Jensen Const. Co. of Oklahoma, Inc. v. Occupational Safety and Health Review Com'n
| Citation | 597 F.2d 246 |
| Decision Date | 30 April 1979 |
| Docket Number | No. 77-1459,77-1459 |
| Parties | 7 O.S.H. Cas.(BNA) 1283, 1979 O.S.H.D. (CCH) P 23,514 JENSEN CONSTRUCTION CO. OF OKLAHOMA, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Denis Y. Reed, Des Moines, Iowa, for petitioner.
Thomas L. Holzman, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for App. Litigation, and James E. White, Regional Sol., Dallas, Tex., on brief), of the U. S. Department of Labor, for respondents.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
Jensen Construction Company seeks review of an order of the Occupational Safety and Health Review Commission finding Jensen guilty of two "serious" violations of 29 C.F.R. § 1926.28(a) and assessing a $600 penalty for each violation. On review Jensen urges two grounds for setting aside and vacating the order of the Commission: (1) the Secretary failed to file a formal complaint within 20 days after receiving notice that Jensen was contesting the two citations previously issued, as required by 29 C.F.R. § 2200.33(a); and (2) the provisions of 29 C.F.R. § 1926.28(a) are impermissibly vague. Neither of these matters warrants setting aside the decision of the Commission, and we affirm its order.
The underlying facts in this case are not in dispute. Jensen is a construction company primarily engaged in bridge construction. At the time of the alleged violations, Jensen was in the process of constructing an expressway overpass bridge. At the worksite, Jensen's employees were working on a bridge structure varying in height from 17 to 23 feet above a travelled expressway and adjacent area, and were required during the course of their duties to be at or near the edge of the bridge, and to move or to sit on structural beams. Jensen had furnished no fall protection equipment, such as safety belts or lifelines, to reduce or to eliminate the danger of its workmen falling from the bridge structure onto the expressway or the adjacent dirt area. The company policy of Jensen in this regard was to provide safety belts or lifelines only where the potential fall distance exceeded 25 feet, or at a lesser height, if there were some special hazard, such as a body of water, which would increase the probability that a fall would result in serious injury.
The working conditions described above were observed by OSHA inspectors on two separate occasions and resulted in the issuance of two different citations. Jensen filed a timely notice of contest to each citation. The Secretary's formal complaint was not thereafter filed until 48 days after the Secretary had received Jensen's notice of contest. The Secretary's untimely filing of the formal complaint is Jensen's first ground for setting aside the Commission's order.
Pertinent provisions concerning the time within which the Secretary shall file a complaint with the Commission are as follows:
29 C.F.R. § 2200.33(a)(1). The Secretary shall file a complaint with the Commission no later than 20 days after his receipt of the notice of contest.
29 C.F.R. § 2200.5. Requests for extensions of time for the filing of any pleading or document must be received in advance of the date on which the pleading or document is due to be filed.
29 C.F.R. § 2200.38. Failure to file any pleading pursuant to these rules when due, may, in the discretion of the Commission or the judge, constitute a waiver of the right to further participation in the proceedings.
These regulations require the Secretary to file a complaint no later than 20 days after receipt of the notice of contest. These same regulations, however, vest broad discretion in the Commission or the Administrative Law Judge concerning the consequences to be suffered in the event of a failure to timely file any pleading permitted by such regulations. The Secretary's excuse for the untimely filing of his complaint was an extraordinary caseload. Jensen, on the other hand, attempted to show prejudice as a result of the Secretary's delay in filing. Based on such record, the Judge found no " demonstrated prejudice" and under such circumstances stated that he was disinclined to impose the "extreme sanction" of vacating the citations. In thus excusing the Secretary's untimely filing, the Judge did not, in our view, abuse his discretion.
The instant case is distinguishable from Cornell & Co. v. O.S.H.R.C., 573 F.2d 820 (3rd Cir. 1978), where an amendment to a complaint, made some four months after the original filing, alleged a violation unrelated to the original citation. In such circumstance, the Third Circuit justified a dismissal on the ground that the amendment changed both the legal and factual bases for the complaint, and...
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