Refusal of OSHA Certified Mail Does Not Defeat Service: Alternative Delivery and Judicial Notice of Address Satisfy Due Process

Introduction

In Lori Chavez-DeRemer v. Elmer Miller d/b/a Miller Building Systems, LLC (7th Cir. Sept. 10, 2025), the Seventh Circuit granted the Secretary of Labor’s petition for summary enforcement of a final Occupational Safety and Health Review Commission (OSHRC) order. The case centers on a recurring enforcement challenge: what notice is constitutionally required to bind an employer who declines to accept OSHA’s certified-mail citation, and may OSHA rely on alternative delivery methods and public records to validate service?

The petitioner, the Secretary of Labor, sought summary enforcement under 29 U.S.C. § 660(b) after an OSHA citation became a final order due to the employer’s failure to timely contest within 15 working days of receipt as required by 29 U.S.C. § 659(a). The respondent, Elmer Miller, argued that service was defective: OSHA mailed the citation to 433 E. County Road, 100 N., Arcola, Illinois 61910 (“433 address”) instead of 435; certified mail was refused twice; and OSHA could not prove he actually received the citation. He also initially argued that OSHA should have used certified mail (not UPS) and served his counsel, and that OSHRC miscalculated the finality date—arguments he later abandoned or that were corrected.

With summary enforcement “purely ministerial and unreviewable” once a final order issues, the only live question was whether OSHA provided constitutionally adequate notice so that the citation became final. The panel (Judge Rovner, joined by Judges Easterbrook and Lee) held that OSHA’s service satisfied due process because it was “reasonably calculated” to apprise Miller of the citation, especially after OSHA resent the citation by UPS and because the 433 address is indisputably associated with Miller—facts the court confirmed by taking judicial notice of public records.

Summary of the Opinion

The court granted the Secretary’s petition for summary enforcement under 29 U.S.C. § 660(b).
Due process does not require actual receipt; it requires notice “reasonably calculated” to inform the employer and afford an opportunity to object (Mullane standard).
Refusal of USPS certified mail does not invalidate otherwise adequate service. Though the panel did not definitively decide whether refusal obligates OSHA to take additional steps, it emphasized that OSHA did so here by using UPS, which delivered the citation and recorded “Received by Miller.”
OSHA may use alternative delivery methods (such as UPS) when certified mail is refused or cannot be effected, consistent with long-standing OSHRC practice and persuasive authority.
The court took judicial notice (Fed. R. Evid. 201(b)) of county tax and property records showing that Miller and his company are associated with the 433 address; Miller himself had repeatedly used 433 as his address in OSHRC and federal court filings. Service to that address was therefore reasonably calculated to provide notice.
The panel warned that, had it not resolved the matter on the record, it might have appointed a special master and suggested costs and sanctions if Miller’s address argument proved frivolous.

Analysis

Statutory Framework and Procedural Posture

The OSH Act establishes a tightly sequenced path from citation to judicial enforcement:

OSHA issues a citation, which must be contested within 15 working days “from the receipt” or else it becomes a “final order” of the Commission. 29 U.S.C. § 659(a).
After the OSHRC order is final, the aggrieved party has 60 days to seek review in the court of appeals. 29 U.S.C. § 660(a)–(b).
If no timely review petition is filed, the Secretary may seek “summary enforcement” of the final order in the court of appeals. 29 U.S.C. § 660(b). The court describes this step as “purely ministerial and unreviewable,” underscoring that merits review is no longer available.

Against that backdrop, the employer’s only viable way to derail summary enforcement is to show that the OSHRC order never became “final” because notice was legally insufficient—i.e., that OSHA failed to properly serve the citation such that the 15-day contest period never began to run. The Seventh Circuit therefore confined its inquiry to service and due process.

Precedents and Authorities the Court Relied On

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950): The controlling due-process standard. Notice must be “reasonably calculated, under all the circumstances” to inform interested parties and afford an opportunity to object. Actual receipt is not required.
Dusenbery v. United States, 534 U.S. 161 (2002): The government need not ensure actual notice; it must attempt to provide actual notice. This undercuts arguments that absence of proof of actual receipt defeats service.
Jones v. Flowers, 547 U.S. 220 (2006): When certified mail is returned “unclaimed,” the government must take additional reasonable steps to notify. The Seventh Circuit contrasts “unclaimed/undeliverable” with “refused”—the latter suggests deliberate evasion and may not trigger a duty to do more. Regardless, OSHA did more here by using UPS.
Garcia v. Meza, 235 F.3d 287 (7th Cir. 2000): Reinforces the Jones principle in the Seventh Circuit: once the government learns its method failed (e.g., undeliverable), due process requires further reasonable attempts.
OSHRC decisions and guidance:
- Donald K. Nelson Constr., Inc., 3 BNA OSHC 1914 (1976): Endorses alternative methods when certified mail cannot be effected.
- B.J. Hughes, Inc., 7 BNA OSHC 1471 (1979): The test is whether service is reasonably calculated to provide notice of the citation and proposed penalty.
- George Barry d/b/a Union Waterproofing, Roofing & Painting Co., 9 BNA OSHC 1264 (1981): Non-receipt or refusal to accept mail ordinarily does not invalidate service.
- Maxim Crane Works, No. 17-1894 (OSHRC ALJ 2020), aff’d (OSHRC 2021): Certified-mail service valid even if the respondent did not receive it.
- OSHA Field Operations Manual, Ch. 5, § XI(b)(1): Authorizes use of alternative delivery services, in addition to certified mail, when effective to give notice.
DRTG Builders, LLC v. OSHRC, 26 F.4th 306 (5th Cir. 2022): Persuasive circuit authority holding OSHA’s UPS service was reasonably calculated to provide notice after USPS certified mail failed. The Seventh Circuit aligns itself with this practical approach.
In the Matter of Lisse, 905 F.3d 495 (7th Cir. 2018): Explains judicial notice under Fed. R. Evid. 201(b): courts may notice adjudicative facts not subject to reasonable dispute, including from reliable public sources, without a separate motion if the brief identifies the source and relevance.
Additional due-process notice cases cited for context: Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988); Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983); Greene v. Lindsey, 456 U.S. 444 (1982). These reinforce the consistent application of Mullane across contexts.

The Court’s Legal Reasoning

Refusal of certified mail does not defeat service. The panel rejected the notion that an employer can avoid OSHA penalties by “contumaciously” refusing certified mail. Under Mullane and Dusenbery, due process requires a method reasonably calculated to provide notice, not proof of actual receipt. Where mail is returned “undeliverable,” the government must try again (Jones; Garcia), but “refusal” is different: it suggests the addressee or a proxy was aware of the attempted delivery and elected not to accept it. The court stated it saw “no reason why due process would require the Commission to try again” in the face of refusal. Although the panel did not decisively hold that refusal never requires additional steps, it indicated strongly that deliberate evasion will not be rewarded.
Alternative delivery was reasonable. After two refusals of USPS certified mail, OSHA used UPS ground with tracking, yielding “Received By Miller.” The court found this plainly reasonable and consistent with OSHRC precedent and OSHA’s Field Operations Manual. The court cited the Fifth Circuit’s DRTG Builders approving UPS service after a failed USPS attempt, underscoring emerging cross-circuit consensus.
Service to the 433 address was proper. Miller argued belatedly that OSHA used the “wrong” address, claiming his address is 435, not 433. The panel found this argument unpersuasive and untimely, noting:
- OSHA and OSHRC had long communicated with Miller at 433, and prior citations and proceedings used that address.
- Miller admitted in earlier OSHRC filings (and in federal court) that 433 is the “correct address” for his business operations and requested service there.
- County tax and property records list Miller Building Systems, LLC c/o Elmer Miller at 433. The court took judicial notice of these public records under Rule 201(b), finding their accuracy not reasonably disputable.
On this record, sending the citation to 433 was “reasonably calculated” to apprise Miller. The court emphasized that service to either a home or work address associated with the respondent can satisfy due process.
Judicial notice appropriately anchored the address finding. The court expressly relied on official county records (tax and property) and Miller’s own statements in prior cases. It declined to rest its conclusion on private websites or untested declarations for the truth of the matter asserted, though it acknowledged their relevance to assessing reasonableness. This approach illustrates disciplined use of Rule 201(b): rely on indisputable public records, not disputed or unauthenticated materials.
Summary enforcement and jurisdiction. Because the OSHRC order became final (no timely contest within 15 working days), and the 60-day window for judicial review lapsed without a petition, the only question for the court of appeals was whether service was adequate. Concluding that it was, the court fulfilled its “purely ministerial” role and issued the enforcement decree under § 660(b).

What This Decision Changes or Clarifies

Refusal of USPS certified mail does not undermine otherwise valid service of OSHA citations.
OSHA may use private carriers (e.g., UPS with tracking) as a reasonable alternative when certified mail is refused or cannot be effected, consistent with OSHRC practice and due-process principles.
Courts may take judicial notice of public property and tax records to confirm address associations and validate service as “reasonably calculated” under Mullane.
An employer’s historical use of an address in agency and court filings can estop or undermine late-breaking claims that the address is “wrong.”
In the Seventh Circuit, the practical path for agencies is to document both the initial certified-mail attempt and any alternative efforts; for employers, refusing mail is a risky tactic unlikely to defeat enforcement.

Potential Impact

The decision fortifies OSHA’s service toolbox and curbs “service-dodging” tactics:

Administrative enforcement: Agencies can comfortably rely on alternative tracked delivery when certified mail is refused. They should preserve tracking logs and contemporaneous notes. The decision also encourages agencies to compile and reference official public records tying respondents to service addresses.
Employer strategy and compliance: Employers cannot use refusal of certified mail to reset deadlines or avoid finality. Employers should maintain accurate contact information with OSHA and promptly contest within the 15-day window if they wish to litigate.
Litigation posture: Courts may look skeptically at late-raised address objections—especially where the record shows consistent use of the address and public records confirm ownership/association. Frivolous notice challenges risk costs and sanctions.
Cross-circuit consonance: The Seventh Circuit’s alignment with the Fifth Circuit’s DRTG Builders suggests a broader judicial consensus: due process is satisfied by reasonable, documented efforts, including private carriers, when USPS certified mail fails or is refused.

Complex Concepts Simplified

Final order (OSHRC): If an employer does not file a contest within 15 working days after receiving an OSHA citation, the citation becomes a final OSHRC order by operation of law. After that, merits review is largely foreclosed.
Summary enforcement: A streamlined court process where the Secretary asks the court of appeals to enforce a final OSHRC order. The court’s role is “ministerial” and generally unreviewable; it does not re-litigate the merits, only confirms that the order is final (which depends on proper notice).
Reasonably calculated notice: The constitutional standard from Mullane. The government’s method must be sensible under the circumstances, not perfect. Actual receipt is not required; reasonable attempts to provide actual notice are.
Refused vs. unclaimed vs. undeliverable: “Unclaimed/undeliverable” usually triggers a duty to take additional reasonable steps (Jones). “Refused” suggests the addressee (or proxy) declined to accept delivery, and courts may not require further attempts—particularly when other facts indicate deliberate evasion.
Judicial notice (Fed. R. Evid. 201(b)): Courts can accept certain facts without formal proof if they are not subject to reasonable dispute and come from sources whose accuracy cannot be reasonably questioned (e.g., county property records). This can conclusively establish that an address is associated with a party.
d/b/a: “Doing business as.” The caption lists Elmer Miller “d/b/a Miller Building Systems, LLC,” reflecting that service reasonably targeted both individual and business operations associated with an address.

Conclusion

The Seventh Circuit’s decision supplies clear, practical guidance for OSHA enforcement and due-process notice. An employer cannot defeat service by refusing certified mail. When USPS certified mail is refused, OSHA may use alternative tracked delivery, and service to an address firmly tied to the employer—confirmed by judicially noticeable public records and the employer’s own filings—is “reasonably calculated” to provide notice. Because these conditions were met, the citation became a final OSHRC order, and the Secretary was entitled to summary enforcement.

Beyond OSHA, the opinion reinforces a broader administrative-law principle: due process prizes reasonable, documented efforts to notify over rigid, formalist demands for actual receipt. When agencies pair methodical delivery attempts with authoritative public-record confirmation of addresses, courts will enforce final agency orders and resist tactics that seek to manufacture defects in service after the fact.