In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
No. 24-2313
LORI CHAVEZ-DEREMER,
Secretary of Labor,
                                                           Petitioner,

                                v.

ELMER MILLER d/b/a
MILLER BUILDING SYSTEMS, LLC,
                                                          Respondent.
                    ____________________


                Petition to Enforce an Order of the
            Occupational Safety & Health Administration
                            No. 1629559
                    ____________________

 ARGUED FEBRUARY 10, 2025 — DECIDED SEPTEMBER 10, 2025
               ____________________

   Before EASTERBROOK, ROVNER, and LEE, Circuit Judges.
   ROVNER, 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 Commission (Commission or OSHA). The Commis-
sion is responsible for assuring, as best it can, that workplaces
2                                                     No. 24-2313

are safe for workers. And so, when one of its inspectors dis-
covers that a business owner like Miller has not provided fall
protection for workers laboring high off the ground, it can is-
sue a citation, as it did here. The Occupational Safety and
Health Act (“Act”) allowed Miller fifteen working days from
the date of receipt of the citation to contest it, before it became
a final order of the Commission. 

(a). And then
once it became a final order, Miller had sixty days to file a pe-
tition for review with this court, before the final order became
ripe for an order for summary enforcement. 

(b).
    The Secretary of Labor, who oversees the Commission, pe-
titioned this court for enforcement of the final order on July
30, 2024. Summary enforcement of the final order by a court
is a purely ministerial action and unreviewable by any court
or agency. 

(b), 

(a). That means
that one of the very few ways for the recipient of the citation
to contest it after fifteen working days has passed is to assert
that the Commission 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 the Commis-
sion demonstrate that it adequately served Miller with the ci-
tation.
   The Commission initially sent the citation to “Elmer Miller
dba Miller Building Systems, LLC,” by United States Postal
Service certified mail, as the Act instructs. 

(a).
The Commission sent the certified mail to 433 E. County
Road, 100 North, Arcola, Illinois 61910 (“433 address”), the
address to which the Commission had sent many notices in
the past. According to the tracking information, someone at
that address twice refused to accept the certified mail when
No. 24-2313                                                  3

the United States Postal Service attempted delivery, and
therefore the postal service returned the mail noting that it
had been “refused” two times.
    Once the certified mail was returned as refused, the Com-
mission moved to a new plan, resending the citation to Miller
at the same address using United Parcel Service (UPS) ground
service 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 the Commission bears the
burden of demonstrating adequate service, and that it failed
to do so for the following two reasons: first, because the Com-
mission did not send the citation to the proper address, and
second, and relatedly, because it has no proof that Miller re-
ceived the document. Miller claims that his address and that
of his business is 435 East County Road, 100 North, Arcola,
Illinois, 61910 (“435 address”), and not the 433 address. As we
describe in more detail below, public records indicate that
Miller Building Systems 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 the Commission did not properly execute ser-
vice for the following three reasons: it sent notice by UPS ra-
ther than certified 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 the
Commission had no proof that he was associated with the 433
4                                                             No. 24-2313

address. 1 Miller alleges that he could not have made this ar-
gument any sooner than he did because at the time he filed
his brief he had not yet seen the agency record. But the Com-
mission’s very first filing in this court—the Petition for Sum-
mary Enforcement—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 ad-
dressed to “Elmer Miller, dba Miller Building Systems LLC
and its successors, 433 East County Road, 100 N, Arcola, IL
61910.” R.1 at 12, 14. Miller therefore knew from the inception
of this matter that the Commission sent the notice to the 433
address. Nevertheless, we will put this belated argument


    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 the Commission of failing to prove that it pro-
vided him with service. Some might describe this as “chutzpah.” Miller
has a documented history of attempting to avoid service of Commission
citations. On at least four occasions since 2018, the Commission has
needed to hire a private process server to effectuate service on Miller. See
Reply Brief, Exh. B at 2 (Declaration of Tricia L. Rankin, Assistant Area
Director of the Commission, Peoria Area office). On each of those occa-
sions Miller was served at the 433 address. And on one occasion, when the
Secretary moved the court to require Miller to waive service and provide
reliable contact information, Miller provided the 433 address as his relia-
ble contact address. See 

 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 assertions made in Assistant Area Di-
rector Rankin’s declaration for the truth of the matter, but rather for the
purpose of assessing whether the Commission’s attempts 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.
No. 24-2313                                                            5

issue aside and discuss what is required for the Commission
to fulfill its notice requirements. 2
    Although it is true that section 10(a) of the Act calls for the
Commission 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 ci-
tations the Commission sends by certified mail. The Due Pro-
cess 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 vio-
lations. As the Supreme Court has defined it, “[a]n elemen-
tary and fundamental requirement of due process in any pro-
ceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an op-
portunity to present their objections.” Mullane v. Cent. Hano-
ver Bank & Tr. Co., 

 (1950). Due process does
not require that the government “must provide actual notice,
but that it must attempt to provide actual notice.” Dusenbery v.
United States, 

 (2002) (emphasis in original).
If the government has reason to know that the party never re-
ceived the initial notice, it need only undertake reasonable ad-
ditional efforts at notification. Jones v. Flowers, 

 (2006) (declaring that if a certified letter comes back as




    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.
6                                                               No. 24-2313

“unclaimed,” the government must take additional reasona-
ble steps to give notice). 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., 

, 

, 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, 

, 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, 

; owners of seized cash and automo-
biles, Dusenbery, 

; creditors of an estate, Tulsa Pro. Collection
Servs., Inc. v. Pope, 

 (1988); a mortgagee of property subject to
a pending tax sale, Mennonite Bd. of Missions v. Adams, 

 (1983);
tenants living in public housing subject to eviction, Greene v. Lindsey, 

 (1982); and beneficiaries of a common trust fund, Mullane, 

. We have no reason to think it would define notice any differ-
ently in the case of a citation from the Commission.
No. 24-2313                                                     7

whether to abate or contest.” B.J. Hughes, Inc., 

, 1474, 

, 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.,

, 

,*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, 

, 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, 

 (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, 

; see also Garcia v.
Meza, 

, 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, the
Commission has reason to think that Miller knew that it had
8                                                  No. 24-2313

been delivered but was purposefully trying to evade the con-
sequences of that notice. But if Miller were deliberately refus-
ing to accept the otherwise properly sent certified mail, the
reason he did not receive notice would be of his own mak-
ing—not that of the Commission. Miller cannot avoid the con-
sequences of violating the Commission’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 employ-
ees 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 rea-
son why due process would require the Commission to try
again.
    If employers could avoid OSHA regulations simply by re-
fusing to accept certified mail, the provision requiring the
Commission to send notification by certified mail would es-
sentially eviscerate any enforcement powers in the Act. We
need not, decide, however, if “refused” certified mail requires
the Commission to take reasonable additional steps to notify
the employer, because the Commission did take such addi-
tional steps here. And once the certified mail was twice re-
jected, it was eminently reasonable for the Commission to try
a different method, as it did by sending the notice via UPS.
See Mullane, 

 (“The reasonableness and hence
the constitutional validity of any chosen method may be de-
fended on the ground that it is in itself reasonably 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).
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 the Commission 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 Commission 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
the Commission 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, 

 (7th Cir. 2018) (quoting
Fed. R. Evid. 201(b)). A party need not make a separate
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. 

 The Commission explains that Miller has
asserted for over a decade that the 433 address was his busi-
ness address and thus service of the citation to that address
was reasonably calculated to provide him notice. Judicial no-
tice of public records listing Miller’s address at 433 would
demonstrate that notice addressed to 433 was reasonably cal-
culated 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. The Commission also
conducted a public records search with CLEAR, a public rec-
ords search tool offered by Thomson Reuters. That search re-
vealed that Miller Building Systems Inc. registered a vehicle
to the 433 address. 5


     4 Miller argues that the Commission issued the citation to Elmer Miller

individually and not Miller Building Systems, but he is incorrect. The ini-
tial December 2, 2022, letter from the Commission to Miller was addressed
to “Elmer Miller, dba Miller Building Systems, LLC.” R.5 at 5. And the
Petition for Summary Enforcement filed in this court states that “Pursuant
to section 11(b) of the Occupational Safety and Health Act of 1970 (OSH
Act), 

(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 Respond-
ent Elmer Miller, dba Miller Building Systems, LLC (Miller).” R.1 at 1. In
any event, notice to Miller at either his home or work address could be
reasonably calculated to apprise Miller of the citation.
     5 The Commission also offers information from several private web-

sites that allow a user to search for business registration. These websites
                                                                (continued)
No. 24-2313                                                               11

    Moreover, having claimed to the Commission, multiple
courts, and myriad other governmental bodies that his ad-
dress was the 433 address, Miller cannot now claim that no-
tice 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. The Commission has veri-
fied Miller’s receipt of service at that address. And in fact, Mil-
ler asserts in his answer in this very case that he has “received
and contested prior OSHA citations” all of which were sent to
the 433 address. R. 3 at 2. In more than a decade of interacting
with the Commission, in his communications with the
agency, with its legal counsel, and in proceedings before the
Commission, Miller has never before informed the Commis-
sion that it erred by sending citations 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 cor-
rect address for his business operations. 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.
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. 

 Exh. N at 1.
    We take judicial notice of the fact that the 433 address is
an address where the Commission could reasonably calculate
that Miller would be found and could receive the citation. We
hold, therefore, that the Commission’s mailings to the 433 ad-
dress were reasonably calculated to apprise Miller of the cita-
tion. Consequently, we grant the Secretary’s petition for sum-
mary enforcement and issue the enforcement decree pursuant
to 

(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 

(b).