LORI CHAVEZ -DER EMER , Secretary of Labor v. ELMER MILLER d/b/a MILLER BUILDING SYSTEMS , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2313
LORI C HAVEZ -DER EMER ,
Secretary of Labor,
Petitioner,
v.
ELMER M ILLER d/b/a
M ILLER BUILDING S YSTEMS , LLC,
Respondent.
____________________
Petition to Enforce an Order of the
Occupational Safety & Health Commission
No. 16295559
____________________
A RGUED F EBRUARY 10, 2025 — DECIDED S EPTEMBER 10, 2025
A MENDED S EPTEMBER 30, 2025
____________________
Before EASTERBROOK, R OVNER , and LEE, Circuit Judges.
R OVNER , Circuit Judge. Elmer Miller, a general contractor
and owner of a construction company, has been an actual and
metaphorical moving target for the Occupational Safety and
Health Administration (OSHA). OSHA is responsible for as-
suring, as best it can, that workplaces are safe for workers.

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2 No. 24-2313
And so, when one of its inspectors discovers that a business
owner like Miller has not provided fall protection for workers
laboring high off the ground, it can issue a citation, as it did
here. The Occupational Safety and Health Act (“Act”) al-
lowed Miller fifteen working days from the date of receipt of
the citation to contest it before the Occupational Safety and
Health Review Commission (“Commission”), the body carry-
ing out the adjudicative functions of the Act. 29 U.S.C. §659(c),
29 U.S.C. §651(b)(3). After fifteen days it became a final order
of the Commission. 29 U.S.C. §659(a). And then once it be-
came a final order, Miller had sixty days to file a petition for
review with this court, before the final order became ripe for
an order for summary enforcement. 29 U.S.C. §660(b).
The Secretary of Labor petitioned this court for enforce-
ment of the final order on July 30, 2024. Summary enforce-
ment of the final order by a court is a purely ministerial action
and unreviewable by any court or agency. 29 U.S.C. §660(b),
29 U.S.C. §659(a). That means that one of the very few ways
for the recipient of the citation to contest it after fifteen work-
ing days has passed is to assert that OSHA did not properly
serve the citation, and therefore it never became a final order
over which this court has jurisdiction. This is precisely what
Miller claims here. And so, the only question we are left to
answer is did OSHA demonstrate that it adequately served
Miller with the citation.
OSHA initially sent the citation to “Elmer Miller dba Mil-
ler Building Systems, LLC,” by United States Postal Service
certified mail, as the Act instructs. 29 U.S.C. §659(a). OSHA
sent the certified mail to 433 E. County Road, 100 North, Ar-
cola, Illinois 61910 (“433 address”), the address to which
OSHA had sent many notices in the past. According to the

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No. 24-2313 3
tracking information, someone at that address twice refused
to accept the certified mail when the United States Postal Ser-
vice attempted delivery, and therefore the postal service re-
turned the mail noting that it had been “refused” two times.
Once the certified mail was returned as refused, OSHA
moved to a new plan, resending the citation to Miller at the
same address using United Parcel Service (UPS) ground ser-
vice delivery with tracking services. UPS tracking showed
that the citation was delivered and that it was “Received By
Miller.” R. 5 at 19.
Miller claims in his brief that OSHA bears the burden of
demonstrating adequate service, and that it failed to do so for
the following two reasons: first, because OSHA did not send
the citation to the proper address, and second, and relatedly,
because it has no proof that Miller received the document.
Miller claims that his address and that of his business is 435
East County Road, 100 North, Arcola, Illinois, 61910 (“435 ad-
dress”), and not the 433 address. As we describe in more de-
tail below, public records indicate that Miller Building Sys-
tems owns both parcels of land.
Miller’s argument about the incorrect address is a new
one. In his answer to the Secretary’s “Petition for Summary
Enforcement and Proposed Judgment” in this court, he ar-
gued only that OSHA did not properly execute service for the
following three reasons: it sent notice by UPS rather than cer-
tified mail, it should have sent the notice to his counsel, and
the date the order became final was incorrect. It was not until
Miller’s response to the Secretary’s substantive brief in this
case that he moved the target, alleging that OSHA had no

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4 No. 24-2313
proof that he was associated with the 433 address.1 Miller al-
leges that he could not have made this argument any sooner
than he did because at the time he filed his brief he had not
yet seen the agency record. But the Secretary of Labor’s very
first filing in this court—the Petition for Summary Enforce-
ment—contained an attachment that included almost all of
the information in the agency record—including a copy of the
cover letter and citation, both of which were addressed to
“Elmer Miller, dba Miller Building Systems LLC and its suc-
cessors, 433 East County Road, 100 N, Arcola, IL 61910.” R.1
at 12, 14. Miller therefore knew from the inception of this mat-
ter that OSHA sent the notice to the 433 address.
1 This is why we describe Miller as a metaphorical moving target. As
for the literal moving target piece, having twice refused service of the cer-
tified mail, or, perhaps having instructed an employee or family member
to do so, he now accuses OSHA of failing to prove that it provided him
with service. Some might describe this as “chutzpah.” Miller has a docu-
mented history of attempting to avoid service of OSHA citations. On at
least four occasions since 2018, OSHA has needed to hire a private process
server to effectuate service on Miller. See Reply Brief, Exh. B at 2 (Declara-
tion of Tricia L. Rankin, Assistant Area Director of OSHA, Peoria Area
office). On each of those occasions Miller was served at the 433 address.
And on one occasion, when the Secretary moved the court to require Mil-
ler to waive service and provide reliable contact information, Miller pro-
vided the 433 address as his reliable contact address. See Id. at Exh. N. As
we explain later, we take judicial notice of the court documents in exhibits
M and N of the Secretary’s reply brief. We do not accept the factual asser-
tions made in Assistant Area Director Rankin’s declaration for the truth of
the matter, but rather for the purpose of assessing whether OSHA’s at-
tempts to serve Miller at the 433 address were reasonably calculated to
give Miller fair notice of the citation, in light of the information it had at
the time.

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No. 24-2313 5
Nevertheless, we will put this belated argument issue aside
and discuss what is required for OSHA to fulfill its notice re-
quirements.2
Although it is true that section 10(a) of the Act calls for
OSHA to send a citation by certified mail, it would be absurd
to conclude that an employer could avoid fines and sanctions
merely by contumaciously refusing to accept the citations
OSHA sends by certified mail. The Due Process Clause of the
Constitution defines the type of notice a government entity
must provide a citizen before depriving it of property by, for
example, levying a fine for regulatory violations. As the Su-
preme Court has defined it, “[a]n elementary and fundamen-
tal requirement of due process in any proceeding which is to
be accorded finality is notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pen-
dency of the action and afford them an opportunity to present
their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339
U.S. 306, 314 (1950). Due process does not require that the
government “must provide actual notice, but that it must at-
tempt to provide actual notice.” Dusenbery v. United States, 534
U.S. 161, 170 (2002) (emphasis in original). If the government
has reason to know that the party never received the initial
notice, it need only undertake reasonable additional efforts at
notification. Jones v. Flowers, 547 U.S. 220, 234 (2006) (declaring
that if a certified letter comes back as “unclaimed,” the
2 Miller has dropped his arguments regarding notice to his lawyers
and the miscalculated date, the latter of which has been corrected in the
Secretary’s brief.

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6 No. 24-2313
government must take additional reasonable steps to give no-
tice).3
For this reason, the agency has long interpreted the Act to
allow for alternative methods of service if the agency cannot
effectuate service through certified mail. See Donald K. Nelson
Constr., Inc., 3 BNA OSHC 1914, 1976 WL 30037, at *1 (No.
4309, 1976) (“[A]n alternative method may be used if service
by certified mail cannot be effected.”); see also Field Operations
Manual Chapter 5, § XI(b)(1) (“[U]se of a mail delivery service
other than the United States Postal Service, can be used in ad-
dition to certified mail if it is believed that these methods
would effectively give the employer notice of the citation.)
(emphasis in original); DRTG Builders, LLC v. Occupational
Safety & Health Comm’n, 26 F.4th 306, 311 (5th Cir. 2022)
(OSHA’s service by UPS was reasonably calculated to provide
the employer with notice after the original notice by USPS
was never retrieved from the post office.). The relevant ques-
tion is “whether the service is reasonably calculated to pro-
vide an employer with knowledge of the citation and notifi-
cation of proposed penalty and an opportunity to determine
3 The Supreme Court has considered the adequacy of notice in many
different contexts, including, for example, to a taxpayer on the brink of
losing a home, Jones, 547 U.S. at 220; owners of seized cash and automo-
biles, Dusenbery, 534 U.S. at 161; creditors of an estate, Tulsa Pro. Collection
Servs., Inc. v. Pope, 485 U.S. 478 (1988); a mortgagee of property subject to
a pending tax sale, Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983);
tenants living in public housing subject to eviction, Greene v. Lindsey, 456
U.S. 444 (1982); and beneficiaries of a common trust fund, Mullane, 339
U.S. at 306. We have no reason to think it would define notice any differ-
ently in the case of a citation from OSHA.

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No. 24-2313 7
whether to abate or contest.” B.J. Hughes, Inc., 7 BNA OSHC
1471, 1474, 1979 WL 8462, at *3 (No. 76-2165, 1979).
To sum up, due process does not require actual receipt of
the violation, only that the government’s service was reason-
ably calculated to provide notice of the citation. In this case,
therefore, if the government sent the notice to the proper ad-
dress (and we will address this question shortly), the govern-
ment’s attempt to serve Miller by certified mail was likely suf-
ficient, as the government took steps reasonably calculated to
give Miller notice of the citation, despite the fact that the mail
was refused. Dusenbery, 534 U.S. at 169–70; see also George
Barry, et al., d/b/a Union Waterproofing, Roofing & Painting Co.,
9 BNA OSHC 1264, 1981 WL 18843,*4 (No. 77-2720, 1981)
(“[O]rdinarily, nonreceipt or refusal to accept mail does not
affect the validity of service.”); Maxim Crane Works, No. 17-
1894, 2020 WL 9894075, at *8 (O.S.H.R.C. A.L.J. Jan. 14, 2020)
(noting that service of “certified mailing of the Citation and
Notification of Penalty was still valid, even though Respond-
ent did not receive it”), affirmed, Maxim Crane Works, 2021
CCH OSHD ¶ 33847 (O.S.H.R.C. No. 17-1894, 2021). Where
the notice comes back as “undeliverable,” the government is
on notice that it must take additional reasonable steps to at-
tempt notice again. See Jones, 547 U.S. at 230; see also Garcia v.
Meza, 235 F.3d 287, 291 (7th Cir. 2000) (holding that even
though the government may have believed at the time of
sending the notice that its methods were adequate to apprise
the recipient, once it was informed by the carrier that the
plaintiffs had never received written notice of the impending
proceeding, due process required the government to try
again). A notice of refusal, however, is different from a notice
that service was “undeliverable.” In the case of a refusal,
OSHA has reason to think that Miller knew that it had been

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8 No. 24-2313
delivered but was purposefully trying to evade the conse-
quences of that notice. But if Miller were deliberately refusing
to accept the otherwise properly sent certified mail, the reason
he did not receive notice would be of his own making—not
OSHA’s. Miller cannot avoid the consequences of violating
OSHA’s safety regulations by refusing to accept the certified
mail. And Miller is no less responsible for his lack of notice if
he instructed his employees or family members to refuse the
service on his behalf, as he would be if he did it himself. In
such a case, we see no reason why due process would require
OSHA to try again.
If employers could avoid OSHA regulations simply by re-
fusing to accept certified mail, the provision requiring OSHA
to send notification by certified mail would essentially evis-
cerate any enforcement powers in the Act. We need not, de-
cide, however, if “refused” certified mail requires OSHA to
take reasonable additional steps to notify the employer, be-
cause OSHA did take such additional steps here. And once
the certified mail was twice rejected, it was eminently reason-
able for OSHA to try a different method, as it did by sending
the notice via UPS. See Mullane, 339 U.S. at 315 (“The reason-
ableness and hence the constitutional validity of any chosen
method may be defended on the ground that it is in itself rea-
sonably certain to inform those affected, or, where conditions
do not reasonably permit such notice, that the form chosen is
not substantially less likely to bring home notice than other of
the feasible and customary substitutes.”) (internal citations
omitted); DRTG Builders, 26 F.4th at 311 (concluding that
OSHA properly served an employer with notice via UPS after
an unsuccessful initial attempt by USPS certified mail).

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No. 24-2313 9
Miller argues that, in any event, neither mailing consti-
tuted a reasonable attempt to give him notice of the citation
because the government sent the notice either negligently or
purposefully to the incorrect address. Miller asserts that his
address and that of his business is the 435 address, and the
government sent the notice to the adjacent property at the 433
address. Miller argues that because OSHA has not presented
any evidence to support a finding that the certified mail or
UPS ground package were sent to Miller at the 435 address,
the OSHA has not met the burden of proving that service was
proper.
Official public records indicate, however, that the 433 ad-
dress is one with which Miller is undeniably associated, and
is an address that both he and Miller Building Systems have
used in official government transactions on many occasions.
We, therefore, take judicial notice of the fact that the 433 ad-
dress is one associated with Miller, and an address at which
OSHA reasonably could be assured Miller would receive the
citation.
Rule 201(b) of the Federal Rules of Evidence
permits a court to take judicial notice of an ad-
judicative fact that is ‘not subject to reasonable
dispute’ because it:
(1) is generally known within the trial
court’s territorial jurisdiction; or
(2) can be accurately and readily deter-
mined from sources whose accuracy can-
not reasonably be questioned.—
In the Matter of Lisse, 905 F.3d 495, 496 (7th Cir. 2018) (quoting
Fed. R. Evid. 201(b)). A party need not make a separate

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10 No. 24-2313
request to the court for judicial notice. It need only refer to the
evidence in its brief and explain why it is relevant and subject
to judicial notice. Id. The Secretary, in her brief, explains that
Miller has asserted for over a decade that the 433 address was
his business address and thus service of the citation to that
address was reasonably calculated to provide him notice. Ju-
dicial notice of public records listing Miller’s address at 433
would demonstrate that notice addressed to 433 was reason-
ably calculated to apprise him of the citation.
We cannot reasonably question the accuracy of the Doug-
las County tax and property records that list the owner of the
433 address as Miller Building Systems, LLC, c/o Elmer M.
Miller.4 See Reply Brief at Exh. C & D. OSHA also conducted
a public records search with CLEAR, a public records search
tool offered by Thomson Reuters. That search revealed that
Miller Building Systems Inc. registered a vehicle to the 433
address.5
4 Miller argues that OSHA issued the citation to Elmer Miller individ-
ually and not Miller Building Systems, but he is incorrect. The initial De-
cember 2, 2022, letter from OSHA to Miller was addressed to “Elmer Mil-
ler, dba Miller Building Systems, LLC.” R.5 at 5. And the Petition for Sum-
mary Enforcement filed in this court states that “Pursuant to section 11(b)
of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C.
§660(b), the Secretary of Labor petitions this Court for an order summarily
enforcing the Occupational Safety and Health Review Commission’s
(Commission) January 4, 2023 final order against Respondent Elmer Mil-
ler, dba Miller Building Systems, LLC (Miller).” R.1 at 1. In any event, no-
tice to Miller at either his home or work address could be reasonably cal-
culated to apprise Miller of the citation.
5 The Secretary’s brief also includes exhibits from several private web-
sites that allow a user to search for business registration. These websites
(continued)

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No. 24-2313 11
Moreover, having claimed to OSHA, the Commission,
multiple courts, and myriad other governmental bodies that
his address was the 433 address, Miller cannot now claim that
notice to the 433 address was not reasonably calculated to ap-
prise him of the citation. OSHA has inspected Miller’s work-
place thirteen times and issued citations for thirty-eight vio-
lations, all sent to the 433 address. OSHA has verified Miller’s
receipt of service at that address. And in fact, Miller asserts in
his answer in this very case that he has “received and con-
tested prior OSHA citations” all of which were sent to the 433
address. R. 3 at 2. In more than a decade of interacting with
OSHA, in his communications with the agency, with its legal
counsel, and in proceedings before the Commission, Miller
has never before informed OSHA that it erred by sending ci-
tations to the 433 address. As both a pro se litigant and when
represented by counsel, Miller has stated to federal courts that
the 433 address was the correct address for his business oper-
ations. For example, in 2020, in other litigation over OSHA
violations, Miller submitted an answer in a case before the
Commission that stated as follows:
Respondents admit … Miller building systems
LLC having business operations engaged in res-
idential construction work and other related
also list the 433 address as being registered to Miller Building Systems,
LLC. Because Miller could argue about the veracity or reliability of the
information from these commercial websites, we will not take judicial no-
tice of the information from those commercial websites, or from declara-
tions or affidavits that have not been made subject to testing and challenge
through the judicial process. See In the Matter of Lisse, 905 F.3d at 496–97.
In any event, the information about the 433 address contained in those
records and declarations is merely duplicative of the information from the
official government tax and property records.

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12 No. 24-2313
activities during the times at issue herein. …
The correct address for such operations is 433 E.
County Road 100 N., Arcola, Illinois 61910.
Reply Brief, Exh. M at 2. And in proceedings involving other
OSHA citations in the District Court for the Central District of
Illinois, Miller has specifically requested to be served at the
433 address. Id., Exh. N at 1.
We take judicial notice of the fact that the 433 address is
an address where OSHA could reasonably calculate that Mil-
ler would be found and could receive the citation. We hold,
therefore, that OSHA’s mailings to the 433 address were rea-
sonably calculated to apprise Miller of the citation. Conse-
quently, we grant the Secretary’s petition for summary en-
forcement and issue the enforcement decree pursuant to 29
U.S.C. §660(b).
By so holding, we have done Miller a great favor. The al-
ternative would be for us to appoint a special master to deter-
mine at a hearing whether Miller is indeed associated with the
433 address in such a way that notice sent to that address was
reasonably calculated to apprise him of the citation. If we
were to do so, we might be inclined to suggest to the district
court that it assign costs of the proceeding to Miller, and pos-
sibly impose sanctions if it finds that Miller’s claim to the con-
trary was frivolous.
The Secretary of Labor’s petition for summary enforce-
ment is GRANTED and we hereby issue the enforcement de-
cree pursuant to 29 U.S.C. §660(b).

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