Brennan v. OCCUPATIONAL SAFETY & HEALTH REVIEW COM'N
| Decision Date | 03 July 1973 |
| Docket Number | No. 72-3511,73-1445.,72-3511 |
| Citation | 481 F.2d 619 |
| Parties | Peter J. BRENNAN, Secretary of Labor, Petitioner-Appellant, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Brent Towing Co., Inc., Respondents-Appellees. Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Brent Towing Company, Inc., Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter H. Fleischer, Civil Div., Appellate Section, Jean A. Staudt, Dept. of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., Robert N. Habans, Jr., Mary Williams Cazolas, Asst. U. S. Attys., New Orleans, La., for petitioner-appellant.
Allen H. Sachsel, Sp. Counsel, Peter Giesty, Gen. Counsel, Occupational Safety & Health Review Commission, Washington, D. C., W. P. Eason, Greenville, Miss., for respondents-appellees.
Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
These cases present a rather complicated and unusual dispute between petitioner, the Secretary of Labor (Secretary), and the Occupational Safety and Health Review Commission (Commission). The party most interested in the outcome of this litigation, Brent Towing Company (Brent), is not involved in this appeal. Brent long ago advised the Commission that it did not wish to participate in any further litigation. It asserted that all violations of the Occupational Safety and Health Act of 1970 with which it had been charged had been abated, offered to pay the small penalties assessed by the Secretary, and assured the Commission that it would comply with the Act's requirements in the future. In these circumstances we decline to render what in essence would be an advisory opinion simply for the purpose of untangling the procedural dogfight in which the Secretary and the Commission have become ensnarled. We vacate the order of the Commission and reinstate the order of the Secretary making the citation and penalties against Brent final and payable.
On May 4, 1972, the Secretary issued a citation to Brent charging it with ten nonserious violations of the safety regulations promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., and proposing penalties in the amount of $310.00. The regulations adopted under the Act allow a cited employer 15 days in which to notify the Secretary of its intention to contest the Secretary's findings, the proposed penalties, or both. If no notice of contest is received by the Secretary within the prescribed period, the uncontested citation and the proposed penalty are deemed a final order of the Commission. If a notice of contest is timely received, however, the Secretary is then required to forward it to the Commission within three days to permit the Commission to review his findings and determinations.
On May 19, 1972, Brent responded to the citation it had received. In a letter to...
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Brennan v. Occupational Safety and Health Review Com'n
...& Health Review Commission (Pearl Steel Erection Company), 488 F.2d 337 (5th Cir. 1973); Brennan v. Occupational Safety & Health Review Commission (Brent Towing Co., Inc.), 481 F.2d 619 (5th Cir. 1973). Unlike the Brent Towing case, however, the employer here has not withdrawn its contest o......
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Brennan v. Occupational Safety and Health Review Com'n, 73--1938
...Commission under this relatively new Act has involved an 'administrative whirlwind,' Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 481 F.2d 619 (5th Cir. 1973), an effort of the Secretary to limit the power of the Commission to modify penalties prop......
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Brennan v. Occupational Safety & Health Review Com'n
...setting aside proposed penalties and reinstated the Secretary's proposed penalties. Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 481 F.2d 619 (5th Cir.1973). The question presented there was whether a particular letter constituted a "notice of cont......
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Brennan v. OCCUPATIONAL SAFETY & HEALTH REVIEW COM'N
...C.F.R. § 955 (b) (3) & (8). 11 For an example of the sharp conflict created by this division of authority, see Brennan v. OSHRC (Brent Towing Co.), 481 F.2d 619 (5th Cir. 1973), characterizing a dispute between the Secretary of Labor and the Commission as "an administrative whirlwind of . .......