Keefe Earth Boring Company, Inc.

Plain-English summary

Keefe Earth Boring Company failed to file timely notices of contest to seven citation orders issued in 1987 and 1988 involving trenching, training, and hard-hat requirements. After the Secretary began a federal penalty-collection action, the company sought relief under Federal Rule of Civil Procedure 60(b). The Commission found that OSHA had repeatedly provided clear written instructions, an explanatory booklet, and oral notice of the 15-working-day contest deadline and the independent Commission hearing process. It held that the company's misunderstanding and lack of diligence did not amount to excusable neglect. The Commission also found no OSHA misrepresentation or misconduct that caused the late filings, even assuming officials made discouraging remarks about the company's defenses. It affirmed denial of relief and dismissed the late notice of contest, leaving the seven final orders in place.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.450(a)(1); 29 C.F.R. § 1926.651(c); 29 C.F.R. § 1926.651(q); 29 C.F.R. § 1926.651(i)(1); 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.100(a)
• Outcome: Rule 60(b) relief denied; late notice of contest dismissed; seven final orders remain effective.
• Key point: Clear contest instructions defeat excusable-neglect relief when an employer fails to read them or seek clarification, absent conduct by OSHA that actually misleads the employer about how to contest.

Full text (OSHRC public release)

Docket No. 88-2521

SECRETARY OF LABOR,

Complainant,

v.

KEEFE EARTH BORING COMPANY, INC.,

Respondent.

OSHRC Docket No. 88-2521

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

This case presents a motion for relief from seven final orders
of the Commission, entered by operation of law, pursuant to section 10(a) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. � 651-678 ("the
Act").[[1/]] Administrative Law Judge Edwin G. Salyers denied relief from the final
orders. For the following reasons, we affirm his ruling.

I

A. The Origins of this Proceeding

During an approximately 15-month period, from late 1986 to
early 1988, the Occupational Safety and Health Administration ("OSHA"), of the
U.S. Department of Labor, issued eight citations to Keefe Earth Boring Company
("KEBCO" or "the company"). The citations alleged instances of
noncompliance with OSHA's standards regulating construction safety, which appear in 29
C.F.R. Part 1926. Our table, below, shows the four issuance dates of the eight citations,
their classifications, the cited standards, and the proposed penalties:

October 29, 1986

1)
Serious:
1926.450(a)(1)-- ladders
$ 240.00

1926.651(c)-- sloping, and

1926.651(q) -- bracing
280.00

1926.651(i)(1)--spoil piles
240.00

October 14, 1987

2)
Repeat:
1926.651(c) --sloping
1,400.00

3)
Nonserious:
1926.20(b)(1)--training
0.00

December 10, 1987

4)
Willful:
1926.651(c) -- sloping
7,000.00

5)
Repeat:
1926.20(b)(1) -- training
200.00

January 6, 1988

6)
Serious:
1926.100(a) -- hard hats
600-00

7)
Willful:
1926.651(c) --sloping
10,000.00

3)
Repeat:
1926.20(b)(1) --training
400.00

Because KEBCO did not file notices of contest to the citations and penalties within the
fifteen working - day period immediately following the issuance dates, the uncontested
citations and penalties became final orders by operation of law. See n-1, supra.

KEBCO did not thereafter pay the penalties. Accordingly, in mid-1988, the Secretary of
Labor ("the Secretary") initiated a penalty collection action in the United
States District Court for the Northern District of Illinois, which has jurisdiction over
the area in which KEBCO performed its construction work.[[2/]] The company, intending to
defend against the citations and penalties in the court proceeding, retained an attorney,
and it was he who realized that the company should have filed timely notices of contest
for the purpose of initiating the statutorily prescribed administrative review
proceedings.

On the company's behalf, therefore, the attorney filed the
notice of contest, dated July 25, 1988, that began this proceeding. The notice of contest
included a motion for relief from the final orders relating to the eight citations issued
to KEBCO. After KEBCO's case was docketed,[[3/]] the Secretary filed a motion to dismiss
KEBCO's notice of contest[[4/]]. Both parties filed sworn testimony, in the form of
affidavits, in support of their respective positions. The parties sharply dispute whether
KEBCO is entitled to relief from the final orders entered against it in 1987 and 1988
after it was given written and oral instructions how to file a notice of contest.[[5/]]

B. KEBCO's Factual Presentation

The factual content of KEBCO's notice of contest is unsworn,
and we do not rely on it except as background to the company's sworn statements. The
notice of contest alleged that, in 1986 and thereafter, KEBCO's management did not
understand that OSHA citations and penalties are serious legal actions against a
subcontractor:

[During each of the inspections, the OSHA] inspectors did speak
with defendant's men. When . . . informed . . . that Keefe did not control or create the
pits, the inspectors told [the men] to simply trim some dirt from the end of the pit with
shovels and "they would be alright"-- which they did.

Defendant understood, therefore, that the contractors who were
responsible for the creation of the pits were the targets of the OSHA investigation and
that the actions against Keefe were designed merely to keep pressure on those contractors.

This belief was supported and reinforced by the fact that the
amounts of the penalties and the condition and sizes of the pits seemed to bear no
understandable relationship and, at the initial settlement meeting [in 1986], Keefe was
made to understand that OSHA was prepared to negotiate any... penalty and the figures
were, therefore, arbitrary threatened penalties for the aforesaid purpose.

KEBCO took the position, therefore, that the general contractor
was responsible for abatement. The company further alleged that "it thereafter took
the only alternative steps available to it." That is, the company provided
alternative protection, requested the general contractors to abate, and directed its own
employees not to work under hazardous conditions. [[6/]]

The evidentiary support for KEBCO's claim that company
management misunderstood the legal effect of OSHA citations consists of an affidavit from
the company's president, Timothy J. Keefe. The president referred to an apparently
business-related dispute that had led to court suits by his brother, and the president
sought to make a connection between his experiences in court and certain statements
allegedly made by OSHA officials regarding possible adjudication of the 1986 citation:

When I got my first OSHA Notice of Violation in October,
1986[,] I assumed it was another thing my brother had started up against me. I . . . went
down to the OSHA office . . . . There were a couple of men in an office and I told them
that we were working in the same type of trenches since [the] 1960's and that we didn't
ever dig the trenches ourselves. The trenches were dug by the contractors who hired us.
They told me that if I didn't agree to pay at least part of the penalty I would have to
hire a lawyer and come back for an OSHA hearing, and that I would just lose that hearing
anyway. I agreed to pay $400.00 instead of $760.00 for that reason, even though I felt we
hadn't done anything wrong.

After the meeting I decided that I would fight the $400.00
rather than pay it. I knew that there was no sense in going back for a hearing in the OSHA
department as they had already told me that I would lose. I decided that I should wait
until the matter was brought before a real court like I had been involved in with my
brother and my divorce case.

Because of the lawsuits with my brother and my divorce, I knew
that I would be served by a Sheriff and have a chance to tell our story in the real court.
I never knew, or understood, that the hearings that the OSHA people spoke about and that
were mentioned in the papers I was given would be a real trial in front of a judge. I
thought the hearing that they talked about would be before themselves, or people in their
department.

The president further averred:

I have been in business, and in family law suits long enough to
know that you cannot simply ignore the papers which are served upon you. It's [w]hat I
always believed, based upon my meeting with the OSHA officials, that the real trial would
take place only when and if the OSHA department decided to file in court and I was served
with court papers. Even after my meeting with them I received letters which said, on the
one hand, that if I would provide certain information it "will allow us to close the
case . . . " and, on the other hand, papers that said that there would be
"further action" if we did not pay the penalties. I understood the "further
action" to be the real court case.

(Reference to exhibits omitted).[[7/]]

C. The Secretary's factual Presentation

In opposing KEBCO's motion for relief, the Secretary focused on
the written and oral instructions that were provided to KEBCO with each citation. Down
each citation's right margin, in boldface, was the following admonition:

Penalties Are Due Within 15 Days of Receipt of This
Notification Unless Contested (See enclosed Booklet)

There were further instructions centered on the page, in
smaller typeface, which also referred to the enclosed booklet:

You must abate the violations ... and pay the penalties
proposed, unless within 15 working days ... from your receipt of this Citation and penalty
you mail a notice of contest to the U.S. Department of Labor Area office ... (See the
enclosed booklet which outlines your rights and responsibilities and should be read in
conjunction with this form). You are further notified that unless you inform the Area
Director in writing that you intend to contest the Citation or proposed penalties within
fifteen working days after receipt, this Citation and the proposed penalties will become a
final order of the Occupational Safety and Health Review commission and may not be
reviewed by any court or agency.

The enclosed booklet, entitled "Employer Rights and
Responsibilities Following an OSHA Inspection," stated:

How to Comply

For violations you do not contest, you must (1) promptly notify
the OSHA Area Director by letter that you have taken the appropriate corrective action
within the time set forth in the citation, and (2) pay any penalties itemized therein.

[I]f you contest the citation or penalty in good faith,
abatement and payment of penalties for those items contested are suspended until the
Occupational Safety and Health Review Commission reviews your case and issues a final
order. The Review Commission is an independent agency and is not a part of the U.S.
Department of Labor....However, penalties for items not contested are still due within 15
working days. For further details, see the section on How to Contest.

(Emphasis in the original.) That section stated:

How to Contest

If you wish to contest any portion of your citation, a written
Notice of Contest must be submitted within 15 working days after receipt....even if you
have orally stated your disagreement....during a telephone conversation or an informal
conference.

The next paragraph included a sample notice of contest: "I
wish to contest the citation and penalty proposed for items 3 and 4 of the citation issued
July 27, 1984."

The administrative hearing was described as a trial before a
judge of the Commission:

The Contest Process

If the written Notice of Contest has been filed within the
required 15 working days, the OSHA Area Director forwards your case to the Occupational
Safety and Health Review Commission. The Commission assigns the case to an administrative
law judge who usually will schedule a hearing in a public place close to your workplace.
Both employers and employees have the right to participate in this hearing[,] which
contains all the elements of a trial, including examination and cross-examination of
witnesses. You may choose to represent yourself or be represented by an attorney. The
administrative law judge may affirm, modify, or eliminate any contested items of the
citation or penalty.

The section on "Informal Conference and Settlement" specifically warned:
"Please note, however, that an informal conference will neither extend the 15 working
day Notice of Contest period nor take the place of the filing of a written notice if you
desire to contest." It further warned:

If you do not contest within 15 working days, your citation
will become a final order. After this occurs, the OSHA Area Director may continue to
provide you with information and assistance on how to abate . . . . However, he or she may
not amend or change any . . . final order.

In addition to these written instructions concerning how to
contest, President Keefe received oral instructions. An affidavit by the OSHA compliance
officer who made the 1986 inspection stated:

OSHA pamphlet 3000 which outlines the employer's contest rights
was provided to its job foreman, mailed to the employer along with the citations, and Mr.
Keefe was told of his contest rights in a telephone conversation on October 22, 1986.

Affidavits by the OSHA compliance officer who made the three
inspections between October 1987 and January 1988 further stated that, immediately after
the October 1987 inspection, he spoke by telephone to President Keefe, and spoke to him
again the day prior to the citation's issuance. The compliance officer told President
Keefe "of his contest rights." In reply, "Mr. Keefe advised me he had been
to the [OSHA] Office on a previous case." During the next two inspections, the
compliance officer made telephone calls to President Keefe, who was unavailable when the
calls were made and yet did not return the calls. According to this compliance officer,
"At no time did the employer indicate any intention to contest the citations."

II

A. Arguments

KEBCO argues that the OSHA officials to whom President Keefe
spoke in 1986 in effect misled him:

The fact that OSHA officials in an OSHA office represented to a
Respondent that any attempt to resist settlement would merely result in an OSHA hearing
that would just be lost anyway, can only be described as deceptive behavior, and cannot be
ameliorated by handing the Respondent a booklet which contains, buried therein, a sentence
attempting to describe the independent role of the administrative law judge in OSHA
proceedings.

KEBCO also argues that President Keefe's failure to file timely
notices of contest was an "honest mistake." President Keefe is "a laym[a]n
with a high school degree,"

a small contractor who failed to understand the distinction
between the Occupational Safety and Health Administration investigative body, and the
Occupational Safety and Health Review Commission as a body separate and apart from the
investigative agency; a not unreasonable mistake.

Thinking that OSHA had already rejected his defense and would
reject his position in any action initiated by notice of contest, President Keefe
"understood that he had the option to allow OSHA to enter its administrative decision
and that then he would still have the opportunity to present his case to what he
understood to be an independent forum--the courts."

The Secretary counters that KEBCO's inaction was not excusable
error. "Keefe proceeded on the basis of unwarranted assumptions, false analogies, and
a marked lack of care and diligence." The company's receipt of plain instructions to
contest or forgo a hearing "puts in question respondent's asserted belief that it
could wait until some later court action to raise its alleged defenses." Throughout
the whole 15-month period, "KEBCO obviously did nothing to educate itself."
President Keefe never asked "for an explanation or clarification even though he
clearly had an opportunity to do so." President Keefe did not "even use the
opportunity afforded by the telephone call from an OSHA compliance officer in 1987 to
voice his concerns or otherwise seek clarification." In sum, the Secretary claims
that, "[h]aving jumped to a conclusion in 1986, Keefe never bothered to check its
accuracy."[[8/]]

B. Discussion

The Commission's authority to grant relief from final orders
entered pursuant to section 10(a) of the Act comes from Rule 60(b) of the Federal Rules of
Civil Procedure and Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975). See
Louisiana-Pacific Corp., 13 BNA OSHC 2020, 1989 CCH OSHD � 28,409 (No. 86-1266,
1989); Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058, 1989 CCH OSHD �
28,443 (No. 88-1830, 1989).[[9/]] Rule 60(b) permits relief for "mistake,
inadvertence, surprise, or excusable neglect," for "misrepresentation, or other
misconduct of an adverse party," or for "any other reason justifying
relief." Atlantic Marine permits relief for OSHA misconduct, consisting of
deceptive practices or noncompliance with required procedures. We will first discuss
whether any mistake, inadvertence, surprise or excusable neglect, justifies relief under
the federal rule. Then we will turn to whether any OSHA misrepresentation or misconduct
justifies relief under Commission case law or the federal rule.

Under either theory, the employer has the burden to show a
sufficient basis for relief from a final order. Roy Kay, Inc., 13 BNA OSHC 2021,
2022, 1989 CCH OSHD � 28,406, p. 37,534 (No. 88-1748, 1989) ; see also Stroudsburg
13 BNA OSHC at 2055 OSHD at p. 37,641. Where the employer's showing consists or
affidavits, we must "construe[ ] all ambiguous facts in the light most favorable
to" the employer, and resolve any doubts in the employer's favor. See Jackson v.
Beech, 636 F.2d 831, 836-38 (D.C. Cir. 1980), quoted in INVST Financial Group v.
Chem-Nuclear Systems, 815 F.2d 391, 398 (6th Cir. 1987); cf. Pav-Saver
Manufacturing Co., 12 BNA OSHC 2001, 2007, 1986-87 CCH OSHD � 27,676, p. 36,105 (No.
84-733, 1986), appeal filed, No. 87-1418 (7th Cir. March 18, 1987) (conflict in
affidavits unresolved).

I. Mistake, Inadvertence, Surprise, or Excusable Neglect

To qualify for relief under Rule 60(b) because of mistake or a
similar error, a party must show itself justified in failing to avoid its error. Sears,
Sucsy & Co. v. Insurance Co. of North America, 392 F.Supp. 398 (D.I11. 1975). Mere
carelessness or negligence, even by a layman, is not excusable. See Western
Transportation Co. v. E.I. Du Pont de Nemours and Co., 682 F.2d 1233, 1236 (7th Cir.
1982) (a "negligent mistake" by a client's consultant); National Bank of
Joliet v. W.H. Barber Oil Co., 69 F.R.D. 107, 109 (N.D.I11. 1975) (a client's lack of
diligence in informing his attorney regarding matters relevant to the suit).
"Ignorance of court rules does not constitute excusable neglect, even if the litigant
appears pro se ." Swimmer v. I.R.S., 811 F.2d 1343, 1345 (9th Cir. 1987)
(a pro se party's failure to respond in time because of misreading the procedural rules).

In short, a layman must exercise reasonable diligence, and what
is reasonable may vary, depending on the information available to the layman. Compare,
Kinnear Corp. v. Crawford Door Sales Co. ,49 F.R.D. 3, 6 (D.S.C. 1970)
(misunderstanding how to make a proper answer is excusable if a layman did try), with
Kendall v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984) (pro se party's failure to
respond, due to failure to consult the procedural rules, is not excusable). Relief may be
justified "if the party offers a credible explanation for the delay that does not
exhibit disregard for the judicial proceedings," revealing no "intent to
thwart" or "reckless disregard for the effect of its conduct." Shepard
Claims Service, Inc. v. William Darrah & Associates, 796 F.2d 190, 194 & 195
(6th Cir. 1986) See Collex, Inc. v. Walsh, 69 F.R.D. 20, 23 (E.D.Pa. 1975)
("[R]epeated allegations that Mr. Walsh could not file an answer because he could not
retrieve his papers from the attorney who advised him in the early stages of this matter,
have lost their ring after six months of repetition").

Relatively recently, the Commission declined to accept a late-filed notice of contest from
an employer who, although unsophisticated in OSHA matters, had received the usual written
instructions concerning the time period for contesting a citation. The employer had never
before been cited, did not have a legal department, claimed not to have
"appreciate[d] the essence of the fifteen day period it had to reply," and
therefore took too long gathering information that it wished to consider before deciding
whether to contest. Roy Kay, 13 BNA OSHC at 2022, 1989 CCH OSHD at p. 37,534.
"However," the commission responded, "ignorance of procedural rules does
not constitute 'excusable neglect' within Federal Rule of Civil Procedure 60(b)." 13
BNA OSHC at 2022, 1989 CCH OSHD at p. 37,534. The employer "was explicitly told"
of the fifteen working-day contest period by the citation itself and by OSHA's letter that
accompanied it. 13 BNA OSHC at 2023, 1989 CCH OSHD at p. 37,534.

Rule 60(b) cannot be invoked "to give relief to a party
who has chosen a course of action which in retrospect appears unfortunate or where error
or miscalculation is traceable really to a lack of care." Sadowski v. Bombardier
Ltd., 539 F.2d 615, 618 (7th Cir. 1976).

13 BNA OSHC at 2022, 1989 CCH OSHD at p. 37,534.

In this case, it is clear that KEBCO has failed to show its
entitlement to relief under Rule 60(b). OSHA provided extensive instructions, of a plain
and simple nature, to assist Keefe and other employers lacking experience with OSHA
citations and lacking legal advice as to how to contest them. If President Keefe had
carefully read even portions of the written instructions stated and reiterated on the face
of the 1987 and 1988 citations, he would have known how to proceed. He would also have
known that his failure to contest the citations in a timely manner would preclude him from
challenging the citations at a later time. OSHA's booklet accompanying the citations
provided additional, straightforward explanations and, if President Keefe still had any
questions, he could have responded to the compliance officer's telephone calls. With the
exercise of due diligence, President Keefe could have avoided his errors.

2. Misrepresentation or Misconduct

The affidavit's claim of misconduct by OSHA officials refers
explicitly to the 1986 citation, and only inferentially explains KEBCO's inaction on the
later citations, which were received in the succeeding 15 months. The thrust of KEBCO's
claim is that OSHA officials, by belittling KEBCO's chances in "an OSHA hearing"
regarding the 1986 citation, led President Keefe to believe that an administrative
decision had been rendered against the company's defense to that citation and any ones
that might be issued thereafter. However, the alleged remarks by the OSHA officials, see
note 8 supra, did not explicitly pertain to any future case against KEBCO, and the
later-issued citations were facially separate matters, which KEBCO could have contested in
their own right.

Moreover, the context of the OSHA officials' remarks, assuming
that they were in fact made, is significant. Informal settlement negotiations were
underway concerning the1986 citation, and OSHA officials were trying to persuade President
Keefe to accept the offer of a penalty reduction rather than to exercise his statutory
right to file a notice of contest and defend the alleged violation on the basis that
compliance with the cited standards was another contractor's responsibility. The OSHA
officials were not purporting to provide competent advice on how to defend a contested
case. In addition, they were not purporting to describe the process or persons by which a
contested case would be adjudicated. Insofar as President Keefe's affidavit shows, he did
not explicitly ask how to contest the citation, whether he could contest it and obtain a
hearing despite the OSHA officials' opinions, and who would conduct the hearing. The
officials did not voice anything that would have confused the company president as to how
to proceed. In short, we find no OSHA misconduct warranting relief from the final orders
entered in 1987 and 1988. Compare Merritt Electric Co., 9 BNA OSHC 2088, 2090, 1981
CCH OSHD � 25,556: p. 31,871 (No. 77- 3772, 1981) (erroneous indication that an informal
conference served as a notice of contest); Henry C. Beck Co., 8 BNA OSHC 1395,
1400, 1980 CCH OSHD � 24,484, p. 29,906 (No. 11864, 1980) (silent participation in a
miscalculation of the date on which a notice of contest was due); B.J. Hughes, Inc.
7 BNA OSHC 1471, 1476-77, 1979 CCH OSHD � 23,675, p. 28,710 (No. 76-2165, 1979)
(miscalculation of the date on which a notice of contest was due). [[10/]]

We note that disparaging remarks such as those alleged to have been made by the OSHA
officials in this case can have the effect of discouraging an employer from pursuing its
rights, particularly where the employer lacks legal counsel and is making a first-time
appearance at an OSHA area office to discuss a citation. Therefore, in general, OSHA
officials should make clear that they are only expressing their own opinions about
proposed defenses and that the ultimate authority to rule on an employer's defenses lies
elsewhere. However, as long as an OSHA official has not misled or improperly confused an
employer as to how to file a notice of contest, we are unwilling to conclude that an
employer's decision not to file the notice of contest has been unfairly affected merely
because the employer has been exposed to OSHA's disparaging remarks. See Keppel's,
Inc., 7 BNA OSHC 1442, 1444, 1979 CCH OSHD � 23,622, p. 28,636 (No. 77-3020, 1979)
(the "subjective feeling of 'intimidation'" that may have contributed to the
belated contest "apparently existed despite the Secretary's adherence to proper
procedure and lack of deception"). Therefore, we find no misrepresentation or
misconduct by OSHA that would justify relief from the final orders. [[11/]]

III

Accordingly, we affirm the judge's decision denying KEBCO's
motion for relief from the final orders and dismissing KEBCO's notice of contest.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: March 25, 1991

SECRETARY OF LABOR,

Complainant,

v.

KEEFE EARTH BORING

COMPANY, INC.,

Respondent.

OSHRC Docket No. 88-2521

ORDER ON MOTION FOR RELIEF

UNDER FEDERAL RULE 60 (b)

The respondent in this case was issued citations pursuant to
section 9(a) of the Occupational Safety and Health Act (29 U.S.C. � 651, et seq .)
on three separate occasions in 1986, 1987 and 1988. Respondent did not file a timely
notice of contest to these citations within the time specified in the Act. These
citations, therefore, became final orders of the Occupational Safety and Health Review
Commission pursuant to the operation of law.

Acting through its attorney, respondent has filed a motion for
relief under Federal Rule 60(b) claiming that respondent's failure to act was due to
mistake, inadvertence, excusable neglect, or other reasons contemplated by Rule 60(b). The
parties have now submitted affidavits and memoranda in support of their respective
positions. Upon review of the entire record, it is determined that the factual allegations
contained in respondent's affidavit do not form a basis for relief under Federal Rule
60(b). Louisiana Pacific Corporation, 86 OSAHRC _, _ BNA
OSHC__, 1986-87 CCH OSHD � 27,818 (No. 86-1266); Roy Kay, Inc., 88 OSAHRC_,
_ BNA OSHC _, 1988 CCH OSHD � _____ (No.88-1748).

Accordingly, respondent's motion is DENIED and this matter is
DISMISSED.

EDWIN G. SALYERS

Judge

Date: February 8, 1989

FOOTNOTES:

[[1/]] Section 10(a), 29 U.S.C. � 659(a), provides, in
pertinent part:

If, after an inspection or investigation, the Secretary issues
a citation . . . the employer has fifteen working days within which to notify the
Secretary that he wishes to contest the citation or proposed assessment of penalty. If . .
. the employer fails to notify the Secretary that he intends to contest . . . 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.

[[2/]] Section 17(1) of the Act, 29 U.S.C. � 666(1), permits
the Secretary to institute a penalty collection action in "the district where the
violation is alleged to have occurred or where the employer has its principal
office." The action may be brought "within five years from the date when the
claim first accrued." 28 U.S.C. � 2462.

[[3/]] "By docketing an apparently late notice of contest,
the Commission merely provides a forum in which the timeliness of the notice of contest
may be adjudicated." Branciforte Builders, 9 BNA OSHC 2113, 2115 n.3, 1981 CCH
OSHD � 25,591, p. 31,921 n.3 (No.80-1920, 1981), citing Norkin Plumbing Co., 5 BNA
OSHC 2062, 2062-63, 1977-78 CCH OSHD � 22,296, p. 26,848 (No.76-4316, 1977).

[[4/]] The direction for review asked whether KEBCO's motion
for relief complied with the time requirement of Federal Rule 60(b), which limits motions
such as KEBCO's to one year following entry of a final order. KEBCO filed its motion
within the year following entry of the 1987 and 1988 final orders, which are the seven
final orders before us for review. See n.5, infra. Accordingly, KEBCO's motion was
timely filed.

[[5/]] As our discussion of the record will indicate, KEBCO
relies heavily on certain events surrounding the first citation, issued in 1986, as the
basis for relief from the final orders arising out of the 1987 and 1988 citations. There
remains no issue of relief from the 1986 citation itself, however. In 1989, the district
court in the above-mentioned collection action granted summary judgment to the Secretary
regarding the first citation, on the ground that KEBCO "waived the opportunity to
object to the first citation" when, within the fifteen working-day period after the
citation issued, KEBCO entered into a settlement agreement with OSHA, agreeing to
affirmance of the citation in exchange for reductions in the Secretary's proposed
penalties. The court declined to grant summary judgment as to the remaining seven
citations, however, on the ground that their status as final orders is a proper issue for
consideration by this Commission. Secretary v. Keefe Earth Boring Co., 702 F.Supp.
705 (N.D.Ill. 1989).

[[6/]] KEBCO also generally alleged improper service of the
citations, but the Secretary has documented each certified mail delivery to KEBCO's office
address. See Stroudsburg Dyeing & Finishing Co., 13 BNA OSHC 2058, 1989 CCH
OSHD � 28,443 (No. 88-1830, 1989) Henry C. Beck Co.,   8 BNA OSHC 1395, 1399,
1980 CCH OSHD � 24,484, pp. 29,904-905 (No. 11864, 1980); 29 U.S.C. � 659(a)
("notify the employer by certified mail").

[[7/]] One of the letters from OSHA that is referred to in the
president's affidavit requested information about abatement: "This information will
allow us to close the case and may negate the necessity of a follow up inspection."
The other letter demanded payment of the penalties: "If the total amount due ... is
not paid ... the matter will be referred to the National Office of [OSHA]... for further
action."

[[8/]] The Secretary also posits that President Keefe only
inferred that his defense was being adjudged deficient when he was told, correctly, that
another contractor's responsibility for a condition does not eliminate the company's duty
to protect its employees. "[H]is affidavit does not establish that it is more likely
than not that the statements attributed to OSHA were actually made." The Secretary
argues that "the OSHA official in question would testify that no such statements were
made." This statement is not sworn testimony.

[[9/]] "To preserve the issue for appeal," the
Secretary asserts that the Commission lacks the authority to grant relief.

[[10/]] KEBCO claims that it reasonably relied on what was, in
effect, erroneous legal advice from the OSHA officials. In support of granting relief
under Rule 60(b), KEBCO cites Fleming v. Huebsch Laundry, 159 F.2d 581, 584, 585
(7th Cir. 1947). That case, however, involved a party who "was hardly to blame for
accepting the law as given to him by the Government officials" because the agency's
written official interpretations exceeded 50,406 pages. Incorrect legal advice might
excuse a party if, as a practical matter, the party had to rely on it. However, a party
who is "fully informed of the relevant legal considerations" and
"sufficiently sophisticated and experienced to protect its interests" is not
justified in relying on "erroneous legal advice." Meadows v. Dominican
Republic, 628 F.Supp. 599, 609 (N.D.Ca. 1986), aff'd, 817 F.2d 517, 521-22 (9th Cir.
1987), cert. denied 108 S.Ct. 486 and 106 U.S. 487 (1987). See also , Atchison,
Topeka and Santa Fe Railway Co. v. Matchmaker, Inc., 107 F.R.D. 63, 65 (D.Colo. 1985);
Railroad Maintenance Laborers' v. American Railroad Construction Co., 96 F.R.D.
433, 435 (N.D.Ill. 1983).

[[11/]] We also do not find "any other reason justifying
relief." Rule 60(b)(6). Reason (6) of the federal rule encompasses only reasons other
than the ones already mentioned in the rule. See Menier v. United States, 405 F.2d
245, 248 (5th Cir. 1968), citing Klapprott v. United States , 335 U.S. 601, 614-15
(1948); See also Rebco Steel, Corp., 8 BNA OSHC 1235, 1237, 1980 CCH OSHD 24,334,
p. 29,646 (No. 77-2040, 1980). KEBCO generally requests relief by way of reason (6) but
does not specify a rationale, and we do not see any.