1 

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. 13-2150

FRANCIS J. PALO, INC.,

Respondent.

 ORDER DENYING MOTION TO DISMISS 

On February 3, 2014, this case was designated for simplified proceedings by the Chief 

Judge. Previously, Complainant, the Secretary of Labor (Secretary), filed a Complaint in this 

case, dated January 16, 2014. On February 3, 2014, Respondent filed a Motion to dismiss the 

Complaint, together with a supporting Brief and attachments (Motion), alleging that the 

Secretary failed to issue and serve upon Respondent the citation in this matter, within six 

months following the occurrence of any violation, in accord with Section 9(c) of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (Act). Respondent noted 

that the Motion was filed in lieu of an Answer. See Commission Rules of Procedure 34(b) and 

40(b) 1. The Secretary filed a Response in Opposition (Opposition) on February 18, 2014, and a 

Sur-Reply (Sur-Reply) on March 7, 2014. Respondent filed a Reply to the Secretary’s Opposition 

on February 21, 2014 (Reply). The parties filed Stipulations of Fact on March 7, 2014 

(Stipulations). 

1

29 C.F.R. 2200.34(b) and 2200.40(b). See Occupational Safety and Health Review Commission’s Rules 

of Procedure, 29 C.F.R. § 2200.00, et seq. 
2

Respondent’s Motion to dismiss is denied. It is undisputed that the citation was dated, 

signed, and mailed by certified mail to Respondent, on November 18, 2013. It is undisputed 

that November 18, 2013 is prior to the end date of the six month period following the alleged 

violation occurrence in this case. Therefore, the citation was timely issued in accordance with 

Section 9(c) of the Act. 

Background

Attached to the Complaint, as Exhibit A, are the citation and notification of penalty 

issued in this case; a one item serious citation, with two subparts, alleging violations of the 

excavation construction standards2. The total proposed penalty is $6,930.00. The citation sets 

forth the inspection dates, as May 21, 2013 through November 13, 2013, and the citation 

issuance date as November 18, 2013. 

Respondent’s notice of contest is attached to the Complaint as Exhibit B. In the notice 

of contest, Respondent admits that OSHA issued the citation on November 18, 2013. 

Respondent alleges, however, that “this citation was not timely served upon [Respondent] 

within the statutory statute of limitations period . . . until November 25, 2013.” Respondent 

further contested and denied all alleged violations, proposed penalties, and abatement actions 

and dates set forth in the citation. Respondent plead and preserved affirmative defenses. 

Respondent’s Motion to dismiss states that the OSHA inspector only was present at 

Respondent’s worksite on May 21, 2013. Therefore, the six month period for issuing the 

citation began to run on May 21, 2013 and ended on November 21, 2013. Respondent received 

the certified mail delivery of the citation and notification of penalty on November 25, 2013. 

 

2

Citation item 1(a) alleges a violation of standard 1926.652(a)(1), at the inspection site, on or about 

May 21, 2013 and times prior thereto, as Respondent’s employees were performing work in an 

excavation at depths ranging from 6.0 feet to 7.3 feet; which excavation consisted of near vertical walls 

and Type B soil, and that a means or method of excavation cave-in protection was not utilized. Citation 

item 1(b) alleges a violation of standard 1926.21(b)(2), at the inspection site, on or about May 21, 2013 

and times prior thereto, as Respondent’s employees, working in the cited excavation, did not receive 

workplace specific trenching and excavation training. 
3

See Stipulations; USPS tracking form attached to Respondent’s Motion. As Respondent’s 

“receipt” of the citation was after November 21, 2013 Respondent contends that the citation 

was not “issued” before the expiration of six months following the alleged violation occurrence. 

Respondent argues that this interpretation of the Act’s six month issuance requirement is 

consistent with OSHA’s Field Operations Manual (FOM), the Act’s legislative history, and

procedures under other statutes and court rules, including the Commission Rules of Procedure 

regarding EAJA applications. Accordingly, Respondent contends that the citation should be 

vacated and the Complaint dismissed.

The Secretary opposes Respondent’s Motion. The Secretary agrees that the alleged 

violations occurred on May 21, 2013. The citation was dated, signed, and mailed by certified 

mail to Respondent on November 18, 2013. See Stipulations; citation. Therefore, when the 

OSHA Area Office mailed the citation by certified mail to Respondent on November 18, 2013, 

the citation was timely “issued” within the six month limitations period set forth in Section 9(c) 

of the Act. The Secretary’s position is that a citation is issued on the date when it is sent to an 

employer by certified mail and not on the date when an employer actually receives the citation. 

The Secretary contends that this position is supported by the clear language of the Act and is 

consistent with Commission case law.

Discussion

The relevant facts are not disputed. The parties agree that the worksite violations 

alleged in the citation occurred on May 21, 2013. The parties agree that the six month period 

for issuing the citation, set forth in Section 9(c) of the Act, began to run on May 21, 2013 and 

ended on November 21, 2013. The issuance date set forth on the citation is November 18, 

2013. The parties stipulated that the Area Director of the OSHA Erie Area Office signed the 

citation and notification of proposed penalty on November 18, 2013, and that the OSHA Erie 

Area Office mailed the citation and notification of proposed penalty to Respondent, by certified 

mail, on November 18, 2013. The parties further stipulated that Respondent received the 

citation and notification of penalty on November 25, 2013.
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The parties dispute whether “issuance” of a citation within six months following 

occurrence of any violation, is complete upon the act of mailing the citation by certified mail to 

Respondent or whether “issuance” requires actual receipt of the citation by Respondent.

Section 9(c) of the Act sets forth a limitation period for issuing citations3. “No citation 

may be issued under this section after the expiration of six months following the occurrence of 

any violation.” (Emphasis supplied). 

The verb “issue” is used several times in the Act to describe actions required by the 

Secretary. The language of the Act is clear. The language in Section 9 of the Act, describing the 

six month limitations period, does not define “issued” as requiring the actual “receipt” of the 

citation by the employer. In contrast, other sections of the Act specifically define a statutory 

limitations period as dependent upon employer “receipt.” The Act clearly states when 

“receipt” is the triggering event for the time period calculation.4

In Section 9(c), the absence of a stated requirement that an employer actually receive 

the citation before the end of the six month limitations period, reveals that the six month 

statutory limitations period is not be defined or calculated by the date of an employer’s receipt

of the citation, but rather by the date of the agency action “issuing” the citation. In this case, 

the OSHA Erie Area Office issued the citation through its actions of dating, signing, and mailing 

the citation, by certified mail, to Respondent on November 18, 2013. 

 

3

Section 9(c) is a statute of limitations. See AKM LLC dba Volks Constructors v. Secretary of 

Labor, 675 F.3d 752, 755 (D.C. Cir. 2012); General Dynamics, 15 BNA OSHC 2122, 2127, n.10 (No. 87-

1195, 1993).

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For example, Section 10(a) of the Act sets forth the time period within which an employer may 

file a notice of contest, as follows:

[T]he employer has fifteen working days within which to notify the Secretary that he wishes to 

contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt

of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest 

the citation or proposed assessment of penalty . . . . (Emphasis supplied). 

Similarly, Section 10(b) of the Act sets forth the time period for an employer to file a notice of 

contest regarding a failure to abate citation, as “within fifteen working days from the receipt of the 

notification issued by the Secretary.“ (Emphasis supplied). 
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Respondent argues that the legislative history of the Act reveals that the six month 

limitation period set forth in Section 9(c) was intended to put a firm deadline on when an 

employer “receives” notice of any violations. Motion at 5-6. The cited legislative history does 

not support Respondent’s contention. The Act’s legislative history reflects the Congressional 

intent that the Secretary issue citations to an employer with “reasonable promptness,” setting 

a limitation period that no citation issue “after the expiration of six months following the 

occurrence of any violation.” In this case, the undisputed actions of the OSHA Erie Area Office 

in dating, signing, and mailing the citation to Respondent, on November 18, 2013, accord with 

the plain language of the Act and Congressional intent.

Prior administrative law judge decisions support the conclusion that a citation is timely 

issued by the Secretary upon mailing. See Valcourt Building Services of Georgia, LLC, 2013 WL 

5178022*3-4 (No. 12-0921, 2013)(Citation mailed to Respondent within the six-month 

limitation period was timely issued); Wean United, Inc., 7 BNA OSHC 2086, 2087-2088 (No. 77-

4350, 1979)(Citations were issued outside prescribed six month statutory period as they were 

“mailed” by the Secretary more than six months after the alleged violations occurred).

OSHA’s Field Operations Manual (FOM) provides that “a citation shall not be issued 

where any alleged violation last occurred six months or more prior to the date on which the 

citation is actually signed, dated and served by certified mail as provided by Section 10(a) of the 

Act.” OSHA Directive number: CPL 02-00-150, eff. date: April 22, 2011, (FOM) at Section XI (A), 

p. 5-13. The FOM is not binding on OSHA or the Commission and does not create substantive 

rights for employers. See FOM Disclaimer; Hackensack Steel Corp., 20 BNA OSHC 1387, 1393 

(No. 97-0755, 2003). In the instant case, the actions of the OSHA Erie Area Office regarding 

issuance of the citation are consistent with the guidance set forth in the FOM, as the citation 

was signed, dated and served by certified mail prior to the end of the six month limitations 

period. Respondent’s contention that Section 9(c) of the Act requires that an employer actually 

“receive” a citation within the six months limitation period is not supported by the plain 

language of the FOM. 
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Respondent cites several state and federal procedural rules which specifically provide 

that service by certified mail is complete upon delivery. The state and federal procedural rules 

cited by Respondent are inapplicable to the Act’s requirement that the Secretary issue a 

citation within six months of the violation occurrence5. The state and federal procedural rules 

cited by Respondent are not persuasive. 

As noted by the Secretary, the Act does not require the Secretary to serve the citation 

by certified mail. Rather, the Act requires the Secretary to issue the citations before the 

expiration of six months following the alleged violation occurrence and, as set forth in Section 

10(a), “within a reasonable time after the termination of such inspection or investigation, notify 

the employer by certified mail of the penalty, if any, proposed to be assessed under section 17

. . . . “ It is the proposed penalty notification that the Act states shall be by certified mail. 

Decision

For the reasons stated above, Respondent’s Motion to dismiss is denied. It is 

undisputed that the citation was dated, signed, and mailed by certified mail to Respondent, on 

November 18, 2013. It is undisputed that November 18, 2013 is prior to the end date of the six 

month period following the alleged violation occurrence in this case. Therefore, the citation 

was timely issued in accordance with Section 9(c) of the Act. 

 

5

The Commission’s Procedural Rules provide that service or filing are effected at the time of mailing. See 

Commission Rules 7(c) and 8(e)(1); 29 C.F.R. § 2200.7(c), 29 C.F.R. § 8(e)(1). Exception to the standard 

rule regarding the effective date of service or filing – upon mailing - is specifically stated, such as in Rules 

301 and 302(a) regarding the filing of an EAJA Application with the Commission. See 29 C.F.R. § 

2204.301, 29 C.F.R. § 2204.302(a).

Where a Complaint amendment operates as a citation, the Commission has found filing effected 

upon mailing. In Bland Construction Co, 15 BNA OSHC 1031, 1044-1048, n.10 & 13 (No. 87-992, 1991), 

one question presented was whether the Secretary’s Complaint amendment, to add a second citation 

item, was proper and issued with reasonable promptness. In that case, the Secretary mailed the 

amended Complaint to Respondent “only one day short of six months after the compliance officer’s 

inspection.” Id. at 1046. The Commission noted that the amended Complaint, having been filed within 

the statutory limitations period, operated as a citation. Id. at 1048 n.13. Further, pursuant to

Commission Rule 8(d) filing was effected at the time of mailing. Id. at 1044 n.10. The Commission 

affirmed the judge’s decision allowing the Secretary’s amendment and holding that the citation was 

issued with reasonable promptness.
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A separate Simplified Proceedings Notice and Scheduling Order will issue for the orderly 

continuation of this case pursuant to the Commission’s Rules for simplified proceedings. 

SO ORDERED. 

/s/ Carol A. Baumerich

Dated: April 24, 2014 Honorable Carol A. Baumerich

Washington, D.C. Judge, OSHRC