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.: 18-1194 & 18-1195 

Apollo Auto Sales & Service, Inc.,

 Respondent.

On Pleadings:

Jennifer J. Johnson, Esq.

Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

For Complainant

Apollo Auto Sales & Service, Inc., Houston, Texas

For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission on a late 

notice of contest filed with the Commission on July 25, 2018, by Apollo Auto Sales & Service, 

Inc. (Apollo Auto). The Court construes Apollo Auto’s late notice of contest as a request for relief 

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (Rule 60(b)). On October 15, 2018, 

the Secretary of Labor, United States Department of Labor (Secretary) filed an Opposition to the 

request for Rule 60(b) relief. 

For the reasons that follow, Apollo Auto’s request for relief pursuant to Rule 60(b)(1) is 

DENIED.

Background

This matter arises out of an inspection of Apollo Auto’s jobsite located at 2218 North Loop 

W., Houston, Texas by the Occupational Safety and Health Administration (OSHA) during the 

period January 9, 2018 through January 18, 2018. As a result of the inspection, on February 16, 

2018, the Secretary issued a Citation and Notification of Penalty (Citation) alleging a serious 

violation of section 5(a)(1) of the Act, and two serious violations of the standards promulgated 
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under section 5(a)(2) of the Act. The Citation also alleges an other-than-serious violation. 

Penalties in the total amount of $6,652.00 were proposed for the alleged violations. 

The Citation also provides Apollo Auto had 15 working days from the date of receipt to 

contest the Citation. The Citation initially was mailed to Apollo Auto by first class mail, however 

it was returned “undeliverable.” OSHA then sent the Citation to Apollo Auto by United Parcel 

Service (UPS), and it was delivered on March 6, 2018 (Opposition, Exh. A, ¶ 2; Exh. A, attachment 

2). As a result of the March 6, 2018, delivery date, excluding weekends and Federal holidays, the 

15-day contest period expired on March 27, 2018. Apollo Auto did not file a Notice of Contest

within the 15-day contest period. Therefore, the Citation became a Final Order of the Commission 

under § 10(a) of the Act, as of the end of the contest period. On May 1, 2018, OSHA requested 

abatement documentation and notified Apollo that the Citation had become final on March 27, 

2018. 

OSHA conducted a follow up inspection of Apollo Auto’s cited worksite on May 9, 2018. 

As a result of the follow up inspection, on May 17, 2018, OSHA issued a Notification of Failure 

to Abate Alleged Violations (Failure to Abate) regarding the violation previously issued on 

February 16, 2018, as a serious violation of section 5(a)(1) of the Act; and proposed a penalty in 

the amount of $25,868.00 for the Failure to Abate violation. OSHA hand delivered the Failure to 

Abate notification to Apollo Auto Sales’ manager, Stacy Williams on May 18, 2018 (Opposition, 

Exh. A, ¶ 6). The Failure to Abate provides Apollo had 15 working days from receipt to contest. 

The fifteen-day period for contesting the Failure to Abate expired on June 11, 2018. Apollo Auto

did not file a Notice of Contest within the 15-day contest period. Therefore, the Failure to Abate 

became a Final Order of the Commission under § 10(a) of the Act, as of the end of the contest 

period.1

As set forth in its July 25, 2018 Request for Relief, Apollo Auto disputes the citations, 

charges and penalties, stating that it considers OSHA’s actions as “very harsh.” Apollo Auto also 

 

1 On June 29, 2018, OSHA issued an other-than-serious Citation to Apollo Auto proposing a penalty in the amount of 

$311.00. Apollo Auto timely contested the June 29, 2018 Citation. The Commission’s Executive Secretary docketed 

the matter as OSHRC Docket No. 18-1193. On December 11, 2018, Judge Brian Duncan issued a Decision affirming 

the Citation and assessing the proposed penalty due to Apollo Auto failing to appear on a scheduled Simplified 

Proceedings Conference Call and failing to respond to his Order to Show cause for not appearing. The Decision 

became a Final Order of the Commission on January 28, 2019.
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provided in the filing the name and telephone number for attorney Afton Izen, advising that Ms. 

Izen would contact OSHA to resolve the matter.2

DISCUSSION

Pursuant to the requirements of the Act, an employer is required to notify the Secretary of 

its intent to contest (Notice of Contest) a Citation within 15 working days of receipt. Failure to 

timely file a Notice of Contest results in the Citation becoming a final order of the Commission by 

operation of law. Apollo Auto’s contest was filed with the Commission on July 25, 2018, (nearly 

four months after receiving the Citation, and approximately six weeks after receiving the Failure 

to Abate), outside of the requisite 15-day period set out in the Act. 

An employer who has filed an untimely Notice of Contest may be granted relief under Rule 

60(b) in certain circumstances. George Harms Constr. Co. v. Chao, 371 F.3d 156 (3d Cir. 2004). 

A late filing may be excused under Rule 60(b)(1) if the final order was entered as a result of 

“mistake, inadvertence, surprise or excusable neglect.” A late filing also may be excused under 

Rule 60(b)(3), if the late filing was caused by the Secretary’s “deception or failure to follow proper 

procedures.” See Branciforte Builders, Inc., 9 BNA OSHC 2113, 2116-17 (No. 80-1920, 1981); 

B.J. Hughes, Inc., 7 BNA OSHC 1471, 1476 (No. 76-2165, 1979); Keppel’s Inc., 7 BNA OSHC 

1442, 1443-44 (No. 77-3020, 1979). In addition, 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 at 2117. 

The moving party has the burden of proving it is entitled to relief under Rule 60(b). Apollo Auto 

has failed to provide sufficient proof that it is entitled to relief.

In determining whether the late filing of a Notice of Contest may be found to be due to 

“excusable neglect” under Rule 60(b)(1), the equitable analysis enunciated by the Supreme Court 

in Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership 507 U.S. 380 (1993) is 

applicable. George Harms Constr. Co., supra. In Pioneer the Court held that “excusable neglect” 

is determined based upon equitable considerations that take into account all relevant 

circumstances, and includes consideration of the following factors: (1) the danger of prejudice to 

the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the 

 

2 Ms. Izen has not filed a Notice of Appearance in this matter. On November 6, 2018, Ms. Izen advised the Court 

that she would not be representing Apollo Auto in this matter. 
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reason for the delay, including whether it was within the reasonable control of the party seeking 

relief, and (4) whether the party seeking relief acted in good faith. Id. at 395; see also Northwest 

Conduit Corp., 18 BNA OSHC 1948, 1951 (No. 97-851, 1999). “[N]either a lack of prejudice to 

the Secretary nor good faith on the part of Respondent in attempting to comply with the statutory 

filing requirement alone will excuse a late filing.” Prime Roofing Corp., 23 BNA OSHC 1329 (No. 

07-1409, 2010). 

The Commission has held that whether the reason for the delay was within the control of 

the respondent is a “key factor” in determining the presence of “excusable neglect.” A. S. Ross, 

Inc., 19 BNA OSHC 1147 (No. 99-0945, 2000); See also Calhar Constr., Inc., 18 BNA OSHC 

2151 (No. 98-0367, 2000). A party seeking relief under Rule 60(b)(6) “must show ‘extraordinary 

circumstances’ suggesting that the party is faultless in the delay.” 

Where a party is partly to blame for the delayed filing, relief from the final order must be 

sought under Rule 60(b)(1) and the party’s neglect must be excusable. See Pioneer Investment 

Serv., 507 U.S. at 393. The Commission requires an employer to exercise due diligence before it 

will find excusable neglect. Keefe Earth Boring Company, Inc., 14 BNA OSHC 2187, 2192 (No. 

88-2521, 1991); Craig Mechanical, 16 BNA OSHC at 1763. 

It is the Secretary’s burden to establish service of the Citation. Apollo Auto does not 

dispute the Citation was served. It also is not disputed that Apollo Auto did not contest the Citation

and Failure to Abate within the requisite time periods. Apollo Auto’s contest letter was received 

by Commission on July 25, 2018, well after the final contest due dates. Therefore, by operation of 

law, the Citation, Failure to Abate and proposed penalties must be deemed Final Orders of the 

Commission, unless Apollo Auto can demonstrate it is entitled to relief. 

The Court finds Apollo Auto has not demonstrated it is entitled to relief. Neither the record 

evidence nor Apollo Auto’s explanations for its late filing show deception or a failure to follow 

proper procedures on behalf of the Secretary. Apollo Auto received the Citation and the Failure 

to Abate. Both unambiguously provide in conspicuous typeface that Apollo Auto had 15 working 

days after receipt within which to file a notice of contest. Therefore, the Court finds the Secretary 

did not engage in deception and followed proper procedures in this matter. 

The only reason Apollo Auto has provided to the Court for the delay is that it considers 

OSHA’s actions to be “very harsh.” This provides insufficient basis for the Court to conclude that 

the reason for the delay was not under Apollo Auto’s control. Therefore, the Court finds the delay 
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was within Apollo Auto’s control. The Court finds that Apollo Auto failed to exercise due 

diligence and was simply negligent in failing to file contests before the expiration of the contest 

periods. The Commission has long held an employer’s 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., 15 BNA OSHC 1123, 1126 (No. 

88-2291, 1991). 

Apollo Auto has not provided the Court evidence regarding any good faith efforts to timely 

contest. However, the Secretary asserts in his motion Apollo represented it was unable to respond 

because of preoccupation with personal family medical issues (Opposition, p. 7). The record does 

not demonstrate that Apollo Auto made any efforts prior to the statutory filing deadline or 

immediately after, regarding the Citation or Failure to Abate. Therefore, the Court finds that 

Apollo Auto did not make a good faith effort to comply. 

The Court also finds that Apollo Auto has not alleged a meritorious defense, which is also 

required for relief. An employer must also establish the presence of a meritorious defense for Rule 

60(b)(1) relief. Northwest Conduit Corp. 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, 16 BNA 

OSHC 1261, 1267 (No. 91-0438, 1993). 

The Secretary has not argued that he is prejudiced by the late filing. Therefore, the Court 

finds the Secretary is not prejudiced by the late filing. However, a lack of prejudice to the 

Secretary, alone, will not excuse a late filing. Prime Roofing Corp., 23 BNA OSHC 1329 (No. 

07-1409, 2010).

 The final consideration is the impact of the delayed filing on the judicial proceedings. 

The delayed filing in this matter would not adversely impact the proceedings. 

Having considered all factors enunciated in Pioneer, relief from the Final Order in this 

matter is not warranted. Apollo Auto’s control over the delay and its lack of good faith are 

determinative. Apollo Auto has not shown “extraordinary circumstances” suggesting that it is 

faultless in the delay” as required for relief under Rule 60(b)(6). 
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FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the Findings of Fact and Conclusion of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

 ORDER 

Therefore, for the reasons set forth herein, Apollo Auto’s request for relief pursuant to Rule 

60(b)(1) is HEREBY DENIED. The Final Orders for the Citation and the Failure to Abate are 

undisturbed and are AFFIRMED.

SO ORDERED. 

 /s/

Dated: February 14, 2019 Administrative Law Judge

 Atlanta, Georgia