Dawson Production Services v. Occupational Safety

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
98-60562
__________________
DAWSON PRODUCTION SERVICES, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION; ALEXIS M. HERMAN, SECRETARY
OF LABOR, U.S. DEPARTMENT OF LABOR,
Respondents.
______________________________________________
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
(97-1898)
______________________________________________
January 6, 2000
Before POLITZ, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Dawson Production Service (Dawson), seeks review of the final
order of the Occupational Safety and Health Review Commission
(Commission). The decision and order at issue was rendered by a
Commission Administrative Law Judge, James H. Barkly. Judge
Barkly's decision became a final order of the Commission when no
member of the Commission directed review of Judge Barkley's
decision. See 29 U.S.C. § 661(j). Specifically, petitioner seeks
to vacate the decision that Dawson failed to protect its employees
from a recognized hazard within the oil and gas well drilling and
servicing industry when it disregarded the manufacturer's
recommendation for deployment of guy lines to stabilize an oil rig

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2The respondents' motion to strike a portion of Dawson's post-
argument letter is DENIED.
2
in order to prevent collapse. Dawson contends that (1) it was not
given proper notice of its citation for a serious violation of the
Occupational Safety and Health Act of 1970, (2) substantial
evidence does not support the violation found by the ALJ, and (3)
the ALJ abused its discretion in admitting the expert testimony of
a consulting engineer. After a careful review and consideration of
the record, the briefs, and arguments advanced at submission, we
deny the petition for review for the following reasons:
1. The notice issue was not raised by Dawson in its
petition for discretionary review of the ALJ
decision to the Commission and no extraordinary
circumstances for failure to raise the issue has
been shown (see 29 U.S.C. § 660(a)), nor has Dawson
claimed that the notice issue was sufficiently
obvious from the record to justify our review.
2. There is substantial evidence in the record before
the ALJ to support the violation found by the ALJ.
3. The ALJ did not abuse its discretion allowing the
testimony of the witness Luttgen.
The petition for review is DENIED.2

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