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).1 

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 selfdescribed 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[.]”2

 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: 

1 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). 

2 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. 

 
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).3

 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 

3 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.

 
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).

4

 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 

4 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). 

 
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