___________________________________
:
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 93-0785
:
L. R. WILLSON AND SONS, INC., :
:
Respondent. :
___________________________________:
*DECISION*
Before: WEISBERG, Chairman; ROGERS, Commissioner.
BY THE COMMISSION:
L. R. Willson and Sons, Inc. ("Willson") filed a motion with the
Commission requesting that the Commission order the Secretary to cease
collection efforts seeking the payment of a penalty in this case.
Administrative Law Judge Michael Schoenfeld denied Willson's motion. For
the reasons that follow, we affirm the judge's order.
*BACKGROUND*
On February 25, 1993, the Secretary cited Willson for two violations.
Serious Citation 1, Item 1 ("the general duty clause item") alleged a
violation of section 5(a)(1) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§ 651-678 ("the Act"), for exposing employees to
hazards of uncontrolled loads and swinging and/or falling steel. Serious
Citation 1, Item 2 ("the tag line item") alleged a violation of 29
C.F.R. § 1926.751(d) for failing to use tag lines to control loads while
hoisting during structural steel assembly. The Secretary proposed a
penalty of $4000 for each citation item. Willson timely contested both
citations.
Prior to the hearing, the Secretary withdrew the general duty clause
citation, making Willson the prevailing party as to that citation item.
As a result, Willson sought an award of attorney's fees under the Equal
Access to Justice Act, 5 U.S.C. § 504 ("the EAJA"), for the cost of
defending itself against the general duty clause citation. The judge
denied the application for fees because he had not yet filed a decision
on the tag line item. After the judge filed his decision affirming the
tag line item and assessing a $4000 penalty, Willson petitioned for
discretionary review of the judge's decision. In the petition, Willson
renewed its application for fees. The petition for review was not
granted, and the judge's decision on the tag line item became a final
order on October 3, 1994.
On October 19, 1994, Willson once again filed with the judge its
application for attorney's fees. Subsequently, on January 17, 1995, the
Secretary and Willson filed a settlement agreement with the judge which
stated that "[t]he Respondent filed a petition for attorney's fees under
the Equal Access to Justice Act, which is currently pending before the
Commission. The parties wish to settle all matters raised by the
[p]etition . . . ." By the terms of the settlement agreement, Willson
agreed to accept payment from the Secretary "in full settlement of its
petition, withdraw its petition for fees, and cease any further
proceedings in connection with this matter." While the agreement does
specifically refer to the withdrawn general duty clause citation item,
it does not mention the tag line item. On February 27, 1995, Judge
Schoenfeld's Order Approving Stipulated Settlement became final.
On August 31, 1995, the Secretary sent a collection letter to Willson
requesting payment of the tag line penalty. This was followed by
collection letters on January 31, 1996 and February 23, 1996. Willson
responded to each letter by claiming that the settlement agreement
discharged it from all penalty obligations arising from the citation. On
March 18, 1996, the Secretary notified Willson that she was going to
pursue collection through litigation. On August 8, 1997, the Secretary
again notified Willson that payment was overdue. In response to this
letter, on August 26, 1997 Willson submitted to the Commission's
Executive Secretary a "Motion to Cease Collection Efforts" in which
Willson "moves the Commission for an Order directing the Occupational
Safety and Health Administration ("OSHA") to cease its collection
efforts against Willson." The Secretary filed an opposition and motion
to strike Willson's motion. The case was again assigned to Judge
Schoenfeld, who on November 11, 1997 found that the Commission was
without jurisdiction to consider the merits of Willson's motion and
accordingly denied that motion.
*DISCUSSION*
The Secretary has been attempting to collect from Willson a penalty she
believes she is owed based on the tag line violation. Willson denies
that it owes the penalty, and asks us to stop the Secretary's collection
effort. We must reject Willson's request. The Act contains no provision
authorizing the Commission to order the injunctive relief Willson seeks.
Rather, the Act provides for the recovery of penalties by the Secretary
"in a civil action . . . brought in the United States district
court."[1] Hence, the Commission is not the proper forum to consider
either a suit to collect penalties or to hear an appeal regarding the
collection of penalties. /Badger Underground Constr., Inc./, 17 BNA OSHC
1696, 1697, 1995-97 CCH OSHD ¶ 31,096, p.43,396 (No. 94-3251, 1996)
(penalty collection is solely the function of the Secretary of Labor
under the Act). If and when the Secretary brings suit in a district
court for payment of the tag line penalty, Willson can then present the
arguments it makes in its motion.
Even if we were to treat Willson's motion as a motion for relief from
the final order that approved the settlement agreement under Fed. R.
Civ. P. 60(b),[2] such motion would be time-barred. Willson is
time-barred from raising "mistake, inadvertence, surprise, or excusable
neglect" under 60(b)(1) because its motion was not made until
approximately two and a half years after the settlement agreement became
a final order, well outside the one year limitation for such motions,
despite a number of attempts by the Secretary in the interim to collect
the penalty. We also do not find "any other reason justifying relief"
under Rule 60(b)(6), the only other clause of Rule 60(b) that could
apply here.
We therefore deny Willson's Motion to Cease Collection Efforts.
_____________________________
/s/
Stuart E. Weisberg
Chairman
_____________________________
/s/
Thomasina V. Rogers
Commissioner
Dated: January 25, 1999
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[1] Section 17(l) of the Act provides as follows:
Civil penalties owed under this Act shall be paid to the Secretary
for deposit into the Treasury of the United States and shall accrue
to the United States and may be recovered in a civil action in the
name of the United States brought in the United States district
court for the district where the violation is alleged to have
occurred or where the employer has its principal office.
The action may be brought "within five years from the date when the
claim first accrued." 28 U.S.C. § 2462.
[2] Rule 60(b) of the Federal Rules of Civil Procedure provides, in
pertinent part:
*Rule 60. Relief From Judgment or Order*
. . . .
*(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, etc.* On motion and upon such terms as are just,
the court may relieve a party or a party's 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 . . . 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 has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or taken.