P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n

• Citation: 115 F.3d 100
• Decision Date: 13 June 1997
• Docket Number: No. 96-1807,96-1807
• Parties: 17 O.S.H. Cas. (BNA) 2091, 1997 O.S.H.D. (CCH) P 31,356 P. GIOIOSO & SONS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Cynthia A. Metzler, Acting Secretary of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 100

115 F.3d 100

17 O.S.H. Cas. (BNA) 2091, 1997 O.S.H.D. (CCH)

P 31,356

P. GIOIOSO & SONS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Cynthia A. Metzler, Acting Secretary of Labor, Respondents.

No. 96-1807.

United States Court of Appeals First Circuit.

Argued May 8, 1997.

Decided June 13, 1997.

Richard D. Wayne, Boston, MA, with whom Lisa Schneider and Hinckley, Allen & Snyder were on brief, for petitioner.

Barbara A.W. McConnell, with whom J. Davitt McAteer, Acting Solicitor of Labor, Mount Hope, WV, Joseph M. Woodward, Associate Solicitor, Washington, DC, and Ann Rosenthal, Clarksdale, MS, Counsel for Appellate Litigation, were on brief, for respondents.

Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

The petitioner, P. Gioioso & Sons, Inc. (Gioioso), seeks review of a final order of the Occupational Safety and Health Review Commission (the Commission) determining that it violated the Occupational Safety and Health Act of 1970 (OSH Act), 19 U.S.C. §§ 651-678 (1994). The petition purports to raise six distinct objections to the Commission's order. The Secretary of Labor (the Secretary) maintains that we lack jurisdiction to hear three of these objections because Gioioso failed to raise them when it petitioned the Commission for review of the hearing examiner's adverse decision. The remaining objections, the Secretary tells us, are without force.

The jurisdictional question is new to this court. We resolve it favorably to the Secretary and dispose of certain objections on that ground. We deny the remnants of the petition on the merits.

I. THE STATUTORY SCHEME

Congress enacted the OSH Act "to assure so far as possible ... safe and healthful working conditions." 29 U.S.C. § 651(b). The Act spins an intricate administrative web which, among other things, separates rulemaking, enforcement, and adjudication. See Martin v. OSHRC, 499 U.S. 144, 151, 111 S.Ct. 1171, 1176, 113 L.Ed.2d 117 (1991). In general, the Secretary sets mandatory safety and health standards applicable to particular businesses. See 29 U.S.C. § 651(b)(3). The Occupational Safety and Health Administration (OSHA) enforces those standards. See id. §§ 658-659, 666. Citations issued in respect to alleged violations are adjudicated by the Commission. See id. §§ 659, 661.

The Commission operates in the first instance through administrative law judges (ALJs), who function as hearing officers. See id. § 661(j). After hearing a contested matter, the ALJ prepares a report. See 29 C.F.R. § 2200.90(a) (1996). A member of the Commission may direct review of a report on his own motion (as long as he does so within 30 days after the docketing date, see id. § 2200.92(b)), or on application of an aggrieved party. See id. § 2200.91(a). The instrument by which an aggrieved party solicits the Commission's attention is called a petition for discretionary review (PDR), and the party must file it within a prescribed 20-day period following the docketing date. See id. § 2200.91(b). The ALJ's report becomes the final order of the Commission unless review is granted "on or before the thirtieth day following the [docketing] date." Id. § 2200.90(d). In other words, the Commission's failure to act on a PDR within the stipulated 30-day period is tantamount to a denial of review.

Regardless of whether a final order comes about through action or inaction on the Commission's part, an aggrieved party may seek judicial review of it in the appropriate court of appeals. See 29 U.S.C. § 660(a).

II. THE ORIGINS OF THE DISPUTE

Gioioso is in the construction industry, specializing in utilities. Some time ago, it contracted with the Massachusetts Water Resources Authority (MWRA) to lay water lines in Winthrop, Massachusetts. During a lengthy period beginning in 1993, it laid several thousand feet of pipe under or near the access road to MWRA's Deer Island work site.

In the course of its endeavors, Gioioso dug an 18-foot-long trench at the intersection of Shirley and Taft Avenues. On October 6, 1994, Gioioso's foreman, Salvatore Santone, and a laborer, Fernando Camara, were standing in this trench. At that moment, several OSHA compliance officers happened to pass by the work site. ¹ The meandering traffic afforded the compliance officers a clear view of the trench and one of their number, Edward Wells, did not like what he saw: the trench's walls were unsloped and unsupported, the two workmen standing in the trench were visible only from the shoulders up, and a ten-foot section of cast metal pipe was suspended aloft from the bucket of a piece of heavy construction equipment located at one end of the trench. Wells sounded the alarm (figuratively speaking) and the driver stopped the car.

One of Wells' colleagues, Patrick Griffin, exited the vehicle and hurried toward the trench. Griffin noticed that the dangling pipe was connected to the bucket of a large excavating machine by only a single attachment point and watched as it rotated into a position parallel to the trench and directly over the workmen's heads. When Griffin reached the trench, he discovered that it measured no less than six feet deep and four feet wide and had been dug in gravelly soil. No trench box was in place to guard against a cave-in (although Santone claimed that he and Camara had been measuring the trench to ascertain if it could accommodate one). Moreover, because the trench lay adjacent to the only road providing access to Deer Island, vibrations from traffic increased the risk of a cave-in. A gas pipe, six inches in diameter, traversed the width of the trench. Wells corroborated many of Griffin's observations.

In due course, OSHA issued citations alleging three serious violations (one of which the Secretary later withdrew) and a repeat violation. ² The two serious violations (which we shall label "A" and "B") were as follows:

A. Permitting employees to work beneath the suspended pipe in violation of 29 C.F.R. § 1926.651(e) (1996) (which instructs that "[n]o employee shall be permitted underneath loads handled by lifting or digging equipment").

B. Permitting workers to use a ladder that did not extend at least three feet above the top of the trench in violation of 29 C.F.R. § 1926.1053(b)(1) (1996) (which directs that "[w]hen portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9m) above the upper landing").

The repeat violation (which we shall label "C") was as follows:

C. Failing to provide an adequate protective system for workers in an unshored trench, in violation of 29 C.F.R. § 1926.652(a)(1) (1996) (which provides that, except when excavations are made entirely in stable rock or are less than five feet in depth, "[e]ach employee in an excavation shall be protected from cave-ins by an adequate protective system").

The petitioner filed a timely notice of contest. At the outset of the hearing, it moved for disqualification on the ground that the ALJ, several years earlier (while employed as an attorney in the Department of Labor), had prosecuted one or more similar cases involving Gioioso. The ALJ refused to recuse himself. After considering the evidence, he found that the violations had in fact occurred, accepted OSHA's characterizations of them, and imposed penalties of $1,600 for each of the two serious violations and $8,000 for the repeat violation.

Gioioso petitioned the Commission for discretionary review of the ALJ's decision. Its PDR called attention to only three issues (described infra Part IV). The PDR generated no interest and the ALJ's decision ripened into the Commission's final order. ³ Gioioso then sought a judicial anodyne.

III. THE JURISDICTIONAL ISSUE

We turn first to the jurisdictional quandary. In pressing its cause before this court, the petitioner raises not only the three issues which it enumerated in the PDR but also three additional issues, namely, whether the ALJ erred in (1) failing to recuse himself, (2) characterizing violation B as serious, and (3) assessing substantial penalties. The question, then, is whether Gioioso's failure to press these points in the PDR constitutes a forfeiture of the right to bring them before a reviewing court. We think that it does.

We begin with bedrock. In the administrative state, exhaustion of administrative remedies is "generally required." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975). This requirement is more than a matter of form. "Insisting on exhaustion forces parties to take administrative proceedings seriously, allows administrative agencies an opportunity to correct their own errors, and potentially avoids the need for judicial involvement altogether." Portela-Gonzalez v. Secretary of the Navy, 109 F.3d 74, 79 (1st Cir.1997). In this way, the exhaustion doctrine creates a win-win situation: adhering to it simultaneously enhances the efficacy of the agency, fosters judicial efficiency, and safeguards the integrity of the inter-branch review relationship. See Power Plant Div., Brown & Root, Inc. v. OSHRC, 673 F.2d 111, 113 (5th Cir.1982); see also Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, 774 (1st Cir.1981) (stating that the "doctrine serves interests of accuracy, efficiency, agency autonomy and judicial economy").

The OSH Act warmly embraces the exhaustion doctrine. It provides in relevant part that persons such as Gioioso who are "adversely affected or aggrieved by an order of the Commission" may obtain judicial review in the "court of appeals for the circuit in which the violation is alleged to have occurred." 29 U.S.C. § 660(a). The right to judicial review, however, is carefully cabined. Congress specifically directed that "[n]o objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary...