8 O.S.H. Cas.(bna) 2060, 1980 O.S.H.D. (Cch) P 24,833 W. J. Usery, Jr., Secretary of Labor v. Franklin R. Lacy (Aqua View Apartments), and Occupational Safety and Health Review Commission

628 F.2d 1226 8 O.S.H. Cas.(BNA) 2060, 1980 O.S.H.D. (CCH) P 24,833 W. J. USERY, Jr., Secretary of Labor, Petitioner, v. Franklin R. LACY (Aqua View Apartments), and Occupational Safety and Health Review Commission, Respondents. No. 76-2201. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 15, 1979. Decided Sept. 24, 1980. Diane Burkley, Washington, D.C., for petitioner. Franklin R. Lacey, William McLaughlin, Washington, D.C., for respondents. On Petition to Review an Order of the Occupational Safety and Health Review Commission. Before TRASK and KENNEDY, Circuit Judges, and KELLEHER, * District judge. KENNEDY, Circuit Judge: 1 This appeal presents the question whether an employer can be cited for violating the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678 (1976), in the course of constructing a medium-sized apartment building, or whether his contacts with interstate commerce are too attenuated or uncertain to bring him within the Act's coverage. 2 An administrative law judge dismissed the complaint against respondent on December 16, 1974, because the "Secretary has failed to meet his burden of proving that Respondent was…