Richard Kaposy d/b/a Treeman Landscaping

Plain-English summary

An administrative law judge had granted Richard Kaposy relief from a final judgment under Federal Rule of Civil Procedure 60(b)(6). The judge found that the self-represented employer had mistakenly understood the consequences of withdrawing its notice of contest after a mandatory settlement conference. The United States Court of Appeals for the Third Circuit vacated that ruling and returned the case to the Commission. The Commission then remanded the matter to the Chief Judge for reassignment to the original settlement judge and further proceedings consistent with the court's opinion. This order did not decide the underlying citations or identify their standards.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Case remanded for further proceedings after the court of appeals vacated the grant of Rule 60(b)(6) relief.
• Key point: Once the court of appeals vacated the relief ruling, the Commission returned the case to the judge for proceedings governed by the appellate opinion.

Full text (OSHRC public release)

Upstate Roofing, Inc., Docket No. 00-0336

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EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120
20th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

SECRETARY OF
LABOR,

Complainant,

v.

OSHRC
Docket No. 10-2333

RICHARD KAPOSY d/b/a TREEMAN

LANDSCAPING, and its successors,

Respondent.

REMAND
ORDER  

Before:
ATTWOOD, Acting Chairman; M ac DOUGALL,
Commissioner.

BY
THE COMMISSION:

This
case is before the Commission on remand from the United States Court of Appeals
for the Third Circuit. Secretary of Labor v. Kaposy , 607 F.App’x 230, 25
BNA OSHC 1469 (3d Cir. 2015). On appeal, the court reviewed Administrative Law
Judge John H. Schumacher’s Decision granting Respondent relief from judgment
pursuant to Federal Rule of Civil Procedure 60(b)(6). In an opinion dated July 20, 2015, the court vacated the judge’s
decision.

By
mandate issued September 10, 2015, the court has remanded the case to the
Commission. We, in turn, remand this case to the Chief Judge so that she may
reassign the matter from Judge Phillips to Judge Schumacher for further
proceedings in accordance with the court’s opinion.

SO
ORDERED.

/s/                                                        

Cynthia L. Attwood

Acting Chairman

/s/                                                        

Heather
L. MacDougall

Dated:   September 24,
2015                                                      Commissioner

Some personal identifiers have been redacted for privacy
purposes

UNITED STATES OF AMERICA

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

U.S.
Customs House, Room 407

721 19 th
Street

Denver,
CO 80202-2517

Office
303.844.3409

Fax
303.844.3759

SECRETARY OF
LABOR,               

Complainant,  

v.

OSHRC Docket No. 10-2333

RICHARD KAPOSY, dba TREEMAN LANDSCAPING and its
successors,

Respondent

DECISION
ON EVIDENTIARY REVIEW

I.
BACKGROUND

On March 6, 2014, the Occupational Safety and Health Review
Commission (Hereafter, the “Commission” or “OSHRC”) issued an Order concerning
the above-styled case. The Order related that on September 13, 2012, the
Commission’s Executive Secretary received documents from Mr. Richard Kaposy
that, inter alia , included a letter asking for “reconsideration [and]
opening this case back up.” In his letter, Mr. Kaposy makes the following
claims:

I was told by Judge
Schumacher that I had 2 choices. Plan A which was a trial, plan B was to
withdraw my [contest]. He assured me that it would go away over a period of
time. Meaning the fines against me. I took his word on that. He said not to
open or look at any paperwork that I got in the mail. I trusted him and took
his word as a Federal Judge. Now 18 months have passed and he did nothing of
the sort. My OSHA fines are now in collections with [the] Department [of the]
Treasury.

Mr.
Kaposy also asserted that the judge’s statement to him could be verified by a
witness in attendance at the settlement conference. In addition to his letter,
Respondent also included a Compact Disc (hereafter, “CD-1”). This CD consisted
of religious sermon conducted by a female pastor/evangelist, lasting for
approximately 60 minutes. I listened to CD-1 in its entirety, but found the
content unhelpful, irrelevant and not germane to the issues before me.
Therefore, as the finder of fact, I determined that CD-1 will be afforded no
weight.

II. DISCUSSION

The Commission’s Order also related that the Commission
considered Respondent’s letter as a motion for relief under Federal Rule of
Civil Procedure 60(b)(6). On pp. 3-4 of its Order, the Commission has
exhaustively discussed Rule 60 and all its subparts. Given the thoroughness of
this discussion, the Court finds no need to reiterate the Commission’s detailed
analysis here. Succinctly, the Commission concluded that:

a.   Rule 60(b), subparts (1) through (5)
are not available to this Respondent;

b.   Respondent bears the burden of
persuasion that there are “extraordinary circumstances showing that Respondent
is faultless in the delay;”

c.   The party seeking relief under Rule
60(b) has the burden of demonstrating that it is entitled to relief.

III. DIRECTIONS TO THE PARTIES By an Order date March 13,
2014, the Court directed all parties to comply as follows:

1.   All parties who were
present at the original Mandatory Settlement Conference (hereafter, “MSC”) in
Pittsburgh, PA, on February 3, 2011, were directed to files, by close of
business on April 18, 2014, sworn affidavits attesting to their personal
recollection of the events that occurred at this MSC. By “all parties,” this
included Richard Kaposy,

Barbara Dennis, Julie Mullaney, Michael Doyle, Esq., Vance Delsignore
and Robert Szymanski.

2.   In addition to the Order
to the Parties in paragraph 1 immediately above, the Secretary’s representative
was permitted leave to file with this Court, by close of business on April 30,
2014, a Brief articulating the Secretary’s position in this matter. This Brief
was to include all matters that the Solicitor deemed germane. In addition, the
Solicitor was free to provide any legal citations bearing on the matter of Rule
60(b) relief under the facts of this case.

3.   In addition to the Order
to the Parties in paragraph 1 immediately above, Richard Kaposy was to
specifically include in his sworn affidavit, detailed factual and legal
references that supported his burden of persuasion under Rule 60(b)(6) to prove
“any other reason that justifies relief.” His affidavit was to include, but not
be limited to, his recollection of all the events that occurred at the MSC, his
experience with the Pittsburgh Area Office during any informal
settlement discussions, any contact with the OSHA Area Office after the MSC was
concluded, and any other matters that he deemed germane. Additionally, in his
sworn affidavit Mr. Kaposy was to certify that he had forwarded copies of the
Order to Ms. Dennis and Ms. Mullaney. Mr. Kaposy was also state whether there
was any relationship of any nature between himself and Ms.
Mullaney or Ms. Dennis, including but not limited to employment, business
partnership, marriage, blood, familial, in-law, significant other, etc.

4.   In addition to the Order
to the Parties in paragraph 1 immediately above, the affidavits of Ms. Mullaney
and Ms. Dennis were to include, but not be limited to, their recollections of
all the events that occurred at the MSC, their recollections of any experience
with the Pittsburgh Area Office during any informal settlement
discussions, any contact with the Pittsburgh Area Office after the MSC was
concluded, and any other matters they may have deemed germane. Additionally,
Ms. Mullaney and Ms. Dennis were, in their sworn affidavits, to state whether
there was any relationship of any nature between themselves and
Mr. Kaposy, including but not limited to employment, business partnership,
marriage, blood, familial, in-law, significant other, etc.

IV. RESPONSES FROM THE PARTIES

A.  Responses from Respondent

1.   On
March 26, 2014, this office received a written response from Richard Kaposy in
the form of a one-page typed letter, dated March 24, 2014. However, header
portion of this letter contained a handwritten three line sentence, dated March
25, 2014. Additionally, this letter had four pages attached: A. A email dated
March 24, 2014 titled God Is at Work ; B. A one-page advertisement for Country
Boyz Cuttin’ City Trees, showing Rick
Kaposy--Owner/Operator;                                                                                   

C. A one-page
advertisement for The All New Country Boyz Cuttin’ City Treez (sic)
advising “Get ‘Er Down—Get ‘Er Done;” D. An undated photograph from a newspaper
known as the Observer-Reporter (presumably published in the area of
Washington, PA). The caption on this photograph says : “Rich Kaposy, owner of
Country Boys (sic) Cutting City Trees, goes out on a limb to secure a branch
before cutting it Saturday. Wayne Blumling Crane Service assisted with the
removal. The large maple tree is in the yard of Don and Joan Amon on Allison
Avenue in Washington.”

2.   Affidavit of Richard
Kaposy dated April 10, 2014. (With attachments).

3.   Affidavit of Barbara
Dennis (Mother of Richard Kaposy), dated April 10, 2014.

4.   It should be noted that
Ms. Mullaney failed to supply an affidavit.

A.  Responses from Complainant

1.   Affidavit from Robert
Szymanski; former Pittsburgh Area Director.

2.   Affidavit of Vance
Delsignore, Compliance Safety & Health Officer (Pittsburgh).

3.
The Solicitor filed his Brief on May 2, 2014. The Brief contained the
Secretary’s arguments as to these salient points:

a.
Mr. Kaposy’s Rule 60(b)(6) motion should be denied.

b.
Mr. Kaposy did not make his motion within a reasonable time; i.e., within one
year.

c.
Mr. Kaposy demonstrated a lack of diligence in perfecting his appeal.

d.
Granting Mr. Kaposy’s motion would frustrate the purposes of the OSH Act.

V. DISCUSSION

This
Court has carefully considered the entirety of the written record, especially
the well-drafted Solicitor’s brief and the recently filed affidavits of those
who participated in the Mandatory Settlement Conference. In addition, I have
relied upon my personal recollections of the events that transpired that day.

On
balance, and considering the rights of all parties hereto, this Court concludes
that the Respondent has carried his burden of showing, by preponderance of the
evidence, the grounds necessary for the Court establish "mistake" as
the basis of relief. The requested relief is therefore justified under Federal
Rule of Civil Procedure 60(b)(6). Respondent has established that he is
entitled to relief from the “…final judgment, order, or proceeding” surrounding
the Mandatory Settlement Conference that took place February 3, 2011, in
Pittsburgh, PA. The basis for this conclusion is that of “mistake” on
Respondent’s part.

I am
convinced that at the time of the Mandatory Settlement Conference, this pro
se Respondent was mistaken as to the ultimate consequences of his Withdrawal
of Notice of Contest dated February 8, 2011. I personally observed his
demeanor at arm’s length during the Mandatory Settlement Conference, both
during the general session with all parties present, as well as in the private
caucus with Respondent, Ms. Dennis and Ms. Mullaney present. My recollection is
that he appeared to be consumed with remorse at the electrocution death of his
cousin and that he was also somewhat aloof in affect. On one occasion Mr.
Kaposy made a comment [redacted]. Upon reflection, I am convinced that
his grief, coupled with the lack of legal counsel, contributed to Respondent’s
decision to withdraw his Notice of Contest.

The
interests of justice require that in accordance with Federal Rule of Civil
Procedure 60(b)(6), Respondent be relieved from the “…final judgment, order,
or proceeding” surrounding the Mandatory Settlement Conference, and further
that he be afforded a de novo opportunity to contest the Citations and
Items at a hearing before a different Judge.

Good
cause having been established, it is Ordered the Respondent’s Withdrawal of
Notice of Contest dated February 8, 2011, is hereby vacated. Further, it is
my recommendation that this case should be set for a hearing before a different
Judge.

THEREFORE,
this case will be returned to the Office of the Chief Administrative Law Judge
for further processing as she may deem appropriate.

SO ORDERED.                                                                                                                                                       /s/ 

Honorable
John H. Schumacher

U.S.
OSHRC Judge

Date: May 6, 2014

Denver, CO