Slingluff v. Occ. Safety & Health Review

• Decision Date: 26 September 2005
• Docket Number: No. 04-9541.,04-9541.
• Parties: Thomas SLINGLUFF, also known as Stuck In The Mud, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION; United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

425 F.3d 861

Thomas SLINGLUFF, also known as Stuck In The Mud, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION; United States Department of Labor, Respondents.

No. 04-9541.

United States Court of Appeals, Tenth Circuit.

September 26, 2005.

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Thomas Slingluff, Pro se Petitioner.

Howard M. Radzely, Joseph M. Woodward, Charles F. James, John Shortall, U.S. Department of Labor, Washington, D.C. for Respondents.

Before EBEL, McCONNELL, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

Thomas Slingluff, appearing pro se, seeks review of a final decision by the Occupational Safety and Health Review Commission that affirmed the imposition of monetary penalties for violation of the Occupational Safety and Health Act of 1970 ("OSHA" or "the Act"), 29 U.S.C. §§ 651-678 (2000). Our jurisdiction arises under 29 U.S.C. § 660(a). Because we conclude that the Commission's decision is supported by substantial evidence and that Mr. Slingluff is subject to OSHA's requirements, we affirm.¹

I.

Mr. Slingluff owns a small commercial stuccoing business called Stuck in the Mud. In June 2003, he and Ben Jaramillo were beginning the process of stuccoing a building while standing on a scaffolding when a compliance officer from the Department of Labor inspected the job site.² Upon the officer's questioning, Mr. Jaramillo stated that he was working for $8/hour and that he had been on the scaffolding for about an hour and one-half at the time of the inspection. Tr. at 45-46. The officer issued a citation to Mr. Slingluff that alleged three violations of scaffolding regulations that have been adopted by OSHA³. See 29 U.S.C. § 658(a); 29 C.F.R. § 1926.451; 29 C.F.R. §§ 1910.11, 1910.12.

Mr. Slingluff timely contested the citation on June 18, 2005, see 29 U.S.C. § 659(a), challenging OSHA's jurisdiction by asserting that he did not qualify as an "employer" under OSHA, i.e., a person "engaged in a business affecting commerce who has employees," 29 U.S.C. § 652(5). He maintained that his business activities did not affect interstate commerce and that Mr. Jaramillo was not his employee. Because he contested the citation, the matter was referred to the Commission for adjudicatory resolution. See 29 U.S.C. § 659(c).

The Secretary of Labor received Mr. Slingluff's notice of contest on July 3, 2005, thereby triggering a duty to file a formal complaint with the Commission no more than twenty days after receiving the notice. See 29 C.F.R. § 2200.34. On July 23, 2005, over Mr. Slingluff's objection, the Secretary moved for an extension of time in which to file the complaint. The Secretary filed an amended motion for extension of time on July 28. The Commission did not explicitly rule on either motion. Instead, the Chief Judge of the Commission sua sponte filed an order on August 4, 2005, designating the case for "E-Z Trial pursuant to Commission Rule 203(a)" and suspending the complaint and answer requirements. R. Doc. 5. Nevertheless, the Secretary served Mr. Slingluff with a complaint by mail on August 8. Id. Doc. 7.

Mr. Slingluff moved to dismiss the case on August 13, asserting that the Secretary had not timely followed Commission procedures nor responded to his discovery requests. Id. Doc. 6. The Commission denied the motion because of the designation for E-Z Trial proceedings. R. Doc. 10. The Commission then afforded Mr. Slingluff a hearing before an administrative law judge (ALJ), conducted in accordance with the requirements of § 554 of the Administrative Procedures Act ("APA"). See 29 U.S.C. § 659(c).

After the hearing, the ALJ made the following findings: (1) Mr. Slingluff is engaged in the construction business; (2) he uses a Dodge truck manufactured out of state in the course of his work; (3) he had a stuccoing contract at the time of the violations; (4) he hired Mr. Jaramillo for the duration of the project or until he no longer needed Mr. Jaramillo's services; (5) both Mr. Slingluff and Mr. Jaramillo understood that Mr. Jaramillo worked for Mr. Slingluff; (6) Mr. Slingluff provided the materials with which Mr. Jaramillo worked, including the scaffolding; and (7) Mr. Slingluff was to pay Mr. Jaramillo an hourly wage. R. Doc. 19 at 4. Based on these findings, the ALJ concluded that Mr. Slingluff "is a person engaged in a business affecting commerce who has employees, he is an `employer' as defined by . . . the Act, and is subject to its provisions." Id. at 5. Because Mr. Slingluff had conceded to the validity of the substance of the citations, the ALJ affirmed them in their entirety.

Mr. Slingluff petitioned for discretionary review by the Commission, and when no Commissioner directed a review, the ALJ's decision became the final decision of the Commission. See 29 U.S.C. § 661(j). Mr. Slingluff timely sought review in this court.

II.

In his petition for review, Mr. Slingluff raises various claims of procedural and substantive error, but his focus is primarily on his claim that OSHA's jurisdiction over him violates his constitutional rights.

With respect to our standard of review, 29 U.S.C. § 660(a) mandates that the "findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." Additionally, the Commission's legal conclusions will generally be upheld if found not to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C § 706(2)(A). Likewise, OSHA's interpretations of its regulations are entitled to deference.

Interstate Erectors, Inc. v. OSHRC, 74 F.3d 223, 226 (10th Cir.1996). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Kent Nowlin Constr. Co., Inc. v. OSHRC, 648 F.2d 1278, 1279 (10th Cir.1981) (quotation marks and citation omitted). Of course, as with any administrative agency adjudicatory proceeding conducted under the APA, we may also set aside an agency determination not only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), but also if it is "(b) contrary to constitutional right, power, privilege, or immunity; (c) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (d) [made] without observance of procedure required by law; (e) unsupported by substantial evidence; or (f) unwarranted by the facts to the extent they are subject to de novo review." Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1030 n. 6 (10th Cir.2001) (citing 5 U.S.C. § 706(2)(b)-(f)).

When we review an agency's decision under the arbitrary, capricious or abuse of discretion standard, our review is narrow and deferential; we must uphold the agency's action if it has articulated a rational basis for the decision and has considered relevant factors. However, these limitations do not apply to questions of law.

Mountain Side Mobile Estates P'ship v. Sec'y of HUD, 56 F.3d 1243, 1250 (10th Cir.1995) (quotation marks, bracket, and citation omitted).

III.

A. Interstate commerce. Mr. Slingluff first argues that the ALJ erred in concluding that Stuck in the Mud is a business affecting interstate commerce because the ALJ based his decision solely on the fact that Mr. Slingluff uses a truck in his business that was manufactured in another state.⁴ But Mr. Slingluff's first premise — that the ALJ based his conclusion solely on that finding — is incorrect. The ALJ made an additional finding regarding the effect Mr. Slingluff's business has on interstate commerce: that it involved construction.⁵ Noting that the Commission has held that "construction is in a class of activity which as a whole affects interstate commerce," the ALJ concluded that the Secretary of Labor had "adequately established that Slingluff operates a business affecting interstate commerce." R. Doc. 19 at 4.

Mr. Slingluff next argues that, even if construction activities in general may affect interstate commerce, the Secretary failed to establish that his particular business has a sufficient nexus with interstate commerce to support federal regulation of his activities. The Secretary contends that it is not necessary to prove that Mr. Slingluff's independent activities substantially affect interstate commerce as long as the aggregate impact of the whole class of similar or related activity, i.e., stucco work, substantially affects interstate commerce, citing Wickard v. Filburn, 317 U.S. 111, 127-29, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (intrastate production and consumption of wheat), Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 268, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (intrastate mining), and United States v. Lopez, 514 U.S. 549, 561, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Mr. Slingluff does not challenge the ALJ's finding that the business of stuccoing/construction affects interstate commerce; he argues that his specific construction activity does not have the requisite effect on interstate commerce to warrant federal regulation.

In United States v. Bolton, 68 F.3d 396 (10th Cir.1995), we examined our commerce-clause jurisprudence in light of the Supreme Court's decision in Lopez. We concluded that, where economic activities are the subject of regulation, "Lopez did not . . . require the government to show that individual instances of the regulated activity substantially affect commerce to pass constitutional muster under the Commerce Clause." Bolton, 68 F.3d at 399. Rather, Lopez recognized that if a federal "statute regulates an activity which, through repetition, in aggregate has a substantial effect on interstate commerce, `the de minimis character of individual instances arising under that sta...