Irving v. United States, Civ. No. 81-501-D.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
• Citation: 532 F. Supp. 840
• Docket Number: Civ. No. 81-501-D.
• Parties: Gail Merchant IRVING v. UNITED STATES of America.
• Decision Date: 22 February 1982

532 F. Supp. 840

Gail Merchant IRVING
v.
UNITED STATES of America.

Civ. No. 81-501-D.

United States District Court, D. New Hampshire.

February 22, 1982.

532 F. Supp. 841

Paul R. Cox, Dover, N. H., for plaintiff.

W. Stephen Thayer, III, U. S. Atty., Concord, N. H., for defendant.

OPINION AND ORDER

DEVINE, Chief Judge.

Plaintiff Gail Merchant Irving sustained personal injuries on October 10, 1979, while employed at Somersworth Shoe Company in Somersworth, New Hampshire. She contends that a proximate cause of her injuries was negligent performance of compliance enforcement inspection by Government compliance officers pursuant to the provisions of the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. §§ 651-678. Her recovery of monetary damages is sought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, et seq.

The matter is before the Court on the defendant's motion to dismiss based on the dual grounds of (1) lack of subject matter jurisdiction, Rule 12(b)(1), Fed.R.Civ.P., and (2) failure to state a claim upon which relief can be granted, Rule 12(b)(6), Fed.R.Civ.P. Our analysis of this motion requires us to

532 F. Supp. 842

follow the familiar requirement that the material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal ordered only if plaintiff is not entitled to relief under any set of facts she could prove. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976); Dunlap v. Aulson Corporation, 90 F.R.D. 647, 654 (D.N.H.1981). Thus addressed, and simply stated, the facts are as follows

Plaintiff sustained her injuries on October 10, 1979, at Somersworth Shoe Company, when her hair became entangled in the unguarded drive shaft of a "die out" machine, so-called. On various occasions prior to the date of the accident, OSHA inspectors had inspected the premises of Somersworth Shoe Company, but had negligently "failed to issue citations for violations" of OSHA, including the lack of a guard on the machine at issue. See ¶ 9 of Complaint. Plaintiff argues that the failure of OSHA to inspect and to issue citations comprised a breach of a legal duty to her owed, and was causal of her injuries. ¶ 10, Complaint.

I. The Purpose, Policy, and Procedures of OSHA

Enacted in 1970, OSHA has for its purpose and policy the assurance "so far as possible for every working man and woman in the Nation safe and healthful working conditions ...." 29 U.S.C. § 651(b); Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 611, 100 S.Ct. 2844, 2849, 65 L.Ed.2d 1010 (1980); PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 894 (1st Cir. 1981). The statute therefore imposes two kinds of duties on employers: (1) a general duty to provide a safe workplace, 29 U.S.C. § 654(a)(1); and (2) compliance by the employer with specific standards promulgated by the Secretary of Labor, 29 U.S.C. § 654(a)(2).¹ PBR, Inc. v. Secretary of Labor, supra, 643 F.2d at 894. And,

`dereliction of either duty is a violation of the Act quite apart from whether injury to an employee results. And while the occurrence of injury may be relevant to proving a violation, it is not conclusive. But the Act does provide for more severe penalties for a violation when, as here, death results.'

Id. (quoting Cape and Vineyard Division of New Bedford Gas v. Occupational Safety and Health Review Commission, 512 F.2d 1148, 1150 1st Cir. 1975).

The remedial format of OSHA permits the Government, proceeding before an administrative agency, to obtain abatement orders requiring the correction by employers of unsafe working conditions and also to impose civil penalties on any employer maintaining any unsafe working condition. Atlas Roofing Company v. Occupational Safety and Health Review Commission, 430 U.S. 442, 445, 97 S.Ct. 1261, 1264, 51 L.Ed.2d 464 (1977). Under the statute, inspectors who represent the Secretary of Labor are authorized to conduct reasonable safety and health inspections, 29 U.S.C. § 657(a), and upon discovery of a violation, a citation is issued to the employer fixing a reasonable time for its abatement, and, in the inspector's discretion, proposing a civil penalty. 29 U.S.C. §§ 658, 659. The range of such proposed penalties may be from $0 (for non-serious violations) to a maximum of $10,000 (for willful and repeated violations). 29 U.S.C. §§ 658(a), 659(a), 666(a)-(c) and (j). Atlas Roofing Company v. Occupational Safety and Health Review Commission, supra, 430 U.S. at 445-46, 97 S.Ct. at 1264.

An employer who desires to contest a penalty or abatement order may do so by notifying the Secretary of Labor within fifteen days, in which event the abatement order is automatically stayed. 29 U.S.C. §§ 659(a), (b), 666(d). An evidentiary hearing

532 F. Supp. 843

is then held before an Administrative Law Judge ("ALJ") of the Occupational Safety and Health Review Commission ("OSHRC").² At the hearing before the ALJ, the Secretary of Labor has the burden of establishing the elements of the alleged violation and the propriety of his proposed abatement order and proposed penalty. The ALJ is empowered to affirm, modify, or vacate any or all of these items, giving due consideration in his penalty assessment to "the size of the business of the employer ..., the gravity of the violation, the good faith of the employer, and the history of previous violations." 29 U.S.C. § 666(i); Atlas Roofing Co., supra, 430 U.S. at 446, 97 S.Ct. at 1264. Unless an individual commissioner of OSHRC directs review of the decision of the ALJ within thirty days of its rendition, such decision becomes a final and appealable order of OSHRC. 29 U.S.C. §§ 659(c), 661(i); see 29 C.F.R. §§ 2200.90, 2200.91. But whether or not OSHRC does review, whatever the source of the final order, appeal therefrom is lodged in the United States Court of Appeals "for...