Power Plant Div., Brown & Root, Inc. v. Occupational Safety and Health Review Com'n

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation673 F.2d 111
Docket NumberNo. 79-3677,79-3677
Parties10 O.S.H. Cas.(BNA) 1529 POWER PLANT DIVISION, BROWN & ROOT, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Raymond J. Donovan, Secretary of Labor, Respondents. . Unit B *
Decision Date15 April 1982

W. Carl Jordan, Houston, Tex., for petitioner.

Allen H. Feldman, U. S. Dept. of Labor, Dennis K. Kade, Jeffrey M. Strashun, Andrea C. Casson, Washington, D. C., for respondent.

Petition for Review of an Order of the Occupational Safety & Health Review Commission.

On Petition for Rehearing and Suggestion for Rehearing En Banc

(Opinion October 26, 1981, 5 Cir., 1981, 659 F.2d 1291)

Before GODBOLD, Chief Judge, TUTTLE and HILL, Circuit Judges:

GODBOLD, Chief Judge:

In this case the Occupational Safety and Health Review Commission (OSHRC or Commission) held that Brown & Root had failed to provide to its employees personal protective equipment required by 29 C.F.R. § 1926.28(a). Before this court Brown & Root contended for the first time that industry practices are determinative of an employer's duty under § 1926.28(a). We held that because Brown & Root had not presented this argument to the Commission it was barred by 29 U.S.C. § 660(a) from raising it before this court. We grant Brown & Root's petition for rehearing to clarify this holding.

29 U.S.C. § 660(a) provides 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 circumstances." In the principal opinion we ruled on three points relevant to § 660(a). We held: (1) that Brown & Root had failed to alert the Commission to its contention that industry practices are controlling; (2) that this default may be raised sua sponte by this court and is not waivable by the Secretary of Labor's failure to raise it; and (3) that no extraordinary circumstances were present. Power Plant Division, Brown & Root, Inc. v. OSHRC, 659 F.2d 1291, 1293-95 & n.3 (5th Cir. 1981).

In its petition for rehearing Brown & Root analogizes § 660(a)'s requirement of raising an objection before the Commission to a requirement of exhaustion of administrative remedies, and contends that our holding is inconsistent with a line of Supreme Court decisions that have excused the failure of parties to fully exhaust their intra-agency levels of review. Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Each of these cases involved a constitutional challenge to the denial of benefits under the Social Security Act. In each case the claimant was allowed to appeal the denial of benefits without having first sought all of the available levels of review within the agency. Brown & Root contends that these decisions establish that an exhaustion requirement is waivable and that futility will excuse the failure to fully exhaust. 1 These precedents do not require a different result than we have reached in this case.

We consider first our duty to raise a § 660(a) default sua sponte and the Secretary's ability to waive the default. Salfi, far from contradicting our consideration of Brown & Root's failure to present its objection to the Commission, affirms our raising of this matter sua sponte, for there the Court considered the exhaustion issue despite the failure of any party to raise it before the Court. 422 U.S. at 786, 95 S.Ct. at 2477 (Brennan, J., dissenting). Whether the § 660(a) bar to review may be and has been waived is a more difficult question. Speaking broadly, in Salfi, as interpreted by Eldridge and Diaz, the Court held that the analogous requirement of exhaustion of intra-agency levels of review may be waived by the agency. 422 U.S. at 765-67, 95 S.Ct. at 2466-2467; 424 U.S. at 328-30, 96 S.Ct at 899-900; 426 U.S. at 75-77, 96 S.Ct. at 1889-1890.

The specific focus of the Court's attention in Salfi, Eldridge, and Diaz was § 405(g) of the Social Security Act which provides that only "final decisions" on a claim for benefits may be reviewed by the courts. The issue for decision in each case was whether a denial of benefits at an early administrative level is a "final decision" despite the failure to fully appeal within the agency. In Salfi, the progenitor of these cases, the Court presented the core of its reasoning. Because the term "final decision" is not defined:

the statutory scheme is thus one in which the Secretary may specify such requirements for exhaustion as he deems serve his own interests in effective and efficient administration.... (T)he Secretary (may determine) in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be "final" within the language of § 405(g).

422 U.S. at 766, 95 S.Ct. at 2467. The specific holding of Salfi and its progeny, then, is not that the exhaustion requirement is waived by the agency's failure to present it to the review court but that the particular agency, Health and Human Services, has the discretion to define the particular term "final decision." In Salfi the Court found a determination by the agency that there had been a final decision from the agency's failure to challenge the allegations in the complaint that there had been full exhaustion. 422 U.S. at 769, 95 S.Ct. at 2468. In Diaz the Court found a determination in the agency's stipulation that there were no factual or statutory application issues in dispute but only an issue of the constitutionality of the statute, which issue was beyond the power of the agency to address. 426 U.S. at 76-77, 96 S.Ct. at 1889-1890. In Eldridge the agency maintained that there was a failure to exhaust, in other words, that there had been no final decision. The Court refused to accept this, however, holding there that the agency had incorrectly defined the term. 424 U.S. at 330, 96 S.Ct. at 900.

To summarize, the idea of waiver of the exhaustion requirement is used in this line of cases as a shorthand description of the agency's prerogative in some cases to treat an early agency ruling as "final" despite the failure to seek all levels of review. These cases are not instances of classical waiver. This is illustrated by Eldridge where the Court found the exhaustion requirement met even though the agency, far from waiving the requirement, expressly contended that it had not been met. Id.

Although Salfi and its progeny do not control the issue of waiver in this case, these cases are relevant to whether "extraordinary circumstances" exist. Just as the Secretary of Health and Human Services was found to have a discretion to define "final decision," the Secretary of Labor may have discretion to define "extraordinary circumstances." Again, this requires a close examination of the Supreme Court's reasoning in Salfi.

The Supreme Court did not find discretion simply from the fact that the term was undefined in the Act. Instead it first examined the purposes of exhaustion:

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

422 U.S. at 765, 95 S.Ct. at 2466. These purposes apply to the objection requirement of § 660(a) as well. There are two sets of purposes: one that fosters the efficiency of the internal operation of the agency, the other that fosters efficiency at the appellate court review level and that promotes the integrity of the court-agency review relationship. Salfi and its progeny were extraordinary cases because the second set of purposes had been fully satisfied and so only the first set was at issue. The second set of purposes was satisfied, as explained by the Court in Salfi, because the only challenge to the agency's decision was a constitutional one beyond the power of the agency to address:

Plainly these purposes have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act.

422 U.S. at 765, 95 S.Ct. 2466. To explain more fully, if the only issue is the constitutionality of the agency's governing statute, the integrity of the review relationship is not at stake because the agency has no authority to correct this type of error, and the efficiency of the court review process is guaranteed once there has been a determination that constitutionality, and not a factual or statutory issue, is dispositive. We conclude from the internal reasoning of Salfi that if the Secretary has a certain prerogative in defining "extraordinary circumstances," deference will be given only when the first set of values promoted by § 660(a) is at stake, namely, internal agency efficiency. Where larger values are at stake reaching to the function of this court and the review relationship between the agency and the courts, any agency prerogative in defining this term ceases.

Applying this reasoning, we hold that this is not a proper case to defer to any implicit or explicit determination by the Secretary of Labor that extraordinary...

To continue reading

Request your trial
21 cases
  • RSR Corp. v. Donovan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 659 F.2d 1291, 1294 (5th Cir.1981), modified, 673 F.2d 111 (5th Cir.1982), quoting Keystone Roofing Co. v. Occupational Safety and Health Review Commission, 539 F.2d 960, 964 (3d Cir.1976). While an objection ......
  • American Airlines, Inc. v. Herman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 17, 1999
    ...Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (quoted in Power Plant Div., Brown & Root v. Occupational Safety and Health Review Comm'n, 673 F.2d 111, 115 (5th Cir. Unit B 1982) (noting that "we are dealing with a case of only 'probable' futility, that is, a case where......
  • Garcia-Mir v. Smith, GARCIA-MIR
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 11, 1985
    ...with "merely by a judicial conclusion of futility." 422 U.S. at 766, 95 S.Ct. at 2467. See also Power Plant Div., Brown & Root Inc. v. O.S.H.R.C., 673 F.2d 111, 115 (5th Cir. Unit B 1982).10 Plaintiffs acknowledge that the district court's order is somewhat overbroad since it stays the excl......
  • Barnett v. Dist. of Col. Dept. of Emp. Serv., 83-1340.
    • United States
    • Court of Appeals of Columbia District
    • May 8, 1985
    ...for GI Rights v. Callaway, 171 U.S.App.D.C. 73, 81, 518 F.2d 466, 474 (1975); Power Plant Division, Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 673 F.2d 111, 113-14 (5th Cir. 1982). 8. See, e.g., Andrade, supra note 7, 234 U.S.App. D.C. at 393, 729 F.2d at 1484; Kenned......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT