S.G. Loewendick & Sons, Inc. v. Reich, No. 94-1662

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtTATEL
Citation70 F.3d 1291
Parties, 64 USLW 2345, 17 O.S.H. Cas. (BNA) 1434, 1996 O.S.H.D. (CCH) P 30,938 S.G. LOEWENDICK & SONS, INC., Petitioner, v. Robert B. REICH, Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Review Commission, Respondents.
Decision Date21 November 1995
Docket NumberNo. 94-1662

Page 1291

70 F.3d 1291
315 U.S.App.D.C. 79, 64 USLW 2345, 17
O.S.H. Cas. (BNA) 1434,
1996 O.S.H.D. (CCH) P 30,938
S.G. LOEWENDICK & SONS, INC., Petitioner,
v.
Robert B. REICH, Secretary of Labor, United States
Department of Labor, and Occupational Safety and
Health Review Commission, Respondents.
No. 94-1662.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 29, 1995.
Decided Nov. 21, 1995.

Page 1292

On Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Roger L. Sabo, Columbus, OH, argued the cause and filed the briefs, for petitioner.

Ronald J. Gottlieb, Far Rockaway, NY, United States Department of Labor, argued the cause, for respondents, with whom Joseph M. Woodward, Associate Solicitor, and Barbara U. Werthmann, Counsel, United States Department of Labor, Washington, DC, were on the brief. Ann S. Rosenthal, Counsel, United States Department of Labor, Arlington, VA, entered an appearance.

Before: BUCKLEY, GINSBURG, and TATEL, Circuit Judges.

TATEL, Circuit Judge:

The Secretary of Labor cited S.G. Loewendick & Sons, Inc., for violating a safety regulation prohibiting workers from riding on a load suspended by a crane. The Occupational Safety and Health Review Commission sustained the citation and assessed a fine. Loewendick challenges the fine, contending that the backhoe it suspended from a crane was a "personnel platform" exempt from the general prohibition of riding crane-suspended loads. On its surface, this case involves an arcane dispute about whether a specially modified backhoe suspended by a crane is a personnel platform within the meaning of a technical safety regulation. At its core, however, this case implicates a fundamental requirement of administrative law--that administrative agencies base their actions on reasoned decisionmaking. Because the Secretary based his citation and the Commission its fine on unreasonable interpretations of the relevant regulations, we vacate the finding of liability and set aside the fine.

I.

The Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651-678 (1988 & Supp. V 1993), authorizes the Secretary of Labor to promulgate occupational safety and health standards. The Secretary has delegated this responsibility to the Assistant Secretary for Occupational Safety and Health, the head of the Occupational Safety and Health Administration. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 147 n. 1, 111 S.Ct. 1171, 1174, 113 L.Ed.2d 117 (1991). Pursuant to its delegated authority, OSHA has adopted several regulations governing the use of cranes and derricks. 29 C.F.R. Sec. 1926.550 (1994). One provision, paragraph (b)(2), prohibits workers from riding on a load suspended from a crane. Sec. 1926.550(b)(2). Another, subsection (g), creates an exception to this general prohibition of "riding the load":

The use of a crane or derrick to hoist employees on a personnel platform is prohibited, except when the erection, use, and dismantling of conventional means of reaching the worksite, such as a personnel hoist, ladder, stairway, aerial lift, elevating work platform or scaffold, would be more hazardous, or is not possible because of structural design or worksite conditions.

Sec. 1926.550(g)(2).

Thus, despite paragraph (b)(2)'s prohibition of riding a load, subsection (g) permits hoisting a personnel platform by crane to perform a workplace task when conventional methods would be more hazardous or impossible.

Page 1293

Other provisions of subsection (g) establish detailed safety standards for crane-hoisted personnel platforms. See Sec. 1926.550(g)(3)-(7). Paragraph (g)(3), for example, includes instructions on the proper operation of a crane hoisting a personnel platform. Paragraph (g)(4) lists specific design requirements, including that a qualified engineer design the platform, and that the platform have a guard rail, smooth edges, a grab rail inside its entire perimeter, sufficient headroom to permit employees to stand upright, and a sign indicating the platform's weight and its rated load capacity or maximum intended load. Paragraphs (g)(5) through (g)(7) contain further instructions on testing and using personnel platforms. Apart from these technical specifications, subsection (g) nowhere defines "personnel platform."

Petitioner S.G. Loewendick & Sons, Inc., contracted to demolish a portion of a bridge in Fairmont, West Virginia. The contract required Loewendick to remove the top twelve feet of four concrete piers, leaving the bottom seventy feet of each intact. Before beginning work, Loewendick conducted an analysis of three possible methods of demolishing the top twelve feet of the piers. Rejecting explosives and jackhammers, Loewendick concluded that using a hydraulic ram attached to a backhoe suspended by a crane would be the safest course of action. Loewendick had used this method on six prior occasions. It worked as follows. Using two hoisting systems, Loewendick's crane lifted the backhoe to the pier. A worker seated inside the backhoe operated a hydraulic demolition ram extending from the rear of the vehicle. To stabilize the backhoe, Loewendick modified the rear of the vehicle to sit firmly on each pier. As a precaution, the backhoe operator used both the backhoe's ordinary seat belt and an additional safety belt with lanyards attached to both sides of the backhoe.

After seeing a newspaper photograph of the hoisted backhoe, an OSHA compliance officer inspected Loewendick's worksite. The compliance officer told Loewendick's representative that the operation violated OSHA standards, explaining the next day to company vice president David Loewendick that the backhoe did not comply with the regulation prohibiting riding a load. David Loewendick told the compliance officer that the company would continue using the backhoe unless OSHA issued a stop-work order. According to the Secretary, an OSHA supervisor later informed David Loewendick that the company had violated paragraph (b)(2)'s prohibition of riding a load and that the backhoe was not a "personnel platform." Brief for the Secretary of Labor at 14. Despite these warnings, Loewendick completed the project using the backhoe. No workers were injured, nor did any complain about the hoisting of the backhoe.

OSHA cited Loewendick for willful violation of paragraph (b)(2)'s prohibition of riding a load and for other safety violations. After a hearing, an administrative law judge vacated the paragraph (b)(2) citation. Loewendick Contractors, OSHRC Docket Nos. 91-2487, 91-2618, 1993 WL 69995 (ALJ Mar. 1, 1993). Finding that Loewendick used the backhoe "as an elevated platform from which work was performed," the ALJ concluded that the backhoe was a personnel platform, "not a load simply being transported from one point to another." Id., slip op. at 18, 1993 WL 69995, at * 8. According to the ALJ, the Secretary should have cited Loewendick under subsection (g), not paragraph (b)(2). The ALJ "reach[ed] no conclusions as to whether the operation in question complied with" subsection (g)'s technical requirements for personnel platforms. Id., slip op. at 24, 1993 WL 69995, at * 10.

Reversing the ALJ, the Commission concluded for two reasons that the backhoe was not a personnel platform: because it was originally designed as a backhoe, not a personnel platform; and because the backhoe itself performed work, rather than simply hoisting employees to perform the work. See S.G. Loewendick & Sons, Inc., OSHRC Docket No. 91-2487, slip op. at 4-5, 16 O.S.H. Cas. (BNA) 1954, 1956-57 (Rev.Comm'n Aug. 9, 1994). The Commission thus concluded that Loewendick had violated paragraph (b)(2)'s prohibition of riding a load. Because Loewendick had resumed using the backhoe after OSHA's warnings, the Commission

Page 1294

found Loewendick's violation willful, assessing a $33,000 fine. Id., slip op. at 9, 16 O.S.H. Cas. (BNA) at 1959. Loewendick petitions for review of the Commission's order.

II.

We begin with the appropriate standard of review, which is both critical to our conclusion and a little unusual because of the unique relationship between the Commission and the Secretary. Each has distinct regulatory responsibilities under the OSH Act. See Martin, 499 U.S. at 147-48, 111 S.Ct. at 1174-75. The Secretary sets occupational safety and health standards, issues citations, and assesses fines for violations of OSHA regulations. 29 U.S.C. Secs. 665, 658-659. The OSH Act gives adjudicatory powers to the Commission, a three-member body appointed by the President and confirmed by the Senate. Secs. 651(b)(3), 661. Because the Commission's powers are solely adjudicatory, the Secretary, not the Commission, has the authority to make enforcement decisions and to offer definitive interpretations of OSHA regulations. As the Supreme Court explained in Martin, Congress designed the Commission to be a " 'neutral arbiter' " possessing "the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review context." Martin, 499 U.S. at 154-55, 111 S.Ct. at 1178 (quoting Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3, 7, 106 S.Ct. 286, 288, 88 L.Ed.2d 2 (1985)). Thus, for example, the Commission may not issue a citation that the Secretary has withdrawn. See...

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27 practice notes
  • Louisiana Federal Land Bank v. Farm Credit Admin., No. Civ.A.00-1582(RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 23, 2001
    ...decision making that gives regulated members of the public adequate notice of their obligations. See S.G. Loewendick & Sons v. Reich, 70 F.3d 1291, 1297 D. Whether the Final Rule Violates the Farm Credit Act (Count I) The plaintiffs argue that the Final Rule violates 12 U.S.C. § 2013(12)(C)......
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 2020
    ...have adopted conflicting interpretations of the OSH Act and its implementing regulations, S.G. Loewendick & Sons, Inc. v. Reich , 70 F.3d 1291, 1294 (D.C. Cir. 1995)."When, as here, ‘the Secretary and the Commission divide, it [is] ... the Secretary rather than the Commission [who] is entit......
  • Buchanan v. Federal Election Com'n, No. Civ.A. 00-1775(RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 14, 2000
    ...or by other indications of the [agency's] intent at the time of the regulation's promulgation.'" S.G. Loewendick & Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C.Cir.1995) (quoting Thomas Jefferson, 512 U.S. at 512, 114 S.Ct. 2381) (second internal quotations and citation Similarly, a court w......
  • Mylan Pharmaceuticals Inc. v. Henney, Civil Action No. 99-cv-862(RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 31, 2000
    ...which has "controlling weight unless it is plainly erroneous or inconsistent with the regulation." See S.G. Loewendick & Sons v. Reich, 70 F.3d 1291, 1294 (D.C.Cir.1995) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (citations omitted)). Mor......
  • Request a trial to view additional results
26 cases
  • Louisiana Federal Land Bank v. Farm Credit Admin., No. Civ.A.00-1582(RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 23, 2001
    ...decision making that gives regulated members of the public adequate notice of their obligations. See S.G. Loewendick & Sons v. Reich, 70 F.3d 1291, 1297 D. Whether the Final Rule Violates the Farm Credit Act (Count I) The plaintiffs argue that the Final Rule violates 12 U.S.C. § 2013(12)(C)......
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 2020
    ...have adopted conflicting interpretations of the OSH Act and its implementing regulations, S.G. Loewendick & Sons, Inc. v. Reich , 70 F.3d 1291, 1294 (D.C. Cir. 1995)."When, as here, ‘the Secretary and the Commission divide, it [is] ... the Secretary rather than the Commission [who] is entit......
  • Buchanan v. Federal Election Com'n, No. Civ.A. 00-1775(RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 14, 2000
    ...or by other indications of the [agency's] intent at the time of the regulation's promulgation.'" S.G. Loewendick & Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C.Cir.1995) (quoting Thomas Jefferson, 512 U.S. at 512, 114 S.Ct. 2381) (second internal quotations and citation Similarly, a court w......
  • Mylan Pharmaceuticals Inc. v. Henney, Civil Action No. 99-cv-862(RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 31, 2000
    ...which has "controlling weight unless it is plainly erroneous or inconsistent with the regulation." See S.G. Loewendick & Sons v. Reich, 70 F.3d 1291, 1294 (D.C.Cir.1995) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (citations omitted)). Mor......
  • Request a trial to view additional results
1 books & journal articles
  • Law, Fact, and the Threat of Reversal From Above
    • United States
    • American Politics Research Nbr. 42-2, March 2014
    • March 1, 2014
    ...No Yes997 F.2d 437 Yes No998 F.2d 1051 No Yes30 F.3d 169 No Yes41 F.3d 1300 Yes No41 F.3d 1532 Yes No47 F.3d 299 Yes No62 F.3d 1484 Yes No70 F.3d 1291 No Yes71 F.3d 574 No Yes84 F.3d 637 Yes Yes101 F.3d 772 No Yes104 F.3d 573 Yes NoAppendix. 250 American Politics Research 42(2)Case citation......

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