Badger Underground Constr., Inc.
Default relief denied after certified notice
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This is citable Commission precedent from 1996, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Badger failed to answer the Secretary's complaint or respond to a show-cause order, so its notice of contest was dismissed and the citations and proposed penalties became final. More than a year later, it appealed the Secretary's penalty-collection efforts and claimed that it had not received the case notices. The Commission's certified-mail receipt showed that Badger received the show-cause order, which clearly warned that nonresponse would affirm all violations and penalties without a hearing. The Commission found that Badger had adequate notice and an opportunity to be heard. Its request for relief from the final order was denied, while penalty collection remained solely the Secretary's function.
Decision snapshot
- Cited standard(s): The decision does not identify the specific OSHA standards underlying the defaulted citations.
- Outcome: Relief from the final default order was denied, leaving all citations and proposed penalties in effect.
- Key point: Certified receipt of a clear show-cause order establishes notice, and a party cannot obtain relief after failing to respond and waiting more than a year.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND EtEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W.- 9th Floor
Washington, DC 20036-34 19
.
.
SECRETARY OF LABOR, ..
..
Complainant, :
.
v. .. OSHRC Docket No. 94-3251
BADGER UNDERGROUND .
CONSTRUCTION, INC., I
Respondent. :
.
This case became a fmal order of the Commission on April 17, 1995, following the
failure by Badger Underground Construction, Inc. (“Badger’?) to file an answer to the
Secretary’s complaint and to respond to Chief Judge Irving Sommer’s Order to Show Cause.
On May 29, 1996, Badger filed an “Appeal of Decision to Proceed with Penalty Collection”
with the Commission. Penalty collection is solely the function of the Secretary of Labor
under the Occupational Safety and Health Act of 1970 (c(the Act”), 29 U.S.C. 58 651-678.
Thus, an appeal regarding penalty collection is not properly presented to the Commission.
However, Badger’s appeal contains statements that could be construed as a request
for relief from the Commission’s final order. Badger states, “[tlhis appeal is based on our
non-receipt of the various notices alleged to have been sent to us from the offices of your
solicitor as well as from the Review Commission itself.” It requests “administrative due
process.”
Federal Rule of Civil Procedure 77(d) applies to claims of lack of notice of
Commission decisions. Relief is granted under that rule only where the party making the
2
claim “has exercised due diligence to ascertain whether the judgment has been enterl=dor has
given sufficient reason for the lack of such diligence.” Art &“pecialtyCo., 16 BNA OSHC
1695, 1696, 1994 CCH OSHD 130,389, p. 41,932 (No. 92-1227, 1994) (quoting Spika v.
Village oflombard, 763 F.2d 282,285 (7th Cir. 1985), cert. denied, 474 U.S. 1056 (1986)).
Our official file contains a Receipt for Certified Mail (copy.attached) which shows
that Badger received Judge Sommer’s Order to Show Cause on January 29, 1995. That order
notified Badger that it was required to show cause by February 7, 1995, why “the citations
and penalties in this case should not be affirmed due to its failure to file an answer to the
complaint . . . .” The order further stated, in bold print, capitalized and underlined: “Failure
to respond to this order will result in all violations being affirmed and all proposed penalties
being assessed against respondent without a hearing.”
The certified mail receipt indicates to us that Badger received clear notice that it
would have to pay the proposed penalties unless it responded in timely fashion to the Order
to Show Cause.’ Its president may have been unaware of the Order to Show Cause, but the
reasons why are not apparent. In any event, Badger did not respond to that order and has
waited more than a year to contact the Commission. In these circumstances, we must
conclude that Badger has received administrative due process, including adequate notice and
an opportunity to be heard.
For this reason, we need not determine whether Badger received the subsequent
Notice of Docketing of the judge’s decision (the judge dismissed Badger’s notice of contest
and assessed the proposed penalties), or whether it received other communications from the
Commission. We note, however, that all of those communications were sent to the same
address. We have no reason to believe that they were not sent in compliance with the
Commission’s rule on serving orders on parties. Commission Rule 7(a), 29 C.F.R.
5 2200.7(a). We also note that Badger clearly had notice of the proceedings before the Order
‘The person who signed the receipt for Badger apparently was also the authorized employee
representative. We can only assume that, in signing, that person was acting within the scope
of his employment.
3
to Show Cause, because it responded to the Commission’s initial Notice of Docketing of the
case by returning the certificate of posting of the citations.2
2No grounds for relief under Fed. R. Civ. P. 60(a) (clerical mistakes, oversights and
omissions in record by agency personnel) are suggested here. Also, Badger’s request is
untimely under Fed. R. Civ. Pro. 60(b), which authorizes relief from a judgment or order in
appropriate circumstances. The rule requires that claims for relief due to “mistake,
inadvertence, surprise, or excusable neglect” be raised not more than one year after the
judgment or order is entered. Badger raised its claim to the Commission by letter of May 29,
1996, more than one year after entry of the final order. In any event, “the courts have
uniformly held that Rule 77(d) bars Rule 60(b) relief when, as here, the sole reason asserted
for that relief is the failure of a litigant to receive notice . . . .” Art Specialty, 16 BNA OSHC
at 1696,1994 CCH OSHD at p. 41,932 (quoting Spika, 763 F.2d at 286). Thus, no relief is
appropriate here under any provision of Rule 60(b).
Commission Rule 41,29 C.F.R. 5 2200.41, addresses, in a general way, motions to set aside
a judge’s decision that dismisses a notice of contest based on a default. However, we do not
‘construe that rule to provide relief that is inconsistent with that allowed under the specifically
applicable Federal Rules.
Finally, we note that Badger appended to its request for relief what purports to be a copy of
a letter addressed to OSHA’s Area Director in Phoenix, AZ, signed by Badger’s -President
and CEO, and dated 17 days afier the judge’s decision became the foal order of the
Commission, protesting that decision on notice grounds. (Unfortunately, any such protest
should have been sent to the Commission rather than OSHA.) Assuming Badger sent that
letter to OSHA, the letter indicates that Badger actually knew about the judge’s decision
more than a year before it requested relief from the Commission. Thus, although it could
show some effort on Badger’s part, it would also indicate that Badger’s request for relief
from the Commission was not “expeditiously made,” as required by Commission Rule 4 1(b),
or “made within a reasonable time,” as required by Fed. R. Civ. P. 60(b).
4
Accordingly, we deny Badger’s request for relief from the Commission’s final order
in this case. It is so ordered.
&$&b&cd
E.w~
Stuart E. Weisberg
Chairman
Velma Montoya
Commissioner
Daniel Guttman
Commissioner
Dated July 25, 1996
UNITED. STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR, ..
.
Complainant, ..
..
v. .. Docket No. 94-3251
..
BADGER UNDERGROUND - ‘e
l
CONSTRUCTION, INC. .
l
Respondent. ..
.1
ORDER TO SHOW CAUSE
WHY NOTICE OF CONTEST SHOULD NOT BE DISMISSED
Respondent is ORDERED TO SHOW CAUSE on or before FEBRUARY 6,1995 why
Respondent should not be declared to be in default and the citation(s) and penalties should
not be affirmed due to its failure to file an answer to the complaint within the time
permitted under the Commission Rules of Procedure.
Replies to this order are to be addressed to:
Judge king Sommer
Occupational Safety and Health Review Commission
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, D.C. 20036-3419
_- - -. FAILURE
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. ORDER
. WILL RESULT . IN ALL VIOLATIONS
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UNITED STATES OF AMERICA -
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
.
.
SECRETARY OF LABOR, ..
..
Complainant, l
.
..
v. .. Docket No. 94-3251
BADGER UNDERGROUND .
l
CONSTRUCTION, INC. l
b
Respondent. ..
..
ORDER TO SHOW CAUSE
WHY NOTICE OF CONTEST SHOULD NOT BE DISMISSED
Respondent is ORDERED TO SHOW CAUSE on or before FEBRUARY 6,1995 why
Respondent should not be declared to be in default and the citation(s) and penalties should
not be affirmed due to its failure to file an answer to the complaint within the time
permitted under the Commission Rules of Procedure.
Replies to this order are to be addressed to:
Judge Irving Sommer
Occupational Safety and Health Review Commission
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, D.C. 20036-3419
FAILURE TO RESPCIVI) TO THIS ORDER WILL RESULT IN ALL VIOLATIONS
BEING AFFIRMED AND ALL PROPOSED PENALTIES BEING ASSESSED AGAINST
RESPONDENT WITHOUT A HEARING.
IRVING SOMMER
Chief Judge, OSHRC
DATED: January 23,. 1995
Washington, DC.
CERTIFICATE OF SERVICE
This is to certify that a copy of the Order was mailed to the parties listed below by
.first class mail on January 23, 1995.
.
Daniel W . Teehan, Regional Solicitor
U.S. Department of Labor
Office of the Solicitor - .
71 Stevenson Street, Room 1110
San Francisco, California 941052999
Attention: Alan M. Raznick, Esquire
CERTIFIED MAIb/RETURN RECEIPT REQUESTED
Badger Underground Construction, Inc.
5425 Onyx Drive
Prescott, AZ 86303
’ T.B. Dillard, Secre.
Post Office Address:
Judge Irving Sommer
OSHRC
One Lafayette Center
1120 20th Str., N.W. - 9th Floor
Washington, D.C. 20036-3419
(202) 606-5405 FAX (202) 606-5409
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission was
issued and served on the following on July 25, 1996.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the--Solicitor, USDOL -
200 Constitution Ave., N.W. Room S4004
Washington, DC. 20210
Daniel Teehan
Office of the Solicitor, U.S. DOL
71 Stevenson St., Suite 1110
San Francisco, CA 94119-3495
William M. Laipple, President and
General Manager
Badger Underground Construction, Inc.
5425 Onyx Drive
Prescott, AZ 08603
FOR THE COMMISSION
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
PHONE:
COlU(202)60&5100
nS@02)60&6100
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-3251
BADGER UNDERGROUND CONSTRUCTION, INC
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on Marc E 15, 1995. The decision of the Judge
will become a final order of the Commission on April 17, 1995 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 by the Executive Secret on or before
April 4, 1f 95 in order to ermit sufficient time for its review. Y ee
Commission Rule 91, 29 E .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 2003603419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
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) 606-5400.
- FOR THE COMMISSION
Date: March 15, 1995
DOCKET NO. 94-3251
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel Teehan, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
71 Stevenson St., 10&l&r
San Francisco, CA 94119
Bad er Underground Consruction Co.
542! Onyx Dnve
Prescott, AZ 86303
Iwin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Heal Bl
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00117948083:09
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
.
0
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 94-3251
BADGER UNDERGROUND l
0
CONSTRUCTION, INC. ..
Respondent, ..
.0
ORDER
On l/23/95 the undersigned issued an ORDER TO SHOW CAUSE to the
Respondent as to why his Notice of Contest should not be dismissed for failure to file an
answer to the complaint as required by the Commission Rules of Procedure. The
Respondent failed to reply to the ORDER. His actions demonstrate either that he has
abandoned the case or treats the Rules of Procedure of the Commission with disdain. This
cannot be countenanced as it seriously impedes the administration of justice.
Accordingly, the Notice of Contest filed by the Respondent is dismissed. The
Secretary’s citation(s) and proposed penalties are AFFIRMED in all respects.
n A
IRVING SOMMER
Chief Judge, OSHRC
DATE: HAU 3.4 3995
Washington, D.C.
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