R. Acosta, Secretary, LABR v. Hensel Phelps Constr

Case: 17-60543 Document: 00514735856 Page: 1 Date Filed: 11/26/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-60543 FILED

November 26, 2018

Lyle W. Cayce

R. ALEXANDER ACOSTA, Secretary, Department of Labor, Clerk

Petitioner,

v.

HENSEL PHELPS CONSTRUCTION COMPANY,

Respondent.

On Petition for Review of a Final Order of the

Occupational Safety and Health Review Commission

Before GRAVES and COSTA, Circuit Judges, and BENNETT, District Judge. *

JAMES E. GRAVES, JR., Circuit Judge:

Thirty-seven years ago, this court, in a tort case, announced that “OSHA

regulations protect only an employer’s own employees.” Melerine v. Avondale

Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. Unit A Oct. 1981). That decision

has endured despite the seismic shift brought about by Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the dec-

ades of administrative-law aftershocks that followed.

Today we reexamine Melerine, and the precedent on which it relies, 1 in

* District Judge of the Southern District of Texas, sitting by designation.

1 Se. Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975) (per curiam); Horn v. C.L.

Osborn Contracting Co., 591 F.2d 318, 321 (5th Cir. 1979); Barrera v. E.I. DuPont de Nemours &

Co., 653 F.2d 915 (5th Cir. Unit A Aug. 1981).

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the light of that shift. In this appeal, the Secretary of Labor asks the court to

decide whether he has the authority—under either the Occupational Safety and

Health Act, 29 U.S.C. § 651 et seq. (the Act), or Occupational Safety and Health

Administration (OSHA) regulations—to issue a citation to a general contractor

at a multi-employer construction worksite who controls a hazardous condition

at that worksite, even if the condition affects another employer’s employees. We

conclude that he does have that authority under the Act.

I

The parties have stipulated to the relevant factual and procedural history

in this action. In 2010, Respondent Hensel Phelps Construction Company en-

tered into a contract with the City of Austin to build a new public library. Hen-

sel Phelps, as general contractor, maintained control over the worksite through

the presence of on-site management personnel, including superintendents, pro-

ject engineers, and project managers. In 2014, Hensel Phelps contracted with

subcontractor Haynes Eaglin Watters, LLC (HEW), to do certain work on the

project’s Seaholm Substation East Screen Wall. Later that year, HEW contracted

with sub-subcontractor CVI Development, LLC, to complete demolition, exca-

vation, and other work as required for the East Screen Wall.

As the excavation at the worksite progressed, a nearly vertical wall of

“Type C” soil 2 was allowed to develop, measuring approximately 12 feet in height

and 150 feet in length. OSHA regulations mandate that excavations in this type

of soil use protective systems, such as sloping, to protect employees from cave-

ins. See 29 C.F.R. §§ 1926.652(a)(1) & (b). No such protective systems were put

in place at this excavation.

2 So-called “Type C” soil is the least stable type under OSHA’s soil classification system.

Type C soil includes gravel, sand, soil from which water is freely seeping, and other unstable soils.

See 29 C.F.R. part 1926, subpart P, appendix A.

2

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On the rainy morning of March 4, 2015, CVI was assigned to reinstall re-

inforcing rods (“rebar”) at the base of this excavated wall of soil, preliminary to

pouring concrete footings. The wall was not properly sloped or otherwise pro-

tected from cave-in hazards, and had not been for several days. Concerned about

the combination of the weather and the instability of the excavation wall, CVI

owner Karl Daniels sent his employees to work on another area of the site while

he awaited instructions from HEW or Hensel Phelps on how to proceed at the

excavation area. A City of Austin inspector saw the CVI employees working at

the other location and told Daniels that his employees should work only at the

excavation. The inspector also reported to Hensel Phelps’ area superintendent

that CVI employees were working at the other location. The superintendent in-

structed Daniels to have his employees return to the excavation and not to do

any other work until the excavation work was completed. Daniels sent an email

to HEW’s senior project manager, stating that “[P]lacing rebar in the mud and

rain is unorthodox and very dangerous.” The project manager gave only a cursory

reply that CVI should comply with its instructions. Daniels thereafter removed

his employees from the other work area and sent them back to the excavation

area to install rebar.

That same day, the OSHA Area Office in Austin received a complaint of

hazardous working conditions at the library project excavation area. A compli-

ance officer conducted an inspection of the site and discovered three CVI em-

ployees working at the base of the unprotected wall of excavated soil. The city

inspector, Hensel Phelps’ superintendent, and both Hensel Phelps’ and HEW’s

project superintendents were present at the wall, as well, with full views of the

CVI employees working there.

OSHA cited both CVI and Hensel Phelps for willfully violating 29 C.F.R.

3

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§ 1926.652(a)(1) 3 by exposing employees to a cave-in hazard from an unprotected

excavation at a construction site.4 Hensel Phelps Constr. Co., 26 BNA OSHC 1773,

at *4 (No. 15-1638, 2017) (“ALJ Decision”). OSHA issued its citation against Hen-

sel Phelps pursuant to its multi-employer citation policy. Under this policy, an

employer who causes a hazardous condition (a “creating employer”) or a general

contractor or other employer having control over a worksite who should have

detected and prevented a violation through the reasonable exercise of its super-

visory authority (a “controlling employer”) may be cited for a violation, whether

or not its own employees were exposed to the hazard. See generally Occupational

Safety & Health Admin., CPL 02-00-124, Multi-Employer Citation Policy (1999);

see also Occupational Safety & Health Admin., CPL 02-00-160, Field Operations

Manual 4-5 (2016). OSHA considered Hensel Phelps a “controlling employer”

because the company had “general supervisory authority over the worksite, in-

cluding the power to correct safety and health violations itself or require others

to correct them.” ALJ Decision at *5–6.

Hensel Phelps timely contested the citation. In the proceedings before the

Occupational Safety and Health Review Commission ALJ, the parties stipulated

that (1) the excavation was not adequately protected; (2) Hensel Phelps knew

that the excavation was not adequately protected because its supervisors ob-

served CVI employees working next to the unprotected excavation; (3) and Hen-

sel Phelps had management authority over the entire library project and had

the specific authority to prevent the violation by correcting the hazardous con-

ditions or by stopping CVI’s employees from working in the area. The ALJ de-

termined that Hensel Phelps met the requirements to be considered a “controlling

3 The regulation provides: “Each employee in an excavation shall be protected from cave-

ins by an adequate protective system . . . except when: (i) Excavations are made entirely in stable

rock; or (ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a

competent person provides no indication of a potential cave-in.” 29 C.F.R. § 1926.652(a)(1).

4 CVI later settled with OSHA; OSHA’s citation of CVI is not at issue here.

4

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employer” who has a duty under the Occupational Safety and Health Act, 29

U.S.C. § 651 et seq., to act reasonably to prevent or detect and abate violations

at the worksite even when the affected employees are those of another employer.

Under Commission precedent, the stipulated facts dictated a finding that Hen-

sel Phelps violated 29 C.F.R. § 1926.652(a)(1). ALJ Decision at *6.

But this finding was not the end of the matter, for “[w]here it is highly

probable that a Commission decision would be appealed to a particular circuit,

the Commission [] generally applie[s] the precedent of that circuit in deciding the

case—even if it may differ from the Commission’s precedent.” Kerns Bros. Tree

Serv., 18 BNA OSHC 2064 (No. 96-1719, 2000); see also Smith Steel Casing Co.

v. Donovan, 725 F.2d 1032, 1035 (5th Cir. 1984) (“A holding by a court of appeals

on a legal question is binding on the [] Commission in all cases arising within

that circuit until and unless the court of appeals or the Supreme Court overturns

that holding . . . .”). Because this citation arose within the jurisdiction of the Fifth

Circuit, the ALJ found that Fifth Circuit precedent foreclosed the citation. ALJ

Decision at *6. Specifically citing Melerine v. Avondale Shipyards, Inc., 659 F.2d

706, 711 (5th Cir. Unit A Oct. 1981), which stated that “OSHA regulations pro-

tect only an employer’s own employees,” the ALJ concluded that an employer at

a worksite within the Fifth Circuit cannot be held in violation of the Act when

the employees exposed to the hazard were employees of a different employer.

ALJ Decision at *6–7. The ALJ vacated the citation.

The Secretary sought discretionary review of the ALJ’s decision. The Com-

mission did not grant it, so the decision became a final order of the Commission.

See 29 C.F.R. § 2200.90(b). The Secretary timely filed a petition for review in

this court.

II

Because the ALJ’s decision became a final order of the Commission, we

review that decision on appeal. W.G. Yates & Sons Constr. Co. v. Occupational

5

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Safety & Health Review Comm’n, 459 F.3d 604, 606 (5th Cir. 2006). The issues

the Secretary raises are purely issues of law, and the court reviews the Commis-

sion’s legal conclusions “for whether they are ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.’” Aus. Indus. Specialty

Servs., L.P. v. Occupational Safety & Health Review Comm’n, 765 F.3d 434, 438–

39 (5th Cir. 2014) (per curiam) (quoting Trinity Marine Nashville, Inc. v. Occu-

pational Safety & Health Review Comm’n, 275 F.3d 423, 427 (5th Cir. 2001)).

III

A court reviewing an agency’s interpretation of its authority under the

statute it administers must engage with the two-step framework established in

Chevron. See W. Ref. Sw., Inc. v. FERC, 636 F.3d 719, 723 (5th Cir. 2011). At the

first step, “applying the ordinary tools of statutory construction, the court must

determine ‘whether Congress has directly spoken to the precise question at is-

sue. If the intent of Congress is clear, that is the end of the matter; for the court,

as well as the agency, must give effect to the unambiguously expressed intent of

Congress.’” City of Arlington v. FCC, 569 U.S. 290, 296 (2013) (quoting Chevron,

467 U.S. at 842–43). 5 “But if the statute is silent or ambiguous with respect to

the specific issue, the question for the court” at the second step “is whether the

agency’s answer is based on a permissible construction of the statute.” Id. (in-

ternal quotation marks omitted) (quoting Chevron, 467 U.S. at 843). If both crite-

ria are met, that is, “[i]f a statute is ambiguous, and if the implementing agency’s

construction is reasonable,” then “Chevron requires a federal court to accept the

agency’s construction of the statute, even if the agency’s reading differs from

what the court believes is the best statutory interpretation.” Elgin Nursing &

Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., 718 F.3d 488, 492 n.3 (5th

5 The “ordinary tools of statutory construction” include “text, structure, purpose, and legis-

lative history.” BNSF Ry. Co. v. United States, 775 F.3d 743, 751 (5th Cir. 2015) (quoting Citizens

Coal Council v. Norton, 330 F.3d 478, 481 (D.C. Cir. 2003)).

6

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Cir. 2013) (citation omitted); see also City of Arlington, 569 U.S. at 297 (“No mat-

ter how it is framed, the question a court faces when confronted with an agency’s

interpretation of a statute it administers is always, simply, whether the agency

has stayed within the bounds of its statutory authority.” (emphasis in orig-

inal)); BNSF Ry. Co. v. United States, 775 F.3d 743, 751 (5th Cir. 2015) (“[W]e

do not . . . impose [our] own construction on the statute.” (quoting Chevron, 467

U.S. at 843)). We will likewise defer to an agency’s reasonable interpretation

of its own regulations when the text of the regulation is ambiguous. Martin v.

Occupational Safety & Health Review Comm’n, 499 U.S. 144, 152 (1991); Delek

Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 175

(5th Cir. 2016).

It is undisputed that none of Hensel Phelps’ employees were exposed to

the excavation wall hazard. Despite this, the Secretary maintains that he has

the authority under both the Act and the implementing regulations to issue ci-

tations to controlling employers, like Hensel Phelps, at multi-employer work-

sites. It is also undisputed that the Secretary’s position is contrary to this court’s

decision in Melerine, in which we reaffirmed precedent finding both the Act and

OSHA regulations protect only an employer’s own employees. 659 F.2d at 710–

12 (citing Se. Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975) (per cu-

riam), Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 321 (5th Cir. 1979),

and Barrera v. E.I. DuPont de Nemours & Co., 653 F.2d 915 (5th Cir. Unit A

Aug. 1981)).

That said, Melerine and the cases it relies on all predate Chevron. In such

a situation—where an appellate court’s pre-Chevron statutory interpretation

is at odds with the Chevron deference possibly due an administrative agency’s

subsequent interpretation—we turn to the Supreme Court’s holding in National

Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967

(2005), that “[a] court’s prior judicial construction of a statute trumps an agency

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construction otherwise entitled to Chevron deference only if the prior court de-

cision holds that its construction follows from the unambiguous terms of the

statute and thus leaves no room for agency discretion.” Id. at 982. Striving to

avoid the “anomalous results” that would flow from a rule that would give pref-

erence to whichever interpretation was first in time, the Court in Brand X de-

cided that “[o]nly a judicial precedent holding that the statute unambiguously

forecloses the agency’s interpretation, and therefore contains no gap for the

agency to fill, displaces a conflicting statutory construction.” Id. at 982–83.

“Brand X demands that we reexamine pre-Chevron precedents through a

Chevron lens.” Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12,

17 (1st Cir. 2006). Thus, to resolve the issues in this appeal, our analysis pro-

ceeds by answering the following four questions. First, is the Secretary’s inter-

pretation of the Act “otherwise entitled to Chevron deference”? Brand X, 545 U.S.

at 982. In other words, if we were looking at this issue for the first time, post-

Chevron, and assuming Melerine and its underlying cases never existed, would

the Secretary’s interpretation be entitled to deference? See id. (directing courts

undertaking this analysis to “review[] the agency’s construction on a blank slate”).

Second, if yes, did Melerine and the underlying cases hold that their interpre-

tation of the Act “follow[ed] from the unambiguous terms of the statute and thus

leave[] no room for agency discretion”? Id. Third, if no, should the court rule that

Melerine and the underlying cases must no longer be followed? And fourth, if

yes, free from the confines of Melerine and its forebears, is the ALJ’s decision

vacating the citation arbitrary, capricious, an abuse of discretion, or not other-

wise in accordance with the law? 6

6 If the answer to this final question is no, the court may undergo the analysis again, this

time using the Secretary’s interpretation of his authority under the implementing regulations, for

this Circuit similarly applies Brand X to the court’s pre-Chevron interpretation of a federal regula-

tion. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 397 & n.16 (5th Cir. 2014).

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A

The Secretary argues that two particular sections of the Act grant him

authority to cite controlling employers at multi-employer worksites: 29 U.S.C.

§§ 654(a)(2) and 652(8). Section 654(a) provides as follows:

(a) Each employer—

(1) shall furnish to each of his employees employment and a

place of employment which are free from recognized haz-

ards that are causing or are likely to cause death or seri-

ous physical harm to his employees;

(2) shall comply with occupational safety and health

standards promulgated under this chapter.

29 U.S.C. § 654(a) (emphasis added). “Occupational safety and health standard”

is a defined term in § 652(8), defined as a standard that requires the taking of

some action “reasonably necessary or appropriate to provide safe or healthful

employment and places of employment.” Id. § 652(8). The Secretary construes

§ 654(a)(1) and (2) as imposing two different duties, with subsection (a)(1) cre-

ating a general duty that runs to an employer’s own employees (and only his own

employees), and with subsection (a)(2) requiring employers to, more broadly,

comply with the Act’s safety standards. Hensel Phelps contends that the language

of § 654(a) cannot reasonably be read as granting the Secretary authority to

impose liability outside the employer-employee relationship. It is in this dis-

agreement that a Chevron question arises.

1

At Chevron step one, we ask whether Congress, through § 654(a), has di-

rectly spoken to this issue, i.e., has Congress affirmatively limited (or affirm-

atively refused to limit) the Secretary’s authority to cite employers to only haz-

ards that affect his own employees? “[A] reviewing court should not confine itself

to examining a particular statutory provision in isolation. The meaning—or am-

biguity—of certain words or phrases may only become evident when placed in

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context.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).

Our inquiry must be guided by the underlying principle that “safety legislation,”

like the Act, “is to be liberally construed to effectuate the congressional purpose.”

Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980).

Even a cursory glance at the plain language of § 654(a) demonstrates that

subsection (a)(1) contains the limiting language “to each of his employees,” but

subsection (a)(2) does not. “Absent persuasive indications to the contrary, we pre-

sume Congress says what it means and means what it says,” Simmons v. Him-

melreich, 578 U.S. —, —, 136 S. Ct. 1843, 1848 (2016), and “[w]here Congress

includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intention-

ally and purposefully in the disparate inclusion or exclusion,” Russello v. United

States, 464 U.S. 16, 23 (1983). We can surmise, then, that Congress perhaps

intended to include the limiting language in subsection (a)(1) and, by excluding

that language from subsection (a)(2), perhaps left open the possibility that an

employer could be cited for a violation at a worksite he controls but that is also

populated by employees of various other employers. See Universal Constr. Co. v.

Occupational Safety & Health Review Comm’n, 182 F.3d 726, 728 (10th Cir. 1999)

(indicating that the duty in subsection (a)(2) “does not limit its compliance di-

rective to the employer’s own employees, but requires employers to implement

the Act’s safety standards for the benefit of all employees in a given workplace,

even employees of another employer.”).

This reading is bolstered by combining the text of § 654(a)(2) with § 652(8)’s

definition of “occupational safety and health standard,” as together they require

an employer to take action to provide safe or healthful “employment” and “places

of employment.” The Supreme Court has “cautioned against reading a [statu-

tory] text in a way that makes part of it redundant.” Nat’l Ass’n of Home Build-

ers v. Defs. of Wildlife, 551 U.S. 644, 669 (2007). With this in mind, we find that

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“employment” and “places of employment” must refer to two different concepts

for both terms to carry independent meaning. The term “places of employment”

may limit the employer’s duty to worksites where he has employees, but it can-

not be “limited to only the ‘employment’ of his employees because that interpre-

tation would render the phrase ‘places of employment’ redundant of ‘employment’

and, therefore, superfluous.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 828

(8th Cir. 2009).

For Hensel Phelps to successfully pretermit the analysis at Chevron step

one, it must show that the language of § 654(a)(2) plainly permits citation of only

those employers who expose their own employees to hazards. It has a tough row

to hoe, for its view of § 654(a)(2) is contrary to the view of every circuit court that

has espoused one: each of those seven courts has held either that § 654(a)(2) un-

ambiguously stands for the opposite of what Hensel Phelps argues—i.e., that

the statute unambiguously accords with the Secretary’s interpretation—or that

the statute is at least ambiguous on the issue. See Universal Constr. Co., 182

F.3d at 729 (“While broad, the language of § 654(a)(2) is ambiguous and does

not clearly compel the conclusion that Congress did or did not intend to permit

the Secretary to impose liability for hazards that an employer controlled but did

not create and which did not threaten the employer’s employees.”); United States

v. Pitt-Des Moines, Inc., 168 F.3d 976, 983 (7th Cir. 1999) (“The use of the words

‘his employees’ in describing the duties of Section 654(a)(1) and the conspicuous

absence of any limiting language in Section 654(a)(2) certainly indicate that a

broader class was meant to be protected by the latter. . . . There is no reason to

conclude that the specific protection Section 654(a)(2) affords—freedom from

safety violations—is limited to an employer’s own employees. This is particularly

true when employees of different employers work in close proximity and all are

subject to the risk those violations create.”); Teal v. E.I. DuPont de Nemours &

Co., 728 F.2d 799, 804–05 (6th Cir. 1984) (“We believe that Congress enacted

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Sec. 654(a)(2) for the special benefit of all employees, including the employees of

an independent contractor, who perform work at another employer’s workplace.”);

Marshall v. Knutson Constr. Co., 566 F.2d 596, 599 (8th Cir. 1977) (adopting

interpretation of § 654(a)(2) that “the duty of a general contractor is not limited

to the protection of its own employees from safety hazards, but extends to the

protection of all the employees engaged at the worksite”); Brennan v. Occupa-

tional Safety & Health Review Comm’n, 513 F.2d 1032, 1038 (2d Cir. 1975) (“[Sec-

tion 654(a)(2)’s] specific duty to comply with the Secretary’s standards is in no

way limited to situations where a violation of a standard is linked to exposure

of his employees to the hazard. It is a duty over and above his general duty to

his own employees under § 654(a)(1).” (footnote omitted)); see also Beatty Equip.

Leasing, Inc. v. Sec’y of Labor, 577 F.2d 534, 537 (9th Cir. 1978) (agreeing with

and adopting Second Circuit’s interpretation); Brennan v. Gilles & Cotting, Inc.,

504 F.2d 1255, 1261 (4th Cir. 1974) (“As we view the statutory purposes of [the

Act], the question of whether a general contractor should be concurrently respon-

sible for the safety of subcontractor workmen under the concept of a joint or stat-

utory employer can be answered either way.”), abrogated on other grounds by

Martin, 499 U.S. 144.

Hensel Phelps argues that the controlling employer policy violates section

4(b)(4) of the Act. That provision states that “Nothing in this Act shall be con-

strued to . . . affect . . . the common law . . . duties, or liabilities of employers.”

29 U.S.C. § 653(b)(4). Hensel Phelps believes that the Secretary’s interpretation

of the Act as authorizing the controlling employer policy “would force general

contractors to assert control over the activities of subcontractors,” impermissi-

bly increasing their liability. When confronted with this same argument the

D.C. Circuit ruled that citation to § 653(b)(4) is not a defense against a control-

ling-employer citation because any expansion of liability on the part of the con-

tractor “would arise only from a court’s (hypothetical) later action under state

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law—not from the [] Act itself, which is all that § 4(b)(4) addresses.” Summit Con-

tractors, Inc. v. Sec’y of Labor, 442 F. App’x 570, 572 (D.C. Cir. 2011) (per

curiam). We agree with this reasoning; no controlling-employer citation under

§ 654(a)(2) would, on its face, affect Hensel Phelps’ common law duties as an

employer.

We also reject Hensel Phelps’ argument that the Secretary’s purported au-

thority under the Act is improperly premised on an expansive definition of “em-

ployer” and “employee,” contrary to the Supreme Court’s holding in Nationwide

Mutual Insurance Co. v. Darden, 503 U.S. 318, 322–24 (1992), that Congress in-

tends the term “employee” to connote a traditional common-law master-servant

relationship if a statute does not set forth a different definition. The Eighth Cir-

cuit previously addressed and rejected this argument. In Summit Contractors,

that court explained that the controlling-employer citation policy does not

conflict with Darden because § 654(a)(2), “unlike § 654(a)(1), does not base an

employer’s liability on the existence of an employer-employee relationship,” so

it cannot be premised on any definition of employer and employee, let alone

expansive ones. 558 F.3d at 828; see also Gilles & Cotting, 504 F.2d at 1261 (“A

common law definition of employer is [] unsuitable as the dispositive interpre-

tation of the statutory term because the states differ on the proper scope of

the term in various situations, and thus there is no uniform nationwide defini-

tion. As a Congressional enactment of nationwide application, [the Act] requires

a single consistent definition of ‘employer’ throughout the country so that there

will be uniform application of this national legislation in all states.” (citation

omitted)). The Eighth Circuit’s treatment of this argument seems to be the cor-

rect one. Section 654(a)(2) can be read as a reflection of Congress’s intent to po-

sition the importance of maintaining safe workplaces over and above any em-

ployer-employee relationships that exist within those workplaces. To effectuate

that intent, Congress may have omitted the words “employer” and “employee”

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from § 654(a)(2) to preemptively disentangle it from any potential thorny issues

regarding what might be considered an “employer” and an “employee” in differ-

ent contexts in different states.

At bottom, even assuming that § 654(a)(2) is susceptible to Hensel Phelps’

interpretation, we are not convinced that the statute is not also susceptible to

the Secretary’s interpretation. In our view, the intent of Congress underlying

this statute is at least ambiguous. The Tenth Circuit’s discussion in Universal

Construction Co. perfectly encapsulates the ambiguity:

It may be . . . that (a)(2) was intended to create a specific duty re-

quiring an employer to comply with OSHA safety standards for the

good of all employees—even those employed by others—at a com-

mon worksite. If so, however, it is plausible that Congress would

have chosen more direct phrasing to implement such a scheme. . . .

Subsection (2) on its face does not limit an employer’s duty to comply

with safety standards only to the employer’s employees. Nor is there

any patently compelling reason to assume merely because liability

under (a)(1) is limited to situations where an employer’s own em-

ployees are exposed to hazards, liability under (a)(2) is likewise lim-

ited. . . . Given the ambiguities of the statute, we are not prepared

to conclude the plain language of the statute alone or its nonexistent

legislative history on this issue permits us to accept or reject the

multi-employer doctrine.

182 F.3d at 729. Consistent with this reading, we find that Congress’s intent in

promulgating § 654(a)(2) is ambiguous on the issue of the Secretary’s authority

to issue citations to controlling employers at multi-employer worksites, thereby

opening the door to Chevron step two.

2

At step two, “Chevron directs courts to accept an agency’s reasonable res-

olution of an ambiguity in a statute that the agency administers.” Michigan v.

EPA, 576 U.S. —, —, 135 S. Ct. 2699, 2707 (2015). “The agency’s view ‘governs

if it is a reasonable interpretation of the statute—not necessarily the only pos-

sible interpretation, nor even the interpretation deemed most reasonable by the

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courts,’” Coastal Conserv’n Ass’n v. U.S. Dep’t of Commerce, 846 F.3d 99, 106

(5th Cir. 2017) (quoting Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218

(2009)), provided that the interpretation is not “arbitrary, capricious, or mani-

festly contrary to the statute,” EPA v. EME Homer City Generation, L.P., 572

U.S. —, —, 134 S. Ct. 1584, 1603 (2014) (quoting Chevron, 467 U.S. at 844). See

also Chevron, 467 U.S. at 843 n.11 (“The court need not conclude that the agency

construction was the only one it permissibly could have adopted to uphold the

construction, or even the reading the court would have reached if the question

initially had arisen in a judicial proceeding.”). “[T]he whole point of Chevron is

to leave the discretion provided by the ambiguities of a statute with the imple-

menting agency,” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996), so

“[i]f the agency’s reasons and policy choices conform to minimal standards of

rationality, then its actions are reasonable and must be upheld,” Louisiana v.

U.S. Army Corps of Eng’rs, 834 F.3d 574, 587 (5th Cir. 2016) (quoting Tex. Oil

& Gas Ass’n v. EPA, 161 F.3d 923, 934 (5th Cir. 1998)).

The Secretary’s interpretation of § 654(a)(2) as permitting him to cite a

controlling employer at a multi-employer worksite conforms to those minimal

standards of rationality and is well within the bounds of permissible interpre-

tation. The interpretation makes practical sense. In a place of employment like

a construction worksite, populated by subcontractors, sub-subcontractors, and

their employees performing various (and often overlapping) tasks, only the gen-

eral contractor maintains supervisory authority over—and has access to—the

entire space. If a general contractor enjoys the benefits of project supervision,

it follows that he should also bear the burdens, by being held to comply—and to

direct its subcontractors to comply—with the Act’s safety standards. See Uni-

versal Constr. Co., 182 F.3d at 730. 7 The Secretary has consistently held this

7 The Commission further elucidates this justification:

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interpretation for decades, relying on the authority he maintains has been granted

to him by § 654(a)(2) to cite employers on multi-employer construction sites for

hazardous conditions they created or controlled, regardless of whether their own

employees were exposed. See Anning-Johnson Co., 4 BNA OSHC 1193, 1199

(Nos. 3694 & 4409, 1976) (first adopting the Secretary’s interpretation); see also,

e.g., McDevitt Street Bovis Inc., 19 BNA OSHC 1108 (No. 97-1918, 2000); Blount

Int’l Ltd., 15 BNA OSHC 1897 (No. 89-1394, 1992); Red Lobster Inns of Am.,

Inc., 8 BNA OSHC 1762 (No. 76-4754, 1980). Indeed, the Secretary even inter-

preted the statute in this way during the period of time when the Commission

held the opposing interpretation. See Martin Iron Works, Inc., 2 BNA OSHC 1063

(No. 606, 1974); Gilles & Cotting, Inc., 1 BNA OSHC 1388 (No. 504, 1973), vacated

sub nom. Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255. The consistency of

the Secretary’s interpretation over time reinforces a finding of reasonableness.

Compare Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360, 381 (5th

Cir. 2018) (explaining that, in the reasonableness calculus, “persuasive weight”

Typically, a construction job will find a number of contractors and subcontractors on

the worksite, whose employees mingle throughout the site while work is in progress.

In this situation, a hazard created by one employer can foreseeably affect the safety

of employees of other employers on the site. Conversely, as a practical matter it is

impossible for a particular employer to anticipate all the hazards which others may

create as the work progresses, or to constantly inspect the entire jobsite to detect

violations created by others. Indeed, . . . it would be unduly burdensome to require

particular crafts to correct violations for which they have no expertise and which have

been created by other crafts. . . . [O]n a construction site, the safety of all employees

can best be achieved if each employer is responsible for assuring that its own conduct

does not create hazards to any employees on the site, and that imposing liability on

this basis would not place an unreasonable or unachievable duty on contractors. . . .

Additionally, the general contractor normally has responsibility to assure that the

other contractors fulfill their obligations with respect to employee safety which affect

the entire site. The general contractor is well situated to obtain abatement of hazards,

either through its own resources or through its supervisory role with respect to other

contractors. It is therefore reasonable to expect the general contractor to assure com-

pliance with the standards insofar as all employees on the site are affected. Thus,

we will hold the general contractor responsible for violations it could reasonably have

been expected to prevent or abate by reason of its supervisory capacity.

Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976).

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is due an agency’s “contemporaneous construction of applicable law and subse-

quent consistent interpretation” (citing Watt v. Alaska, 451 U.S. 259, 272–73

(1981))), with Util. Air Regulatory Grp. v. EPA, 573 U.S. —, —, 134 S. Ct. 2427,

2444 (2014) (“When an agency claims to discover in a long-extant statute an un-

heralded power to regulate . . . , we typically greet its announcement with a

measure of skepticism.”). 8

We disagree with Hensel Phelps that anything in United States v. Mead

Corp., 533 U.S. 218 (2001), counsels against our finding the Secretary’s inter-

pretation of § 654(a)(2) to be reasonable. In Mead, the Supreme Court held that

agency enforcement policies are not entitled to Chevron deference when they de-

rive from sources outside notice-and-comment rulemaking or formal agency ad-

judication. Id. at 226–27. According to Hensel Phelps, OSHA’s published Multi-

Employer Citation Policy has never been “subjected to the rigors of administra-

tive rulemaking or formal agency adjudication,” so it should not qualify for Chev-

ron deference. Hensel Phelps misses the mark. The Secretary’s interpretation

did not derive from any outside source. Mead explained that an agency’s imple-

mentation of a statute qualifies for Chevron deference where the implementation

was promulgated in the exercise of the authority delegated to it by Congress,

such as by the agency’s “power to engage in adjudication.” Mead, 533 U.S. at 226–

27. An agency’s interpretation of its governing statute in an administrative ad-

judication “is as much an exercise of delegated lawmaking powers as is the Sec-

retary’s promulgation of a workplace health and safety standard.” Martin, 499

U.S. at 157. The Multi-Employer Citation Policy is an agency document that pro-

vides guidance to OSHA inspectors as to when it may be appropriate to cite a

8 This is not to say that the Secretary must have interpreted the Act in this way from the

date of enactment. See La. Pub. Serv. Comm’n v. FERC, 761 f3d 540, 554 (5th Cir. 2014) (“An initial

agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in

informed rulemaking, must consider varying interpretations and the wisdom of its policy on a con-

tinuing basis.” (quoting Chevron, 467 U.S. at 863-64).

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particular employer. Purporting to derive citation authority from the Policy

would not pass muster under Mead, but the Secretary did not derive any author-

ity from the Policy in citing Hensel Phelps; he relied on the statute itself and

engaged in adjudication on the basis of that statutory authority. See Summit

Contractors, Inc. v. Sec’y of Labor, 442 F. App’x 570, 571–72 (D.C. Cir. 2011) (per

curiam); see also Martin, 499 U.S. at 157 (“[W]hen embodied in a citation, the

Secretary’s interpretation assumes a form expressly provided for by Congress.”).

We find that the Secretary’s construction of the statute as granting author-

ity to issue citations to controlling employers is a “reasonably defensible” one.

Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422, 428 (5th Cir. 2008) (quoting

Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996)). Accordingly, under

Chevron, we must defer to it.

B

Continuing along on our Brand X journey, we must next look at our pre-

vious cases—Southeast Contractors, Horn, Barrera, and Melerine—to determine

the provenance of the principle that the Act protects only an employer’s employ-

ees, and decide whether it “follows from the unambiguous terms of the statute

and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982. To

reiterate, “[o]nly a judicial precedent holding that the statute unambiguously

forecloses the agency’s interpretation, and therefore contains no gap for the

agency to fill, displaces a conflicting agency construction.” Id. at 982–83.

The two times 9 this court previously dealt with Brand X, we followed our

pre-Chevron precedent because our prior opinions on the issue had not indicated

any ambiguity in the provisions they were interpreting.

9 A third case, CenturyTel of Chatham, LLC v. Sprint Communications Co., 861 F.3d 566

(5th Cir. 2017), though it involved Brand X, is not applicable here. The court there decided to dis-

regard two out-of-circuit district court opinions, not our own precedent.

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The first case, Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014), in-

volved interpretation of a provision of the Immigration and Nationality Act that

renders inadmissible “any alien convicted of . . . a crime involving moral turpi-

tude.” 8 U.S.C. § 1182(a)(2)(A)(i). Our prior cases had held that a judge deter-

mining whether a given conviction qualified as a crime of moral turpitude could

consider only “‘the inherent nature of the crime, as defined in the statute,’ or, in

the case of divisible statutes, ‘the alien’s record of conviction,’” and could not in-

quire into the “circumstances surrounding the particular transgression.” Silva-

Trevino, 742 F.3d at 200 (quoting Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th

Cir. 2006)). But the Attorney General later established an approach requiring

immigration judges and the Board of Immigration Appeals to “consider any ad-

ditional evidence deemed necessary or appropriate to resolve accurately the

moral turpitude question.” Id. (quoting In re Silva-Trevino, 24 I. & N. Dec. 687

(2008)). We declined to defer to the Attorney General’s construction of the stat-

ute as allowing extrinsic evidence because our precedent followed from the plain

language of the statute, which we held was unambiguous. 10

In the second case, Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380 (5th Cir.

2014), we declined to set aside our prior interpretation of a Federal Energy Reg-

ulatory Commission regulation. Previously, in Power Resource Group, Inc. v. Pub-

lic Utility Service Commission, 422 F.3d 231, 239 (5th Cir. 2005), we had held

that the “plain text” of a regulation failed to mandate whether all “Qualifying

10 We explained:

[W]e need not speculate as to what is meant by the phrase “convicted of” a crime of

moral turpitude, because Congress had the foresight to tell us. The statutory defini-

tions indicate that “conviction means, with respect to an alien, a formal judgment of

guilt . . . .” The statute then includes a list of the seven official documents that may

be considered as proof of such a conviction. Id. § 1229a(c)(3)(B). There is no mention

of any additional evidence; and the introductory phrasing, “any of the following doc-

uments or records”’ gives no indication that extrinsic evidence is contemplated.

Silva-Trevino, 742 F.3d at 200–01.

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Facilities” were allowed to form “Legally Enforceable Obligations.” 11 FERC later

interpreted its own regulation to allow all Qualifying Facilities to form Legally

Enforceable Obligations. The Exelon Wind plaintiff urged the court to defer to

FERC’s interpretation. Following a “straight-forward application” of Brand X,

we rejected the plaintiff’s argument, explaining that Power Resource “makes clear

that our prior reading of FERC’s Regulation unambiguously forecloses the in-

terpretation offered by Exelon.” Exelon Wind, 766 F.3d at 397. 12 We deemed our

application of Brand X to be consistent with cases that had invoked it to over-

rule a previous judicial construction: “In those cases, the courts emphasize that

their prior decisions also noted ambiguity in the text at issue.” Id. at 398.

In both Silva-Trevino and Exelon Wind, we had previously construed the

relevant statute or regulation in keeping with its plain, unambiguous text. And

in both cases, we rejected an agency’s subsequent interpretation that was di-

rectly at odds with our prior interpretation.

Just the opposite here: Melerine expressly recognized that the court de-

cided to come down on one side of a “complex debate.” What is more, Melerine

and most of the cases predating it analyzed an OSHA regulation, not the text of

the statute in which we and other circuits have found ambiguity.

In Melerine, the defendant had hired the plaintiff’s employer as a subcon-

tractor to perform certain work. The plaintiff was injured on the job and sued

11 The meanings of these terms are not material to our discussion.

12 The relevant text of Power Resource provided as follows:

If FERC had determined it necessary to set more specific guidelines concerning [Le-

gally Enforceable Obligations], it could have done so. For example, the FERC regu-

lations could have mandated that the [Qualifying Facilities] must be able to lock in

purchase rates with a [Legally Enforceable Obligation] prior to construction of a fa-

cility. The plain text of the FERC regulation, however, fails to mandate that require-

ment. Rather, defining the parameters for creating a [Legally Enforceable Obliga-

tion] is left to the states and their regulatory agencies.

Exelon Wind, 766 F.3d at 397–98 (alterations in original) (emphasis removed) (quoting Power Re-

source, 422 F.3d at 239).

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the defendant, claiming, not unlike the plaintiff in Horn, that the defendant’s

violation of certain OSHA standards established negligence per se. The court

began the pertinent discussion by explaining that whether the Act “regulates

only the obligation of the employer to provide safe work conditions for his em-

ployees or also states a standard of care due third persons has been the subject

of ‘complex dispute.’” Melerine, 659 F.2d at 710 (emphasis added) (quoting Ra-

bar v. E.I. DuPont de Nemours & Co., 415 A.2d 499, 503 (Del. Super. 1980), over-

ruled by Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88 (1992), as recog-

nized in Figgs v. Bellevue Holding Co., 652 A.2d 1084 (Del. Super. 1994)). The

court then showed that this “complex dispute” had manifested itself in a split in

authority:

Some courts have held that, given the language of [the Act]’s clauses

on the duties of employers, [the Act]’s broad statement of purpose,

and [the Act]’s generally broad language, OSHA regulations protect

not only an employer’s own employees, but all employees who may

be harmed by the employer’s violation of the regulations. This court,

however, along with others, has held that OSHA regulations protect

only an employer’s own employees.

Id. at 710–11 (footnotes omitted). 13 Looking specifically at § 654(a)(2), the court

conceded that “[o]ne might argue . . . that § 654(a)(2), which lacks the limiting

language ‘his employees’ of § 654(a)(1), establishes for the benefit of all employ-

ees, not just an employer’s own employees, a specific duty to comply with OSHA

regulations.” Id. at 710 n.12. But after summarizing Southeast Contractors, Horn,

and Berrera, the court reiterated that “[i]n this circuit, . . . the class protected by

OSHA regulations comprises only employers’ own employees.” Id. at 712.

We cannot ignore the glaring reality that Melerine is silent on the scope

13 The “others”’ the court referred to were the Fourth Circuit—which in Gilles & Cotting Co.

deferred to the Commission’s interpretation of the Act, an interpretation the Commission had al-

ready abandoned in favor of the Secretary’s interpretation by the time Melerine was decided—and

the Iowa Supreme Court—which in Koll v. Manatt’s Transportation Co., 253 N.W.2d 265, 269–70

(Iowa 1977), held only that violation of an OSHA standard is negligence per se as to an employee

but only evidence of negligence as to nonemployees.

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of any provision of the Act. Save one statement that the Act did not create “a civil

cause of action against either a plaintiff’s employer or a third party who is not

the plaintiff’s employer,” id. at 709, Melerine’s holding (and the reasoning

supporting it) extends no further than to the OSHA regulations:

[I]n this negligence action, we reject the argument that the failure

of a third party that was not the plaintiff’s employer to follow OSHA

regulations establishes that third party’s negligence. . . .

Melerine does not . . . contend that the OSHA regulations create

a civil cause of action against Avondale. He urges instead that their

violation establishes Avondale’s negligence per se in a cause of

action given him by general maritime law. . . .

The threshold issue . . . is whether Melerine was a member of the

class that the OSHA regulations were intended to protect. . . .

This court, . . . along with others, has held that OSHA regulations

protect an employer’s own employees. . . .

In this circuit, . . . the class protected by OSHA regulations com-

prises only employers’ own employees. . . . [T]his interpretation of

the scope of coverage of OSHA regulations also accords with the

scope of coverage explicitly given to the specific OSHA regulations

at issue in this case.

Id. at 707, 709–12 (emphases added). 14 Even were we to assume that Melerine’s

discussion of regulations applies to the Act as well, the decision proves, in obvi-

ous terms, that this court’s prior construction of the Act was just a choice of one

side of a “complex debate.” The court acknowledged that it is plausible to inter-

pret the statute, as the Secretary does, in a way that gives weight to the lack

of limiting language in § 654(a)(2), but it held that it was bound to interpret the

statute (or, more accurately, the regulation) consistently with precedent. This

14 This court recently noted the limited reach of Melerine’s holding, stating that it represents

the notion that “[w]e have not endorsed a non-employee’s use of OSHA regulations to sue a general

contractor in negligence per se.” Martino v. Kiewit N.M. Corp., 600 F. App’x 908, 912 (5th Cir. 2015)

(per curiam); see also Dixon v. Int’l Harvester Co., 754 F.2d 573, 581 (5th Cir. 1985) (“[W]e [have]

held that OSHA regulations provide evidence of the standard of care exacted of employers, and thus

may only be used to establish negligence per se when the plaintiff is an employee of the defendant.”

(emphasis added)), cited in Martino, 600 F. App’x at 912.

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“back-and-forth” language does not “sound like the type of decision that Brand

X contemplated.” Rush Univ. Med. Ctr., 763 F.3d at 759.

Melerine, if it reveals anything pertinent to this analysis, reveals the

court’s view that the statute is open to the Secretary’s interpretation. The deci-

sion is, quite simply, the opposite of “judicial precedent holding that the statute

unambiguously forecloses the agency’s interpretation.” Brand X, 545 U.S. at 982–

83. Again, assuming arguendo that its analysis applies to the Act, the Melerine

court was guided by what it deemed “the best reading” of the Act; it did not

hold that its reading “was the only permissible reading.” Brand X, 545 U.S. at

984 (emphases in original). Thus, its interpretation is vulnerable to being sup-

planted by the Secretary’s current interpretation. 15

The decision in Southeast Contractors—a one-paragraph, per curiam opin-

ion—turned, not on any interpretation of § 654(a)(2), but on an interpretation

of a particular OSHA regulation. There, an employee of Southeast, the general

contractor at a construction site, was killed when a subcontractor’s employee

backed a truck into him. OSHA cited Southeast for violating 29 C.F.R. §

1926.601(b)(4), which forbids an “employer” from using any vehicle with an ob-

structed rear view unless the vehicle has a reverse signal alarm or the driver,

when reversing, relies on an observer to signal that it is safe to do so. Se. Con-

tractors, Inc., 1 BNA OSHC 1713 (No. 1445, 1974). Southeast contested the

15 Hensel Phelps contends that Melerine should survive Brand X because it bases its holding

on the legislative history of the Act. We disagree. Review of the opinion demonstrates that, in fact,

it bases its holding on an absence of legislative history. In its scant discussion of the Act, the court

quoted with approval a statement from the district court in Horn that “no legislative history nor

statutory provision has been cited by the Plaintiff to support the proposition that Congress intended

to create a duty on behalf of the employer with respect to persons other than its own employers.”

Melerine, 659 F.2d at 711 (quoting Horn v. C.L. Osborn Contracting Co., 423 F. Supp. 801, 808 (M.D.

Ga. 1976)). The First Circuit, faced with a similar scenario, concluded that a finding like this would

not inoculate the previous interpretation against Brand X: “[T]he [prior] court resorted to [its hold-

ing] only because it could find no sign of a plainly discernible congressional intent. A statutory inter-

pretation constructed on such a negative finding is antithetic to a conclusion that Congress’s intent

was clear and unambiguous.” Dominion Energy, 443 F.3d at 17 (citation omitted). We agree. Cita-

tion to an absence of legislative history does not get Hensel Phelps over the line.

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citation, but the Commission upheld it, finding that Southeast had “used” the

truck within the meaning of the regulation. The Chairman dissented. Relying

on the “general rule of agency . . . that a contractor is not responsible for the acts

of his subcontractors or their employees,” he argued that because the truck’s

operator was an employee of a subcontractor, not of Southeast, Southeast could

not have been “using” the truck. Id. (Moran, Chairman, dissenting). He ex-

plained that the regulation’s language restricts “employers,” so “an employee’s

use of a vehicle in a manner prohibited by the standard equates to such use by

his employer,” making “the critical question . . . whether the tractor driver was

an employee of the respondent or his subcontractor.” Id. The Chairman’s dis-

sent does mention § 654(a)(2), see id. (“[T]his does not necessarily mean that the

respondent is in violation of 29 U.S.C. § 654(a)(2) for every failure to comply with

a safety standard which occurs within its worksite.”), but does not mention it in

connection with this “general rule of agency.” 16 This court, in adopting the Chair-

man’s dissent and reversing the Commission’s ruling, merely approved of the

“general rule that a contractor is not responsible for the acts of his subcontrac-

tors or their employees”; it did not tether that approval to any interpretation of

§ 654(a)(2). Southeast Contractors’ holding is limited to its facts: because the

driver of the truck was not an employee of Southeast, Southeast was not “using”

the truck within the meaning of the regulation. Nothing more.

Horn also does not carry the day. The question raised in that case was

whether a subcontractor’s employee could hold a general contractor liable on a

theory of negligence per se under Georgia law based on the general contractor’s

alleged violation of § 654(a). The court held that the general contractor had no

duty to the plaintiff under that statute because the general contractor was not

the plaintiff’s “employer.” Horn, 591 F.2d at 321. In arriving at this holding, the

16At the time of the Commission’s decision, the Commission was still two years shy of adopt-

ing the Secretary’s interpretation § 654(a)(2).

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court again relied on the reasoning from the Chairman’s dissent in Southeast

Contractors:

He explained that an employer cannot be held in violation of [§ 654(a)]

if [h]is employees are not affected by the noncompliance with a stand-

ard. And if there was ever any doubt as to what he meant by “[h]is

employee” this was eliminated by his reiteration of the general rule

that a contractor is not responsible for the acts of his subcontractors

or their employees. In light of this precedent and because it is con-

ceded that [the plaintiff] was an employee of [the subcontractor], we

must hold this “statutory duty” exception inapplicable.

Id. We find that this discussion does not rise to the level required by Brand X.

The Horn court’s holding does not at all approximate a holding that § 654(a)(2)

unambiguously forecloses the Secretary’s interpretation. At most, the holding

represents the court’s continued application of a previously chosen interpreta-

tion of the statute. We are aware that “[m]istakenly understanding a prior deci-

sion to have” found a statute unambiguous has “significant consequences,”

namely, “erroneously freez[ing] in place our ‘best reading’ of a statute,” even

though Brand X “specifically sought to avoid [such] ‘ossification of large portions

of our statutory law, by precluding agencies from revising unwise judicial con-

structions of ambiguous statutes.’” SSC Mystic Operating Co. v. NLRB, 801 F.3d

302, 319 (D.C. Cir. 2015) (Srinivasan, J., concurring) (internal punctuation

marks omitted) (quoting Brand X, 545 U.S. at 983). We will not apply a broad

general statement of law regarding the scope and application of the Act con-

tained in a negligence decision to the entirely different question of whether the

Secretary has the authority under the Act to cite a controlling employer for vi-

olating an occupational safety and health standard. Cf. Exelon Wind, 766 F.3d

at 397–98 (declining to adopt agency interpretation of a specific regulation that

would be the direct inverse of the court’s previous interpretation of the same

regulation, which flowed from the “plain language” of the regulation). It is our

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“duty to restrict general expressions in opinions in earlier cases to their spe-

cific context.” Int’l Bhd. of Teamsters Local 309 v. Hanke, 339 U.S. 470, 480

n.6 (1950) (plurality opinion) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 399–400 (1821) (Marshall, C.J.)); see also UC Health v. NLRB, 803 F.3d

669, 684 (D.C. Cir. 2015) (Edwards, J., concurring) (“[G]eneral expressions” of

law “cannot be confused with binding precedent,” and “[t]o rely on [such] general

expressions, taken from a case whose context is materially different from the

case before us, flies in the face of the core principles of stare decisis.”).

Barrera is wholly irrelevant. The decision in that case, an appeal by a

defendant found liable for $300,000 of personal injury damages, was that the

trial court correctly refused to instruct the jury that there could be no liability

if the plaintiff was unusually susceptible to emotional disturbance and the de-

fendant lacked knowledge of that susceptibility, because Texas law did not rec-

ognize that defense. Barrera, 653 F.2d at 917–20. The sole reference to the Act

in Barerra comes under the heading “Two Small Matters,” where the court

chided the district court for the (ultimately) harmless error of including in its

jury charge a statement that the Act required the defendant to furnish invitees

a hazard-free place of employment: “[the Act] does not create duties between

employers and invitees, only between employers and their employees; and it has

long been settled in this circuit that, even between these latter, it creates no

private cause of action.” Id. at 920. The decision has no force here.

“Before a judicial construction of a statute, whether contained in a prece-

dent or not, may trump an agency’s, the court must hold that the statute un-

ambiguously requires the court’s construction.” Brand X, 545 U.S. at 985. None

of Southeast Contractors, Horn, Barrera, and Melerine did so. The Secretary’s

reasonable interpretation of the ambiguous statute must therefore govern.

C

“It is a well-settled Fifth Circuit rule of orderliness that one panel of our

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court may not overturn another panel’s decision . . . .” Jacobs v. Nat’l Drug

Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). “If, however, a Supreme

Court decision ‘expressly or implicitly overrules one of our precedents, we have

the authority and obligation to declare and implement this change in the law.”

United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (quoting United

States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976)). We will also revisit precedent

where “an intervening Supreme Court decision fundamentally change[s] the fo-

cus” of the relevant analysis. Robinson v. J&K Admin. Mgmt. Servs., Inc., 817

F.3d 193, 197 (5th Cir. 2016).

Brand X represents such a fundamental change. It requires this court to

look anew at pre-Chevron precedent, guided by Chevron, to determine whether

the Secretary’s construction of his authorizing statute must govern and, if that

construction must govern, it requires the court to disregard our precedent to the

extent it conflicts. See, e.g., Palmetto Prince George Operating, LLC v. NLRB,

841 F.3d 211, 216–17 (4th Cir. 2016) (holding under Brand X that NLRB’s in-

terpretation of the term “independent judgment” found in a provision of the

National Labor Relations Act “supersede[s] our prior cases to the extent the two

conflict”); Hymas v. United States, 810 F.3d 1312, 1320 (Fed. Cir. 2016) (over-

ruling Court of Federal Claims’ prior construction of “public or private agencies

and organizations,” as that phrase is used in the Fish and Wildlife Coordination

Act of 1958, because the phrase was ambiguous and the Court of Federal Claims’

construction conflicted with the Fish and Wildlife Service’s subsequent construc-

tion); Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (over-

ruling precedent following Brand X analysis where the Board of Immigration

Appeals issued a formal agency interpretation of the Immigration and National-

ity Act that disagreed with court’s prior interpretation of the statute); Levy v.

Sterling Holding Co., 544 F.3d 493, 503 (3d Cir. 2008) (overruling prior case that

conflicted with SEC interpretation of its regulations because the prior case “did

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not conclude that [a statute] unambiguously precluded the SEC” from taking

certain action and because it “did not indicate that our reading of [two rules]

flowed unambiguously from their terms”). Here, the Secretary interprets the Act

in a way that directly conflicts with the rules followed in Southeast Contractors,

Horn, Berrera, and Melerine. But Brand X, in tandem with Chevron, instructs

us to defer to the Secretary’s reasonable interpretation that § 654(a)(2) author-

izes him to issue citations to controlling employers at multi-employer

worksites.

D

This brings us to the ultimate question: what of the ALJ’s decision? The

ALJ cited Commission precedent that an employer has a duty under § 654(a)(2)

to protect all employees engaged in a common undertaking, and can be held re-

sponsible for the violations of other employers “where it could reasonably be ex-

pected to prevent or detect and abate the violations due to its supervisory au-

thority and control over the worksite.” ALJ Decision at *5 (quoting Summit Con-

tractors, Inc., 23 BNA OSHC 1196 (No. 05-0839, 2010), rev. denied, 442 F. App’x

570). He nonetheless concluded that he could not apply that precedent to permit

the citation against Hensel Phelps because Melerine mandated otherwise. But

Chevron and Brand X represent a change in the law. Melerine and its underly-

ing cases are obsolete to the extent they conflict with the Secretary’s interpre-

tation of § 654(a)(2). Reversal is warranted.

IV

In sum, we conclude that the Secretary of Labor has the authority under

section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(2),

to issue citations to controlling employers at multi-employer worksites for vio-

lations of the Act’s standards.

The Petition for Review is GRANTED, the Final Order of the Occupa-

tional Safety and Health Review Commission is REVERSED, and this cause is

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No. 17-60543

REMANDED to the Commission for further proceedings consistent with this

opinion.

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