OSHRC Docket No. 90–0378






April 2, 1992


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


The issue presented in this case is whether there is sufficient reason under the Commission Rule of Procedure at 29 C.F.R. § 2200.41(b)1 to set aside an order of Judge Paul L. Brady, in which he dismissed Imageries’ notice of contest, affirmed two citations issued to the company, and assessed a penalty of $640. The judge took this action after Imageries failed to answer a complaint issued to it by the Secretary of Labor and failed to respond to an order of the judge asking it to show cause why it should not be held in default for its failure to answer the complaint. We affirm the judge for the reasons set forth below.


On December 12, 1989, after a compliance officer of the Occupational Safety and Health Administration (“OSHA”) conducted an inspection of Imageries’ worksite in Wellsville, Ohio, OSHA issued two citations to Imageries. Citation no. 1 alleged a serious violation of 29 C.F.R. § 1926.451(i)(8) in that an employee of Imageries who was working on a two-point suspension scaffold was not wearing a safety belt attached to a lifeline when exposed to a 35–foot fall. Citation no. 2 alleged an other-than-serious violation of 29 C.F.R. § 1926.59(e)(1) for Imageries’ failure to have a written hazard communication program for hazardous chemicals. A penalty of $640 was proposed for the serious violation.

In a letter to OSHA dated December 31, 1989, Imageries’ President, Dimitrios Akis, contested only the section 1926.451(i)(8) allegation of the serious citation. He acknowledged that one of the company’s employees had not been wearing a safety belt, that the person was his brother, and that his brother had fallen to his death. He alleged that he did not know why his brother had not worn a belt, and that everything had been done to prevent such an occurrence. Akis also wrote that the incident “was unbelievable, and very upsetting.”

Notice in Complaint

On March 2, 1990, the Secretary mailed her complaint to Imageries via first class mail. The complaint included a page with the following information, appearing there double-spaced:

Notice to Respondent

You are hereby notified that you must plead or otherwise answer this complaint, either denying or admitting each allegation, within (30) days of your receipt of this complaint.... Failure to respond to an allegation will be treated as an admission that the allegation is true. See Rule 36(a), Rules of Procedure, Occupational Safety and Health Review Commission. Any affirmative defenses must be plead in accordance with Rule 36(b). All communications and pleading should be addressed to and mailed to the Occupational Safety and Health Review Commission ... and a copy [to] the above attorneys of record and any other parties of record.

Imageries did not file an answer to the complaint.

Notice in Show Cause Order

On May 1, 1990, two months after the complaint was filed, Judge Brady issued a show cause order to Imageries containing the following language:


Respondent, Imageries, has failed to file an answer to the complaint in the proceeding as required by section 2200.34(d)(1) of the ... Commission’s Rules of Procedure.

It is, therefore, ORDERED that:

Pursuant to section 2200.41(a) of said rules, respondent shall show cause within seven days of receipt of this order why it should not be declared in default for failure to plead....

The order was sent by certified mail, and Dimitrios Akis signed the return receipt on Imageries’ behalf on May 4, 1990. However, Imageries did not respond to the show cause order. On June 11, 1990, nearly six weeks after the show cause order was issued, Judge Brady issued his order dismissing the notice of contest, affirming the citations and assessing the $640 penalty.

Although the Secretary concedes that the show cause order does not explicitly state what the result of a finding of noncompliance with the order would be, the result is plainly set forth in Commission Rule 41, which is referenced in the order. Imageries should have known what Commission Rule 41 provides because the Secretary mailed it a copy of the Commission’s rules, along with an explanatory guide to Commission procedures. Although a nonlawyer might not have a clear understanding of what terms like “cause” and “default” mean in the context of the order, the wording of the show cause order received by Imageries is not particularly technical or complex. Reference to a dictionary would have helped Imageries understand the order. Reference to Commission Rule 41(a), which was mentioned in the order and set forth in the materials mailed to Imageries by OSHA, would have helped Imageries understand the consequences of a failure to respond to the order. A telephone call to the judge or OSHA might also have benefited Imageries. See Secretary of Labor v. Barretto Granite Corp., 830 F.2d 396, 400 (1st Cir.1987). Imageries, moreover, makes no allegation that the order failed to provide it with adequate notice of what it needed to do to comply with the order or that the order failed to provide it with adequate notice of the actions the judge might take if it failed to comply with the order.

On July 5, 1990, Dimitrios Akis filed a letter, construed as a petition for review, with the Commission. He wrote about the death of his brother and stated that he believed he was being penalized “for my brother ... not wearing a safety life belt,” but that the “belt was there for him to be used.... I should not be penalized.... My greatest penalty is, that my brother is gone.”

The Secretary filed her opposition to the petition for review because it “contains not one word of justification or explanation for [Imageries’] failure to respond to the show cause order or to raise its defenses to the citations by filing an answer to the complaint. Accordingly, respondent ha[s] advanced no reason whatsoever why the judge’s order is erroneous and deserving of review.”

Review was directed on issues relating to whether the judge’s order should be set aside for “reasons deemed sufficient” under Commission Rule 41(b). Imageries was sent a copy of the direction for review.

Notice Given by Commission on Review

On April 12, 1991, the Commission’s Executive Secretary sent a notice to the parties requesting briefs and advising that a “party who does not intend to file a brief must notify the Commission in writing setting forth the reasons therefor within the applicable time for filing briefs....”

This notice given by the Commission was reinforced by the Secretary. On April 17, 1991, Daniel J. Mick, Counsel for Regional Trial Litigation, Office of the Solicitor, U.S. Department of Labor, wrote Imageries’ Akis and advised him that Mick would be filing a brief with the Commission on behalf of the government. Mick also wrote that, although Imageries was not required to file a brief, “you must at least advise me and the Commission of any intention not to file a brief.” Emphasizing that “this is a legal proceeding, and you may wish to seek legal advice,” Mick closed his letter by stating that “[a]lthough my role as OSHA’s attorney prevents me from giving you specific advice, I would be happy to try to answer any general questions you may have about the procedural aspects of the review process.”

Imageries neither filed a review brief with the Commission nor advised the Commission that it would not be filing a brief. It therefore failed to comply with the provisions of the Commission Rule of Procedure at 29 C.F.R. § 2200.93. Commission Rule 93(d) provides that “[i]f a petitioning party fails to respond to a briefing notice or expresses no interest in review, the Commission may vacate the direction for review, or it may decide the case without that party’s brief.”


We wish to emphasize that the Commission is sensitive to the needs of parties appearing pro se. In determining whether there is a sufficient reason to set aside a decision and order under Commission Rule 41(b), we have acknowledged in our case law that parties not trained in the law and appearing pro se may require additional consideration of their circumstances. See, e.g., Action Group, Inc., 14 BNA OSHC 1934, 1935, 1987–90 CCH OSHD ¶ 29,166, p. 39,018 (No. 88–2058, 1990); Choice Electric Corp., 14 BNA OSHC 1899, 1901, 1987–90 CCH OSHD ¶ 29,141 (No. 88–1393, 1990).

A review of the record in this case, however, provides us with every indication that the complaint, the judge’s show cause order, and the notice given by the Commission on review provided Imageries with clear instructions of what it was required to do to respond adequately. Because Imageries has not filed any response to the complaint, show cause order, or briefing order on review, there is nothing in the record upon which the Commission can rely to grant Imageries relief from the judge’s order.

Pro se litigants are not exempt from following Commission rules and procedures that require all litigants to take some action or suffer a penalty. Virtually everyone is subject to laws and regulations that, when they are enforced, penalize those who choose not to respond. This is true of a parking ticket and a tax return, as well as a proceeding before this Commission or any state or federal court.

Indeed, the federal courts tend not to be very lenient in their treatment of pro se parties who seek relief based on “excusable neglect” under Rule 60(b) of the Federal Rules of Civil Procedure. See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir.1987) (“[i]gnorance of court rules does not constitute excusable neglect, even if the litigant appears pro se ”); Kendall v. Hoover, 751 F.2d 171, 175 (6th Cir.1984) (pro se party’s failure to respond to motion for summary judgment or request an extension of time to file a response was not excusable neglect); Kazanzas v. Walt Disney World Co., 704 F.2d 1527, 1530 (11th Cir.1983) and cases cited therein (ignorance of legal rights, or failure to seek legal advice, does not toll the statute); see also Sadowski v. Bombardier Ltd., 539 F.2d 615, 618 (7th Cir.1976) (no relief where error or miscalculation due to lack of care), cited in Roy Kay, Inc, 13 BNA OSHC 2021, 2022, 1987–90 CCH OSHD ¶ 28,406, p. 37,534 (No. 88–1748, 1989). Furthermore, the Commission and the courts have recognized that lay persons choosing to handle legal matters on their own will be held to a standard of reasonable diligence.2 Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192, 1991 CCH OSHD ¶ 29,277, p. 39,270 (No. 88–2521, 1991). See Collex, Inc. v. Walsh, 69 F.R.D. 20, 24 (E.D.Pa.1975), in which the court stated that a “litigant may choose to proceed pro se, but he does not have the untrammeled right to totally disregard the procedures mandated by the court. We have given defendants a number of bites at the apple, all to no avail.”

Therefore, we conclude that, despite the tragic event giving rise to this case, there is nothing in the record that provides the Commission with a sufficient basis for giving Imageries relief from the judge’s order. Accordingly, we affirm the judge’s order dismissing Imageries’ notice of contest, affirming the two citations and assessing the penalty of $640.

Edwin G. Foulke, Jr.



Donald G. Wiseman


April 2, 1992

MONTOYA, Commissioner, concurring:

This case involves tragic circumstances. However, based on Imageries’ failure to file a review brief with the Commission and its failure to advise the Commission that it would not be filing a brief, I would vote to vacate the direction for review, affirm the judge, and impose the $640 penalty.

Taking into account the current environment—with OSHA fines having been increased sevenfold since the penalty on this case was levied—the order to show cause here is, in my opinion, insufficiently explanatory. Indeed, the majority itself acknowledges that a nonlawyer might not have a clear understanding of what terms like “cause” and “default” mean in the context of the order. Contrary to the majority, I believe that an employer intent on growing a business who deals with this Commission should not necessarily be expected to: look up unfamiliar, technical words in dictionaries; undertake a cross-reference to the Commission’s Rules of Procedures3; or make a phone call to OSHA or a judge in order to determine the meaning of a notice or letter from the Commission. Regarding the majority’s reference to the treatment pro se parties receive in the federal courts, it goes without saying that an administrative agency such as ours should not be expected to apply procedures with the strictness of those courts.

However, I am encouraged by certain recent developments. Of late, the show cause orders issued by the OSHRC administrative law judges have tended to be more akin to the letter that Department of Labor Counsel Daniel J. Mick wrote to Imageries, written in English rather than “legalese.” Also, my understanding is that the Commission’s administrative law judges—recognizing the reality of both OSHA’s higher fine structure and its recent policy of occasionally imposing megafines—are more and more taking the burden on themselves to call the parties when a deadline is imminent and explain the consequences of missing the deadline.

Furthermore, the Commission is considering a return to notice pleading, a move which should certainly reduce the difficulty of a pro se employer attempting to comply with our rules regarding answers. Indeed, reducing the form requirement of an answer to a simple notice of defenses may strengthen the argument that, in a proper case, a notice of contest can itself be construed as an answer. The Commission is also considering a rule change which would finally make simplified proceedings a truly available alternative to our legalistic conventional proceedings. Under the new rule, an employer could avoid pleading requirements altogether by filing a request for simplified proceedings.

In addition, I note that the case before us is not the only case in which I differ with the majority on how to take the special requirements of pro se employers into account without unduly raising their costs of dealing with this Commission. In Choice Electric Corp., 14 BNA OSHC 1899, 1901, 1987–90 CCH OSHD ¶ 29,141 (No. 88–1393, 1990), for example, the majority took what I believe to be an unnecessarily legalistic position. Had they not shifted the burden of proof from the party seeking dismissal on procedural grounds (the Secretary of Labor) to the party seeking to preserve its right to a hearing on the merits (the pro se employer), the majority could have remanded to the judge on the merits of the case. In addition, I note that my fellow Commissioners have said that a written notice of contest stating “You have the wrong employer” would be insufficient and that they would require the written, “magic words”, “I contest the violation”. Acrom Construction Services, 15 BNA OSHC 1123, 1125 n. 2, 1191 CCH OSHD ¶ 29,393, p. 39,563 n. 2 (No. 88–2291, 1991), decided by the majority during the two-month period in 1990 when Commissioner Montoya was not a Commissioner). In my opinion, the former words should be sufficient and, indeed, would seem more appropriate on a multi-employer worksite.

In summary, recognizing the current regulatory environment, we at the Commission must remind ourselves that changes in the application of procedural rules with respect to adjudicative hearings can substantially affect the costs of doing business for pro se employers, by imposing requirements on such employers that effectively force them to hire attorneys to present their cases before the Commission.


April 2, 1992

Velma Montoya











OSHRC Docket No. 90–0378






June 15, 1990


Respondent, Imageries, having failed to respond to an order to show cause and pursuant to Rule 41(a) of the Commission’s Rules of Procedure [29 C.F.R. § 2200.41(a)], is hereby declared in default for its failure to comply with Commission Rule 36, 2200.36, requiring the filing of an answer to the complaint in this cause.

Therefore, it is ORDERED:

1. The notice of contest is dismissed.

2. Citation Nos. 1 and 2 are affirmed.

3. A penalty of $640.00 is assessed.






1 Commission Rule 41, 29 C.F.R. § 2200.41, provides:

§ 2200.41 Failure to obey rules.

(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared to be in default either:

(1) On the initiative of the Commission or Judge, after having been afforded an opportunity to show cause why he should not be declared to be in default....

(b) Motion to set aside sanctions. For reasons deemed sufficient by the Commission or Judge and upon motion expeditiously made, the Commission or Judge may set aside a sanction imposed under paragraph (a) of this rule.

(Emphasis added).

2 We also note that an employer of limited means who hires counsel and successfully contests a citation can recover attorney fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. § 504, implemented by the Commission Rules at 29 C.F.R. § 2204. See 29 C.F.R. § 2204.105 Eligibility of applicants.

3 I note that 29 C.F.R. § 2200.41(a) is replete with legal terminology, which could easily confuse a pro se employer as to what could happen if the employer should be declared in “default.” In addition, the guide to Commission procedures provides no table of contents; nor does a cursory review provide information about “Rule 41” or § 2200.41.