United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 16-2010 

FRAME Q, LLC, 

Respondent.

DECISION AND ORDER GRANTING SECRETARY’S MOTION TO DISMISS

RESPONDENT’S LATE NOTICE OF CONTEST

This matter is before the Occupational Safety and Health Review Commission (the 

Commission) under section 10(a) of the Occupational Safety and Health Act of 1970 (the Act), 

codified at 29 U.S.C. § 651. On February 27, 2017, the Secretary of Labor (Secretary) filed a 

Motion to Dismiss Respondent’s Late Notices of Contest (Motion to Dismiss).

1

 On March 20, 

2017, Respondent filed its opposition to the Secretary’s Motion to Dismiss. On September 18, 

2017, the undersigned held a hearing to supplement the record. Thereafter, on October 18, 2017, 

the Secretary filed a Motion to Reopen the Record Based on Newly Discovered Evidence and to 

Admit Evidence into the Record (Motion to Reopen). On October 23, 2017, Respondent filed its 

opposition to the Secretary’s Motion to Reopen. As a preliminary matter, the Secretary’s Motion 

 

1 Although this decision only addresses case docket no. 16-2010, the Secretary’s Motion to Dismiss covers this case 

along with related case docket nos. 16-2011, 16-2012, 16-2013, 16-2014 and 16-2015. None have been 

consolidated. On September 11, 2017, the undersigned issued a Decision and Order Granting the Secretary’s 

Motion to Dismiss Respondent’s Late Notice of Contest for case docket no. 16-2015. That decision became a final 

Order on October 25, 2017. 
2 

to Reopen is DENIED. It would be fundamentally unfair and highly prejudicial to admit this 

newly discovered evidence into the record without another supplemental hearing to give 

Respondent the opportunity to cross examine such evidence. Additionally, the undersigned finds 

that the evidence of record provides a sufficient basis for a decision on the Secretary’s Motion to 

Dismiss. For the reasons that follow, the Secretary’s Motion to Dismiss case docket no. 16-2010 

is hereby GRANTED.

Background2

Respondent, Frame Q, LLC (Respondent or Frame Q), is a construction company with 

worksites all over the Northern New Jersey Area. Tr. 34. Frame Q uses a residence as its 

business address. Id. The Occupational Safety and Health Administration (OSHA) Area Office 

located in Hasbrouck Heights, NJ conducted five inspections of Frame Q’s various worksites 

across Northern New Jersey from February 24, 2015, to December 22, 2015. 

As a result of an inspection of Respondent’s worksite at 27 Maple Ave. in Mahwah, New 

Jersey 07430 on February 24, 2015, OSHA issued a Citation that included: Serious Citation 1, 

Item 1; Willful Citation 2, Item 1; and Repeat Citation 3, Item 1 with total proposed penalties in 

the amount of $20,680.00. Ex. A to Motion to Dismiss. On June 22, 2015, the OSHA office 

sent a copy of the Citation to Respondent, via United States Postal Service (USPS) certified mail 

(tracking number 7014 3490 0001 1526 3859), to Respondent’s residence and business address 

located at 200 B Commercial Ave., Palisades, NJ 07650 (known business address). Ex. A to 

Motion to Dismiss. The Citation advised Respondent that its Notice of Contest (NOC) was due 

within 15 working days from receipt. However, it is unclear when the Citation was received by 

 

2 The background information is based on the Secretary’s Motion to Dismiss, supporting memorandum of law, and 

the exhibits attached thereto along with the evidence of record from the September 18, 2017, supplemental hearing. 

During the supplemental hearing, one document was moved and admitted into evidence without objection. It was a 

copy of the OSHA Area Director’s affidavit (the same affidavit submitted in support of the Secretary’s Motion to 

Dismiss). The affidavit was marked and is herein referenced as GX-1. 
3 

Respondent because the USPS tracking sheet appended to the Secretary’s Motion to Dismiss lists 

the package as “in transit to destination” on June 26, 2015, with no further updates. Ex. A to

Motion to Dismiss. Neither the package or its green card were returned. GX-1. OSHA then 

mailed the Citation package, via, USPS first-class mail. Id. That package was not returned 

either. Id. On September 15, 2015, OSHA sent Respondent a delinquency letter indicating that 

payment of the proposed penalties was past due, and interest was accruing under the Debt 

Collections Act. Ex. A to Motion to Dismiss. 

 On or about November 29, 2016, the Commission received a letter from Respondent’s 

Attorney (dated November 23, 2016) contesting the Citation package at issue long after the NOC 

was due.3

 Notably, the reason given, in this letter, for the delay in filing the NOC was that 

Respondent, Juan Quevedo, “did not fully understand OSHA rule and regulations”. 

Discussion

Section 10(a) of the Act requires an employer to notify OSHA within 15 working days of 

receiving a citation of its intent to contest the citation and/or proposed penalty. 29 U.S.C. § 659 

(a). Failure to do so results in the citation becoming a final order of the Commission “and not 

subject to review by any court or agency.” Id. The Commission derives its authority to grant 

relief from a final order from Rule 60(b) of the Federal Rules of Civil Procedure (Rule 60(b)). 

Jackson Assocs. of Nassau, 16 BNA OSHC 1261, 1263 (No. 91-0438, 1993).4

 

Rule 60(b)(6) justifies relief from operation of judgment for “any other reason” other 

than Rules 60(b)(1)-(5). Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir. 1994). 

 

3 Respondent’s NOC purported to contest case docket numbers: 16-2010; 16-2011; 16-2012; 16-2013; and 16-2014 

along with docket no. 16-2015 which has already been adjudicated. 4 The Second Circuit, which has appellate jurisdiction over this case, has held that section 10(a) of the Act precludes 

the Commission from applying Rule 60(b) to excuse a late NOC. Chao v. Russell P. LeFrois Builder, Inc., 291 F.3d 

219 (2d Cir. 2002). However, the Commission has followed the holding of the Third Circuit that section 10(a) is not 

a bar to Commission review and that it “has jurisdiction to entertain a late notice of contest under” the excusable 

neglect standard of Rule 60(b). See George Harms Constr. Co. v. Chao, 371 F.3d 156, 161 (3d Cir. 2004). 

Applying either interpretation of section 10(a) to this case doesn’t change the outcome.
4 

This rule is a “catch all” provision, which requires a showing of “extraordinary circumstances.” 

Klapprott v. United States, 335 U.S. 601, 604-609 (1949). Rule 60(b)(6) is a “catch-all” 

provision that is narrowly interpreted. See, e.g., Dowell v. State Farm Fire & Cas. Co., 993F.2d 

46, 48 (4th Cir. 1993). “Rule 60(b)(6) . . . grants federal courts broad authority to relieve a party 

from a final judgment . . . provided that the motion . . . is not premised on one of the grounds for 

relief enumerated in clauses (b)(1) through (b)(5).” Liljeberg v. Health Servs. Acquisition Corp., 

486 U.S. 847, 864 (1988). The rule has been described as a “grand reservoir of equitable power 

to do justice in a particular case.” See Compton v. Alton Steamship Co., 608 F.2d 96, 106 (4th 

Cir. 1979) (quoting 12 James Moore et. al., Moore’s Federal Practice ¶ 60.48[1](3d ed. 2017)); 

see also Wesco Prods. Co. v. Alloy Auto. Co., 880 F.2d 981, 983 (7th Cir. 1989). The 

Commission has applied Rule 60(b)(6) in setting aside final judgments under circumstances such 

as “absence, illness, or similar disabilit[ies] [that] prevent[s] a party from acting to protect its 

interests.” Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981). The 

movant has the burden of demonstrating that it is entitled to relief. Additionally, a movant 

seeking relief under Rule 60(b) must also demonstrate the existence of a meritorious defense.5

 

Nw. Conduit Corp., 18 BNA OSHC 1948, 1951 (No. 97-851, 1999). The meritorious element 

can be “satisfied with minimal allegations that the employer could prove a defense if given the 

opportunity.” Jackson Assocs., 16 BNA OSHC at 1267.

Rule 60(b)(6) “vests power in courts adequate to enable them to vacate judgments 

whenever such action is appropriate to accomplish justice.” See e.g., Klapprott, 335 U.S. at 615 

(upholding Rule 60(b)(6) motion for inmate party who was poor, ill, and, therefore, unable to 

 

5

The Second Circuit has held that “[i]n order to make a sufficient showing of a meritorious defense in connection 

with a motion to vacate a default judgment, the defendant need not establish his defense conclusively, but he must 

present evidence of facts that, if proven at trial, would constitute a complete defense.” SEC v. Robert J. McNulty, 

137 F.3d 732, 740 (2d Cir. 1998).
5 

oppose denaturalization proceeding in a timely manner); accord Liljeberg, 486 U.S. at 864

(finding judge’s conflict of interest undiscoverable by parties).

This “catch-all” provision, however, does not grant courts with unfettered discretion to 

set aside a judgment in all cases. Klapprott, 335 U.S. at 615. Before a court grants a Rule 

60(b)(6) motion, the moving party must prove the following two elements: (1) that there are 

reasons for relief other than those set out in more specific clauses of Rule 60(b); and (2) that 

there is a valid reason or an extraordinary circumstance justifying relief. Id. As a matter of 

policy, courts are seeking to preserve a balance between serving the ends of justice and ensuring 

that litigation reaches an end within a finite period of time. See, e.g., Paddington Partners 34 

F.3d at 1144; see also Bankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970) 

(promoting the “sanctity of final judgments”); Toscano v. C.I.R., 441 F.2d 930-34 (9th Cir. 1971) 

(stating that “finality of judgments . . . is an important social interest”). Here, Respondent, Juan 

Quevedo, claims that he didn’t receive the Citation package because it was delivered to the 

wrong address. Tr. 52. If true, his failure to timely contest the Citation cannot be analyzed under

of Rule 60(b)(1)-(5). Rather, Respondent’s stated basis for relief is properly analyzed under Rule 

60(b)(6).

Extraordinary Circumstances

The “other reason that justifies relief” provision requires a showing of “extraordinary 

circumstances” for a court to grant relief. Liljeberg, 486 U.S. at 863-64. This provision exists to 

balance the broad power vested in the court pursuant to Rule 60(b)(6) and the interest in the 

finality of judgments. Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008). The term 

“extraordinary circumstances” derives from two cases, one in which relief was granted, 

Klapprott, 335 U.S. 601, 604-09 (1949), and the other in which relief was denied, Ackermann v. 
6 

United States, 340 U.S. 193, 195-97 (1950). In Klapprott, the Supreme Court granted a party 

60(b)(6) relief, by ordering that a denaturalization proceeding be set aside nearly four (4) years 

after it was entered. Klapprott, 335 U.S. at 604-609. The denaturalization judgment was 

rendered by default because the movant never appeared. Id. During the denaturalization 

proceeding, the movant was ill, penniless, and had been imprisoned prior to his receipt of the 

denaturalization complaint. Id. As a result, the movant was unable to appear and defend himself 

in the civil denaturalization proceeding. Id. The Court reasoned that the movant’s allegations 

constituted an extraordinary circumstance and could not “logically be classified as mere ‘neglect’ 

on his part.” Id. The Court stated that the movant—jailed, weakened with illness, and without a 

lawyer in the denaturalization proceedings or the funds to secure one—was unable to defend 

himself in court. Id. at 613-14. One year later, the Supreme Court denied 60(b)(6) relief to a 

movant who failed to appeal judgment from denaturalization proceedings in which he was 

represented by counsel. Ackerman, 340 U.S. at 195-197. In so doing, the Court distinguished its 

decision in Ackerman from that in Klapprott noting the difference was “choice and no choice, 

imprisonment and freedom of action; no trial and trial; no counsel and counsel; [and] no chance 

for negligence and inexcusable negligence.” Ackerman, 340 U.S. at 202. More recently, the 

Supreme Court held that a district court’s denial of petitioner’s motion under Rule 60(b)(6) was 

an abuse of discretion after finding that petitioner clearly established ineffective assistance of 

counsel in a capital murder case. Buck v. Davis, 580 U.S. __, 137 S.Ct. 759 (2017). 

The Commission has also decided cases dealing with Rule 60(b)(6) jurisdiction. 

Consistent with the Supreme Court’s analysis, the Commission has held that a party seeking 

relief under Rule 60(b)(6) has the burden of persuasion that there are “extraordinary 
7 

circumstances showing that the employer is faultless in the delay.” Treeman Landscaping, 25 

BNA OSHC 2048, 2048 (No. 10-2333, 2016). 

Although Respondent, Juan Quevedo, cannot prove that he did not receive the Citation 

package, in order to show “extraordinary circumstances” warranting relief under Rule 60(b)(6), 

he must, at a minimum, show that he played no role in causing his NOC to be filed late. 

Sufficiency of Service

The Commission has consistently held § 10(a) of the Act governs service of citations. 

B.J. Hughes, Inc., 7 BNA OSHC 1471, 1474 n. 6 (No. 76-2165, 1979). It requires the Secretary 

to “notify the employer by certified mail of the penalty...”. It provides no more specificity. In 

B.J. Hughes, the Commission addressed the Secretary’s obligation under § 10(a), holding that the 

test to be applied in determining whether service is proper is whether the service is reasonably 

calculated to provide an employer with knowledge of the citation and notification of proposed 

penalty and an opportunity to determine whether to abate or contest. B.J. Hughes, 7 BNA OSHC 

at 1474. In the case at bar, the evidence reflects that the Citation package was mailed through 

USPS certified mail return receipt requested. GX-1. The Citation package was mailed to 

Respondent’s known business address. Ex. A to Motion to Dismiss. However, neither the 

package nor receipt were returned. As a follow-up, OSHA mailed the Citation package a second 

time using regular mail. Tr. 23-24. 

In Powell v. Commissioner, 958 F.2d 53, 54 (4th Cir. 1992) the court held that, in the 

absence of evidence to the contrary, it is reasonable to presume that the United States Postal 

Service officials have properly discharged their duties. Normally, the fact that OSHA mailed the 

Citation packages using the Postal Service would entitle it to a presumption of delivery 
8 

regardless of Respondent’s assertion of non-receipt. See Rosenthal v. Walker, 111 U.S. 185, 193 

(1884), that notes 

If a letter properly directed is proved to have been either put into the post-office or 

delivered to the postman, it is presumed, from the known course of business in the 

post-office department, that it reached its destination at the regular time, and was 

received by the person to whom it was addressed.

However, the common law mailbox rule presumption is rebuttable with evidence that the letter 

was never received. Rios v. Nicholson, 490 F.3d 928, 931 (Fed. Cir. 2007). “If there is opposing 

evidence that the letter was not received, the trier of fact must weigh the evidence ‘with all the 

other circumstances of the case’ to determine whether the letter was actually received.” Tatum v. 

MSPB, 482 F. App’x. 554, 556 (Fed. Cir. 2012) (unpublished) (citing Rios v. Nicholson, 490 F.3d 

at 931 (2007)). Juan Quevedo testified that he only received one Citation Package (16-2015). 

Tr. 51. The reason Mr. Quevedo gave for receiving only one Citation is that he moved from his 

known business address and residence to which the Citations at issue were sent to 315 7th Street 

in Fairview, NJ on or about July 4, 2015. Tr. 51-52. Although Mr. Quevedo conceded that he 

did not forward his mail to the new address through the Postal Service, he claimed that he 

informed OSHA of his new address. Tr. 52. However, Mr. Quevedo’s claim of notification to 

OSHA is controverted by two OSHA Compliance Officers (CO). CO Howard Dixon testified 

that he conducted an inspection of a Frame Q worksite on December 22, 2015, months after Mr. 

Quevedo said he moved. Tr. 38. During that inspection, CO Dixon had a conversation with Mr. 

Quevedo, by phone, in which he was given the known business address in Palisades Park. Tr. 

38-39. CO Sydenstricker testified that he too conducted an inspection of a Frame Q worksite in 

2015. Tr. 44. At that time, he spoke to Mr. Quevedo, in person, and was also given the known
9 

business address.6

 Tr. 45-46. OSHA Area Director, Lisa Levy testified that she had no 

information regarding an address for Frame Q other than the one in Palisades Park. Tr. 25. The 

weight of the evidence does not support Mr. Quevedo’s claim that he informed OSHA of his new 

address in Fairview, NJ, neither does it rebut the presumption that USPS delivered or attempted

to deliver the Citation package.

Mr. Quevedo admitted, under oath, that he did not forward his mail to the new address by 

filing a change of address form with the USPS. Tr. 52. He went on to claim that he almost 

doesn’t receive mail which, if true, is likely a result of his failure to forward his mail. Id. Mr. 

Quevedo’s decision not to forward his mail is inconsistent with the Commission’s expectations 

of how responsible employers should handle such matters. See La.-Pac. Corp., 13 BNA OSHC 

2020, 2021 (No. 86-1266, 1989) (holding that the Commission expects employers to maintain 

orderly procedures for handling important documents). Clearly, failing to forward mail to a new 

address falls short of an “orderly procedure” for receiving or handling important documents such 

as Citation packages. Also, Mr. Quevedo testified that he had relatives still living at the old 

address (200 B Commercial Ave., Palisades Park, NJ) after he moved to Fairview, NJ. Tr. 53. 

His mom lived in the old address after he moved as did his sister. Tr. 55-56. According to Mr. 

Quevedo, his sister forwards mail to him although she never told him that she received any mail 

from OSHA. Tr. 56. 

Although the facts of the case before the court are not on point with those in the 

Ackerman case, the rationale used by the Court in Ackerman sheds light on whether 

“extraordinary circumstances” exists here. As in Ackerman, Mr. Quevedo’s fate rests on his own 

 

6 When Mr. Quevedo spoke to CO Sydenstricker, the two conversed in Spanish. Tr. 57. This is important because 

Mr. Quevedo used the assistance of a Spanish interpreter at the hearing. However, it was clear to the undersigned 

that Mr. Quevedo understands some English based on the number of times, during the hearing, he attempted to 

answer questions without the aid of the interpreter. 
10 

choices. Mr. Quevedo could have chosen to forward his mail by filing a change of address form 

with the USPS. However, he chose not to do so. In the absence of such a formal and orderly 

process to ensure receipt of work-related mail, Mr. Quevedo could have informed OSHA of his 

new address when he moved. He chose not to do so. Mr. Quevedo could have set up a separate 

post office box for receipt of his work-related mail. The evidence does not reflect that he took 

that route either. At the very least, receipt of the first Citation package (16-2015) should have 

put Mr. Quevedo on notice that he might receive future communications from OSHA regarding 

those violations. However, Mr. Quevedo chose not to act. Respondent has failed to establish 

extraordinary circumstances to warrant relief under Rule 60(b)(6). The intervening factors make 

such a grant of relief to one who chose to forego his right to receive notice inequitable. Finally, 

Respondent has not asserted that it has a “meritorious defense”. Accordingly, the undersigned 

finds that the Secretary properly served the Citation to Respondent at his known business 

address. However, Respondent failed to act and the Citation at issue became a final Order by 

operation of law. 

 

 /s/Keith E. Bell

 Keith E. Bell

 Judge, OSHRC 

Dated: February 5, 2018

Washington, D.C.