Administrator, Wage and Hour Div., USDOL v. JRW Service Group, LLC (agency decision, May 15, 2025)

Plain-English summary

JRW Service Group and Jason Winters sought review of an administrative judge's decision under the Davis-Bacon Act and the Contract Work Hours and Safety Standards Act. The Wage and Hour Administrator requested four stated clarifications one day before the 40-day appeal deadline, and the judge granted the unopposed request after the respondents ignored a show-cause order. The Board held that a clerical clarification under the federal procedural rule did not restart the appeal period, making the September 30 petition more than 100 days late from the original June 7 decision. It also found the respondents forfeited their objections by not raising them before the judge or in their initial Board briefing. The Board declined their request to sanction the Administrator for proceeding with debarment after the appeal deadline passed and affirmed the judge's decision.

Decision snapshot

• Cited authorities: 40 U.S.C. § 3141; 40 U.S.C. § 3701; 29 C.F.R. § 6.34; 29 C.F.R. § 18.10(a)
• Outcome: ALJ decision affirmed; untimely and forfeited objections rejected; motion to sanction the Administrator denied.
• Key point: A nonsubstantive clarification did not restart the 40-day DBA appeal period, and arguments not timely raised below or in Board briefing were forfeited.

Full text (DOL official public release)

U.S. Department of Labor         Administrative Review Board
                                 200 Constitution Ave. NW
                                 Washington, DC 20210-0001

IN THE MATTER OF:


ADMINISTRATOR, WAGE & HOUR                 ARB CASE NO. 2025-0001
DIVISION, UNITED STATES
DEPARTMENT OF LABOR,                       ALJ CASE NO. 2021-DBA-00007
                                           ALJ LYSTRA A. HARRIS
           PROSECUTING PARTY,
                                           DATE: May 15, 2025
     v.

JRW SERVICE GROUP, LLC, and
JASON WINTERS,

           RESPONDENTS.

Appearances:

For the Complainant:
Seema Nanda, Esq., Jennifer S. Brand, Esq., Sarah K. Marcus, Esq.,
Jonathan T. Rees, Esq., Sarah J. Starrett, Esq.; Office of the Solicitor,
U.S. Department of Labor; Washington, District of Columbia

For the Respondents:
Jason Winters; Pro Se; Downingtown, Pennsylvania

Before JOHNSON, Chief Administrative Appeals Judge, and KAPLAN and BURRELL, Administrative Appeals Judges

                             DECISION AND ORDER

BURRELL, Administrative Appeals Judge:

  This case arises under the Davis-Bacon Act (DBA),1 the Contract Work Hours

and Safety Standards Act (CWHSSA),2 and the applicable implementing

1 40 U.S.C. § 3141-3148.
2 40 U.S.C. § 3701-3708.
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regulations.3 Respondents JRW Service Group, LLC, and Jason Winters (collectively, Respondents) appealed the June 7, 2024 Decision and Order (D. & O.) of a Department of Labor Administrative Law Judge (ALJ).4 For the following reasons, we affirm the ALJ’s decision.

  The ALJ’s initial decision was issued on June 7, 2024. Appeals of ALJ decisions

under the DBA are to be filed with the Administrative Review Board (ARB) within 40 days of the date of the ALJ’s decision.5 The 40-day mark fell on July 17, 2024.

  On July 16, 2024, the Administrator filed a Motion for Clarification with the

ALJ. In the Motion, the Administrator identified four changes that she claimed were nonsubstantive. In response, ALJ Harris issued an Order to Show Cause on July 24, 2024, directing Respondents to show cause and demonstrate no later than August 6, 2024, why the Administrator’s Motion to Clarify should not be granted. Respondents did not respond to the ALJ’s Show Cause Order. Unopposed, the ALJ granted the Administrator’s Motion to Clarify on August 19, 2024, and accepted the Administrator’s proposed amendments to the decision.

  As written, the Administrator’s Motion and the ALJ’s reissuance fall under

Federal Rules of Civil Procedure Rule 60(a).6 That Rule provides as follows:

      (a) Corrections Based on Clerical Mistakes; Oversights and
          Omissions. The court may correct a clerical mistake or a
          mistake arising from oversight or omission whenever one
          is found in a judgment, order, or other part of the record.
          The court may do so on motion or on its own, with or
          without notice. But after an appeal has been docketed in
          the appellate court and while it is pending, such a mistake
          may be corrected only with the appellate court’s leave.[7]

3 29 C.F.R. Parts 5 and 6 (2019).
4 On August 19, 2024, the ALJ issued an Order Granting Administrator’s Motion for Clarification of the Decision and Order (Clarification Order). 5 29 C.F.R. § 6.34. 6 FED. R. CIV. P. 60(a). ALJs apply the Federal Rules of Civil Procedure when the Department of Labor’s rules do not adequately cover the issue at hand. 29 C.F.R. § 18.10(a) (2024). 7 FED. R. CIV. P. 60(a). 3

   Clarifications under Rule 60(a) do not toll the original time cited above for a

party to file an appeal.8 Accordingly, Respondents were required to appeal the ALJ’s decision within 40 days of the initial June 7 decision.9

   On September 30, 2024, Respondents filed a Petition for Review. This

Petition was filed more than 100 days past the ALJ’s decision and is well beyond the 40 days for filing an appeal under the DBA regulations. The Petition for Review contains no explanation for the untimely filing.

    On October 31, 2024, Respondents filed a supporting brief. Again,

Respondents did not mention the ALJ’s Clarification Order or explain the untimely filing of its petition for review.

   On January 15, 2025, the Administrator filed a Response Brief identifying

that the Petition for Review was untimely because it should have been filed within 40 days of the initial decision and asserting that Respondents’ entire appeal of the ALJ’s decision had been waived or forfeited. Respondents did not file a reply brief responding to the Administrator’s arguments.

    Roughly six months after filing a petition for review, Respondents raised the

ALJ’s Clarification Order in a Motion for Sanctions filed on March 27, 2025. In this filing, Respondents argue for the first time that their appeal was timely filed. The

8 Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001):
Although this Court has never squarely addressed the question
of whether a Rule 60(a) motion extends the time for filing
postjudgment motions, those courts that have done so hold that
it does not. Moreover, this Court (along with every other to have
considered the matter) has held the analogous proposition that
a motion under Rule 60(a) does not start anew the time for filing
a notice of appeal. (“[W]hen a second judgment in a case does not
differ from the first judgment in matters affecting the
substantive rights of the parties, the time to appeal runs from
the first judgment.”). As the parties’ respective rights and
obligations have been finally and actually determined at the
time of the initial judgment in both situations, a consistent rule
is appropriate.
Id. (internal citations omitted).
9 29 C.F.R. § 6.34.
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posture of Respondents’ Motion for Sanctions is that the Administrator’s proceeding with debarment in late summer or early fall of 2024, after no timely appeal of the ALJ’s decision had been filed, was harmful to Respondents and warrants sanctions.

  We decline to entertain sanctions against the Administrator. The

Administrator had grounds for proceeding with the steps of debarment after the deadlines mentioned above had passed because Respondents had not provided any timely notice that these matters were in dispute. Respondents first put the Administrator on notice of an objection to the case on September 30, 2024, which was after the Administrator had already filed the debarment paperwork with the appropriate authorities (approximately 60 days after the time for filing had passed).

   Further, because we deem Respondents’ arguments on appeal forfeited, we

affirm the ALJ’s Order. Respondents’ failure to object to the Administrator’s Motion before the ALJ when requested and failure to raise the issue in its initial briefing to ARB warrants forfeiture of this issue on appeal.10 We recognize that Respondents are not represented by counsel, and we give pro se pleadings some latitude. A pro se complainant will be held to less stringent standards than those applicable to lawyers.11 Nonetheless, Respondents were required to argue objections to the Administrator’s Motion below when the ALJ requested them to do so. Having failed to do so, the ALJ treated the Administrator’s Motion as unopposed. Respondents’ failure to respond to the ALJ’s Show Cause Order deprived the ALJ and parties of the opportunity to fully argue the matter before the ALJ.12 With few exceptions, appellate bodies are not an appropriate forum for a party to argue matters anew.

10 Cf. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006) (discussing in the criminal law context the principle of forfeiture for failing to argue below). We make no finding of fact or conclusion of law as to whether the ALJ’s August 19, 2024 Order accepting the proposed changes constitutes a clarification for purposes of FED. R. CIV. P. (60)(a). 11 Hasan v. Sargent & Lundy, ARB No. 2005-0099, ALJ No. 2002-ERA-00032, slip op. at 4-6 (ARB Aug. 31, 2007). 12 Likewise, Respondents failed to timely oppose the Administrator’s argument on appeal, raised in the Response Brief, that the ALJ’s August 19, 2024 Order accepting the proposed changes was a clarification for purposes of FED. R. CIV. P. (60)(a) and, thus, Respondents’ Petition for Review was untimely. Respondents only belatedly attempted to address their untimeliness nearly 60 days after the Reply Brief was due, in the guise of the Motion for Sanctions. 5

Respondents have cited no grounds for us to overlook these failures and consider arguments first raised on appeal.13

                                    CONCLUSION

   The ALJ’s decision is affirmed.

   SO ORDERED.




                                        RANDEL K. JOHNSON
                                        Administrative Appeals Judge




                                        ELLIOT M. KAPLAN
                                        Administrative Appeals Judge




                                        THOMAS H. BURRELL
                                        Administrative Appeals Judge

13 Further, while Respondents did cite case law in the March 27, 2025 Motion to support their argument that the ALJ’s clarification issued on August 19, 2024, consisted of substantive changes and thereby restarted the clock to appeal, we have not been able to locate those decisions despite a thorough review of the relevant sources. In full, Respondents argue the following:
Case law supports the principle that where an amended decision
materially alters the substance of a prior ruling, the appeal
period begins from the issuance of the amended decision. See
Beliveau v. U.S. Dep’t of Lab., ARB No. 06-024, ALJ No. 2005-
SOX-00009 (ARB July 31, 2008) (holding that a materially
altered decision restarts the appeal period); Barreiro v. Miami
Airport Hotel, ARB No. 1996-057 (ARB May 30, 1997)
(acknowledging that significant changes in amended orders toll
the appeal deadline). . . .
Respondents’ March 27, 2025 Motion for Sanctions at 6. If these cases exist, there are significant errors in the citations. As written, this argument, too, may have been forfeited if it had been timely made.