SPECIAL COATING SYSTEMS OF NEW MEXICO, INC.

OSHRC Docket No. 79-6605

Occupational Safety and Health Review Commission

May 26, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Victor E. Carlin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

Administrative Law Judge Vernon Riehl granted a motion by the Secretary of Labor to vacate a notice of contest submitted by Special Coating Systems of New Mexico. The judge found that the citation was properly served and that the notice of contest was mailed after the expiration of the 15-working day contest period set by 29 U.S.C. 659(a), section 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. The judge's decision was directed for review under 29 U.S.C. 661(i), section 12(j) of the Act. We remand for further proceedings.

Special Coating Systems argues that the judge erred in finding that it was properly served. In its brief on review, it also argues for the first time that the Commission could entertain a late-filed notice of contest under Federal Rule of Civil Procedure 60(b). n1 The Secretary argues that the judge's holding should be affirmed and that Special Coating Systems does not allege sufficient grounds for relief [*2] under Federal Rule 60(b).

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n1 Rule 60(b) states in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based on been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective applicable; or (6) any other reason justifying relief from the operation of the judgment. . . .

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We decline to consider at this time whether the citation was properly served and whether the notice of contest was untimely. We consider it more [*3] prudent in this case to defer any review of those issues until an administrative law judge has had an opportunity to consider the employer's alternative request for relief under Federal Rule 60(b); if relief is afforded, it may then be unnecessary for the Commission to further review this case.

When this case was before Judge Riehl, the Commission's authority to entertain late notices of contest under Federal Rule 60(b) had not been established. The Commission had previously held that it could not grant relief under Federal Rule 60(b) if a notice of contest had not been timely filed. Plessey, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD P18,907 (No. 946, 1974). Only after this case was directed for review did the contrary rule emerge first in J.I. Hass Co. v. OSHRC, 648 F.2d 190 (3d Cir. 1981), and then in Branciforte Builders, Inc., 81 OSAHRC 80/A5, 9 BNA OSHC 2113, 2117, 1981 CCH OSHD P25,591, p. 31,922 (No. 80-1920, 1981). Inasmuch as the parties may not have had a fair opportunity to present evidence on this specific form of relief and because it is more prudent to allow a judge to consider the matter first, we remand this case to the chief administrative [*4] law judge n2 for further proceedings on whether relief under Federal Rule 60(b) should be afforded.

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n2 Judge Riehl has retired.

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SO ORDERED.