UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
�� Complainant,
�� v.	OSHRC DOCKET NO. 79-2380
STRIPE-A-ZONE,
�� Respondent.

October 31, 1980

DECISION

BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

�� A decision of Administrative Law Judge Louis G. LaVecchia is before the Commission for review pursuant to section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651�678 (�the Act�). Judge LaVecchia granted a pre-hearing motion to dismiss filed by Stripe-A-Zone, Inc. (�Respondent�) and vacated the citations issued by the Secretary of Labor (�the Secretary�). The dismissal was sought and obtained on the ground that the alleged violations were the subject of a previous Commission final order entered in another proceeding. Review was directed by Commissioner Cottine to determine whether the judge erred in granting the Respondent�s motion to dismiss. We vacate the judge�s order, reinstate the citations and remand the case for further proceedings.

�� Respondent installs 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 from November 6 to November 13, 1978, after it learned of a fatality at the site. On December 1, 1978, the Secretary issued a citation alleging that four serious violations of the Act occurred on or about November 1, 1978. The proposed penalty totaled $2,240.00. Respondent timely filed a notice of contest and the case was docketed as OSHRC Docket No. 78�6062. The Secretary subsequently moved to withdraw his citation �without prejudice.� After Respondent certified that the Secretary�s motion had been posted, Chief Administrative Law Judge Paul A. Tenney ordered: �The Secretary of Labor�s unopposed motion to withdraw the citation is granted.� When no Commissioner directed review of Judge Tenney�s order within thirty days of its filing with the Commission, the judge�s order became a final order of the Commission pursuant to section 12(j) of the Act, 29 U.S.C. � 661(i).2[2]On April 26, 1979, the day after the judge�s order became a Commission final order, the Secretary issued two citations to Respondent. It is undisputed that these citations alleged violations of the Act based upon the same inspection and the same facts underlying the citations previously withdrawn in OSHRC Docket No. 78�6062. Nevertheless, there are significant differences between the two sets of citations. For example, while three of the four items in the December 1978 citation alleged violations of �the general duty clause�, i. e., section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1), the April 1979 citations alleged several violations of sections 5(a)(2) of the Act, 29 U.S.C. � 654(a)(2), based on failure to comply with specific occupational safety and health standards. Furthermore, the violations in one of the citations were characterized as willful. Finally, the proposed penalty for these two new citations totaled $ 16,640.00. Respondent again filed a timely notice of contest, and the case was docketed as OSHRC Docket No. 79�2380. Following the filing of the Secretary�s complaint, Respondent moved to dismiss the complaint and to vacate the citations on the ground that they were the subject of a previous Commission final order. Judge LaVecchia granted the motion. He characterized the Secretary�s issuance of the two new citations as �tantamount to an attempt to reconsider an order already final under section 661 of the Act.� Citing Brennan v. OSHRC (S.J. Otinger Construction Co.), 502 F.2d 30 (5th Cir. 1974)[3], the judge endorsed Respondent�s argument that the Commission does not have jurisdiction to reconsider final orders and that the sole remedy for a party aggrieved by a final order is to petition the appropriate court of appeals. The Secretary petitioned the Commission for review of Judge LaVecchia�s decision and order and review was directed on the issue raised by the Secretary.

II.

�� On review, the Secretary contends that Rule 41(a) of the Federal Rules of Civil Procedure is applicable in Commission proceedings and that a motion to dismiss under this rule is without prejudice unless specifically stated otherwise.[4] The Secretary states that the effect of a dismissal is to render the proceedings a nullity and to leave the parties as if the dismissed action had never been brought. In addition, the Secretary asserts, because Commission Rule 33(a)(3)[5] allows him to amend citations absent a showing of prejudice to Respondent in the preparation or presentation of its case, it follows that the Secretary can withdraw a citation and file a new one absent a similar showing of prejudice to Respondent. The Secretary denies that he is attempting here to reconsider the dismissal order or to enforce the citation vacated in OSHRC Docket No. 78�6062; he merely seeks an adjudication on the merits of the citations contested in OSHRC Docket No. 79�2380.

�� Respondent argues that the Act�s incorporation by reference of the Federal Rules of Civil Procedure only applies in the absence of an existing Commission rule.[6] Specifically, Respondent argues that section 12(j) of the Act, note 2 supra, constitutes the governing rule regarding finality. Therefore resort to the Federal Rules is neither necessary nor authorized since Rule 41(a) and the concept of �without prejudice� do not overcome the specific statutory requirements of section 12(j). In Respondent�s view, the Secretary�s failure to seek review of Judge Tenney�s order in OSHRC Docket No. 78�6062 resulted in a final Commission order that is not reviewable by any court or agency that imposes a res judicata bar to the re-issuance of citations which are the subject of that final order.

III.

�� In IMC Chemical 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 to withdraw a citation in a contested case is governed by Fed. R. Civ. P. 41(a)(2).[7] There, as here, the filing of a notice of contest by respondent deprived the Secretary of the right to unilateral dismissal under Rule 41(a)(1) and allowed the Secretary to withdraw a citation only upon an order of the Commission pursuant to Federal Rule 41(a)(2). Under the express terms of the rule, a dismissal is without prejudice unless the order specifies otherwise.[8] In OSHRC Docket No. 78�6062, Judge Tenney granted the Secretary�s unopposed motion, which was to withdraw 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 without prejudice.

�� It is well settled that the effect of a voluntary dismissal without prejudice is to render the matter a nullity and to restore the parties to the same position as if the action had never been brought. In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213 (8th Cir. 1977). See also 5 Moore�s Federal Practice �41.05[2] (2nd ed. 1980) and cases cited therein. Such a dismissal is not an adjudication on the merits and thus does not serve as a res judicata bar to bringing a later suit on the same cause of action. LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976). Respondent correctly argues that Judge Tenney�s unreviewed order became a Commission final order thirty days after its filing with the Commission. Yet, the dismissal by the judge neither purported to be not operated as an adjudication of the merits of the citation. Judge Tenney�s order merely permitted a procedural action which voided the citation underlying OSHRC Docket No. 78�6062 and which restored the parties to their pre-citation positions. Nevertheless, the Secretary�s authority to issue citations alleging violations discovered during the same underlying inspection survived that final order, subject to the six-month limitations period of section 9(c) of the Act.[9] When the Secretary issued the citations underlying OSHRC Docket No. 79�2380 four days prior to the expiration of the six-month period, he satisfied the requirement of section 9(c). Accordingly, we conclude that these citations are as a matter of law independent of and distinct from the dismissed citation, even though they share the same factual predicate.[10] The Secretary is entitled to 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 further proceedings.

SO ORDERED.

�

FOR THE COMMISSION:

�

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: OCT 31, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
�� Complainant,
�� v.	OSHRC DOCKET NO. 79-2380
STRIPE-A-ZONE,
�� Respondent.

October 15, 1979

ORDER

�� Respondent has moved to dismiss this proceeding on the ground that the citation issued against respondent was the subject of a final Review Commission decision. Respondent has shown that essentially the same violations charged in this proceeding 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 date and April 25, 1979. The instant proceeding was commenced on April 26, 1979, under the same OSHA investigation number, the same inspection dates, the same inspection site, and the same violation date, i.e., on or about November 1, 1978. Accordingly, respondent contends that the second citation is void because the alleged violations were the subject of a Commission decision which has become a final order under 29 U.S.C. 666(i) of the Act, citing Accu-Namics v. 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 Review Commission did not have jurisdiction to reconsider an order made final under section 661, and that the sole statutory recourse for an aggrieved party is by petition to the appropriate court of appeals.

�� In opposing the motion complainant argues that reconsideration of a final order is not question presented. It is shown that Judge Tenney�s order was granted �without prejudice.� Hence, complainant asserts that a new citation could properly be issued. The liberal amendment permitted under the Commission�s rules of practice is referred to, as well as the Federal Rules of Civil Procedure.

�� I am persuaded 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 attempt to 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. LaVecchia

Judge, OSHRC

Dated: October 15, 1979

[1] 29 U.S.C. � 661(i).

[2] 29 U.S.C. � 661(i) provides:

An administrative law judge appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such administrative law judge by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the administrative law judge shall become the final order of the Commission within thirty days after such report by the administrative law judge, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

[3] The Commission has specifically declined to follow the Fifth Circuit�s holding in Brennan v. OSHRC (S.J. Otinger Constr. Co.) that the Commission lacks authority to reconsider 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 as follows:

Rule 41. Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, 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 party of 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 have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff�s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff�s motion to dismiss, the action shall not be dismissed against the defendant�s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

[5] Rule 33(a)(3) of the Commission�s Rules of Procedure, 29 C.F.R. � 2200.33(a)(3), provides:

Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

[6] Section 12(g) of the Act, 29 U.S.C. � 661(f), provides in pertinent part:

Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.

[7] Respondent asserts that the Act�s finality provisions in section 12(j) must take precedence over the Federal Rules of Civil Procedure. We note, however, that the Commission�s authority to resort to the Federal Rules is also conferred by the Act, in section 12(g). Therefore, Fed. R. Civ. P. 41(a) is supplementary to section 12(j). See Monroe and Sons, Inc., supra.

In particular, we reject Respondent�s contention that there is a conflict between section 12(j) of the Act and Fed. R. Civ. P. 41(a)(2). Our review of the citations contested in the proceeding now before us does not in any manner disturb the Commission final order in OSHRC Docket No. 78�6062. The citations issued on December 1, 1978, have been vacated, and they are not reinstated or otherwise affected by our decision and order in this case.

[8] The Secretary maintains 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 Commission proceedings. The Commission majority explicitly rejected this argument in IMC Chemical Group, Inc., supra. Commissioner Barnako, who dissented in that case, adheres to his view that the Secretary has an absolute right to withdraw his citation prior to the filing of an answer or a motion for summary judgment by the respondent whichever occurs first; nevertheless, such withdrawal must still 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 OSHRC Docket No. 78�6062 prior to the filing of Respondent�s answer and pursuant to Commission order, Commissioner Barnako reaches the same conclusion as the majority in the case on review regarding the effect of this dismissal, although he would rely on Rule 41(a)(1) rather than 41(a)(2). Rule 41(a)(1) also expressly provides that a dismissal under the rule is without prejudice unless otherwise specified.

[9] Section 9(c) of the Act, 29 U.S.C. � 658(c), provides:

No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

The Secretary�s right to issue citations is also subject to the requirement in section 9(a), 29 U.S.C. � 658(a), that they be issued with �reasonable promptness�. Nevertheless, the issue of compliance with section 9(a) was not raised by Respondent and, hence, is not before us.

[10] Both the Secretary and Respondent have promoted conceptual confusion in this matter by referring to the Secretary�s �re-issued� citations. Since the effect of the unreviewed dismissal without prejudice was to render the citation a nullity, the citation became non-existent. Thus, the citations which the Secretary issued on the day after Judge Tenney�s order became final were sui generis and were not re-issued citations.

[11] Since the Secretary has not sought here to revive the citation which was the subject of Judge Tenney�s unreviewed order of dismissal, this case does not present an occasion 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. Thus the parties� arguments concerning the applicability of Monroe and Sons, Inc., supra, need not be reached.