Fieldcrest Mills, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 17 November 1976
• Docket Number: No. 74-2107,74-2107
• Citation: 545 F.2d 1384
• Parties: 4 O.S.H. Cas.(BNA) 1845, 1976-1977 O.S.H.D. ( 21,288 FIELDCREST MILLS, INC., Petitioner, v. The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1384

545 F.2d 1384

4 O.S.H. Cas.(BNA) 1845, 1976-1977 O.S.H.D. ( 21,288

FIELDCREST MILLS, INC., Petitioner, v. The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, Respondents.

No. 74-2107.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1976.

Decided Nov. 17, 1976.

Robert E. Payne, Richmond, Va. (John S. Battle, Jr., McGuire, Woods & Battle, Richmond, Va., on brief), for petitioner.

Allen H. Sachsel, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C. (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Washington, D. C., Allen H. Feldman, Acting Asst. Counsel, Carla A. Hills, Asst. Atty. Gen., New York City, and Stephen F. Eilperin, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., on brief), for respondents.

Before BRYAN, Senior Circuit Judge, CRAVEN, Circuit Judge, and CLARKE, District Judge. ^*

PER CURIAM:

This appeal is from an order of the Review Commission entered August 6, 1974 under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. ¹ The Commission's order reversed the Administrative Law Judge's summary judgment that Fieldcrest Mills, Inc., a processor of raw cotton at Columbus, Georgia, was not guilty under a citation issued by the Secretary of Labor, § 658, for failing to comply with a safety and health standard, § 654(a)(2), promulgated in a rule of the Secretary of Labor pursuant to § 655. ² The standard sought to give employees protection against the health hazards in the accumulation of raw cotton dust, 29 CFR 1910.93.

The ALJ had sustained Fieldcrest's defense that the rule was invalid because it modified an earlier one but had been issued without following the procedures for modification required by the Act, §§ 655(a) and (b). ³ The Commission upheld the rule, vacated the order of the ALJ, and remanded "the matter for trial on the merits" by him. To that action this appeal is pressed under § 660(a).

Characterizing the appeal as interlocutory and hence not now cognizable here, the Secretary moves to dismiss it as premature. In response, Fieldcrest maintains that the Commission's order is a final decision because a further hearing on the validity of the rule was not obtainable; that is, no review is provided on whether its issuance by the Secretary was beyond the powers delegated to him by the Act.

In our judgment the Commission's order is not reviewable at this stage of the case. The charges against Fieldcrest arose out of an inspection of its plant by the Secretary's representative, § 657, which led to the citation of the company for violation of the rule, § 658(a). Fieldcrest notified the Secretary of its intention to contest the citation, the Secretary advised the Commission of this notice, and the latter granted Fieldcrest a hearing before its ALJ. 29 U.S.C. §§ 659(c) and 661(i). Upon his grant of summary judgment for Fieldcrest, an appeal was taken by the Secretary to the Commission under its Rule 75(c). ⁴ It allows an appeal of an administrative interlocutory order where the ALJ certifies, as he did here, that his ruling involved "an important question of law concerning which there is substantial ground for difference of opinion."

The order granting Fieldcrest's motion for summary judgment was entered by the ALJ on May 3, 1974. That decision, apparently viewed by the Judge himself as interlocutory, was certified to the Commission on May 13, 1974 under Commission Rule 75(c). We agree with both the Commission and the Secretary that the certification of the order for review by the Commission was permissible and proper under Rule 75(c) and 29 U.S.C. § 661(i). See 29 U.S.C. § 661(f).

Likewise, we do not find convincing Fieldcrest's contention that the ALJ's summary judgment was a final Commission order and hence reviewable by this court under § 660(a). The ALJ's report was received by the Commission on May 18, 1974. Within the 30 days allowed for Commission members to direct review, § 661(i), the report came before the Commission for consideration and, on June 5, 1974, it entered an order denying Fieldcrest's motion to set aside the certification and dismiss the appeal as procedurally defective. That order in effect directed Commission review consistent with the limitations set forth in § 661(i) and prevented the ALJ's report from becoming a final judgment.

After a formal hearing the Commission, finding the ALJ's determination as to the validity of the rule containing the cotton-dust standard to be erroneous, vacated the ALJ's order of summary judgment on August 6, 1974 and remanded the matter for trial on the merits. This is the order from which Fieldcrest is now appealing.

Review of the Commission's order reversing the ALJ's vacation of the dust- standard citation and remanding the case to the ALJ for trial on the merits may be had in this court if it was a final order and if Fieldcrest was "adversely affected or aggrieved" thereby. 29 U.S.C. §§ 659(c) and 660(a). We think the order does not qualify under these stipulations. It was not a final order because it was not one "affirming, modifying or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief" as required for finality by § 659(c). Since it did not meet the standards of § 659(c), the order did not meet the appeal criterion of § 660(a) adversely affecting and aggrieving Fieldcrest.

Ample precedent sustains these conclusions. Quite recently we declined to review an order by the Occupational Safety and Health Review Commission remanding a case dismissed by the ALJ and directing an evidentiary hearing to determine whether conditions precedent to withdrawal had been fulfilled. Gurney Industries, Inc. v. Occupational Safety and Health Review Commission (4 Cir. November 28, 1973) (No. 73-1813). We have also been unwilling to review nonterminating decisions of other agencies, as in Maryland Shipbuilding & Drydock Co. v. Benefits Review Board, 544 F.2d 514 (4 Cir. 1976).

In Gurney the order contains this apposite exposition:

"The Commission's order remanding for an evidentiary hearing does not affirm, modify or vacate the Secretary's citation or proposed penalty nor does it direct 'other appropriate relief'. It is, therefore, not the type of order...