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Fifth Circuit Opens Door to Tardy Safety Citation Challenges

Nov. 7, 2019, 1:01 PM

The Fifth Circuit sided with a Mississippi construction company when it ruled that a missed filing deadline under certain circumstances constitutes “excusable neglect.”

The decision will provide companies more leeway to appeal administrative rulings if they can show their tardiness is excusable.

The U.S. Court of Appeals for the Fifth Circuit ruled in favor of Coleman Hammons Construction Co. Inc., after the company appealed an Occupational Safety and Health Review Commission decision that rejected the company’s challenge to a safety citation based on its tardiness.

In overturning OSHRC’s decision, the three-judge panel derided the commission for placing “virtually exclusive emphasis on the reason for Coleman’s delay” even though the commission noted there was no evidence that Coleman acted in bad faith, or that its untimely notice of contest had any impact on proceedings.

The court emphasized the U.S. Supreme Court’s decision in Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, where a Bankruptcy Court had inappropriately penalized a party for its error.

David C. Goff, shareholder at Wise Carter Child & Caraway P.A. in Gulfcoast, Miss., who represents Coleman Hammons, didn’t immediately respond to Bloomberg Law’s requests for comment.

The case began when the Occupational Safety and Health Administration issued two citations for alleged violations of fall protection standards against Coleman Hammons.

The company didn’t respond to the citations within the 15-day time frame to contest the citations. Coleman argues that when the citation was mailed, the office manager placed the letter on the superintendent’s desk and the superintendent didn’t see the citations until eight days later. The company argues that based on those facts, the late filing constitutes excusable neglect.

An administrative law judge ultimately ruled against the company and granted the Labor Department’s motion to dismiss. OSHRC affirmed the administrative law judge’s decision in June. The company appealed to the Fifth Circuit in August.

“While there is no evidence that Respondent acted in bad faith,” the commission wrote, “it is clear that the reason for the delay was within Respondent’s control.”

The Fifth Circuit said the commission should have also considered whether the tardiness was an “excusable delay.”

“The circumstances prove neglect of a very minor sort that had minimal consequences in the context of the excusable neglect inquiry,” the court said.

It remanded the case back to OSHRC to review its earlier ruling.

The case is Coleman Hammons v. OSHRC, 5th Cir., No. 18-60559, 11/6/19.

To contact the reporter on this story: Fatima Hussein in Washington at

To contact the editors responsible for this story: Terence Hyland at; Karl Hardy at