McGowan v. Marshall
| Citation | 604 F.2d 885 |
| Decision Date | 16 October 1979 |
| Docket Number | No. 77-3495,77-3495 |
| Parties | , 7 O.S.H. Cas.(BNA) 1842, 1979 O.S.H.D. (CCH) P 23,948 John W. McGOWAN, Petitioner, v. F. Ray MARSHALL, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
David K. McGowan, Jackson, Miss., for petitioner.
Lorelei Joy Borland, Atty., Office of the Solicitor, U. S. Dept. of Labor, Washington, D. C., for respondents.
Petition for Review of an Order of the Occupational Safety & Health Review Commission.
Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.
In this appeal we are asked to review a determination of an administrative law judge in a proceeding under the Occupational Safety and Health Act (the Act), 29 U.S.C.A. §§ 651-678 (West 1975 & Supp.1979), despite the fact that the appellant presented no petition for review to the Occupational Safety and Health Review Commission (the Commission). We decline to accept this invitation.
The appellant, John W. McGowan, is the sole proprietor of a firm which operates oil wells, some of which are located in Madison County, Mississippi. On March 4, 1976, this property was subjected to a warrantless search by two OSHA compliance officers. 1 The appellant was subsequently cited for four OSHA violations. 2 The first alleged violation consisted of the employer's failure to instruct his employees in the recognition and avoidance of the unsafe practice of using gasoline for personal cleaning in violation of 29 C.F.R. § 1926.21(b)(2), 3 the use of a gasoline container not approved under 29 C.F.R. § 1926.152(a)(1), 4 and the maintenance of a gasoline container within fifty feet of a source of ignition in violation of 29 C.F.R. § 1926.152(f)(3). 5 The second citation alleged that the appellant had violated 29 C.F.R. § 1926.151(a)(2) 6 by locating an internal combustion engine in such a position that its exhausts were not well away from combustible oil. The third cited violation consisted of the employer's failure to comply with the reporting requirements of 29 C.F.R. § 1926.550(a)(1), (b)(2), 7 which pertain to cranes. The fourth citation charged that the employer had violated 29 C.F.R. § 1910.219(b)(1), (d)(1) 8 by failing to provide and maintain guards around pulleys and flywheels. All violations were cited as being serious. 9
In response to the Secretary's Notification of Proposed Penalty, which imposed fines of seven hundred dollars for each cited violation, the appellant notified the Secretary of his wish to contest the citations. 10 At the subsequent hearing, the appellant challenged the constitutionality of the Act, asserting that it constituted an invalid exercise of the commerce power and that its enforcement provisions denied him the right to jury trial provided by the sixth and seventh amendments. The petitioner also contended that the search of his premises violated the fourth amendment because it was conducted without a warrant. Each constitutional challenge was rejected by the administrative law judge.
Following the hearing, the administrative law judge vacated all portions of the first citation except the part pertaining to the petitioner's failure to provide an approved gasoline container. 11 Although this latter part of the first citation was sustained, the administrative law judge reduced it to the nonserious category and declined to assess penalty. The second and third citations were also vacated. The administrative law judge sustained the fourth citation as a serious violation, but reduced the penalty from seven hundred to fifty dollars.
Thirty days after the administrative law judge's final decision, Commissioner Robert D. Moran directed the review of the judge's order. 12 Both the appellant and the appellee were notified of this action and informed that unless one of the parties filed a brief with the Commission, the order directing review would be vacated and the administrative law judge's decision would become the Commission's final order. The appellant filed neither a brief in response to this notice nor a petition for discretionary review under 29 C.F.R. § 2200.91(a). 13 However, the appellant did file a motion for costs and attorney's fees. The Commission denied this motion and adopted the order of the administrative law judge.
The petitioner appeals from this final order and raises three categories of issues. First, he both urges various nonconstitutional grounds for the reversal of the administrative law judge's decision and continues to assert that the search of his premises violated the fourth amendment. Second, the petitioner still presses his attack on the constitutionality of the Act as a whole and of its enforcement provisions in particular. Third, the appellant asserts that his motion for costs and attorney's fees was improperly denied. We shall address each category in turn.
The appellant raises two nonconstitutional claims in this appeal. First, he contends that the administrative law judge was without authority to amend the first citation, 14 and, accordingly, that that citation should have been dismissed. Second, the petitioner argues that the administrative law judge's finding of the violation named in the fourth citation was not supported by the evidence. Third, the appellant raises a constitutional claim, other than his frontal attacks on the Act itself, 15 which consists of the assertion that Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), requires an employer's consent to sustain a warrantless search and that no such acquiescence was obtained prior to the search in this case. As a result, the appellant argues, all evidence procured by this search should have been excluded.
Before we can reach the merits of these claims, we must first determine if we have jurisdiction to entertain them. The Act provides that "(a)ny person adversely affected or aggrieved by an order of the Commission . . . may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit . . . ." 29 U.S.C.A. § 660(a) (West 1975). However, "(n)o objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." Id.
The Secretary argues that section 660(a) requires that an employer petition the Commission to review the determination of an administrative law judge as a predicate to obtaining judicial review. 16 Our examination of the Act's administrative scheme leads us to conclude, as did the Third Circuit in Keystone Roofing v. Occupational Safety & Health Review Commission, 539 F.2d 960 (3d Cir. 1976), that the Secretary's interpretation is a reasonable one. 17
The Occupational Safety and Health Review Commission was created by the Congress to carry out the adjudicatory functions of the Act. See 29 U.S.C.A. § 651(b)(3) (West 1975). The Commission is to be "composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate, from among persons who by reason of training, education, or experience are qualified to carry out the functions of the Commission . . . ." Id. § 661(a). To assist the Commission in the performance of its functions, the Chairman is authorized to appoint administrative law judges, See id. § 661(d), who are directed to "hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith . . . ." Id. § 661(i). The administrative law judges are further directed to Id. § 661(i). Commission regulations allow aggrieved parties to petition for such review. See 29 C.F.R. § 2200.91(a) (1978).
From this statutory and regulatory framework, several conclusions are apparent. First, the administrative framework established by Congress in the Act is a finely tuned machine designed to promote expert and consistent administration. Only because of its final decision-making power, exercised by means of its authority of discretionary review, is the Commission able to bring its expertise and unifying function to bear on cases that are channeled to it from the administrative law judges. It is thus essential that the division of labor between the Commission and the administrative law judges be maintained: the smooth functioning of the machinery depends upon this separation.
Second, the language of section 660(a) indicates that proceedings targeted towards the Commission, not those before the administrative law judges, are the predicate to judicial review. As the Third Circuit noted in Keystone, Supra, 539 F.2d at 963, Congress has been perfectly able to express its intent to require, as a prerequisite to judicial review, only proceedings before an administrative law judge. See, E. g., 29 U.S.C.A. § 160(e) (West 1973) ("(n)o objection that has not been urged before the (National Labor Relations) Board, its member, agent, or agency, shall be considered by the court . . . .") Section 660(a) precludes judicial review of issues not urged before the Commission; it does not mention the Commission's administrative law judges.
Third, the Commission's regulation allowing an aggrieved party to petition for discretionary review greatly aids the separation of functions so essential to the expert and uniform administration of the Act. By reviewing parties' petitions,...
To continue reading
Request your trial
-
Donovan v. Federal Clearing Die Casting Co.
...will be alerted to issues which require the expert and unifying guidance that Congress intended them to provide." McGowan v. Marshall, 604 F.2d 885, 890 (5th Cir.1979). The Third Circuit referred specifically to the Commission's responsibility for determining the applicability of the exclus......
-
P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n
...if the aggrieved party alerts the Commission to those issues which that party thinks are worthy of review. Accord McGowan v. Marshall, 604 F.2d 885, 890-91 (5th Cir.1979); Keystone, 539 F.2d at The language set forth in the OSH Act drives home the point. While the statute recognizes the exi......
-
Cleveland Consol., Inc. v. Occupational Safety and Health Review Com'n
...Company that alternative methods of construction are not required under 29 C.F.R. § 1926.105(a). The Secretary, citing McGowan v. Marshall, 604 F.2d 885 (5th Cir. 1979), urges that the argument was not adequately raised before the Commission, and therefore cannot be decided by this court. S......
-
Panola Land Buyers Ass'n v. Shuman
...statutory scheme. Public Utilities Corp. v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958). See McGowan v. Marshall, 604 F.2d 885, 892 (5th Cir.1979) (agency has no power to declare unconstitutional the statutory and regulatory scheme it is authorized to administer). See al......