502 F.2d 30 (5th Cir. 1974), 73-3068, Brennan v. Occupational Safety and Health Review Com'n

Docket Nº:73-3068.
Citation:502 F.2d 30
Party Name:Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and S. J. Otinger, Jr., Construction Company, Respondents.
Case Date:October 03, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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502 F.2d 30 (5th Cir. 1974)

Peter J. BRENNAN, Secretary of Labor, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and S. J.

Otinger, Jr., Construction Company, Respondents.

No. 73-3068.

United States Court of Appeals, Fifth Circuit

October 3, 1974

Neil H. Koslowe, Morton Hollander, Civil Div., Appellate Section, Dept. of Justice, William J. Kilberg, Sol. of Labor, U.S.Dept. of Labor, Washington, D.C., for petitioner.

William McLaughlin, Executive Sec., Occupational Safety & Health Review Commission, Washington, D.C., George White, Gadsden, Ala., Allen H. Sachsel, Atty., Occupational Safety & Health Review Commission, Washington, D.C., for respondents.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The Secretary of Labor (Secretary) pursuant to Section 11(b) of the Occupational Safety and Health Act of 1970 (Act) has petitioned this Court to decide whether the Occupational Safety and Health Review Commission (Commission) had jurisdiction to reconsider an order made final by operation of Section 12(j) of the Act, 1 Title 29, U.S.C., 661(i). We grant the petition for review, holding that the Commission lacked jurisdiction to reconsider its final order.

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The facts pertinent to this appeal, while complex, are uncontroverted. On September 5, 1972, the Secretary cited the S. J. Otinger, Jr., Construction Company (Otinger) for a serious violation of the Act, 2 specifying unsafe blasting procedures. 3 Otinger timely filed with the Secretary a notification of intent to contest the citation, which was then forwarded by the Secretary to the Commission. The secretary promptly initiated pleadings by filing a complaint with the Commission. The Commission assigned a hearing examiner to preside over the matter. When no timely answer 4 was filed by Otinger, the Secretary moved the hearing examiner to dismiss the action, which motion was granted. The Commission sent notice to all parties concerned that the hearing examiner's ruling was received on November 29, 1972, and, unless a Commission member directed review, the ruling would become the final order of the Commission on December 29, 1972. Title 29, U.S.C., 661(i).

On December 14, 79 days after the complaint was received, 5 but 16 days after the hearing examiner's dismissal ruling was issued, Otinger first filed its answer with the Commission. On December 21, referring to Otinger's answer as a 'Petition for Reconsideration', the Secretary filed with the Commission a motion to deny Otinger's petition on grounds of untimeliness and prejudice to the Secretary's case by virtue of the delay. On December 29, the hearing examiner's dismissal became the final order of the Commission; no Commission member had directed review.

This did not end the matter, however, for on January 23, 1973, the Commission received a Petition for Reinstatement of Notice of Contest from Otinger's attorney, the basis of which was grounded in Otinger's alleged confusion resulting from its attempt to handle the matter pro se prior to December 8, 1972, when it sought and received legal counsel. Nothing more took place regarding this matter until March 14, 1973, when the Commission ordered the case reinstated and called for a hearing on April 26, 1973, 'without prejudice to the Secretary raising the issue of prejudice at the hearing.' The Secretary refused to participate in any further proceedings, consistently alleging that the Commission lacked jurisdiction to reinstate the case

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following its final order of December 29. 6 We agree.

Since the Commission is no more than a creature of Congress and, as such, may proceed only in conformity with its congressional grant of authority, we...

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