Consolidated-Andy, Inc. v. Donovan
Opinion of the Court
Petitioner Consolidated-Andy, Inc. (“Con-Andy”) seeks review of an Occupational Safety and Health Review Commission (“OSHRC”) order finding the company in violation of the Occupational Safety and Health Act of 1970 (“OSHA”). Respondent Secretary of Labor (“Secretary”) has moved to dismiss Con-Andy’s petition for review, arguing that the company’s failure to file the petition timely denies this Court subject matter jurisdiction over the case. We grant the Secretary’s motion and dismiss Con-Andy’s petition for review.
Since no Commissioner moved for review of the ALJ’s order, that decision became the final order of the OSHRC on June 1, 1979. The sole statutory course by which Con-Andy could then obtain review of this final OSHRC order was to petition this Court — as the “appropriate court of appeals” — within sixty days for review. 29 U.S.C.A. § 660(a), (b) (1975); Midway Industrial Contractors, Inc. v. OSHRC, supra, 616 F.2d at 347; Hoemer Waldorf Pan American Bag Co. v. OSHRC, supra, 614 F.2d at 796; United States v. Fornea Road Boring Co., Inc., supra, 565 F.2d at 1316 n.3; Brennan v. OSHRC, supra, 502 F.2d at 32. Courts of Appeals have no jurisdiction to grant relief from a final OSHRC order unless an appeal is filed within the sixty day period following the date the order becomes final. Midway Industrial Contractors, Inc. v. OSHRC, supra, 616 F.2d at 347; Hoerner Waldorf Pan American Bag Co. v. OSHRC, supra, 614 F.2d at 796. Thus in order for Con-Andy to challenge the OSHRC order in the present case before this Court, the company was required to file its petition for review by July 31, 1979. In fact, the petition was not filed until August 3, 1979— three days after the sixty day period had expired.
In its defense, Con-Andy argues that the OSHRC’s order became final on June 4, 1979 (rather than on June 1, 1979). The company bases this argument on the fact that the “Notice of Final Order” received from the OSHRC bore the date June 4, 1979. A “Notice of Final Order” is sent by the OSHRC to any aggrieved party who has filed a petition for discretionary review
Con-Andy was required to file its petition for review by July 31, 1979. The company actually filed its petition on August 3,1979. Therefore, the petition is dismissed for lack of jurisdiction.
DISMISSED FOR LACK OF JURISDICTION.
. The ALJ’s letter noted that the report’s official filing date would be May 2, 1979. June 1, 1979 marked thirty days after the May 2 filing date.
. Con-Andy’s petition for discretionary review was filed with the OSHRC on June 1, 1979— the last day on which a Commissioner could have directed such review. The filing of a petition for discretionary review with the OSHRC cannot prevent or delay an ALJ’s order from becoming the final OSHRC order pursuant to 29 U.S.C. § 661 (i). United States v. Fornea Road Boring Co., Inc., supra, 565 F.2d at 1316; Brennan v. OSHRC, 502 F.2d at 33.
Reference
- Full Case Name
- CONSOLIDATED-ANDY, INC. v. Raymond J. DONOVAN, Secretary Of Labor, and The Occupational Safety and Health Review Commission
- Cited By
- 3 cases
- Status
- Published