ON PETITION FOR REVIEW FROM AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC No. 79-6864)
Before Seitz, Chief Judge, and Van Dusen and Gibbons, Circuit Judges.
Petitioner J. I. Hass Co., Inc. ("Hass") seeks review of an Occupational Safety and Health Review Commission ("Commission") order.*fn1 This order determined that because Hass had not filed a timely notice of contest, the Commission could not review the citations and penalties imposed on Hass pursuant to the Occupational Safety and Health Act of 1970*fn2 ("Act"). We disagree. The Commission's order will be set aside and the case remanded to the Commission for proceedings consistent with this opinion.
On September 5, 1979, the respondent Secretary of Labor ("Secretary"), acting through the Occupational Safety and Health Administration ("OSHA"), issued two citations and notifications of penalty to Hass. They alleged one willful and two serious violations of the Act, with proposed penalties totaling $8,320. OSHA sent these citations to Hass on September 5 by certified mail, and an employee of Hass signed for and received them on September 6. Hass, however, contends that none of its officers or management personnel ever received the citations.*fn3
On October 16, 1979, OSHA sent a letter to Hass advising it that since it had not contested the citations within 15 working days of receipt, they had become final and unreviewable orders of the Commission. The letter demanded prompt payment of the penalties. On October 19, 1979, Hass wrote to OSHA saying that it had first learned of the citations from the October 16 letter and thus had not received proper notice of them. On October 26, 1979, OSHA responded by referring to the registered mail return receipt dated September 6, 1979, which the employee had signed.
On November 6, 1979, Hass requested that the Commission permit the company to file a late notice of contest because none of the company's officers had learned of the citations until after the 15 working days for filing a notice of contest had elapsed. The Commission and the Secretary treated this request as a motion to extend the notice of contest period. On April 18, 1980, the ALJ denied Hass' motion and concluded that the citations were a final order of the Commission. Hass then unsuccessfully petitioned the Commission for discretionary review.*fn4 The Commission, however, did grant in part an application for stay of the Commission's order pending court review. Hass then petitioned this court for review, contending that the Commission had the power under Federal Rule of Civil Procedure 60(b)*fn5 to consider a notice of contest which was untimely due to excusable neglect.
The question before us is whether the Commission has jurisdiction to consider a late notice of contest under Fed.R.Civ.P. 60(b). We must consider two issues. First, does rule 60(b) apply to any Commission proceedings. Second, does section 10(a) of the Act, 29 U.S.C. § 659(a) (1976), prevent rule 60(b) from applying to late notices of contest.
A. Applicability of Rule 60(b) to Commission Proceedings
Rule 60(b)*fn6 states in part:
"(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 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 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 "
(Emphasis added.) The Secretary believes that rule 60(b) does not permit relief from any Commission orders. He relies on Brennan v. Occupational Safety and Health Review Com'n, 502 F.2d 30, 33 (5th Cir. 1974), which held that rule 60(b) does not permit the Commission to reconsider its final orders after the time limit in section 12(j), 29 U.S.C. § 661(i) (Supp.1980), expires. Section 12(j) provides that an ALJ's report becomes "the final order of the Commission within thirty days," unless a Commission member directs review. In Brennan, the Commission reconsidered a hearing examiner's*fn7 decision after the 30 days had passed, relying on rule 60(b). The court set ...