United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, 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, Associate Regional 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, Acting Chairman; ATTWOOD, Commissioner. 

BY THE COMMISSION:

At issue before the Commission is a motion filed by the Secretary seeking relief under 

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 

Respondent a nine-item serious citation and a two-item other-than-serious citation, with a total 

proposed penalty of $20,300. Respondent contested the citation, but it never filed an answer to 

the Secretary’s complaint. On July 18, 2014, the Secretary submitted a Notification of 

Settlement to Chief Judge Covette Rooney. On September 12, 2015—eight days after the judge 

issued an Order of Default based on Respondent’s failure to file an answer—the Secretary 
2 

submitted to the judge an executed settlement agreement.

1

 The 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 Secretary filed the instant motion, asking the Commission for 

relief under 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 also 29 C.F.R. § 2200.2(b) (applicability of Federal Rules of Civil 

Procedure to Commission proceedings). According to the Secretary, “the parties were not aware 

that an Order of Default had been entered” when the settlement agreement was transmitted by 

the Secretary to the judge.

2

 A motion under Federal Rule of Civil Procedure 60(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, relief cannot be granted under Federal Rule of Civil 

Procedure 60(b)(1).3

 The Secretary’s motion is therefore denied. 

SO ORDERED.

/s/ 

Heather L. MacDougall

 Acting Chairman

/s/ 

Cynthia L. Attwood 

Dated: January 25, 2017 Commissioner

 

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 does not comply 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 Civil

Procedure 60(b), relief also cannot be granted under subsection (6) of the Rule. While the Rule’s 

one-year 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).