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. 10-2333
RICHARD KAPOSY d/b/a TREEMAN 
LANDSCAPING, and its successors,
 
                      Respondent.

 

 
 

 
APPEARANCES:
Michael P. Doyle, Esquire, U.S. Department of Labor, Office of the Solicitor, Philadelphia, 
Pennsylvania 
       For the Complainant 
       Richard Kaposy, Jr., pro se, Aliquippa, Pennsylvania                
                        For the Respondent 
ORDER
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:    
      Respondent, appearing pro se, has filed a letter asking the Commission to reopen this 
case, which became a final order on April 7, 2011.  For the reasons stated below, we construe 
Respondent?s letter as a motion for relief under Federal Rule of Civil Procedure 60(b)(6) and 
refer the matter to Administrative Law Judge John H. Schumacher for him to rule on the motion.
?
BACKGROUND
      On October 19, 2010, after investigating a workplace fatality in Bethel Park, 
Pennsylvania, the Occupational Safety and Health Administration issued Respondent three 
citations alleging a number of violations of the Occupational Safety and Health Act of 1970, 29 
U.S.C. ?? 651-678, and proposing penalties totaling $119,700.  Richard Kaposy, appearing for 
the Respondent, timely contested the citations and penalties.  On January 5, 2011, after the 
parties had filed their initial pleadings, the case was assigned to the Commission?s Settlement 
Part, as required by Commission Rule 120(b), 29 C.F.R. ? 2200.120(b).  
      Judge Schumacher, who was designated the Settlement Judge for this case, scheduled a 
mandatory settlement conference with the parties on February 3, 2011, in Pittsburgh, 
Pennsylvania.  See Commission Rules 120(b)(2), 120(d), 29 C.F.R. ?? 2200.120(b)(2), 120(d).  
At some point during that conference, Mr. Kaposy decided to withdraw his notice of contest.  
According to a letter filed with the judge on February 8, 2011, by Julie Mullaney, a self-
described witness for Mr. Kaposy, a ?verbal agreement [was] reached through mediation 
overseen by OSHRC Judge John H. Schumacher on the morning of 2/3/11 [at] the informal 
conference conducted in . . . Pittsburgh[.]?   In the letter, which accompanied Mr. Kaposy?s 
Withdrawal of Notice of Contest, Ms. Mullaney states that it is her ?sincere desire that all parties 
involved are confident and assured of the deep gratitude and appreciation this agreement brings 
with it from Mr. Kaposy.?  On February 11, 2011, the judge issued an order approving the 
withdrawal of Respondent?s notice of contest.  The order states that the citations are affirmed and 
?[t]he total penalty associated with the affirmed Citations amounts to $119,700.?  The order was 
docketed with the Commission?s Executive Secretary on March 8, 2011, and became a final 
order of the Commission on April 7, 2011.      
      On September 13, 2012, the Commission?s Executive Secretary received documents from 
Mr. Kaposy that included a letter asking ?for reconsideration [and] opening this case back up.?  
In the letter, Mr. Kaposy makes the following claims:
I was told by Judge Schumacher that I had 2 choices. Plan (A) 
which was a trial, Plan (B) was to withdraw my [contest]. He 
assured me it would go away over a period of time.  Meaning the 
fines against me. I took his word on that.  He said not to open or 
look at any paper work that I got in the mail.  I trusted him and 
took his word as a Federal Judge.  Now 18 months have passed and 
he did nothing of the sort. My OSHA fines are in collections with 
[the] Department [of] Treasury. 
Mr. Kaposy also asserts that the judge?s statement to him can be verified by a witness in 
attendance at the settlement conference. 
DISCUSSION
      In certain circumstances, relief from a final order may be sought under Federal Rule of 
Civil Procedure 60(b).   Because Mr. Kaposy?s letter came more than a year after the judge?s 
order became final, relief under reasons (1), (2), and (3) of Rule 60(b) is not available to 
Respondent.  See Rule 60(c)(1) (requiring that a motion seeking relief under these three reasons 
be made ?no more than a year after the entry of the judgment or order or the date of the 
proceeding?).  And reasons (4) and (5) do not apply here.  But a late filing may be excused under 
Rule 60(b)(6), ?for any other reason that justifies relief[,]? such as when ?absence, illness, or a 
similar disability prevent[s] a party from acting to protect its interests.?  Branciforte Builders, 9 
BNA OSHC 2113, 2116-17, 1981 CCH OSHD  25,591, p. 31,922 (No. 80-1920, 1981).  ?A 
party seeking relief under Rule 60(b)(6) must show ?extraordinary circumstances? suggesting 
that the party is faultless in the delay.?  Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P?Ship, 507 
U.S. 380, 393 (1993) (internal citation omitted).  ?A showing of extraordinary circumstances 
involves a showing that without relief from the judgment an extreme and unexpected hardship 
will result.?  Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008).  
      The party seeking relief under Rule 60(b) has the burden of demonstrating that it is 
entitled to relief.  Burrows Paper Co., 23 BNA OSHC 1131, 1132, 2009-2012 CCH OSHD 
 33,064, p. 54,574 (No. 09-1559, 2010).  In this case, Mr. Kaposy is not represented by legal 
counsel and, based on the current record, appears unaware of how to proceed.  Under these 
circumstances, we construe his letter asking for reconsideration as a formal motion to set aside 
the final order under Rule 60(b)(6).  See Bywater Sales & Serv., Byco -MCS Div., 13 BNA 
OSHC 1268, 1269, 1986-1987 CCH OSHD  27,896, p. 36,597 (No. 86-1214, 1987) (treating 
pro se employer?s unsworn letter as a request for a formal motion).  And because none of the 
representations made in Mr. Kaposy?s letter, the other materials he has submitted with that letter, 
and Ms. Mullaney?s letter, can be accepted as fact, we refer this matter to Judge Schumacher for 
him to rule on the motion.  See Dore & Assocs. Contr.  Inc., 19 BNA OSHC 1438, 1439, 2001 
CCH OSHD  32,369, p. 49,698 (No. 01-0067, 2001) (remanding to allow judge to conduct 
appropriate evidentiary proceeding).
      The judge shall (1) provide the Secretary with an opportunity to respond to Mr. Kaposy?s 
letter; (2) take evidence in the form of sworn affidavits from all those persons who attended the 
February 3, 2011, settlement conference; and (3) determine upon consideration of these 
affidavits, his own recollection of the settlement conference, and any other evidence as he deems 
necessary, whether Mr. Kaposy is entitled to relief under Federal Rule 60(b)(6).   If the judge 
determines that Mr. Kaposy is entitled to relief, he shall grant such relief and submit the case to 
the Chief Judge for further appropriate action.  See Commission Rule 120(f)(2), 29 C.F.R. 
? 2200.120(f)(2).   If the judge determines that Mr. Kaposy is not entitled to relief, he shall issue 
an order setting forth the reasons for his ruling and submit it to the Executive Secretary.  At that 
time, Mr. Kaposy may file a petition for discretionary review of the judge?s ruling.  See 
Commission Rule 91(b), 29 C.F.R. ? 2200.91(b).

SO ORDERED.
      
      
      /s/					
      Thomasina V. Rogers
      Chairman

      
      
      /s/					 
      Cynthia L. Attwood
Dated: 	March 6, 2014					Commissioner 
	

  Under Rule 120(b), an employer-contested case with an aggregate penalty of over $100,000 is 
assigned to mandatory settlement proceedings.  29 C.F.R. ? 2200.120(b)(1).
  Ms. Mullaney states in the letter that she and Mr. Kaposy, along with Barbara Dennis, were in 
attendance at the settlement conference for Respondent.  For the Secretary, she identifies 
Michael Doyle, Robert Szymanski, and a ?Mr. Vance? as being in attendance. 
  Federal Rule 60 governs ?Relief from a Judgment or Order? and subsection (b), as relevant 
here, states:
 (b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. 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;
(2) newly discovered evidence that, with reasonable diligence, could not have been 
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 
misconduct by an opposing party;
   (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier 
judgment that has been reversed or vacated; or applying it prospectively is no longer 
equitable; or
   (6) any other reason that justifies relief.
  Under the Commission?s rules governing Settlement Part, ?[a]ll statements made and all 
information presented during the course of settlement proceedings under this section shall be 
regarded as confidential and shall not be divulged outside of these proceedings except with the 
consent of the parties.?  Commission Rule 120(d)(3), 29 C.F.R. ? 2200.120(d)(3).  Likewise, the 
Settlement Judge is prohibited from ?divulg[ing] any statements or information presented during 
private negotiations with a party or his representative during settlement proceedings except with 
the consent of that party.?  Id.  In considering Mr. Kaposy?s motion, we authorize the judge to 
waive the requirements of the Settlement Part Rules where necessary to address the narrow 
question presented here.  See Commission Rule 107, 29 C.F.R. ? 2200.107 (permitting waiver of 
rules in special circumstances after notice to parties).