Chao v. Occupational Safety Health Review Com'n

• Decision Date: 29 August 2008
• Docket Number: No. 07-3810.,07-3810.
• Citation: 540 F.3d 519
• Parties: Elaine L. CHAO, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Manganas Painting Co., Inc., Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

540 F.3d 519

Elaine L. CHAO, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Manganas Painting Co., Inc., Respondents.

No. 07-3810.

United States Court of Appeals, Sixth Circuit.

Argued: July 22, 2008.

Decided and Filed: August 29, 2008.

ARGUED:

Ronald J. Gottlieb, U.S. Department of Labor, Washington, D.C., for Petitioner.

ON BRIEF:

Ronald J. Gottlieb, Charles F. James, U.S. Department of Labor, Washington, D.C., for Petitioner.

Before: COLE and GRIFFIN, Circuit Judges; SARGUS, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

The Secretary of Labor petitions this court for review of a final order of the Occupational Safety and Health Review Commission. The Commission affirmed in part and reversed in part a decision by an Administrative Law Judge, who affirmed the majority of citations issued to respondent Manganas Painting Co., Inc. by the Occupational Safety and Health Administration following a 1994 inspection of a worksite on the southbound structure of the Jeremiah Morrow Bridge. Although the Commission's order adjudicated numerous citations issued to Manganas Painting, the Secretary's petition appeals only three citations for unguarded scaffolds that were vacated by the Commission.

In a 2-1 decision, the Commission held that these citations were barred by § 10(b) of the Occupational Safety and Health Act of 1970 ("the Act"), 29 U.S.C. § 659(b), because a 1993 citation for the same unguarded scaffold condition, arising out of an inspection of the northbound structure of the Morrow Bridge, was pending before the Commission at the time these 1994 citations were issued for the southbound bridge. Commissioner Rogers dissented on the basis that because the citations issued in 1993 and 1994 arose at separate worksites and at different times, § 10(b) did not bar the 1994 unguarded scaffold citations. We agree with the rationale advocated by the dissent and therefore grant the petition for review, reverse the Commission, and remand for further proceedings regarding the merits of the citations at issue.

I.

Manganas Painting began work removing lead-based paint on the Jeremiah Morrow Bridge in Lebanon, Ohio in 1993, after it entered into a contract with the Ohio Department of Transportation. The Morrow Bridge consists of two parallel bridges: one structure running northbound; the other, southbound. In April 1993, OSHA performed an inspection of the project while Manganas Painting was working on the northbound bridge. Following the inspection, OSHA issued several citations to Manganas Painting, including, inter alia, a citation alleging that Manganas Painting had failed to install guardrails on platforms that were located more than 10 feet above the ground level, in violation of 29 C.F.R. § 1926.451(a)(4) (repealed). Manganas Painting timely appealed the citation, and it was ultimately affirmed by the Commission in 2000. Sec'y of Labor v. Manganas Painting Co., 19 O.S.H. Cas. (BNA) 1102 (2000), aff'd by Manganas Painting Co. v. Sec'y of Labor, 273 F.3d 1131 (D.C.Cir.2001).

In December 1994, while Manganas Painting was working on the southbound bridge, OSHA performed another inspection. At the conclusion of this inspection, OSHA issued several new citations, including, inter alia, three alleged instances of unguarded scaffolds, in violation of 29 C.F.R. § 1926.451(a)(4).¹ These citations alleged the following violations:

Item 13a. Located under and along the east side of the south bound bridge deck, approximate panel point between U38-L38, an employee was observed working from a pic scaffold spray painting a column and the upper cord or steel area without standard guardrails or equivalent, exposing the employee to perimeter exterior falls in excess of 100' and interior falls of approximately 30'.

Item 13b. Employees were exposed to a fall in excess of 140' while using the scaffold pic adjacent to the ladder suspended over the side of the bridge outside the containment area south of pier 4 in that there were no guard rails on the pic.

Item 13c. Located under and along the east side of the south bound bridge deck approximate panel point U34, employees were working from a pick scaffold without standard guardrails or equivalent exposing employees to perimeter exterior falls in excess of 100' and interior falls in excess of 30'.

Manganas Painting timely appealed, resulting in a decision by an administrative law judge vacating the citations on the basis that these violations were duplicative of other citations issued during the 1994 inspection of the southbound bridge.²

On review, the Commission affirmed the ALJ's decision, but on different grounds. The Commission majority held that section 10(b) of the Act barred the Secretary from citing Manganas Painting for failing to guard pick scaffolds at the bridge worksite because a 1993 citation for the same condition relating to the northbound bridge was pending before the Commission at the time these alleged violations were cited in December 1994. The Commission reasoned:

As a result of the April 1993 inspection of the bridge worksite, OSHA cited Manganas for a violation of § 1926.451(a)(4), the same scaffolding standard cited here. The 1993 citation was based on Manganas' failure "to install guardrails on a painter's pick." Manganas Painting Co., 19 BNA OSHC at 1103, 2000 CCH OSHD at p. 48,767. It is undisputed that at the time OSHA initiated the 1994 inspection and issued the resulting citations, the 1993 citation had been timely contested by Manganas and a hearing in the matter had yet to commence. In fact, the judge who presided over the 1993 matter did not issue his decision until after a decision was issued in the current cases, and his decision did not become a final order of the Commission until 2000.

While the alleged scaffolding violations cited in 1993 and 1994 were observed at what we find to be essentially two different worksites, the citations "covered the same condition" in that each item was based on Manganas' failure to guard the same type of pick scaffold used throughout the bridge worksite during both painting seasons.

(emphasis added)

The Secretary timely filed a petition for review with this court, limited to the Commission's decision regarding these citations. Neither Manganas Painting nor the Commission has filed a responsive brief in opposition.

II.

In reviewing an agency's interpretation of a statute that it is charged with administering, we apply the familiar two-step process announced by the Supreme Court in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "The initial question under step one of the Chevron framework is `whether Congress has directly spoken to the precise question at issue' by employing precise, unambiguous statutory language." Alliance for Community Media v. F. C.C., 529 F.3d 763, 776-77 (6th Cir.2008) (citing Chevron, 467 U.S. at 842, 104 S.Ct. 2778). If the text of the statute is unambiguous and, therefore, the "intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Jewish Hosp., Inc. v. Sec'y of Health & Human Servs., 19 F.3d 270, 273 (6th Cir.1994) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). If, however, "we determine that Congress has not directly addressed the precise question at issue, that is, that the statute is silent or ambiguous on the specific issue, we must determine `whether the agency's answer is based on a permissible construction of the statute.'" Battle Creek Health Sys. v. Leavitt, 498 F.3d 401, 408-09 (6th Cir. 2007) (quoting Jewish Hosp., Inc., 19 F.3d at 273). Where the agency's interpretation of the statute does not take the form of a regulation issued following notice and comment rulemaking, but rather is offered through an informal medium — such as an opinion letter, policy statement, or agency manual — Chevron-style deference is not warranted, and we apply the less deferential Skidmore³ review to the agency's interpretation. Id. at 409. See also infra at III.C.

The threshold issue, then, is whether § 10(b) is ambiguous. Section 10(b) of the Act provides in pertinent part:

If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 666 of this title by reason of such failure, and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty.

29 U.S.C. § 659(b) (emphasis added).

We conclude that the statute is ambiguous regarding the meaning of "a violation for which a citation has been issued." § 659(b). We have explained previously that "[l]anguage is ambiguous when `to give th[e] phrase meaning requires a specific factual scenario that can give rise to two or more different meanings of the phrase.'" Alliance, 529 F.3d at 777 (quoting Beck v. City of Cleveland, 390 F.3d 912, 920 (6th Cir.2004)). Here, there are at least two possible constructions of the pertinent phrase. It could refer, as the Secretary insists, to each instance in which an OHSA regulation is breached. The statute's use of the term "violation" could also be read plausibly, however, to apply only to the regulation that was allegedly transgressed, rather than to each individual act. For example, under the former construction of the statute, three separate, individual violations of 29 C.F.R. § 1926.451(a)(4) occurring at different locations on...