
USCA1 Opinion

	




          April 21, 1994        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 93-2038               93-2039                            NEW ENGLAND INDUSTRIES, INC.,                                     Petitioner,                                         v.               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, ET AL.,                                     Respondents.                              _________________________                         PETITIONS FOR REVIEW OF AN ORDER OF                          THE OCCUPATIONAL SAFETY AND HEALTH                                  REVIEW COMMISSION                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Rosemary Healey,  with whom Edwards  & Angell was  on brief,               _______________             _________________          for petitioner.               Terri DeLeon, Attorney, with whom Thomas S. Williamson, Jr.,               ____________                      _________________________          Solicitor of Labor, Joseph  M. Woodward, Associate Solicitor, and                              ___________________          Ann Rosenthal, Counsel, were on brief, for respondents.          _____________                              _________________________                              _________________________                    Per   Curiam.     In  1991,   petitioner  New   England                    Per   Curiam.                    ____________          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                                                             _____ ____          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.                 ___                      ___ ____ ________________________          v. United States Dep't of Commerce, No. 93-1740, slip  op. at 5-6             _______________________________          (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                                                    _______________________          Pub.  Welfare  v. Secretary  of Agric.,  984  F.2d 514,  523 (1st          _____________     ____________________          Cir.),  cert. denied, 114  S. Ct. 81  (1993).  Nothing  about the                  _____ ______          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,                                                       ___          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                    _______________________________________________________          the orders appealed from will be enforced.  Costs to respondents.          the orders appealed from will be enforced.  Costs to respondents.          _________________________________________   ____________________                                        ____________________               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,                                      _____    _____________          358 (1st Cir. 1991).  So it is here.                                          3
