P. Gioioso & Sons v. Occupational Safety and Health Review Commission

115 F.3d 100 (1997)

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P. Gioioso & Sons v. Occupational Safety and Health Review Commission

United States Court of Appeals for the First Circuit
115 F.3d 100 (1997)

Facts

P. Gioioso & Sons, Inc. (Gioioso) (plaintiff) was a construction contractor. The Occupational Safety and Health Administration (OSHA) cited Gioioso for three violations of safety rules involving a trench in which Gioioso’s employees were working while laying water lines along a roadway. Gioioso filed a notice of contest and moved for the disqualification of the administrative-law judge (ALJ) on the grounds that the ALJ had been the prosecutor in a similar case against Gioioso several years earlier. The ALJ denied the motion and ruled in favor of OSHA on the substance of the violations. Gioioso then filed a petition for discretionary review with the Occupational Safety and Health Review Commission (commission) (defendant). The petition raised three issues for review and did not mention the motion to disqualify the ALJ except for a brief reference in a footnote in the context of providing information to support another argument. The commission did not act on the petition for review, and the ALJ’s ruling became final. Gioioso then sought judicial review. In presenting its case to the court, Gioioso raised the three issues that were presented to the commission and three additional issues, including whether the ALJ should have recused himself.

Rule of Law

Issue

Holding and Reasoning (Selya, J.)

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