Cox Bros., Inc. v. Secretary of Labor, No. 75-2849

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE and HUG; WALLACE
Citation574 F.2d 465
Parties6 O.S.H. Cas.(BNA) 1484, 1978 O.S.H.D. (CCH) P 22,688 COX BROTHERS, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.
Decision Date07 April 1978
Docket NumberNo. 75-2849

Page 465

574 F.2d 465
6 O.S.H. Cas.(BNA) 1484, 1978 O.S.H.D. (CCH) P 22,688
COX BROTHERS, INC., Petitioner,
v.
SECRETARY OF LABOR, Respondent.
No. 75-2849.
United States Court of Appeals,
Ninth Circuit.
April 7, 1978.

Page 466

David Wayne Rees (argued), of Rees, Mercaldo & Smith, Tucson, Ariz., for petitioner.

John M. Bryson, II (argued), Washington, D. C., for respondent.

Petition to Review a Decision of the Occupational Safety and Health Review Commission

Before WALLACE and HUG, Circuit Judges, and HILL, * District Judge.

WALLACE, Circuit Judge:

This case is brought before us on an employer's petition to review an order of the Occupational Safety and Health Review Commission (Commission). We have determined that we are without jurisdiction to rule on the merits of the Commission's order. We therefore dismiss the petition.

I

Cox Brothers, Inc. is a brick and masonry subcontractor in Tucson, Arizona. In February 1973, one of Cox's employees was killed during the course of his duties on a construction site. In response to the workman's death, the Secretary of Labor inspected the job site. See OSHA Regulations, 29 C.F.R. § 1904.8 (1976). As a result of the inspection, Cox was cited for three violations of the Occupational Safety and Health Act (Act), 29 U.S.C. § 651, et seq. Cox was also given notification of a proposed penalty of $1,100 and ordered to abate the violative conditions. Cox timely contested the citations and proposed penalties. 29 U.S.C. § 659(a).

In July 1973, an administrative hearing was conducted before a hearing examiner. As a result, the hearing officer sustained each of the citations and penalties. In November 1973, a member of the Commission directed discretionary review of the hearing officer's decision. 29 U.S.C. § 661(i). In June 1975, two members of the Commission issued a decision in which they declared that they were equally divided on the hearing officer's disposition of all three charges. The two commissioners therefore asserted that the hearing officer's decision was "affirmed by an equally divided Commission." Cox thereafter sought review in this court pursuant to 29 U.S.C. § 660.

II

Our initial concern in this, as in all cases, is whether or not we have jurisdiction to dispose of the matter on its merits. See Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934). We conclude that we do not.

Our statutory jurisdictional basis for reviewing the Commission's proceedings is section...

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7 practice notes
  • Marshall v. Sun Petroleum Products Co., No. 79-1822
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1980
    ...F.2d 1177 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1979); Cox Brothers, Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir. 1978). See also Shaw Construction, Page 1180 Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir. 1976). We disagree with this analysis ......
  • Todd Shipyards Corp. v. Black, No. 81-7494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 4, 1983
    ...for the Occupational Safety and Health Review Commission (OSHRC). 29 U.S.C. Sec. 661(e) (1970). In Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465, 467 (9th Cir.1978), and Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177, 1179 (9th Cir.1979), cert. denied, 445 U.S. 942, ......
  • Bristol Steel & Iron Works, Inc. v. Occupational Safety and Health Review Com'n, No. 77-2485
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 25, 1979
    ...of the Commission in order to constitute reviewable "official action" by the Commission, See Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465, 467 (9 Cir. 1978); Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5 Cir. 1976), this court in George Hyman Construction Co. v. OSHRC, ......
  • United Steelworkers of America, AFL-CIO-CLC v. St. Joe Resources, AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 6, 1990
    ...604 F.2d 1177 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir.1978), finding no jurisdiction over divided 2 Section 658 empowers the Secretary to issue citations against employers who violate saf......
  • Request a trial to view additional results
7 cases
  • Marshall v. Sun Petroleum Products Co., No. 79-1822
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1980
    ...F.2d 1177 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1979); Cox Brothers, Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir. 1978). See also Shaw Construction, Page 1180 Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir. 1976). We disagree with this analysis ......
  • Todd Shipyards Corp. v. Black, No. 81-7494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 4, 1983
    ...for the Occupational Safety and Health Review Commission (OSHRC). 29 U.S.C. Sec. 661(e) (1970). In Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465, 467 (9th Cir.1978), and Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177, 1179 (9th Cir.1979), cert. denied, 445 U.S. 942, ......
  • Bristol Steel & Iron Works, Inc. v. Occupational Safety and Health Review Com'n, No. 77-2485
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 25, 1979
    ...of the Commission in order to constitute reviewable "official action" by the Commission, See Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465, 467 (9 Cir. 1978); Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5 Cir. 1976), this court in George Hyman Construction Co. v. OSHRC, ......
  • United Steelworkers of America, AFL-CIO-CLC v. St. Joe Resources, AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 6, 1990
    ...604 F.2d 1177 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir.1978), finding no jurisdiction over divided 2 Section 658 empowers the Secretary to issue citations against employers who violate saf......
  • Request a trial to view additional results

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