Marianas Garment Manufacturing, and its successors

Plain-English summary

Marianas Garment Manufacturing admitted that its notice of contest was late but sought relief under Rule 60(b). It argued that the citation was void because OSHA lacked jurisdiction over conditions in residential dormitories. The judge held that the argument concerned statutory coverage, not the Commission's subject-matter jurisdiction, and that the Commission was competent to decide coverage. He also found no extraordinary reason to reopen the case merely to revisit an issue that had arisen in other proceedings. The late contest was dismissed, the citation was affirmed, and no penalty was assessed because none had been proposed.

Decision snapshot

• Cited standard(s): The decision does not identify the substantive standard in the citation.
• Outcome: Late notice of contest dismissed; citation affirmed with no penalty.
• Key point: A dispute over whether the Act covers a worksite does not make the Commission's judgment void for lack of subject-matter jurisdiction.

Full text (OSHRC public release)

                                               United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                       1244 North Speer Boulevard, Room 250
                                           Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                                OSHRC DOCKET NO. 02-0129

MARIANAS GARMENT
MANUFACTURING, and its successors,
Respondent.

                                          DECISION AND ORDER

     This matter comes up on Complainant’s motion to dismiss Respondent’s late notice of contest.

Complainant maintains that Respondent failed to file its notice of contest within 15 days of its receipt
of the subject OSHA citation as required under §10(a) of the Occupational Safety and Health Act of
1970 (29 U.S.C. Section 651 et seq.; hereafter called the “Act”).1 In its opposition to Complainant’s
motion, Respondent admits that its filing was untimely, but asks that the Commission grant relief under
Rule 60(b) of the Federal Rules of Civil Procedure.
The Commission has previously granted relief from judgment or order under Fed. R. Civ. P.
60(b)(1), where the Respondent has shown a sufficient basis for relief under the rule. See, Branciforte
Builders Inc., 9 BNA OSHC 2113 (No. 80-1920, 1981). Keefe Earth Boring Company, Inc., 14 BNA
OSHC 2187, 1991-93 CCH OSHD ¶29,277 (No. 88-2521, 1991).2 Fed.R.Civ.P. 60(b) also permits
discretionary relief from final orders that have been entered where “(4) the judgment is void. . . or (6)
[for] any other reason justifying relief from the operation of the judgment.”

         1
           §10(a) of the Occupational Safety and Health Act, 29 U.S.C. §659(a) states that “. . .the employer has

fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed
assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the
employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty. . . the
citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review
by any court or agency.

         2
          But see, Chao v. Russell P. Le Frois Builder, Inc., 2nd Cir., No. 00-4057, 5/10/02 [OSHRC lacks

jurisdiction to reopen late notices of contest under Fed.R.Civ.P. 60(b)(1)]
 Respondent suggests that the default judgment in this action is void because OSHA lacks
subject matter jurisdiction over the site, i.e. Respondent’s residential dormitories, in which the cited
conditions were located. Respondent confuses the issue of coverage with that of subject matter
jurisdiction. Subject matter jurisdiction “refers to a court’s competence to hear and determine cases of
the general class to which proceedings in questions belong;. . .” BLACK’S LAW
DICTIONARY(1979)[emphasis added]. Primary jurisdiction to determine questions of the Act’s

coverage is vested in the Commission. Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976). Whether or
not the cited dormitories are covered by the Act is clearly within the competence of this court. Subject
matter jurisdiction, therefore, is not an issue in this matter, and default judgment is not void.
Respondent further suggests that the coverage issue is of such “broad social importance” that
this case should be reinstated so that the matter may be resolved. Respondent further notes, however,
that the issue of coverage has arisen “repeatedly” over the past several years, that various employers
have challenged OSHA’s right to inspect residential barracks, and that the District Courts have
consistently issued and enforced warrants authorizing such inspections. (Respondent’s Opposition to
Motion to Dismiss, p. 3). Under the circumstances, this judge finds that the opportunity to revisit this
issue does not justify granting relief under Fed.R.Civ.P. 60(b)(6).
Complainant’s motion to dismiss Respondent’s notice of contest is GRANTED, and the
citation in this matter is AFFIRMED. No penalty was proposed, and none is ASSESSED.

                                                           /s/

                                                     Benjamin R. Loye
                                                     Judge, OSHRC

Dated: June 12, 2002

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