CH2M Hill Cent., Inc. v. Herman

• Decision Date: 16 December 1997
• Docket Number: Nos. 97-2403,97-2504,s. 97-2403
• Citation: 131 F.3d 1244
• Parties: 18 O.S.H. Cas. (BNA) 1106, 1998 O.S.H.D. (CCH) P 31,482 CH2M HILL CENTRAL, INC., Petitioner, v. Alexis M. HERMAN, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1244

131 F.3d 1244

18 O.S.H. Cas. (BNA) 1106, 1998 O.S.H.D. (CCH)

P 31,482

CH2M HILL CENTRAL, INC., Petitioner, v. Alexis M. HERMAN, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.

Nos. 97-2403, 97-2504.

United States Court of Appeals Seventh Circuit.

Submitted Nov. 26, 1997.

Decided Dec. 16, 1997.

Kevin J. Lyons (submitted), Francis R. Croak, Cook & Croak, Milwaukee, WI, Robert C. Gombar, Arthur G. Sapper, McDermott, Will & Emery, Washington, DC, for Petitioner.

Bruce Justh, Department of Labor, Appellate Litigation, Washington, DC, Richard J. Fiore, Kevin Koplin, Department of Labor, Chicago, IL, Ronald J. Gottlieb, Department of Labor, Office of the Solicitor, Washington, DC, Daniel J. Mick, Occupational Safety & Health Administration, Office of the Director, Washington, DC, for Respondent Herman.

Ray Darling, Jr., Occupational Safety & Health Review Commission, Washington, DC, for Respondent Occupational Safety and Health Review Commission.

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

A methane explosion in November 1988 in Milwaukee's Crosstown Seven North Tunnel led to three deaths. S.A. Healy Company, the general contractor, was convicted of criminal violations of the Occupational Safety and Health Act, and on double jeopardy grounds we vacated administrative penalties for the same delicts. S.A. Healy Co. v. OSHRC, 96 F.3d 906 (7th Cir.1996), certiorari granted, --- U.S. ----, 118 S.Ct. 623, 139 L.Ed.2d 604 (1997). The Secretary of Labor wants CH2M Hill Central ("Hill"), an engineering consultant that oversaw the project on behalf of the City of Milwaukee, to pay penalties for violating the Act's construction regulations. Proceedings on this citation, issued in May 1989, have made the litigation involving Healy seem a model of expedition. An administrative law judge held a 12-day hearing and in 1993 concluded that the citation should be vacated because the rules do not apply to firms that lack authority to direct the general contractor to cease work until safety standards have been complied with. CH2M Hill Central, Inc., 1993 OSAHRC LEXIS 258 (No. 89-1712, Sept. 14, 1993). The ALJ concluded that engineers, architects, and similar enterprises are not "engaged in construction work" within the meaning of 29 C.F.R. § 1910.12. Three and a half years later a divided Occupational Safety and Health Review Commission disagreed, ruling that a consultant to the project owner may be subject to the same rules as general contractors. CH2M Hill Central, Inc., 1997 OSAHRC LEXIS 34, 17 OSHC (BNA) 1961, 1997 OSHD (CCH) p 31,303 (No. 89-1712, April 21, 1997). Without discussing § 1910.12, the majority concluded that architects, engineers, and similar professionals should be treated as joint employers with the firms actually carrying out the construction, even if the contracts assign to the project owner full responsibility for directing the work, and to the general contractor sole responsibility for implementing the owner's decisions. "[W]here an engineering or architectural firm (1) possesses broad responsibilities in relation to construction activities, including both contractual and de facto authority relating directly to the work of the trade contractors, and (2) is directly and substantially engaged in activities that are integrally connected with safety issues, the construction standards will apply, notwithstanding contract language expressly disclaiming safety responsibility." The Commission remanded for further proceedings to determine whether Hill met this standard for de facto control and, if so, whether it should be deemed responsible for the violations under the Commission's approach to multi-employer worksites.

Instead of asking the ALJ to issue a swift decision using the record already compiled, Hill sought judicial review under 29 U.S.C. § 660(a), the important portion of which reads:

Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 659 of this title may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred ... by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside.

The sentence of § 659(c) that matters to this case says:

The Commission shall ... issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance.

The Secretary wants us to dismiss the petitions as premature, observing that the Commission has yet to issue an order "affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief", to which Hill replies that the remand is itself the "relief" that the Commission contemplated (at least in this round of proceedings). Hill adds that § 660(a) does not limit review to a "final" decision of the Commission, unlike § 660(b), which begins: "The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office, and the provisions of subsection (a) shall govern such proceedings to the extent applicable." Confining the Secretary's petitions to "final" orders, Hill tells us, implies that § 660(a) authorizes review of interlocutory orders. As a riposte, the Secretary observes that § 659(c) makes a decision imposing a penalty "final" 30 days after issuance; absence of the word "final" in § 660(a) means that employers need not wait for that month to pass, an expediting step that does not imply abandonment of the norm in administrative law that judicial review follows completion of the administrative process.

Three published opinions agree with the Secretary's contention that a remand to the ALJ is not an order "directing other appropriate relief" under § 659(c) and therefore may not be reviewed under § 660(a). Noranda Aluminum, Inc. v. OSHRC, 650 F.2d 934 (8th Cir.1981); Stripe-A-Zone v. OSHRC, 643 F.2d 230 (5th Cir.1981); Fieldcrest Mills, Inc. v. OSHRC, 545 F.2d 1384 (4th Cir.1976). The fifth circuit concluded in Stripe-A-Zone that "the phrase 'directing other appropriate relief' can refer only to those OSHRC decisions which order remedial measures after a determination on the merits of the allegations that the Act has been violated." 643 F.2d at 233. Fieldcrest Mills relied on the common-law requirement that administrative litigants exhaust their administrative remedies. According to the Secretary, even since this trio of...