Some personal identifiers have been redacted for privacy purposes.

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. 21-0281 

KNOCK OUT HOMES INCORPORATED, 

 Respondent. 

 

Appearances:

Seema Nanda, Solicitor of Labor 

Christine Z. Heri, Regional Solicitor

Evert H. Van Wijk, Associate Regional Solicitor

Laura O’Reilly, Attorney

U.S. Department of Labor, Office of the Regional Solicitor, Kansas City, MO

 For the Complainant 

Kevin Long, pro se 

Troy, IL 

 For the Respondent

Before: Covette Rooney, Chief Administrative Law Judge 

ORDER DENYING RESPONDENT’S REQUEST FOR RELIEF FROM 

DEFAULT JUDGMENT

This matter is before the undersigned on remand from the Occupational Safety and Health Review 

Commission (Commission). Following a series of events spanning nearly a year, detailed more fully 

below, the Commission remanded this matter to “provide Respondent with an opportunity to present 

evidence supporting its claim that it attempted in good faith to participate in the Commission’s 
2 

proceedings and put forth a meritorious defense” and for the undersigned to determine whether relief is 

warranted under Federal Rule of Civil Procedure 60(b)(1). Pursuant to the Commission’s directive, a

remote hearing was held on February 23, 2022, to provide Respondent the opportunity to present evidence 

in support of its request for relief. 

Based on the evidence adduced at the hearing, Respondent is not entitled relief under Rule 

60(b)(1), and its request for relief is therefore DENIED.

PROCEDURAL & FACTUAL BACKGROUND

Respondent, Knock Out Homes, Inc., is owned by Kevin Long. (Joint Stipulations of Fact ¶ 1). 

“Kevin Long’s email address is [redacted], and this has been his email address at all relevant times. Kevin 

Long is able to and regularly receives emails at this email address.” (Id. at ¶ 2). Respondent’s mailing 

address is “[redacted].” (Id. at ¶ 3). Mr. Long regularly receives mail related to Respondent’s business at 

this address. (Tr. 65).

On October 16, 2020, the United States Occupational Safety and Health Administration (OSHA) 

inspected a worksite “Next to (Right Side), 817 Nottingham Ave, Waterloo, IL 62298” under inspection 

number 1498015. (Citation at 6-13). 

On February 18, 2021, OSHA issued three Citations and Notifications of Penalty (Citations) to

Respondent for alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-

678 (the Act). The Citations consisted of a five-item citation alleging serious violations of 29 C.F.R. 

§§ 1926.25(a), 1926.302(b)(6), 1926.403(b)(1) & (b)(2), 1926.416(e)(1), and 1926.1053(b)(13); a second 

one-item citation alleging a “willful-serious” violation of 29 C.F.R. § 1926.501(b)(13); and a third oneitem citation alleging an other-than-serious violation of 29 C.F.R. § 1926.503(b)(1). The Citations 

proposed a total penalty of $41,349. 
3 

The Citations were mailed to Respondent at its address in Troy, Illinois.

1

 (Citation at 1). On 

March 15, 2021, Mr. Long filed a Notice of Contest with OSHA challenging the Citations on behalf of 

Respondent and bringing this matter before the Commission.

On March 22, 2021, “Brittne Snyder, Legal Assistant for U.S. Department of Labor, Office of the 

Solicitor, sent an email to Kevin Long at [redacted], attaching the Secretary’s Entry of Appearance and 

Designation of Authorized Individual for Electronic Filing System” for Laura O’Reilly, an attorney with 

the U.S. Department of Labor, Office of the Solicitor. (Joint Stipulations of Fact ¶ 4; Tr. 13-16; Ex. 1).2

 

Mr. Long received this email. (Joint Stipulations of Fact ¶ 4; Tr. 13, 31). 

The Secretary filed his Complaint on March 29, 2021. On the same day, “Janessa Hurst, Legal 

Assistant for the U.S. Department of Labor, Office of the Solicitor, sent an email to Kevin Long at 

[redacted] attaching the Secretary’s Complaint, and Appendices A, B, and C to the Complaint.” (Joint 

Stipulations of Fact ¶ 5; Tr. 16-18; Ex. 2). Mr. Long received this email. (Joint Stipulations of Fact ¶ 5; 

Tr. 16, 31) 

Respondent was required to file an Answer to the Complaint within 21 days of service, i.e., April 

19, 2021. See 29 C.F.R. § 2200.34(b)(1). On April 19, 2021, the date Respondent’s Answer was due, 

1 The Certified Mail receipt was filed along with the Citations in the Commission’s e-filing system. The history for tracking 

number on this receipt (7018 1130 0002 2228 4160) indicates that it was delivered to Respondent’s address in Troy, Illinois on 

February 20, 2021. The receipt contains the notation “C19 229404.” The undersigned takes judicial notice that the entry of 

this notation was one procedure employed by postal workers in lieu of obtaining a recipient’s signature on a Certified Mail 

receipt to limit social interaction during the COVID-19 pandemic. See FED. R. CIV. P. 201(b)(2) (“The court may judicially 

notice a fact that is not subject to reasonable dispute because it: ... (2) can be accurately and readily determined from sources 

whose accuracy cannot reasonably be questioned.); see also In re USPS Civil Rule 4.1 Certified Mail Serv. of Process during 

the COVID-19 Pandemic, JOURNAL ENTRY, https://www.npmunicipalcourt.org/pdf/usps-20201117.pdf,(New Phila., Oh. Mun. 

Ct., Nov. 17, 2020) (referencing a USPS document directing carriers to write their “route number and notate C19 in the ‘Receive 

By’ or ‘Printed Name’ section” of Certified Mail receipts and finding that “USPS Carriers are writing ‘COVID-19’ or ‘CV-19’ 

or similar notations” on Certified Mail receipts during the pandemic); In re Certified Mail Serv. & Process during the COVID19 Pandemic, JOURNAL ENTRY, https://www.co.wood.oh.us/juvenilecourt/MiscPDF/CertifiedMailC19.pdf, (Oh. C.P., Wood 

Cty., Oct. 14, 2020) (same). Such procedure was only employed in the presence of a recipient at the delivery address; if there 

was no response at the delivery address, carriers were instructed to “follow the normal Notice Left” procedures. Id. 

2 The Joint Stipulations of Fact and its attached exhibits were admitted as Exhibit A. These exhibits will be referenced by their 

numeric labels within Exhibit A. 
4 

Mr. Long responded to Ms. Hurst’s March 29th email, stating: “I found this email in my junk box sorry 

haven’t responded sooner. In regard to the citations. I will be protesting them do the fact that the couple 

guys that were on that job were actually partners of the business.” (Joint Stipulations of Fact ¶ 6; Tr. 19; 

Ex. 3, at 6). Ms. O’Reilly responded to this email and the following exchange occurred on April 19, 2021, 

in relevant part:

3

Ms. O’Reilly: 

Mr. Long, 

I am the attorney for the Secretary of Labor in this matter. This matter has been filed with 

the Court with the Occupational Safety and Health Review Commission. As set forth in 

the Complaint, you will need to file an Answer with the Court. Your Answer is due today

and that is a deadline with the Court. 

All filings are now required to be made by e-filing and here is a link to the Court’s website 

which contains information about how to e-file and the Court’s procedural rules and other 

information. 

https://www.oshrc.gov/

I have also re-attached a copy of the Complaint for your convenience. If you have any 

questions, please let me know.

(Id. at 5-6). 

Mr. Long: “Sorry to bother you but it’s asking for a username and password. I don’t have 

this. Am I doing something wrong” 

(Id. at 5).

Ms. O’Reilly:

Kevin, 

You may need to create an account. This is the link to the Court’s website which contains 

the instructions for electronic filing. 

https://www.oshrc.gov/guides/electronic-case-file-guide/

(Id. at 4).

3 As an email chain, the exchange between Ms. O’Reilly and Mr. Long on April 19th is represented in reverse order in the 

exhibit submitted at the hearing. (Ex. 3). The exchange has been reproduced in this decision in the correct order. Any errors 

in grammar or spelling in the emails have not been corrected.
5 

Mr. Long: “Ugh I really hate bothering you. I have everything done but all the sites just keep 

running saying checking username. I’m in Florida on family emergency and gotta be on plane by 

3. So kinda freaking out to get this done before it’s to late.” 

 (Id.) 

Ms. O’Reilly:

Kevin, 

I do not work for the Court so do not know what the issue is. I am the attorney for the 

Secretary of Labor in this matter. On the Court’s website, they do have an email address 

for support questions regarding the online filing. That email address is 

mp.support@oshrc.gov

(Id. at 3).

Mr. Long: “I understand sorry not trying to be a pain. Just kinda freaking out since last 

day and of course things not wrkn right” 

(Id. at 2).

Mr. Long: “Just FYI I have no idea what else to do. I did support thing and it sent me a 

new password and still will not let me in. All it’s doing is running with code saying 

checking for username.” 

(Id. at 2).

Ms. O’Reilly:

Kevin, The Court may be able to help with the technical issues and they may have a phone 

number, to reach someone to talk to about whatever is going on. I do not have that number 

but you may be able to find out via the email address I sent you previously. 

(Id. at 1-2). 

Mr. Long: “Ugh I’m sorry Really. I know this is not your issue but it’s saying contact 

judges office directly. Know where on anything do I see a judge name or office contacts. 

Do you know anything” (Joint Stipulations of Fact ¶ 6; Tr. 22; Ex. 3, p.1). 

Ms. O’Reilly: I believe this case is with Chief Judge Rooney right now. I believe the 

legal assistant for Judge Rooney can be contacted at 202-606-5405. If that does not work, 

the general court number is 202-606-5400 and someone there might be able to direct you 

to the clerk or person who could help. 

(Id. at 1).

Also on April 19, 2021, Mr. Long created an account in the Commission’s e-filing system, 

inputting his name (Kevin Rodger Long), the name of his company (Knock out homes), his mailing 
6 

address ([redacted]), a phone number ([redacted]), and his email address ([redacted]). (Tr. 51-53; Court 

Ex. A). However, thereafter and to date, Respondent has not filed an Answer to the Secretary’s Complaint

in the Commission’s e-filing system.

On May 12, 2021, the undersigned issued an Order to Show Cause Why Notice of Contest Should 

Not Be Dismissed (Show Cause Order) for failure to file an Answer. The Show Cause Order directed 

Respondent to show cause, on or before May 26, 2021, as to why it should not be declared in default for 

not filing an Answer to the Complaint. The Show Cause Order explained that if there was no response, 

all of the alleged violations set out in the Citations would be affirmed and the proposed penalties would 

be assessed without a hearing. Two copies of the Show Cause Order were mailed to Respondent’s office 

in Troy, Illinois, one by First-Class Mail and one by Certified Mail with return receipt requested. The 

return receipt for the copy of the Show Cause Order sent via Certified Mail was returned to the 

Commission on May 26, 2021, and indicates it was served on an agent of Respondent on May 17, 2021.4

 

The copy of the Show Cause Order sent by First-Class Mail was not returned to the Commission’s office.

On the same date the Show Cause Order was issued, May 12, 2021, “Brittne Snyder, Legal 

Assistant for the U.S. Department of Labor, Office of the Solicitor, sent Kevin Long an email at [redacted]

attaching an Entry of Additional Appearance and Designation of Authorized Individual for Electronic 

Filing System” for Megan McGinnis, an attorney with the Department of Labor, Office of the Solicitor. 

(Joint Stipulations of Fact ¶ 7; Tr. 23; Ex. 4). Mr. Long received this email. (Joint Stipulations of Fact ¶ 

7; Tr. 23, 31).

On May 26, 2021, the deadline for a response set forth in the Show Cause Order, Mr. Long 

responded to Ms. Snyder’s May 12th email: “I left a message on phone. I have been trying to get e-file to 

4 The tracking number (7020 1810 0002 2835 3611) confirms this date of delivery. The signature block of the return receipt 

reads “229404 C19” in accordance with USPS’s COVID-19 policy for Certified Mail at the time. See Note 1, supra.
7 

w[o]rk and it will not. Can we please try a different way to get what information you need from us. We 

hav[e] no employees we are owners of business that was on jobsite and can provide proof if we can come 

up with another way to do so.” (Joint Stipulations of Fact ¶ 8; Tr. 24; Ex. 5, at 2). Mr. Long did not attach 

any documents to this email. (Joint Stipulations of Fact ¶ 8; Tr. 24). On the same date, 

Megan McGinnis responded to Long’s email providing him with information about filing 

documents with OSHRC. ... On this date Megan McGinnis and Kevin Long also spoke by 

telephone after Kevin Long left a voicemail with the Office of the Solicitor. Megan 

McGinnis and Kevin Long discussed e-filing with the Court, and Megan McGinnis 

followed up after this phone call” in an email as follows:

Mr. Long, 

Thank for speaking with me. It’s unclear what the technical issue might be that is 

preventing you from e-filing. In the meantime, here is the contact information for the 

judge’s administrative assistant:

T.B. Dillard

(202) 606-5405 

FAX (202) 606-5409 

The administrative assistant may be able to assist you with submitting the filing that is due 

today in case No. 21-0281. 

Also, for future reference, I believe that you can direct questions or seek technical 

assistance and troubleshooting with the OSHRC e-filing system, to 

mp.support@oshrc.gov. 

(Joint Stipulations of Fact ¶ 8; Tr. 25-26; Ex. 5, at 1). 

On or before June 2, 2021, the undersigned’s Administrative Assistant, Tia Dillard, received a 

phone call from Mr. Long regarding assistance with filing an answer for this matter. (Tr. 41-43; 54-55). 

In response to that phone call, she sent an email to Mr. Long, dated June 2, 2021, with the subject line 

“Instructions to File Answer,” Ms. Dillard quoted the Commission’s rule for the filing of an Answer and 

provided a sample Answer. (Tr. 54-55; Court Ex. B; see also 29 C.F.R. § 2200.34(b)). Ms. Dillard never 

received a response to this email, and Respondent did not file an Answer after receiving this email. (Tr. 

45-46, 56). Until after the Commission issued its remand order on December 29, 2021, neither Ms. 
8 

Dillard, nor Ms. O’Reilly, nor Ms. McGinnis had any further contact with Mr. Long regarding this case 

or the filing of an Answer. (Joint Stipulations of Fact ¶ 11-14; Tr. 56). 

On August 3, 2021, the Secretary filed a Motion for Default Judgment, seeking dismissal of the 

Notice of Contest based on Respondent’s continued failure to file an Answer. This Motion was served on 

Respondent by mailing a copy to its address in Troy, Illinois. (Ex. 6, at 4). 

In an Order of Default for Failure to File an Answer (Order of Default), dated September 27, 2021, 

the undersigned dismissed Respondent’s Notice of Contest based on Respondent’s failure to make any 

responsive filings, either an Answer, a response to the Show Cause Order or a response to the Secretary’s 

Motion for Default Judgment. The Order of Default noted that Respondent had multiple months from the 

time the Show Cause Order was issued to respond, but Respondent had failed to do so. In dismissing 

Respondent’s Notice of Contest, the Order of Default effectively granted the Secretary’s Motion for 

Default Judgment. The Order of Default became a final order of the Commission on November 1, 2021. 

Thereafter, on November 18, 2021, Respondent, proceeding pro se by its owner Mr. Long, filed a 

letter with the Commission (November 18th Letter). This Letter, which was addressed “To Osha,” was 

labeled as a “Late Notice of Contest.”5

 In this letter, Mr. Long stated that he was unable to access the 

“Osha Portal” despite multiple calls to the “Kansas City Office and Washington Office.” Mr. Long went

on to state that he has emails with Laura O’Reilly, who first entered an appearance on behalf of the 

Secretary for this matter, which show Ms. O’Reilly’s attempts to help Mr. Long gain access to the Portal 

with “no success.” Mr. Long further stated that Respondent is an “[e]mployee owned company” that has 

“no employees” and that he wishes to submit proof of such but has so far been unable to do so due to lack 

of the access to the Portal. Mr. Long requested “help on this matter” because he is “not a computer person” 

5 The undersigned notes that Respondent had already filed a Notice of Contest for this matter, and the Secretary has never 

alleged that it was untimely.
9 

but had been “trying to do everything in my power to get help with this matter.” 

In a Remand Order dated December 29, 2021, the Commission granted Respondent’s request and 

remanded this matter for further proceedings. Construing Respondent’s November 18th Letter as a request 

for relief from a final order under Rule 60(b)(1), the Commission found that: 1) Respondent appeared to 

mistakenly believe the Commission and OSHA were one and the same; 2) the inspection number in 

Respondent’s letter relates to a different set of Citations from years ago and “if Respondent had attempted 

to file its letter as a notice of contest using information associated with that prior case, an error message 

would be generated” by the Commission’s e-filing system; and 3) it was not clear what filings Respondent 

had actually received because the return receipt for the Show Cause Order did not show who signed for it 

on the company’s behalf and the Secretary’s counsel had failed to indicate whether she had conferred with 

Respondent prior to filing the Motion for Default Judgment. Based on these considerations, the 

Commission set aside the Order of Default and remanded this matter to the undersigned to “provide 

Respondent with an opportunity to present evidence supporting its claim that it attempted in good faith to 

participate in the Commission’s proceedings and put forth a meritorious defense” and thereafter determine 

whether relief is warranted under Rule 60(b)(1). 

On February 23, 2022, an evidentiary hearing was held by way of remote videoconferencing 

technology. The Secretary’s attorney, Ms. O’Reilly, read the Joint Stipulations of Fact and the contents 

of some of the attached exhibits into the record. (Tr. 13-30). All of the attached exhibits were admitted 

into the record. (Tr. 29-30; Exs. 1-7). Respondent briefly testified but did not submit any further 

documents in support of its request for relief. (Tr. 10-12, 31-47, 59, 63-65). The undersigned called Ms. 

Dillard as a witness (Tr. 48-57) and entered two documents into the record: 1) a copy of a printout from 

the Commission’s e-filing system indicating Mr. Long created a profile on April 19, 2021 (Tr. 51-53; 

Court Ex. A); and 2) a copy of the email Ms. Dillard sent to Mr. Long on June 2, 2021, with instructions 
10 

on how to file an Answer (Tr. 53-56; Court Ex. B). 

Based on the evidence presented in this matter, Respondent’s request for relief from the Order of 

Default under Rule 60(b)(1) is DENIED.

ANALYSIS

I. Applicable Law

Federal Rule of Civil Procedure 60(b)(1) states: “On motion and just terms, the court may relieve a 

party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) 

mistake, inadvertence, surprise, or excusable neglect ...” “Relief under 60(b) is an extraordinary remedy 

to be granted only in exceptional circumstances.” Buchanan v. Illinois Dep’t of Hum. Servs., 15 F. App’x 

366, 368 (7th Cir. 2001) (unpublished).6 Respondent bears the burden of demonstrating that it is entitled 

to relief under Rule 60(b)(1). In re Canopy Fin., Inc., 708 F.3d 934, 937 (7th Cir. 2013); La.-Pac. 

Corp., No. 86-1266, 1989 WL 223297, at * 2 (O.S.H.R.C., Jan. 27, 1989) (“The burden is on the employer 

to show sufficient basis for relief under the rule”).

Here, the final order from which Respondent is seeking relief is the Order of Default issued on 

September 27, 2021, which dismissed Respondent’s Notice of Contest, affirmed the violations in the 

Citations, and assessed the $41,349 penalty set forth in the Citations. (Order of Default at 4). On the 

evidence presented, there is no basis for finding that the Order of Default was based on a “mistake,” which 

“typically involves a misunderstanding of the surrounding facts and circumstances.” Eskridge v. Cook 

Cty., 577 F.3d 806, 809 (7th Cir. 2009). Nor is there any evidence of inadvertence in the Order of Default, 

which would require that the Order overlooked a crucial aspect of the case that existed when the Order 

6 “Where it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the 

precedent of that circuit in deciding the case— even though it may differ from the Commission’s precedent.” Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000). The alleged violation here took place in Illinois, in the Seventh Circuit.
11 

was issued.

7

 See, e.g., Mendez v. Republic Bank, 725 F.3d 651, 660–61 (7th Cir. 2013) (finding no error 

where the district court vacated its order under Rule 60(b)(1) after it failed to consider a magistrate’s report 

in recommendation in reaching its original decision). Finally, this is not a case where Respondent could 

have been surprised by the evidence relied on in the Order of Default, and thereby entitled to relief

therefrom. Cf. e.g., Sadowski v. Bombardier Ltd., 539 F.2d 615, 619 (7th Cir. 1976) (finding no abuse of 

discretion in the trial court denying a 60(b) motion on the basis of “surprise” expert witness testimony at 

trial). Rather, the only apparent potential basis for relief would be Respondent’s “excusable neglect” in 

failing to file any responsive pleadings in this matter.8

In considering requests for relief for “excusable neglect” under Rule 60(b)(1),9 the Commission 

applies the framework set out in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 

395 (1993) (Pioneer),10 where the Court stated: 

With regard to [whether] a party’s neglect of a deadline is excusable, ... we conclude that 

the determination is at bottom an equitable one, taking account of all relevant 

circumstances surrounding the party’s omission. These include . . . the danger of prejudice 

to the [opposing party], the length of the delay and its potential impact on judicial 

7 Except for the email sent by Ms. Dillard on June 2, 2021 (Tr. 54-55; Court Ex. B), no additional, relevant evidence was 

available when the Order of Default was issued. In any event, Ms. Dillard’s email would have only bolstered the Order of 

Default’s conclusion that Respondent had engaged in “a pattern of disregard for these proceedings” (see Order of Default at 

4), given that, despite receiving this email, Respondent never replied to it nor filed an Answer in response. (Tr. 45-46, 56).

8 Indeed, this was the main focus of the Commission’s Remand Order. See Remand Order 2-3 (discussing factors relevant to 

excusable neglect).

9 The Order of Default against Respondent was a sanction imposed under Commission Rule 101(a) for failing to file or an 

Answer or otherwise respond to the Show Cause Order. See 29 C.F.R. § 2200.101(a) (“When any party has failed to plead or 

otherwise proceed as provided by these rules or as required by ... the Judge, the party may be declared to be in default ...”). 

Commission Rule 101(b) provides the vehicle for relief from such a sanction. See 29 C.F.R. § 2200.101(b) (“For reasons 

deemed sufficient by ... the Judge ... the Judge may set aside a sanction imposed under paragraph (a) of this section.”). As the 

Commission noted in Architectural Glass & Metal Co., however, the factors to be considered under Rule 101(b) are the same 

as those considered for “excusable neglect” under Rule 60(b)(1). See Architectural Glass & Metal Co., No. 00-0389, 2001 

WL 1041005, at *2 (O.S.H.R.C., Sept. 6, 2001) (“In considering whether to reinstate a case under [the predecessor rule to Rule 

101(b)], the Commission has also looked at the criteria under [Rule] 60(b), particularly whether the sanctioned party has shown 

‘excusable neglect.’”).

10 The Seventh Circuit also applies the Pioneer framework. See, e.g., Moje v. Fed. Hockey League, LLC, 792 F.3d 756, 758-

59 (7th Cir. 2015).
12 

proceedings, the reason for the delay, including whether it was within the reasonable 

control of the movant, and whether the movant acted in good faith. 

Nw. Conduit Corp., No. 97-0851, 1999 WL 820636, at *3 (O.S.H.R.C., Sept. 30, 1999), quoting Pioneer, 

380 U.S. at 395. The moving party must also allege a meritorious defense to prevail under Rule 60(b)(1). 

Nw. Conduit, 1999 WL 820636, at *5. 

A. Meritorious Defense Established

As to the second criterion, Mr. Long’s proffered defense to all of the violations was that 

Respondent had no employees at the time the Citations were issued and that the workers who were the 

subject of the Citations were subcontractors. (Tr. 12, 37-39)11. In this regard, generally the Act only 

“imposes a duty on an ‘employer’ to provide for the on-the-job safety and health of its ‘employees.’ ” Van 

Buren-Madawaska Corp., No. 87-214, 1989 WL 223348, at *1(O.S.H.R.C., Apr. 21, 1989)

(consolidated). “Therefore, a business organization is generally only liable under the Act for violations 

that affect the safety or health of persons with whom it has entered into an employment relationship.”12

Id. Thus, Respondent’s proffered defense, if proven would constitute a meritorious defense to the 

violations. See, e.g., FreightCar Am., Inc., No. 18-0970, 2021 WL 2311871, at *2-3, (O.S.H.R.C. Mar. 

3, 2021) (no liability where employer-employee relationship was not established).

B. Excusable Neglect not Established under Pioneer 

On this record, however, Respondent has not demonstrated excusable neglect for failing to file an 

11 Mr. Long provided sworn testimony on behalf of the Respondent. 

12 In some instances, multiple employers can be responsible for the health and safety of workers on a worksite under OSHA’s 

multi-employer worksite theory of liability even if no direct employment relationship exists. See MultiEmployer Citation Policy, OSHA Instruction (Dec. 10, 1999); see also U.S. v. Pitts-Des Moines, 168 F.3d 976, 985 (7th Cir. 

1999); Summit Contractors, Inc., No. 03-1622, 2009 WL 2857148, at *6 (O.S.H.R.C., July 27, 2009). The Citations do not 

appear to allege this type of liability in this case. In any event, at this stage of the proceeding, Respondent’s defense, if proven, 

satisfies the meritorious defense prong of its request for relief under Rule 60(b)(1). See Jones v. Phipps, 39 F.3d 158, 165 (7th 

Cir. 1994) (“A meritorious defense is not necessarily one which must, beyond a doubt, succeed in defeating a default judgment, 

but rather one which at least raises a serious question regarding the propriety of a default judgment and which is supported by 

a developed legal and factual basis.”)
13 

Answer or any responsive pleadings at all. Although all the Pioneer factors weigh against granting 

Respondent relief, “the reason for the delay, including whether it was within the reasonable control of

[Respondent]” and “whether [Respondent] acted in good faith” weigh most heavily against Respondent 

here. Pioneer, 380 U.S. at 395. 

Mr. Long’s principal excuse for failing to file any responsive pleading in this matter since it was 

brought before the Commission in March of 2021, both in his November 18th Letter to the Commission 

and at the hearing, was that he was unable to access the Commission’s e-filing system and that he did the 

“best [he] could” to respond despite not being computer savvy. (Tr. 11, 41-42, 46, 59). However, other 

than the emails presented in the Joint Stipulations of Fact,13 Mr. Long presented no other evidence of his 

efforts to access the Commission’s e-filing system or comply with the filing deadlines under the 

Commission’s rules. What the stipulated emails show is that twice, first on the due date for the filing of 

the Answer and again on the due date for a filing of the response to the Show Cause Order, Mr. Long 

attempted to gain access to the Commission’s e-filing system. (Joint Stipulations of Fact ¶¶ 6, 8; Tr. 19-

22, 24, 51-53; Exs. 3 & 5; Court Ex. A). While he apparently did gain some access to the e-filing system

on April 19, 2021,

14 he never filed anything and no reasons were elucidated at the hearing for this lack of 

filing or any other efforts to comply with the required filings. In both email exchanges with the OSHA 

attorneys, Mr. Long was given the email address for the Commission’s technical support as well as the 

phone number of the undersigned’s legal assistant, Ms. Dillard. (Joint Stipulations of Fact ¶¶ 6, 8; Tr. 21, 

25-26; Ex. 3, at 1, 3, Ex. 5, at 1). Ms. O’Reilly also sent Respondent a link to the Commission’s website 

with information on e-filing and the Commission’s main number. (Joint Stipulations of Fact ¶ 6; Tr. 20; 

13 This refers to emails which the undersigned ordered to be produced at the February 23rd hearing. See Order to Schedule a 

Remote Hearing at 5, OSHRC Docket No. 21-0281 (Jan. 4, 2022).

14 Court’s Exhibit A, as explained by Ms. Dillard, establishes that Mr. Long was able to enter the Commission’s e-filing system 

in some way, create a profile, and input Respondent’s identifying information. (Tr. 51-53; Court Ex. A). 
14 

Ex. 3, at 1, 4). 

Respondent presented no evidence that he attempted to contact Ms. Dillard following his exchange 

with Ms. O’Reilly or to call the Commission’s main number provided by her. While the email exchange 

with Ms. O’Reilly suggests Mr. Long may have contacted the Commission’s technical support once on 

April 19, 2021,15 he produced no email evidence of this exchange and no evidence that he ever followed 

up on this exchange when he was still unable to access the e-filing system. Then, from April 19, 2021,

the due date for the filing of Respondent’s Answer, until May 26, 2021, the due date for a response to the 

Show Cause Order, the record is devoid of any evidence suggesting Mr. Long attempted to make the 

required filings or resolve his technical issue with the Commission’s e-filing system. On May 26, 2021, 

Mr. Long did contact Ms. McGinnis, which resulted in him yet again being directed to the Commission’s 

technical support and Ms. Dillard for assistance. (Joint Stipulations of Fact ¶ 8; Tr. 24; Ex. 5, at 2). 

Respondent again produced no evidence that he attempted to contact the Commission’s technical support 

after contacting Ms. McGinnis.

The only further evidence of Mr. Long’s attempts to access the Commission’s e-filing system and 

make the required filings is his exchange with Ms. Dillard on June 2, 2021. In response to a phone 

conversation, Mr. Long received an email from Ms. Dillard regarding the Commission’s rules for filing 

an Answer. (Tr. 39-41, 53-56; Court Ex. B). Ms. Dillard never received a response to this email. (Tr. 56). 

Although Mr. Long testified he remembered responding to this email by admitting or denying the 

allegations in the Complaint, he produced no evidence of any such response ever being sent.16 (Tr. 41, 45-

15 See Ex. 3, at 2 (“I did support thing and it sent me a new password and still will not let me in.”). 

16 In fact, Mr. Long was able to locate Ms. Dillard’s email on his phone at the hearing but admitted there was no response sent 

thereto as he testified. He explained at the hearing that he was positive his answer was in an email; however, when given the 

opportunity to provide such proof at the hearing, he responded that he could not find the answer in his emails and he could go 

back and look some more, but he would have to do it on his computer. The undersigned finds this a poor explanation in light 
15 

46). 

 Thus, on the whole, the record evidence demonstrates that Mr. Long was aware of his obligations 

for responding to filings and orders issued in this matter. He made at most a minimal effort to comply 

with those obligations by waiting until the due dates for filing an Answer to the Complaint and for filing 

a response to the Show Cause Order. When Mr. Long was allegedly met with an alleged technological 

obstacle, the record reveals a pattern of conduct wherein Mr. Long chose to shut down rather than ramp 

up any efforts to meet his obligations. After he failed to file anything on the due dates, he made only one 

more attempt, by contacting Ms. Dillard, to comply with his obligations and ultimately never filed 

anything after receiving the email from Ms. Dillard. Furthermore, his ability to respond via email at 

critical moments throughout the course of this proceeding reveals that he was not completely ignorant of 

technological tools. Such conduct demonstrates, at best, “inexcusable inattentiveness or neglect, rather 

than excusable carelessness,” Cato v. Thompson, 118 F. App’x 93, 97 (7th Cir. 2004) (unpublished), if 

not outright disregard for Respondent’s obligations in this matter. See Sealtite Corp., No. 88-1431, 1991 

WL 132733, at *6 (O.S.H.R.C., June 28, 1991) (contumacious conduct established where party engaged 

in a “consistent pattern” of failure to respond to judge’s orders). Moreover, Mr. Long’s status as a pro se 

representative for Respondent does not excuse his failure to at least attempt to comply with his obligations 

in this matter. See Casimir v. Sunrise Fin., Inc., 299 F. App’x 591, 593 (7th Cir. 2008) (unpublished) 

(“[A]ll litigants, including pro se litigants, are responsible for maintaining communication with the court 

and monitoring the status of their lawsuit as necessary.”); Casio Computer Co. v. Noren, 35 F. App’x 247, 

250 (7th Cir. 2002) (unpuiblished) (“Pro se litigants are entitled to a limited degree of procedural 

protections as provided by statutes and case law, but they are not entitled to claim complete dispensation 

of the fact that the purpose of the hearing was to provide Respondent the opportunity to produce all evidence of its attempts to 

comply with the Show Cause Order. (Tr. 45-46).
16 

of procedural rules.”). 

Neither of the remaining Pioneer factors, “the danger of prejudice to the [opposing party]” and 

“the length of the delay and its potential impact on judicial proceedings” weighs in favor of granting 

Respondent’s request for relief. As the Secretary’s counsel pointed out at the hearing, it has been nearly 

a year since the Citations were issued and the matter has yet to even proceed to discovery. (Tr. 59-60). 

This length of delay tilts in favor of denying Respondent’s request for relief under both of these factors. 

See U.S. v. Cates, 716 F.3d 445, 449 (7th Cir. 2013).

C. Commission’s Factors on Remand 

As to the factors the Commission relied on in remanding this matter, the evidence adduced at the 

hearing demonstrated the following. 

First, although Mr. Long did appear to conflate the Commission and OSHA in his November 18th 

Letter and continued to do so at the hearing (Tr. 31-32), such belief was not reasonable by that point in 

time. In her email exchange with Mr. Long, Ms. O’Reilly made it clear in multiple emails that she was 

the attorney for the Secretary of Labor and that the matter of filing a response was to be handled “with the 

Court[,] with the Occupational Safety and Health Review Commission.” (Joint Stipulations of Fact ¶ 6; 

Tr. 19-22; Ex. 3, at 5-6). In her final email on April 29, Ms. O’Reilly made it clear that she was providing 

the phone number for the Chief Judge’s legal assistant and that any further technical issues would have to 

be handled with the “court.”17 (Joint Stipulations of Fact ¶ 6, Tr. 22, Ex. 3, at 1). It is further noted that 

17 Both Ms. O’Reilly and Ms. McGinnis provided Mr. Long with the email address for the Commission’s technical support as 

well as Ms. Dillard’s phone number. (Joint Stipulations of Fact ¶¶ 6, 8; Tr. 21, 25-26; Ex. 3, at 1, 3, Ex. 5, at 1). Ms. O’Reilly 

also sent Mr. Long a link to the Commission’s website as well as the Commission’s main phone number. (Joint Stipulations 

of Fact ¶ 6; Tr. 20; Ex. 3, at 1, 4). Mr. Long in fact emailed technical support and spoke with Ms. Dillard pursuant to some of 

the information sent to him. (Joint Stipulations of Fact ¶ 6; Tr. 21, 54-55; Ex. 3, at 2, Court Ex. B). Thus, unlike the Remand 

Order in Arch-Tech Constr., No. 19-1922, 2020 WL 5880240 (O.S.H.R.C., Sept. 25, 2020), cited in the Commission’s Remand 

Order, Respondent was given ample information as to whom to contact regarding Commission proceedings.
17 

Commission records for the incorrect inspection number listed on Respondent’s November 18th Letter, 

Inspection No. 1217791 which corresponds to Docket No. 17-1488, reveal a prior Citation issued to 

Respondent in 2017. Mr. Long also represented Respondent in that matter. Thus, not only was Mr. Long

directly told the Commission and OSHA were two different entities, it is also apparent that Mr. Long had 

some familiarity with the difference between the Commission and OSHA.

Second, with regard to the incorrect inspection number included in the November 18th Letter, Mr. 

Long acknowledged receiving a previous citation, but stated that his sister, who helped him prepare the 

Letter, was responsible for including the incorrect inspection number. (Tr. 34-36).18 Mr. Long provided 

no evidence to show that he received an error message when he put this information in the Commission’s 

e-filing system or that the reason he was unable to file any responsive pleadings was the result of inputting 

the wrong inspection number, as the Commission speculated may have occurred. See Remand Order at 

Third, indeed, as noted above, Mr. Long provided little evidence of any actual efforts to access the 

Commission’s e-filing system.

Finally, with regard to what documents Respondent had or had not received at the time the Order 

of Default was issued, the record demonstrates that Respondent had received all relevant documents. To 

start, Mr. Long never denied receipt of any documents for this matter, including the Complaint or the 

Show Cause Order. Instead, he acknowledged that he regularly received mail at the Troy, Illinois address 

where all the documents were sent. (Tr. 65). Based on the Joint Stipulations of Fact, it is conceded that 

Mr. Long twice received the Complaint via email. (Joint Stipulations of Fact ¶¶ 5-6; Tr. 16-20; Ex. 2, Ex. 

3, at 5-6). 

18 The undersigned notes with interest that Respondent testified that his sister assisted him with the preparation of his letter sent 

to the Executive Secretary dated October 28, 2021, and that the source of the erroneous inspection number on that letter was 

not known to him. (Tr. 34-35). This testimony certainly shows the ability to solicit help when responding to the Commission. 

The undersigned also notes that Respondent had been given contact information for the Commission at multiple times and in 

multiple forms, i.e. email and phone numbers.
18 

As to the Show Cause Order, the notation of “229404 C19” made on the Certified Mailing Receipt 

was in accordance with USPS’s practice during the COVID-19 pandemic. See Note 1, supra. In 

accordance with the USPS’s practice, such notation would only have been made if someone was present 

at the delivery address to receive the mailing. Id. Further evidence supports the conclusion that 

Respondent in fact received the Show Cause Order. First, the tracking number for the Show Cause Order 

corroborates that it was in fact delivered in Troy, Illinois on May 17, 2021. See Note 4, supra. Second, 

as noted in the Order of Default, the First-Class mailing of the Show Cause Order was never returned to 

the Commission’s office and is therefore presumed to have been delivered by the Postal Service. See 

Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir. 1974). Third, the timing of Mr. Long’s email to Ms. 

McGinnis on May 26, 2021, the exact date a response to the Show Cause Order was due, strongly suggests 

he had received the Order and was attempting to file a response before the deadline. (Ex. 5, at 2). The 

content of this email confirms as much in that Mr. Long stated he was “trying to get e-file to w[o]rk and 

it will not.” (Joint Stipulations of Fact ¶ 8; Tr. 24; Ex. 5, at 2). 

Thus, to the extent the Pioneer factors did not already weigh in favor of denying Respondent’s 

request for relief under Rule 60(b)(1), none of the factors identified by the Commission weigh in favor of 

granting Respondent such “extraordinary” relief. See Buchanan, 15 F. App’x at 368. 

 CONCLUSION

Respondent has produced no “essential evidence” and failed to carry its burden of demonstrating 

excusable neglect such that it is entitled to relief under Rule 60(b)(1). See In re Canopy Fin., Inc., 708 

F.3d at 937 (“Whenever the judiciary adopts an ‘all the facts and circumstances’ approach, 

as [Pioneer] did, litigants need to supply ... details” to justify relief under Rule 60(b)). Accordingly, its 

request for relief is DENIED.

ORDER
19 

For these reasons, it is hereby ORDERED that:

1. Respondent’s request for relief from the Order of Default, dated September 27, 2021, under 

Federal Rule of Civil Procedure 60(b)(1) is DENIED.

2. The Order of Default is REINSTATED, Respondent is in DEFAULT, its Notice of Contest is 

DISMISSED, and the Citations issued to Respondent on February 18, 2021, as a result of OSHA 

inspection number 1498015 are AFFIRMED in their entirety and $41,349 in penalties are ASSESSED. 

SO ORDERED.

 /s/ 

 Covette Rooney 

 Chief Judge, OSHRC 

Dated: April 1, 2022 

 Washington, D.C.