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. 18-1225 

O’HARRA’S COMPLETE PLUMBING 

SERVICE, LLC, 

Respondent. 

APPEARANCES: 

Susan J. Willer, Attorney; H. Alice Jacks, Associate Regional Solicitor; Christine Z. Heri, 

Regional Solicitor; Kate S. O’Scannlain, Solicitor of Labor; U.S. Department of Labor, 

Office of the Solicitor, Kansas City, MO 

For the Complainant 

Jamie O’Harra; O’Harra’s Complete Plumbing Service, LLC, Topeka, KS 

For the Respondent 

DIRECTION FOR REVIEW AND REMAND ORDER 

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners. 

BY THE COMMISSION: 

An order issued by Chief Administrative Law Judge Covette Rooney approving an 

informal settlement agreement between O’Harra’s Complete Plumbing Service, LLC and the 

Secretary was docketed on August 15, 2018. O’Harra’s filed a petition for discretionary review 

of the Judge’s order on September 4, 2018. For the following reasons, we direct this case for 

review and remand for further proceedings consistent with this order. 

The Occupational Safety and Health Administration issued a citation to O’Harra’s on 

May 1, 2018. The record does not establish when O’Harra’s received the citation, so we are 

unable to determine the date on which the 15-day period for filing a notice of contest expired. 

See 29 U.S.C. § 659(a); Commission Rule § 2200.33, 29 C.F.R. § 2200.33. However, it appears 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

that the contest period had expired by the time the Commission received, on July 27, 2018, a 

letter from O’Harra’s, dated July 20, 2018, contesting the citation. In the letter, Jamie O’Harra 

claims he should be exempt from OSHA standards because he had no employees and that he felt 

pressured into signing the settlement agreement.1 

We consider the July 20 letter filed by O’Harra’s to be a late notice of contest. Absent a 

timely notice of contest, the Commission lacks any authority to act. See 29 U.S.C. § 659(a) 

(failure to file a timely notice of contest results in citation and proposed penalty becoming a final 

order of the Commission “not subject to review by any court or agency”). Therefore, by 

operation of law, an uncontested or untimely contested citation and proposed penalty must be 

deemed a final order of the Commission, unless entitlement to relief is demonstrated under 

Federal Rule of Civil Procedure 60(b).

2 See 29 U.S.C. § 661(g) (Commission proceedings 

conducted in accordance with Federal Rules of Civil Procedure unless Commission has adopted 

different rule); Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) (late 

notice of contest may be excused under Rule 60(b)). As such, we also construe the July 20 letter 

as a motion for Rule 60(b) relief from a final order. 

In light of our reading of the July 20 letter, we remand the matter to the judge to consider 

whether O’Harra’s is entitled to Rule 60(b) relief, which if found warranted would also result in 

1 On August 3, 2018, the Secretary filed a motion seeking an extension of time to file a motion to 

vacate the late notice of contest. The judge has not ruled on the Secretary’s motion. 

2 Federal Rule of Civil Procedure 60(b) states: 

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. 

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a decision that the settlement agreement was erroneously approved. The mutually-executed 

settlement agreement may be relevant to the issue of whether O’Harra’s is entitled to that relief. 

Accordingly, we set aside the judge’s order approving the settlement agreement and 

remand for consideration of whether relief from a final order is warranted. 

SO ORDERED. 

/s/ 

Heather L. MacDougall 

Chairman 

/s/ 

Cynthia L. Attwood 

Commissioner 

/s/ 

James J. Sullivan, Jr. 

Dated: September 11, 2018 Commissioner 

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United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC DOCKET NO. 18-1225 

O’HARRA’S COMPLETE PLUMBING 

SERVICE, LLC, 

Respondent. 

ORDER 

APPROVING STIPULATED SETTLEMENT 

The Commission has jurisdiction over the subject matter of the case and over the parties 

by virtue of the filing of a timely notice of contest. 

The stipulated settlement between the parties filed on May 24, 2018 has been considered. 

The parties certify that affected employees were properly notified of the settlement on May 24, 

2018. No objection to the settlement has been filed. 

The settlement is approved under 5 U.S.C. § 554(c)(1) and Commission Rule 100.1 The 

terms of the stipulated settlement are incorporated, in their entirety, by reference in this order. 

/s/ 

COVETTE ROONEY 

Chief Judge, OSHRC 

Dated: August 13, 2018 

Washington, D.C. 

1 Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R. §§ 

2200.1-.212 (1991).