Refusal Is Not a Shield: Seventh Circuit Confirms That “Reasonably Calculated” Notice, Including Alternative Delivery and Judicial Notice of Associated Addresses, Satisfies OSHA Service for Summary Enforcement

Introduction

This case arises from the Occupational Safety and Health Administration’s effort to enforce a workplace safety citation against Elmer Miller, a general contractor doing business as Miller Building Systems, LLC, after an OSHA inspector found workers without fall protection. The Occupational Safety and Health Act sets a tight and unforgiving timeline: an employer has fifteen working days from receipt of a citation to contest it before the Occupational Safety and Health Review Commission. If the employer does not timely contest, the citation becomes a final order of the Commission. Once final, the employer has sixty days to petition for judicial review before the order becomes ripe for summary enforcement in the court of appeals. See 29 U.S.C. §§ 659(a), (c); 660(b).

When OSHA sought summary enforcement in the Seventh Circuit, Miller raised one of the few post-final defenses available: he claimed that OSHA never properly served the citation. Specifically, he contended OSHA used the wrong address (433 E. County Road 100 N., Arcola, IL 61910) instead of his asserted address (435 E. County Road 100 N.), and that UPS delivery (following returned certified mail) was improper or unproven.

Judge Rovner, writing for a unanimous panel, rejected those arguments and granted summary enforcement. The opinion clarifies that due process requires notice that is “reasonably calculated” to apprise an employer of the citation—not actual receipt—and that an employer cannot avoid OSHA enforcement merely by refusing certified mail. The court also approved use of alternative delivery (UPS) in appropriate circumstances and took judicial notice of public records associating Miller and his business with the address used by OSHA.

Summary of the Opinion

The Seventh Circuit granted the Secretary of Labor’s petition for summary enforcement of a final OSHRC order, concluding:

• Due process focuses on whether notice was reasonably calculated to reach the employer; it does not require proof of actual receipt.
• Refusal of certified mail does not invalidate service. Even if additional steps were required in some circumstances, OSHA took such steps by sending the citation via UPS, which tracking showed was delivered and “Received By Miller.”
• OSHA reasonably sent the citation to the 433 address. The court took judicial notice of public tax and property records, and of Miller’s own prior litigation filings and agency interactions, all tying him and his company to 433 E. County Road 100 N.
• Given those facts, OSHA’s service efforts met the Mullane due process standard and the agency’s long-standing practice allowing alternative service when certified mail is refused or ineffective.
• The court warned that, absent its judicial notice determination, it could have appointed a special master and potentially shifted costs or imposed sanctions if Miller’s contrary address claim proved frivolous.

Detailed Analysis

Precedents Cited and Their Influence

• Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950): The cornerstone notice case. Mullane requires notice “reasonably calculated, under all the circumstances” to apprise interested parties and allow an opportunity to object. The Seventh Circuit used Mullane to frame the constitutional baseline: reasonable efforts suffice; actual receipt is not required.
• Dusenbery v. United States, 534 U.S. 161 (2002): Emphasized that due process requires attempts at actual notice, not actual notice. The court relied on Dusenbery to reject Miller’s insistence on proof of actual receipt and to validate OSHA’s effort-focused approach.
• Jones v. Flowers, 547 U.S. 220 (2006): Held that when the government learns notice was not received (e.g., certified mail comes back “unclaimed”), it must take additional reasonable steps. The Seventh Circuit distinguished “unclaimed/undeliverable” from “refused”: refusal indicates purposeful evasion, not a defect in the government’s method. Even so, OSHA did take additional steps by sending UPS.
• Garcia v. Meza, 235 F.3d 287 (7th Cir. 2000): Once the government learns prior efforts failed, due process may require further reasonable attempts. The court invoked Garcia to emphasize the flexible, circumstance-based inquiry and to support the reasonableness of OSHA’s follow-up.
• OSHA/OSHRC authorities:
  • Donald K. Nelson Construction, Inc., 3 BNA OSHC 1914 (No. 4309, 1976): Recognizes alternative service methods if certified mail cannot be effected. The court used this Commission precedent to harmonize the statutory certified-mail directive with practical enforcement realities.
  • B.J. Hughes, Inc., 7 BNA OSHC 1471 (No. 76-2165, 1979): The key question is whether service was reasonably calculated to provide notice and an opportunity to determine whether to abate or contest—aligning OSHRC’s jurisprudence with Mullane.
  • George Barry d/b/a Union Waterproofing, 9 BNA OSHC 1264 (No. 77-2720, 1981) and Maxim Crane Works (ALJ), 2020 WL 9894075, aff’d 2021 CCH OSHD ¶ 33847: Refusal or nonreceipt does not defeat otherwise valid service—foreshadowing the court’s rejection of “refusal” as a defense.
  • Field Operations Manual, Ch. 5, § XI(b)(1): Agency guidance permitting use of commercial carriers in addition to certified mail to effectuate notice. While not binding, it reflects OSHA’s consistent practice and was cited favorably.
• DRTG Builders, LLC v. OSHRC, 26 F.4th 306 (5th Cir. 2022): The Fifth Circuit approved OSHA’s use of UPS after certified mail went unclaimed. The Seventh Circuit aligned with DRTG’s pragmatic due-process analysis, lending inter-circuit coherence.
• Other Supreme Court notice cases (Greene v. Lindsey; Mennonite Board of Missions; Tulsa Professional Collections): Cited to underscore that due process analysis spans varied contexts but turns on the same Mullane “reasonably calculated” touchstone.

The Court’s Legal Reasoning

The court’s reasoning proceeds in three steps: (1) statutory structure and procedural posture; (2) constitutional due process; and (3) factual application, including judicial notice of the address.

• Statutory posture and the narrow window to resist enforcement:
  • Under § 659, an OSHA citation becomes a final Commission order if not contested within fifteen working days. Under § 660(b), after sixty days, the Secretary may seek summary enforcement in the court of appeals—a “purely ministerial” and unreviewable action.
  • Given this posture, the only meaningful post-final challenge is to the validity of service—i.e., whether the citation ever became final at all. The court therefore focused on the adequacy of service.
• Reconciling statutory certified mail with due process:
  • The Act instructs OSHA to send citations by certified mail. But the court squarely rejected any interpretation that would let employers nullify enforcement by refusing certified mail. That would produce an absurd result, undermining the Act’s enforcement mechanism.
  • Due process requires methods reasonably calculated to apprise the employer; it does not require actual receipt. Accordingly, alternative delivery can satisfy due process when certified mail is thwarted (whether by refusal or other circumstances).
• Refusal vs. unclaimed/undeliverable:
  • If certified mail is returned “unclaimed” or “undeliverable,” Jones v. Flowers may compel additional reasonable steps. Where mail is returned “refused,” the government has reason to believe the party is evading notice, and due process does not necessarily require further efforts.
  • Here, the court did not definitively decide whether refusal alone requires more steps because OSHA did more anyway—sending the citation via UPS, which tracking showed was received.
• Address certainty and judicial notice:
  • Miller argued the government used the wrong address (433 vs. his asserted 435). The court took judicial notice of Douglas County tax and property records listing Miller Building Systems, LLC, c/o Elmer M. Miller, at 433 E. County Road 100 N.
  • The court also took judicial notice of Miller’s own statements in other OSHA litigation expressly identifying 433 as the correct business address and his requests to be served there in district court proceedings, as well as a long history of successful OSHA service at 433.
  • Given these official and party-authored records, notice to 433 was reasonably calculated to reach Miller.

On these facts, OSHA’s sequence—certified mail to a known, associated address, followed by UPS delivery after refusal—satisfied due process. The court therefore granted summary enforcement.

The Court’s Use of Judicial Notice

• Authority: Federal Rule of Evidence 201(b) allows judicial notice of adjudicative facts that are not subject to reasonable dispute because they can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
• Scope of notice here:
  • Judicially noticed: official tax and property records linking Miller and his company to 433; court filings in which Miller adopted 433 as his business address; the fact of prior OSHA interactions using that address.
  • Not judicially noticed as truth: factual assertions in an OSHA official’s declaration and data pulled from private commercial websites. The court referenced these materials to explain OSHA’s reasonableness, but it anchored its judicial notice holdings in official and court records.
• Effect: Judicial notice converted Miller’s address objection into a largely legal non-starter. It obviated the need for an evidentiary hearing and supported the conclusion that service to 433 was reasonably calculated to apprise him.

Procedural Posture and Forfeiture

• Miller moved the goalposts. In his initial answer opposing summary enforcement, he argued OSHA should have served him by certified mail only, served his lawyers, and miscalculated finality dates. Only later, in response to the Secretary’s merits brief, did he pivot to claim OSHA used the wrong address. He tried to justify the delay by claiming unavailability of the agency record, but the petition for enforcement already attached the relevant address materials.
• The court could have found forfeiture of the new address argument. Instead, it addressed the merits and rejected it, while noting the belated nature of the claim and warning that a special master and sanctions might be appropriate if such gamesmanship persisted.

What the Court Did Not Decide

• Whether a “refused” certified mailing, standing alone, obligates OSHA to take additional steps. The panel suggested it likely does not, but resolved the case on OSHA’s additional UPS service.
• Whether OSHA must serve counsel during the 15-day contest period. Miller abandoned that argument.
• Any broader rule about private database reliability for judicial notice. The court relied on official records and court filings instead.

Practical Impact and Forward-Looking Implications

For OSHA and Other Agencies

• Green light for alternative delivery: Agencies may use commercial carriers like UPS to supplement certified mail when circumstances indicate certified delivery will not be effective (refusal, unclaimed, evasion).
• “Refusal” is not a trump card: Employers cannot defeat enforcement by refusing certified mail. Agencies should document refusals and follow up with reasonable alternative steps.
• Build the address record: Agencies should maintain and, when needed, present official records linking respondents to service addresses. Property rolls, tax records, DMV registrations, and a party’s own litigation statements can be decisive.
• Summary enforcement pipeline preserved: By reinforcing that summary enforcement under § 660(b) is ministerial and that due-process adequacy is judged by reasonable efforts, the opinion preserves an efficient enforcement mechanism and deters strategic non-receipt.
• Inter-circuit harmony: The Seventh Circuit’s approach aligns with the Fifth Circuit (DRTG Builders), fostering a consistent national standard favorable to practical notice solutions.

For Employers and Respondents

• Do not rely on evasion: Refusing certified mail, instructing others to refuse, or shifting addresses will not insulate against enforcement and may invite warnings, cost-shifting, or sanctions.
• Act within the 15-day window: The surest way to preserve defenses is to timely contest the citation before the Commission. After finality, the path to relief is exceedingly narrow.
• Maintain consistent address records: Inconsistencies between business filings, property/tax records, and litigation positions will be used against you. Courts can and will take judicial notice.
• Expect judicial skepticism of late-raised service objections, especially when official records tell a different story.

For Courts and Practitioners

• Judicial notice is a powerful tool for service disputes, particularly where official public records and a party’s own filings establish address associations.
• Refusal vs. unclaimed/undeliverable matters: The Seventh Circuit’s analysis encourages tailored due-process responses based on what the government learns from the mail carrier.
• Record-building best practices: Practitioners should collect and present official records tying respondents to addresses, along with delivery logs and tracking data, to meet the “reasonably calculated” standard.

Complex Concepts Explained

• Final order and summary enforcement:
  • If an employer does not file a notice of contest within fifteen working days of receiving an OSHA citation, the citation becomes a final order of the Commission (29 U.S.C. § 659(a), (c)).
  • The employer then has sixty days to petition for appellate review. After that, the Secretary can seek summary enforcement, a largely ministerial action in the court of appeals (29 U.S.C. § 660(b)).
• “Reasonably calculated” notice:
  • Under Mullane and its progeny, due process requires that the government use methods reasonably likely to inform the party. It does not guarantee actual receipt or demand perfection.
• Refused vs. unclaimed/undeliverable mail:
  • Refused: Suggests the addressee or someone on their behalf declined delivery; due process may not require additional steps.
  • Unclaimed/undeliverable: Suggests the initial method did not reach the addressee for reasons beyond refusal; Jones v. Flowers may require reasonable additional steps (e.g., resend by regular mail, use a different address, or employ a different carrier).
• Judicial notice (Fed. R. Evid. 201):
  • Court acceptance of indisputable facts from reliable sources (e.g., official public records, the court’s own docket).
  • Useful to establish address associations without an evidentiary hearing.
• Alternative service:
  • Although the OSH Act specifies certified mail, longstanding OSHRC precedent and OSHA’s Field Operations Manual contemplate alternative or supplementary methods when certified mail cannot be effected. The constitutional question is ultimately due-process adequacy.
• d/b/a and service:
  • Serving a person “d/b/a” a business at an address used for that business can satisfy due process if that address is reasonably associated with the person and their operations.

Conclusion and Key Takeaways

The Seventh Circuit’s decision in Lori Chavez-DeRemer v. Elmer Miller fortifies a practical and principled approach to OSHA service. It refuses to let formality or gamesmanship eclipse the constitutional standard: what matters is whether OSHA’s efforts were reasonably calculated to provide notice. The opinion confirms that:

• Refusal of certified mail does not defeat service.
• Agencies may and should employ alternative methods (such as UPS) when circumstances warrant.
• Ccourts can take judicial notice of public records and a party’s own litigation positions to establish address associations.
• Summary enforcement remains ministerial once a final order is properly noticed and unchallenged within statutory timeframes.

In practical terms, the ruling curbs evasion tactics and streamlines OSHA enforcement, while providing clear guidance for agencies and litigants on building a record that satisfies due process. Employers, in turn, are reminded that the surest defense to an OSHA citation is timely contest—not tactical non-receipt.