USCA1 Opinion
April 21, 1994 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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Nos. 93-2038
93-2039
NEW ENGLAND INDUSTRIES, INC.,
Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, ET AL.,
Respondents.
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PETITIONS FOR REVIEW OF AN ORDER OF
THE OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Rosemary Healey, with whom Edwards & Angell was on brief,
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for petitioner.
Terri DeLeon, Attorney, with whom Thomas S. Williamson, Jr.,
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Solicitor of Labor, Joseph M. Woodward, Associate Solicitor, and
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Ann Rosenthal, Counsel, were on brief, for respondents.
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Per Curiam. In 1991, petitioner New England
Per Curiam.
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Industries, Inc. (NEI), a jewelry manufacturer operating a
factory in Providence, Rhode Island, received citations from the
Occupational Safety and Health Administration (OSHA) alleging
violations of some twenty occupational safety and health
standards. These citations became final orders of the
Occupational Safety and Health Review Commission (OSHRC) pursuant
to a settlement entered into between NEI and the government.
Under the terms of this settlement, NEI agreed, inter alia, to
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abate and correct the cited violations by specific dates in 1991.
By the start of 1992, OSHA still had not received
verification that NEI had completed the agreed corrections.
Thus, it conducted a follow-up inspection on January 23, 1992.
This inspection resulted in the issuance, on February 13, 1992,
of citations alleging failures to abate five of the earlier cited
violations, as well as some new citations for so-called "repeat
violations." NEI contested the citations. On December 18, 1992,
the Secretary of Labor moved for summary judgment with regard to
six of the alleged violations (some from each group). NEI did
not oppose the initiative, and an Administrative Law Judge (ALJ)
granted summary judgment on January 11, 1993. On January 20, a
hearing was held on the remaining three violations. The ALJ
thereafter wrote a decision finding that the remaining violations
had occurred, affirming all nine citations, and assessing
penalties as proposed by the Secretary. OSHRC declined review,
and the decision became a final order. This proceeding followed.
2
We have carefully reviewed the record and the appellate
briefs. We find that, for the most part, the arguments that
petitioner seeks to raise in this court were not seasonably
presented to the ALJ and are, therefore, not properly before
us.1 See 29 U.S.C. 660(a); see also Eagle Eye Fishing Corp.
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v. United States Dep't of Commerce, No. 93-1740, slip op. at 5-6
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(1st Cir. March 17, 1994) (discussing doctrine of administrative
waiver). As we have stated, "[i]n the usual administrative law
case, a court ought not to consider points which were not
seasonably raised before the agency." Massachusetts Dep't of
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Pub. Welfare v. Secretary of Agric., 984 F.2d 514, 523 (1st
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Cir.), cert. denied, 114 S. Ct. 81 (1993). Nothing about the
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instant case removes it from the sweep of the general rule.
We need go no further. Apart from issues that have
been procedurally defaulted, petitioner raises no fairly
debatable issues of either law or fact. Consequently, we
summarily dismiss the petitions for review, see 1st Cir. R.27.1,
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and direct enforcement of the challenged order.
The petitions for review are denied and dismissed, and
The petitions for review are denied and dismissed, and
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the orders appealed from will be enforced. Costs to respondents.
the orders appealed from will be enforced. Costs to respondents.
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1One aspect of this broad waiver results from petitioner's
neglect to oppose the Secretary's motion for partial summary
judgment. We often have warned that, in the summary judgment
context, "the decision to sit idly by and allow the summary
judgment proponent to configure the record is likely to prove
fraught with consequence." Kelly v. United States, 924 F.2d 355,
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358 (1st Cir. 1991). So it is here.
3