Randall Mechanical, Inc.

Plain-English summary

OSHA issued Randall Mechanical a serious citation under 29 C.F.R. § 1926.350(a)(10), but the company filed its notice of contest after the statutory deadline. After an earlier appeal, the judge dismissed the case on the ground that the Commission lacked jurisdiction to grant relief from the final order under Federal Rule of Civil Procedure 60(b). The Commission rejected that ruling because its precedent permits Rule 60(b) relief and the Eleventh Circuit had not held otherwise. Conflicting declarations disputed whether an OSHA official told Randall about the contest deadline, which affected the reason for delay and the company's good faith. The Commission vacated the dismissal and required an evidentiary hearing on excusable neglect, including all applicable equitable factors and whether Randall had a potentially meritorious defense.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.350(a)(10)
• Outcome: The jurisdictional dismissal was vacated and the case was remanded for an evidentiary hearing on relief from the late contest.
• Key point: Commission judges must follow Commission precedent allowing Rule 60(b) relief from an uncontested citation unless controlling circuit law requires otherwise.

Full text (OSHRC public release)

Randall Mechanical, Inc.OSHRC Docket No. 17-1595

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR ,

Complainant,

v.

RANDALL MECHANICAL, INC.,

Respondent.

OSHRC Docket No. 17-1595

APPEARANCES:

Karen E. Mock, Counsel; Amy S. Tyron , Senior Attorney;
Tremelle
I. Howard, Regional Solicitor;
Kate S.
O ’ Scannlain , Solicitor of Labor; U.S. Department of Labor, Washington, D.C.
and Atlanta, GA

For the Complainant

Anthony D. Tilton, Esq.; Travis S. McConnell, Esq.;
Cotney
Construction Law, LLP, Tallahassee, FL

For the Respondent

REMAND
ORDER

Before: SULLIVAN , Chairman; ATTWOOD and LAIHOW, Commissioners.

BY THE COMMISSION:

On June
27 , 2017, the Occupational Safety and Health Administration issued Randall Mechanical, Inc. a
one- item serious citation alleging
a
violation of
29 C.F.R. § 1926.350(a)(10) . Randall
f a iled
to file
a
timely
notice of contest , which resulted in the citation becoming a final order .
29 U.S.C. § 659(a) (failure
to contest citation “within fifteen working days” results in citation being
“deemed a final order of the Commission” ).

The company subsequently sought
relief
from the final order
under Federal Rule of Civil Procedure 60(b)(1) , (3) and (6) . 1

On April 11, 2018,
Administrative Law Judge John B. Gatto den ied
all three of
the se
grounds for relief
and dismiss ed
the case.
Randall
Mech., Inc. , No. 17-1595, 2018 WL 2326109 ( O.S.H.R.C.A.L.J.,
Apr. 11, 2018). Randall timely filed a petition for discretionary review of the judge ’ s decision. The petition was not granted, and the decision became a final order of the Commission . 29 U.S.C.
§ 6 61 ( j).

On appeal, the
United States Court of Appeals for the
Eleventh Circuit vacated the judge’s decision and
remanded
with instructions that the judge apply “Supreme Court and Eleventh Circuit precedent” to Randall ’ s
“ Rule 60(b)(1) motion. ” 2
Randall Mech . , Inc. v.
Sec ’ y of Labor , 798 F.
App ’ x
604 , 605
(11th Cir. 2020) (unpublished). On remand, the judge
dismissed
the case
again, this time
on jurisdictional grounds, finding that
under section 10(a) of the Occupational Safety and Health Act ,
29 U.S.C. § 659(a),
the Commission
lacks
jurisdiction
to
grant
Rule 60(b) relief
from a final order . 3

Once again, Randall timely filed a petition for discretionary review
and
this time , it
was
granted.

We
agree with Randall that the judge’s decision is erroneous . Neither the Supreme Court nor the Eleventh Circuit ha s
considered
the Commission’s jurisdiction to grant Rule 60(b) relief
under section 10(a) ,
and the
only
two circuits that have done so—the
S econd
C ircuit and the
T hird
C ircuit , neither of which are relevant here —are split
on the issue. 4
Under these circumstances, the judge
was
bound by
the Commission’s longstanding
precedent
that
it
has
the
authority
under section 10(a)
to grant
Rule 60(b)
relief
from a final order .

Gulf & W. Food Prod s . Co. , 4
BNA OSHC
1436 ,
1439
( No.
6804 , 1976)
(consolidated)
(“[T] he orderly administration of
[the OSH Act]
requires that the Commission ’ s administrative law judges follow precedents established by the Commission. ”) ;
see
McDevitt Street
Bovis , Inc. , 19 BNA OSHC 1108,
1110
(No. 97-1918, 2000) ( noting that
Commission generally applies law of circuit
to which appeal is likely, but
concluding judge properly applied Commission precedent where pertinent
circuit “neither decided nor directly addressed” issue) .

Indeed , the Commission
has
explicitly
agree d
“with the Third Circuit’s holding in
J.I. Hass Co. v. OSHRC
that, in cases
where an employer files a late notice of contest, the employer may be granted relief from the final order under the terms of Rule 60(b).”
Branciforte
Builders, Inc. , 9 BNA OSHC 2113,
2117
(No. 80-1920, 1981) ;
s ee
O ’ Harra ’ s
Complete Plumbing Serv., LLC , No. 18-1225, 2018 WL 4491707, at *1 (O.S.H.R.C., Sept. 11,
2018)
(“[B]y operation of law [under section 10(a) of the OSH Act], an uncontested or untimely contested citation and proposed penalty must be deemed a final order of the Commission, unless entitlement to relief is demonstrated under Federal Rule of Civil Procedure 60(b).”). We therefore
vacate
the judge’s
order
and remand the case to
the
judge
once again .

On remand, the judge shall , in accord with the Eleventh Circuit’s instructions,
“apply Supreme Court and Eleventh Circuit precedent”
and determine
whether
the company is entitled to relief under
Rule 60(b) (1) .
Randall Mech., Inc. , 798 F.
App’x
at
60 5 .
The four
factors
for making this determination were
articulated by the Supreme Court
in
Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership , 507 U.S. 380, 395 (1993) ,
and include: (1)
“the danger of prejudice to the [ nonmoving
party], ” (2)
“ the length of the delay and its potential impact on judicial proceedings, ” (3)
“ the reason for the delay, including whether it was within the reasonable control of the movant, ”
and
(4)
“ whether the movant acted in good faith.” In its evaluation of the
Pioneer
factors, the Eleventh Circuit has “accorded primary importance to the absence of prejudice and to the interest of efficient judicial administration,” though the court has emphasized that “a determination of excusable neglect is an equitable one that necessarily involves consideration of all” the factors. 5
In re Worldwide Web Sys., Inc. v.
Feltman , 328 F.3d 1291, 1297 (11th Cir. 2003);
see Cheney v. Anchor Glass Container Corp. , 71 F.3d 848, 850 (11th Cir. 1996) (finding excusable neglect under Rule 60(b)(1) where nonmovant did not argue it suffered prejudice, delay was “minimal,” and reason for delay —“failure in communication between the associate attorney and lead counsel” — was “attributable to negligence”). In addition, in the context of a default judgment,
in which
the defaulting party is seeking relief under Rule 60(b), the Eleventh Circuit also
requires
th at
party
to
show it has “ a meritorious defense that might have affected the outcome.” In re Worldwide Web Sys., Inc. , 328 F.3d at 1295 .

Having reviewed the record, we find an evidentiary hearing is necessa ry
for the judge
to determin e whether — under
Supreme Court and Eleventh Circuit precedent — R andall’s late notice of contest was due to excusable neglect . Both parties have submitted written declarations in support of their positions . These declarations
contain
conflicting
a ssertion s
that
bear directly on both Randall’s reason for the delay in filing its notice of contest and whether the company acted in good faith . Indeed ,
the declaration submitted by
OSHA ’s
assistant area director
asserting
that he twice informed Randall of the deadline to file its notice of contest directly conflicts with
the
declarations submitted by Randall that
assert
the
assistant area director
never mentioned the deadline. The evidentiary hearing, however, should not be limited to resolving this
one
conflict—a
full record
must
be developed so that the judge can
properly evaluate
whether
Randall is entitled to relief
from
the
final order
under Rule 60(b)(1) .

For all these reasons, we
vacate the judge’s order dismissing the case
and
remand
for further proceedings consistent with this
opinion .

SO
ORDERED.

/s/               

James J. Sullivan, Jr.

Chairman      

/s/               

Cynthia L. Attwood

Commissioner

/s/               

Amanda Wood Laihow

Dated:    July 30, 2020                Commissioner

United St ates of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
17-1595

RANDALL MECHANICAL, INC.,

Respondent.

ORDER OF DISMISSAL

This case is on remand from the United States Court of Appeals for the Eleventh Circuit.
Randall Mechanical, Inc. v. Sec’y of Labor , 798 F.
App’x
604 (11th Cir. 2020) (unpublished). S ection 10(a) of the
Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651–678 , mandates that “[i]f, 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.”
29 U.S.C. §
659(a). There is no dispute the Secretary issued a citation and proposed penalty to Randall on June 27, 2017, which was received by Randall on July 3, 2017. Therefore, the last day for Randall to timely file a notice of contest was July 25, 2017. There is also no dispute that
Randall
filed its notice with the Secretary on September 19, 2017.
Therefore, by operation of law, the citation and proposed penalty was “deemed a final order of the Commission and not subject to review by any court or agency.”
Id.

The company subsequently sought relief under Federal Rule of Civil Procedure 60(b)(1) from the resulting final order. On April 11, 2018, this Court issued a n order
denying relief and dismissing the case.
Randall , Docket No. 17-1595, 2018 WL 2326109 (O.S.H.R.C.A.L.J., Apr. 11, 2018). Randall timely filed a petition for discretionary review with the Commission, which was not granted, and this Court’s
order
became a final order of the Commission. On appeal, the
Eleventh Circuit remanded the case with “instructions to apply Supreme Court and Eleventh Circuit precedent with respect to Randall’s Rule 60(b)(1) motion.”
Randall , 798 F.
App'x
at 605. 6

A lthough not couched in terms of a “jurisdictional” issue, the Secretary raised subject-matter jurisdiction as an issue in his motion to dismiss
Randall’s
late notice of contest when he asserted
Randall’s
notice of contest was untimely and must be dismissed. (Sec’y’s Mot. Dismiss
at 4).
And even if he had not
raised
a jurisdictional issue ,
“ courts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party ,” since
“subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.”
Arbaugh
v. Y&H Corp. , 546 U.S. 500, 514 (2006)
(citation omitted) .
Even assuming a rguendo , the Secretary’s motion to dismiss did not raise a jurisdictional issue, this Court notices a jurisdictional issue and raises it
sua
sponte . Further, this
Court must
address
the
jurisdictional issue before it can reach the merits of
Randall’s motion for Rule 60(b) relief
since
“[f] ailure
to comply with a jurisdictional time prescription … deprives a court of adjud icatory authority over the case, necessitating dismissal—a ‘drastic’ result.”
Hamer v. Neighborhood
Hous . Servs. of Chi. , ––– U.S. ––––, 138 S. Ct. 13, 17 (2017)
( quotation omitted ).

In
Plessey, Inc. , 2 BNA OSHC 1302 (No. 946, 1974), the Commission held that it could
apply Rule 60(b) to modify a decision and order that became final after a proceeding held pursuant to section 12(j) of the Act, 29 U.S.C. § 661(j), but it could
not
grant Rule 60(b) relief to modify a citation and penalty that was “deemed” a final order pursuant to
section 10(a) . In holding that it could not provide such Rule 60(b) relief under section 10(a), the Commission concluded that since the employer failed to file a timely notice of contest, the Commission did not have subject-matter jurisdiction and, thus, was barred by the express language of section 10(a) from affording relief.

The
Plessey
rule was abrogated by the Commission in
Branciforte
Builders, Inc. , 9 BNA OSHC 2113 (No. 80-1920, 1981) when
it
agreed with the Third Circuit ’ s holding in
J. I. Hass Co.
v .
Occupational Safety & Health Review Comm'n , 648 F.2d 190 (3d Cir. 1981), that the Commission has jurisdiction to reconsider its section 10(a) orders under
R ule 60(b).
Branciforte , 9 BNA OSHC at 2117. In
J.I. Hass , the Secretary took the same position as he does here, that the final clause of section 10(a) is jurisdictional and prohibits review of citations if an employer
does not
file
a
timely notice of contest.
The Third Circuit held that
under this interpretation of section 10(a), “if an employee signed for citations and then was killed while returning from the post office, and the letter destroyed, an
employer with a meritorious defense could still get no relief if 15 working days elapsed before he learned of the citations. We do not believe Congress intended such a harsh result.”
J.I. Hass , 648 F.2d at 194. However , as the Supreme
Court
has admonished,
“a court must [enforce the dismissal] even if equitable considerations would support extending the prescribed time period.”
United States v.
Kwai
Fun Wong , 575 U.S. 402, 409 (2015)
( citation omitted ).

After
Branciforte , t he Supreme Court
set out
in
Arbaugh
a “readily administrable bright line” to determine jurisdiction: “If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue.”
Arbaugh , 546 U.S.
at
502 .
Thus,
time limits to file an appeal are jurisdictional if they appear in a statute,
Bowles v. Russell , 551 U.S. 205, 206–07 (2007), but not if they appear in a court-made rule.
Hamer , ––– U.S. ––––, 138 S. Ct. at 16–17]. While the
Arbaugh ,
Bowles , and
Hamer
cases involved review by Article III courts, in
Henderson ex rel. Henderson v. Shinseki , the Supreme Court distinguished Article III cases with those involving review by an Article I tribunal, such as the Veterans Court,
which are
“as part of a unique administrative scheme.”
Shinseki , 562 U.S.
at
437–38 .
“Instead of applying a categorical rule regarding review of administrative decisions,
we attempt to ascertain Congress' intent regarding the particular type of review at issue in this case.”
Id.
at
43 8 .

Litigation before the Commission, unlike cases involving veterans benefits, has all the hallmarks of ordinary civil litigation.
The Act mandates that
“ [u] nless
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), and the Federal Rules of Evidence are applicable in such proceedings. 29 C.F.R. § 2200.71. The employer must commence its notice of contest within the time specified by statute, see
§
659(a) , the Secretary of Labor must thereafter file a complaint
with the Commission
no later than 21 days after receipt of the notice of contest, see 29 C.F.R. § 2200.34(a), the employer
must file an answer
w ithin 21 days after service of the complaint that must also include all affirmative defenses being asserted, see 29 C.F.R. § 2200.34(b), and the litigation is adversarial, see
§
659(c) . The Secretary must gather the evidence that supports his claims and generally bears the burden of production and persuasion, see
ComTran
Grp., Inc. v. U.S. Dep't of Labor , 722 F.3d 1304, 1314 (11th Cir. 2013) (“the employer bears the burden on affirmative defenses only if the Secretary proves a prima facie case first.”). Both parties may appeal an adverse trial-type Commission decision to an applicable circuit court of appeals, see § 660, and a final judgment may be reopened only in narrow circumstances, see Fed. Rule Civ. Proc. 60. Thus, the type of review Congress established is more akin to the ordinary type of civil litigation in
Arbaugh ,
Bowles , and
Hamer
rather than the unique administrative scheme at issue in
Shinseki .

T he Supreme Court has cautioned that even though time bars “cabin a court's power only if Congress has ‘clearly state[d]’ as much,” that
“does not mean ‘Congress must incant magic words,’”
but “traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences.”
Kwai , 575 U.S. at 409-10 ( quoting
Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 153 (2013).
Here, the
time limit to file an appeal does speak in jurisdictional terms .
Congress
set
a “ fifteen working days ”
time
bar
in
s ection 10(a) .
§ 659(a).
Congress also
imbued a procedural bar with jurisdictional consequences . If
the employer fails to meet
the
time limit ,
the citation shall “not subject to review by any court or agency.”
Id.
Thus, s ection 10(a) does
not
read “like an ordinary, run-of-the-mill statute of limitations, spelling out a litigant's filing obligations without restricting a court's authority.”
Kwai , 575 U.S. at 411. Rather, section 10(a) specifically spells out an employer’s filing obligations
and
if the employer fails to meet the filing obligations,
s ection 10(a) expressly restricts the authority of any court or agency to review the citation and proposed assessment deemed a final order under
s ection 10(a).

Applying the Supreme Court’s precedent after
Branciforte , this Court concludes
Congress “imbued a procedural bar with jurisdictional consequences,”
Kwai , 575 U.S. at
410, and R andall’s
failure to timely file its notice of contest in accordance with the
s ection 10(a)
deprived this Court of subject-matter jurisdiction.
Hamer , ––– U.S. at ––––, 138 S. Ct. at 17;
Bowles , 551 U.S. at 213. As the Second Circuit has noted, and this Court agrees, “§ 661(g) provides for application of the Federal Rules of Civil Procedure only when the Commission has already commenced ‘proceedings.’ Proceedings before the Commission never began here. To use Rule 60(b) to establish jurisdiction would be to bootstrap jurisdiction into existence[.]”
Chao v. Russell P. Le
Frois
Builder, Inc. , 291 F.3d 219, 228–29 (2d Cir. 2002).
And as the
Hamer
Court admonishes,
“it is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.”
Hamer , ––– U.S. ––––, 138 S. Ct. at 17
( citation omitted ).
Accordingly,

IT IS HEREBY ORDERED THAT
the Secretary’s motion to dismiss
is
GRANTED
and Randall’s notice of contest is
DISMISSED
with prejudice. 7

SO
ORDERED.

/s/            

First Judge John B. Gatto

Dated: June
10 , 2020

Washington, D.C.

"

1
As relevant,
Rule 60 state s
as follows:

(b)
Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable
neglect;

. . .

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party;

. . .

(6) any other reason that justifies relief.

2
I n
seeking review of the judge ’ s decision,
Randall
raised all three grounds
of relief that the judge rejected .

T he
Eleventh Circuit limited its instructions on remand, however, to Randall’s request for relief under paragraph (1) of Rule 60(b). Accordingly, the scope of our remand decision is likewise limited.

3
Notably, t his issue was neither raised by a party, nor mentioned by the Eleventh Circuit during oral argument or in its remand order. See Coleman Hammons Constr. Co. , 942 F.3d 279, 282 n.1 (5th Cir. 2019) (assum ing “ that Rule 60(b) applies because the parties do not contest its applicability”);
David E. Harvey Builders, Inc. v. Sec ’y
of Labor , 724 F. App’x 7, 8 (D.C. Cir. 2018) (unpublished) (“We assume Rule 60(b)(1)’s applicability to these proceedings because neither party contests it.”).

4
The Second
Circuit
and
the
Third Circuit
disagree on whether the Commission
has authority
to grant relief
under Rule 60(b)
following an untimely notice of contest. Compare
Chao v. Russell P. Le Frois Builder, Inc. , 291 F.3d 219, 228-29 (2d Cir. 2002) (holding that section 10(a) of OSH Act precludes Commission from “exercising jurisdiction [over late-filed notice of contests] based on Rule 60(b)(1)”) ,
with
J.I. Hass Co. v. OSHRC , 648 F.2d 190, 194-95 (3d Cir. 1981) (holding “that the Commission has jurisdiction to entertain a late notice of contest under [R]ule 60(b)” and that “the Commission must have had jurisdiction at some point” since “[s]ection 10(a) . . . states that uncontested citations become final orders of the Commission”),
and Chao v. Roy’s Constr., Inc. , 517 F.3d 180, 183 n. 1 (3d Cir. 2008) (noting that in
George Harms Construction Co. v. Chao , 371 F.3d 156 (3d Cir. 2004), circuit reaffirmed its “ earlier holding in [ Hass ], and declined to follow the Second Circuit’s contrary holding in [ Le Frois ]”).

Two Fifth Circuit cases, which were issued before the circuit was split and are therefore binding precedent in the Eleventh Circuit,
see Bonner v. City of Prichard, Ala. , 661 F.2d 1206, 1207 (11th Cir. 1981), address circumstances
in which
relief from a final order under the OSH Act was considered, but neither case specifically addresses whether the Commission has jurisdiction under section 10(a) to grant Rule 60(b) relief. See Atl .
Marine, Inc. v. OSHRC , 524 F.2d 476, 478 (5th Cir. 1975) (remanding for evidentiary hearing to determine “if the Secretary’s deception or failure to follow proper procedures is responsible for the late [notice of contest]” but neither citing nor discussing Rule 60(b));
Brennan v. OSHRC
(S.J. Otinger Constr.) , 502 F.2d 30, 34 (5th Cir. 1974) (holding that Commission could not use Rule 60(b) to extend 30-day period under section 12(j) of
the OSH
Act for considering whether to grant discretionary review).

5
We not e
that with regard to the reason for delay, the Eleventh Circuit has held “ as a matter of law, that an attorney’s misunderstanding of the plain language of a rule cannot constitute excusable neglect such that a party is relieved of the consequences of failing to comply with a statutory deadline.” Advanced Estimating
Sys., Inc. v. Riney,
130 F.3d 996, 998 (11th Cir. 1997);
see
United States v. Davenport , 668 F.3d 1316, 1325 (11th Cir.) (finding that “Government’s written notice of forfeiture and existing law were sufficient to alert [attorney] of the applicable deadline for filing a third-party petition on [his client’s] behalf,” and therefore his “misinterpretation of the deadline could not, as a matter of law, constitute excusable neglect to warrant relief under Rule 60(b)(1)”),
cert. denied , 566 U.S. 1035 (2012) . In contrast,
the court has held that
a factual misunderstanding by an attorney does not necessarily preclude a finding that a party’s neglect was excusable under Rule 60(b)(1). See
Davenport , 668 F.3d at 1324 (“While an attorney error based on a misunderstanding or misinterpretation of the law generally cannot constitute excusable neglect, a mistake of fact, such as miscommunication or a clerical error, may do so under the pertinent factors.”);
Conn .
State Dental Ass’n v. Anthem Health Plans, Inc ., 591 F.3d 1337, 1356-57 (11th Cir. 2009) (finding relief was warranted under Rule 60(b)(1) where reason for delay resulted from “counsel’s erroneous assumption that its previous appearance had been filed in the tag along cases,” and “there is no discernable prejudic e” to nonmoving party or “reason to conclude that allowing  . . .  untimely
response  .  . .  would adversely affect the judicial proceedings”). Here, Randall’s president asserts in his submitted declaration that he informed the OSHA assistant area director
on
the day after the late notice of contest was filed
that Randall had hired an attorney,
but
it is unclear
on the current record
when Randall’s attorney first became involved in this matter.

6
The history of this case is somewhat unique. After the Secretary filed his motion to dismiss, this Court issued an order holding the Secretary’s motion in abeyance and directing Randall to file a motion requesting Rule 60(b) relief, which Randall did, and on January 16, 2018, this Court entered an Order granting Rule 60(b) relief and denying the Secretary’s motion to dismiss. The Secretary sought interlocutory review of that Order, which was denied by the Commission vis-à-vis a written “Notice,” wherein the Commission reminded this Court that under long-settled Commission precedent, a “key” factor in evaluating whether a party’s delay in filing was due to excusable neglect is “the reason for the delay, including whether it was within the reasonable control of the movant.” The Secretary thereafter filed a motion for reconsideration with this Court and this Court issued its April 11, 2018, Order vacating its previous Order granting Rule 60(b) relief and dismissing the case, which is now on remand.

7
Any pending motions
that have not been ruled on have been considered
and are
DENIED .