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. 13-1716 

HALLIBURTON ENERGY

SERVICES, INC., 

Respondent. 

ORDER GRANTING MOTION FOR RELIEF FROM FINAL ORDER

Halliburton Energy Services, Inc. (Respondent) has filed a “Motion for Relief of 

the Final Order under Rule 60(b) of the Federal Rules of Civil Procedure” (Motion). The 

Secretary did not file a response to the Motion within the time specified by Commission 

Rule 40(c), 29 C.F.R. § 2200.40(c). During a telephone scheduling conference on 

February 21, 2014, counsel for the Secretary indicated that the Secretary had determined 

not to file a response in opposition to the Motion. 

For the reasons described below, the Respondent has met its burden to establish 

that the deemed final order of the Occupational Safety and Health Review Commission 

(Commission) was the result of the Respondent’s “excusable neglect” under Fed. R. Civ. 

P. 60(b)(1), and thus the Motion is granted.

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1 Unopposed motions are often summarily granted, but a motion that effectively seeks 

to excuse a late-filed notice of contest is different because a timely filed notice of contest 

establishes the Commission’s jurisdiction. Sharon & Walter Constr., Inc., 23 BNA 

OSHC 1286, 1288, n. 2 (No. 00-1402, 2010), citing Willamette Iron & Steel Co., 9 BNA 

OSHC 1900, 1904 (No. 76-1201, 1981). The Commission’s jurisdiction may not be 

created by assent. Atl.& Gulf Stevedores, Inc., 3 BNA OSHC 1003, 1004 (No. 2818, 

1975) (consolidated). The Secretary’s decision not to oppose the Motion does not lessen 

 
Background2

On April 5-6, 2013, a compliance officer (CO) from the Occupational Safety and 

Health Administration (OSHA) inspected the hydraulic fracturing operations that the 

Respondent was conducting at a well site in Epping, North Dakota. The CO completed 

the inspection without conducting a closing conference conforming to 29 C.F.R. § 

1903.7(e),3 and without otherwise indicating to any of the Respondent’s employees that 

the inspection had revealed any violation of OSHA workplace health or safety standards. 

As a result of the inspection, on August 21, 2013, OSHA issued a one item 

serious citation alleging a violation of the general duty clause of the Occupational Safety 

and Health Act (the Act). 29 U.S.C. § 654(a)(1). OSHA sent the citation by certified 

mail to the Respondent’s post office box in Williston, North Dakota. Prior to mailing the 

citation, OSHA had not informed the Respondent that the citation would be forthcoming. 

About six weeks before OSHA issued the instant citation, OSHA had issued to the 

Respondent a citation relating to the Respondent’s hydraulic fracturing operation at a 

different well site located near Watford City, North Dakota. Prior to mailing this citation, 

OSHA had conducted a closing conference with the Respondent’s district manager. 

the Respondent’s burden to establish that it is entitled to relief under Rule 60(b)(1). 

2 The Respondent has filed an affidavit and related exhibits in support of the Motion. 

There being no reason to discredit the affiant’s declarations, they are accepted as accurate

for purposes of disposing of the Motion. 

3 Section 1903.7(e) provides as follows: “At the conclusion of an inspection, the 

Compliance Safety and Health Officer shall confer with the employer or his 

representative and informally advise him of any apparent safety or health violations 

disclosed by the inspection. During such conference, the employer shall be afforded an 

opportunity to bring to the attention of the Compliance Safety and Health Officer any 

pertinent information regarding conditions in the workplace.” 

2 

 
After that closing conference, OSHA informed the district manager during a telephone 

conversation that a citation would be issued. Also, on the same day that OSHA mailed 

that citation, OSHA sent the district manager a copy of the citation by email. That 

citation alleged a violation of the general duty clause that is substantially similar to the 

violation alleged in the instant citation. Upon receiving that citation, the district manager 

caused to be timely filed a notice of contest. That matter was assigned OSHRC Docket 

No. 13-1188 and is currently pending before another Commission judge. 

A member of the Respondent’s administrative staff went to the post office on 

August 23, 2013, and picked up the certified letter containing the instant citation. 

Through inadvertence of the Respondent’s administrative staff, the unopened certified 

letter was placed among the Respondent’s outgoing mail and was re-deposited in the 

mail. The postal service thereafter re-delivered the certified letter to the Respondent’s 

post office box. A member of the Respondent’s administrative staff again picked up the 

letter, and it was delivered to the office of the same district manager who had received 

the previous citation involved in case number 13-1188. The district manager was on 

vacation when the letter was delivered to his office. Upon returning to his office, the 

district manager opened the certified letter, discovered the citation, and immediately 

contacted the OSHA area office that had issued the citation. Based on his experience in 

connection with the citation issued in case 13-1188, the district manager believed that 

OSHA’s standard operating procedure was to contact the employer representative directly 

by phone and by email prior to formally issuing a citation.

On September 27, 2013, nine working days after the final day for filing a timely 

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notice of contest (based upon the original delivery of the certified letter on August 23, 

2013), the Respondent caused to be filed a notice of contest with the OSHA area office 

that had issued the citation. By letter that same day, the OSHA area office advised the 

Respondent that the citation and penalty had become a final order of the Commission and 

that any request to reopen the matter should be filed with the Commission. On October 

25, 2013, the Respondent filed the instant Motion. The Commission’s Executive 

Secretary issued a notice of docketing on October 28, 2013. The matter was assigned to 

the undersigned on January 31, 2014. 

Discussion

After receiving a citation, the Act allows the cited employer “fifteen working days 

within which to notify the Secretary that he wishes to contest the citation or proposed 

assessment of penalty.” 29 U.S.C. § 659(a). Such notification must be in writing and is 

timely when postmarked within the fifteen working day period. 29 C.F.R. § 1903.17(a). 

If the employer fails to file a notice of contest within this fifteen-day period, “the citation 

and the assessment, as proposed, shall be deemed a final order of the Commission and 

not subject to review by any court or agency.” 29 U.S.C. § 659(a). 

The Respondent acknowledges that it did not file a notice of contest within the 

statutory period and that by operation of § 659(a) the citation was deemed a final order of 

the Commission on September 16, 2013. 

An employer may be relieved from a deemed final order of the Commission 

pursuant to Fed. R. Civ. P. Rule 60(b). George Harms Constr. Co. v. Chao, 371 F.3d 

156, 158 (3d Cir. 2004); Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-

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1920, 1981). The party seeking relief under Rule 60(b) bears the burden of 

demonstrating it is entitled to relief. Burrows Paper Corp., 23 BNA OSHC 1131, 1132

(No. 09-1559, 2010). The Respondent claims it is entitled to relief pursuant to Rule 

60(b)(1), which allows relief from a final order that resulted from “mistake, inadvertence, 

surprise, or excusable neglect.” 4

In determining whether relief should be granted from a final order of the 

Commission pursuant to Rule 60(b)(1), the analysis enunciated by the Supreme Court in 

Pioneer Inv. Serv. Co. v. Brunswick Assoc., 507 U.S. 380, 393 (1993) (Pioneer), is 

applicable. George Harms Constr. Co., 371 F.3d at 163. “The Supreme Court in 

Pioneer explained that the term ‘neglect,’ for purposes of interpreting ‘excusable neglect’

in the federal rules, has its normal, expected meaning: inadvertence, carelessness, and 

mistake.” Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir.

1997). The determination of what sorts of neglect will be considered “excusable” is an 

equitable one that takes into account all relevant circumstances, including 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 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. Pioneer, 507 U.S. at 395. 

4 In view of the determination that the Respondent is entitled to relief under Rule 

60(b)(1), it is unnecessary to determine whether relief would be appropriate also under 

Rule 60(b)(3) due to the CO not having conducted a closing conference conforming to 29 

C.F.R. § 1903.7(e). See Prime Roofing Corp., 23 BNA OSHC 1329, 1335 (No. 07-1409, 

2010) (ALJ). 

5 

 
The facts here are similar to those in Russell B. Le Frois Builder, Inc., 18 BNA 

OSHC 1978 (No. 98-1099, 1999), rev’d on other grounds, 291 F.3d 219 (2d Cir. 2002), 

where the Commission granted relief under Rule 60(b)(1). In Le Frois, a company 

employee went to the post office in her personal vehicle and picked up a certified letter 

containing a citation that OSHA had sent to the company’s post office box. About seven 

weeks later, the employee discovered the certified letter underneath the seat of her

vehicle. Upon opening the certified letter and discovering the citation, the company

promptly filed a notice of contest. In granting relief under Rule 60(b)(1), the 

Commission noted that the company’s “[d]eficiencies in mail procedures are not per se

inexcusable under Rule 60(b),” and that “the reason for the delay ... was a highly 

unusual, inadvertent error by the company employee who picked up the mail on the day 

in question.” Id. at 1980. The Commission observed further that the employer had

“acted swiftly” upon discovering the citation. Id. The Commission ruled that the filing 

of the late notice of contest “was due to inadvertence or excusable neglect for which 

relief is appropriate under Rule 60(b).” Id.

The delay here is significantly shorter than the delay in Le Frois, and the cause of 

the delay is strikingly similar. Here, there is no indication that (1) granting relief from 

the final order would prejudice the Secretary by adversely affecting the Secretary’s

enforcement role, either under the Act generally or in these proceedings specifically, (2) 

that the nine-day delay in filing the notice of contest would result in a significant delay 

the ultimate resolution of the citation in proceedings before the Commission, or (3) that 

the Respondent has not at all times acted in good faith. 

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Other equitable factors relevant to the Pioneer analysis include: (1) the lack of a 

closing conference that conformed to 29 C.F.R. § 1903.7(e) and the resulting absence of

any indication from the inspecting CO that he had identified a violation; (2) the district 

manager’s prior experience in connection with the previously issued citation of having 

received forewarning through both a telephone conversation and an email message that a 

citation would be issued; (3) the Respondent’s demonstrated diligence in timely 

contesting the citation in case number 13-1188; and (4) that if the deemed final order in 

this matter were to stand and the Respondent later successfully defends the alleged 

violation of the general duty clause in case 13-1188, the Respondent could be subject to 

separate final orders of the Commission with conflicting outcomes upon substantially 

identical material facts. 

The “control” factor of Pioneer does not outweigh the other relevant equitable 

considerations in view of the unusual circumstances surrounding the delay and the 

Respondent’s prompt action upon discovering the citation. See George Harms Constr. 

Co., 371 F.3d at 164. The relevant equitable considerations weigh in favor of finding the 

Respondent should be relieved from the final order due to excusable neglect pursuant to 

Rule 60(b)(1). 

A party seeking relief under Rule 60(b)(1) must also allege that it could present a 

defense against the citation. Nw. Conduit Corp., 18 BNA OSHC 1948, 1951 (No. 97-

851, 1999). This requirement is “satisfied with minimal allegations that the employer 

could prove a defense if given the opportunity.” Id. (internal citation omitted). In case 

13-1188, the Respondent is contesting an alleged violation of the general duty clause that 

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is substantially similar to the alleged violation in the instant case, and in its Motion the 

Respondent describes evidence it intends to present to controvert elements of the 

Secretary’s burden of proof. (Motion, pp. 11-15). The Respondent has met the minimal 

requirement of alleging the existence of a good faith defense to the citation. 

For these reasons, the motion for relief from the deemed final order of the 

Commission is GRANTED.

The Complainant shall file and serve his complaint pursuant to Commission Rule 

34(a), 29 C.F.R. § 2200.34(a), within 11 days of the date of this order. 

SO ORDERED.

/s/ 

WILLIAM S. COLEMAN

Administrative Law Judge 

DATED: March 5, 2014 

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