Power Plant Div., Brown & Root, Inc. v. Occupational Safety and Health Review Com'n, No. 79-3677

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GODBOLD, Chief Judge, TUTTLE and HILL; GODBOLD
Citation673 F.2d 111
Parties10 O.S.H. Cas.(BNA) 1529 POWER PLANT DIVISION, BROWN & ROOT, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Raymond J. Donovan, Secretary of Labor, Respondents. . Unit B *
Docket NumberNo. 79-3677
Decision Date15 April 1982

Page 111

673 F.2d 111
10 O.S.H. Cas.(BNA) 1529
POWER PLANT DIVISION, BROWN & ROOT, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and
Raymond J. Donovan, Secretary of Labor, Respondents.
No. 79-3677.
United States Court of Appeals,
Fifth Circuit.
Unit B *
April 15, 1982.

Page 112

W. Carl Jordan, Houston, Tex., for petitioner.

Allen H. Feldman, U. S. Dept. of Labor, Dennis K. Kade, Jeffrey M. Strashun, Andrea C. Casson, Washington, D. C., for respondent.

Petition for Review of an Order of the Occupational Safety & Health Review Commission.

On Petition for Rehearing and Suggestion for Rehearing En Banc

(Opinion October 26, 1981, 5 Cir., 1981, 659 F.2d 1291)

Before GODBOLD, Chief Judge, TUTTLE and HILL, Circuit Judges:

GODBOLD, Chief Judge:

In this case the Occupational Safety and Health Review Commission (OSHRC or Commission) held that Brown & Root had failed to provide to its employees personal protective equipment required by 29 C.F.R. § 1926.28(a). Before this court Brown & Root contended for the first time that industry practices are determinative of an employer's duty under § 1926.28(a). We held that because Brown & Root had not presented this argument to the Commission it was barred by 29 U.S.C. § 660(a) from raising it before this court. We grant Brown & Root's petition for rehearing to clarify this holding.

29 U.S.C. § 660(a) provides that "(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." In the principal opinion we ruled on three points relevant to § 660(a). We held: (1) that Brown & Root had failed to alert the Commission to its contention that industry practices are controlling; (2) that this default may be raised sua sponte by this court and is not waivable by the Secretary of Labor's failure to raise it; and (3) that no extraordinary circumstances were present. Power Plant Division, Brown & Root, Inc. v. OSHRC, 659 F.2d 1291, 1293-95 & n.3 (5th Cir. 1981).

In its petition for rehearing Brown & Root analogizes § 660(a)'s requirement of raising an objection before the Commission to a requirement of exhaustion of administrative remedies, and contends that our holding is inconsistent with a line of Supreme Court decisions that have excused the failure of parties to fully exhaust their intra-agency levels of review. Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Each of these cases involved a constitutional challenge to the denial of benefits under the Social Security Act. In each case the claimant was allowed to appeal the denial of benefits without having first sought all of the available levels of review within the agency. Brown & Root contends that these decisions establish that an exhaustion requirement is waivable and that futility will excuse the failure to fully exhaust. 1 These precedents do not require a different result than we have reached in this case.

We consider first our duty to raise a § 660(a) default sua sponte and the Secretary's ability to waive the default. Salfi, far from contradicting our consideration of Brown & Root's failure to present its objection to the Commission, affirms our raising of this matter sua sponte, for there the Court considered the exhaustion issue despite the failure of any party to raise it before the Court. 422 U.S. at 786, 95 S.Ct. at 2477 (Brennan, J., dissenting). Whether the § 660(a) bar to review may be and has been waived is a more difficult question. Speaking broadly, in Salfi, as interpreted by Eldridge and Diaz, the Court held that the analogous requirement of exhaustion of intra-agency levels of review may be waived by the agency. 422 U.S. at 765-67, 95 S.Ct. at 2466-2467; 424 U.S. at 328-30, 96 S.Ct.

Page 113

at 899-900; 426 U.S. at 75-77, 96 S.Ct. at 1889-1890.

The specific focus of the Court's attention in Salfi, Eldridge, and Diaz was § 405(g) of the Social Security Act which provides that only "final decisions" on a claim for benefits may be reviewed by the courts. The issue for decision in each case was whether a denial of benefits at an early administrative level is a "final decision" despite the failure to fully appeal within the agency. In Salfi, the progenitor of these cases, the Court presented the core of its reasoning. Because the term "final decision" is not defined:

the statutory scheme is thus one in which the Secretary may specify such requirements for exhaustion as he deems serve his own interests in effective and efficient administration.... (T)he Secretary (may determine) in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be "final" within the language of § 405(g).

422 U.S. at 766, 95 S.Ct. at 2467. The specific holding of Salfi and its progeny, then, is not that the exhaustion requirement is waived by the agency's failure to present it to the review court but that the particular agency, Health and Human Services, has the discretion to define the particular term "final decision." In Salfi the Court found a determination by the agency that there had been a final decision from the agency's failure to challenge the allegations in the complaint that there had been full exhaustion. 422 U.S. at 769, 95 S.Ct. at 2468. In Diaz the Court found a determination in the agency's stipulation that there were no factual or statutory application issues in dispute but only an issue of the constitutionality of the statute, which issue was beyond the power of the agency to address. 426 U.S. at 76-77, 96 S.Ct. at 1889-1890. In Eldridge the agency maintained that there was a failure to exhaust, in other words, that there had been no final decision. The Court refused...

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20 practice notes
  • Garcia-Mir v. Smith, GARCIA-MIR
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 11, 1985
    ...by a judicial conclusion of futility." 422 U.S. at 766, 95 S.Ct. at 2467. See also Power Plant Div., Brown & Root Inc. v. O.S.H.R.C., 673 F.2d 111, 115 (5th Cir. Unit B 1982). 10 Plaintiffs acknowledge that the district court's order is somewhat overbroad since it stays the exclusion orders......
  • Barnett v. Dist. of Col. Dept. of Emp. Serv., No. 83-1340.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 8, 1985
    ...171 U.S.App.D.C. 73, 81, 518 F.2d 466, 474 (1975); Power Plant Division, Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 673 F.2d 111, 113-14 (5th Cir. 8. See, e.g., Andrade, supra note 7, 234 U.S.App. D.C. at 393, 729 F.2d at 1484; Kennedy v. Whitehurst, 223 U.S.App.D.C. ......
  • American Airlines, Inc. v. Herman, No. 97-10895
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 17, 1999
    ...U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (quoted in Power Plant Div., Brown & Root v. Occupational Safety and Health Review Comm'n, 673 F.2d 111, 115 (5th Cir. Unit B 1982) (noting that "we are dealing with a case of only 'probable' futility, that is, a case where the Commission is empo......
  • RSR Corp. v. Donovan, No. 81-4379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 659 F.2d 1291, 1294 (5th Cir.1981), modified, 673 F.2d 111 (5th Cir.1982), quoting Keystone Roofing Co. v. Occupational Safety and Health Review Commission, 539 F.2d Page 303 960, 964 (3d Cir.1976). Whil......
  • Request a trial to view additional results
20 cases
  • Garcia-Mir v. Smith, GARCIA-MIR
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 11, 1985
    ...by a judicial conclusion of futility." 422 U.S. at 766, 95 S.Ct. at 2467. See also Power Plant Div., Brown & Root Inc. v. O.S.H.R.C., 673 F.2d 111, 115 (5th Cir. Unit B 1982). 10 Plaintiffs acknowledge that the district court's order is somewhat overbroad since it stays the exclusion orders......
  • Barnett v. Dist. of Col. Dept. of Emp. Serv., No. 83-1340.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 8, 1985
    ...171 U.S.App.D.C. 73, 81, 518 F.2d 466, 474 (1975); Power Plant Division, Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 673 F.2d 111, 113-14 (5th Cir. 8. See, e.g., Andrade, supra note 7, 234 U.S.App. D.C. at 393, 729 F.2d at 1484; Kennedy v. Whitehurst, 223 U.S.App.D.C. ......
  • American Airlines, Inc. v. Herman, No. 97-10895
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 17, 1999
    ...U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (quoted in Power Plant Div., Brown & Root v. Occupational Safety and Health Review Comm'n, 673 F.2d 111, 115 (5th Cir. Unit B 1982) (noting that "we are dealing with a case of only 'probable' futility, that is, a case where the Commission is empo......
  • RSR Corp. v. Donovan, No. 81-4379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 659 F.2d 1291, 1294 (5th Cir.1981), modified, 673 F.2d 111 (5th Cir.1982), quoting Keystone Roofing Co. v. Occupational Safety and Health Review Commission, 539 F.2d Page 303 960, 964 (3d Cir.1976). Whil......
  • Request a trial to view additional results

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