreme
authorizes the Commission to reconsider
Court has held that the Secretary, as
its final orders. Id. at 192-94. Although
opposed to the Commission, is charged
the Secretary contended that “since the
w i t h o v e r a l l r e s p o n s ib i l it y f o r
notice of contest was not timely filed, the
administering the Act, and when their
Commission never had jurisdiction in the
interpretations diverge, deference is due to
first place,” we held the Commission must
the Secretary’s reasonable interpretation.
have had jurisdiction at some point or “the
Martin v. OSHRC (CF&I Steel Corp.), 499
citations would be final orders of a
U.S. 144, 156-58 (1991). The ambiguity
Commission which never had jurisdiction,
cited by the Secretary is the conflict
and thus would have no effect.” Id. at 193.
between section 10(a) and section 12(g) of
Reconciling the apparent conflict the Act.
between section 10(a) and section 12(g) to
We recognize that we may
reach the result Congress most likely
reevaluate a precedent in light of
intended, we reasoned that if section 10(a)
intervening authority even without en banc
were interpreted the way the Secretary
consideration. See United States v. Adams,
5
252 F.3d at 286 (“[A]lthough a panel of This is not a situation in which we owe
this court is bound by, and lacks authority deference to “the fruits of notice-and-
to overrule, a published decision of a prior c o m m e n t r u l e m a k i n g o r f o rm a l
panel, a panel may reevaluate a precedent adjudication.” Chao v. Russell P. Le Frois
in light of intervening authority.”) (internal Builder, Inc., 291 F.3d 219, 227 (2d Cir.
quotations omitted). At issue is whether 2002). An informal interpretation that
intervening authority warrants reevaluation “lack[s] the force of law” does not warrant
of the matters resolved in Hass or even full Chevron deference. See Christensen
reconsideration by en banc review. v. Harris County, 529 U.S. 576, 587
(2000). Because Chevron deference need
Despite the Secretary’s assertion, its
not be accorded to the Secretary’s
interpretation of the Act is not entitled to
interpretation that section 10(a) precludes
Chevron def eren ce. An agency
review by the Commission of an untimely
interpretation “qualifies for Chevron
notice of contest, the conceptual
deference when it appears that Congress
underpinnings of Hass have not been
delegated authority to the agency generally
undermined.
to make rules carrying the force of law,
and that the agency interpretation claiming Moreover, Chevron deference only
deference was promulgated in the exercise applies to reasonable interpretations by the
of that authority.” United States v. Mead Secretary. See M artin, 499 U.S. at 158
Corp., 533 U.S. 218, 226-27 (2001). (“[R]eviewing court should defer to the
Otherwise, an agency’s interpretation may Secretary only if the Secretary’s
merit the more limited deference interpretation is reasonable.”) (emphasis
recognized in Skidmore v. Swift & Co., 323 added). Although we made no explicit
U.S. 134 (1944). See Mead, 533 U.S. at comment in Hass, it is at least arguable
234-35 (recognizing that “reasonable that we implicitly found the Secretary’s
agency interpretations carry at least some Fed. R. Civ. P. 60(b)(1) position
added persuasive force where Chevron is unreasonable. See 648 F.2d at 194
inapplicable”) (internal quotations (disagreeing with the Secre tar y’s
omitted); see also Madison v. Res. for interpretation of section 10(a) because we
Human Dev., Inc., 233 F.3d 175, 186 (3d did not believe Congress intended the
C i r . 2 0 00) (“[ I]n f o r m a l a g e n cy “harsh result” that once an employee
interpretations are not binding” but are signed for a citation, “no circumstances
entitled to respect under Skidmore would permit a late notice of contest”).
deference to the extent they are And an interpretation that is arguably
p e r s u a sive.). The Se cr eta ry’ s unreasonable is not sufficiently persuasive
interpretation of section 10(a) was not to warrant Skidmore deference.
developed in the course of a regulatory
On appeal, the Secretary advances
action. Rather, its interpretation represents
an alternative interpretation from that
a position taken in the course of litigation.
which it put forward in Hass—that section
6
10(a) acts as a statute of limitations that neglect or neither, but not one or the other.
may be subject to equitable tolling “where Accordingly, the Secretary’s alternate
the claimant has actively pursued his interpretation does not compel overruling
judicial remedies by filing a defective Hass. Moreover, equitable tolling requires
pleading during the statutory period, . . . deceit or some other extraordinary grounds
has been induced or tricked by his for relief and is not equivalent to the Fed.
adversary’s misconduct into allowing the R. Civ. P. 60(b)(1) excusable neglect
filing deadline to pass,” Irwin v. Dep’t of standard.
Veterans Affairs, 498 U.S. 89, 96 (1990)
We recognize that Hass is in
(footnote om itted), or “in some
conflict with a recent decision of the Court
extraordinary way has been prevented
of Appeals for the Second Circuit, Chao v.
from asserting his or her rights.” Lake v.
Russell P. Le Frois Builder, Inc., 291 F.3d
Arnold, 232 F.3d 360, 370 (3d Cir. 2000)
219 (2d Cir. 2002) (2-1 decision), in which
(internal quotations omitted). This
the court concluded the Commission may
interpretation, the Secretary contends,
not exercise jurisdiction based on Fed. R.
ameliorates the undue “harsh” results that
Civ. P. 60(b)(1). Id. at 229. Like us, the
concerned the Hass court.
court held the Secretary’s interpretation
The Secretary’s alternative was not entitled to Chevron deference. Id.
interpretation does not warrant Chevron at 228. But applying Skidmore deference,
deference because it is an informal the court found persuasive the Secretary’s
opinion. But neither is it persuasive under position that the Commission lacks
the more limited Skidmore deference. We jurisdiction when an employer fails to file
discern no basis for the Secretary’s a timely notice of contest. Id. at 228-29.
contradictory position that the Commission The court disagreed with our reasoning in
lacks jurisdiction to consider relief under Hass that “‘uncontested citations become
Fed. R. Civ. P. 60(b)(1) but has final orders of the Commission’” and that
jurisdiction to consider equitable tolling. the C ommission must have had
A tribunal cannot exercise an equitable jurisdiction at some point because “‘if it
remedy unless it first has jurisdiction. If never had jurisdiction, the citations would
the Commission is not barred by section be final orders of a Commission which
10(a) from applying equitable tolling, as never had jurisdiction, and thus would
the Secretary now asserts, then it also have no effect.’” Id. at 229 (quoting Hass,
should not be barred from granting Fed. R. 648 F.2d at 193). The court reasoned that
Civ. P. 60(b)(1) relief. As noted, section when an employer misses a deadline, the
10(a) provides that the citation “shall be citation does not “become” a final order of
deemed a final order of the Commission the Commission on the basis of which it
and not subject to review by any court or can grant Fed. R. Civ. P. 60(b) relief;
agency.” It would seem to therefore bar instead, under section 10(a), it is “deemed”
both equitable tolling and excusable to be a final order. Id. Accordingly, the
7
court rejected the proposition that the Harms Construction argues the “excusable
Commission has some residual authority neglect” standard must be broadly
over uncontested citations that may permit construed. See Robb v. Norfolk & W. Ry.
it to grant relief under Fed. R. Civ. P. Co., 122 F.3d 354, 361-62 (7th Cir. 1997)
60(b)(1). Id. The dissent agreed with our (acknowledging that “‘excusable neglect’
holding in Hass, reasoning that “whether has a new and broader meaning in the
deemed or actual—an order of the aftermath of the [Pioneer] decision”).
Commission must be one that is within its Although Pioneer involved a Bankruptcy
jurisdiction and thus subject to reopening Rule, subsequent courts have held that
or reconsideration.” Id. at 231 (Pooler, J., Pioneer’s interpretation of excusable
dissenting). The dissent concluded that neglect extends to other federal procedural
though neither section 12(g) of the Act nor rules including Fed. R. Civ. P. 60(b)(1).
Fed. R. Civ. P. 60(b) gives the See Robb, 122 F.3d at 362 n.6 (noting that
Commission jurisdiction, the Commission, some courts have held it to be an abuse of
nonetheless, “has inherent authority to discretion to not grant relief under Fed. R.
reconsider or reopen its own deemed Civ. P. 60(b)(1) in certain missed deadline
orders and Rule 60(b) provides the situations “in light of Pioneer”). Pioneer’s
appropriate standard for acting on an broad construction of the excusable
application to r e o p e n . ” Id. neglect standard applies here as well.
Notwithstanding Le Frois, we believe that
Under Pioneer, the determination
Hass was correctly decided and has not
whether a party’s neglect is “‘excusable’ is
been undermined by more recent
essentially an equitable one, in which
decisions.
courts are to take into account all relevant
For these reasons, Hass is still circumstances surrounding a party’s failure
binding and revision is unwarranted. to file.” Chemetron Corp. v. Jones, 72
Under Hass, section 10(a) is not a bar to F.3d 341, 349 (3d Cir. 1995) (citing
Commission review, and it “has Pioneer, 507 U.S. at 395). The Supreme
jurisdiction to entertain a late notice of Court identified, without limitation, these
contest under” the excusable neglect factors to consider: “the danger of
standard of Fed. R. Civ. P. 60(b)(1). 648 prejudice . . . , the length of the delay and
F.2d at 194-95. its potentia l impa ct on ju dicia l
proceedings, the reason for the delay,
B. The Merits of the Fed. R. Civ. P.
including whether it was within the
60(b)(1) Excusable Neglect Claim.
reasonable control of the movant, and
Harms Construction contends it is whether the movant acted in good faith.”
entitled to relief under Fed. R. Civ. P Pioneer, 507 U.S. at 395.
60(b)(1)’s “excusable neglect” standard.
Harms Construction alleges the
Citing Pioneer Investment Services v.
ALJ erred by weighing too heavily the
Brunswisk Assoc., 507 U.S. 380 (1993),
“control” factor at the expense of other
8
relevant Pioneer factors. We agree. The differently, the “control” factor does not
ALJ properly recognized that the factors of necessarily trump all the other relevant
prejudice and good faith weighed in favor factors. As the Supreme Court concluded
of Harms Construction, see George Harms in Pioneer: “[T]he lack of any prejudice to
Constr. Co., 2003 OSAHRC LEXIS 19, at the [opposing party] or to the interests of
*4 (holding that “Nyland acted quickly and efficient judicial administration, combined
in good faith promptly upon discovering with the good faith of respondents and
the fact of the citation” and that “because their counsel, weigh strongly in favor of
the Secretary proceeded to litigate the permitting the tardy claim.” 507 U.S. at
matter by serving a motion to extend her 398. As the Commission has recognized,
time to file her complaint, . . . the late in Fed. R. Civ. P. 60(b)(1) late filing cases,
[notice of contest] caused her no it is usually a given that there is “a lack of
prejudice”), and there is no evidence that prejudice to the Secretary or to the
the delay caused an adverse effect on interests o f e f f i c ie n t judicia l
efficient judicial administration. But the administration, combined with a lack of
ALJ, relying on CalHar Constr. Inc., No. bad faith by the employer.” CalHar
98-0367, 2000 OSAHRC LEXIS 28 Constr. Inc., No. 98-0367, 2000 OSAHRC
(OSAHRC April 27, 2000), noted that “the LEXIS 28, *6 n.5. But just because those
Commission considers a key factor to be factors may nearly always favor the
whether the delay was within the petitioner does not mean that the
reasonable control of the employer,” and Commission should ignore them.
concluded that “[i]t is on this issue that
Moreover, even when assessing the
[Harms Construction’s] proof falls short”
“control” factor, we do not believe that it
because Pelsang, the Harms Construction
weighs against Harms Construction here.
employee who signed for the citations and
The ALJ concluded that without Pelsang’s
w a s mo st fam iliar with Ha r m s
testimony, he could not determine whether
Construction’s mailing procedures, failed
Harms Construction’s failure to file a
to testify. Id. *5-6. Without Pelsang’s
timely notice of contest was within the
testimony, the ALJ held he could not make
company’s control. George Harms
a determination that the failure to file a
Constr. Co., 2003 OSAHRC LEXIS 19, at
timely notice of contest was not within the
*6. At the hearing, Nyland testified that
company’s control. Id. at *6.
Pelsang told him she had no memory of
The ALJ’s “excusable neglect” the citations and would have nothing to
calculus was improper. Under Pioneer, a add. The ALJ found Nyland to be a
court must take into account all relevant credible witness, but held his testimony
circumstances surrounding a party’s failure only established that Pelsang made the
to file, and failing to disprove “reasonable statement to Nyland; “it does not prove . .
control” is not necessarily fatal to a . that she in fact, could not recall accepting
petitioner’s request for relief. To state it the citation.” Id. at n.4.
9
At the hearing, the Secretary did not and is entitled to relief under Fed. R. Civ.
object to Nylan d’s te stimon y as P. 60(b)(1). 5
inadmissible hearsay. In an administrative
IV.
hearing, “‘[w]hen [hearsay evidence] is
admitted without objection it is to be For the foregoing reasons, we will
considered and given its natural probative vacate the Commission’s final order and
effect as if it were in law admissible.’” E remand for a hearing on the merits of the
& R Erectors v. Sec’y of Labor, 107 F.3d subject OSHA citations.
157, 161 (3d Cir. 1997) (quoting Diaz v.
United States, 223 U.S. 442, 450 (1912)).
Had the Secretary objected, Harms
Construction apparently would have
produced Pelsang to testify directly. There
is no reason to infer that Pelsang’s
testimony would have been adverse to
Harms Construction. Because of
Pelsang’s lack of memory attributable to
the passage of time and volume of mail
she administers, Harms Construction
reasonably believed she could add nothing
of value to the hearing.
Nyland’s testimony of Harms
Construction’s otherwise reliable mail-
handling procedures demonstrates the loss
of the citations was an unforeseeable
human error beyond its reasonable control.
According to Nyland, Pelsang had been
responsible for delivering the mail for six
5
years. In that period, Nyland had never In addition to its Fed. R. Civ. P.
failed to receive any mail. Accordingly, 60(b)(1) excusable neglect claim, Harms
the control factor does not weigh against Construction also contends that service of
Harms Construction. Because the Pioneer the citations was improper; it is entitled to
factors of good faith, prejudice, efficient equitable tolling; the Secretary waived the
judicial administration, and control all right to challenge the timeliness of the
weigh in favor of Harms Construction, it notice of contest; and that it is entitled to
has sufficiently shown “excusable neglect” relief under Fed. R. Civ. P. 60(b)(6).
Because Harms Construction is entitled to
relief under Fed. R. Civ. P. 60(b)(1), we do
not reach the merits of these alternative
claims.
10