Brennan v. Occupational Safety and Health Review Com'n

Decision Date03 October 1974
Docket NumberNo. 73-3068,73-3068
Citation502 F.2d 30
Parties2 O.S.H. Cas.(BNA) 1218, 1974-1975 O.S.H.D. ( 18,777 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and S. J. Otinger, Jr., Construction Company, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

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.

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 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 look to the Act for a delineation of the powers of the Commission. Civil Aeronautics Board v. Delta Air Lines, Inc., 1961, 367 U.S. 316, 81 S.Ct. 1161, 6 L.Ed.2d 869; United States v. Seatrain Lines, 1947, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396. The Act is specific as to the Commission's responsibilities in the event an employer chooses to contest a citation. Upon notification by the Secretary that the employer wishes to contest, the Commission initiates steps leading to a full-blown hearing, to include the appointment of an administrative law judge (ALJ) to preside over the hearing. Title 29, U.S.C., 661. The ALJ is specifically charged with responsibility to adjudicate all issues before him, including motions to dismiss if justified. 29 CFR 2200.66. After both sides have presented their evidence and have had an opportunity to file written briefs, 29 CFR 2200.76, the ALJ shall render his decision and file his report with the Commission. 29 CFR 2200.90. This report, while the final adjudication of the ALJ, represents only the preliminary order of the Commission. The report must then go through a thirty day review period, during which sole jurisdiction over the matter resides in the Commission. 29 CFR 2200.90(b). During this thirty day period, any Commission member may direct review, at which time the statutory limitation is tolled and the case is docketed for full Commission review. When the thirty day statutory limit has been allowed to run out, no Commission member having directed review, the report of the ALJ becomes the final order of the Commission by operation of law. Title 29, U.S.C., 661(i). In those situations where review is timely directed, the Commission will issue its own order affirming, modifying or vacating the ALJ's order. Title 29, U.S.C., 659(a). This Commission order then goes through its own thirty day review period, thus allowing the Commission time to reconsider. The statutory scheme clearly does not permit any order which purports to dispose of the entire controversy to become the final order of the Commission unless it has passed through a thirty day discretionary review period, within which no Commission member has directed full Commission review. 7 Once an order does achieve this finality, the sole statutory recourse for an aggrieved party is by petition to the appropriate court of appeals. Title 29, U.S.C., 660. The statute makes no provision for further Commission consideration of the merits of the controversy.

In spite of this clear statutory scheme, the Commission contends that since it has not adopted a dissimilar rule, Title 29 U.S.C., 661(f) 8 requires that we read Rule 60(b), F.R.Civ.P. into the Act, thus giving the Commission power to set aside a final judgment if there has been, inter alia, excusable neglect. We find this contention to be without merit.

The Supreme Court in Civil Aeronautics Board v. Delta Air Lines, Inc., 1961, 367 U.S. 316, 334, 81 S.Ct. 1611, 1623, 6 L.Ed.2d 869, denied the CAB the right to reconsider one of its final decisions, stating:

'In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute.'

Looking to the statute before us, it is clear that in addition to the thirty day discretionary review period, discussed supra, in which the Commission may reconsider its own decisions or those of its ALJ's, the Act specifically authorizes the Commission to reconsider and modify a final order, as to the abatement period only, when certain conditions precedent are met. The party against whom the citation was issued must show 'a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control.' Title 29, U.S.C., 659(c). The Congressional intent for this portion of the Act was clearly explained by its drafter, the Senate Committee on Labor and Public Welfare:

'It is anticipated that in many cases an employer will choose not to file a timely challenge...

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