United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9th Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant, 

v. OSHRC Docket No. 19-1929

L & C General Contractors, Inc., 

Respondent. 

Attorney and Law Firm: 

Joseph Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee, 

for Complainant 

Scott Hunt, Esq., The Hunt Law Firm, for Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER OF DISMISSAL

This matter is before the court on L & C General Contractors, Inc.’s (L & C) notice of 

contest. A citation issued to L & C following Inspection No. 1386080 became a final order of 

the Commission pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 (the Act) on September 12, 2019. On December 2, 2019, L & C attempted to 

contest that citation by filing a notice of contest with the Commission. On June 19, 2020, the 

Secretary filed a motion to dismiss L & C’s notice of contest as untimely. The question before 

the court is whether L & C has established it is entitled to relief from a final order of the 

Commission pursuant to Federal Rule of Civil Procedure 60(b) or whether the Secretary’s 

motion to dismiss should be granted. For the foregoing reasons, the Secretary’s motion to 

dismiss is GRANTED. 

BACKGROUND

The facts of this case as set out in the Secretary’s motion are uncontested. The 

Birmingham Area Office of the Occupational Safety and Health Administration (OSHA) 
2

conducted an inspection of an L & C worksite in Irondale, Alabama, on March 18, 2019. On 

August 13, 2019, the Secretary issued L & C a citation alleging three serious violations of 

regulations issued under the Act. The citation was issued via certified mail and was received by 

L & C on August 21, 2019 Act (Exhibit B to the Secretary’s Motion to Dismiss). 

 Five days after receiving the citation, Ronald Jackson, the owner of L & C, sent a letter to 

the Birmingham Area Office requesting “a conference to discuss the alleged safety violations.” 

(Exhibit C to the Secretary’s Motion to Dismiss). That letter was received by the Birmingham 

Area Office on August 30, 2019. On September 4, 2019, after failed attempts to contact Mr. 

Jackson, Ramona Morris, the Area Director of the Birmingham Area Office, left voicemail 

messages on two separate phone numbers for Mr. Jackson. The next day, Mr. Jackson called 

Ms. Morris back and left a voicemail message stating he would call again on September 9, 2019. 

Mr. Jackson did not call Ms. Morris back. L & C did not send any other documents to the Area 

Office and the citation became a final order of the Commission on September 12, 2019. 

 On October 16, 2019, the Secretary sent a demand letter to L & C for the unpaid penalties 

assessed for the violations alleged in the citation. The letter was returned by the United States 

Postal Service as unclaimed. Ms. Morris then called Mr. Jackson on October 28, 2019, leaving a 

voicemail message telling him to contact the Area Office. Later that day, Mr. Jackson left Ms. 

Morris a voicemail message stating he was out of town and would contact her the following 

Monday, November 4, 2019. Mr. Jackson did not call Ms. Morris back on November 4, 2019. 

On November 26, 2019, Mr. Jackson left a voicemail message for Ms. Morris stating he 

was having health issues. Ms. Morris returned Mr. Jackson’s call and they spoke. Mr. Jackson 

expressed to Ms. Morris he did not believe the violations were valid and wanted to contest them. 

She explained the process by which a citation can be contested. Ms. Morris provided Mr. 

Jackson with the address of the Commission. L & C filed its notice of contest with the 

Commission on December 2, 2019. It was received by the Commission on December 9 and 

docketed on December 12, 2019. 

On June 19, 2020, the Secretary filed his motion to dismiss L & C’s notice of contest as 

untimely. On June 23, 2020, Chief Judge Covette Rooney assigned the matter to the 

undersigned. The undersigned issued an order on July 23, 2020, requiring L & C to file a 

response to the Secretary’s motion by August 14, 2020, stating its reason for the delay in filing 
3

and setting out a meritorious defense. That order was not returned to the Commission as 

undeliverable. L & C did not file a response to that order. 

On August 21, 2020, the court issued an order to show cause to L &C requiring it to show 

cause why its notice of contest should not be dismissed. That order was sent via Federal Express 

but returned to the court as undeliverable. According to Federal Express tracking, no business 

resides at the address. The address used was that to which the citation had been successfully 

delivered and which is on L & C’s notice of contest. The court issued a second order to show 

cause to two other addresses listed with the Alabama Secretary of State for L & C’s business on 

September 4, 2020.1 The second order gave L & C until October 2, 2020, to respond. Federal 

Express tracking shows both copies of the order were delivered. 

On October 2, 2020, L & C filed, through newly designated counsel, a response to the 

court’s order to show cause.2

 In it, L & C contends it did contact the Secretary in writing within 

the 15-day period to request an informal settlement conference and believed that was sufficient 

to meet its obligations to contest the citation. Mr. Jackson attested he had been called out of 

town on August 21, 2019, the day he received the citation, due to the death of a close relative. L 

& C asked for relief from the final order of the Commission pursuant to Rule 60(b). 

The undersigned found L & C’s filing a sufficient response to the court’s order to show 

cause and issued an order and briefing schedule requiring L & C to file a formal request for relief 

under Fed. R. Civ. Pro. 60(b) and a response to the Secretary’s motion to dismiss.

3

 L & C’s 

request and response were due on or before October 30, 2020. The order specifically noted L & 

C’s obligation to set out a meritorious defense. The order allowed the Secretary to file a reply by 

November 13, 2020. L & C filed neither a request for relief nor a response to the Secretary’s 

motion. 

DISCUSSION

Pursuant to § 10(a) of the Act, an employer must notify the Secretary of its intent to 

contest a citation within 15 working days of receipt of the citation. The Secretary’s regulation 

1 Commission Rule 6(a) requires parties to Commission proceedings to promptly notify the Commission of any

change in address. L & C has never notified the Commission the address on its notice of contest is no longer valid 

or of any change of address.

2 Counsel for L & C filed his notice of appearance on October 2, 2020, and registered to receive service through the 

Commission’s e-filing system.

3 The court’s order was served on all parties via the Commission’s e-filing system. 
4

addressing the requirements for a valid notice of contest states such notice must be in writing and 

“postmarked within 15 working days of the receipt by the employer of the notice of proposed 

penalty. Every notice of intention to contest shall specify whether it is directed to the citation or 

to the proposed penalty, or both.” 29 C.F.R. § 1903.17(a).4

Failure to timely file a notice of contest results in the citation becoming a final order of 

the Commission by operation of law. A late notice of contest may be accepted, however, where 

the employer establishes the delay in filing was due to deception by the Secretary, or where the 

delay was caused by the Secretary’s failure to follow proper procedures. A late notice of contest 

also may be excused under Rule 60(b), if the final order was entered as a result of “mistake, 

inadvertence, surprise or excusable neglect.” See Branciforte Builders, Inc., No. 80-1920, 1981 

WL 18814, at *4 (OSHRC July 31, 1981) (citations omitted). The moving party has the burden 

of proving it is entitled to relief under Rule 60(b).5

An employer must also establish the presence of a meritorious defense for Rule 60(b)(1) 

relief. Northwest Conduit Corp., No. 97-851, 1999 WL 820636, at *5 (OSHRC September 30, 

1999). A meritorious defense is one that is valid at law with respect to the underlying action. 

Park Nursing Center, Inc., v. Samuels, 766 F.2d 261, 264 (6th Cir. 1985). The presence of a 

meritorious defense is “satisfied with minimal allegations that the employer could prove a 

defense if given the opportunity.” Jackson Assoc. of Nassau, No. 91-0438, 1993 WL 230102, at 

*7 (OSHRC June 18, 1993). 

In cases involving a request for relief from a final order, the Commission has long 

applied the Supreme Court’s analysis stated in Pioneer Invest. Servs. Co. v. Brunswick Assocs. 

Ltd. P’ship, 507 U.S. 380 (1993). The determination of excusable neglect pursuant to Rule 

60(b)(1)6

 is an equitable one, taking into account all relevant circumstances surrounding L & C’s 

failure to file a timely notice of contest, including the danger of prejudice to the Secretary, the 

length of delay and its potential impact on the judicial proceedings, the reason for the delay and 

4 The Commission and courts have upheld the validity of this regulation’s requirements. See Prime Roofing 

Corporation, No. 07-1409, 2009 WL 7196644, at *5 (OSHRC September 16, 2009) citing Acrom Construction 

Services, Inc., No. 88-2291, 1991 WL 132730, at *4 (OSHRC June 28, 1991); Martin V. Pav-Saver Mfg. Co., 933 

F.2d 528, 530 (7th Cir. 1991); and Sec’y of Labor v. Barretto Granite Corp., 830 F.2d 396, 397 (1st Cir. 1987).

5 The Secretary has the burden to establish he properly served the employer. The record contains sufficient evidence 

the Secretary served L & C with the citation consistent with the requirements of § 10(a) the Act (Exhibit B to the 

Secretary’s Motion to Dismiss). L & C does not dispute of the Secretary’s evidence of valid service of the citations.

6 L & C does not contend its failure to timely contest the citations was the result of deception on the part of the 

Secretary or the Secretary’s failure to follow proper procedures. 
5

whether L & C acted in good faith. Pioneer Investment Serv., 507 U.S. at 395; Craig 

Mechanical, Inc., No. 92-0372, 1994 WL 197728, at *3 (OSHRC May 18, 1994). The Supreme 

Court stated that “inadvertence, ignorance of the rules, or mistakes construing the rules do not 

usually constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392. The Court found “excusable 

neglect” to be, in part, an “elastic concept” not restricted to “omissions caused by circumstances 

beyond the control of the movant.” Id. Regarding relief sought pursuant to Rule 60(b), the Court 

stated that “’excusable neglect’ is understood to encompass situations in which the failure to 

comply with a filing deadline is attributable to negligence.” Id. at 394. 

When evaluating claims of excusable neglect, many circuit courts focus on the third 

factor in the Pioneer equitable analysis, “the reason for the delay, including whether it was 

within the reasonable control of the movant.” Id. at 395. 

The four Pioneer factors do not carry equal weight; the excuse given for the late filing 

must have the greatest import. While prejudice, length of delay, and good faith might 

have more relevance in a closer case, the reason-for-delay factor will always be critical to 

the inquiry . . .. [A]t the end of the day, the focus must be upon the nature of the neglect. 

Hospital del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001) (per curium) (quoting Lowry v. 

McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000)). See Cohen v. Bd. of Trs. of Univ. 

of D. C., 819 F.3d 476, 479-80 (D.C. Cir. 2016) (same); Dimmitt v. Ockenfels, 407 F.3d 21, 24-

25 (1st Cir, 2005) (same); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366, 366 n.7 (2d 

Cir. 2003) (same); Graphic Communications Int’l Union v. Quebecor Printing Providence, Inc., 

270 F.3d 1, 5-6 (1st Cir. 2001) (same); David E. Harvey Builders, Inc. v. Sec’y of Labor, 724 

Fed. Appx. 7, 9 (D.C. Cir. 2018) (same).

Other circuit courts emphasize that the Pioneer equitable analysis requires consideration 

of “all relevant circumstances” surrounding a party’s request for relief due to excusable neglect. 

Therefore, the “control” factor must not be weighted too heavily at the expense of the other 

relevant Pioneer factors. Avon Contractors, Inc. v. Sec’y of Labor, 372 F.3d 171, 174 (3d Cir. 

2004). See Coleman Hammons Constr. Co. v. OSHRC, 2019 WL 5782425, at *3 (5th Cir. 2019) 

(same); George Harms Constr., 371 F.3d 157, 164 (3rd Cir. 2004)(same). 

Long-settled Commission precedent focuses on the third factor in the Pioneer equitable 

analysis. Evaluating a request for relief for a late filed notice of contest due to excusable neglect, 

Commission precedent states that a “key factor” is “the reason for the delay, including whether it 

was within the reasonable control of the movant.” CalHar Constr., Inc., No. 98-0367, 2000 WL 
6

362466, at *2 (OSHRC April 27, 2000). In appropriate circumstances, the Commission finds 

this to be the dispositive factor. Mere carelessness or negligence, even by a layperson, in failing 

to timely file a notice of contest does not amount to “excusable neglect” that would justify relief 

under Rule 60(b). Acrom Constr. Serv., No. 88-2291, 1991 WL 132730, at *6 (OSHRC June 28, 

1991). 

The Eleventh Circuit, the circuit in which this case arose, has applied a three-part 

equitable analysis. In re Worldwide Web Systems, Inc., 328 F.3d 1291 (11th Cir. 2003). To 

establish excusable neglect entitling it to relief from a default judgment, a party must show “’ (1) 

it had a meritorious defense that might have affected the outcome; (2) granting the motion would 

not result in prejudice to the non-defaulting party; and (3) a good reason existed for failing to 

reply to the complaint.’” Worldwide Web, 328 F. 3d at 1295 quoting Florida Physician’s Ins. 

Co., v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) (citing E.E.O.C. v. Mike Smith Pontiac GMC, 

Inc., 896 F.2d 524, 528 (11th Cir. 1990). An equitable analysis under Pioneer “necessarily 

involves consideration of all three elements.” Worldwide Web, 328 F. 3d at 1297. 

Did L & C File a Timely Notice of Contest?

In its response to the court’s show cause order, L & C contends it believed its letter dated 

August 26, 2019, requesting an informal conference, was sufficient to meet its obligation to file a 

written notice of contest (Affidavit of Ronald E. Jackson). In that letter, Mr. Jackson wrote, 

We are in receipt of the OSHA citation notifications dated August 13, 2019. We 

are hereby requesting a conference to discuss the alleged safety violations 

outlined in the citation. We await your reply regarding the time and location for 

the meeting.

(Exhibit C to the Secretary’s Motion to Dismiss). After receiving the letter, AD Morris 

attempted to contact Mr. Jackson via phone prior to the expiration of the 15-day contest period, 

but she and Mr. Jackson never spoke directly. L & C never filed another letter with the Area 

Office.

 The Commission has long held the language of letters of contest be liberally construed to 

determine whether they exhibit a “clear intent to dispute” the citation. Herasco Contractors, 

Inc., No. 93-1412, 1993 WL 378931, at *1 (OSHRC September 22, 1993), citing Brennan v. 

OSHRC (Bill Echols Trucking Co.,), 487 F.2d 230 (5th Cir. 1973); see also Prime Roofing 

Corporation, No. 07-1409, 2009 WL 7196644, at *5 (OSHRC September 16, 2009). The 

Commission has expressly rejected as notices of contest letters that “simply request[] an informal 
7

conference.” All Phase Electric & Maintenance, Inc., No. 90-0505, 1991 WL 205285, at *3 

(OSHRC October 4, 1991). 

 L & C’s letter of August 26, 2019, does not comply with the requirements of 29 C.F.R. § 

1903.17(a) nor does not contain an explicit intent to contest the citation. It fairs no better when 

given a more liberal reading. The letter makes no mention of objections or defenses to the 

alleged violations. It simply asks to “discuss” them. For that reason, it is not a valid notice of 

contest.7

 It was not until December 2, 2019, that L & C filed a letter expressing an intent to 

contest the citation. L & C did not file a timely notice of contest.

Is L & C’s Entitled to Equitable Relief? 

The Commission requires an employer to exercise due diligence before it will find 

excusable neglect. Keefe Earth Boring Company, Inc., No. 88-2521, 1991 WL 73223, at *6 

(OSHRC March 25, 1991); Craig Mechanical, 1994 WL 197728, at *3. The Commission has 

consistently held “[e]mployers must maintain orderly procedures for handling important 

documents,” and that when the lack of such procedures results in the untimely filing of a notice 

of contest, relief under Rule 60(b) is not warranted. Villa Marina Yacht Harbor, Inc., No. 01-

0830, 2003 WL 716983, at *2 (OSHRC March 3, 2003) (company messenger mishandled mail); 

A.W. Ross, Inc., No. 99-0945, 2000 WL 34235993, at *4 (OSHRC September 25, 2000)

(employer's president failed to carefully read and act upon information contained in citation); 

Montgomery Security Doors & Ornamental Iron, Inc., No. 97-1906, 2000 WL 33738376, at *3 

(OSHRC April 27, 2000) (record showed a breakdown of business procedures such that relief 

was not warranted even assuming employee sabotage); Louisiana-Pacific Corp., No. 86-1266, 

1989 WL 223297, at *2 (OSHRC January 27, 1989) (notice of contest was overlooked due to 

personnel change in operations manager position). 

L & C did not avail itself of the opportunity given by the court to provide an explanation 

why it failed to timely contest the citation. The court has only the affidavit of Mr. Jackson filed 

in response to the court’s show cause order. In that affidavit, Mr. Jackson indicates he was 

notified of his aunt’s imminent death the same day he received the citation or August 21, 2019. 

Unfortunately, his aunt passed away that night. Although the court is sympathetic to Mr. 

Jackson’s loss, he provides no further explanation as to how his aunt’s passing may have 

7 The issue of Mr. Jackson’s good faith belief he was filing a valid notice of contest on August 26, 2019, is a 

consideration in the court’s analysis of whether L & C is entitled to equitable relief from the final order.
8

impacted his ability to see to his business obligations. Within a few days, Mr. Jackson filed a 

letter asking for an informal conference. He was in contact, through a series of voicemail 

messages, with the Area Office but apparently did not fully understand the information provided. 

Mr. Jackson’s affidavit also contains the somewhat confusing statement at paragraph 4: “L & C 

Contractors requested a change of date and then was under the impression that a meeting was 

refused.” The affidavit provides no context to this request and it is unclear to what date it is 

referring since no informal conference had been scheduled. Despite promising to do so, Mr. 

Jackson did not contact AD Morris on September 9, 2019, for which his affidavit provides no 

excuse. 

After AD Morris contacted Mr. Jackson regarding the unpaid penalties and lack of 

abatement verification on October 28, 2019, Mr. Jackson again contacted the Area Office, 

leaving a voicemail promising to call back. In his affidavit, Mr. Jackson suggests his failure to 

contact the Area Office between September 9 and October 28 was due to the mistaken belief his 

original letter was sufficient to contest the citation. After being put on notice on October 28 that 

penalties were owed, Mr. Jackson again failed to follow up as promised. His affidavit provides 

no explanation for his failure to act again until November 25, 2019. During that conversation, 

AD Morris provided Mr. Jackson with the information necessary to file a notice of contest 

directly with the Commission. After being explicitly informed his August 26 letter was not a 

valid notice of contest, Mr. Jackson waited another week without explanation to file with the 

Commission.

L & C has provided no evidence of how it handles business mail. As such it has failed to 

meet its burden to establish it had orderly procedures for doing so. The court is left to speculate 

whether L & C lacks such procedures or some deviation from those procedures explains L & C’s 

late filing. Absent evidence or explanation, the court is left to conclude L & C failed to exercise 

due diligence in its handling of the citation. 

L & C did not address prejudice to the Secretary or the impact of the delay on efficient 

judicial administration. The Secretary argues there is potential for loss of evidence and delay, 

but its argument is based largely on speculation. The Commission has held neither a lack of 

prejudice to the Secretary nor good faith on the part of the employer in attempting to comply 

with the statutory filing requirement alone will excuse a late filing. Fitchburg Foundry, Inc., 

Nos. 77-520 and 1073, 1979 WL 8463, at *3 (OSHRC June 29, 1979). 
9

 Although the lack of prejudice may weigh in L & C’s favor, consideration of good faith 

does not. The citation received by L & C contained explicit and distinct instructions on 

requesting an informal conference and filing of a notice of contest. Even assuming Mr. Jackson 

misunderstood the distinction and reasonably believed his August 26, 2019, letter requesting an 

informal conference constituted a written notice of contest, the Area Office’s contact on October 

28, 2019, put Mr. Jackson on notice it did not. Mr. Jackson failed to act again until November 

25. Since its filing of its notice of contest with the Commission, L & C has repeatedly ignored 

orders of the court and provided scant evidence in support of its request for relief. Rather than 

evidencing good faith, L & C’s pursuit of its contest can fairly be characterized as dilatory. 

Commission precedent states “to be eligible for relief under Rule 60(b)(1), the moving 

party [] must allege a meritorious defense.” Northwest Conduit, 1999 WL 820636, at *5. L & C 

has not met that burden. When given the opportunity to articulate a defense, L & C remained 

silent.

8

 In failing to even articulate a defense, L & C has not met this threshold requirement for 

equitable relief.

The evidence, taken as a whole, does not support L & C’s request for relief. L & C 

provided no evidence it had adequate procedures that were not followed. It identified an 

intervening event but failed to explain how it interfered with its timely processing of the citation. 

The undisputed evidence establishes the company was exclusively to blame for the failure to 

timely file its notice of contest. L & C has failed to articulate a defense to the citations. It has 

not demonstrated good faith or diligence before the Commission. L & C has not met its burden 

to show its failure to timely file its notice of contest was the result of excusable neglect. 

The Secretary has demonstrated the citation became a final order of the Commission on 

September 12, 2019. L & C seeks relief from that final order under Fed. R. Civ. Pro. 60(b) but 

has not met its burden to establish it is entitled to that relief. Accordingly, the Secretary’s 

motion to dismiss L & C’s notice of contest as untimely is granted.

ORDER

 Based upon the foregoing decision, it is HEREBY ORDERED that the Secretary’s 

Motion to Dismiss Respondent’s Late Notice of Contest is GRANTED. 

8 Following Eleventh Circuit three-part equitable analysis, L & C’s failure to articulate a defense to the allegations in 

the citation weighs against a finding of excusable neglect.
10

It is further ORDERED that the notice of contest filed in this case is DISMISSED and 

the Citation and Notification of Penalty is AFFIRMED in all respects.

SO ORDERED. 

/s/___________________________ 

 Heather A. Joys 

Dated: December 31, 2020 Administrative Law Judge, OSHRC 

 Washington, DC