Reich v. Manganas, No. 94-3698

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtDAUGHTREY
Citation70 F.3d 434
Parties, 17 O.S.H. Cas. (BNA) 1444, 1995 O.S.H.D. (CCH) P 30,922 Robert REICH, Secretary of Labor, Plaintiff-Appellee, v. Andrew MANGANAS and Manganas Painting Company, Inc., Defendants-Appellants.
Docket NumberNo. 94-3698
Decision Date27 November 1995

Page 434

70 F.3d 434
64 USLW 2368, 17 O.S.H. Cas. (BNA) 1444,
1995 O.S.H.D. (CCH) P 30,922
Robert REICH, Secretary of Labor, Plaintiff-Appellee,
v.
Andrew MANGANAS and Manganas Painting Company, Inc.,
Defendants-Appellants.
No. 94-3698.
United States Court of Appeals,
Sixth Circuit.
Argued Sept. 26, 1995.
Decided Nov. 27, 1995.

Page 435

Edward Falkowski (argued and briefed), Barbara Werthmann, U.S. Department of Labor, Office of Solicitor, Washington, DC, for Plaintiff-Appellee.

Roger L. Sabo (argued and briefed), Schottenstein, Zox & Dunn, Columbus, OH, for Defendants-Appellants.

Before: JONES and DAUGHTREY, Circuit Judges; GIBSON, * District Judge.

DAUGHTREY, Circuit Judge.

The defendants-appellants, Andrew Manganas and Manganas Painting Co., Inc., appeal from an order mandating compliance with the terms of an administrative subpoena issued on behalf of the Occupational Safety and Health Administration. Before this court, the defendants contend that Sec. 10(b) of the Occupational Safety and Health Act, 29 U.S.C. Sec. 659(b), excuses such compliance while the employer is awaiting an administrative decision on earlier alleged violations of the Act. We conclude that the defendants read the protective language of Sec. 10(b) too broadly and affirm the judgment of the district court in all respects.

PROCEDURAL AND FACTUAL BACKGROUND

Andrew Manganas is the vice-president of Manganas Painting Co., Inc., a Pennsylvania corporation that contracted with the Ohio Department of Transportation to paint interstate highway bridges spanning the Little Miami River near Lebanon, Ohio. During the summer and early fall of 1993, the company conducted blasting operations at the site to prepare the bridges for repainting. As a result of those operations, employees of the company were exposed to high levels of lead. In fact, in late July 1993, a physician at the University of Pittsburgh Medical Center contacted OSHA to report his treatment of a Manganas employee suffering from excessive lead exposure as a result of working at the bridge site.

Subsequent investigations at the site by OSHA inspectors confirmed the fact that recently promulgated interim standards for lead exposure, 29 C.F.R. Sec. 1926.62, were being violated by Manganas in its work. Before all administrative data collection and analysis regarding the matter could be completed, however, Manganas ceased its operations at the site for the duration of the 1993-1994 winter season. Nevertheless, on February 1, 1994, OSHA issued citations to the company for 30 "serious" violations and 18 "willful" violations of applicable regulations in 1993 and assessed penalties against the company totaling $1,319,850. Manganas disputed the allegations and, on February 17, 1994, filed a notice of contest with the Occupational Safety and Health Review Commission.

In March of 1994, OSHA sent correspondence to Manganas prior to the initiation of the abrasive blasting on the bridges scheduled for the spring and summer. In that letter, the agency requested from the company "written documentation which specifies what actions have been or will be taken to ensure that employees will not be exposed to imminent danger conditions during your 1994 abrasive blasting season." Furthermore, OSHA suggested that exposure of employees to such imminent danger conditions could be avoided by ensuring that workers exposed to airborne lead levels greater than 50 micrograms per cubic meter are protected by

Page 436

"proper respirators," "an effective respirator program," and "proper respirator fit testing and training," and that employees with blood lead levels greater than 50 micrograms per deciliter "are receiving medical surveillance and medical removal protection in accordance with 29 C.F.R.1926.62(j) and (k)."

Manganas replied to the written request for information with a letter advising OSHA of the company's belief that the filing of a notice of contest to the allegations of 1993 violations "operates as a stay of any further proceedings to enforce this Act, including compliance." The company thus did not produce the information sought by OSHA.

In response, the agency issued an administrative subpoena duces tecum directing Andrew Manganas to appear on June 15, 1994, to provide the following information:

1) Air sampling for lead performed by or for the Manganas Painting Co., Inc. during 1994; 2) Sampling and analysis for lead and zinc protoporphyrin levels in the blood of persons who have worked for Manganas Painting Co., Inc. during 1994; 3) Fit testing of persons, who have worked for Manganas Painting Co., Inc., for respiratory protection; 4) The manufacturer, model number and type of respiratory protection being worn by each employee; 5) Training of employees concerning the donning, wearing, use, removal, cleaning and storage of respirators.

The subpoena was personally served upon Andrew Manganas on May 23, 1994, but he failed to appear as directed. OSHA then filed suit in district court seeking enforcement of its subpoena.

Before the district court, Manganas again argued that the provisions of 29 U.S.C....

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12 practice notes
  • Ohio v. U.S. Army Corps of Eng'rs, CASE NO. 1:15–CV–679
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 4, 2017
    ...of arbitrary and capricious action. See, Southern Forest Watch Inc. v. Jewell , 817 F.3d 965, 973 (6th Cir. 2016) ; Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995). This is just one more example of how the Corps has attempted to reason itself free from its legal obligations. The Corps ......
  • Burgess v. United States, Civil Case No. 17-11218
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 18, 2019
    ...also Little Traverse Lake Property Owners Assoc. v. Nat'l Park Service , 883 F.3d 644, 657 (6th Cir. 2018) (quoting Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) (" ‘internal [agency] operating manuals do not carry the force of law, bind the agency, or confer rights upon the regulate......
  • Walters v. Flint (In re Flint Water Cases), Case No. 17-10164
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • August 26, 2020
    ...Cir. 2004), but "[i]nternal operating manuals ... do not carry the force of law, bind the agency, or confer rights." Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) ; see also Summit Petroleum Corp. v. U.S. E.P.A. , 690 F.3d 733, 738 (6th Cir. 2012) ("Before this Court and, it appears,......
  • M.L. Johnson Family Props., LLC v. Zinke, CIVIL NO. 7:16–CV–6–KKC
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • March 21, 2018
    ...2016) ("Internal operating manuals ... do not carry the force of law, bind the agency, or confer rights.") (quoting Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) ).Johnson LLC contends that, while RAM # 159 did not itself purport to modify Kentucky's approved program, approval of Min......
  • Request a trial to view additional results
12 cases
  • Ohio v. U.S. Army Corps of Eng'rs, CASE NO. 1:15–CV–679
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 4, 2017
    ...of arbitrary and capricious action. See, Southern Forest Watch Inc. v. Jewell , 817 F.3d 965, 973 (6th Cir. 2016) ; Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995). This is just one more example of how the Corps has attempted to reason itself free from its legal obligations. The Corps ......
  • Burgess v. United States, Civil Case No. 17-11218
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 18, 2019
    ...also Little Traverse Lake Property Owners Assoc. v. Nat'l Park Service , 883 F.3d 644, 657 (6th Cir. 2018) (quoting Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) (" ‘internal [agency] operating manuals do not carry the force of law, bind the agency, or confer rights upon the regulate......
  • Walters v. Flint (In re Flint Water Cases), Case No. 17-10164
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • August 26, 2020
    ...Cir. 2004), but "[i]nternal operating manuals ... do not carry the force of law, bind the agency, or confer rights." Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) ; see also Summit Petroleum Corp. v. U.S. E.P.A. , 690 F.3d 733, 738 (6th Cir. 2012) ("Before this Court and, it appears,......
  • M.L. Johnson Family Props., LLC v. Zinke, CIVIL NO. 7:16–CV–6–KKC
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • March 21, 2018
    ...2016) ("Internal operating manuals ... do not carry the force of law, bind the agency, or confer rights.") (quoting Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) ).Johnson LLC contends that, while RAM # 159 did not itself purport to modify Kentucky's approved program, approval of Min......
  • Request a trial to view additional results

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