761 F.2d 61 (1st Cir. 1985), 84-1568, Donovan v. A. Amorello & Sons, Inc.

Docket Nº:84-1568.
Citation:761 F.2d 61
Party Name:Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. A. AMORELLO & SONS, INC., and Occupational Safety and Health Review Commission, Respondents.
Case Date:May 08, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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761 F.2d 61 (1st Cir. 1985)

Raymond J. DONOVAN, Secretary of Labor, Petitioner,


A. AMORELLO & SONS, INC., and Occupational Safety and Health

Review Commission, Respondents.

No. 84-1568.

United States Court of Appeals, First Circuit

May 8, 1985

Heard Jan. 8, 1985.

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Elizabeth S. Woodruff, U.S. Dept. of Labor, Washington, D.C., with whom Francis X. Lilly, Sol. of Labor, Frank A. White, Associate Sol., Washington, D.C., for Occupational Safety and Health, Judith N. Macaluso, Arlington, Va., Asst. Counsel for Appellate Litigation, and Albert H. Ross, Regional Sol., Dallas, Tex., were on brief for petitioner.

William J. LeDoux, Worcester, Mass., with whom Bowditch & Dewey, Worcester, Mass., was on brief for respondents.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and GIGNOUX, [*] Senior District Judge.

BREYER, Circuit Judge.

The Occupational Health and Safety Administration charged A. Amorello & Sons, Inc. with violating an OSHA regulation, which states:

No employer shall permit earthmoving ... equipment which has an obstructed view to the rear to be used in reverse gear unless the equipment has in operation a reverse signal alarm distinguishable from the surrounding noise level or an employee signals that it is safe to do so.

29 C.F.R. Sec. 1926.602(a)(9)(ii). The administrative body that adjudicates these disputes (called the Occupational Safety and Health Review Commission, or "OSHRC") found for Amorello. The Commission's ALJ apparently did not believe the OSHA inspectors when they said that Amorello's "front-end loader" had been operated without an alarm sounding. On appeal the Commission affirmed the ALJ, 2-1, but it gave different reasons (from those of the ALJ) for doing so. OSHRC's Chairman wrote that the front-end loader has so minor "an obstructed view to the rear" that the regulation does not apply. The concurring Commissioner wrote that the "obstructed view" extends no more than two feet from the machine's back end; the inspectors did not see the machine operate during its first two feet of backward motion; and thus they could not know the alarm was not then working. OSHA (or, rather, OSHA's hierarchical chief, the Secretary of Labor) asks us to reverse OSHRC. 29 U.S.C. Sec. 660(a). We agree with the Secretary that the reasoning of both majority members of OSHRC is incorrect as a matter of law. And, we remand the case to the Commission.


a. We turn first to the Chairman's rationale, namely that the earthmoving machine

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in question, a front-end loader, falls outside the scope of the regulation's phrase "equipment which has an obstructed view to the rear." At the outset, the Secretary claims that OSHRC's procedural rules forbade the Chairman to rest his decision on this ground. Those rules allow OSHRC to consider only the "issues specified" in the review petition, 29 C.F.R. Sec. 2200.92(c); and the Secretary's petition seeking review of the ALJ's decision did not mention the question of the regulation's interpretation. Nonetheless, as a technical matter, the regulation allows broader review where "the order for review expressly [so] provides." Id. The "order for review" (as distinct from the "petition for review") said OSHRC would review "all issues raised by the petition." App. at 28 (emphasis added). And the Secretary's position can be read fairly to "raise" those issues necessarily involved in accepting or rejecting the ALJ's finding that Amorello did not violate the "back-up alarm" regulation. As a practical matter, the Commission simply acted like an appellate court, free to affirm a decision that is legally correct though for a reason other than that given by the court below. See SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). The Commission is free to interpret its own procedural regulations to allow this practice, see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), particularly where, as here, the parties had addressed the substantive issue (i.e., whether the front-end loader had an obstructed view) earlier in the proceedings.

b. The more difficult question concerns, not OSHRC's interpretation of its own procedural regulation, but rather its Chairman's interpretation of OSHA's substantive regulation. This question is legally interesting because, unlike many administrative agencies, OSHA does not itself possess all three traditional administrative powers--legislative (rulemaking), prosecutorial, and adjudicative. Compare, e.g., 15 U.S.C. Secs. 41 et seq. (establishing Federal Trade Commission with all three powers); 15 U.S.C. Secs. 77s-77u (same, Securities and Exchange Commission); 47 U.S.C. Secs. 151 et seq. (same, Federal Communications Commission); see also Administrative Procedure Act, 5 U.S.C. Sec. 554(d) (providing for separation of adjudicative and prosecutorial personnel in administrative agencies); see generally Asimow, The Curtain Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum.L.Rev. 759 (1981). Instead, Congress gave OSHA the power to make safety rules and to enforce them; but it gave OSHRC, an independent administrative body, the power to adjudicate violations of OSHA's rules and regulations. That fact--that OSHA's rules are the proper concern of not one but two separate administrative bodies--creates a dilemma for a court, at least when those bodies differ about the proper interpretation of a rule. Whose opinion about the rule's meaning is entitled to greater weight? OSHA's? OSHRC's? Or should the court make up its mind independently about the rule's meaning?

Without this special structural dilemma--i.e., were OSHA alone charged with both rulemaking and adjudication--the problem of the rule's proper meaning would not be legally difficult. Since there is no factual dispute here about the characteristics of the front-end loader, the question is simply one of interpreting the rule's words: do they fit the undisputed facts? Courts must allow agencies to interpret their own rules, at least where those interpretations are reasonable. See Udall v. Tallman, supra, 380 U.S. at 16, 85 S.Ct. at 801 ("When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.... When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order."); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980) (courts should defer to agency's interpretation of its regulation "unless demonstrably irrational"). And in deciding what is reasonable, courts must take account of the agency's likely greater knowledge of the

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rule's intended purpose and the agency's practical understanding of how competing interpretations may affect the agency's regulatory mission. See Mayburg v. Secretary of Health and Human Services, 740 F.2d 100, 105-107 (1st Cir.1984); see generally Weaver, Judicial Interpretation of Administrative Regulations: An Overview, 53 U.Cinn.L.Rev. 681 (1984).

OSHA's interpretation of its regulation here is reasonable. The pictures and testimony make clear that the engine housing at the back of the front-end loader rises off the ground to a height somewhat above the head of a person standing directly behind the machine. A driver of the machine, seated in the cabin above but in front of this housing, could not see someone standing within two feet of the machine's back end. The driver's visibility is even more limited, of course, with respect to someone sitting or bending over his tools or someone standing on lower ground. OSHA's conclusion--that the driver has an "obstructed view" and, when reversing, must warn anyone just behind--strikes us as a sensible interpretation of its rule.

Amorello argues that this interpretation means all earthmoving machinery has an "obstructed view"; hence it renders meaningless OSHA's decision to modify its original...

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