“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79-2380 STRIPE-A-ZONE, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 31, 1980DECISIONBEFORE: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Louis G. LaVecchia is before theCommission for review pursuant to section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge LaVecchiagranted a pre-hearing motion to dismiss filed by Stripe-A-Zone, Inc.(?Respondent?) and vacated the citations issued by the Secretary of Labor (?theSecretary?). The dismissal was sought and obtained on the ground that thealleged violations were the subject of a previous Commission final orderentered in another proceeding. Review was directed by Commissioner Cottine todetermine whether the judge erred in granting the Respondent?s motion todismiss. We vacate the judge?s order, reinstate the citations and remand thecase for further proceedings.I.??????????? Respondentinstalls traffic control devices. The Fort Worth Area Office of the U.S.Department of Labor?s Occupational Safety and Health Administration (?OSHA?)conducted an inspection of Respondent?s worksite at a freeway exit ramp fromNovember 6 to November 13, 1978, after it learned of a fatality at the site. OnDecember 1, 1978, the Secretary issued a citation alleging that four seriousviolations of the Act occurred on or about November 1, 1978. The proposedpenalty totaled $2,240.00. Respondent timely filed a notice of contest and thecase was docketed as OSHRC Docket No. 78?6062. The Secretary subsequently movedto withdraw his citation ?without prejudice.? After Respondent certified thatthe Secretary?s motion had been posted, Chief Administrative Law Judge Paul A.Tenney ordered: ?The Secretary of Labor?s unopposed motion to withdraw thecitation is granted.? When no Commissioner directed review of Judge Tenney?sorder within thirty days of its filing with the Commission, the judge?s orderbecame a final order of the Commission pursuant to section 12(j) of the Act, 29U.S.C. ?\u00a0661(i).2[2]On April 26, 1979, the dayafter the judge?s order became a Commission final order, the Secretary issuedtwo citations to Respondent. It is undisputed that these citations allegedviolations of the Act based upon the same inspection and the same factsunderlying the citations previously withdrawn in OSHRC Docket No. 78?6062.Nevertheless, there are significant differences between the two sets ofcitations. For example, while three of the four items in the December 1978citation alleged violations of ?the general duty clause?, i. e., section5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), the April 1979 citations allegedseveral violations of sections 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), basedon failure to comply with specific occupational safety and health standards.Furthermore, the violations in one of the citations were characterized aswillful. Finally, the proposed penalty for these two new citations totaled $16,640.00. Respondent again filed a timely notice of contest, and the case wasdocketed as OSHRC Docket No. 79?2380. Following the filing of the Secretary?scomplaint, Respondent moved to dismiss the complaint and to vacate thecitations on the ground that they were the subject of a previous Commissionfinal order. Judge LaVecchia granted the motion. He characterized theSecretary?s issuance of the two new citations as ?tantamount to an attempt toreconsider an order already final under section 661 of the Act.? CitingBrennan v. OSHRC (S.J. Otinger Construction Co.), 502 F.2d 30 (5th Cir.1974)[3], the judge endorsedRespondent?s argument that the Commission does not have jurisdiction toreconsider final orders and that the sole remedy for a party aggrieved by afinal order is to petition the appropriate court of appeals. The Secretarypetitioned the Commission for review of Judge LaVecchia?s decision and orderand review was directed on the issue raised by the Secretary.II.??????????? Onreview, the Secretary contends that Rule 41(a) of the Federal Rules of CivilProcedure is applicable in Commission proceedings and that a motion to dismissunder this rule is without prejudice unless specifically stated otherwise.[4] The Secretary states thatthe effect of a dismissal is to render the proceedings a nullity and to leavethe parties as if the dismissed action had never been brought. In addition, theSecretary asserts, because Commission Rule 33(a)(3)[5] allows him to amendcitations absent a showing of prejudice to Respondent in the preparation orpresentation of its case, it follows that the Secretary can withdraw a citationand file a new one absent a similar showing of prejudice to Respondent. TheSecretary denies that he is attempting here to reconsider the dismissal orderor to enforce the citation vacated in OSHRC Docket No. 78?6062; he merely seeksan adjudication on the merits of the citations contested in OSHRC Docket No.79?2380.??????????? Respondentargues that the Act?s incorporation by reference of the Federal Rules of CivilProcedure only applies in the absence of an existing Commission rule.[6] Specifically, Respondentargues that section 12(j) of the Act, note 2 supra, constitutes the governingrule regarding finality. Therefore resort to the Federal Rules is neithernecessary nor authorized since Rule 41(a) and the concept of ?withoutprejudice? do not overcome the specific statutory requirements of section12(j). In Respondent?s view, the Secretary?s failure to seek review of JudgeTenney?s order in OSHRC Docket No. 78?6062 resulted in a final Commission orderthat is not reviewable by any court or agency that imposes a res judicata barto the re-issuance of citations which are the subject of that final order.III.??????????? In IMCChemical Group, Inc., 78 OSAHRC 95\/C14, 6 BNA OSHC 2075, 1978 CCH OSHD ? 23,149(No. 76?4761, 1978), appeals filed, Nos. 79?3018 and 79?3041 (6th Cir.January 11 and 16, 1979), the Commission held that a motion by the Secretary towithdraw a citation in a contested case is governed by Fed. R. Civ. P.41(a)(2).[7] There, as here, the filingof a notice of contest by respondent deprived the Secretary of the right tounilateral dismissal under Rule 41(a)(1) and allowed the Secretary to withdrawa citation only upon an order of the Commission pursuant to Federal Rule41(a)(2). Under the express terms of the rule, a dismissal is without prejudiceunless the order specifies otherwise.[8] In OSHRC Docket No.78?6062, Judge Tenney granted the Secretary?s unopposed motion, which was towithdraw the citation without prejudice. The judge did not specify, however,whether his ruling was with or without prejudice. Consequently, the dismissal,which was silent as to its effect, must be deemed to have been withoutprejudice.??????????? It iswell settled that the effect of a voluntary dismissal without prejudice is torender the matter a nullity and to restore the parties to the same position asif the action had never been brought. In re Piper Aircraft DistributionSystem Antitrust Litigation, 551 F.2d 213 (8th Cir. 1977). See also 5 Moore?sFederal Practice ?41.05[2] (2nd ed. 1980) and cases cited therein. Such adismissal is not an adjudication on the merits and thus does not serve as a resjudicata bar to bringing a later suit on the same cause of action. LeComptev. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976). Respondent correctlyargues that Judge Tenney?s unreviewed order became a Commission final orderthirty days after its filing with the Commission. Yet, the dismissal by thejudge neither purported to be not operated as an adjudication of the merits ofthe citation. Judge Tenney?s order merely permitted a procedural action whichvoided the citation underlying OSHRC Docket No. 78?6062 and which restored theparties to their pre-citation positions. Nevertheless, the Secretary?sauthority to issue citations alleging violations discovered during the sameunderlying inspection survived that final order, subject to the six-monthlimitations period of section 9(c) of the Act.[9] When the Secretary issuedthe citations underlying OSHRC Docket No. 79?2380 four days prior to theexpiration of the six-month period, he satisfied the requirement of section9(c). Accordingly, we conclude that these citations are as a matter of lawindependent of and distinct from the dismissed citation, even though they sharethe same factual predicate.[10] The Secretary is entitledto pursue an adjudication on the merits of these citations.[11]??????????? Accordingly,Judge LaVecchia?s October 15, 1979 order is vacated, the Secretary?s April 26,1979 citations reinstated, and the case is remanded to the judge for furtherproceedings. \u00a0SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 31, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79-2380 STRIPE-A-ZONE, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 October 15, 1979ORDER??????????? Respondenthas moved to dismiss this proceeding on the ground that the citation issuedagainst respondent was the subject of a final Review Commission decision.Respondent has shown that essentially the same violations charged in thisproceeding were the subject of a prior citation under OSHRC Docket No. 78?6062,which was permitted to be withdrawn by Judge Paul Tenney on March 26, 1979.This order was not directed for review by the Commission between the issue dateand April 25, 1979. The instant proceeding was commenced on April 26, 1979,under the same OSHA investigation number, the same inspection dates, the sameinspection site, and the same violation date, i.e., on or about November 1,1978. Accordingly, respondent contends that the second citation is void becausethe alleged violations were the subject of a Commission decision which hasbecome a final order under 29 U.S.C. 666(i) of the Act, citing Accu-Namicsv. OSHRC, 515 F.2d 828, 832 (5th Cir. 1975). Also cited is Brennan v.OSHRC, 502 F.2d 30 (5th Cir. 1974) in which the court held that the ReviewCommission did not have jurisdiction to reconsider an order made final undersection 661, and that the sole statutory recourse for an aggrieved party is bypetition to the appropriate court of appeals.??????????? Inopposing the motion complainant argues that reconsideration of a final order isnot question presented. It is shown that Judge Tenney?s order was granted?without prejudice.? Hence, complainant asserts that a new citation couldproperly be issued. The liberal amendment permitted under the Commission?srules of practice is referred to, as well as the Federal Rules of CivilProcedure.??????????? I ampersuaded that the Respondent?s motion is well taken, in view of Brennan above.It appears to me that the circumstances suggest action tantamount to an attemptto reconsider an order already final under section 661 of the Act. The words?without prejudice? must be considered surplusage in the light of Brennan.?Respondent?s motion is GRANTED.?The citation is VACATED.?SO ORDERED.?Louis G. LaVecchiaJudge, OSHRCDated: October 15, 1979\u00a0[1] 29 U.S.C. ?661(i).[2] 29 U.S.C. ? 661(i)provides:An administrative law judge appointed bythe Commission shall hear, and make a determination upon, any proceeding institutedbefore the Commission and any motion in connection therewith, assigned to suchadministrative law judge by the Chairman of the Commission, and shall make areport of any such determination which constitutes his final disposition of theproceedings. The report of the administrative law judge shall become the finalorder of the Commission within thirty days after such report by theadministrative law judge, unless within such period any Commission member hasdirected that such report shall be reviewed by the Commission.[3] The Commission hasspecifically declined to follow the Fifth Circuit?s holding in Brennan v.OSHRC (S.J. Otinger Constr. Co.) that the Commission lacks authority toreconsider final orders under Federal Rule of Civil Procedure 60(b). E.g., Monroe& Sons, Inc., 77 OSAHRC 14\/B7, 4 BNA OSHC 2016, 1976?1977 CCH OSHD?21,470 (No. 6031, 1977), aff?d, 615 F.2d 1156 (6th Cir. 1980).[4] The rule reads asfollows:Rule 41. Dismissal of Actions(a) Voluntary Dismissal: Effect Thereof.(1) By Plaintiff; by Stipulation. Subjectto the provisions of Rule 23(e), of Rule 66, and of any statute of the UnitedStates, an action may be dismissed by the plaintiff without order of court (i)by filing a notice of dismissal at any time before service by the adverse partyof an answer or of a motion for summary judgment, whichever first occurs, or(ii) by filing a stipulation of dismissal signed by all parties who haveappeared in the action. Unless otherwise stated in the notice of dismissal orstipulation, the dismissal is without prejudice, except that a notice ofdismissal operates as an adjudication upon the merits when filed by a plaintiffwho has once dismissed in any court of the United States or of any state anaction based on or including the same claim.(2) By Order of Court. Except as providedin paragraph (1) of this subdivision of this rule, an action shall not bedismissed at the plaintiff?s instance save upon order of the court and uponsuch terms and conditions as the court deems proper. If a counterclaim has beenpleaded by a defendant prior to the service upon him of the plaintiff?s motionto dismiss, the action shall not be dismissed against the defendant?s objectionunless the counterclaim can remain pending for independent adjudication by thecourt. Unless otherwise specified in the order, a dismissal under thisparagraph is without prejudice.[5] Rule 33(a)(3) ofthe Commission?s Rules of Procedure, 29 C.F.R. ? 2200.33(a)(3), provides:Where the Secretary seeks in his complaintto amend his citation or proposed penalty, he shall set forth the reasons foramendment and shall state with particularity the change sought.[6] Section 12(g) ofthe Act, 29 U.S.C. ? 661(f), provides in pertinent part:Unless theCommission has adopted a different rule, its proceedings shall be in accordancewith the Federal Rules of Civil Procedure. [7] Respondent assertsthat the Act?s finality provisions in section 12(j) must take precedence overthe Federal Rules of Civil Procedure. We note, however, that the Commission?sauthority to resort to the Federal Rules is also conferred by the Act, insection 12(g). Therefore, Fed. R. Civ. P. 41(a) is supplementary to section12(j). See Monroe and Sons, Inc., supra.Inparticular, we reject Respondent?s contention that there is a conflict betweensection 12(j) of the Act and Fed. R. Civ. P. 41(a)(2). Our review of thecitations contested in the proceeding now before us does not in any mannerdisturb the Commission final order in OSHRC Docket No. 78?6062. The citationsissued on December 1, 1978, have been vacated, and they are not reinstated orotherwise affected by our decision and order in this case.[8] The Secretarymaintains that a notice of contest is not analogous to an answer and that Fed.R. Civ. P. 41(a)(1) must govern voluntary dismissals in Review Commissionproceedings. The Commission majority explicitly rejected this argument in IMCChemical Group, Inc., supra. Commissioner Barnako, who dissented in thatcase, adheres to his view that the Secretary has an absolute right to withdrawhis citation prior to the filing of an answer or a motion for summary judgmentby the respondent whichever occurs first; nevertheless, such withdrawal muststill be effectuated through a Commission order. IMC Chemical Group, Inc.,supra, 6 BNA OSHC at 2080?2081 and n. 19, 1978 CCH OSHD at pp. 27,993?94 and n.19 (dissenting opinion). Since the Secretary withdrew his citation in OSHRCDocket No. 78?6062 prior to the filing of Respondent?s answer and pursuant toCommission order, Commissioner Barnako reaches the same conclusion as themajority in the case on review regarding the effect of this dismissal, althoughhe would rely on Rule 41(a)(1) rather than 41(a)(2). Rule 41(a)(1) alsoexpressly provides that a dismissal under the rule is without prejudice unlessotherwise specified.[9] Section 9(c) ofthe Act, 29 U.S.C. ? 658(c), provides:No citation may be issued under thissection after the expiration of six months following the occurrence of anyviolation.TheSecretary?s right to issue citations is also subject to the requirement insection 9(a), 29 U.S.C. ? 658(a), that they be issued with ?reasonablepromptness?. Nevertheless, the issue of compliance with section 9(a) was notraised by Respondent and, hence, is not before us.[10] Both the Secretaryand Respondent have promoted conceptual confusion in this matter by referringto the Secretary?s ?re-issued? citations. Since the effect of the unrevieweddismissal without prejudice was to render the citation a nullity, the citationbecame non-existent. Thus, the citations which the Secretary issued on the dayafter Judge Tenney?s order became final were sui generis and were not re-issuedcitations.[11] Since theSecretary has not sought here to revive the citation which was the subject ofJudge Tenney?s unreviewed order of dismissal, this case does not present anoccasion for the exercise of the Commission?s power under Fed. R. Civ. P. 60(b)to grant relief from final Commission orders. See notes 3 and 7, supra. Thusthe parties? arguments concerning the applicability of Monroe and Sons, Inc.,supra, need not be reached.”