Sea World of Florida, LLC v. Thomas Perez

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2013 Decided April 11, 2014

No. 12-1375

SEAWORLD OF FLORIDA, LLC,

PETITIONER

v.

THOMAS E. PEREZ, SECRETARY, UNITED STATES

DEPARTMENT OF LABOR,

RESPONDENT

On Petition for Review of a Final Order of the

Occupational Safety & Health Review Commission

Eugene Scalia argued the cause for petitioner. With him on

the briefs were Baruch A. Fellner and Daniel P. Rathbun.

Amy S. Tryon, Attorney, U.S. Department of Labor, argued

the cause for respondent. With her on the brief were Joseph M.

Woodward, Associate Solicitor, Charles F. James, Counsel for

Appellate Litigation, and Kristen M. Lindberg, Attorney.

Before: GARLAND, Chief Judge, and ROGERS and

KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Dissenting Opinion by Circuit Judge KAVANAUGH.

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ROGERS, Circuit Judge: SeaWorld of Florida, LLC,

operates a theme park in Orlando, Florida, that is designed to

entertain and educate paying customers by displaying and

studying marine animals. Following the death of one of

SeaWorld’s trainers while working in close contact with a killer

whale during a performance, the Occupational Safety and Health

Review Commission found that SeaWorld had violated the

general duty clause, § 5(a)(1) of the Occupational Safety and

Health Act of 1970, 29 U.S.C. § 654(a)(1), by exposing the

trainers to recognized hazards when working in close contact

with killer whales during performances, and that the abatement

procedures recommended by the Secretary of Labor were

feasible. SeaWorld challenges the order with respect to one

citation. Concluding its challenges are unpersuasive, we deny

the petition for review.

I.

On February 24, 2010, SeaWorld trainer Dawn Brancheau

was interacting with Tilikum, a killer whale, during a

performance before a live audience in a pool at Shamu Stadium

in Orlando. Ms. Brancheau was reclined on her back on a

platform a few inches below the water surface. Tilikum was

supposed to mimic her behavior by rolling over. Instead, the

killer whale grabbed her and pulled her off the platform into the

pool, refusing to release her. She suffered traumatic injuries and

drowned as a result of Tilikum’s actions.

The Secretary of Labor issued three citations to SeaWorld

after an investigation by an Occupational Safety and Health

Administration (“OSHA”) compliance officer. Only the second

citation is at issue. It alleged two instances of a “willful”

violation of the general duty clause for exposing animal trainers

to the recognized hazards of drowning or injury when working

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with killer whales during performances. The first instance

related to animal trainers working with Tilikum being exposed

to “struck-by and drowning hazards” by being “allowed

unprotected contact with Tilikum” while conducting “‘drywork’

performances on pool ledges, slideouts and platforms.” Citation

2, Instance (a). In SeaWorld’s terms, when trainers are out of

the pool or on submerged ledges called “slideouts” in water no

deeper than their knees, their interactions with killer whales are

called “drywork.” Any interaction in deeper water is

“waterwork.” According to the Secretary, “[a]mong other

methods, one feasible and acceptable means of abatement would

be to not allow animal trainers to have any contact with Tilikum

unless they are protected by a physical barrier.” Id. The second

instance concerned animal trainers working with killer whales

other than Tilikum who were exposed to struck-by and drowning

hazards when they were “allowed to engage in ‘waterwork’ and

‘drywork’ performances with the killer whales without adequate

protection.” Citation 2, Instance (b). The Secretary listed as

possible abatement methods “prohibit[ing] animal trainers from

working with killer whales, including ‘waterwork’ or ‘dry

work,’ unless the trainers are protected through the use of

physical barriers or through the use of decking systems, oxygen

supply systems or other engineering or administrative controls

that provide the same or greater level of protection for the

trainers.” Id. The Secretary proposed a penalty of $70,000.

Following an evidentiary hearing, the Administrative Law

Judge (“ALJ”) found that on February 24, 2010, a

“performance” was still in progress when Tilikum seized Ms.

Brancheau and pulled her into the pool water. SeaWorld of Fla.,

LLC, 2012 WL 3019734, slip op. at 16, at *12 (No. 10-1705,

2012). (A customer had taken a video of the performance.) The

ALJ found that the first and third elements of a violation of the

general duty clause — existence of a workplace condition

presenting a hazard that likely caused death or serious physical

4

harm — were established by the events on February 24, 2010:

Ms. Brancheau’s death demonstrated that close contact with

killer whales was a hazard likely to cause death or serious

injury. Based on evidence regarding three previous deaths

involving killer whales (beginning in 1991 with Tilikum),

SeaWorld’s written training manuals and safety lectures as

implemented specifically to Tilikum, and SeaWorld’s incident

reports, the ALJ found that the Secretary had established by

“abundant” record evidence that “SeaWorld recognized the

hazard created when its trainers worked in close contact with

Tilikum during drywork performances,” satisfying the second

element of a violation. Id. at 25–26, *19. Further, the ALJ

found that evidence, including SeaWorld’s incident reports,

established that SeaWorld recognized the hazard when trainers

worked in close contact with other killer whales; SeaWorld’s

statistics regarding the predictability of killer whale behavior, on

the other hand, were unpersuasive because not based on

rigorous, scientific data. The ALJ concluded that SeaWorld’s

claim that “it was unaware working with killer whales presents

a recognized hazard is difficult to reconcile with numerous

comments made over the years by SeaWorld management

personnel, including [two] corporate curators of animal training

. . . [whose] comments were documented and circulated among

all of the SeaWorld parks.” Id. at 29, *22.

The ALJ also found that the Secretary had established the

fourth element of a violation: feasible abatement of the hazard

for trainers working with Tilikum and other killer whales.

SeaWorld had not argued, the ALJ noted, that it is infeasible to

install barriers or implement a minimum distance between

trainers and whales, but rather “considers the extensive safety

training of its trainers and the operant conditioning of its killer

whales to be an adequate means of abatement that materially

reduces the hazard the killer whales present to the trainers.” Id.

at 34, *25. The ALJ found the Secretary had met her burden to

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show SeaWorld’s safety program is inadequate. Despite

SeaWorld’s contention that its operant conditioning “materially

reduces the recognized hazard,” id., the ALJ concluded that

“SeaWorld’s reliance on its trainers to recognize precursors and

prevent unpredictable behavior by the killer whales runs counter

to the requirements of the Act. ‘The duty to comply with

section 5(a)(1) . . . rests with the employer.’” Id. at 36, *27

(quoting Armstrong Cork Co., 8 BNA OSHC 1070, 1074, 1980

WL 10754, at *5 (No. 76-2777, 1980)). The ALJ further

concluded that “SeaWorld holds trainers to a near-impossible

standard set by upper management, who engage in a form of

Monday morning quarterbacking.” Id. at 37, *28. Additionally,

the ALJ noted that SeaWorld had already implemented the

means of abatement recommended by the Secretary for trainers

working with Tilikum — namely, maintaining a minimum

distance from the killer whale, or imposing a physical barrier

between the killer whale and trainers — and concluded the same

or similar abatement involving other killer whales was no less

feasible.

Although crediting the testimony of a SeaWorld curator of

animal training regarding the educational and inspirational

justification for continuing “waterwork” with killer whales, the

ALJ concluded that justification “must be measured against the

risk incurred by allowing trainers to interact closely with killer

whales.” Id. at 42, *31. Observing that OSHA has “no specific

standard” regulating employees working in close contact with

killer whales, and that the Secretary had presented no evidence

SeaWorld had a “heightened awareness of the illegality of its

conduct” or manifested “plain indifference to employee safety,”

id. at 44–45, *33, the ALJ found that violations were “serious,”

not “willful,” and imposed a fine of $7,000 for the general duty

clause violation in Citation 2, emphasizing that his order was

limited to show performances. Id. at 45–47, *34–35. SeaWorld

unsuccessfully sought discretionary review by the Commission,

6

whereupon the ALJ’s decision and order became final. See 29

C.F.R. § 2200.90(d). SeaWorld petitions for review of the

general duty violation.

II.

The general duty clause, § 5(a)(1) of the Occupational

Safety and Health Act, provides: “Each employer [ ] shall furnish

to each of his employees employment and a place of employment

which are free from recognized hazards that are causing or are

likely to cause death or serious physical harm to his employees.”

29 U.S.C. § 654(a)(1). As explained by the House Committee on

Education and Labor, “[b]earing in mind the fact that there is no

automatic penalty for violation of the general duty, this clause

enables the Federal Government to provide for the protection of

employees who are working under such unique circumstances

that no standard has yet been enacted to cover this situation.”

H.R. REP. NO. 91-1291, at 21–22 (1970) (emphasis in original).

In a seminal case this court, in turn, observed that “[t]hough

novel in approach and sweeping in coverage, the legislation is no

more drastic than the problem it aims to meet.” Nat’l Realty &

Constr. Co. v. OSHRC, 489 F.2d 1257, 1260–61 (D.C. Cir. 1973)

(footnote omitted). Notwithstanding the “unqualified and

absolute” textual imperative that the workplace be “free” of the

recognized hazard, id. at 1265, the court further observed that

“Congress quite clearly did not intend the general duty clause to

impose strict liability: The duty was to be an achievable one,” id.

at 1265–66. So understood, the court held that “[a]ll preventable

forms and instances of hazardous conduct must . . . be entirely

excluded from the workplace.” Id. at 1266–67. See also Cont’l

Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980); Gen.

Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d

453, 458, 464 (1st Cir. 1979); Titanium Metals Corp. of Am. v.

Usery, 579 F.2d 536, 543–44 (9th Cir. 1978); Getty Oil Co. v.

OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976); Brennan v.

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OSHRC, 501 F.2d 1196, 1198, 1200 (7th Cir. 1974); Brennan v.

OSHRC, 502 F.2d 946, 951–52 (3d Cir. 1974); REA Express,

Inc. v. Brennan, 495 F.2d 822, 826 (2d Cir. 1974).

“To establish a violation of the General Duty Clause, the

Secretary must establish that: (1) an activity or condition in the

employer’s workplace presented a hazard to an employee, (2)

either the employer or the industry recognized the condition or

activity as a hazard, (3) the hazard was likely to or actually

caused death or serious physical harm, and (4) a feasible means

to eliminate or materially reduce the hazard existed.” Fabi

Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir.

2007) (citation omitted). Tempering the range of potential

remedies that might be imposed upon finding a violation of the

clause, the court explained: “In other words, ‘the Secretary must

prove that a reasonably prudent employer familiar with the

circumstances of the industry would have protected against the

hazard in the manner specified by the Secretary’s citation.’” Id.

(quoting L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507, 513

(D.C. Cir. 1983)) (emphasis in original).

SeaWorld contests only the second and fourth elements

regarding recognized hazard and feasibility. In challenging the

general duty citation, SeaWorld does not perforce contend that

the Secretary of Labor or the Occupational Safety and Health

Review Commission lack legal authority to require employers to

provide a reasonably safe working environment for employees.

Rather, SeaWorld takes issue with the interpretation by these

officials of what constitutes a recognized hazard that would

subject an employer to citation under the Occupational Safety

and Health Act. First, SeaWorld contends that the finding that

it exposed its employees to a “recognized hazard” is unsupported

by substantial evidence. Second, it contends that “when some

risk is inherent in a business activity, that risk cannot constitute

a ‘recognized hazard.’” Pet’r Br. at 33. Third, it contends that

8

the ALJ’s decision was based on unreliable expert testimony

about the extent of killer whale predictability after SeaWorld’s

training and precautions. As regards the feasibility of physical

barriers and minimum distances SeaWorld contends that the

Secretary failed to prove feasible abatement methods (or that

SeaWorld had already implemented these measures), and that the

ALJ failed to consider evidence these abatement measures

present additional hazards and erred because eliminating close

contact changes the nature of a trainer’s job. Finally, SeaWorld

contends the general duty clause is unconstitutionally vague as

applied because SeaWorld lacked fair notice of the Secretary’s

abatement measures.

The court must uphold the Commission’s decision unless it

is “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” Fabi Constr. Co., 508 F.3d at 1080

(quoting 5 U.S.C. § 706(2)(A)) (internal quotation marks

omitted); see A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d

1341, 1345 (D.C. Cir. 2002). The factual findings of the

Commission, “if supported by substantial evidence on the record

considered as a whole, shall be conclusive.” 29 U.S.C. § 660(a);

see, e.g., Fabi Constr. Co., 508 F.3d at 1081. Under this

standard, the court must “uphold Commission findings so long

as there is ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” AJP Constr., Inc.

v. Sec’y of Labor, 357 F.3d 70, 73 (D.C. Cir. 2004) (citations

omitted). Likewise, the court “must accept the ALJ’s credibility

determinations . . . unless they are patently unsupportable.” Id.

(ellipsis in original) (citation omitted). The court will “defer to

the Secretary’s interpretation of the Act and regulations,

upholding such interpretations so long as they are consistent with

the statutory language and otherwise reasonable.” Anthony

Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995)

(citing Martin v. OSHRC, 499 U.S. 144, 150–51 (1991)).

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A.

Whether a work condition poses a recognized hazard is a

question of fact. See Baroid Div. of NL Indus., Inc. v. OSHRC,

660 F.2d 439, 446 (10th Cir. 1981). Substantial evidence

supports the finding that “drywork” and “waterwork” with killer

whales were recognized hazards. Tilikum is a 32-year-old male

killer whale with known aggressive tendencies who in 1991

killed a whale trainer at a marine park in Vancouver, British

Columbia. SeaWorld had established special protocols for

Tilikum, which prohibited “waterwork” and, among other things,

required non–killer whale personnel and guests to stay five feet

behind pool walls or three feet from Tilikum’s head, indicating

that SeaWorld recognized the possibility of harm to people

standing outside of the pool on land. Although “drywork” with

Tilikum continued, SeaWorld limited it to a team of experienced

trainers who used extra caution. The caution with which

SeaWorld treated Tilikum even when trainers were poolside or

on “slideouts” in the pool indicates that it recognized the hazard

the killer whale posed, not that it considered its protocols

rendered Tilikum safe.

As to other killer whales, SeaWorld suggests that close

contact with these whales was not a recognized hazard because

all whales behave differently and its incident reports help

SeaWorld improve training. But SeaWorld’s incident reports

demonstrate that it recognized the danger its killer whales posed

to trainers notwithstanding its protocols. At the time of Ms.

Brancheau’s death, seven killer whales were at the Orlando park.

Even though SeaWorld had not recorded incident reports on all

of its killer whales, a substantial portion of SeaWorld’s killer

whale population had at least one reported incident. The ALJ

also relied on the many comments by SeaWorld management

personnel, including corporate curators of animal training, who

described the need for caution around killer whales generally, not

only around certain killer whales. Killer whales bit trainers’

10

body parts on several occasions (although not generally

puncturing skin) and in 2006 a killer whale pulled a trainer

underwater by the foot and submerged him repeatedly for

approximately 10 minutes. Although this incident occurred

during “waterwork,” substantial evidence supports the finding

with regard to “drywork” as well. On numerous occasions,

trainers fell or were pulled into the water, as later happened with

Tilikum and Ms. Brancheau, or killer whales lunged out of the

water toward trainers. These incidents constitute substantial

evidence to support the ALJ’s finding that “drywork” was also

a recognized hazard.

SeaWorld’s position is that working with killer whales was

not a recognized hazard because its training and safety program

adequately controlled the risk. To train its killer whales,

SeaWorld uses “operant conditioning” to reinforce desired

behaviors with food or other rewards. It also trains its employees

who work with killer whales to recognize particular behaviors

that it calls “precursors,” which indicate that the killer whales

may act aggressively, and keeps detailed incident reports of

when its killer whales had behaved aggressively or otherwise

undesirably toward trainers, including pulling trainers into the

pool. The Secretary presented evidence that the killer whales

posed a hazard in spite of SeaWorld’s safety measures. On

multiple occasions, including the death of Ms. Brancheau,

SeaWorld’s incident reports indicated that the killer whales

showed no immediate precursors of aggressive behavior or

ignored SeaWorld’s emergency procedures designed to make

them cease aggressive behavior. Statements by SeaWorld

managers do not indicate that SeaWorld’s safety protocols and

training made the killer whales safe; rather, they demonstrate

SeaWorld’s recognition that the killer whales interacting with

trainers are dangerous and unpredictable and that even senior

trainers can make mistakes during performances, and the

managers repeatedly urged caution in working with the killer

11

whales. The evidence thus supports the ALJ’s finding that a

recognized hazard existed, even beyond the impact of

SeaWorld’s safety protocols.

In relying on SeaWorld’s safety program to establish a

recognized hazard, the ALJ did not, as SeaWorld suggests,

“invert[] the requirement of the General Duty Clause that the

Secretary, ‘as a threshold matter,’ ‘submit evidence proving . . .

that the methods undertaken by the employer to address the

alleged hazard were inadequate.’” Pet’r Br. at 30 (quoting U.S.

Postal Serv., 2006 WL 6463045, at *8 (OSHRC No. 04-0316,

Nov. 20, 2006)) (ellipsis in brief). In the Postal Service case, the

Secretary alleged that letter carriers risked being hit by cars in

dim or dark conditions and proposed carriers be required to wear

reflective garments that complied with industry standards, but

failed to show that carriers had been hit because of lack of

visibility when wearing the reflective garments provided by their

employer, see id. at *2, *9, or that the proposed reflective

garments would have made a difference, see id. at *9. Here,

there was substantial record evidence that SeaWorld recognized

its precautions were inadequate to prevent serious bodily harm

or even death to its trainers and that the residual hazard was

preventable.

The remedy imposed for SeaWorld’s violations does not

change the essential nature of its business. There will still be

human interactions and performances with killer whales; the

remedy will simply require that they continue with increased

safety measures. SeaWorld itself has limited human interactions.

After Ms. Brancheau’s death in 2010, SeaWorld ceased

“waterwork” with all of its killer whales. It also imposed

distance between trainers and Tilikum during drywork and, to a

lesser degree, between other killer whales and trainers during

drywork. These self-imposed limitations are relevant to the

assessment of which aspects of SeaWorld’s business are essential

12

and indicate that the Secretary’s remedy will not eliminate any

essential element. SeaWorld does not assert (and at oral

argument disavowed) that a public perception of danger to its

trainers is essential to its business. See Oral Argument

Recording at 15:05–16:05. Nor has SeaWorld ever argued that

limiting interactions in the way that the remedy requires would

have a detrimental economic impact on its profits. And

SeaWorld is, after all, a for-profit entity owned, at times relevant

to the Commission proceedings, by the Blackstone Group, an

investment firm.

Pelron Corp., 12 BNA OSHC 1833, 1986 WL 53616 (No.

82-388, 1986), on which SeaWorld relies, is inapposite. That

case involved an enforcement action against a company that

manufactured products by mixing, inter alia, ethylene oxide. See

id. at *1. The ALJ had defined the alleged hazard as the

“possibility” of accumulations of unreacted ethylene oxide,

which the Commission found could never be prevented. See id.

at *3. Thus, impliedly, the only remedy would have been to

close the plant. Here, the Secretary and the Commission could

reasonably conclude that the danger to SeaWorld’s trainers

during performances from killer whales can be prevented by use

of physical barriers and distance, and closing SeaWorld is not at

issue. The hazard killer whales pose during performances is not

“so idiosyncratic and implausible” that it cannot be considered

preventable. Nat’l Realty & Constr. Co., 489 F.2d at 1266.

SeaWorld controls its employees’ access to and contact with its

killer whales, unlike the employer in Megawest Financial Inc.,

17 BNA OSHC 1337, 1995 WL 383233, at *8–9 (No. 93-2879,

1995) (ALJ), who could not prevent the potentially criminal,

violent actions of third parties residing in the apartment buildings

it managed. SeaWorld’s reliance on the Commission’s

observation in Pelron that “[s]ome industrial activities are by

their very nature dangerous. To permit the normal activities in

such an industry to be defined as a ‘recognized hazard’ within

13

the meaning of section 5(a)(1) is to eliminate an element of the

Secretary’s burden of proof,” Pelron, 1986 WL 53616, at *3, is

misplaced; the Commission was addressing the requirement that

recognized hazards be “preventable” and “be defined in a way

that . . . identifies conditions or practices over which the

employer can reasonably be expected to exercise control.” Id.

(citing Nat’l Realty & Constr. Co., 489 F.2d at 1266; Davey Tree

Expert Co., 11 BNA OSHC 1898, 1899 (No. 77-2350, 1984)).

To the extent SeaWorld maintains that close contact is

integral to cleaning and caring for their animals (i.e.,

“husbandry”), and that it was arbitrary and capricious to find a

recognized hazard in the performance context but not in the

husbandry context, its position is unfounded. Contact during

husbandry was not at issue before the ALJ or the Commission.

Regardless, although some aspects of husbandry may require

close contact, according to SeaWorld’s vice president for

veterinary services, many procedures can be conducted in a

medical pool with a lifting bottom that restricts the killer whale’s

mobility, or can be performed from poolside behind a short wall.

In his opinion, notwithstanding performance-contact limitations,

“SeaWorld is adequately caring for these animals to this day.”

Tr. ALJ Hearing at 1778 (Sept. 19, 2011).

SeaWorld’s suggestion that because trainers “formally

accepted and controlled their own exposure to . . . risks,” the

hazard of close contact with killer whales cannot be recognized,

see Pet’r Br. at 40, contravenes Congress’s decision to place the

duty to ensure a safe and healthy workplace on the employer, not

the employee. This court has long held “this duty is not qualified

by such common law doctrines as assumption of risk,

contributory negligence, or comparative negligence.” Nat’l

Realty & Constr. Co., 489 F.2d at 1266 n.36. SeaWorld’s

reliance on Oil, Chemical & Atomic Workers International

Union v. American Cyanamid Co., 741 F.2d 444 (D.C. Cir.

14

1984), is misplaced; the alleged hazard in that case was the

employer’s policy prohibiting women of childbearing age from

working in high lead-exposure positions unless they had been

surgically sterilized, and the court held that “the general duty

clause does not apply to a policy as contrasted with a physical

condition of the workplace.” Id. at 448. The court explained

that the optional sterilization policy “does not affect employees

while they are engaged in work or work-related activities.” Id.

at 449. The potential harm to SeaWorld’s trainers exists in their

workplace and involves conditions over which SeaWorld has

control.

The Secretary and the Commission could also reasonably

determine that the remedy does not go to the essence of

SeaWorld’s productions. SeaWorld has had no “waterwork”

performances since Ms. Brancheau’s death in 2010, and it

temporarily suspended “waterwork” after other incidents, such

as the killing of a trainer by a killer whale in 2009 at a non-

SeaWorld park in Spain. With distance and physical barriers

between Tilikum and trainers during drywork, Tilikum can still

perform almost the same behaviors performed when no barriers

were present. The nature of SeaWorld’s workplace and the

unusual nature of the hazard to its employees performing in close

physical contact with killer whales do not remove SeaWorld

from its obligation under the General Duty Clause to protect its

employees from recognized hazards.

Our dissenting colleague’s analysis, although framed as a

question of who decides, Dissent at 1–2, acknowledges that

Congress has vested in the Secretary and the Commission

general authority to protect employees from unhealthy and

unsafe work places, see id. at 2–3. Ignoring this court’s

precedent regarding congressional purpose and intent and

stretching Pelron beyond its moorings, our colleague concludes

Pelron is dispositive. Dissent at 6. Nothing the Commission

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said in Pelron immunizes a workplace’s dangerous “normal

activities” from oversight; the Commission simply applied well-

established law that only “preventable” hazards can be

considered as recognized. See Pelron, 1986 WL 53616, at *3

(citing Nat’l Realty & Constr. Co., 489 F.2d at 1266). This case

is not Pelron. In Pelron, the Secretary had neither identified a

preventable hazard nor proved “the inadequacy of Pelron’s safety

program,” nor demonstrated the existence of additional safety

measures. See id. Here, the Secretary identified a preventable

hazard in “conditions or practices over which [SeaWorld] can

reasonably be expected to exercise control.” Id. Neither Pelron

nor our precedent bar the Secretary from taking enforcement

action when preventable dangerous activities in a theme park

result in death or serious injury to an employee and feasible

measures exist to abate the hazard.

Moreover, it is worth noting four rhetorical moves by our

colleague. First, although maintaining that policy questions are

not before the court, Dissent at 12, the first three pages of his

opinion can only be read as raising the question: “When,” in the

dissent’s words, “should we as a society paternalistically decide”

that employees should be protected from “the risk of significant

physical injury?” Id. at 1. This is a question to be answered by

Congress, not this court. And Congress has done so. See supra

at 6. Second, although this case is only about a single

“entertainment show,” our colleague repeatedly characterizes

this case as being about the “sports and entertainment

industries.” Dissent at 2 (emphasis added). No one has

described SeaWorld’s killer whale performances as a “sport,”

and a legal argument that the “sports industry” should not be

regulated by OSHA can be raised when and if OSHA attempts to

do so. Until then, this court will not find that OSHA acted

arbitrarily based on a few responses to hypotheticals in briefing

or oral argument. Third, our colleague is simply wrong in saying

that OSHA has “departed from tradition and stormed headlong

16

into a new regulatory arena,” involving entertainment shows. Id.

at 3. In fact, this is hardly the first time that OSHA has regulated

the working conditions of such shows.1 Fourth, and as a

consequence, the parade of horribles presented by our colleague

is not relevant here. This court, moreover, could easily generate

a list of horribles on the other side, which, under our colleague’s

view, could not be distinguished. Many traditional industries can

be extremely dangerous to their employees: construction, metal

1

See, e.g., Murphy Enters., Inc., 17 BNA OSHC 1477, 1995

WL 547935 (No. 93-2957, 1995) (ALJ) (upholding 1993 citation to

carnival regarding operation of “a large Ferris wheel”); Interpretation

Letter, Office of General Industry Enforcement, OSHA (Jan. 28,

1997), available at https://www.osha.gov/pls/oshaweb/

owadisp.show_document?p_table=INTERPRETATIONS&p_id=22

337 (stating that OSHA “is concerned with the safety and health of all

workers in the entertainment industry” and that “theatrical employees

need to be protected from all occupational safety and health hazards”);

OSHA, Inspection 307495846, Walt Disney Entm’t, Inc. (Feb. 11,

2004), available at http://osha.gov/pls/imis/

establishment.inspection_detail?id=307495846 (citing Walt Disney

Entertainment for death of worker who was run over and killed by a

float during a parade); OSHA Std. Interp. 1975.3, 2005 WL 3801567

(June 16, 2005) (stating that “OSHA’s general industry standards”

apply to employees working at “carnivals, amusement parks, and

water parks”); Region 8 News Release, OSHA (Aug. 2, 2007),

available at https://www.osha.gov/pls/oshaweb/

owadisp.show_document?p_table=NEWS_RELEASES&p_id=14362

(citing Denver Zoo for failing “to provide appropriate protocols to

prevent inadvertent contact with dangerous animals”); Western World,

Inc., 2013 WL 7208643 (No. 07-0144, 2013) (ALJ) (upholding 2006

citation regarding a “reenactment of an Old West-style gunfight”); see

also Region 2 News Release, OSHA (Mar. 4, 2011), available at

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_tab

le=NEWS_RELEASES&p_id=19362 (announcing OSHA’s issuance

of citations to the Broadway production of “Spider-Man” following

injuries to cast members during flying routines).

17

pouring, logging, welding, firefighting, roofing, electrical power

line installation, handling explosives. Yet these industries have

been regulated pursuant to the Occupational Safety and Health

Act, notwithstanding that employers could claim their employees

were also “willing participants,” “even in the face of known

physical risk,” id. at 1–2, or that the employees were taking part

in “the ‘normal activities’ intrinsic to the industry,” id. at 6.

Our colleague’s main point appears to be that the Secretary

and the Commission were arbitrary and capricious by failing to

reasonably distinguish SeaWorld’s killer whale shows from the

NFL and NASCAR. It’s all or nothing, the dissent suggests.

Dissent at 10. Either OSHA must regulate SeaWorld’s killer

whale shows and the NFL and NASCAR — or it cannot regulate

any of the three because no rational distinction is possible. Id.

But SeaWorld offers nothing to show that it raised the

NFL/NASCAR hypothetical before the Commission. The

Occupational Safety and Health Act provides: “No objection

that has not been urged before the Commission shall be

considered by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary

circumstances.” 29 U.S.C. § 660(a); Frank Lill & Son, Inc. v.

Sec’y of Labor, 362 F.3d 840, 844 (D.C. Cir. 2004). No

principle of administrative law requires an agency to anticipate

and distinguish a hypothetical that a party did not raise until its

subsequent appellate briefs. Cf. Appalachian Power Co. v. EPA,

251 F.3d 1026, 1036 (D.C. Cir. 2001). Perhaps when squarely

faced with that question OSHA will accept the dissent’s

argument that, under the Brown & Williamson principle, it

cannot regulate sports regardless of statutory text because

“Congress could not have intended” it. Dissent at 11 (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160

(2000)). Perhaps OSHA will say, as did its appellate counsel in

response to SeaWorld’s counsel’s hypothetical, that physical

contact between players is “intrinsic” to professional football in

18

a way that it is not to a killer whale show. See Resp’t Br. at 52.

In any event, no principle of law requires a court, when

reviewing a citation based on specific facts relating to one of

several kinds of entertainment shows put on by a single

employer, to reach beyond that citation and decide the

hypothetical application of the statute to another industry.

Furthermore, in maintaining that the citation of SeaWorld

was arbitrary and capricious in view of the dangerous nature of

killer whale shows, our colleague overlooks that SeaWorld itself

has implemented similar abatement measures and done so

without any suggestion of harm to its profits. Substantial

evidence supports the finding that close trainer contact with

killer whales is not integral to SeaWorld’s workplace. The scope

of our review affords no occasion to “substitute our own

judgment for that of the agency, but . . . examine[s] only

‘whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error of

judgment.’” Wisc. Valley Improvement Co. v. FERC, 236 F.3d

738, 745 (D.C. Cir. 2001) (quoting Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). We note,

however, that had Congress intended all unsafe and unhealthy

performances in the entertainment industry to be beyond the

scope of employee protection, it could have included such an

exemption in the Occupational Safety and Health Act, and it did

not. “When that is Congress’ purpose, it makes its intention

clear by using language that makes express exceptions . . . or

expressly permits the making of distinctions [the statute] would

otherwise prohibit.” Miller v. Clinton, 687 F.3d 1332, 1340

(D.C. Cir. 2012). For instance, Congress authorized the

Secretary, after notice and hearing, to make “reasonable

variations, tolerances, and exemptions to and from any or all

provisions . . . as he may find necessary and proper to avoid

serious impairment of the national defense.” 29 U.S.C. § 665.

SeaWorld does not contest that it is an “employer” under the Act.

19

Neither does SeaWorld point to anything in the Act or

regulations that would require exemption of its shows, much less

of all entertainment performances.

B.

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), expert testimony must “both rest[] on a reliable

foundation and [be] relevant to the task at hand.” Id. at 597.

SeaWorld’s challenge to the ALJ’s decision to credit the

testimony of the Secretary’s expert with regard to the aggressive

behavior of killer whales fails for the following reasons.

SeaWorld contends that the Secretary’s expert’s testimony

was unreliable because his experience was confined to observing

wild whales, he had not conducted any studies on captive whales,

he admitted not knowing whether being in captivity altered killer

whale behavior, and he had no experience training killer whales.

Killer whales are found in all oceans of the world and live in

long-term social groups. They are at the top of the food chain,

and are called killer whales because they prey on other, larger

whales and other marine animals; when in the wild they are not

known to prey on humans. The Secretary’s expert did not claim

that he had expertise about killer whales in captivity, and the

ALJ did not so qualify him; rather, the ALJ ruled that he “is

qualified to talk about the nature of killer whales in terms for

their predictability of behavior” and about “safety measures to be

taken.” Tr. ALJ Hearing at 821–22 (Sept. 19, 2011). The ALJ

acknowledged that the expert’s experience with safety measures

necessary for observing wild killer whales from boats might not

directly relate to safety measures for close interactions with

captive killer whales, but concluded this went to the weight of

his testimony, not its admissibility.

“[F]inders of fact are normally accorded wide latitude in

determining whether proffered expert testimony would be

20

helpful.” U.S. Postal Serv., 2006 WL 6463045, at *10. This

court has held that the ALJ’s “reasonable determination . . .

regarding not only the relevance but the reliability of expert

testimony” is entitled to deference. Sec’y of Labor v. Keystone

Coal Mining Corp., 151 F.3d 1096, 1107 (D.C. Cir. 1998). The

Secretary’s expert had logged thousands of hours observing the

behavior of killer whales in the wild, and based on that expertise

he opined that Tilikum’s killing of Ms. Brancheau “exemplifies

the same behavior I have seen in approximately 100 foraging

encounters in the wild with killer whales.” Report of D.A.

Duffus, Ph.D., at 14 (July 26, 2011). He had also reviewed

nearly 100 of SeaWorld’s incident reports and concluded they

“clearly tell us that trainers are at risk every time they enter the

water with whales.” Id. His experience and knowledge supports

the reliability of his testimony, and his observations of killer

whale behavior were relevant to the predictability of killer

whales and the safety of close contact with them. SeaWorld

countered his opinions with its own expert who had worked as a

SeaWorld trainer. We find no abuse of discretion by the ALJ,

particularly in view of his acknowledgment of the limitation on

the weight properly accorded to the Secretary’s expert’s opinions

and the expert’s acknowledgments of both the limits of his

experience and the evidence showing SeaWorld’s operant

conditioning often worked to reduce risk.

C.

Substantial evidence supports the ALJ’s findings that it was

feasible for SeaWorld to abate the hazard to its employees by

using barriers or minimum distance between trainers and killer

whales, most notably because SeaWorld has implemented many

of these measures on its own. When an employer has existing

safety procedures, the burden is on the Secretary to show that

those procedures are inadequate. See Cerro Metal Prods. Div.,

Marmon Grp., Inc., 12 BNA OSHC 1821, 1986 WL 53467, at *2

(No. 78-5159, 1986) (citing Nat’l Realty & Constr. Co., 489 F.2d

21

at 1267–68 & n.40). The record evidence showed that

SeaWorld’s training and protocols did not prevent continued

incidents, including the submerging and biting of one trainer in

2006, the killing of a trainer by a SeaWorld-trained and -owned

killer whale in 2009 at an amusement park in Spain, and Ms.

Brancheau’s death in 2010. SeaWorld employees repeatedly

acknowledged the unpredictability of its killer whales. This

record evidence supports the ALJ’s finding that existing

protocols were inadequate to eliminate or materially reduce the

hazard to SeaWorld’s trainer employees performing with killer

whales.

Abatement is “feasible” when it is “economically and

technologically capable of being done.” Baroid, 660 F.2d at 447

(citing Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490

(1981)). After Ms. Brancheau’s death, SeaWorld required that

all trainers work with Tilikum from a minimum distance or

behind a barrier, and “waterwork” ceased with all of its killer

whales. As in ConAgra, Inc., McMillan Co. Div., 11 BNA

OSHC 1141, 1983 WL 23849 (No. 79-1146, 1983),

implementing the ordered abatement is feasible because it would

involve extending these practices to all killer whales and into the

future. See id. at 1145, *5. As the ALJ noted, SeaWorld had not

argued the Secretary’s proposed abatement was not economically

or technologically feasible and had already implemented

abatement for at least one of its killer whales and needed only to

apply the same or similar protective contact measures it used

with Tilikum to other killer whales. Consequently, the Secretary

was not required to specify the precise manner in which

abatement should be implemented. That the ALJ subsequently

granted SeaWorld’s request for a six-month extension of the

abatement deadline, in view of SeaWorld’s difficulty in

scheduling two consulting experts, does not undermine the

substantial evidence that SeaWorld could feasibly abate the

hazard. SeaWorld does not dispute that the Secretary’s

22

abatement measures would materially reduce, if not eliminate,

the hazard killer whales pose to its employees during

performances. SeaWorld’s use of protective contact with

Tilikum, the three-year moratorium on “waterwork” after Ms.

Brancheau’s death, and repeated temporary cessation of

“waterwork” with all killer whales or particular killer whales

after other incidents support the finding that these changes were

feasible and would not fundamentally alter the nature of the

trainers’ employment or SeaWorld’s business.

To the extent SeaWorld suggests that veterinary care would

be less effective and dangers to trainers from killer whales might

increase absent close contact during performances, this issue is

not properly before the court. SeaWorld’s petition to the

Commission for review did not include this issue, and SeaWorld

presents no extraordinary circumstances to excuse its failure to

do so. The court, therefore, lacks jurisdiction to consider it. See

29 U.S.C. § 660(a); Frank Lill & Son, Inc., 362 F.3d at 844.

D.

Facial challenges to the general duty clause have been

rejected, see Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419,

1421 (D.C. Cir. 1983), and although an as-applied challenge

would be possible, courts have long accommodated possible

constitutional problems with fair notice in this context by

interpreting “recognized hazard” only to include preventable

hazards, see id. (citing Nat’l Realty & Constr. Co., 489 F.2d at

1265–66), or applying the clause only “when a reasonably

prudent employer in the industry would have known that the

proposed method of abatement was required,” Donovan v. Royal

Logging Co., 645 F.2d 822, 831 (9th Cir. 1981).

SeaWorld contends the general duty clause is

unconstitutionally vague as applied because it lacked fair notice

that the abatement measures would be required. But the

23

administrative record establishes that SeaWorld did not lack fair

notice because the hazard arising from trainers’ close contact

with killer whales in performance is preventable. Given

evidence of continued incidents of aggressive behavior by killer

whales toward trainers notwithstanding SeaWorld’s training,

operant conditioning practices, and emergency measures,

SeaWorld could have anticipated that abatement measures it had

applied after other incidents would be required. SeaWorld

suggests that it was entitled to rely on the fact that the State of

California’s Division of Occupational Safety and Health

(“Cal/OSHA”) did not issue a citation for killer whale hazards

after a killer whale bit and dragged a trainer underwater during

a performance, puncturing the trainer’s skin on both feet and

breaking the metatarsal in his left foot. Cal/OSHA, however,

inspected a different SeaWorld facility (in San Diego) and it, not

the federal OSHA, resolved the citation question. In any event,

the State inspection report included a warning on point.

Although noting that SeaWorld had been following industry

standards and was a recognized leader in training killer whales

for performance, and that its employees were well-trained and

followed emergency procedures, Cal/OSHA concluded that

SeaWorld of San Diego’s procedures “were not entirely

effective at stopping the unwanted behaviors of the killer whale

during this attack” and that “[s]hort of eliminating all of the

water interactions with the killer whales, there is no guarantee

that employees can be kept safe from an attack by the killer

whale once they get in the water with the animal.” Cal/OSHA

Information Memorandum at 1 (Feb. 28, 2007).

Accordingly, we deny the petition for review.

KAVANAUGH, Circuit Judge, dissenting: Many sports

events and entertainment shows can be extremely dangerous

for the participants. Football. Ice hockey. Downhill skiing.

Air shows. The circus. Horse racing. Tiger taming.

Standing in the batter’s box against a 95 mile per hour

fastball. Bull riding at the rodeo. Skydiving into the stadium

before a football game. Daredevil motorcycle jumps. Stock

car racing. Cheerleading vaults. Boxing. The balance beam.

The ironman triathlon. Animal trainer shows. Movie stunts.

The list goes on.

But the participants in those activities want to take part,

sometimes even to make a career of it, despite and

occasionally because of the known risk of serious injury. To

be fearless, courageous, tough – to perform a sport or activity

at the highest levels of human capacity, even in the face of

known physical risk – is among the greatest forms of personal

achievement for many who take part in these activities.

American spectators enjoy watching these amazing feats of

competition and daring, and they pay a lot to do so.

Americans like to witness the thrill of victory, to cheer the

linebacker who hammers the running back at the goal line, to

yell with admiration as Derek Jeter flies into the stands down

the left-field line to make a catch, to applaud the gymnast

who nails the back flip off the balance beam, to hold their

collective breath as Jack Hanna plays with pythons, to root on

the marathoner who is near collapse at the finish line, to

scream “Foreman” when the announcer says “Down goes

Frazier.” And American spectators also commiserate during

the “agony of defeat,” as immortalized in the Wide World of

Sports video of a ski jumper flying horribly off course.

The broad question implicated by this case is this: When

should we as a society paternalistically decide that the

participants in these sports and entertainment activities must

be protected from themselves – that the risk of significant

physical injury is simply too great even for eager and willing

2

participants? And most importantly for this case, who decides

that the risk to participants is too high?

In the first instance, the sports and entertainment

industries regulate themselves, often through collaboration

between management and participants, to ensure that the risks

are at least known to all. Often, the sports and entertainment

industries take affirmative steps to make the sports or

activities safer for participants. Major League Baseball has

required batters to wear increasingly protective helmets; just

this offseason, it issued a new rule about home-plate

collisions. The NFL has prohibited certain hits to the head.

NASCAR has mandated roll cages, fire retardant uniforms,

and window netting. And so on.

Sometimes Congress, state legislatures, or state

regulators jump into the fray by prohibiting or otherwise

regulating certain sports or entertainment activities. See, e.g.,

Professional Boxing Safety Act of 1996, Pub. L. No. 104-272,

110 Stat. 3309. State tort law also looms as a significant

constraint in most jurisdictions, particularly for allegedly

known but unwarned-of risks to the participants, as the NFL

has recently experienced. See In re National Football League

Players’ Concussion Injury Litigation, MDL No. 2323, 2014

WL 114351 (E.D. Pa. Jan. 14, 2014).

On the other hand, the bureaucracy at the U.S.

Department of Labor has not traditionally been thought of as

the proper body to decide whether to ban fighting in hockey,

to prohibit the punt return in football, to regulate the distance

between the mound and home plate in baseball, to separate

the lions from the tamers at the circus, or the like.

To be sure, the Occupational Safety and Health Act of

1970 grants general authority to the Department of Labor to

ensure that employers provide a reasonably safe workplace to

3

their employees. See Pub. L. No. 91-596, 84 Stat. 1590.

Under the Act, the Department may promulgate specific

occupational safety and health standards “reasonably

necessary or appropriate to provide safe or healthful

employment and places of employment.” 29 U.S.C. § 652(8);

see id. § 655(b). The Act’s residual General Duty Clause also

requires that each employer – under threat of monetary

penalties in individual cases – “furnish to each of his

employees employment and a place of employment which are

free from recognized hazards that are causing or are likely to

cause death or serious physical harm to his employees.” Id.

§ 654(a)(1); see id. § 666.

But the Department of Labor, acting with a fair degree of

prudence and wisdom, has not traditionally tried to stretch its

general authority under the Act to regulate participants taking

part in the normal activities of sports events or entertainment

shows.

In this case, however, the Department departed from

tradition and stormed headlong into a new regulatory arena.

The Department issued a citation to SeaWorld that effectively

bans SeaWorld from continuing a longstanding and popular

(albeit by definition somewhat dangerous) show in which

SeaWorld trainers play with and interact with whales. The

Department’s SeaWorld decision was upheld administratively

by the independent Occupational Safety and Health Review

Commission,1 and the majority opinion today affirms.

1

The Occupational Safety and Health Review Commission is

an independent adjudicatory agency “established to settle disputes

between employers and the Secretary of Labor over citations issued

by the Secretary’s inspectors.” Oil, Chemical & Atomic Workers

International Union v. Occupational Safety & Health Review

Commission, 671 F.2d 643, 652 (D.C. Cir. 1982). We are

4

Whether SeaWorld’s show is unreasonably dangerous to

participants and should be banned or changed is not the

question before us. The question before us is whether the

Department of Labor has authority under current law to make

that decision – in addition to the authority already possessed

by Congress, state legislatures, state regulators, and courts

applying state tort law.

In my view, the Department of Labor’s unprecedented

assertion of authority to proscribe SeaWorld’s whale show is

triply flawed: First, it departs from longstanding

administrative precedent governing the extent of the

Department’s authority. Second, it irrationally and arbitrarily

distinguishes (i) close contact between trainers and whales in

SeaWorld shows from (ii) contact between players in the NFL

or speeding in NASCAR races, for example, which the

Department still proclaims as exempt from regulation under

this statute. Third, the decision green-lights the Department

to regulate sports and entertainment activities in a way that

Congress could not conceivably have intended in 1970 when

giving the agency general authority to ensure safer

workplaces.2

technically reviewing the decision of the Commission, which in

turn reviewed and upheld the Department of Labor’s citation. In

this case, to the extent the Department’s decision to cite SeaWorld

was arbitrary and capricious, the Commission’s decision to uphold

that citation likewise would be arbitrary and capricious. Therefore,

for ease of reference, this opinion refers to the action of the

Department of Labor, the real party in interest.

2

This case concerns injuries to participants, not to spectators.

The Department of Labor has not claimed authority under the

Occupational Safety and Health Act to prevent injuries to

spectators, such as injuries caused by foul balls or flying hockey

pucks. The spectators are not employees of the teams or industries

5

First, the Department of Labor’s action departs without

acknowledgment or explanation from longstanding

administrative precedent. It is therefore arbitrary and

capricious and cannot stand. See FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 515 (2009) (“An agency may

not, for example, depart from a prior policy sub silentio or

simply disregard rules that are still on the books.”).

The courts and the Department of Labor have recognized

that the broad terms of the General Duty Clause must be

applied reasonably lest the Clause morph into a blunt

instrument by which absolute workers’-compensation-like

liability is imposed on employers for all workplace injuries.

The courts and the Department have stated that it must have

been “feasible” for the employer to eliminate or materially

reduce the recognized hazard at issue. See, e.g., Fabi

Construction Co., Inc. v. Secretary of Labor, 508 F.3d 1077,

1081 (D.C. Cir. 2007); National Realty & Construction Co.,

Inc. v. Occupational Safety & Health Review Commission,

489 F.2d 1257, 1266-67 & n.37 (D.C. Cir. 1973). And

importantly, the Department has acknowledged that hazards

posed by the normal activities intrinsic to an industry cannot

be “feasibly” eliminated and so may not form the basis of a

General Duty Clause citation.

In the leading Pelron case, the Department of Labor had

issued a General Duty Clause citation to Pelron Corporation,

a manufacturer of liquid specialty chemicals, following a

chemical explosion at one of Pelron’s manufacturing

facilities. See Pelron Corp., 12 BNA OSHC 1833, 1986 WL

53616, at *1 (No. 82-388, 1986). The Department alleged

that the mere “accumulation” in Pelron’s facility of a

and so are not within the scope of the Act. Injuries to spectators are

often addressed by state tort law.

6

potentially dangerous chemical constituted a recognized

hazard that Pelron had failed to eliminate. Id. at *4. But the

Occupational Safety and Health Review Commission vacated

the Department’s citation. See id. at *1. In explaining why

the mere presence of a dangerous chemical could not

constitute a recognized hazard, the Commission stated:

“Obviously, some industrial activities are by their very nature

dangerous. To permit the normal activities in such an

industry to be defined as a ‘recognized hazard’ within the

meaning” of the General Duty Clause is “to eliminate an

element of the Secretary’s burden of proof and, in fact, almost

to prove the Secretary’s case by definition, since under such a

formula the employer can never free the workplace of

inherent risks incident to the business.” Id. at *3.

Pelron means that some activities, though dangerous, are

among the “normal activities” intrinsic to the industry and

therefore cannot be proscribed or penalized under the General

Duty Clause. At oral argument, counsel for the Department

of Labor confirmed that Pelron remains good law, and so the

Department must adhere to Pelron. See Oral Arg. at 17:02-

17:05.

Pelron is dispositive in this case. In the sports and

entertainment fields, the activity itself frequently carries some

risk that cannot be eliminated without fundamentally altering

the nature of the activity as defined within the industry.

Tackling is part of football, speeding is part of stock car

racing, playing with dangerous animals is part of zoo and

animal shows, and punching is part of boxing, as those

industries define themselves.

Management and participants in the relevant sports or

entertainment industry must initially decide what their

competition or show consists of and how to market it to

7

spectators – subject to appropriate regulation by Congress,

state legislatures, state regulators, or state tort law. Here,

SeaWorld has decided that close contact between SeaWorld

trainers and whales is an important aspect of its shows. Even

the administrative law judge who upheld the Department’s

citation in this case agreed that “SeaWorld’s business model

was premised on the spectacle of close contact between the

killer whales and the trainers during performances.”

SeaWorld of Florida, LLC, 2013 CCH OSHD ¶ 33,329, 2013

WL 5505276, at *5 (No. 12-1697, 2013) (ALJ).

Under the current statutory scheme, Pelron precludes the

Department of Labor from entering the arena and altering the

activities of the participants in those competitions or shows,

whether it be the NFL or NASCAR or SeaWorld. The

Department of Labor can no more tell the participants in a

sports event or entertainment show that their activities are

simply too dangerous to perform than it could tell the Pelron

Corporation that its chemicals were simply too dangerous to

produce.

In short, under Pelron, the Department of Labor lacks

authority to regulate the normal activities of participants in

sports events or entertainment shows. Indeed, until its action

against SeaWorld, the Department of Labor had never before

asserted authority to regulate the normal activities of

participants in sports events or entertainment shows.3 If

3

The Pelron principle covers injuries to the participants taking

part in the relevant sport or show. To be clear, consistent with

Pelron, the Department of Labor of course may regulate the

workplace conditions that are not the “normal activities” of the

participants during the competition or show – for example, the

workplace conditions for the workers who cook the hot dogs or sell

the beer or build the stage or erect the goalposts, or the off-stage

conditions for the event’s participants. With the exception of the

8

Pelron remains good law – and the Department itself

acknowledges that it does – then the Department’s

unprecedented attempt here to ban close contact between

trainers and whales at SeaWorld cannot stand.4

Spider-Man show, all of the examples listed in footnote 1 of the

majority opinion are outside the scope of the Pelron rule and not

responsive to this dissent. Moreover, even the Department’s action

with respect to the Spider-Man show came after its action against

SeaWorld in this case. The Department’s action against SeaWorld

was its initial, entirely unprecedented effort to regulate the normal

activities of sports events and entertainment shows.

4

The majority opinion says that applying Pelron here would

prevent the Department of Labor from regulating construction or

logging or roofing, among other things. That is incorrect and just

highlights, in my view, that the majority opinion is not fully

appreciating or correctly analyzing the critical and novel issue

presented in this case. The Department of Labor obviously has

authority over those kinds of workplaces. As explained in Pelron,

the Department may not completely forbid an industry from

offering its product – in the examples cited by the majority opinion,

the product might be a building, timber, or a roof – but the

Department of course may and frequently does attempt to reduce

the risk in the workplaces where the production of those products

occurs. In this case, a distinct issue arises because sports and

entertainment are industries where the product being offered is a

spectator event structured and marketed in a way that often includes

some risk for the participants, whether it is a punt return in football

or a whale show at SeaWorld. Put another way, in sports events

and entertainment shows, there is no distinction between the

product being offered and its production; the product is the

production. That’s what makes sports events and entertainment

shows analytically different from construction or logging or roofing

for purposes of the Pelron principle. And that’s no doubt why the

Department of Labor until recently has not seen fit to regulate the

sports and entertainment industries in this way.

9

Second, a “fundamental norm of administrative

procedure requires an agency to treat like cases alike.”

Westar Energy, Inc. v. Federal Energy Regulatory

Commission, 473 F.3d 1239, 1241 (D.C. Cir. 2007). Here,

the Department has failed that basic test, and its action is

therefore arbitrary and capricious.

To allay concerns about the breadth of its assertion of

regulatory authority in this case, the Department – consistent

with its traditional practice – has repeatedly disclaimed

authority under the General Duty Clause to ban, for example,

tackling in the NFL or excessive speed in NASCAR races.

See Br. for Secretary of Labor 52; Oral Arg. at 19:15-19:29,

33:05-33:25. As the Department no doubt realizes, the

Pelron principle bars it from asserting such broad regulatory

authority. The Department surely understands that it would

find itself on shaky legal ground – not to mention face

popular and congressional backlash – if it asserted such

authority.

Yet the line the Department has drawn in applying the

Pelron principle is entirely arbitrary and unreasonable. The

Department cannot reasonably distinguish close contact with

whales at SeaWorld from tackling in the NFL or speeding in

NASCAR. The Department’s sole justification for the

distinction is that SeaWorld could modify (and indeed, since

the Department’s decision, has had to modify) its shows to

eliminate close contact with whales without going out of

business. But so too, the NFL could ban tackling or punt

returns or blocks below the waist. And likewise, NASCAR

could impose a speed limit during its races. But the

Department has not claimed that it can regulate those

activities. So that is not a reasonable way to distinguish

sports from SeaWorld. The Department assures us, however,

that it would never dictate such outcomes in those sports

10

because “physical contact between players is intrinsic to

professional football, as is high speed driving to professional

auto racing.” Br. for Secretary of Labor 52. But that ipse

dixit just brings us back to square one: Why isn’t close

contact between trainers and whales as intrinsic to

SeaWorld’s aquatic entertainment enterprise as tackling is to

football or speeding is to auto racing? The Department offers

no answer at all.5

In my view, the Department of Labor either has authority

to regulate sports and entertainment so as to prevent injuries

to participants, or it does not. The fact that the Department

expressly disclaims its authority over the NFL and NASCAR,

and that the Department goes to such lengths to draw head-

scratching distinctions between sports events on the one hand

and entertainment shows on the other, shows that something

is up. What’s up is that the Department is treating similar

cases dissimilarly, the paradigmatic arbitrary and capricious

agency action. See Muwekma Ohlone Tribe v. Salazar, 708

F.3d 209, 215-16 (D.C. Cir. 2013); County of Los Angeles v.

Shalala, 192 F.3d 1005, 1022 (D.C. Cir. 1999); Transactive

Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996) (“A

long line of precedent has established that an agency action is

arbitrary when the agency offered insufficient reasons for

treating similar situations differently.”).

5

The majority opinion does not try to defend the Department’s

effort to distinguish SeaWorld from, for example, the NFL or

NASCAR. Rather, the majority opinion says that SeaWorld’s

argument that the Department was arbitrarily distinguishing

SeaWorld from the NFL or NASCAR was not raised before the

Commission and has been forfeited. But in responding in this

Court to that argument by SeaWorld, the Department of Labor has

not asserted forfeiture. So the Department itself forfeited any

potential forfeiture argument.

11

Because the Department of Labor’s decision rests on

illusory and arbitrary distinctions and rationales, it cannot

stand.

Third, even though the Department disclaims authority

to, for example, ban punt returns in the NFL or speeding in

NASCAR, the Department’s action here still interferes with

the sports and entertainment industry to a degree that

Congress surely did not intend when it passed the

Occupational Safety and Health Act.

The Congress that enacted the Act in 1970 was certainly

aware of the hazards in many popular sports such as football,

baseball, ice hockey, and boxing. It was also well aware of

the hazards in entertainment shows such as the circus. Yet as

SeaWorld correctly points out, Congress did not in any way

indicate or even hint that the Clause’s vague terms

encompassed an implicit grant of authority to the Department

of Labor to regulate and re-make some undefined swath of

America’s sports and entertainment behemoth.

In the real world, it is simply not plausible to assert that

Congress, when passing the Occupational Safety and Health

Act, silently intended to authorize the Department of Labor to

eliminate familiar sports and entertainment practices, such as

punt returns in the NFL, speeding in NASCAR, or the whale

show at SeaWorld. See FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 160 (2000) (“[W]e are

confident that Congress could not have intended to delegate a

decision of such economic and political significance to an

agency in so cryptic a fashion.”).

***

To the extent sports or entertainment activities raise

concern about the risk of injury to the participants, several

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extant legal bodies possess significant authority to clamp

down on unreasonable dangers: Congress, state legislatures,

state regulators, courts applying state tort law. I take no

position here on whether SeaWorld – or for that matter the

NFL or NASCAR – should be subject to more stringent

government regulation or liability, or otherwise should

voluntarily make its activities safer. That policy question is

not before us. My legal disagreement with the majority

opinion boils down to one basic question: Who decides?

Under current law, it is not the Department of Labor. I

respectfully dissent.