AKM LLC v. Sec'y of Labor, Dep't of Lobor

• Citation: 2012 O.S.H.D. (CCH) P 33209,23 O.S.H. Cas. (BNA) 1886,675 F.3d 752
• Decision Date: 06 April 2012
• Docket Number: No. 11–1106.,11–1106.
• Parties: AKM LLC, doing business as Volks Constructors, Petitioner v. SECRETARY OF LABOR, DEPARTMENT OF LABOR and Occupational Safety & Health Review Commission, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

2012 O.S.H.D. (CCH) P 33,209
23 O.S.H. Cas. (BNA) 1886
675 F.3d 752

AKM LLC, doing business as Volks Constructors, Petitioner
v.
SECRETARY OF LABOR, DEPARTMENT OF LABOR and Occupational Safety & Health Review Commission, Respondents.

No. 11–1106.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 20, 2012.Decided April 6, 2012.

[675 F.3d 752]

On Petition for Review of a Final Order of the Occupational Safety & Health Review Commission.Arthur G. Sapper argued the cause for petitioner. On the briefs was Michael S. Nadel.

Elizabeth Gaudio was on the brief for amicus curiae National Federation of Independent Business Small Business Legal Center in support of petitioner.

[675 F.3d 753]

Heather R. Phillips, Attorney, U.S. Department of Labor, argued the cause for respondent. With her on the brief were Joseph M. Woodward, Associate Solicitor, and Robert W. Aldrich, Attorney.

Before: HENDERSON, GARLAND, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion concurring in the judgment filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge BROWN.

BROWN, Circuit Judge:

OSHA cited and fined petitioner, Volks Constructors, for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as Volks points out, at least six months after the last unrecorded injury occurred. Because “[n]o citation may be issued ... after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), we agree with Volks that the citations are untimely and should be vacated.

I

The Occupational Safety and Health Act (“OSH Act” or “Act”) provides that “[e]ach employer shall make, keep and preserve” records of workplace injuries and illnesses “as the Secretary ... may prescribe by regulation.” 29 U.S.C. § 657(c)(1). Pursuant to that delegated authority, the Secretary has promulgated a set of regulations which require employers to record information about work-related injuries and illnesses in three ways. Employers must prepare an incident report and a separate injury log “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred,” 29 C.F.R. § 1904.29(b)(3), and must also prepare a year-end summary report of all recordable injuries during the calendar year, id. § 1904.32(a)(2). This year-end summary must be certified by a “company executive.” Id. § 1904.32(b)(3). The employer “must save” all of these documents for five years from the end of the calendar year those records cover. Id. § 1904.33(a).

On May 10, 2006, OSHA began an inspection of Volks and discovered that Volks had not been diligent in completing its logs, forms, and summaries between 2002 and early 2006. Accordingly, on November 8, 2006, OSHA issued the set of citations at issue in this case. OSHA fined Volks a total of $13,300 for 67 violations of 29 C.F.R. § 1904.29(b)(2)—incident report forms were incomplete, 102 violations of 29 C.F.R. § 1904.29(b)(3)—injuries were not entered in the log, one violation of 29 C.F.R. § 1904.32(a)(1)—year-end reviews were not conducted between 2002 and 2005, and one violation of 29 C.F.R. § 1904.32(b)(3)—the wrong person certified the year-end summary. ¹ The improperly recorded injuries occurred between January 11, 2002 at the earliest and April 22, 2006 at the latest. These dates are equivalent to a maximum of 54 months before the issuance of the citation, and a minimum of six months plus ten days before the issuance of the citation. Volks was not cited for any violation of the requirement in 29 C.F.R. § 1904.33(a) that it “save” the forms and the log for five years.

[675 F.3d 754]

Because the Act says that “[n]o citation may be issued ... after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), and because the injuries giving rise to recording failures took place more than six months before the issuance of the citation, Volks moved to dismiss these citations as untimely. After the OSHA ALJ affirmed the citations, Volks appealed to the Occupational Safety and Health Review Commission (OSHRC). The Secretary said all the violations for which Volks was cited are “continuing violations” that prevent the statute of limitations from expiring until the end of the five-year document retention period in 29 C.F.R. § 1904.33(a). Therefore, the Secretary argued, all of Volks's violations, stretching as far back as January of 2002, were still occurring on May 10, 2006 when the inspection began. The citations were issued two days shy of six months later than that date, so the Secretary argued they were timely. By a 2–1 vote, and over the vigorous dissent of the minority Commissioner, the Commission agreed with the Secretary and affirmed the citations. AKM LLC, 23 BNA OSHC 1414 (No. 06–1990, 2011) (“ Commission Decision ”). This petition for review followed.

II

The question in this case is whether the Act's record-keeping requirement, in conjunction with the five-year regulatory retention period, permits OSHA to subvert the Act's six-month statute of limitations.

Because the Secretary of Labor has interpreted the Act and her regulations to pretermit the Act's statute of limitations, we first determine whether we must defer to her interpretation. Generally, the answer is yes so long as the statutes and regulations in question are ambiguous and the Secretary's interpretations are reasonable. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Christensen v. Harris Cnty., 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). This is so even if the Secretary's interpretation arises in an administrative adjudication rather than in a formal rulemaking process. Martin v. OSHRC, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) ( “[T]he Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace health and safety standard.”); see Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (holding that the Secretary's interpretation of regulations receives deference even if contained in a brief).

Since the method by which the Secretary's interpretation has been articulated in this case places it within the ambit of our deference, the next question is whether the interpretation of a statute of limitations is the type of question which triggers our deference. We have recently suggested that, in at least some circumstances, agency interpretations of statutes of limitations do trigger Chevron deference. Intermountain Ins. Serv. of Vail v. Comm'r, 650 F.3d 691, 707 (D.C.Cir.2011). Because we find this statute to be clear and the agency's interpretation unreasonable in any event, infra, we need not and do not decide now that this case presents the same circumstances as Intermountain or that deference to agency interpretations of statutes of limitations is warranted as a rule. Rather, we assume without deciding that Chevron deference is available because the interpretation offered by the agency here “cannot survive even with the aid of Chevron deference.”

[675 F.3d 755]

Kennecott Utah Copper Corp. v. Dep't of Interior, 88 F.3d 1191, 1210 (D.C.Cir.1996).

III

We thus begin with the text of the statute. If Congress has clearly expressed its will, our inquiry is at an end. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. We think the statute is clear; the citations are untimely.

The statute of limitations provides that “no citation may be issued ... after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). Like the Supreme Court, we think the word “occurrence” clearly refers to a discrete antecedent event—something that “happened” or “came to pass” “in the past.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109–10 & n. 5, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (citing dictionaries); see Black's Law Dictionary 1080 (6th ed.1990) (defining “occurrence” as “a coming or happening[;] [a]ny incident or event”); Webster's Third New Int'l Dictionary 1561 (1981) (defining “occurrence” as “something that takes place” and noting that it is a term that “lacks much connotational range” for which synonyms are “incident, episode, [or] event”).² In this case, every single violation for which Volks was cited—failures to make and review records—and every workplace injury which gave rise to those unmet recording obligations were “incidents” and “events” which “occurred” more than six months before the issuance of the citations. As the dissenting Commissioner stated in this case, “[b]y any common definition, there [was] no ‘occurrence,’ i.e., no discrete action, event, or incident, no coming about, and no process of happening, within the requisite six months.” Commission Decision, at *18 (Thompson, Comm'r, dissenting). We agree.

The Secretary does not offer any other definition of “occurrence” but instead heroically attempts, as the dissenting Commissioner put it, to “tie this straightforward issue into a Gordian knot.” Id. at *17. The Secretary argues such violations continue every day that an unmet record-keeping obligation remains unsatisfied. Because the statute also requires that “each employer shall make, keep and preserve” those records as the Secretary prescribes, 29 U.S.C. § 657(c), and the Secretary has prescribed that work injuries be recorded “within seven (7) calendar days” of an incident report, 29 C.F.R. § 1904.29(b)(3), and those records be retained for five years, id. § 1904.33(a), the Secretary concludes the real statute of limitations for record-making violations is the length of the agency's record retention period plus the limitations period Congress proposed—here, five years beyond the six months stated in Section 658(c).

Despite the...