               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1933
                        ___________________________

                       Nyffeler Construction, Incorporated

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                                 Secretary of Labor

                       lllllllllllllllllllll Defendant - Appellee

               Andrea Christensen Luby; Office of the Solicitor

                            lllllllllllllllllllll Defendants
                                    ____________

                   Petition for Review of an Order of the
              Occupational Safety & Health Review Commission
                               ____________

                             Submitted: May 14, 2014
                               Filed: July 28, 2014
                                 ____________

Before SMITH, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

BEAM, Circuit Judge.
      Nyffeler Construction, Inc. (Nyffeler) petitions for review of an adverse agency
decision by the Occupational Safety and Health Review Commission (Review
Commission). Because we lack jurisdiction over this untimely petition, we dismiss.

I.    BACKGROUND

       Nyffeler is a residential construction company operating in Omaha, Nebraska.
On February 24, 2011, while inspecting a nearby worksite, Occupational Safety and
Health Administration (OSHA) inspectors observed two Nyffeler employees on a roof
without fall protection at a Nyffeler worksite. The inspectors phoned other OSHA
compliance officers and alerted them of possible safety violations. Acting on the
referral, two compliance officers arrived at Nyffeler's worksite and observed and
photographed two employees installing roof sheathing without fall protection.
Compliance officer Matthew Thurlby observed that the roof's slope was greater than
four in twelve (vertical to horizontal), and, upon further investigation, the officers
discovered the distance from the eave of the roof to the ground was ten feet, nine
inches. After making initial observations, the compliance officers made contact with
Greg Nyffeler, one of Nyffeler's owners, who complied with their inspection requests.

       Eventually, OSHA issued a Citation and Notification of Penalty to Nyffeler,
alleging serious violations of the Occupational Safety and Health Act (the "Act").
Specifically, OSHA cited Nyffeler for failing to use fall protection and failing to
provide employees a training program to recognize fall hazards. Nyffeler challenged
the citation before the Review Commission. After hearing evidence, an
administrative law judge (ALJ) for the Review Commission affirmed the two cited
violations, but reduced the penalty from $8,400 to $3,400. The ALJ also noted that
Nyffeler challenged the constitutionality of the Act, but recognized that it did not
have jurisdiction to entertain constitutional challenges. On April 4, 2012, the ALJ
docketed his report and a Notice of Docketing was sent to Nyffeler. Nyffeler sought
further agency review by the Review Commission. The Review Commission denied

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discretionary review, making the ALJ's decision the Review Commission's final order
on May 4, 2012.

        Nyffeler then sought judicial review. However, instead of seeking review in
the appropriate court of appeals as the Act requires, see 29 U.S.C. § 660(a), on July
5, 2012, Nyffeler mistakenly filed for review in the United States District Court for
the District of Nebraska. Recognizing Nyffeler's mistake, the Secretary of Labor (the
"Secretary") requested that the district court transfer the case to the Eighth Circuit
Court of Appeals. In its transfer motion, the Secretary incorrectly informed the
district court that the Review Commission's order became final on May 7, 2012–three
days later than the actual final order date. Relying on the Secretary's representations,
the district court determined that if it dismissed the case and ordered Nyffeler to re-
file in the Eighth Circuit, its petition would be untimely. See id. (requiring petition
for judicial review to be filed within 60 days of order's issuance). Therefore, the
district court transferred the case to this court pursuant to 28 U.S.C. § 1631 (allowing
a court without jurisdiction to transfer the case to the appropriate court if the petition
for review is timely filed and the transfer serves the interest of justice).

       After the case was transferred to this court, the Secretary, apparently
discovering that the Review Commission's order became final on May 4–not May 7,
as previously represented to the district court–moved to dismiss Nyffeler's petition
for review for lack of jurisdiction. Nyffeler moved to strike the Secretary's motion
for failing to comply with Eighth Circuit Rule 47A(b), which requires an appellee to
file a motion to dismiss based on jurisdiction within fourteen days after the case has
been docketed. Although Nyffeler moved to strike the Secretary's motion, it noted
that "even if [the court] strikes the pending motion, the Court is free to raise the issues
presented in the Secretary's motion sua sponte, if it sees fit, and such issues could be
addressed at oral argument or through briefing before or after oral argument."
Without explanation, an administrative panel for this circuit denied the Secretary's



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motion to dismiss and, accordingly, denied Nyffeler's motion to strike as moot. The
petition for review remains pending before this court.

II.   DISCUSSION

      In this petition for review, Nyffeler challenges OSHA's referral method and
inspection of Nyffeler's worksite on regulatory, statutory, and constitutional grounds.
The Secretary, however, maintains that it is unnecessary to reach the merits, because
we lack subject matter jurisdiction. We begin and end with the jurisdictional
question.

        The Act permits an employer to challenge a citation issued by the Secretary
before the Review Commission. 29 U.S.C. § 659(c). When an employer challenges
a citation, an ALJ for the Review Commission shall hear the grievance and "make a
report of any such determination which constitutes his final disposition of the
proceedings." 29 U.S.C. § 661(j). Absent further discretionary action by a Review
Commission member, "[t]he report of the [ALJ] shall become the final order of the
Commission within thirty days after such report by the [ALJ]." Id. An agency
regulation clarifies that the ALJ's decision becomes the Review Commission's final
order the "thirtieth day following the date of docketing of the Judge's report." 29
C.F.R. § 2200.90(d). If the employer remains unsatisfied with the Review
Commission's final order, the Act allows the employer to seek judicial review by
filing a petition "in [the appropriate court of appeals] within sixty days following the
issuance of such order." 29 U.S.C. § 660(a).

       Here, the ALJ docketed his report on April 4, 2012, and because the Review
Commission did not grant discretionary review, the ALJ's decision became the
Review Commission's final order on May 4, 2012. Therefore, Nyffeler's final day to
seek judicial review was July 3, 2012, sixty days after the final order. Nyffeler seems
to concede that its July 5 petition was late. However, Nyffeler provides three reasons

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why the untimely filing does not deprive this court of jurisdiction. First, Nyffeler
argues that because the Secretary did not object to subject matter jurisdiction before
the district court–and in fact provided the wrong final order date to the district
court–the Secretary has waived any challenge to this court's jurisdiction. Second,
according to Nyffeler, because an administrative panel of this court denied the
Secretary's motion to dismiss for want of subject matter jurisdiction, such ruling
became the law of the case. Finally, Nyffeler asserts that whether a petition for
review is timely filed is a question of fact, and because the Secretary never challenged
the district court's finding of fact by appealing the transfer order, we are bound by
such factual finding. We find these arguments unpersuasive.

       The Supreme Court "has long held that the taking of an appeal within the
prescribed time is mandatory and jurisdictional," and if a party fails to appeal "within
the time limited by the acts of Congress, [the case] must be dismissed for want of
jurisdiction." Bowles v. Russell, 551 U.S. 205, 209, 213 (2007) (internal quotations
omitted). The statutory limitation is rigid. "The parties cannot waive it, nor can a
court extend that deadline for equitable reasons." Dolan v. United States, 130 S. Ct.
2533, 2538 (2010). Not only may a party never waive the court's jurisdictional
authority to hear a case, but we "have an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a challenge from
any party." Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Accordingly, we find
it of no consequence that the Secretary mistakenly believed that Nyffeler's petition
was timely before the district court.

       We are also unconcerned that a prior administrative panel for this circuit denied
the Secretary's motion to dismiss for want of jurisdiction. As the present case
illustrates, administrative panel review is generally "summary in character, made
often on a scanty record, and not entitled to the weight of a decision made after
plenary submission." In re Rodriguez, 258 F.3d 757, 759 (8th Cir. 2001) (per curiam)
(quotation omitted). Thus, the prevailing view in this circuit is that "a hearing panel

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of this court to whom the entire case has been referred for disposition is free to revisit
a motion to dismiss for want of appellate jurisdiction even though an administrative
panel of the court has previously denied such a motion." Id. at 758; see also Iowa
League of Cities v. E.P.A., 711 F.3d 844, 854-55 n.1 (8th Cir. 2013) ("Our ability to
make a final decision on jurisdiction is unaffected by the rulings of [prior
administrative panels.]"); 18B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 4478.5 (2d ed.) (discussing appropriateness of merits panel
reconsidering jurisdiction and timeliness of appeal).

       Despite this clear jurisprudence on the issue, precedent predating this circuit's
now-prevailing view suggests that an administrative panel's decision to deny a motion
to dismiss for lack of jurisdiction becomes "the law of the case, ordinarily to be
adhered to in the absence of clear error or manifest injustice." McCuen v. Am. Cas.
Co. of Reading, Pa., 946 F.2d 1401, 1403 (8th Cir. 1991); see also Ritchie Special
Credit Invs., Ltd v. United States Tr., 620 F.3d 847, 856 (8th Cir. 2010) (Colloton,
J., concurring). For the law of the case doctrine to have any application, however, the
prior administrative panel must have actually decided the specific jurisdictional issue.
See 18B Wright & Miller, Federal Practice and Procedure § 4478 (2d ed.) ("Actual
decision of an issue is required to establish the law of the case. Law of the case does
not reach a matter that was not decided."). In this vein, we have refused to apply the
doctrine where a decision fails to provide "sufficient directness and clarity to
establish the settled expectations of the parties necessary for the subsequent
application of the law of the case doctrine." First Union Nat'l Bank v. Pictet Overseas
Trust Corp., 477 F.3d 616, 621 (8th Cir. 2007).

      Here, there are at least three reasons the administrative panel may have denied
the Secretary's motion, two of which have nothing to do with the jurisdictional merits.
To be sure, the panel may have denied the motion to dismiss for failing to satisfy the
fourteen-day rule time limitation. See 8th Cir. R. 47A(b). Additionally, the
administrative panel may have accepted Nyffeler's invitation to allow the hearing

                                           -6-
panel to decide the jurisdictional question. Consequently, even if a hearing panel
should "ordinarily" adhere to an administrative panel's jurisdictional determination
on a motion to dismiss, here, as is often the case, the administrative panel's decision
lacks "sufficient directness and clarity" for us to know whether the administrative
panel even reached the jurisdictional merits. Accordingly, to the extent McCuen and
other decisions, as the earlier precedent, arguably have precedential force on this
issue, see United States v. Johnson, 688 F.3d 494, 501 (8th Cir. 2012), we conclude
that the law of the case doctrine does not apply under present circumstances, and,
therefore, the prior administrative panel's ruling does not constrain our ability to
consider the jurisdictional question.

        Finally, we reject Nyffeler's argument that the Secretary was required to appeal
the transfer order to challenge the district court's findings on the petition's timeliness.
First, to label the district court's order as containing any findings of fact is a generous
reading of that order. Second, under the federal transfer statute, 28 U.S.C. § 1631,
"[a] transfer can remedy the mistake of filing in the wrong court, but not the mistake
of filing in an untimely manner." Hyun Min Park v. Heston, 245 F.3d 665, 667 (8th
Cir. 2001) (alteration in original) (quotation omitted). When a party files an untimely
notice of appeal in the wrong court, that court lacks authority to transfer. See id.
And, even if a transfer order has not been appealed, "it is incumbent upon this court
to establish that it has jurisdiction as a result of that transfer as this court has only the
jurisdiction that Congress has conferred upon it by statute." In re Apex Oil Co., 884
F.2d 343, 346 (8th Cir. 1989) (internal quotation omitted); see, e.g., Waste Mgm't of
Ill. v. E.P.A., 945 F.2d 419, 421 (D.C. Cir. 1991) (per curiam) (dismissing untimely
petition for review after transfer from district court under § 1631). Here, due to the
untimely petition, the district court never had authority to transfer the case to this
court pursuant to § 1631, and regardless of whether that order has been appealed, we
must still determine whether we have jurisdiction as a result of the transfer. Given
the untimely petition, we have no jurisdiction under § 660(a).



                                            -7-
III.   CONCLUSION

       We dismiss the petition for review for want of jurisdiction.
                      ______________________________




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