United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20thStreet, N.W., Ninth Floor

Washington, DC 20036-3457

|                     |                         |
|---------------------|-------------------------|
| SECRETARY OF LABOR, |                         |
| Complainant,        |                         |
| v.                  | OSHRC Docket No.14-0565 |
| RS SEWING, INC.,    |                         |
| Respondent.         |                         |

APPEARANCES:

Patrick L. DePace, Trial Attorney;Benjamin T. Chinni,AssociateRegional Solicitor;Christine Z. Heri, Regional Solicitor;M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Rich Spencer, pro se, Canton, OH

For the Respondent

ORDER

Before: MacDOUGALL,ActingChairman;ATTWOOD, Commissioner.

BY THE COMMISSION:

At issue before the Commission isa motionfiledby the Secretaryseekingreliefunder Federal Rule of Civil Procedure 60(b)(1)from a final order. For the reasons that follow,the motion is denied.

On February 4, 2014, the Occupational Safety and Health Administration issued Respondenta nine-item seriouscitation and a two-item other-than-seriouscitation, with a total proposed penalty of $20,300. Respondent contested the citation,butitneverfiled an answer to the Secretary’s complaint. On July 18, 2014, the Secretary submitted a Notification of Settlement toChief Judge Covette Rooney. On September 12, 2015—eight days after the judgeissuedanOrderof Defaultbased on Respondent’s failure to file an answer—theSecretarysubmittedto the judgeanexecuted settlement agreement.1The judge’s default order was docketed with the Commission on September 21, 2015, and became a final order on October 21, 2015. 29 U.S.C. § 661(j) (judge’s decision becomes final order of the Commission within thirty days of issuance absent direction for review).

On January 10, 2017, the Secretaryfiledthe instant motion, asking the Commission for reliefunder Federal Rule of Civil Procedure 60(b)(1)due to an alleged“mistake.”Fed. R. Civ. Pro. 60(b)(1) (allows for relief from final judgment based upon “mistake, inadvertence, surprise, or excusable neglect”);see also29 C.F.R. § 2200.2(b)(applicability of Federal Rules of Civil Procedure to Commission proceedings).According to the Secretary, “the parties werenotawarethat an OrderofDefaulthad been entered”whenthe settlement agreementwas transmitted by the Secretaryto the judge.2A motion underFederal Rule of Civil Procedure60(b)(1) cannot be made more than a year after the final judgment was entered. Fed. R. Civ. P. 60(c)(1)(explaining timing for Rule 60(b) motions). Because the Secretary filed his motion fourteen months after the Order of Default became a final order, reliefcannot be grantedunderFederal Rule of Civil Procedure60(b)(1).3 The Secretary’s motionis therefore denied.

SO ORDERED.

/s/Heather L. MacDougall

ActingChairman

/s/

Cynthia L. Attwood

Dated:January 25, 2017Commissioner

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1 The Notice of Decision states that copies of the judge’s order were mailed to the parties on September 4, 2015.

2 Although the Secretary’s assertion is attributed to both parties, his motion doesnotcomply with Commission Rule 40(a), 29 C.F.R. § 2200.40(a), in that it fails to state that the Secretary conferred with Respondent prior to filing his motion.

3 Although the Secretary seeks relief only under subsection (1) of Federal Rule of CivilProcedure 60(b), relief also cannot be grantedunder subsection (6) of the Rule. While the Rule’s oneyear limitation does not apply to subsection (6), which provides that relief may be granted “for any other reason,” subsections (1) and (6) “are mutually exclusive, and thus a party who fail[s] to take timely action due to [a subsection (1) reason] may not seek relief more than a year after the judgment by resorting to subsection (6).”Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993).