Marshall v. Monroe & Sons, Inc.

• Decision Date: 26 February 1980
• Docket Number: No. 77-3157,77-3157
• Citation: 615 F.2d 1156
• Parties: 8 O.S.H. Cas.(BNA) 1034, 1980 O.S.H.D. (CCH) P 24,261 Ray MARSHALL, Secretary of Labor, Petitioner-Appellee, v. MONROE & SONS, INC. and Occupational Safety and Health Review Commission, Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1156

615 F.2d 1156

8 O.S.H. Cas.(BNA) 1034, 1980 O.S.H.D. (CCH) P 24,261

Ray MARSHALL, Secretary of Labor, Petitioner-Appellee, v. MONROE & SONS, INC. and Occupational Safety and Health Review Commission, Respondents-Appellants.

No. 77-3157.

United States Court of Appeals Sixth Circuit.

Argued Dec. 5, 1979.

Decided Feb. 26, 1980.

Alfred G. Albert, Benjamin W. Mintz, Michael H. Levin, Nancy L. Southard, Carin A. Clauss, John A. Bryson, U. S. Dept. of Labor, Washington, D. C., for respondents-appellants.

Joseph Saslaw, Cleveland, Ohio, William S. McLaughlin, Executive Secretary OSHRC, Washington, D. C., Allen Sachsel, Dept. of Justice, Washington, D. C., for petitioner-appellee.

Before WEICK, CELEBREZZE and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

The Secretary of Labor (Secretary) appeals from a decision of the Occupational Safety and Health Review Commission (OSHRC) which held that it has jurisdiction pursuant to 29 U.S.C. § 661(f) and Rule 60(b), Fed.R.Civ.Pro., to reinstate a Notice of Contest of a citation under the Occupational Safety and Health Act 29 U.S.C. § 651 et seq. The decision also upheld the vacation of the contested citation when the Secretary, asserting that OSHRC had no jurisdiction to reinstate the Notice of Contest or to reconsider the matter, declined to offer any evidence.

The facts are not in dispute. The Secretary issued citations against Monroe and Sons, Inc. (Monroe) on December 12, 1973, based on an inspection of Monroe's worksite on November 30, 1973. Monroe responded with a Notice of Contest dated January 3, 1974. As a result of the Notice of Contest a complaint was issued against Monroe on January 14, 1974. Monroe was also required to file an answer with OSHRC within 15 days of service of the complaint, but failed to do so. 29 C.F.R. § 2200.33. The Secretary made a motion to dismiss the Notice of Contest based on Monroe's failure to file an answer. The Secretary's motion to dismiss was granted on April 15, 1974 in an order which became final on May 15, 1974, in the absence of a Direction for Review by the Commission. In November, 1974, after Monroe had been informed that proceedings were about to be commenced for the collection of the $1,380.00 penalty, Monroe retained counsel for the first time. Monroe's counsel wrote a letter to OSHRC explaining that his client had thought that the letter to OSHRC containing his Notice of Contest had taken care of the complaint, and requesting that his client be given a chance to show that he was not liable. OSHRC responded by granting the motion for reinstatement pursuant to Fed.R.Civ.Pro. 60(b).

29 U.S.C. § 661(f) authorizes OSHRC to make such rules as are necessary for the orderly transaction of its proceedings and provides that unless OSHRC has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. Fed.R.Civ.Pro. 60(b) provides for the granting of relief from a final judgment, order, or proceeding, on motion by one of the parties, for a number of specified reasons including mistake, inadvertence, surprise and excusable neglect. After a review of the legislative history of the Occupational Health and Safety Act, and of other authority in this area, we conclude that OSHRC has jurisdiction to grant relief from final orders pursuant to Fed.R.Civ.Pro. 60(b).

The Secretary argues that the language of the statute and the legislative intent of speedy finality preclude any reconsideration by OSHRC of its orders other than the reconsideration specifically provided for in the Act. The Secretary argues that since the Act addresses the question of reconsideration of orders by OSHRC, the application of § 60(b) is inconsistent with the statutory scheme.

It should be noted at the outset that the instant case is not one in which the administrative agency is claiming an inherent power to apply the Federal Rules of Civil Procedure, including what were formerly equitable powers of relief from final orders now codified in Fed.R.Civ.Pro. 60(b). See, Lasky v. Commissioner of Internal Revenue, 235 F.2d 97 (9th Cir. 1956), aff'd mem. 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598 (1957). The critical determination that must be made in questions of administrative reconsideration is the extent to which Congress afforded the agency the power of reconsideration. The courts have been reluctant to allow agencies to expand their powers of reconsideration without a solid foundation in the language of the statute. Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 321-322, 334, 81 S.Ct. 1611, 1616-1617, 1623, 6 L.Ed.2d 869 (1961). In the Occupational Safety and Health Act, however, Congress specified that the Federal Rules of Civil Procedure could be applied by OSHRC. ¹ The power claimed by OSHRC, therefore, has a solid foundation in the language of the statute.

The Secretary focuses on the provisions of the statute defining the finality of orders as precluding the application of 60(b). The operation of Fed.R.Civ.Pro. 60(b), however, does not have the effect of negating the statutory rules of finality, but rather specifically applies to final orders under the circumstances enumerated. ² The application of Fed.R.Civ.Pro. 60(b) to final OSHRC orders does not differ from the rule's application to any final court judgment. Rule 60(b) coexists with Rule 59 which limits the time for new trial or rehearing. The statutory language providing for the finality of OSHRC orders does not conflict with the application of 60(b), but rather is consistent with the application of that rule.

29 U.S.C. § 661(i) provides that a report by a hearing examiner which constitutes his final disposition of the proceedings shall become the final order of the Commission within 30 days unless a Commission member has directed review of the matter. ³ This section provides for a review procedure within the Commission itself, and is not directed toward providing relief under the circumstances addressed by 60(b). 29 U.S.C. § 659(c) provides for a thirty day time period before the Commission's orders become final. This section similarly defines the point at which Commission orders become final, and thus does not diminish the applicability of 60(b) which, by its very definition, applies to final orders.

The Secretary also cites the section of the Act providing for reconsideration under a specific circumstance as being in conflict with 60(b). 29 U.S.C. § 659(c) provides for modification by OSHRC of abatement requirements where the employer's failure to comply with the requirements is due to factors beyond his reasonable control. This provision was intended to prevent unfair hardship which could result when abatement requires such things as the delivery of additional equipment which could delay compliance through no fault of the employer. Senate Rep.No.91-1282, 91st Cong., 2d Session, reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 5177, 5192. This section deals with a very specific problem that was anticipated by Congress. It does not deal with the circumstances enumerated under Fed.R.Civ.Proc. 60(b), nor would 60(b) cover the problem addressed by 29 U.S.C. § 659(c). This section does not conflict with Fed.R.Civ.Proc. 60(b) and does not therefore preclude its application. Neither the statutory provisions cited by the Secretary, nor the purposes behind those provisions reveal any conflict between the OSHA provisions dealing with finality and modification and the application of Fed.R.Civ.Proc. 60(b).

The Secretary also argues that the legislative intent of speedy finality precludes the application of 60(b). The legislative intent to create a system of swift finality and virtually self-executing citations to prompt swift abatement of unsafe working conditions is beyond dispute. See Senate Rep.91-1282, 91st Cong., 2nd Session, reprinted in (1970) U.S.Code Cong. & Admin.News pp. 5177, 5220. Brennan v. Winters Battery Manufacturing Company, 531 F.2d 317, 322 (6th Cir. 1975). However, the Secretary's assertion that the application of 60(b) will result in delays justifying preclusion of the rule in spite of the specific statutory provision allowing the use of the Federal Rules of Civil Procedure is unpersuasive. Proper application of 60(b) will result in no significant delays in enforcement under the statute. The prompt enforcement of orders will bring them to the attention of the employer and promptly remove any grounds which could trigger 60(b). Further, Fed.R.Civ.Pro. 60(b) provides that a motion under the rule does not affect the finality of a judgment or suspend its operation. Employers would not be able to use motions made under 60(b) as a delaying tactic. Only claims which demonstrate all of the requirements of 60(b) would result in any delay. When 60(b) is properly applied, including the requirement of a meritorious defense (see discussion infra pp. 1160-1162, such claims should be few in number.

In accordance with the foregoing analysis, we conclude that OSHRC has specific statutory authority to apply the Federal Rules of Civil Procedure, including Rule 60(b), and that neither the specific provisions of OSHA nor the legislative intent behind the statute conflict with the proper application of 60(b).

We must also determine whether 60(b) was properly applied in this case. In order to be eligible for relief under 60(b)(1) the movant must demonstrate the following: (1) The existence of mistake, inadvertence, surprise, or excusable neglect. (2) That he has a meritorious defense. Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 808 (7th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970); Central Operating Company v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1973). E. g., Rooks v. American Brass Company, 263 F.2d 166 (6th Cir. 1959); Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. 1957). Determinations made pursuant to Fed.R.Civ.Pro. 60(b) are within...