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. 10-1697

SPIRIT AEROSYSTEMS, INC., 

Respondent,

INTERNATIONAL UNION, UNITED 

AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT 

WORKERS OF AMERICA (UAW LOCAL 

952),

Authorized Employee 

Representative.

ORDER

On January 21, 2015, the Respondent filed a Motion to Reconsider the Commission’s

December 24, 2014 Decision and Remand in this case, and on February 4, 2015, the Secretary of 

Labor filed an Opposition to the Motion. After consideration of Respondent’s Motion, Chairman 

Rogers and Commissioner Attwood conclude that there is nothing in Respondent’s post-decision 

filings that would justify reconsideration of the Commission’s decision.1 And given that the 

decision only addressed the Secretary’s prima facie showing of noncompliance, due process 

requires that we remand the case to the judge to allow Spirit to present evidence on its behalf and 

 

1 Commissioner MacDougall would grant the Respondent’s Motion to Reconsider for the reasons 

set forth in her attached dissent.
2

the Secretary an opportunity for rebuttal. Accordingly, the Motion is denied.2

SO ORDERED.

/s/ 

Thomasina V. Rogers

Chairman

/s/

Cynthia L. Attwood

Dated: February 19, 2015 Commissioner

 

2 The Commission also denies Respondent’s Motion for Leave to File a Reply Brief to the 

Secretary’s Opposition.
MACDOUGALL, Commissioner, dissenting.

I respectfully dissent and would grant Respondent’s Motion to Reconsider for the reasons 

stated in my dissent in Spirit Aerosystems, Inc., No. 10-1697 (OSHRC Dec. 24, 2014), as well as 

for the reasons stated in Respondent’s Motion to Reconsider. Therefore, I see no need for 

additional briefing and deny Respondent’s Motion for Leave to File a Reply Brief.

As a procedural matter, I note that Respondent’s Motion to Reconsider is interlocutory in 

nature, see the OSH Act at § 12(j), 29 U.S.C. § 661(j) (Commission order does not become final 

until thirty days after decision has been issued by administrative law judge), and, therefore, is not 

governed by Federal Rule of Civil Procedure 59(e). See the OSH Act at § 12(g), 29 U.S.C. 

§ 661(g); 29 C.F.R. § 2200.2 (in the absence of a specific provision, Commission procedure shall 

be in accordance with the Federal Rules of Civil Procedure). As such, the motion is more 

properly a request for the Commission to revisit its previous ruling.1 Considering Spirit’s 

request to reconsider or revisit the Commission’s previous ruling, I would grant that request. See 

Jones, 557 F.3d at 677-78 (citing Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C.

Cir. 1997)). It is apparent to me that the majority opinion contains manifest errors of both law 

and fact; hence, I conclude that the standard for reconsideration is satisfied.

By remanding this case to the administrative law judge for further proceedings, my 

colleagues have substantially delayed Spirit’s opportunity to seek review in the appropriate 

Circuit Court of Appeals. Further, by creating new obligations beyond the scope of the 

 

1 However, I note that a motion to reconsider under Rule 59(e) may be granted where there is 

“the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 

F.3d 1005, 1012 (10th Cir. 2000); Howard Hess Dental Laboratories Inc. v. Dentsply Intern., 

Inc., 602 F.3d 237, 251 (3d Cir. 2010). See also Caisse Nationale de Credit Agricole v. CBI 

Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (“Motions for reconsideration serve a limited 

function: to correct manifest errors of law or fact or to present newly discovered evidence.”).

“Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, 

a party’s position, or the controlling law.” Does, 204 F.3d at 1012. I believe this standard 

guides the Commission here in considering Spirit’s request to revisit its previous ruling. Thus, I 

conclude that Respondent’s motion should be granted — not pursuant to Rule 59(e) but, rather, 

pursuant to the “general discretionary authority to review and revise interlocutory rulings prior to 

entry of final judgment . . . .” Swisher v. United States, 262 F. Supp. 2d 1203, 1207 (D. Kan. 

2003); see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (reconsideration of 

interlocutory order proper notwithstanding the inapplicability of Rule 59(e)); Bausch & Lomb, 

Inc. v. Moria S.A., 222 F. Supp. 2d 616, 669 (E.D. Pa. 2003) (“A federal district court has the 

inherent power to reconsider interlocutory order when it is consonant with justice to do so.”) 

(internal quotations omitted).
2

performance-based LOTO standard, and by creating uncertainty as to how an employer can meet 

those obligations, my colleagues’ remand order (and, now, their subsequent denial of the motion 

for reconsideration) does a disservice to the parties and the regulated community. See, e.g.,

Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 2012) (“The Commission does a 

disservice to both employers and employees when it fails to clarify health and safety standards 

promptly.”). As I previously indicated in my dissent to the remand order, I believe the effect is 

contrary to the goal of promoting employee safety.

/s/_________________________________

Heather L. MacDougall 

Dated: February 19, 2015 Commissioner