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. 

REMAND ORDER

Before: ATTWOOD, Chairman and LAIHOW, Commissioner. 

BY THE COMMISSION: 

On September 16, 2021, Chief Administrative Law Judge Covette Rooney entered a default 

judgment against Knock Out Homes Incorporated and dismissed its notice of contest for failing to 

file an answer. The judge’s decision became a final order of the Commission on November 1, 

2021. Two weeks later, Respondent, appearing pro se, filed a letter with the Commission, which 

we construe as a request for relief from a final order under Federal Rule of Civil Procedure 

60(b)(1).1 For the reasons that follow, we set aside the judge’s decision and remand this case for 

further proceedings in a manner consistent with this order. 

1

 Federal Rule of Civil Procedure 60(b)(1) provides, “[o]n 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[.]” Fed. R. Civ. P. 

60(b)(1); see also 29 U.S.C. § 661(g) (applying Federal Rules of Civil Procedure to Commission 

proceedings where other rules have not been adopted). 
2 

BACKGROUND

On February 18, 2021, the Occupational Safety and Health Administration issued 

Respondent three citations—a five-item serious citation, a one-item willful citation, and a oneitem other-than-serious citation—with a total proposed penalty of $41,349. On March 15, 2021, 

Respondent’s representative, Kevin Long, filed a Notice of Contest challenging all three citations. 

After the case was docketed with the Commission, Laura A. O’Reilly entered an appearance for 

the Secretary and on March 29, 2021, filed a timely complaint. 

Respondent did not file an answer, and on May 12, 2021, the judge issued an Order to 

Show Cause giving the company 14 days to file an explanation for its failure.2 See 29 C.F.R. 

§ 2200.101(a) (judge may declare party in default for failing to plead or otherwise proceed as 

required after giving party opportunity to show cause). That same day, Megan J. McGinnis filed 

an Entry of Additional Appearance on behalf of the Secretary.3 Respondent did not file an answer 

or otherwise respond to the judge’s show cause order. On August 3, 2021, McGinnis filed a motion 

for the Secretary seeking a default judgment against Respondent, who again did not respond, and 

the judge effectively granted that motion in her default order. 

On November 16, 2021, the Commission received a letter in the mail from Long that was 

directed “To Osha” and titled “Late Notice of Contest.” In the letter, Long explains that 

Respondent has no employees and avers that he is “not trying to avoid” the matter but has “not 

been able to access the Osha Portal.” Long asserts that he has “multiple emails from Laura 

O’Reilly trying to help [him] get into the portal to no success.” He further states that he has “been 

trying to do everything in [his] power to get help with this matter,” including having “an Osha 

employee try to help [him] access the portal and it still didn’t work.” 

DISCUSSION 

In considering requests for relief under FRCP 60(b)(1), the Commission applies the 

framework set out in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 

(1993): 

[T]he determination is at bottom an equitable one, taking account of all relevant 

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

2

 The return receipt for the judge’s show cause order shows that it was delivered to an agent for 

the company on May 17, 2021, but it is unclear from the receipt who signed for the mailing. 

3

 We note that the record does not contain a withdrawal of appearance from Laura O’Reilly. 
3 

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

judicial 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. 

Northwest Conduit Corp., 18 BNA OSHC 1948, 1951 (No. 97-0851, 1999). In addition, to prevail 

on such a motion for relief, the moving party must allege a meritorious defense. Id. at 1951. 

Here, the claims made in Respondent’s letter suggest that it may mistakenly believe the 

Commission and OSHA are one and the same. See Arch-Tech Constr., No. 19-1922, 2020 WL 

5880240, at *1 (OSHRC Sept. 25, 2020) (noting pro se litigant’s confusion about whom to contact 

regarding Commission proceedings); see also A A Plumbing, Inc., 20 BNA OSHC 2203, 2204 

(No. 04-1299, 2005); Action Grp., Inc., 14 BNA OSHC 1934, 1935 (No. 88-2058, 1990) (citations 

omitted). Indeed, although mailed to the Commission, the company’s “Late Notice of Contest” 

letter was directed “To Osha” and more than once seems to incorrectly refer to the Commission’s 

electronic filing system (EFS) as the “Osha portal.” In addition, we note that the inspection number 

listed in Respondent’s letter appears to relate to a different set of contested citations previously 

docketed in the Commission’s EFS several years ago—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 EFS. See Occupational Safety and Health Review Commission, 

Electronic Case Filing – Policy and Procedure Guide (2019) https://www.oshrc.gov/assets/1/6/C

ommission_E-File_System_Guide_-_FINAL_2-21.PDF. Finally, it is not clear from the record 

what filings Respondent has received in this matter given that the return receipt for the judge’s 

show cause order does not show who signed for it on the company’s behalf and the Secretary’s 

motion for default judgment does not indicate whether counsel conferred with Respondent prior 

to filing it, as required by Commission Rule 40(d), 29 C.F.R. § 2200.40(d). See A A Plumbing, 

20 BNA OSHC at 2204 (noting the Secretary’s failure to confer with a pro se litigant when setting 

aside the judge’s default order). 

Under these circumstances, we set aside the judge’s order and remand this case to the judge 

to consider whether Respondent is entitled to relief under FRCP 60(b)(1). Specifically, the judge 

should 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. See Elan Lawn & Landscape Serv., Inc., 22 BNA OSHC 1337, 1338 (No. 08-0700, 2008) 

(remanding case to judge to consider evidence to determine whether FRCP 60(b) relief may be 
4 

granted); Architectural Glass & Metal Co., 19 BNA OSHC 1546, 1548 (No. 00-0389, 2001) 

(same). 

SO ORDERED. 

 

 /s/ 

 Cynthia L. Attwood 

 Chairman 

 /s/ 

 Amanda Wood Laihow 

Dated: December 29, 2021 Commissioner 
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. 

 

ORDER OF DEFAULT FOR FAILURE TO FILE AN ANSWER

On February 18, 2021, following an inspection of a worksite, the United States Occupational 

Safety and Health Administration (“OSHA”) issued three Citations and Notifications of Penalty 

(“Citations”) to Knock Out Homes Incorporated (“Respondent”) for alleged violations of the 

Occupational Safety and Health Act. The Citations, which resulted from OSHA inspection number

1498015, 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 one-item 

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. 

The Citations were mailed to Respondent at 408 Franklin Avenue, Troy, Illinois. On March 

15, 2021, Mr. Kevin Rodger Long, whose relationship to Respondent is not clear from the instant 

record, filed a Notice of Contest with OSHA challenging the Citations on behalf of Respondent. 

The Secretary does not argue that the Notice of Contest was untimely. 
2 

After receiving the Notice of Contest, the Commission mailed a Notice of Docketing and 

Instructions to Employer (“Notice of Docketing”) to Respondent’s office in Troy, Illinois. The 

Notice of Docketing included a guide to the Commission’s procedures and a postcard that was to 

be returned to the Commission to verify Respondent had complied with the employee posting 

requirements of Commission Rule 7 for the Citations and Notice of Contest. See 29 C.F.R. 

§ 2200.7. To date, this postcard has not been returned to the Commission. 

The Secretary filed his Complaint on March 29, 2021. The Certificate of Service for the 

Complaint indicates it was filed in the Commission’s e-filing system and was served on Mr. Long 

by email. Respondent was required to respond to the Complaint within 21 days of service. 29 

C.F.R. § 2200.34(b)(1). To date, Respondent has not filed an Answer or otherwise responded to 

the Complaint. 

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. The Show Cause Order was served 

on Respondent electronically through the Commission’s e-filing system. Additionally, 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 served via Certified Mail was returned to the Commission on May 26, 2021, 
3 

and indicates it was served on an agent of Respondent on May 17, 2021.1 The copy of the Show 

Cause Order sent by First-Class Mail was not returned to the Commission’s office and is therefore 

presumed to have been delivered by the Postal Service. See In re Nimz Transp., Inc., 505 F.2d 177, 

179 (7th Cir. 1974); Lavelle Constr., 19 BNA OSHC 1149, 1151 n.4 (No. 99-1921, 2000) (view of 

Chairman Rogers). 

On August 3, 2021, the Secretary filed a Motion for Default Judgment. The Secretary’s 

motion notes that the period set forth in the Show Cause Order has passed without Respondent 

having filed an Answer. The Secretary therefore seeks dismissal of the Notice of Contest and 

requests that the penalty amounts set forth in the Citations be affirmed. The Certificate of Service 

for the Secretary’s motion indicates it was served on Respondent electronically through the 

Commission’s e-filing system as well as by First-Class Mail to Respondent’s office in Troy, Illinois. 

Respondent filed no response to the Secretary’s Motion for Default Judgment. 

The Commission expects a business to maintain “orderly procedures for handling important 

documents.” Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (citations 

omitted). A Commission judge has very broad discretion in imposing sanctions for noncompliance 

with the judge’s orders or the Commission’s Rules of Procedure. See Sealtite Corp., 15 BNA 

OSHC 1130, 1134 (No. 88-1431, 1991). However, the Commission has long held that dismissal is 

too harsh a sanction for failure to comply with certain prehearing orders unless the record shows 

contumacious conduct by the noncomplying party, prejudice to the opposing party, or a pattern of 

disregard for Commission proceedings. See Architectural Glass & Metal Co., 19 BNA OSHC 

1546, 1547 (No. 00-0389, 2001). 

1 The signature block of the return receipt reads as follows: “229404 C19”.
4 

The undersigned finds the conduct of Respondent to be contumacious and demonstrative of 

a pattern of disregard for these proceedings. Over two months have passed since the deadline of 

the Show Cause Order and yet no response or Answer has been filed, despite Respondent having 

been served the Show Cause Order by three different methods. Neither has Respondent filed any 

response to the Secretary’s Motion for Default Judgment, which was served on Respondent by both 

e-mail and First-Class Mail. Indeed, no one has filed anything with regard to this matter on behalf 

of Respondent since March 15, 2021, when Respondent filed its Notice of Contest. The 

undersigned therefore finds that this matter has been abandoned. Cf. Sealtite Corp., 15 BNA 1130 

(88-1431, 1991) (contumacious conduct established where party engaged in a “consistent pattern” 

of failure to respond to judge’s orders).

For these reasons, Respondent is found to be 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.2

 __/s/Covette Rooney_______________ 

 Covette Rooney 

 Chief Judge, OSHRC

Dated: September 27, 2021 

 Washington, D.C. 

2 As this Order of Default grants all the relief sought in the Secretary’s Motion for Default Judgment, it accordingly 

resolves the Secretary’s motion.