Jackson Associates of Nassau

Plain-English summary

OSHA cited Jackson Associates of Nassau, operator of the Jackson Hotel, for eleven serious violations and one willful violation, with $11,230 in proposed penalties. The hotel filed its notice of contest after the statutory deadline while one owner was caring for her terminally ill husband and her administrative assistant was running the business. The Commission reaffirmed that it may consider relief from a late notice of contest under Federal Rule of Civil Procedure 60(b), but held that the assistant's failure to read the citation materials carefully was not excusable neglect. Testimony also indicated that OSHA inspectors may have said no penalties would be imposed if the hotel corrected the conditions. The Commission remanded for fact-finding on whether OSHA misrepresentation justified equitable tolling or relief under Rule 60(b)(3). If the hotel proves no such ground for relief, the judge must dismiss the late contest and affirm the citations; otherwise, the case must proceed as a timely contest.

Decision snapshot

• Cited standard(s): The release does not identify the standards underlying the citations.
• Outcome: Remanded to determine whether alleged OSHA misrepresentation excused the late notice of contest.
• Key point: Rule 60(b) may provide relief from a late contest, but failing to read citation instructions is not excusable neglect; proven government misrepresentation may support relief.

Full text (OSHRC public release)

                                 UNITED   STATES OF AMERICA
        OCCUPATIONAL        SAFETY AND HEALTH REVIEW COMMISSION
                                  One Lafayette Centre
   I                        1120 20th Street, N.W. - 9th Floor
                               Washington, DC 20036-3419


                                                                                      FAX:
                                                                                      COM (202) 606-!5050
                                                                                      FTS (202) 60&50!50



                                                    ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. : OSHRC Docket No. 91-0438
.
JACKSON ASSOCIATES OF NASSAU, I

            Respondent.



                                          DECISION

BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
The Occupational Safety and Health Administration (“OSHA”) conducted an August
17, 1990 inspection of the Jackson Hotel which was owned and operated by Jackson
Associates of Nassau (“Jackson”). The hotel, which the judge described as a “mom and
pop” business, was run by Yolanda and Abraham Fischer. Yolanda Fischer and Shari
Morse, Fischer’s administrative assistant of eleven years, as well as George Mitchell, the
maintenance supervisor, were present at the time of the initial inspection, a follow-up
inspection and the closing conference. On November 14, 1990, OSHA issued citations,
alleging eleven serious violations and one willful violation, bearing a total penalty of $11,230.
Morse signed for the certified mail packet on November 18, 1990. After she opened the
citations, she discussed them with the maintenance supervisor and took pictures of the newly
abated conditions. She spoke with Fischer about the citations two or three days later, once
the photographs were developed, and put the materials on Fischer’s desk.
During this entire period, Fischer was often away from the hotel, taking care of her
husband whose illness lasted from July 1990 until January 10, 1991, when he died. She
 2

would come in only two or three times a week for a few hours at a time. Morse, whose
duties normally involved answering the phone, sorting and filing mail, and some payroll
work, had taken on more responsibility in Fischer’s absence, to the extent that Fischer
agreed that Morse was handling the business.
Jackson did not file a notice of contest within the statutory fifteen-day period.’ In
January 1991, Jackson received a penalty collection letter from OSHA. Morse contacted the
OSHA regional office, discussed the matter with two representatives from that office, and
sent a letter to the Review Commission asking for permission to file a late notice of contest.
The letter, which did not mention Mr. Fischer’s illness or Mrs. Fischer’s caregiving,
responsibilities, stated in part: “We were not advised at the time of the informal conference
that if we did not contest the citations for violations that we were responsible for penalties
due.” It was about this time that Jackson retained counsel, who wrote to the Commission
that the physical and emotional demands on Fischer during her husband’s last illness had
prevented her from filing a timely notice of contest. Counsel’s letter said nothing about
misrepresentations or deception by the compliance officers.
The Secretary moved for dismissal of Jackson’s untimelv notice of contest. He argued
ti al v

that the citations had been deemed final orders under section 10(a) of the Act or, in the
alternative, that the circumstances did not warrant relief under Fed. R. Civ. P. 60(b).2 A
hearing was held solely on the preliminary question of the validity of the late-filed notice of
contest.

’ Section 10(a) of the Act provides:

       If, within jifieen 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, and no notice is filed by any employees or representative of employees
       under subsection (c) within such time, the citation and the assessment, as proposed, shall be
       deemed a fial order of the Commission and not subject to review by any court or agency.

(Emphasis added.)

2 Fed. R. Civ. P. 60(b) provides in relevant part that “[o]n 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[;] . . . (3) fraud . . . misrepresentation, or
other misconduct of an adverse party[;] . . . or (6) any other reason justifying relief from the operation of the
judgment.
 3

Judge’s Decision
The judge found, over the Secretary’s objections, that Jackson was entitled to relief
under Branciforte Builders, Inc., 9 BNA OSHC 2113, 1981 CCH OSHD 7 25,591 (No. 80-
1920, 1981) (Commission has jurisdiction to entertain a late notice of contest under Fed. R.
Civ. P. 60(b)), citing J.I. Has Co. v. OSHRC, 648 F.2d 190 (3rd Cir. 1981) (same). As the
judge noted, “[alpplying rule 60(b)(6), courts have set aside a final judgment or order when
circumstances such as absence, illness, or a similar disability prevent a party from acting to
protect its interests.” Brancforte, 9 BNA OSHC at 2117, 1981 CCH OSHD at p. 31,922.

     Conceding that “[i]f this was a larger office with more persons I would decide the

case differently,” the judge found that E.K. Constr. Co., 15 BNA OSHC 1165, 1991 CCH
OSHD ll 29,412 (No. 90-2460, 1991) (prolonged illness of person assigned to handle NOC
does not constitute grounds for relief), had not disavowed Brancforte. The judge ordered
that Jackson be allowed to file its notice of contest and that the Secretary be given thirty
days to file a complaint. Since the Secretary declined to file a complaint, the judge issued
a decision dismissing the citations and penalties for failure to file a complaintA
under
Commission Rule 34. The Secretary petitioned for review.
Secretary’s Section 1 O(a) Arguments
Acknowledging that the Commission has not departed from its precedent holding that
it does have jurisdiction to grant Rule 60(b) relief in late notice of contest cases, e.g., Louisi-
ana-Pacific Cop., 13 BNA OSHC 2020,1989 CCH OSHD ll 28,937 (No. 8601266,1989), the
Secretary argues that section 10(a) of the Act precludes the Commission from exercising
jurisdiction over cases in which the employers have attempted to file their notice of contest
after the statutory 15-day deadline has passed. He maintains that since the Commission has
no jurisdiction to review such matters in the first place, Federal Rule 60(b) does not offer
an “escape hatch” in late notice of contest cases.3

3 Rule 60(b) applies by way of Section 12(g) of the Act which provides that “[ulnless the commission has
adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.”
 4

   The Secretary claims that the Act plainly states that section 10(c) final orders are

subject to judicial review,4 but that section 10(a) final orders are rtot subject either to judi-

cial review or to review by any agency, arguably including the Secretary and the Commission.
Moreover, the Secretary contends, final orders produced by operation of law pursuant to
section 10(a) are not identical to the final orders produced by means of a section IO(c)
adiudication.
J
Although both are labeled a “final order of the Commission” under the terms
v

of the Act, the Secretary argues that the phrase is used in section 10(a) so that an
uncontested citation may be enforced in an appeals court under the provisions of section
11(b) of the Act, which uses the phrase “final order of the Commission.” _.

    The Secretary further maintains that section 12(g) of the Act, see supra note 4, does

not enable the Commission to apply Rule 60(b) here. According to the Secretary, there is
nothing to apply Rule 60(b) to in late notice of contest cases, since no Commission “pro-
ceedings” ever commence when, by operation of law pursuant to section 10(a), a citation is
deemed a final order. The Secretary refuses to treat all Commission activities as
“proceedings” referred to in section 12(g). He contends that Rule 60(b) contemplates
reconsideration of judicial action and therefore covers only situations in which a tribunal has
initially obtained jurisdiction and acted upon the case. He cites two Sixth Circuit cases,
Capital City Excav. Co. v. OSHRC, 679 F.2d 105 (6th Cir. 1982) and Marshall v. IMonroe &

Sons, 615 F.2d 1156 (6th Cir. 1980) in support. The Secretary notes that in Capital City, a
late notice of contest case, the court applied not Rule 60(b) but rather equitable tolling
principles, whereas in Monroe & Sons, a case involving a default for failure to file an answer
where the Commission had already acquired jurisdiction, the court applied Rule 60(b).’

4 Section 10(c) of the Act provides in part that “[i]f an employer notifies the Secretary that he intends to
contest a citation . . . the Commission shall afford an opportunity for a hearing. . . [and] shall thereafter issue
an order. . . and such order shall become final thirty days after its issuance.” Section 11(a) permits any person
adversely affected or aggrieved by a section 10(c) final order to seek judicial review.

5 While it is true that the court did not ultimately apply Rule 60(b) in the CapitaZCity case, it did not hold
that Rule 60(b) does not apply to late notice of contest cases. To the contrary, after recalling its holding in
h4otzroe& Sons that “an OSHRC order is no less subject to consideration under [Rule 60(b)] than is any final
court judgment,” the court added simply that “[slince Capital City did not file a Rule 60(b) motion before the
Commission, that rule is not involved in this case.” CapitaZCity, 679 E2d at 111. Thus, the court leaves open
(continued...)
 5

       Finally, the Secretary argues that his position is supported by Fed. R. Civ. P. 54(a)

which defines “judgment” as including “a decree and any order from which an appeal lies.”
The Secretary claims that since a section 10(a) final order is specifically “not subject to
review by any court or agency,” there is no “order from which an appeal lies” for Rule 60(b)
to reach!
Analysis
Although we can find some initial appeal in the Secretary’s reading of section 10(a),
his interpretation presumes that the Act creates two types of final orders. To the contrary,
the Act recognizes only one type of final order, although there are a number of methods by
which an enforceable final order may be obtained. In the absence of a consensual
settlement or an uncontested citation, however, whenever there is a dispute between the
parties, the matter is resolved via a section 10(c) adjudication, even if the merits are not
reached. The Secretary himself has acknowledged the Commission’s jurisdiction and
participated in a variety of adjudicatory proceedings the very subject of which was whether
the employer or the Secretary proceeded in accordance with the Act so as to be entitled to
benefits thereunder. See, e.g., Atlantic Matine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975)
(untimely notice of contest attributed to government misconduct); General Elecm’c Co. v.
OSHRC, 583 F.2d 61, 68 n. 10 (2d Cir. 1978) (timeliness of issuance of citation); Buckley &

Co., 1 BNA OSHC 1535 (No. 1342, 1974), rev’d on othergrounds, 507 F.2d 78 (3d Cir. 1975)

(sufficiency of setice of process); Acrom Constr. Servs., Inc., 15 BNA OSHC 1123 (No. 88-
2291, 1991) (legitimacy of an oral or written notice of contest) and cases cited.
Certainly nothing in the language of the Act, either section 10(a), Rule 60(b) as
incorporated by section 12(g), or any other provision, suggests the existence of an

‘(...continued)
the possibility that it would apply Rule 60(b) to a late notice of contest case if presented with the proper
motion.

6 This argument presumes that a late-contested citation, like an uncontested citation, instantly, on the
sixteenth working day, becomes a final order from which no appeal lies. To the contrary, as explained in the
balance of this decision, once the employer raises an issue with respect to the nature, form or timeliness of
its notice of contest, the citation is extracted from section 10(a). At that point, the Commission examines the
citation qua contested citation (not citation qua final order) and, regardless of whether the Commission finds
in the employer’s favor, the result is a section 10(c) order from which an appeal lies.
 6

“irreconcilable conflict” from which we may infer that section 10(a) was intended to preclude
the applicability of any of the Federal Rules of Civil Procedure to Commission proceedings.
See Rodriguez v. United States, 480 U.S. 522, 524 (1987). Instead, it appears to us that the
pertinent provisions of the Act can be read in harmony with ease. See 2A Sutherland,
Statutory Construction 5s 46.05, 46.06 (5th Ed., 1992 Rev.). Under section 10(a), an
uncontested citation is “deemed a final order of the Commission and not subject to review
by any court or agency.” The vast majority of uncontested citations fall, without further ado,
into this category. However, under section 12(g) of the Act, our proceedings shall be in
accordance with the Federal Rules of Civil Procedure unless the Commission has adopted
a different rule. This includes Rule 60(b) which, in certain cirumstances, permits the
Commission to relieve parties or their representatives from final orders.
The Secretary insists that section 10(a) obviously precludes relief or review under
Rule 60(b) because section 10(c) so clearly affords relief and review where citations are
timely contested. We believe that the only way to plausibly read Rule 60(b) in the context
of section 10(a) is to recognize that the federal judiciary system fashioned this remedy to
address those circumstances in which a party’s blameless failure to comply with an order or
meet a deadline would effectively force it to forfeit its substantive rights in the matter at
issue. Where the Federal Rules of Civil Procedure apply, this remedy is universally
available. We find nothing in the language of the Act or its legislative history to indicate
that Congress intended to take the Draconian step of completely eliminating even the
possibility of Rule 60(b) relief in situations in which a citation is contested in an untimely
or unorthodox manner.
Although Congress undoubtedly envisioned a tribunal of limited jurisdiction when it
created the Commission, it never wrote into the Act a specific, restrictive jurisdictional grant;
rather, the Commission was created as a forum in which to resolve disputes arising in
connection with enforcement under the Act.’ In assuming jurisdiction over this case and

7 See, e.g., section 12(d) of the Act: “Whenever the commission deems [appropriate], it may hold hearings
or conduct otherproceedings at any other place.” Similarly, section 12(j) provides that in the first instance, an
administrative law judge “shall hear, and make a determination upon, any proceeding institutedbefore the
Commission and any motion in connection therewith. . . .” (Emphases added.)
 7

other late notice of contest cases, we are simply carrying out our statutory purpose: to
“carry[] out adjudicatory functions under the Act.” Sec. 2(b)(3) of the Act. “The
Commission’s function is to act as a neutral arbiter and determine whether the Secretary’s
citations should be enforced over . . . objections.” See Cuyahoga Valley Ry. v. United Tramp.

Union, 474 U.S. 3, 7 (1985).
The Secretary’s claim that the Commission has no jurisdiction over these kinds of
cases is belied by his apparent recognition of at least one exception to his own rule. The
Secretary’s regulation on point, 29 C.F.R. 0 1903.17, provides that an employer’s notice of
contest “shall be postmarked within 15 working days of the receipt by the employer of the
notice of proposed penalty.” No exceptions are recognized in the text of the regulation, but
a common law exception has developed over time. See Atlantic Marine) (section 10(a) ought
not pose an “impenetrable barrier” to an employer who can show its untimely notice of
contest was the result of being prejudiced by the Secretary’s deception or irregular proce-
dures). The Secretary appears to have acquiesced in the Commission’s review of cases in
which it is alleged that untimeliness of a notice of contest was due to misrepresentation on
the Secretary’s part. E.g., Henry C. Beck Co., 8 BNA OSHC 1395, 198; CCH OSHD
ll 24,484 (No. 11864, 1980); Merritt Elec. Co., 9 BNA OSHC 2089, 1981 CCH OSHD
ll 25,556 (No. 77-3772, 1981); Elmer Constr. Co., 12 BNA OSHC 1002,1984-85 CCH OSHD
II 27,050 (No. 83-40, 1984). The principles expressed in Atlantic Matine are essentially
embodied in Fed. R. Civ. P. 60(b)(3), which allows relief on grounds of “fraud . . . misrep-
resentation, or other misconduct of an adverse party.” See Brancifote, 9 BNA OSHC at
2117, 1981 CCH OSHD at p. 31,922 (“The Commission’s holding in B.J. Hughes [B.J.
Hughes, Inc., 7 BNA OSHC 1471, 1979 CCH OSHD l’l23,675 (No. 76-2165, 1979)] was
implicitly grounded on the same equitable principles embodied in Rule 60(b)(3)“). The
Secretary’s seeming submission to Commission jurisdiction when his own conduct causes the
delay persuades us that his position is founded not upon the language of section 10(a) but
on which party’s conduct caused the delay and whether employees should be made to suffer
for that conduct.
 8

     In conclusion, the Secretary is correct when he argues that normally, when a citation

remains uncontested, no Commission “proceedings” take place to which Rule 60(b) could
apply. However, a late-contested citation, is still a contested citation, whether or not the
merits are ever reached, and it is this procedural controversy to which Rule 60(b) applies.
We therefore reaffirm that section 10(a) does not prevent the Commission from ruling on
whether to grant relief from a final order under Rule 60(b).
Rule 60(b)(l) or (b)(6) Relief
Having established that the Commission has jurisdiction and that both equitable
tolling under Atlantic Marine and Rule 60(b) relief may be available to employers who file
late notices of contest, we turn to the particular facts of this case. For the following reasons,
we find that Jackson is not entitled to relief under Rule 60(b)(l) or (b)(6), but may be
entitled to relief under Rule 60(b)(3) or under the principles stated in Atlantic Marine.
The judge found that Fischer’s distraction because of her husband’s illness fell within
the category of “any other reason[s] justifying relief from the operation of the judgment”
under Rule 60(b)(6). We do not reach that issue and take no position on the judge’s finding
with respect to Fischer’s role in causing the notice of contest to be late.
In our opinion, it is the conduct of Fischer’s administrative assistant, Morse, not of
Fischer herself, that is critical here. The standard to be applied is Rule 60(b)(l) covering
inadvertence, mistake or excusable neglect. The judge, focusing solely on Fischer’s conduct,
made no finding as to why Morse, who had been actively involved in the business and in
many respects acted as Mrs. Fischer’s surrogate during Mr. Fischer’s illness, failed to read
the citations carefully and either act or advise Fischer to act accordingly. He found only that
“[tlhe only other employee in the office was Ms. Morse whose testimony revealed that she
would not have the capacity to handle something such as the OSHA citation and notification
of proposed penalties.” However, our reading of the record suggests that except for timely
contesting the OSHA citation, Morse handled the business quite well. Morse testified that
the business was still functioning, admitting at the hearing in Fischer’s presence, “not in the
same manner because I’m not Mrs. Fischer and I don’t have the ability that Mrs. Fischer
does.” However, both witnesses’ testimony leaves no doubt that Fischer had entrusted
Morse with running the business and that Morse was capable of obliging. We find it
 9

somewhat odd that Morse, who had proven SO adept at keeping the business running,
nevertheless apparently failed to read the citations carefully enough to discover that further
action was required to contest the citations. Morse testified that upon opening the citations,
she did note the penalty amounts in the right column, but presumed that “it did not apply
to us, because we had taken care of everything.”
Courts in the Second Circuit have gone beyond the bare wording of Rule 60(b)(l)
and have applied a three-factor test’: (1) whether the default is willful, (2) whether the
movant has a meritorious defense, and (3) the level of prejudice to the other party if relief
is granted. SEC v. Hasho, 134 F.R.D. 74 (S.D.N.Y. 1991), citing Davis v. M&e, 713 F.2d
907, 915 (2d Cir. 1983). The “willfulness” of the default under this test should not be
confused with “willful” violations under the Act. Rather, whether the default was “willful”
here refers to whether the party’s own actions contributed to the default or whether it made
good faith efforts to protect its legal interests. Courts in the Second Circuit find that a
party’s default was not willful only when the party has taken reasonable steps under the
circumstances. E.g., M&c Deli & Groceries, Inc. v. IRS, 781 F. Supp. 992 (1991); Salter v.

Hooker Chem., Durez Plastic & Chem. Div., 119 F.R.D. 7 (W.D.N.Y. 1988). We find Morse’s
conduct was “willful” for purposes of Rule 60(b)(l), in the sense that she disregarded an
opportunity to protect Jackson’s interests by failing to read the OSHA materials carefully.
S.E.C. v. Hasho.

     Jackson’s key people had the actual, physical notice in their hands well before the 15.

day deadline approached. The excusable neglect standard can never be met by a showing
of refusal to read and comprehend the plain language of the rules. See In re Cosmopolitan
Aviation Corp., 763 F.2d 507, 515 (2d Cir.), cert. denied, 474 U.S. 1032 (1985). Similarly,
under Commission precedent, a layperson must exercise reasonable diligence, and what is
reasonable may vary depending on the information available to her or him. Keefe Earth

8 The same three-factor test is used in setting aside default judgments under Fed. R. Civ. P. 55(c), which
permits a court to grant relief “for good cause shown.” See, e.g., Bmck v. Uniipe Racquetball and Health Clubs,
Inc., 786 E2d 61 (2d Cir. 1986). Also, the meritorious-defense requirement is a common interpretation of
Rule 6O(b)(1) in other circuits. E.g., Marshall v. Monroe & Sons, 615 F.2d 1156, 1160 (5th Cir. 1980) (citing
cases from four other circuits).
 10

Boring CO., 14 BNA OSHC 2187, 1991 CCH OSHD 7 29,277 (NO. 88-2521, 1991). In light
of the role that Morse had otherwise ably assumed, she may reasonably be expected to have
apprised herself of the rules, especially with $11,230 at stake.
Jackson has established no basis for relief under the Second Circuit’s three-pronged
test. Thus we find that Morse’s failure to read the citations and accompanying materials
thoroughly does not constitute “mistake, inadvertence, surprise or excusable neglect”
pursuant to Rule 60(b)(l). In the absence of misrepresentation by the Secretary as
discussed below, the citations must be reinstated and affirmed.
Other Relief
Although we find nothing in the record rising to the level of excusable neglect
required under Rule 60(b)(l), the possibility that Morse was misled into believing that a
written notice of contest was not required would, if proven, provide a basis for relief under
Atlantic Marine. At the hearing, at which both Morse and Fischer testified, Jackson pursued

its claim, first raised in Morse’s notice of contest letter, that the compliance officers had
misled the responsible parties:
Q: “Was there any discussion regarding possible penalties?”
A: “They said if we did not fix what they found wrong, that there would be
penalties.”
Q: “Was there any indication as to what the disposition might be, if you
satisfactorily fixed it.”
A: “That there would be no penalties.”
. . . .
A: At the end of the first inspection, the two inspectors came down with
George Mitchell and they were talking about what they had found wrong with
the building and at that time, I believe Mrs. Fischer asked them if this is all
fixed, then they are not responsible for any penalties and that is when the
whole thing about, ‘no penalties if we fixed everything,’ came about.”

When asked which of the two inspectors made these statements, Morse replied, “I couldn’t
be one hundred percent. I think it was the young lady. She was doing most of the talking.”
Fischer’s testimony was basically the same:
Q: “Was there any discussion about possible penalties?”
A: “No, they said, ‘no penalties will be issued in case we fix everything we
have to fix.“’
 11

    Attributing Morse’s and Fischer’s belief to a “misunderstanding               . . . a lack of meeting

of the minds,” the judge found no deception on the Secretary’s part. He based this
conclusion not on the demeanor of the witnesses but on his experience: “I have never found
an occasion in 20 years where OSHA compliance officers promised that someone would not
get a penalty if they abated, inasmuch as the statute calls for first instance sanctions.”
However, in light of Jackson’s allegations, we remand this case to the Chief Judge for
reassignment to a judge for the purpose of determining whether Jackson’s allegations can
be substantiated.g For us to rule on these allegations on the basis of Morse’s and Fischer’s
testimony alone at this stage would prejudice the Secretary, since he effectively waived cross-
examination to accommodate the judge’s rulings from the bench and also withdrew his
request for a continuance to produce the compliance officers as rebuttal witnesses when that
became unnecessary.
Considerations on Remand
As mentioned above, Rule 60(b)(3)-- covering fraud, misrepresentation or other
misconduct of an adverse party--embodies the same principle expressed in Atlantic Marine-
type equitable tolling cases. Ordinarily, clause (3) is invoked where material information has
been withheld or where incorrect or perjured evidence has been intentionally supplied. In

re Ernetgency Beacon Cop., 666 F.2d 754, 759 (2d Cir. 1981), citing 7 Moore’s Federal
Practice, ll 60.24[5] (2d Ed. 1979). However, it is not clear to us whether a Rule 60(b)(3)

claimant must show evidence of a meritorious defense as part of her burden. We discern
some slight indication that the Second Circuit may require evidence of a meritorious defense
before relief under any subsection (other than one not material here) may be granted. See
Covington Indus., Inc. v. ResinteA A.G., 629 F.2d 730, 733 n. 3 (2d Cir. 1980). When
confronted with a Rule 60(b)(3) case, the Second Circuit does not appear to rely on the

9 We note that although Atlantic Marine was decided in the Fifth Circuit and this case is appealable to the
Second Circuit, the Second Circuit recognizes principles of equitable tolling similar to those expressed by the
Fifth Circuit in Atlantic Marine. In Canales v. Sullivan, 936 F.Zd 755, ard on reh ‘g, 947 E2d 45 (2d Cir. 1991),
the Second Circuit remanded for a further evidentiary hearing to determine whether a disability claimant’s
claim of mental impairment warranted equitable tolling of a statute of limitations. The court noted that
government misconduct is an appropriate ground for equitable tolling, citing D&runner v. MidwayEquip. Co.,
803 F.2d 950, 952 (8th Cir. 1986).
 12

three-factor test as it does in Rule 60(b)(l) cases. See, e.g., Fleming v. New York Univ., 865
F.2d 478 (2d Cir. 1989); Madonna v. United States, 878 F.2d 62 (2d Cir. 1989).
If we assume, arguer&, that the meritorious-defense factor does apply in Rule
60(b)(3) cases, Jackson would at the least have to offer evidence bearing out the lawyer’s
allegations in the pleadings, for instance, that no employees were exposed to any hazard
from any locked doors. In that event, Jackson would in our view have alleged sufficient “un-
derlying facts” supporting its general denials to qualify for relief. See Sony Cop v. Elm State

Elec., Inc., 800 F.2d 317 (2d Cir. 1986)” The movant need not conclusively establish the
validity of those defenses, but must make some showing of their existence other than mere
allegations. Kumar v. Ford, 111 F.R.D. 34 (S.D.N.Y. 1986) citing David v. Musher.

    In the past, the Commission has not reached the meritorious-defense                   requirement,

primarily because it has rarely found that the party has shown excusable neglect, the first
prong of the test. In Monroe, 615 F.2d at 1161-62, the Fifth Circuit concluded that OSHRC
had not abused its discretion when it determined that the employer had made a sufficient
showing of a meritorious defense. In that case, the court found that “Monroe’s assertion
that he did not create the violations, while not a full legal defense, raised a number of
factual questions relating to his responsibility for the citations.” Id. at 1162. Similarly, in

P &A Cona, 10 BNA OSHC 1185, 1186, 1981 CCH OSHD li 25,783, p. 32,221 (No. 800
3848, 1981), the Commission was satisfied with minimal allegations that the employer could
prove a defense if given the opportunity.”

lo This is assuming that it first proves government misconduct. A Rule 60(b)(3) motion cannot be granted
absent clear and convincing evidence of material misrepresentations. Fleming, citing Mmtini v. American Tel.
& Telegraph Co., 369 E2d 378 (2d Cir. 1966).

I1 The Secretary argued that because the Commission has not reached the meritorious-defense issue in the
Rule 60(b) cases it has decided over the years, the judges have been deprived of guidance in this area. That
may be so, inasmuch as neither the judge in this case nor the judge in Byd Produce Co. (No. 914823)
(consolidated),also released today, made meritorious-defense findings. Judges should not grant relief under
Rule 60(b) without making findings on all three prongs of the test: existence of excusable neglect or other
grounds, some showing of a meritorious defense, and the degree of prejudice, if any, to the Secretary. At the
same time, however, the judges should guard against any misguided attempts by the Secretary to block employ-
ers trying to make some showing of a meritorious defenses during the preliminary hearing, as happened in this
case. By this we do not mean to imply that there is no difference between a full-blown hearing on the merits
and a hearing designated as being limited to the validity of the notice of contest. But if, as the Secretary
(continued...)
 13

   Jackson’s assertions--if the evidence reflects Jackson’s lawyer’s statements--while      not

establishing a full legal defense to all the citation items, would raise a number of factual
questions relating to citations accounting for the bulk of the penalties. We do not believe,
as the Secretary suggests, that the Commission ought to require a complete defense against
every citation item before granting 60(b) relief, or that it should grant relief in a piecemeal
fashion, only with respect to those citations for which the proffered defense is found to be
meritorious.
The existence of a meritorious defense will only become an issue in this case if the
judge finds on remand that the Secretary’s compliance officers did promise or knowingly
leave the misimpression that violative conditions, once abated, carry no penalty. Commission
precedent adopting and construing the equitable tolling principles in Atlantic Matine,
together with the precedent in the Second Circuit, give the judge ample guideposts for
adjudicating Jackson’s misrepresentation claim on remand.

“(...continued)
argues, Rule 60(b) relief may be granted only if the employer can make some showing of a meritorious
defense, then the employer must be allowed to make that showing without objections from the Secretary
during the hearing.
 14

                                         Order
    Should the judge find on remand that Jackson is not entitled to relief under principles

of equitable tolling or under Rule 60(b)(3), he or she shall dismiss the notice of contest and
affirm the citations. Otherwise, the case shall proceed as if the notice of contest had been
timely filed.

                                                       Chairman



                                                       Velma Montoya
                                                       Commissioner

Date& June 18, 1993
 UNITED STATES OF AMERICA
CUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                                    .
                                                                                zi   (202) 6o&!mo
                                                                                Frs (202) 606-5050

SECRETARY OF LABOR,

            Complainant,

   v.                                                          Docket No. 91-0438

JACKSON ASSOCIATES OF NASSAU,

            Respondent.




                 NOTICE OF COMMISSION             DECISION     AND REMAND

The attached Decision and Remand by the Occupational Safety and Health Review Commission
was issued on June 18, 1993. The case will be referred to the Office of the Chief Administrative
Law Judge for further action.

                                                 FOR THE COMMISSION

June 18, 1993
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 91-435

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room MOO4
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Arthur Welsher, Esquire
100 West Park Avenue
Long Beach, NY 11561

Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
 UNiTED STATES OF AMER!CA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246

                                                                               FAX:
                                                                               cC&M$O2))6~   -4008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0438
JACKSON ASSOCIATES OF NASSAU
Respondent.

                    NOTICE OF DOCKETING
             OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on January 17, 1992. The decision of the Judge
will become a final order of the Commission on February 18, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
February E 1992 in order to errnit su f!ficient time for its review. See
Commission Rule 91, 29 C.F. k . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.

                                       FOR THE COM

Date: January 17, 1992
DOCKET NO. 91-0438
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Arthur Welsher, Esquire
100 West Park Avenue
Long Beach, NY 11561

David G. Oringer
Administrative Law Jud e
Occupational Safety an f Health
Review Commissron
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00101539849:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

PHONE. FAX:
COM (617) 223-9746 COM (617) 223-4004
FE 223-9746 l=T-S
223-4004

                                 UNITED STATES OF AMERICA

          OCCUPATIONAL            SAFETY AND HEALTH REVIEW COMMISSION


                                                           ..

SECRETARY OF LABOR, ..
..
Complainant .. OSHRC Docket No. 91-0438
..
.
V, .
.
.

JACKSON ASSOCIATES OF NASSAU ..

                          Respondent.

Appearances:

        Alan Kammerman, Esq.                                Arthur Welsher, Esq.
               Office of the Solicitor                             Long Beach, New York
               U.S. Department of Labor                                    For Respondent
                       For Complainant

Before: Administrative Law Judge David G. Oringer

                                    DECISION AND DISMISSAL
         On November 14,1990, the Occupational Safety and Health Administration                     (OSHA)

issued to this respondent, Jackson Associates of Nassau, (hereinafter referred to as
“Jackson” or “respondent”) three citations by certified mail and a notification proposing
penalties in the aggregate of $11,230. I find that the date the citations were received by the
respondent as reflected by the return receipt was November 18th. The fifteen working day
period for contesting the citations expired on December 11, 1990.
After receiving a written request for payment in January from OSHA, the respondent,
following a telephone conversation of January 16, 1991 with OSHA, requested the Review
Commission to allow it to file a “a late contesting” of the citations and penalties, admitting
in the January 22nd letter that it did not timely contest the citation. It offered as reason for
the failure to timely contest, that the principal, Yolanda Fischer, was disrupted due to the
serious illness of her husband from August 1990 to January 10, 1991 when he passed away.
On March 13, 1991, the complainant moved for an order dismissing the respondent’s
notice of contest in lieu of filing a complaint. The respondent apparently then procured
counsel who filed opposition to the complainant’s motion for an order dismissing the
respondent’s notice of contest on or about March 19,199l. He argued in his opposition that
the failure to timely interpose a notice of contest was due to the distraction of the
administrative head of respondent at the illness and death of her husband and believed that
this situation constituted excusable neglect.
Respondent’s counsel pointed out that this is a single “mom and pop" hotel business
and that a penalty of $11,230 is very large to a business of this size. He alleged that the late
notice of contest was due to the distraction of the principal, Mrs, Fischer, brought about by
the serious illness and subsequent death of her husband, the other principal in this small
business. In his reply brief counsel for the Secretary argued that a Commission case, to wit,
EK Construction Co., Inc., Docket Number 90-2460 decided July 17, 1991, was precedential
in this case. It was my opinion that a preliminary hearing was necessary to determine
whether or not the respondent came within the purview of Federal Rule of Civil Procedure
60(b) as was claimed by respondent’s counsel. The preliminary hearing was held on October
21, 1991, in New York City pursuant to due notice.
THE EVIDENCE OF RECORD
The evidence reveals that this inspection was conducted by two compliance officers
from the Long Island area, neither of whom who were brought in by the Secretary to testify.
The Secretary’s witness was an assistant area director for safety in the Long Island area, Mr.
John L. Caldarelli. Despite the fact that the Secretary had objected to simplified
proceedings, she failed to bring in the compliance officers who had cited the respondent nor
did she bring in the person who did the mailing. At the close of the hearing the complainant
asked to be able to resume the hearing so it could come in with its compliance officers to
testify in this preliminary hearing. This was denied on the grounds that I did not believe that

                                            2

there was a deceptive practice engaged in by the Secretary, however, in any case I would not
allow the Secretary to bite the apple repeatedly and waste the Judge’s time and the
Commission’s funds. If a party desires to litigate it must bring all of its necessary witnesses.
Counsel should have known that to properly prove a mailing the person doing the mailing
should have been present. In any case however, I balanced the equities. I allowed the
Secretary to prove the mailing by adducing testimony of the usual conduct in the office, as
testified to by Mr. Caldarelli, and to balance the equities I received in evidence an
uncertified copy of the hospital record of the respondent’s late husband, one of the two
principals in this small corporation.
The evidence adduced reveals that the principals in this corporation had this hotel
for a relatively short time. Both of them were Holocaust victims with limited English,
however, sufficient to understand enough to get along. This was respondent’s first encounter
with the Occupational Safety and Health Administration and its first OSHA inspection.
Respondent attempted to prove that the compliance officers stated that if Jackson
fixed everything they would not get a penalty. Based on 20 years of experience I think that
such allegation is due to a misunderstanding. I have never found an occasion in 20 years
where OSHA compliance officers promised that someone would not get a penalty if they
abated, inasmuch as the statute calls for first instance sanctions. What I believe occurred
was that OSHA stated to respondent that if they failed to file a notice of contest then and
in such case they would have to pay all of the penalties however, if they contested it would
hold up the penalty assessment until the Judge had decided the case. I believe there was
a lack of meeting of the minds. In any case, the respondent alleged that it corrected
everything except the doors which were on order but had not yet been delivered.
I do not find any deceptive practice by the Secretary despite the testimony of Mrs.
Fischer and Ms. Morse. Again, to reiterate, I believe that it was a lack of meeting of the
minds.
The evidence further revealed that this was a small company with three persons
working, the husband, who had not been working in this business for most of 1990,
particularly after July, when he became gravely ill, his wife, the other principal, and Ms.
Morse, who was the subordinate clerk of all work in the office.

                                               3

The testimony revealed that official mail, such as the citations were put on the desk
of the principal. Mrs Fischer testified, and I find this testimony fully credible, that she was
out of the office more than half of the time from July 1990, until her husband’s death on
January 10th from a multiplicity of illnesses. I find that Mr. and Mrs. Fischer who only had
each other, with no children, were mutually dependent. I fully credit the testimony of both
Ms. Morse and Mrs. Fischer that the husband insisted that the wife be there at his bedside
and that he was not satisfied with just a nurse in attendance, after reading the hospital
record.
The final diagnosis upon release from the hospital showed that the husband, Mr.
Fischer, suffered from acute Pulmonary Edema, pleural Effusion secondary to hypertension;
Arterial Sporadic Heart disease, essential Hypertension, Renal Insufficiency secondary to
Nephrosclerosis and chronic Anemia, secondary to Uremia. While Mrs. Fischer testified that
her husband was 79 years of age when he died, the hospital record reflects that he was 81
years of age on one page and 82 years of age on another. The hospital record further
reflects that a bone marrow aspiration was taken and the x-rays revealed a compression
fracture of Ll, a fracture of the sternum, and old fracture of the ribs and pubic bones. The
record further reveals diagnoses of Dementia, secondary to Cerebral Arterial Sclerosis and
pain, essential Hypertension and Anemia, secondary to Renal Insufficiency.
The testimony also adduced which I fully credit was that Mr. Fischer insisted that his
wife be present and that a nurse was not enough. The hospital record revealed that he was
uncooperative because of aggravation and depression, Dementia and Cerebral A.S.. The
respondent alleges that Mrs. Fischer’s worry and care of her husband caused her to file a
late notice of contest.
The evidence in this matter was solely that of a preliminary hearing to decide whether or
not the late notice of contest could be excused under 60(b) under the Federal Rules of Civil
Procedure. There was no trial whatsoever on the merits inasmuch as the complainant
argued that this was not simplified proceedings and would only try the matter on whether
or not the untimely notice of contest could be excused, despite the fact that if simplified
proceedings were allowed one hearing could have disposed of the entire matter in the event
that I decided a preliminary motion against the Secretary as pleadings are not

                                             4

necessary in simplified proceedings.
DISCUSSION
The salient question before this tribunal is whether or not the illness of the husband
and the distraction of the principal by such illness in this very small business came within the
purview of section 60(b) of the Federal Rules of Civil Procedure so that the lateness of the
notice of contest could be excused. The old 5th Circuit suggested that the finality provision
of section 10 of the Act, 29 U.S.C. 0 659, was not an “impenetrable barrier” to the
Commission Review of a final order. Atlantic Make, Inc., v. OSHRC 524 F.2d 476 (5th Cir.
1975). In that case the court further suggested that an employer should not be denied
review for failure to file a notice of contest within the statutory 15 day period if the
Secretary’s deception or failure to follow proper procedures is responsible for the late filing.
As previously related I do not find deception by the Secretary in this case.
Subsequent thereto, however, the 3rd Circuit in 1981 decided that the Commission
had jurisdiction to entertain a late notice of contest under Federal Rule of Civil Procedure
60(b). J.I. Hass Co., v. OSHRC 648 F.2d 190 (3rd Cir. 1981). The Commission agreed with
the 3rd Circuit holding in J.I. Hass Co., supra, that in cases where an employer files a late
notice of contest, the employer may be granted relief from the final order under the terms
of rule 60(b). In Brandforte BuMen, Inc., 9 OSHC 2113 the Commission stated at 9 OSHC
2117....
“Thus, a judgement may be vacated when it is shown
that the party against whom a judgement was entered
had no actual knowledge of the service of process on
him due to a mistake of fact, inadvertence or excusable
neglect. Rook v. American Brass Co. 263 F.2d 166
(6th Cir. 1959)”
The Commission went on to state....

              “under Rule 60(b)(6), a final judgement may be vacated
              for “any other reason justifying relief from the operation
              of the judgement.” Applying Rule 60(b)(6), courts have
              set aside a final judgement or order when circumstance
              such as absence, illness, or a similar disability prevent
              a party from acting to protect its interest.”



                                              5

The Commission cited Rooks v. American Brass CO., supra; Kkzprott v. United States,
335 U.S., 601 (1949); Pierre V: Bemuth, Lembcke CO., 20 F.F.D. 116 (Southern District New
York 1956). Branciforte Builders, Inc., is still Commission law.
The Secretary as previously related cited a recent Commission decision EK
Constmction Co., Inc., supra as precedential. I have reviewed EK Consmction Co., Inc., very
carefully and I do not think it has disavowed Branciforte Builder, Inc., and I do not think that
the situation in EK Construction Co., Inc. was synonomous with that found in the instant
cause.
I believe that illness, particularly a terminal illness, can be a reason for late filing in
a small firm such as this one, particularly when encountering OSHA for the first time. The
evidence adduced reveals that these two principals, Mr. and Mrs. Fischer, were mutually
dependent people. Both were persons who went through the Holocaust, lost their families,
married, did not have any children and were mutually dependent upon each other. The only
other employee in the office was Ms. Morse whose testimony revealed that she would not
have the capacity to handle something such as the OSHA citation and notification of
proposed penalties. Both Mrs. Fischer and Ms. Morse testified that Mr. Fisher insisted that
his wife be at his bedside and that a nurse in attendance was not enough to satisfy him. The
discrepancy concerning age found in the hospital record is understandable. Many
immigrants from Europe had problems knowing their exact age, but, in any case, Mr. Fischer
was very elderly, as is his wife, and the gentlemen who is now deceased was very ill suffering
at the time of hospitalization among other things, congestive heart failure. The hospital
record also revealed Dementia secondary to Cerebral Arterial Sclerosis, pain, aggravation
and depression. In my opinion the worry for her husband was of such a nature that the
failure to file timely was excusable neglect rather than simple negligence. If this was a larger
office with more persons I would decide the case differently but, given the facts of this case
I think that this is a classic example of excusable neglect coming within the parameters of
60(b)(6) as contemplated in Branciforte Builders, Inc., supra. This was an illness of a
principal that brought the only other principal to his side and took her away from her
normal duties. In my opinion this is the classic example of the utility of section 60(b)(6) of

                                                  6

the Federal Rules of Civil Procedure and I SO found in my Ruling and Order of December
3, 1991. In that order I allowed the respondent to file its notice of contest nunc pro tune.
I denied the Secretary’s motion to dismiss the respondent’s notice of contest and gave the
complainant 30 days to file her complaint.
Subsequent to the issuance of my Ruling and Order, the Secretary sent a letter to the
undersigned dated December 6, 1991, respectfully declining to proceed with the filing of a
complaint. The Secretary’s counsel stated that he continues to believe that the Commission
lacks jurisdiction to consider respondent’s late filed notice of contest for the following
reasons. (sic)
1. “The Secretary does not agree that Rule 60(b) may be applied
to late filed notices of contest. We Acknowledge, however,
that the Commission has not departed from its precedent on
this point and that the Judge must follow Commission precedent.“*
Despite the decision in J.I. Hass Co., supra and Brancforte Builders Inc., the Secretary in this
case takes a contrary position. I do not agree and I find that the Commission is correct in
hearing cases such as this one. Further, Commission Judges must follow Commission
precedent. Continental Steel Co., 1 BNA OSHC 1726.
The Secretary’s counsel’s second paragraph reads as follows:

    2.       “Even assuming that Rule 60(b) applies, a basis for relief
             has not been shown. Respondent’s claim now is that it did
             not contest the penalties because it had believed that the
             penalties would be forgiven if the violations were promptly
             abated. As in Keefe Earth Boring Companv, Inc., 14 BNA
             OSHC 2187 (No. 88-2521, 1991), respondent has not demon-
             strated that it was “justified in failing to avoid its
             error” in view of the extensive instructions it had
             received. Those written instructions plainly indicated
             that the penalties would become final orders if not
             contested.”

‘The complainant had the right and the duty to appeal the decision in BranciforteBuilders, Inc., supra, if it did
not agree with the result. Failure so to do results in acquiescence and it ill behooves complainant to now
disagree with a Commission Decision enunciating an important principal that complainant did not appeal and
with which it appeared to acquiesce.

                                                   7

I do not believe that that case is on point. I did not base my decision on that issue
specifically pointing out that I did not find deception on the part of the Secretary. In this
case it was the illness of one of the principals that was the direct reason for the late filing.
If the Secretary’s argument was accurate then there would be no necessity for Federal Rule
of Civil Procedure 60(b) and in in particular 60(b)(6). Accordingly, I do not find this a valid
argument.
The Secretary’s counsel in his third paragraph states as follows:

   3.      “A meritorious defense has not been established with respect
           to each citation item. Respondent’s testimony as to the
           locking of kitchen doors because of religious practice is
           irrelevant because the citation items alleging a locked and
           obstructed exit refer to a laundry door in the basement.
           See Tr. 63. In any event, the testimony is insufficient
           to establish each element of the impossibility defense,
           i.e., impossibility of compliance, cf. Emplovment Div.,
           Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)
           (enforcement of general regulazaw          does not necess-
           arily violate free exercise clause), and lack of alter-
           natives to literal compliance.”
   The last argument was totally without merit and is ludicrous.          It was the Secretary’s

counsel who insisted that the hearing be solely on the preliminary question of the lateness
of the notice of contest. The allegations of violation contained in the citations were not
tried on the merits. As a matter of fact neither compliance officer was present and the
Secretary has adduced no proof whatsoever that there were any violations. All it has are
naked allegations. All the respondent is asking for is an opportunity to prove that it does
have a meritorious defense, which it alleges.
The Secretary’s counsel in his paragraph numbered 4 states as follows:

   4.      “Rule 60(b)( 6) is not an independent basis for relief in
           this case since relief may not be granted under Rule 60(b)(6)
           if another, more specific ground listed in the rule is
           applicable. Maduakolam v. Columbia Univ., 866 F.2d 53, 55-56
           (2d Cir. 1989); Rebco Steel Corp., 1980 CCH OSHD par. 24.334
           (Nos. 77-2040 & 77-2947, 1980). Respondent’s claim for
           relief is essentially based on an assertion of mistake or
           excusable neglect, matters to be considered under clause (b)(l).”


                                                8

The fourth argument is not a viable one. As pointed out specifically in Brancifiorte
Builders, Inc., @(b)(6) p rovides for relief in the event of, inter alia, illness. This was the
Commission’s decision and I agree with it. In any case, if complainant’s counsel prefers
section 60(b)( 1) he is welcome to use it. I agree with the Commission’s logic in Branciforte,
supra.
The last statement by Counsel for the Secretary appears to be an implied threat of
appeal. It reads:

              “Our decision not to file a complaint has been made
               only after consultation with the Solicitor’s National
               Office, and the Secretary reserves the right to appeal
               any dismissal order entered by your Honor in light of
               this statement of position.”
      Whether or not this is an implied threat I do not know but certainly the complainant

has the right to appeal any decision or dismissal that is adverse to the position it espouses.
In any case, inasmuch as it failed to plead and states unequivocally that it will not plead, it
is in violation of Commission Rule 2200.34 and the failure to file a complaint mandates a
default and dismissal. Accordingly, the citations and proposed penalties are dismissed in
their entirety.
d

                                                                          :




      It Is so Ordered.                --   ---_              _
                                                                  .   .

Dated: January 6, 1992
Boston, Massachusetts

                                                   9