Lance Roofing Company v. Hodgson, Civ. A. No. 16012.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtBELL, Circuit , and EDENFIELD and FREEMAN
Citation343 F. Supp. 685
PartiesLANCE ROOFING COMPANY, Inc., et al. v. James D. HODGSON, Secretary of Labor, United States Department of Labor, et al.
Decision Date23 May 1972
Docket NumberCiv. A. No. 16012.

343 F. Supp. 685

LANCE ROOFING COMPANY, Inc., et al.
v.
James D. HODGSON, Secretary of Labor, United States Department of Labor, et al.

Civ. A. No. 16012.

United States District Court, N. D. Georgia, Atlanta Division.

May 23, 1972.


343 F. Supp. 686

Stokes, Boyd & Shapiro, Atlanta, Ga., for plaintiffs.

L. Patrick Gray, III, Asst. Atty. Gen., Dept. of Justice, Richard F. Schubert, Solicitor of Labor, Dept. of Labor, Washington, D. C., Stanley M. Baum, Asst. U. S. Atty., Atlanta, Ga., for defendants.

Before BELL, Circuit Judge, and EDENFIELD and FREEMAN, District Judges.

EDENFIELD, District Judge:

Plaintiffs are four construction companies which have been issued citations and proposed assessments of fines by defendant Hodgson, the Secretary of Labor, pursuant to the Occupational Safety and Health Act of 1970 "the Act", 29 U.S.C. § 651 et seq. (1970). To prevent the proposed fines from becoming uncontestable, plaintiffs timely filed "notices of contest" in accordance with the Act and the Secretary duly filed complaints against each plaintiff with the Occupational Safety and Health Commission "the Commission" alleging violations of the Act. Plaintiffs answered the Secretary's complaints and then filed demands with the Commission for "procedural due process" and jury trials. The Commission summarily denied the demands of three of the plaintiffs and is apparently still considering the demands of the fourth. The cases against plaintiffs have been assigned by the Commission to its hearing examiners and are pending.

Plaintiffs have brought this complaint seeking declaratory and injunctive relief on the grounds that certain sections of the Act which defendants are enforcing against them are unconstitutional on their face and as applied. Specifically, they contend that the "civil" penalties which may be imposed by the Commission for violations of the Act are, in fact, "criminal" penalties.1 They argue that anyone charged with a violation who chooses to challenge the imposition

343 F. Supp. 687
of these so-called "civil" penalties2 before the Commission must be accorded all the constitutional safeguards provided in a criminal proceeding, including trial by jury. Since the Act itself does not provide such safeguards, plaintiffs desire a declaration that it is unconstitutional. And since the Commission has refused to grant them such safeguards, they wish to enjoin the proceedings initiated before the Commission against them

Defendants argue that the so-called "civil" penalties which the Commission may impose are not "criminal" in nature but merely regulatory, and they move for summary judgment on the merits. However, they also argue that plaintiffs have failed to exhaust their administrative remedies, and they ask the court to dismiss the complaint on that ground.

Jurisdiction is conferred by 28 U.S.C. § 1331 (1970)3 and a three-judge court was convened pursuant to 28 U.S.C. § 2282 (1970). We hold that the complaint must be dismissed for failure to exhaust administrative remedies.

The Act is a comprehensive and seemingly unique piece of legislation whose declared purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . ." 29 U.S.C. § 651(b). The job of securing initial compliance with the Act has been delegated to the newly-created Occupational Safety and Health Administration of the United States Department of Labor. Inspectors from the Department are authorized to conduct investigations at places of employment for the purpose of detecting safety and health violations. 29 U.S.C. § 657; 29 C.F.R. § 1903 (1972); Occupational Safety and Health Administration, U. S. Dep't. of Labor, Compliance Operations Manual "Manual", ch. V (Jan. 1972). If, upon such investigation, the Secretary of Labor or his authorized representative believes that an employer has violated the Act or a regulation promulgated pursuant to the Act, he issues a citation describing the violation and fixing a reasonable time for its abatement. 29 U.S. C. § 658(a). The Secretary must also notify the employer of the penalty, if any, proposed to be assessed for the violation, and must advise him that he has 15 working days within which to notify the Secretary that he wishes to contest the citation or the proposed assessment of penalty. 29 U.S.C. § 659(a).

If the employer does not timely file such a "notice of contest" the citation and penalty become the "final order" of the Commission which cannot be reviewed by any agency or court. 29 U.S. C. § 659(a). The violation penalty may amount to $1000 per violation, and if wilful or repeated, up to $10,000 per violation. 29 U.S.C. § 666(a)-(c). Failure to abate by the end of the period specified in the citation subjects a non-contesting employer to an additional non-abatement penalty of no less than $100 per day of non-abatement for a minor violation and $1000 per day of non-abatement for a serious violation. 29 U. S.C. § 666(d); Manual, ch. XI, ¶ B, § 8(e), (f).

If the employer does timely file a "notice of contest" the Secretary must so notify the Commission. 29 U.S.C. § 659(c). Pleadings are then filed with the Commission, an examiner may be assigned, and a full-dress hearing with exhibits, testimony, and proposed findings and conclusions is held. 29 U.S.C. §§

343 F. Supp. 688
659(c), 661(i); 29 C.F.R. §§ 2200, et seq. At the conclusion of the hearing the examiner makes a decision and issues a report which becomes the "final order" of the Commission within 30 days after it is issued unless the...

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15 practice notes
  • Marshall v. Reinhold Const., Inc., No. 77-631-Civ-J-T.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 17, 1977
    ...of Appeals is final and subject to review only by grant of the writ of certiorari by the Supreme Court. Lance Roofing Co. v. Hodgson, 343 F.Supp. 685, 687-88 (N.D.Ga.1972), aff'd 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 4 29 U.S.C. § 660(a) provides for review of final administrative dec......
  • Romeo Community Schools v. US Dept. of Health, Civ. A. No. 6-71438.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 7, 1977
    ...plaintiff's action under the Administrative Procedures Act at any time. DuBois v. Clark, supra; Lance Roofing Co. v. Hodgson, 343 F.Supp. 685 These contentions are not persuasive. Section 1682 authorizes HEW to promulgate "rules, regulations, or orders of general applicability" to......
  • Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Com'n, No. 73-1765
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 24, 1975
    ...scrutiny of a jury of citizens would be a healthful and disciplining experience. The statutory court in Lance Roofing Co. v. Hodgson, 343 F.Supp. 685 (N.D.Ga.), aff'd 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 (1972), also expressed concern about judicial review, particularly as to penalti......
  • Dan J. Sheehan Co. v. Occupational Safety and Health Review Com'n, No. 74-2764
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 8, 1975
    ...for a stay order under 29 U.S.C. § 660(a), but may also petition the Commission to stay its own final order. Lance Roofing v. Hodgson, 343 F.Supp. 685, 689-90 (N.D.Ga.), aff'd, 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 (1972). As is evidenced by the Commission's willingness to stay its pe......
  • Request a trial to view additional results
15 cases
  • Marshall v. Reinhold Const., Inc., No. 77-631-Civ-J-T.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 17, 1977
    ...of Appeals is final and subject to review only by grant of the writ of certiorari by the Supreme Court. Lance Roofing Co. v. Hodgson, 343 F.Supp. 685, 687-88 (N.D.Ga.1972), aff'd 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 4 29 U.S.C. § 660(a) provides for review of final administrative dec......
  • Romeo Community Schools v. US Dept. of Health, Civ. A. No. 6-71438.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 7, 1977
    ...plaintiff's action under the Administrative Procedures Act at any time. DuBois v. Clark, supra; Lance Roofing Co. v. Hodgson, 343 F.Supp. 685 These contentions are not persuasive. Section 1682 authorizes HEW to promulgate "rules, regulations, or orders of general applicability" to......
  • Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Com'n, No. 73-1765
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 24, 1975
    ...scrutiny of a jury of citizens would be a healthful and disciplining experience. The statutory court in Lance Roofing Co. v. Hodgson, 343 F.Supp. 685 (N.D.Ga.), aff'd 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 (1972), also expressed concern about judicial review, particularly as to penalti......
  • Dan J. Sheehan Co. v. Occupational Safety and Health Review Com'n, No. 74-2764
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 8, 1975
    ...for a stay order under 29 U.S.C. § 660(a), but may also petition the Commission to stay its own final order. Lance Roofing v. Hodgson, 343 F.Supp. 685, 689-90 (N.D.Ga.), aff'd, 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 (1972). As is evidenced by the Commission's willingness to stay its pe......
  • Request a trial to view additional results

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