Brennan v. OCCUPATIONAL SAFETY & HEALTH REVIEW COM'N

• Decision Date: 13 November 1973
• Docket Number: No. 73-1670. Summary Calendar.,73-1670. Summary Calendar.
• Citation: 487 F.2d 230
• Parties: Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Bill Echols Trucking Co., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 230 (1973)

Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Bill Echols Trucking Co., Respondents.

No. 73-1670. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 13, 1973.

Walter H. Fleischer, Jean A. Staudt, Civil Div., Appellate Section, Dept. of Justice, Washington, D. C., for petitioner.

Peter Giesey, Gen. Counsel, Washington, D. C., Occupational Safety & Health Review Commission.

Matthis W. Piel, Montgomery, Ala., for Bill Echols Trucking.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case the Secretary of Labor (the Secretary) has invoked the jurisdiction of this Court under Section 11(b) of the Occupational Safety and Health Act of 1970 (the Act),¹ and asked that we review a "Supplemental Order" of the Occupational Safety and Health Review Commission (the Commission) vacating a citation and proposed penalty issued by the Secretary to Bill Echols Trucking Co. (Echols).²

We note that the difficulty of our task has been magnified by the paucity of the written argument presented to us. Whether out of utter frustration, battle fatigue, or neglect, neither the Commissioner nor Echols saw fit to file a responsive brief, although both had been solicited and importuned to do so. Nevertheless, on the basis of the petitioner's brief and the record before us, we must endeavor to decide the issues presented. See Fed.R.App.P. 31(c); Teamsters Local 524 v. Billington, 9th Cir. 1968, 402 F.2d 510, 511.

THE FACTS

The series of actions, inactions, and reactions that propelled this dispute into the Court of Appeals began on August 23, 1972, when the Secretary cited Echols for a serious violation of a safety regulation promulgated under the Act, and proposed a penalty of $600.00.³ The Secretary charged that Echols had violated 29 C.F.R. § 1926.601(b)(4) by its "failure to provide motor vehicles having an obstructed view to the rear with a reverse signal alarm or an observer to signal the vehicle it is safe to travel in reverse gear," and ordered Echols to abate this condition within three days after its receipt of the citation.

Section 10(a) of the Act, 29 U.S.C. § 659(a), and regulations promulgated thereunder, provide a means of appealing citations and penalties. Under 29 C.F.R. § 1903.17, Echols could have obtained Commission review by notifying the Occupational Safety and Health Administration Area Director of its intention to contest within 15 days of its receipt of the notification of proposed penalty. The regulation directs that "every notice of intention to contest shall specify whether it is directed to the citation or to the proposed penalty, or both." On September 5, 1972, less than 15 days after receiving notice of the proposed penalty, Echols' attorney wrote to the Secretary's regional representative in Birmingham, stating:

"This is to inform you that the signaling device has been installed within the three day period after the citation. We request that the penalty be abated since corrective action has been taken well within the time alloted. sic.

"If there is any further information you desire of sic if I can be of any further assistance to you kindly contact me."

The Secretary deferred forwarding this letter to the Commission until October 16, 1972, some 43 days later, at which time he filed a motion to strike Echols' letter as not constituting a notice of contest. After considerable procedural maneuvering,⁴ the Commission issued a Supplemental Order on January 26, 1973, holding that Echols' September 5 letter was a sufficient notice of contest, and therefore that the Secretary was required under 29 C.F.R. § 2200.32 to transmit the notice to the Commission within seven days of its receipt. The Commission vacated both the citation and proposed penalty because of the Secretary's failure to transmit the notice on time.

The Secretary filed a petition for reconsideration with the Commission on February 27, 1973. The record before us gives no indication of any response by the Commission. This petition for review followed.

The Secretary raises two issues for decision by this Court: (1) Did Echols' letter of September 5 constitute a notice of contest of the citation or of the proposed penalty, or both ? (2) If the letter did constitute a notice of contest, did the Commission act improperly by vacating the citation and proposed penalty because of the Secretary's failure to transmit such notice in timely fashion?

I

Because the Commission's Supplemental Order of January 26, 1973 vacated both the citation and the proposed penalty against Echols, the question of whether Echols' September 5 letter was sufficient notice of contest actually becomes two issues: (a) whether the letter constituted a notice of contest of the citation; and (b) whether the leter constituted a notice of contest of the proposed penalty.

The first issue causes us little difficulty. Even construing the letter in the manner most favorable to Echols, we cannot conceive of any way it could be interpreted as a notice of contest of the citation. The September 5 letter, written by Echols' attorney, raised no objection whatsoever to the citation; to the contrary the letter noted that corrective action had been taken after receipt of the citation, and thus, in effect, conceded the existence of the violations at the time of issuance of the citation. Because the letter requested that the penalty be abated, and because the regulation requires that a complainant specify whether it is contesting the citation or the penalty, 29 C.F.R. § 1903.17 supra, the inescapable conclusion is that the letter could only have been a notice of contest of the penalty—if it was a notice of contest at all.

The Act provides that a failure to notify the Secretary within 15 days of intent to contest the citation or proposed penalty will render such citation or penalty "a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. § 659(a). Thus, the citation had become final and unreviewable, and the Commission had no authority five months later to vacate the citation. As to the citation against Echols, then, we vacate the Supplemental Order of the Commission and reinstate the citation as issued by the Secretary on August 23, 1972.

The question of whether the September 5 letter constituted a notice of contest of the proposed penalty is much more difficult to resolve. The Commission has provided only the crudest of guidelines to aid the courts, affected employers, or itself in making such a determination.⁵ Fortunately, however, it is not the province of this Court to draw the fine lines separating letters that constitute notices of contest from those that do not. The regulations stipulate that "in its absolute discretion, and without affirmative action by order or otherwise, the Commission or the Examiner may permit the filing of pleadings or other documents which it deems to comply substantially with" the regulations concerning form, filing, and service. 29 C.F.R. § 2200.7(b)(4). Given such "absolute discretion" in the Commission, we cannot and will not challenge its determination that the September 5 letter constituted a notice of contest of the proposed penalty.⁶ Particularly in view of the lack of guidance to be found in the regulations, 29 C.F.R. § 2200.7(b)(1), supra at note 5, the Commission properly gave a liberal interpretation to the letter. Cf. Sanchez v. Standard Brands, Inc., 5th Cir. 1970, 431 F.2d 455, 462-464; N. L. R. B. v. Central Power & Light Co., 5th Cir. 1970, 425 F.2d 1318, 1320. The Secretary was, therefore, delinquent in failing to transmit the letter to the Commission within seven days of its receipt.⁷

II

Having found that the Commission did not abuse its discretion by holding that the September 5 letter constituted a notice of contest of the proposed penalty, we must now inquire whether the Commission acted properly by vacating the proposed penalty because of the Secretary's delay in transmitting the letter to the Commission. An order vacating a citation or proposed penalty is the most extreme sanction available to the Commission. We can find no authorization in the Act or the regulations for imposition of such a sanction without first providing an opportunity for a hearing.⁸ We do not now decide whether any breach of the rules by the Secretary could be serious enough to warrant dismissal of a penalty without a prior hearing. We do hold, however, that in the case before us the Commission acted improperly by vacating the proposed $600 penalty against Echols. Our conclusion is supported by both the nature of the Secretary's error and the underlying philosophy of the Act itself.

We have found that the Commission was within its discretionary power in construing the September 5 letter as a notice of contest. Moreover, given the adjudicatory function of the Commission, the Secretary should have resolved any doubts about the sufficiency of the letter in favor of transmitting it to the Commission for its determination. Nevertheless, we cannot say that the Secretary's action was entirely without justification. The September 5 letter, written by an attorney, was phrased in terms of a "request" to the Secretary for an abatement of penalty. The letter contained no language to the effect that Echols wished to "contest" the penalty or had any reason to "object" to the penalty proposed. Echols gave no direct indication of any desire to incur the burdens of a proceeding before the Commission. Under the circumstances the Secretary was not unreasonable in construing the letter as a request for leniency rather than as a notice of contest. Dismissal of the penalty is a sanction much too harsh for such a reasonable, although ultimately unprevailing, interpretation.

Moreover, viewed in light of the purpose of the Act, the requirement that the Secretary promptly transmit notices of contest...