UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

______________________________________ 

Paul Simkus, ) 

 ) 

Affected Employee Mr. Simkus, ) 

 ) 

v. ) OSHRC Docket No. 15-1756

 ) 

Secretary of Labor, ) Petition for Modification of 

) Abatement Period Per 29 C.F.R. 

Respondent, ) § 2200.38

 ) 

 IBT Local Union 781, ) EXPEDITED PROCEEDING 

 ) PER 29 C.F.R. § 2200.103

Authorized Employee Representative, ) 

 ) 

United Airlines, Inc., ) 

 ) 

Party. ) 

CONSOLIDATED 

______________________________________

Secretary of Labor, ) 

 ) 

Complainant, ) 

 ) 

v. ) OSHRC Docket No. 15-2019

 ) 

United Airlines, Inc., ) 

) 

Respondent, ) 

 ) 

 Paul Simkus, ) 

 ) 

Party, ) 

 ) 

IBT Local Union 781, ) 

 ) 

Authorized Employee Representative. ) 

ORDER GRANTING SECRETARY’S MOTION TO DISMISS AFFECTED 

EMPLOYEE’S CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION, 

DENYING THE SECRETARY’S MOTION FOR A PROTECTIVE ORDER AS MOOT, 

AND DENYING MR. SIMKUS’ MOTION FOR SANCTIONS 

Some personal identifiers have been redacted for privacy purposes
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I. FACTS 

On about March 23, 2015 and May 23, 2015, United Airlines, Inc. (United) employee, 

Paul Simkus (Mr. Simkus), filed complaints with the Occupational Safety & Health 

Administration (OSHA) against United for alleged violations of asbestos abatement during 

renovation or remodeling of classrooms 8101, 8103, 8104, and 8105 (and other places) in 

United’s Training Center located at 1200 East Algonquin Road, Elk Grove, Illinois (United’s 

Training Center). 

OSHA conducted Inspection No. 1049817 of United’s Training Center between March 

30, 2015 and September 21, 2015. [redacted] issued two citations under the Occupational 

Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (the OSH Act), consisting of three 

items to United on September 28, 2015 as result of its inspection. The first citation included 

two items, both Serious. Item 1 was for a failure to keep necessary records concerning the 

presence, location, and quantity of asbestos-containing material or presumed asbestoscontaining material for classrooms 8101, 8103, 8104, and 8105 of the subject facility.1

 Item 2 

was for a failure to clean up spills and sudden releases of material containing asbestos in 

 

1

 Citation 1, Item 1, states: 

Type of Violation: Serious

29 CFR 1910.100l(j)(2)(ii): Installed Asbestos Containing Material. Building and facility owners did

not maintain records of all information required to be provided pursuant to this section and/or

otherwise known to the building owner concerning the presence, location and quantity of ACM and

PACM in the building/facility.

a) United Airlines Inc. - The employer did not ensure that records of all information concerning the

presence, location and quantity of ACM and PACM in the building/facility for classrooms 8101,

8103, 8104 and 8105 were maintained. 

In accordance with 29 CFR 1903.19(d), abatement certification is required for this violation (using the 

CERTIFICATION OF CORRECTIVE ACTION WORK.SHEET), and in addition, documentation

demonstrating that abatement complete must be included with your certification. This document may

include, bet is not limited to, evidence of the purchase or repair of the equipment photographic or video

evidence of abatement, or other written records.

Date by Which Violation Must be Abated: 11/16/2015 
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classrooms 8103 and 8104 as soon as possible.2 Citation 1, Item 2, did not identify when the 

alleged spills and sudden releases of material containing asbestos occurred. OSHA also cited 

United for failure to maintain certain training records at Citation 2, Item 1. 

The Citation and Notification of Penalties required United to abate the cited 

conditions by November 16, 2015. The Citation and Notification of Penalties also 

included a “Notice to Employees” that stated:

The law gives an employee or his/her representative the opportunity to object to any abatement 

date set for a violation if he/she believes the date to be unreasonable. The contest must be mailed 

to the U.S. Department of Labor Area Office at the address shown above and postmarked within 

15 working days (excluding weekends and Federal holidays) of the receipt by the employer of

this Citation and Notification of Penalty. (emphasis added). 

OSHA held an informal conference with United on October 8, 2015 wherein United 

provided OSHA with verification that all of the cited conditions had been abated. United 

acknowledged that the records related to asbestos removal in the training classrooms identified 

in the first citation were missing, and that the records could not be reconstructed. United 

provided additional evidence that it had initiated a comprehensive asbestos survey for all 

 

Proposed Penalty: $7000.00

2 Citation 1, Item 2, states 

Type of Violation: Serious

29 CFR 1910.1001(k)(2): All spills and sudden releases of material containing asbestos were not

cleaned up as soon as possible.

a) United Airlines Inc. - Releases of material containing asbestos in classrooms 8103 and 8104 were

not cleaned as soon as possible.

In accordance with 29 CFR 1903.19(d), abatement certification isrequired for this violation (using 

the CERTIFICATION OF CORRECTIVE ACTION WORKSHEET), and in addition, 

documentation demonstrating that abatement complete must be included with your certification. 

This document may include, bet is not limited to, evidence of the purchase or repair of the equipment 

photographic or video evidence of abatement, or other written records.

Date by Which Violation Must be Abated: 11/16/2015 

Proposed Penalty: $7000.00 
- 4 -

buildings at the subject facility. United further indicated at the informal conference that 

classrooms 8103 and 8104 were subject to renovation in October, 2014. The contractor for the 

October, 2014 renovation, according to United, stated that it removed fiberglass insulation 

from those classrooms. United further stated that the classrooms were closed in May, 2015 in 

response to employee concerns, and that it hired a second contractor to find and remove any 

asbestos-containing debris, which the second contractor did in May, 2015, roughly two months 

after OSHA opened its inspection. Finally, United provided verification that all but two 

maintenance employees received training, that those employees would be trained, and that it 

now has a system to track training requirements for maintenance employees. OSHA 

considered these measures adequate abatement for all of the subject citations and items. 

 On October 15, 2015, [redacted] received a facsimile from Mr. Simkus, with a 

petition dated October 12, 2015, with a subject line ''Notice of Request to Contest and 

Participate."3 In his October 12, 2015 Petition, Mr. Simkus “contest[ed]” the proceedings 

and OSHA’s investigative findings “in its entirety.” He further stated that he contested 

“OSHA’s the [sic] investigative findings and abatement plan designed by OSHA, it is 

completely inaccurate, insufficient and highly unreasonable.” (emphasis in bold in the 

original).4 

 

3

 In the Petition’s “Re” line, Mr. Simkus referred to Inspection No. 1049817, and his two earlier complaints to 

OSHA by number. 

4

 On about October 19, 2015, Mr. Simkus submitted to OSHA a “Notice of Contest to all Citations and Proposed 

Penalties.” The Notice’s “Re” line also referred to Inspection No. 1049817, and his two earlier complaints to 

OSHA by number. Mr. Simkus requested “to invoke party status.” Mr. Simkus repeated the matters he had 

contested in his October 12, 2015 petition and “contest[ed]” the proceedings and OSHA’s investigative 

findings “in its entirety.” He further stated that he contested “OSHA’s the [sic] investigative findings and 

abatement plan designed by OSHA, it is completely inaccurate, insufficient and highly unreasonable.” 

(emphasis in bold in the original). In his Response to the Secretary’s November 6, 2015 Motion to Dismiss, 

Mr. Simkus characterized his October 19, 2015 notice as an “Amended Petition and Notice of Contest” and as 

an “Amended Notice of Contest and Petition to OSHA’s proposed abatement plan and dates for citation 1, item 
- 5 -

 By letter dated October 19, 2015, the International Brotherhood of Teamsters (IBT) 

and its Local Union 781 informed the Occupational Safety and Health Review Commission 

(Commission) that they wished to elect party status in the matter pertaining to OSHA 

Inspection No. 1049817. They are the authorized bargaining agent for United’s employees 

and the Authorized Employee Representative (AER). This letter was received by the 

Commission on October 22, 2015. 

 On October 20, 2015, United submitted its Notice of Contest to the Citations and 

Notifications of Penalty for the violations alleged by OSHA to have occurred at United’s 

Training Center. United’s Notice of Contest stated: “Respondent contests each and every 

alleged citation, item, classification, proposed penalty, abatement date and proposed method 

of abatement.” OSHA received United’s Notice of Contest on October 20, 2015. 

 On October 21, 2015, [redacted] forwarded Mr. Simkus’ October 12, 2015 Petition 

to the Commission. Mr. Simkus’ October 12, 2015 Petition was received by the 

Commission on October 21, 2015. 

 On October 22, 2015, the Commission docketed Mr. Simkus’ October 12, 2015 

Petition as Paul Simkus, Affected Employee, v. Secretary of Labor, Respondent, Docket No. 

15-1756. 

On October 22, 2015, [redacted] timely filed OSHA’s statement of reasons the 

abatement period was not unreasonable with the Commission. See Commission Rule 38(a); 

29 C.F.R. § 2200.38(a). [redacted] indicated “on October 8, 2015, the employer [United] 

provided OSHA with written abatement documentation for each violation.” 

 

1, citation 1, item 2 and citation 2, item 1.” 
- 6 -

By Order dated October 27, 2015, Chief Judge Covette Rooney granted the AER’s 

request for party status in OSHRC Docket No. 15-1756.

By Order dated October 29, 2015, the Court set a Pre-Hearing Scheduling Conference 

to be conducted on November 3, 2015 in Docket No. 15-1756. 

 On October 30, 2015, Mr. Simkus timely filed his response to OSHA’s Statement of 

Reasons (Response to OSHA’s Statement of Reasons). See Commission Rule 38(b); 29 

C.F.R. § 2200.38(b). He objected “to the proposed abatement plan and abatement period 

designed by OSHA it is unreasonable because the abatement plan was based on false 

information that was procured through fraud which will continue to cause United Airlines 

employees and others to be exposed to airborne asbestos.” He stated that he objected “to the 

abatement plan and abatement dates in its entirety” for a myriad of reasons outlined in Mr. 

Simkus’ Response to OSHA’s Statement of Reasons. He asserted that he contested OSHA’s 

proposed abatement date and abatement plan. He again requested to invoke “Party Status.” 

 By letter to the Chief Judge and the Court dated November 2, 2015, United elected 

party status in Docket No. 15-1756. 

 The court held a recorded pre-hearing conference call on November 3, 2015 during 

which all four parties participated. During the November 3, 2015 conference, the Court stated 

that it was not going to set a hearing date in Docket No. 15-1756; and instead was giving the 

Secretary the opportunity to file by November 6, 2015 his Motion to Dismiss for the various 

reasons addressed by the Secretary and United during the conference. 

On November 6, 2015, Respondent, Thomas E. Perez, Secretary of Labor, U.S. 

 
- 7 -

Department of Labor (Secretary or Secretary of Labor), filed his Motion to Dismiss 

Employee’s Petition for Modification of Abatement Period (November 6, 2015 Motion to 

Dismiss). 

On November 24, 2015, the Commission received United’s Notice of Contest of the 

citations. On that date, the Commission docketed the matter as Secretary of Labor, 

Complainant, v. United Airlines, Inc., Respondent, in Docket No. 15-2019. 

On about December 1, 2015, Mr. Simkus filed his Response and Opposition to 

Respondent’s Motion to Dismiss Employee’s Petition For Modification of Abatement Plan and 

Request for A Hearing (Resp. to November 6, 2015 Motion to Dismiss). 

On December 3, 2015, the Court GRANTED, IN PART, and DENIED, IN PART, 

WITH PREJUDICE, the Secretary’s November 6, 2015 Motion to Dismiss. The Court 

dismissed with prejudice all of the claims and allegations Mr. Simkus made in his petition in 

Docket No. 15-1756 that are outside the scope of the OSH Act and the Commission rules for 

employee contests pertaining to the reasonableness of the abatement date. These included Mr. 

Simkus’ contest of: 1) any alleged OSHA decision to exclude Mr. Simkus from the October 8, 

2015 conference, 2) these proceedings in general, 3) OSHA’s investigative findings, 4) the way 

OSHA conducted its inspection and investigation, and 5) the proposed abatement plan.5 The 

Court ruled it had no jurisdiction to hear such claims. Only Mr. Simkus’ contest of the 

reasonableness of the period of abatement remained.

 The Court further found: 1) Mr. Simkus has standing to file his notice of contest since he 

is an “affected employee”, 2) Mr. Simkus’ Notice of Contest is not subject to dismissal to the 

extent it contests the reasonableness of the period of abatement set forth in the citations at issue, 
- 8 -

and 3) Mr. Simkus’ Notice of Contest contesting the reasonableness of the period of 

abatement is not moot.6 The Court further ordered that the parties to this action shall meet and 

confer and advise the Court by December 21, 2015 on whether or not Docket No. 15-1756 and 

United’s contest, Docket No. 15-2019, should be consolidated for discovery and trial purposes. 

 On December 3, 2015, the Secretary of Labor filed his complaint in Docket No. 15-2019.

 On December 7, 2015, Mr. Simkus elected party status in Docket No. 15-2019.

On December 11, 2015, IBT Local 781 filed a request for party status as the AER in 

Docket No. 15-2019.

 During a pre-hearing scheduling conference call in Docket No. 15-2019 conducted on 

December 21, 2015, the Secretary and United advised the Court that they did not object to the 

Court consolidating Docket Nos. 15-1756 and 15-2019 for discovery and hearing purposes.7 

Neither Mr. Simkus nor IBT Local Union 781 advised the Court by December 21, 2015 on 

whether or not Docket Nos. 15-1756 and 15-2019 should be consolidated for discovery and 

trial purposes. The Secretary of Labor and United Airlines also indicated that they had no 

objection to Mr. Simkus or IBT Local 781 obtaining party status in Docket No. 15-2019.

 On December 22, 2015, the Court granted party status to Mr. Simkus in Docket No. 15-

2019.

 

5

 The Court also ruled the Commission lacked jurisdiction to adjudicate any alleged violations of criminal statutes. 

6 The Court determined that Mr. Simkus’ only remaining cognizable claim that the abatement period was 

unreasonable was not moot because United had contested the citation, including the abatement date, in the 

employer contest case (Docket No. 15-2019) and that the eventual abatement date, if any, could be extended 

depending on the outcome of that case. (Dec. 3, 2015 Order, at p. 18). The Court concluded that Mr. Simkus’ 

claim was not moot so long as he could challenge “the reasonableness of whatever abatement date, if any, 

eventually arises concerning these citations.” (Id.). This court also noted that the order did not take into account 

the effect of any eventual settlement agreement between the Secretary and United. (Id., at p. 18 n. 24).

7

 The Secretary and United also informed the Court that they had reached a settlement in Docket No. 15-2019.
- 9 -

 On December 23, 2015, the Secretary and United were ordered to submit their proposed 

settlement agreement to the Court within thirty days.

 On December 29, 2015, the Court granted IBT Local 781 party status as the AER in 

Docket No. 15-2019. 

On December 30, 2015, the Court ordered Docket Nos. 15-1756 and 15-2019

consolidated for discovery and hearing purposes; including date, time, duration, and place of any 

hearing. 

On January 25, 2016, the Secretary of Labor and United submitted their executed 

settlement agreement for the Court’s review and approval (proposed January 25, 2016 settlement 

agreement). The proposed January 25, 2016 settlement agreement includes a provision that 

states that conditions alleged in the amended Citations and Notification of Penalties have been 

abated. The Secretary of Labor stated that IBT Local Union 781 had no input to, and did not 

oppose, the settlement agreement. IBT Local Union 781 elected not sign the proposed January 

25, 2016 settlement agreement. The Secretary of Labor also stated that Mr. Simkus provided 

input to the proposed settlement agreement that OSHA considered, but chose not to accept. Mr. 

Simkus elected not to sign the proposed January 25, 2016 settlement agreement. 

On February 4, 2016, the Secretary of Labor advised the Court that the proposed January 

25, 2016 settlement agreement did not include the statement required by 29 C.F.R. §

2200.100(b) when an affected employee with party status objects to the reasonableness of the 

abatement dates. The Secretary of Labor advised the Court of his willingness to submit a 

revised settlement agreement reflecting Mr. Simkus’ objection if the Court prefers. 

On February 9, 2016, Mr. Simkus filed his Objection to the Secretary of Labor’s 

proposed January 25, 2016 Settlement Agreement and Simkus’ Motion for the Court to Issue 
- 10 -

an Order Scheduling this Matter for Hearing (Simkus Objection and Motion for Scheduling 

Order). In it, Mr. Simkus noted his objection to the proposed January 25, 2016 settlement 

agreement and the reasons why he objected. He asserted that “the abatement periods are 

completely unreasonable and no abatement has occurred [emphasis in the original].” He 

further alleged that the settlement agreement resulted in him and other affected employees 

being harmed by causing them to remain in a zone of danger. He also alleged that the 

Secretary of Labor denied his requests for discovery.8

 Mr. Simkus asserted that as a party to 

the employer-initiated case at Docket No. 15-2019 he can now challenge all matters related to 

the citations. Mr. Simkus requested: 1) a scheduling Order to allow the cases to proceed to a 

hearing, 2) an order requiring the Secretary of Labor to comply with his requests for discovery, 

and 3) a telephone conference with the Court to address his objections to the Settlement 

Agreement. 

In its Order Re: Employee Simkus’s Objection to the Secretary of Labor’s [proposed 

January 25, 2016] Settlement Agreement and Simkus’s Motion for the Court to Issue an Order 

Scheduling This Matter for Hearing, dated February 11, 2016, the Court: 1) ordered the 

Secretary of Labor to promptly submit a revised settlement agreement reflecting Mr. Simkus’ 

objection to the settlement agreement as required by 29 C.F.R. § 2200.100(b), 2) denied Mr. 

Simkus’ request that the Court issue a scheduling Order to allow the cases to proceed to a 

hearing as moot, 3) denied without prejudice Mr. Simkus’ motion for an order requiring the 

Secretary to comply with his discovery requests,9

and 4) scheduled a telephone pre-hearing 

 

8

 Mr. Simkus alleged that his discovery requests to the Secretary of Labor for pleadings, OSHA’s investigation file, 

and abatement documents including: a) certifications of corrective action worksheets, b) comprehensive asbestos 

survey(s), and c) documents that describe the means and methods used by United to abate each citation violation, 

were ignored. 

9

 The Court allowed Mr. Simkus to renew his motion to compel discovery after he meets and confers with the 
- 11 -

conference with the parties pursuant to Commission Rule of Procedure 51, 29 C.F.R. § 2200.51 

(2013), to discuss a specific schedule in preparation for and the conduct of the hearing in these

matters. 

On February 17, 2016, the Secretary conferred with Mr. Simkus and advised him that the 

Secretary and United would be filing a substantively identical settlement agreement with the 

additional notice of Mr. Simkus’ previous objections to the reasonableness of the abatement 

period. 

On February 17, 2016, the Secretary and United filed an updated version of the 

settlement agreement signed by the Secretary and United on February 16, 2016 (Updated 

Settlement Agreement).10 In the cover letter accompanying the Updated Settlement 

Agreement, the Secretary and United stated: 

Consistent with U.S. Department of Labor policy and applicable case law, all 

parties were provided the opportunity to provide input into the final settlement 

agreement and to sign it. The Union had no input and did not oppose the 

agreement, including the reasonableness of the abatement time. Mr. Simkus 

provided input, which was considered by OSHA, and ultimately determined to be 

outside the scope of the instant settlement agreement and litigation, and what is

permitted by law. Mr. Simkus did raise an objection to the reasonableness of the 

abatement time notwithstanding the fact that both the Secretary and the employer 

in this matter agree that the conditions cited in the citations at issue have already 

been abated. 

The Updated Settlement Agreement states (in part): 

III.

Respondent wholly withdraws its Notice of Contest to the Citations and 

Notification of Penalties as amended herein, including its contest of the abatement 

method and period. 

Respondent makes the following representations and assurances to Complainant: 

 

parties and complies with Court’s certification requirements regarding motion filings. 

10 Neither the Union nor Mr. Simkus elected to sign the Updated Settlement Agreement. 
- 12 -

a. The conditions alleged in the amended Citations and Notification of 

Penalties have been abated. 

b. Respondent is currently complying, and in the future will continue to 

comply with all applicable provisions of the Occupational Safety and Health Act, and the 

applicable safety and health standards promulgated pursuant to the Occupational Safety

and Health Act. 

 c. Within 30 days of the full Execution of this Stipulation and Settlement 

Agreement, Respondent shall pay in full the proposed total penalty of $12,000.00.... 

 IV

Based upon the assurances and representations by Respondent set forth above, 

Complainant has no objection to the withdrawal of the Notice of Contest and considers 

the violative conditions cited in the amended citation to be abated. 

V

Except for these proceedings, and matters arising out of these proceedings, and 

any other subsequent OSHA proceedings between the parties, none of the foregoing 

agreements, statements, findings, and actions taken by Respondent shall be deemed an

admission by the Respondent of the allegations contained within the Citations and 

Notifications of Penalty and the Complaint. The agreements, statements, findings, and 

actions taken herein are made for the purpose of compromising and settling this matter 

economically and amicably, and they shall not be used for any other purpose 

whatsoever, except as herein stated....

VII

The Complainant and the Respondent agree that an order should be entered which:

a. Amends the Citations and Notifications of Penalty, as set forth above.

 b. Allows Respondent to withdraw its Notice of Contest to the Citations and 

Notifications of Penalty, as amended herein. 

 c. Affirms the Citations and Notifications of Penalty, as amended, as a final and 

enforceable order of the Review Commission, and affirms the penalty in the amount 

proposed with no costs, fees or other expenses to be assessed or awarded to any of the 

parties in this litigation....

 

On February 22, 2016, Mr. Simkus filed a document styled as “Employee Simkus’s 

Objection to the Secretary of Labor’s [Updated] Settlement Agreement and Simkus’s Motion 

for the Court to Issue an Order Scheduling this Matter for Hearing” (Simkus Objections to 

the Updated Settlement Agreement). Mr. Simkus made many of the same objections that he 
- 13 -

had previously raised in his employee contest case, Docket No. 15-1756.

11

 He rejected the 

Updated Settlement Agreement “in its entirety” and insisted “the Secretary withdraw the 

proposed settlement agreement....” (Id., at p. 2). He asserted that the abatement periods 

were “completely unreasonable” and “no abatement has occurred.” (Id.). 

On February 24, 2016, the Court conducted a pre-hearing scheduling conference.

On February 26, 2016, the Court issued its order scheduling a hearing beginning on 

June 21, 2016. 

On March 21, 2016, the Secretary filed his Motion to Dismiss Affected Employee’s 

Claims for Lack of Subject Matter Jurisdiction (Motion to Dismiss). The Secretary requests, 

pursuant to Commission Rules 2(b) and 40, 29 C.F.R. §§ 2200.2(b) and 2200.40, and Rule 12(b)(1) 

of the Federal Rules of Civil Procedure, an order dismissing Mr. Simkus’ claims associated with 

Docket Nos. 15-1756 and 15-2019 as moot and outside of the Commission’s subject-matter 

jurisdiction. The Secretary seeks an order approving the Updated Settlement Agreement and 

cancelling the June 21, 2016 hearing. The Secretary asserts Mr. Simkus’ claims should be 

dismissed in their entirety since his only remaining claim, which relates to the reasonableness the of 

abatement date, is moot because OSHA considers all cited violative conditions in the subject 

Citation and Notification of Penalty abated and United wholly withdrew its associated Notice of

Contest in Docket No. 15-2019 pursuant to the Updated Settlement Agreement. The Secretary 

further asserted there is no proposed abatement period at issue because he considers the violative 

 

11 In Simkus Objections to the Updated Settlement Agreement, he stated “[t]he reasons Simkus objected to 

the abatement periods in OSHRC Docket No. 15-156 [sic] are the same reasons why he objects to the abatement 

periods in the Secretary’s [updated] settlement agreement because the abatement periods are completely 

unreasonable and no abatement has occurred. Simkus also objects on grounds not previously available to him.” 

(emphasis in original) (Simkus Objections to the Updated Settlement Agreement at p. 2).
- 14 -

conditions abated and affected employees may not challenge the Secretary’s determination violative 

conditions are abated. 

On March 21, 2016, the Secretary also filed his Motion for Protective Order that the 

Discovery not be had or, in the alternative, for Stay of Discovery Pending Decision on 

Secretary’s Motion to Dismiss (Motion for Protective Order). The Secretary seeks an order 

that discovery not be had in these matters, or alternatively that discovery be stayed until the 

Court issues its order relating to the Secretary’s Motion to Dismiss. The Secretary asserts the 

Commission now has no subject-matter jurisdiction over any of Mr. Simkus’ claims in either case 

and there is no discovery left to be conducted. 

On April 4, 2016, United filed its Response in Support for the Secretary’s Motion to 

Dismiss Consolidated Cases and Motion for Protective Order. United asserts that Mr. Simkus 

inappropriately seeks to thwart a settlement of these matters agreed to by the Secretary and 

United. United states that the hearing sought by Mr. Simkus is not permitted by the rules 

governing Commission proceedings and an affront to Congress’s grant of prosecutorial power 

to the Secretary of Labor. United argues that the Commission rules do not provide a procedure 

for employees or their representatives to challenge or contest the means or methods of abatement, 

nor do they allow for challenges with respect to the ultimate question of whether abatement has 

been accomplished. United states that the Updated Settlement Agreement eliminates Mr. Simkus’ 

only claim that remained following the Court’s December 3, 2015 order. United asserts that Mr. 

Simkus’ claims are moot and the consolidated matters should be dismissed. 

On April 4, 2016, Mr. Simkus filed his Affected Employee Simkus’s Motion for Sanctions 

 
- 15 -

Against the Complainant (“Secretary of Labor”) (Motion for Sanctions).12 Mr. Simkus seeks 

sanctions against the Secretary of Labor because the Secretary’s counsel is allegedly “guilty of 

unethical conduct” for attaching the Declaration of [redacted] to his Motion to Dismiss, and for 

allegedly refusing to provide Mr. Simkus any discovery, and for not providing Respondent’s answer 

to the Secretary’s Complaint in Docket No. 15-2019. Mr. Simkus alleges that [redacted] declaration 

is false. In his Motion for Sanctions, Mr. Simkus also states that he “strongly objects” to the 

Secretary’s Motion to Dismiss.13

 He asserts that his claim is not moot and the Court must allow him 

to present his objections over the unreasonableness of the abatement period because it is in the best 

interest of the public and affected employees. Mr. Simkus did not address any of the case law the 

Secretary or United cited in their filings. 

On April 12, 2016, the Secretary filed his Response to Affected Employee’s Motion for 

Sanctions. The Secretary asked the Court to deny Mr. Simkus’ Motion for Sanctions, characterizing 

it as “baseless.” The Secretary stated that he had asserted legitimate objections to Mr. Simkus’ 

written discovery requests and noted that Mr. Simkus had not filed a Motion to Compel discovery 

with the Court.14

 The Secretary further asserted that he had no duty to provide Mr. Simkus with a 

copy of United’s answer in Docket No. 15-2019; especially since United has never filed any answer 

in that case because the Secretary and United had advised the Court that they had reached a 

settlement before any answer was due. Lastly, the Secretary denied he, or anyone acting in his 

behalf, has made any false statements or otherwise engaged in any unethical conduct in these 

matters. The Secretary described Mr. Simkus’ accusations that [redacted] declaration was false as 

 

12 No meet and confer certification accompanied Mr. Simkus’ Motion for Sanctions. 

13 The Court considers Mr. Simkus’ Motion for Sanctions to include his response in opposition to the Motion to 

Dismiss. Mr. Simkus again failed to comply with Commission Rule 40(a) that states that “[a] motion shall not be 

included in another document such as a brief or a petition for discretionary review, but shall be made in a separate 

document.” See 29 C.F.R. § 2200.40(a).

14 The Secretary had also filed his Motion for Protective Order on March 21, 2016. 
- 16 -

“specious.” 

The Union does not oppose either the Motion to Dismiss or the Motion for Protective Order. 

II. DISCUSSION 

A. The Court lacks subject-matter jurisdiction over these cases, which are now moot. 

The filing of the Updated Settlement Agreement, together with OSHA’s determination that 

all of the violative conditions at issue in the citations are abated, render all of Mr. Simkus’ claims 

moot and divest the Commission of its jurisdiction over such claims. See St. John’s United 

Church of Christ v. City of Chicago, 507 F.3d 616, 626 (7th Cir. 2007) (“[W]hen the issues 

presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome, the 

case is (or the claims are) moot and must be dismissed for lack of jurisdiction.”) (citation and 

internal quotations omitted); see also Fed. R. Civ. P. 12(h)(3).15 Claims must remain live 

throughout litigation. Otherwise, the court must dismiss them as moot where the law or facts 

provide no ongoing cognizable claim or controversy. 

Affected employees may not challenge the Secretary’s determination in a settlement 

agreement that violative conditions have been abated. Am. Cyanamid, 647 F.2d 383, 385-88

(3rd Cir. 1981) (Commission lacked jurisdiction to consider a Union’s challenge to the fact of 

abatement where the settlement agreement asserted that the condition which led to the citation 

had already been abated); Oil, Chem., and Atomic Workers Int’l. Union v. OSHRC (Am. 

Cyanamid Co II), 671 F.2d 643, 650 (D.C. Cir. 1982) (“Thus, employees may not contest the 

representation of a settlement agreement that abatement has occurred.”) (citation omitted); see

also Heinz Pet Prods., 1998 CCH OSHD 31660 (No. 98-0558, O.S.H.R.C.A.L.J. Sept. 18, 

 

15 Rule 12(h)(3) states: 

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter 

jurisdiction, the court must dismiss the action. 
- 17 -

1998) (rejecting Union’s assertion that it was entitled to review underlying materials upon 

which the Secretary had based his assessment that all conditions were abated);16 Sec’y of 

Labor v. Calvin L. Sisson, 17 BNA OSHC 1528 (No. 95-1041, O.S.H.R.C.A.L.J. Sept. 15, 

1995) (dismissing employee objections as moot because employee cannot contest whether 

conditions have been adequately abated); L. H. Sowles Co., No. 2770, 1973 WL 4278, at * 9 

(O.S.H.R.C.A.L.J. Dec. 5, 1973) (consolidated) (the contest of the reasonableness of the 

abatement date was deemed to have become moot as of the time of hearing through the 

accomplishment of abatement prior to hearing). 

It is the Secretary’s “exclusive prosecutorial discretion” to issue a citation. Only the 

Secretary may determine that a hazardous or unsafe condition will be abated by

implementation of specific procedures. Mobil Oil Corp., 713 F.2d 918, 927 (No. 911, 2nd Cir. 

1983), Oil, Chem. and Atomic Workers Int’l. Union v. OSHRC, 671 F.2d at 650 (an employee 

“may not argue that a particular method of abatement would be inefficacious.”). The 

Secretary has not conceded its prosecutorial discretion to an affected employee because an

employer elects to contest a citation. “Prosecutorial discretion in the enforcement of the OSH 

Act is vested solely in the Secretary.” Boise Cascade Corp., 14 BNA OSHC 1993, 1995 (No. 

89-3087, 991) (consolidated) (discretion to settle a case pending before the Commission is the 

Secretary’s and Congress did not intend employees “to constitute a separate and distinct 

enforcement authority under the Act.”). The public rights created by the OSH Act are to be 

 

16 In Heinz Pet Prods., the then late Chief Judge Irv Sommer stated that the Third Circuit Court of Appeals in 

Marshall v. OCAW (Am. Cyanamid Co.), 647 F.2d at 387-88 (3rd Cir. 1981) had noted that a Commission decision 

refusing to approve a settlement agreement where the union claimed the cited condition had not been abated 

infringed upon the Secretary’s prosecutorial discretion and the union’s remedy, if it believed abatement had not 

occurred, was to file another complaint with the Secretary.). See 29 C.F.R. § 1903.11. An employee may also 

bring a writ of mandamus action in federal district court against the Secretary for his failure to enjoin an imminent 

danger at the employee’s workplace. 29 U.S.C. § 662(d). 
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protected by the Secretary. Mobil Oil Corp., 713 F.2d at 927. Enforcement of the OSH Act is 

the sole responsibility of the Secretary. (Id.; Oil, Chem. and Atomic Workers Int’l. Union v. 

OSHRC, 671 F.2d at 649 (same)). The Secretary has unfettered discretionary authority to 

withdraw or settle a citation issued to an employer. (Id.). Continuation of Commission 

proceedings after an employer has agreed to withdraw its notice of contest so that an 

employee may present objections at a hearing to a settlement agreement puts off the day when 

abatement should occur and prevents the Secretary from taking steps to compel abatement. 

(Id.). 

The Secretary and United have now reached settlement in Docket No. 15-2019. They 

have agreed that the violative conditions have been abated. United has withdrawn its Notice 

of Contest.17 The court must now dismiss all of Mr. Simkus’ remaining claims in both of 

these consolidated cases for lack of subject matter jurisdiction and because they are moot. In

its December 3, 2015 Order, the court determined that it was not yet appropriate to find that 

Mr. Simkus’ claims with regard to the reasonableness of the abatement period were moot 

because United had contested the citations including the associated abatement period. (Dec. 

3, 2015 Order, at pp. 18-19). The order also did “not take into account . . . the effect of any 

settlement agreement that may be reached between the Secretary and United concerning these 

citations.” (Id.). The effect of the Updated Settlement Agreement in these consolidated cases,

including the employee contest case, strips Mr. Simkus of any further cognizable claims because 

those claims are either outside of the scope of what he may assert in the first instance, or are now 

moot. In this instance, the Updated Settlement Agreement has divested the Commission of 

 

17 A party may withdraw its notice of contest at any stage of a proceeding. 29 C.F.R. § 2200.102. 
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subject matter jurisdiction over Mr. Simkus’ claims and objections in these matters.18 

B. Sanctions against the Secretary are not warranted. 

Commission judges have the discretion to impose sanctions on parties who violate their 

orders. See NL Industries, Inc. 11 BNA OSHC 2156, 2168 (No. 78-5204, 1984). Considerable 

discretion is vested in judges to decide whether to impose sanctions and what form they should 

take. See Media Duplication Services, LTD., v. HDG Software, Inc., 928 F.2d 1228, 1241 (1st

Cir. 1991)(Attorney could be sanctioned under Rule 16(f) for his failure to comply with a pretrial 

order by failing to appear to present his client’s position.). Mr. Simkus has alleged that the 

Secretary has committed “fraud on the court.” Such allegations should not be made by anyone 

lightly. The factors a court must consider when determining whether to sanction a party based 

upon the perpetration of a fraud upon the Court are as follows: (1) whether the misconduct was 

the product of intentional bad faith; (2) whether and to what extent the misconduct prejudiced 

the other party; (3) whether there is a pattern of misbehavior, rather than an isolated instance; (4) 

whether and when the misconduct was corrected; and (5) whether further misconduct is likely to 

continue in the future. Intelli-Check, Inc. v. Tricom Card Technologies, Inc., No. CV03-3706,

2005 WL 3533153, at * 11 (E.D.N.Y., Dec. 22, 2005), McMunn v. Memorial Sloan-Kettering 

Cancer Center, 191 F.Supp.2d 440, 461 (S.D.N.Y.2002). Additionally, in order for the court to 

grant sanctions based upon an alleged submission of falsified evidence or material misstatements 

to the Court, the movant must show that the party at fault has “set in motion some 

unconscionable scheme calculated to interfere with the judicial system’s ability impartially to 

 

18 See Allied Indus. Workers of Am., 760 F.2d 783, 785 (7th Cir. 1985) (Once a settlement agreement is reached and 

the employer withdraws its notice of contest to the citation, the Commission is ousted of jurisdiction to review 

employee objections); see also Donovan v. Int’l. Chemicalworkers Union, 748 F.2d 1470, 1472 (11th Cir. 1984) 

(Commission has no jurisdiction to review a settlement agreement that calls for an immediate abatement of the 

hazardous condition.). Here the Updated Settlement Agreement says the hazardous conditions have already been 
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adjudicate the action.” Scholastic, Inc. v. Stouffer, 221 F.Supp.2d 425, 439 (S.D.N.Y. 2002)

(citations omitted), aff’d 81 Fed. Appx. 396 (2d Cir.2003). See also McMunn v. Memorial 

Sloan-Kettering Cancer Center, 191 F.Supp.2d at 445 (stating that the essence of fraud upon the 

court is “when a party lies to the court and his adversary intentionally, repeatedly, and about 

issues that are central to the truth-finding process”). 

 Here, Mr. Simkus has failed to show any misconduct by the Secretary in these cases. At 

this point, his allegation that [redacted] declaration is false represents an advocate’s view of the 

evidence. Mr. Simkus alleges [redacted] declaration is false and the Secretary says it is not. 

[redacted] declaration recounts an informal conference to which Mr. Simkus was not a party and 

reiterates OSHA’s determination, based on representations made by United at that informal 

conference, that the violative conditions subject to the citations in this matter have been abated. It 

is unclear how Mr. Simkus would know that representations of what occurred at an informal 

conference that he did not attend were in fact “completely false and totally inaccurate” or, 

similarly, how counsel for the Secretary would know them to be inaccurate. See Skywark v. 

Isaacson, 1999 WL 1489038, at *17-18 (S.D.N.Y., Oct.14, 1999) (imposing sanctions pursuant 

to Court’s inherent authority only where misconduct had so distorted the record that a fair trial 

was impossible). 

The Secretary had no duty to provide Mr. Simkus with a copy of United’s answer in 

Docket No. 15-2019; especially since United has never filed any answer in that case because the 

Secretary and United had advised the Court that they had reached a settlement before any answer 

was due. Likewise, Mr. Simkus has not made a case that any sanctions are due against the 

Secretary for failure to respond to any of Mr. Simkus’ discovery requests. Mr. Simkus has not 

 

abated. 
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filed a motion to compel discovery. Instead of doing so, he came quickly to the Court and filed a 

Motion for Sanctions. Before doing so, he did not meet and confer with the Secretary about 

discovery matters.19 On March 21, 2016, the Secretary had also filed his Motion for Protective 

Order seeking an order curtailing or staying discovery in view of the settlement agreement 

between the Secretary and United. 

The Court agrees with the Secretary that Mr. Simkus has not made a colorable claim to 

form a basis for any sanctions against the Secretary. The Court finds Mr. Simkus’ Motion for 

Sanctions is wholly without merit and no sanctions of any kind against the Secretary are 

appropriate. 

III. CONCLUSION

The Court lacks subject-matter jurisdiction over all of Mr. Simkus’ remaining claims. 

These cases are now moot. There are no further issues before the court that require discovery or a 

hearing. All of Mr. Simkus’ claims and objections must be dismissed, the June 21, 2016 hearing 

cancelled and the Updated Settlement Agreement approved.20

 Mr. Simkus’ Motion for 

Sanctions lacks merit.

IV. ORDER 

UPON CONSIDERATION OF THE ABOVE MATTERS, WHEREFORE, IT IS 

ORDERED THAT: 

A) the Secretary’s Motion to Dismiss is GRANTED, 

B) Mr. Simkus’ Notice of Contest in Docket No. 15-1756 is DISMISSED WITH 

PREJUDICE, 

 

19 Mr. Simkus failed to comply with Commission Rule 40(a) and the Court’s Order dated February 26, 2016 that 

required him to certify that he had met and conferred with all of the other parties before he filed his Motion for 

Sanctions. See 29 C.F.R. § 2200.40(a). 
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C) United’s Notice of Contest in Docket No. 15-2019 is WITHDRAWN, 

D) the June 21, 2016 hearing is CANCELLED, 

E) the Updated Settlement Agreement shall be APPROVED by separate order, 

F) the Secretary’s Motion for Protective Order that the Discovery not be had or, in the 

alternative, for Stay of Discovery Pending Decision on Secretary’s Motion to Dismiss, is 

DENIED, as moot, and 

G) Mr. Simkus’ Motion for Sanctions is DENIED as lacking merit and for failure to 

comply with Commission Rule 40(a) and the Court’s Order dated February 26, 2016 that 

required Mr. Simkus to certify that he had met and conferred with all of the other parties before 

he filed his Motion for Sanctions.21

 

SO ORDERED. 

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge

Date: April 25, 2016 

 Washington, D.C. 

 

20 The Updated Settlement Agreement will be approved by separate order. 

21

 The Court Order stated: 

All motions must state the basis of the request, identify authority in support of the request and be accompanied by 

an order prepared for the judge’s signature. Motions will not be entertained unless accompanied by moving 

counsel’s certification that the parties have discussed the matter and that there is either no objection to the motion or 

that the parties have made a good faith effort to settle the matter and have been unable to do so. The certificate must 

include, inter alia, the names of the parties who conferred or attempted to confer, the manner by which they 

communicated, the dispute at issue, as well as the dates, times, and results of their discussions, if any. The Court 

will generally ignore correspondence from counsel that should properly be the subject of motion practice.