Brennan v. Occupational Safety and Health Review Com'n, No. 74-1049

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BREITENSTEIN, SETH and McWILLIAMS; BREITENSTEIN
Citation505 F.2d 869
Docket NumberNo. 74-1049
Decision Date23 October 1974
Parties2 O.S.H. Cas.(BNA) 1274, 1974-1975 O.S.H.D. ( 18,863 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Santa Fe Trail Transport Company, Respondents.

Page 869

505 F.2d 869
2 O.S.H. Cas.(BNA) 1274, 1974-1975 O.S.H.D. ( 18,863
Peter J. BRENNAN, Secretary of Labor, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Santa
Fe Trail Transport Company, Respondents.
No. 74-1049.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 11, 1974.
Decided Oct. 23, 1974.

Page 870

Harry R. Silver (Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Atty., Dept. of Justice, and William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Stephen C. Yohay, Asst. Counsel for Appellate Litigation, U.S. Dept. of Labor, of counsel, with him on the brief) for petitioner.

Allen H. Sachsel, Washington, D.C., Appellate Counsel, Occupational Safety and Health Review Commission, for respondent Commission.

Douglas McHendrie and Grant, Shafroth, Toll & McHendrie, Denver, Colo., entered an appearance for respondent Santa Fe Trail Transport Co. and waived the right to file a brief and make oral argument.

Richard C. Hotvedt, E. Carl Uehlein, Jr., and Ira M. Shepard, Washington, D.C., filed a brief for amicus curiae The Great Atlantic and Pacific Tea Co., Inc.

Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The Occupational Safety and Health Review Commission held that a regulation promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., was unenforceably vague. As permitted by the Act, the Secretary seeks review of the Commission order. See 29 U.S.C. 660(b). We reverse.

After a routine inspection, the Secretary cited the employer, respondent Santa Fe Trail Transport Company, for a nonserious violation of 29 U.S.C. 654(a)(2). The charge was violation of a regulation, 29 CFR 1910.151(b), which requires that a person adequately trained in first aid be available at a workplace when there is no medical facility in 'near proximity.' A penalty of $30 was imposed. Employer contested the citation on the ground that the regulation was impermissibly vague. An Administrative Law Judge of the Commission, after an evidentiary hearing, upheld the regulation, found a violation, and held that no penalty should be assessed because of the 'good safety record' of the employer and 'the low level of gravity of those violations charged.' The matter then went to the Commission, see 29 U.S.C. 661(i), which in a 2 to 1 decision nullified the regulation.

This case is another episode in the continuing controversy between the Secretary and the Commission over the enforcement of the Act. The record shows no participation by the employer in the Commission's review of the action of its judge. The Great Atlantic & Pacific Tea Company secured permission to, and did, file a brief, as amicus curiae, with the Commission attacking the regulation. In this court the arguments are made by

Page 871

the Secretary and the Commission. A&P has filed an amicus brief supporting the Commission. Employer has presented a statement adopting 'the position' taken by the amicus and has waived the right to file brief and make oral argument.

The Commission is an adjudicatory body with no regulatory powers. See 29 U.S.C. 661. The Act gives enforcement and regulatory powers to the Secretary. 29 U.S.C. 655, 657, and 658. The problems presented in judicial review of the Commission's actions have been mentioned in numerous court decisions. See Brennan v. Occupational Safety and Health Review Commission, 3 Cir., 502 F.2d 946; Dale M. Madden Construction, Inc. v. Hodgson, 9 Cir., 502 F.2d 278; Brennan v. Southern Contractors Service, 5 Cir., 492 F.2d 498, 499, n. 2; and Brennan v. Occupational Safety and Health Review Commission, 5 Cir., 487 F.2d 230, 232. We decline to enter the dispute between the Secretary and the Commission over their respective powers, duties, and responsibilities under the Act. Congressional, rather than judicial, action is desirable.

Although the manner in which the case is presented indicates no more than an effort by two governmental agencies to secure an advisory opinion, employer contested the citation and has not withdrawn that contest. Employer has an interest in the controversy even though it is unwilling to do anything to protect that interest. We have a case or controversy within the purview of the Constitution, Art. III, 2. See Brennan v. Occupational Safety and Health Commission, 3 Cir., 502 F.2d 946. Accordingly, we turn to the merits.

The purpose of the Act is 'to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.' 29 U.S.C. 651(b). Each employer shall comply with the occupational safety and health standards and with the regulations promulgated by the Secretary. 654(...

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37 practice notes
  • Perry, In re, No. 88-1475
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 3, 1989
    ...Petroleum Products, 622 F.2d 1176, 1180-84 (3d Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980); Brennan v. OSHRC, 505 F.2d 869, 871 (10th Cir.1974); Dale M. Madden Constr., Inc. v. Hodgson, 502 F.2d 278, 280-81 (9th Cir.1974). 2 For this reason, OSHRC has been liken......
  • Mission Group Kansas, Inc. v. Riley, No. 96-3025
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 1, 1998
    ...might therefore be open to challenge as unconstitutionally vague. See, e.g., Brennan v. Occupational Safety & Health Review Comm'n, 505 F.2d 869, 872 (10th Cir.1974). Although Mission's complaint broadly raised due process concerns, we see little argument to that effect in its trial brief. ......
  • Marshall v. Occupational Safety and Health Review Com'n, Nos. 79-3018
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 5, 1980
    ...Safety and Health Review Commission, 583 F.2d 61, 63, n. 3 (2d Cir. 1978). In Brennan v. Occupational Safety and Health Review Commission, 505 F.2d 869, 871 (10th Cir. 1974), the Tenth Circuit said that the Commission is "an adjudicating body with no regulatory We agree with the Third and N......
  • U.S. v. Batson, Nos. 81-1242
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 9, 1983
    ...455 U.S. at 498-99, 102 S.Ct. at 1193-1194; footnotes omitted.] Similarly in Brennan v. Occupational Safety & Health Review Commission, 505 F.2d 869 (10th Cir.1974), the Court "A statute which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to......
  • Request a trial to view additional results
37 cases
  • Perry, In re, No. 88-1475
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 3, 1989
    ...Petroleum Products, 622 F.2d 1176, 1180-84 (3d Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980); Brennan v. OSHRC, 505 F.2d 869, 871 (10th Cir.1974); Dale M. Madden Constr., Inc. v. Hodgson, 502 F.2d 278, 280-81 (9th Cir.1974). 2 For this reason, OSHRC has been liken......
  • Mission Group Kansas, Inc. v. Riley, No. 96-3025
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 1, 1998
    ...might therefore be open to challenge as unconstitutionally vague. See, e.g., Brennan v. Occupational Safety & Health Review Comm'n, 505 F.2d 869, 872 (10th Cir.1974). Although Mission's complaint broadly raised due process concerns, we see little argument to that effect in its trial brief. ......
  • Marshall v. Occupational Safety and Health Review Com'n, Nos. 79-3018
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 5, 1980
    ...Safety and Health Review Commission, 583 F.2d 61, 63, n. 3 (2d Cir. 1978). In Brennan v. Occupational Safety and Health Review Commission, 505 F.2d 869, 871 (10th Cir. 1974), the Tenth Circuit said that the Commission is "an adjudicating body with no regulatory We agree with the Third and N......
  • U.S. v. Batson, Nos. 81-1242
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 9, 1983
    ...455 U.S. at 498-99, 102 S.Ct. at 1193-1194; footnotes omitted.] Similarly in Brennan v. Occupational Safety & Health Review Commission, 505 F.2d 869 (10th Cir.1974), the Court "A statute which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to......
  • Request a trial to view additional results

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