United States of America, by Raymond J. Donovan, Secretary of Labor, Plaintiff v. Howard Electric Company, A Corporation, 798 F.2d 392, 10th Cir. (1986)
United States of America, by Raymond J. Donovan, Secretary of Labor, Plaintiff v. Howard Electric Company, A Corporation, 798 F.2d 392, 10th Cir. (1986)
United States of America, by Raymond J. Donovan, Secretary of Labor, Plaintiff v. Howard Electric Company, A Corporation, 798 F.2d 392, 10th Cir. (1986)
2d 392
12 O.S.H. Cas.(BNA) 1985, 1986-1987 O.S.H.D. ( 27,652
Albert B. Wolf (Robert H. Winter, Wolf & Slatkin, with him on brief),
Wolf & Slatkin, Denver, Colo., for defendant-appellant.
Morris R. Parker, Jr. (Francis X. Lilly, Sol. of Labor, Frank A. White,
Associate Sol. for Occupational Safety and Health, Joseph M. Woodward,
Counsel for Appellate Litigation, and Andrea C. Casson, Asst. Counsel for
Appellate Litigation, with him on brief), U.S. Dept. of Labor, Washington,
D.C., for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, TIMBERS* and BALDOCK, Circuit
Judges.
BALDOCK, Circuit Judge.
lacked subject matter jurisdiction to assess the penalty. The Secretary argued
that the district court could not review the ALJ's determination of subject
matter jurisdiction and was thus bound by the ALJ's decision. The district court
denied Howard's motion and granted summary judgment in favor of the
Secretary, awarding the Secretary the amount of the penalty as assessed.
Howard appeals this order of the district court. We affirm.
2
The order of the ALJ was mailed to the parties, accompanied by a notice of
decision which advised the parties that the order would become the final order
of the Commission on December 6, 1982, unless a member of the Commission
directed that the order be reviewed. 29 U.S.C. Secs. 659(c) and 661(j). Howard
contends that it never received this mailing, but does not dispute that it received
a copy of the ALJ's order or that it was aware of the Commission review
procedures. Moreover, Howard submitted a timely petition for review of the
ALJ's decision on December 2, 1982, specifically alleging that the ALJ's
decision regarding jurisdiction was erroneous. 29 C.F.R. Sec. 2200.91. No
member of the Commission directed the case for discretionary review, and the
ALJ's decision became a final order of the Commission on December 6, 1982.
29 U.S.C. Secs. 659(c) and 661(j); 29 C.F.R. Secs. 2200.90(b)(3) and
2200.91(d).
6
After the ALJ's decision became the final order of the Commission, Howard
had sixty days in which to obtain judicial review of the decision by the court of
appeals. 29 U.S.C. Sec. 660(a). Howard never pursued such appeal.
On April 13, 1983, the Secretary requested payment of the penalty. Howard
refused. The Secretary filed the action to collect the penalty in federal district
court. 29 U.S.C. Sec. 666(l). Cross motions for summary judgment were filed,
and both Howard and the Secretary stipulated that such motions were
dispositive of the case. In granting the Secretary's motion, the trial judge found
that the ALJ's decision was not subject to collateral attack, and that Howard's
collateral attack amounted to an attempt by Howard to obtain judicial review of
the ALJ's decision by the district court.
10
The district court action provided for in 29 U.S.C. Sec. 666(l)3 is a collection
procedure only, while the determination of violation and penalty is left to the
administrative process. Mohawk Excavating, Inc. v. Occupational Safety and
Health Review Commission, 549 F.2d 859, 863-64 (2nd Cir.1977). "[N]either
the fact of the violation nor the propriety of the penalty assessed may be
retried" in the district court action. Atlas Roofing Co., Inc. v. Occupational
Safety and Health Review Commission, 430 U.S. 442, 447, 97 S.Ct. 1261,
1265, 51 L.Ed.2d 464 (1977). The statutory framework setting forth the
applicable administrative process allows for a resolution of all issues at the
Commission level, with the opportunity for judicial review exclusively in the
court of appeals. 29 U.S.C. Secs. 659(c) and 660(a); Brennan v. Occupational
Safety and Health Review Commission, 502 F.2d 30, 32 (5th Cir.1974). The
special review statute (29 U.S.C. Sec. 660(a))4 which vests jurisdiction to
review Commission orders in the court of appeals precludes the exercise of
original jurisdiction by other courts in all cases covered by the special review
statute. Investment Company Institute v. Board of Governors of the Federal
Reserve System, 551 F.2d 1270, 1279 (D.C.Cir.1977).
11
12
Likewise, this court is now without jurisdiction to grant the relief Howard
requests. The provisions of 29 U.S.C. Sec. 660(a) allow this court to review
Commission orders if such orders are appealed within sixty days following the
date they become final. Clearly, appeal was not taken within the sixty-day
period. The sixty-day limitation on filing the appeal is jurisdictional, and
Howard's failure to file an appeal within that period precludes this court from
now reviewing the Commission's order. Consolidated-Andy, Inc. v. Donovan,
642 F.2d 778, 779 (5th Cir.1981); Midway Industrial Contractors, Inc. v.
Occupational Safety and Health Review Commission, 616 F.2d 346, 347 (7th
Cir.1980); Hoerner Waldorf Pan American Bag Co., Inc. v. Occupational
Safety and Health Review Commission, 614 F.2d 795, 796 (1st Cir.1980).
13
Howard's argument that it was prejudiced because it never received the notice
of decision as mailed by the ALJ is meritless. It is undisputed that Howard
received a copy of the order, knew the proper procedures for appealing to the
Commission, and did in fact timely lodge such an appeal. Howard was not
prejudiced by any failure to receive the notice of decision.
14
Howard also raises other arguments questioning the preclusive effect of the
Commission's decision in the district court proceeding. However, because we
hold that the district court did not have jurisdiction to examine the propriety of
the penalty assessment, we need not address those arguments.
15
AFFIRMED.
The Honorable William H. Timbers, United States Senior Circuit Judge for the
Second Circuit, sitting by designation
All statutory references are to the United States Code, 1982 edition. Since
certain subsections of the original Occupational Safety and Health Act of 1970
amended statutes in various titles of the Code, these subsections were omitted
from the statutes codified under title 29. As a result, various cases and
compilation services have chosen to redesignate some of the title 29
subsections. This redesignation is not reflected in the United States Code, 1982
edition
We note that it was the filing of the notice of contest by Howard that invoked
the jurisdiction of the Commission. 29 U.S.C. Sec. 659(c); Donovan v.
International Union, Allied Industrial Workers, 722 F.2d 1415, 1418 (8th
Cir.1983); Asarco, Inc., 80 OSHARC 99 A/3, 8 BNA OSHC 2156, 1980 CCH
OSHD p 24,838 (No. 79-6850, 1980). The filing of a complaint is not mandated
by the statutory grant of jurisdiction, but is simply a procedural rule
promulgated by the Commission pursuant to 29 U.S.C. Sec. 661(g). The
complaint and answer are filed simply to formulate the issues to be resolved by
the Commission. Asarco, Inc., 80 OSHARC 99 A/3, 8 BNA OSHC 2156, 1980
CCH OSHD p 24,838 (No. 79-6850, 1980). "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." 29 C.F.R. Sec. 2200.38. Thus, although the Secretary's delay in
filing could have resulted in a dismissal of the Secretary and his claims, such
dismissal would result from the exercise of the Commission's discretion and not