Stockwell Mfg. Co. v. Usery, No. 75-1437

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore HILL and SETH, Circuit Judges, and TEMPLAR; TEMPLAR
Citation536 F.2d 1306
Docket NumberNo. 75-1437
Decision Date18 May 1976
Parties4 O.S.H. Cas.(BNA) 1332, 1976-1977 O.S.H.D. ( 20,836 STOCKWELL MANUFACTURING COMPANY, Petitioner, v. William J. USERY, Secretary of Labor, United States Department of Labor, Respondent.

Page 1306

536 F.2d 1306
4 O.S.H. Cas.(BNA) 1332, 1976-1977 O.S.H.D. ( 20,836
STOCKWELL MANUFACTURING COMPANY, Petitioner,
v.
William J. USERY, Secretary of Labor, United States
Department of Labor, Respondent.
No. 75-1437.
United States Court of Appeals,
Tenth Circuit.
May 18, 1976.

Page 1307

Orville Stockwell, Secretary, Stockwell Mfg. Co., Inc., Greybull, Wyo., for petitioner.

Michael H. Levin, Washington, D. C., for Appellate Litigation, and Mar R. Hillson, Atty., U. S. Dept. of Labor, Washington, D. C., for respondent.

Before HILL and SETH, Circuit Judges, and TEMPLAR, Senior District Judge.

TEMPLAR, Senior District Judge.

This proceeding comes to this Court by virtue of the claims asserted by petitioner Stockwell Manufacturing Company that certain of its constitutional rights were violated (1) when inspections were made of its small manufacturing plant in Greybull, Wyoming; (2) when it was forced to self-vilification by being required to post in a conspicuous place at its plant, a copy of the Secretary's citation; (3) when the Secretary's demands for "abatements" and penalties were made without due process; and (4) when its legally constructed and safely-

Page 1308

operated property was later condemned by a new law or regulation.

The basis for Stockwell's charges developed when a representative of the respondent inspected the property of petitioner for occupational safety and health hazards as authorized by Section 8(a) of the Occupational Safety and Health Act (29 U.S.C. § 657(a)). 1

Following the inspection, Stockwell was cited for eighteen non-serious violations of the Act, and standards and regulations adopted as authorized by the Act, 29 U.S.C. § 655(a).

Thereafter, a hearing was conducted by an administrative judge of the Occupational Safety and Health Review Commission following notice served by Stockwell that he intended to contest the citation as permitted by 29 U.S.C. § 659(c).

The requested hearing was conducted at Worland, Wyoming, on June 6, 1974. The hearing judge, after hearing the evidence submitted by all parties, affirmed thirteen of eighteen alleged minor violations, dismissed five on evidentiary grounds, and vacated all proposed penalties imposed in the citation which had been issued by the safety specialist of the agency. The decision and order was mailed to Stockwell on March 18, 1975, and was filed April 7, 1975. The decision mailed to Stockwell was accompanied by a notice which stated that it would become the final order of the Commission 30 days from filing with that body (April 7, 1975) unless a member of the Commission directs that it be reviewed. The notice also stated that Stockwell may petition for a review of the decision by the Commission if such petition is filed on or before May 7, 1975, which was 30 days after the decision was filed with the Commission. 29 U.S.C. § 661(i).

The record discloses that no member of the Commission directed that the decision be reviewed. The record also shows that on March 27, 1975, several days after it received the decision of the Commission, Stockwell, by letter stating among other things, "We offer no petition, or advice to the Commission regarding its review of this decision." No other notice, petition or request was thereafter made to the Commission by Stockwell.

The matter reached this Court when, on June 17, 1975, a petition for appellate review of the decision and order of the Commission, filed April 7, 1975, was filed. 29 U.S.C. § 660(a). 2 On October 3, 1975, this Court informed the parties that it was "considering summary dismissal" and requested submission on the question of whether the petition was timely filed, to which request the respondent responded that he viewed the petition for review as timely but moved to dismiss the proceeding for lack of jurisdiction because Stockwell never sought review of the adverse decision and order of the Commission. The court denied the respondent's motion to dismiss but ordered that the parties file briefs addressing both the merits and the jurisdictional issue...

To continue reading

Request your trial
12 practice notes
  • RMI Co. v. Secretary of Labor, U.S. Dept. of Labor, No. 78-3312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Marzo 1979
    ...three cases in support of his argument. Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976); Felton Const. Co. v. OSHRC, 518 F.2d 49, 50-51 (9th Cir. 1975). A careful reading of these cases, however, reveals t......
  • Austin Bldg. Co. v. Occupational Safety and Health Review Com'n, No. 79-1114
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Mayo 1981
    ...of fact are conclusive if supported by substantial evidence in the record considered as a whole. See Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.......
  • McGowan v. Marshall, No. 77-3495
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 16 Octubre 1979
    ...913, 918-19 (D.C. Cir. 1977) (due process contention that regulation was improperly promulgated); Stockwell Manufacturing Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976) (warrantless search, self-incrimination claims). We perceive no basis in the Act or the regulations for a distinction ......
  • Blocksom & Co. v. Marshall, No. 77-2254
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 16 Agosto 1978
    ...Inc. v. Occupational Safety and Health Review Commission, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Manufacturing Company v. Usery,, 536 F.2d 1306, 1309 (10th Cir. 1976). We conclude that Blocksom may not assert its defenses to the Secretary's citations or its generalized interest in t......
  • Request a trial to view additional results
12 cases
  • RMI Co. v. Secretary of Labor, U.S. Dept. of Labor, No. 78-3312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Marzo 1979
    ...three cases in support of his argument. Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976); Felton Const. Co. v. OSHRC, 518 F.2d 49, 50-51 (9th Cir. 1975). A careful reading of these cases, however, reveals t......
  • Austin Bldg. Co. v. Occupational Safety and Health Review Com'n, No. 79-1114
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Mayo 1981
    ...of fact are conclusive if supported by substantial evidence in the record considered as a whole. See Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.......
  • McGowan v. Marshall, No. 77-3495
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 16 Octubre 1979
    ...913, 918-19 (D.C. Cir. 1977) (due process contention that regulation was improperly promulgated); Stockwell Manufacturing Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976) (warrantless search, self-incrimination claims). We perceive no basis in the Act or the regulations for a distinction ......
  • Blocksom & Co. v. Marshall, No. 77-2254
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 16 Agosto 1978
    ...Inc. v. Occupational Safety and Health Review Commission, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Manufacturing Company v. Usery,, 536 F.2d 1306, 1309 (10th Cir. 1976). We conclude that Blocksom may not assert its defenses to the Secretary's citations or its generalized interest in t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT