Dan J. Sheehan Co. v. Occupational Safety and Health Review Com'n, 74-2764
| Citation | 520 F.2d 1036 |
| Decision Date | 08 October 1975 |
| Docket Number | No. 74-2764,74-2764 |
| Parties | 3 O.S.H. Cas.(BNA) 1573, 1975-1976 O.S.H.D. ( 20,064 DAN J. SHEEHAN COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and John T. Dunlop,Secretary of Labor, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Ira J. Smotherman, Jr., McNeill Stokes, Atlanta, Ga., for petitioner.
William S. McLaughlin, Exec. Sec., OSHRC, Washington, D. C., Peter J. Brennan, Sec. of Labor, U. S. Dept. of Labor, Washington, D. C., Norman H. Winston, Assoc. Reg. Sol. of Labor, Birmingham, Ala., Harry R. Silver, Stephen F. Eilperin, Dept. of Justice, Washington, D. C., for respondents.
Petition for Review of an Order of the Occupational Safety and Health Review Commission (Georgia Case).
Before COLEMAN, MORGAN and CLARK, Circuit Judges.
Dan J. Sheehan petitions this court to review an order of the Occupational Safety and Health Review Commission (Commission) affirming a $500.00 penalty assessed by the Secretary of Labor (Secretary) under the Occupational Safety and Health Act of 1970 (OSHA). 29 U.S.C. § 651 et seq. Petitioner, a painting contractor, was cited for a serious violation under the general duty clause of OSHA for failing to provide a "place of employment . . . free from recognized hazards . . . likely to cause death or serious physical harm . . . ." 29 U.S.C. § 654(a)(1). The citation was prompted by the death of petitioner's employee who was electrocuted while working on a scaffold erected within approximately one foot of an electrically-charged power line carrying current in excess of 7,000 volts. Sheehan was ordered to abate the hazard immediately and was served with a $500.00 proposed penalty on August 3, 1973.
By letter dated August 22, 1973, Sheehan notified the Commission:
We are not contesting your August 3, 1973 citation. We admit that the scaffold was erected too close to the energized wire. However, we would like for you to look further into the matter and possibly with this new information, lift the proposed $500.00 penalty.
Sheehan further explained that his company had always been "very safety conscious," and begged "release" of the penalty, pointing out that the deceased employee had been warned by the foreman not to use the part of the scaffolding near the wire. The letter was accompanied by a report prepared by the foreman describing the circumstances surrounding the fatal accident and emphasizing that the deceased employee had been alerted to the danger.
Upon receipt of the letter, the Secretary notified the Commission of Sheehan's "notice of contest" and a hearing before an Administrative Law Judge was conducted on December 27, 1973. The judge construed Sheehan's letter as contesting solely the appropriateness of the penalty and consequently refused to review Sheehan's challenges to the validity of the citation. The judge affirmed the $500.00 penalty and his order became final when no member of the Commission exercised discretionary review. 29 U.S.C. § 661(i). Sheehan then petitioned this court to review the order pursuant to 29 U.S.C. § 660(a) and was granted a stay by the Commission pending these judicial review proceedings.
Petitioner challenges the citation and penalty on three bases: 1) the judge erred in not reviewing the validity of the citation as well as the appropriateness of the penalty; 2) the general duty clause is invalid and unenforceable because it is unconstitutionally vague; and 3) the OSHA enforcement scheme is violative of Fifth Amendment due process guarantees for failing to provide for a hearing prior to imposition of a proposed penalty.
Under the expedited OSHA enforcement scheme, a citation and proposed penalty become a final order of the Commission unless contested by the employer within 15 working days of receipt of notification. 29 U.S.C. § 659(a). If the employer fails to contest, the order is not subject to review by any court or agency. Id. The threshold question then becomes whether Sheehan's letter of August 22 constituted a notice of contest of the citation or the proposed penalty or both. Petitioner first asserts that the letter should be construed as a contest of both the citation and the penalty. Second, petitioner argues that a contest of the proposed penalty alone is sufficient to allow the Commission to review the underlying violation. Finally, petitioner argues that the expedited OSHA procedure effectively chilled his right to request a hearing as to the validity of the citation.
Sheehan's first contention urges a clearly unreasonable construction of his own letter. Sheehan expressly stated that he was "not contesting" the citation and admitted that the scaffold was "too close" to the power line. The remainder of the letter, dealing with the safety practices of the company and describing how the deceased employee had ignored the foreman's warning, is directed solely to persuading the Secretary to reduce the amount of the proposed penalty.
Common sense mandates that we reject as totally artificial Sheehan's urging that his letter should be construed only as an admission of certain factual allegations contained in the citation (i. e., that the scaffolding was erected within one foot of the power line) and his contention that he did not intend it to be an admission of a violation of the general duty clause of OSHA. Even construing the letter in a light most favorable to Sheehan, we agree with the judge that the letter failed to contest the violation and was at most a weak attempt to contest the proposed penalty.
Petitioner's second contention that the contest of the penalty gave the judge jurisdiction to review the validity of the citation must also fail. OSHA Section 10(a), 29 U.S.C. § 659(a), and the regulations promulgated thereunder provide the means for employer-initiated review of citations and proposed penalties. The statute provides that "the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty." 29 U.S.C. § 659(a). Under 29 C.F.R. § 1903.17, the employer is instructed that "(e)very notice of intention to contest shall specify whether it is directed to the citation or to the proposed penalty, or both." Section 10(a) further provides that if within the designated time the employer fails to contest "the citation or proposed assessment of penalty, . . . the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. § 659(a).
We have previously construed the above statutory scheme as mandating a distinction between a contest of a citation and a contest of a proposed penalty. Brennan v. Occupational Safety and Health Review Commission (Bill Echols Trucking Co.), 487 F.2d 230, 233-34 (5th Cir. 1973). In Echols we held that an employer's failure to contest the citation in a letter which challenged the proposed penalty resulted in a final order as to the citation which could not subsequently be vacated by the Commission as a sanction against the Secretary for delaying transmission of the letter to the Commission. Petitioner urges that Echols does not control this litigation because the context in which that case arose was decidedly different from the instant case. Specifically, petitioner contends that the effect of the holding in Echols was to restrict the Commission's power to use the extreme sanction of dismissal to penalize the Secretary's reasonable interpretation of his duties under OSHA and that the court was primarily concerned with preventing prejudice to the Secretary. In contrast, Sheehan points out that allowing him opportunity to contest the citation in this instance would not prejudice the Secretary's rights. Sheehan further notes that the Commission has not been uniform in its interpretation of the requisites of Section 10(a) 1 and that the precedential value of Echols may be undermined by the panel's acknowledgement in that case that the difficulty of their task was "magnified by the paucity of the written argument presented to us." 487 F.2d at 232.
We decline to depart from this court's decision in Echols at the present time. If the Commission should determine to take the other view in a consistent course of administrative interpretations, in another case this court may choose to give controlling weight to that persuasive factor. Sheehan's letter not only failed to contest the citation, but affirmatively admitted the violation. We agree with the judge's finding that Sheehan had waived his right to challenge the citation.
As a final argument to support his contention that the judge erred in not reviewing the validity of the citation as well as the appropriateness of the penalty, petitioner asserts that the expedited OSHA enforcement scheme has a built-in chilling effect which deters employers from contesting citations and penalties and consequently denies their right to a hearing. Three provisions are claimed to impose the "OSHA Chill." First, under Section 17(j), the Commission may conceivably increase the amount of penalty proposed by the Secretary if the employer chooses to contest the citation or penalty. 29 U.S.C. § 666(i). Second, the Commission has the power to retroactively assess non-abatement penalties from the date of citation if it finds that the employer-initiated review was not in good faith or was instituted solely for delay or avoidance of penalties. 29 U.S.C. § 666(d). Third, a final order of the Commission is not automatically stayed by commencement of review proceedings in a court of appeals. Rather, OSHA provides that unless the court of appeals affirmatively orders a stay, non-abatement penalties may start to accrue during the judicial appeal period. 29 U.S.C. § 660(a).
Before we reach the merits of Sheehan's "chilling effect" argument, we must first decide that he has standing to raise the issue. See Sierra Club v....
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