518 F.2d 990 (5th Cir. 1975), 73-2249, Atlas Roofing Co., Inc. v. Occupational Safety Health Review Com'n

Docket Nº:73-2249.
Citation:518 F.2d 990
Case Date:September 08, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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518 F.2d 990 (5th Cir. 1975)





No. 73-2249.

United States Court of Appeals, Fifth Circuit

September 8, 1975

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[Copyrighted Material Omitted]

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McNeill Stokes, Ira J. Smotherman, Jr., Atlanta, Ga., for petitioner.

William J. Kilberg, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., U. S. Dept. of Labor, Atlanta, Ga., William McLaughlin, Executive Secretary, Occup. Safety & Health, Stephen F. Eilperin, Walter H. Fleischer, Michael Kimmel, Dept. of Justice, Washington, D. C., for respondent.

Petition for review of an order of the Occupational Safety and Health Review Commission (Georgia case).

Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Atlas Roofing Company petitions this Court to review an order of the Occupational Safety and Health Review Commission (OSHRECOM) 1 affirming a $600.00 penalty assessed by the Secretary of Labor under the Occupational Safety and Health Act of 1970 (OSHA). 2 Specifically Atlas was cited for violation of 29 C.F.R. 1926.500(f)(5)(ii) for failing to adequately cover roof openings that resulted in the death of one of its employees. Petitioner challenges the order not only on the issue of substantive compliance with the regulation, but also on the grounds that the basic structure of OSHA is constitutionally defective because (1) the civil penalties under OSHA are really penal in nature and call for the constitutional protections of the Sixth Amendment and Article III (2) even if found to be a civil penalty, OSHA violates the Seventh Amendment because of the absence of a jury trial, and (3) this is a denial of the Fifth Amendment right to a "prejudgment" due process hearing, since under OSHRECOM orders are self-executing unless the employer affirmatively seeks review. While we recognize the importance as well as the novelty in some cases of Atlas' arguments, we disagree with these contentions and affirm.

I. In The Beginning

At 9 a. m. on June 6, 1972 Johnny Boseman, a temporary employee of Atlas Roofing Company, was fatally injured when he fell through a 3' x 3' ventilation bay set in the roof of an unfinished warehouse to the concrete floor 30 feet below. Boseman's death initiated an inspection by the Department of Labor and as a result, Atlas, his employer and the subcontractor for the project, was cited for a "serious" violation 3 of OSHA

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for failing to maintain an adequate cover or railing around the exposed roof bay. 4 Atlas was directed to correct the violation immediately and pay a $600.00 penalty. In response, Atlas chose to contest the citation and proposed penalty by way of the statutory review procedure. 5

In the hearing before the Review Commission Administrative Law Judge (ALJ), Atlas denied that it had violated the regulations and raised as additional defenses the contentions that the enforcement procedures of OSHA were unconstitutional. 6

Limiting his decision to Atlas' factual arguments only, the ALJ concluded that the applicable regulation required employers to provide guardrails around roof openings and, absent those, a cover that was "so installed as to prevent accidental displacement." 7 In view of this requirement, the ALJ concluded that Atlas had failed to show that the insulation material of the same nature that was being used for the roof covering met the requirements of the applicable standard. The proposed $600.00 penalty was adjudged to be an appropriate and reasonable one.

Subsequently, Atlas filed a petition to seek discretionary review by OSHRECOM itself. 8 Because no member of the Commission requested that the decision of the ALJ be reviewed, this decision became the final order of the Commission 30 days later on May 7, 1973. Thereafter Atlas petitioned for review of this order in the Court of Appeals and moved for and was granted a stay of the penalty by the Commission. 9

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II. The Constitutional Challenges

When Is A Penalty A Fine?

One of petitioner's strongest points is that OSHA crosses that elusive line between criminal fines that of necessity require the Sixth Amendment protections and civil regulatory sanctions that are left to fall back upon the more amorphous protections of due process. These distinctions are elemental in our legal tradition, 10 but where a statute such as OSHA contains both monetary fines and penalties for conduct that are perhaps only arguably different in quality, the distinction becomes ambiguous indeed. The distinctions are additionally blurred when Congress applies both types of enforcement measures to impose standards and regulate conduct in a relatively new arena such as employment safety and health. That is precisely the problem we consider here.

This issue has importance even beyond the case at hand because the streamlined enforcement procedure embodied in OSHA, although presently prescribed in only a few instances, has been recommended as a blueprint for a major revision of the enforcement systems of all federal agencies. 11 Therefore, in view of

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the importance of the issue, we analyze it here in terms of (i) the criminal and civil enforcement procedures of OSHA, (ii) the congressional intent discernible from the face of the statute and the legislative history and (iii) the multiple test espoused by the Supreme Court in Kennedy v. Mendoza-Martinez. 12

The Enforcement Structure of OSHA

Designed with the ambitious but socially laudable goal "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources," 13 OSHA applies to all workers

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employed in businesses that affect interstate commerce. 14

To accomplish this vast objective, Congress passed a labor safety standards form of administrative program. Under OSHA, the Secretary of Labor (Secretary) is vested with the power to both promulgate and enforce compliance with the safety standards set for individual industries throughout the country. As enforcement measures, OSHA provides for both civil and criminal penalties. The Justice Department prosecutes employers in federal district court when job conditions are deemed to warrant criminal prosecution, but the Secretary enforces the civil penalties before the autonomous forum of the OSHRECOM. 15 Since Atlas challenges these specific civil enforcement procedures on the grounds that they violate Article III and the Fifth, Sixth and Seventh Amendments, close scrutiny of the nature and process of civil censure under these provisions is necessary.

The enforcement procedures of OSHA have three stages citation, administrative hearing, and court review. Each stage is distinct because unless the employer initiates the next level of review, the penalty becomes final and unreviewable.

The citation procedure begins when an inspector, acting in response to a complaint or on his own investigation, determines that the employer has violated either a specific safety standard or the general duty provision requiring the employer to provide a safe working environment. 16 The citation given by the inspector

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lists the nature of the violation as well as the time set for abatement. 17

Within a reasonable time thereafter, the Secretary shall assess and notify the employer of the penalty, if any, that will itself be based on the nature of the violation. For initial violations of OSHA an employer may be subject to a $10,000 penalty for either (1) willful violations 18 or for violations that are determined to be serious, 19 i. e., " * * * (have) a substantial probability that death or serious harm could result from a condition that exists * * * unless the employer did not, and could not with the exercise of due diligence know of the presence of the violation." 20

Alternatively, criminal proceedings may be triggered by conditions that the Secretary considers both willful and serious and the employer shall upon conviction be subject to a fine of up to $10,000 and six months in jail. 21

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On receipt of the Secretary's citation, an employer has 15 days to notify the Secretary that he intends to challenge the penalty 22 or the penalty becomes final and unreviewable. Once such a challenge is made, the Secretary is required to initiate the administrative hearing by notifying OSHRECOM. 23 The ALJ conducts a full hearing 24 and thereafter makes a report that will itself become the final decision of OSHRECOM unless the parties seek and the Commission grants discretionary review. 25

Thereafter the final stage is review in the Court of Appeals and thereafter the discretionary review by the Supreme

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Court. 26 The Court of Appeals review is on the APA substantial-evidence-on-the-record-considered-as-a-whole-standard. The Court, however, may direct the Commission to consider additional evidence if it is found that the evidence is both material and reasonable grounds existed for the failure to admit it in the hearing before the Commission. 27

One additional feature of OSHA that Atlas sharply contests is § 659(b). This provision allows the Secretary retroactively to assess an additional non-abatement penalty for each day following the expiration of the initial abatement period whenever he determines that the employer did not initiate the review procedures (either before the Commission or the Court of Appeals) in good faith or did so only in order to avoid the penalties imposed.

On The Face Of OSHA

The Government argues that OSHA successfully survives the Atlas Sixth Amendment attack because the provisions for civil and criminal enforcement specified in the statute are precise and distinct and, additionally, because the legislative history clearly demonstrates that Congress purposefully...

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