Petition for Writ of Certiorari — Riverdale Mills Corporation, Petitioner v. Julie A. Su, Acting Secretary of Labor
Supreme Court briefSep 21, 2023
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------RIVERDALE MILLS CORPORATION,
Petitioner,
v.
SECRETARY OF LABOR,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------TRAVIS W. VANCE
Counsel of Record
FISHER & PHILLIPS LLP
227 W. Trade Street, Suite 2020
Charlotte, NC 28202
Telephone: (704) 334-4565
Facsimile: (704) 334-9774
E-mail: tvance@fisherphillips.com
DANIEL E. FARRINGTON
FISHER & PHILLIPS LLP
7501 Wisconsin Avenue,
Suite 1220W
Bethesda, MD 20814
Telephone: (301) 880-5030
Facsimile: (301) 880-5031
E-mail:
dfarrington@fisherphillips.com
Counsel for Petitioner
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
Federal agencies, including the Occupational and
Safety Health Administration (“OSHA”), exist and are
limited by the authority delegated to them by Congress. Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992)
(quoting Stark v. Wickard, 321 U.S. 288, 309–310
(1944)). When agencies engage in actions that overreach their Congressionally delegated powers and infringe on individual rights, Congress has empowered
the courts to determine the lawfulness of the agency’s
actions. Id. “Whether on the record as a whole there is
substantial evidence to support agency findings is a
question which Congress has placed in the keeping of
the Courts of Appeals.” Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 491 (1951). Accordingly, this
Court has established clear precedent delineating
courts of appeals’ review of an administrative law
judge’s factual finding as requiring meaningful review
of the record evidence as a whole.
A fundamental requirement of Fifth Amendment
due process rights is the opportunity to be heard in a
meaningful manner. Furthermore, because the Federal
Rules of Evidence apply to Occupational Safety and
Health Review Commission hearings, an administrative law judge has the power to “exclude relevant evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.”
The questions presented are:
1. Whether the United States Court of Appeals
correctly applied the substantial evidence standard as
articulated by this Court’s prior precedent.
ii
QUESTIONS PRESENTED—Continued
2. Whether the United States Court of Appeals
correctly applied Auer deference pursuant to the
analysis set out by this Court in Kisor v. Wilkie, 139
S. Ct. 2400 (2019).
3. Whether the admission of a prior out-of-court
statement of a non-managerial employee, which constituted the sole evidence in support of an Occupational Safety and Health Administration citation in
an administrative adjudication, is a violation of an
employer’s due process rights or was reversible error
under Federal Rule of Evidence 403.
iii
CORPORATE DISCLOSURE STATEMENT
Pursuant to this Court’s Rule 29.6, Riverdale Mills
Corporation has no parent corporation, and no publicly
held company owns 10% or more of its stock.
STATEMENT OF RELATED PROCEEDINGS
This case arises from and is related to the following proceedings in the Occupational Health and Safety
Review Commission and the United States Court of
Appeals for the District of Columbia:
•
Secretary of Labor v. Riverdale Mills Corporation, Occupational Health and Safety Review
Commission, Docket No.: 19-1566 & 19-2011,
Notice of Final Order entered by the Commission on August 19, 2022.
•
Riverdale Mills Corporation v. Secretary of
Labor, United States Court of Appeals for
the District of Columbia Circuit, Docket No.:
22-1226, judgment entered June 23, 2023.
There are no other proceedings in the state or
federal trial or appellate courts directly related to this
case within the meaning of this Court’s Rule
14.1(b)(iii).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
CORPORATE DISCLOSURE STATEMENT ......
iii
STATEMENT OF RELATED PROCEEDINGS ....
iii
TABLE OF CONTENTS ......................................
iv
TABLE OF AUTHORITIES ................................. vii
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS BELOW .............................................
1
STATEMENT OF JURISDICTION ......................
2
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED .................
2
PRELIMINARY STATEMENT .............................
2
STATEMENT OF THE CASE ...............................
4
I.
II.
Background ................................................
4
A. Docket No. 19-1566 (the “Safety Case”).....
5
B. Docket No. 19-2011 (the “Health Case”) ....
7
i. Citation 1, Item 3 ...........................
7
ii. Citation 2, Item 1 ...........................
9
Proceedings Below ..................................... 11
REASONS FOR GRANTING THE PETITION .....
12
I. The Court of Appeals’ Decision Conflicts with
Supreme Court Precedent’s Substantial
Evidence Standard Because No Meaningful
Review was Conducted .................................. 12
v
TABLE OF CONTENTS—Continued
Page
A. The Court of Appeals Erroneously Made
Inferential Leaps to Hold that Substantial Evidence Existed to Support the
ALJ’s Finding that RMC Violated 29
C.F.R. § 1910.147(c)(6)(i) ....................... 14
B. The Court of Appeals Erroneously Made
Inferential Leaps to Hold that Substantial Evidence Existed to Support the
ALJ’s Finding that RMC Violated 29
C.F.R. § 1910.1200(g)(11) ..................... 16
C. Allowing the Court of Appeals’ Decision
to Stand Would Gut the Substantial
Evidence Standard and Federal Agencies’
Burden of Proof at Trial ........................ 18
II.
The Court of Appeals Erred in Granting
the Secretary’s Unreasonable Interpretation of 29 C.F.R. § 1910.1200(g)(11), Applying
Auer Deference Without Applying the
Appropriate Analysis .................................. 19
III.
The Court’s Decision Permits Administrative Agencies to Rely on a Prior Out-ofCourt Statement of a Non-Managerial
Employee as the Sole Evidence in Support
of a Citation .................................................... 24
A. Admission of the Written Statement
Violated RMC’s Due Process Rights ..... 25
B. Admission of the Written Statement
Was Abuse of Discretion Federal Rule of
Evidence 403 .......................................... 29
CONCLUSION..................................................... 31
vi
TABLE OF CONTENTS—Continued
Page
APPENDIX
Appendix A: United States Court of Appeals for
the District of Columbia Circuit, Judgment,
June 23, 2023 ................................................... App. 1
Appendix B: Occupational Safety and Health
Review Commission, Decision and Order,
July 1, 2022 ...................................................... App. 7
Appendix C: Fifth Amendment to the United
States Constitution ........................................ App. 84
Appendix D: 29 U.S.C. § 660(a) ......................... App. 85
Appendix E: 29 C.F.R. § 1910.147 – The Control
of Hazardous Energy (lockout/tagout) .......... App. 87
Appendix F: 29 C.F.R. § 1910.1200(g)(11),
(h)(1) ............................................................... App. 89
Appendix G: 29 C.F.R. § 1910.1020(e)(1)(i) ....... App. 90
Appendix H: Federal Rule of Evidence 403 ...... App. 91
vii
TABLE OF AUTHORITIES
Page
CASES
Arnett v. Kennedy, 416 U.S. 134 (1974) ......................26
Auer v. Robbins, 519 U.S. 452 (1997) .... 4, 11, 19-21, 23, 24
Bowles v. Seminole Rock & Sand Co., 325 U.S.
410 (1945) ................................................................20
Brock v. L.R. Willson Sons, Inc., 773 F.2d 1377
(D.C. Cir. 1985) ........................................................18
Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th
Cir. 2003) .................................................................16
Century Steel Erectors, Inc. v. Dole, 888 F.2d
1399 (D.C. Cir. 1989) ...............................................18
Christopher v. SmithKline Beecham Corp., 567
U.S. 142 (2012) .................................................. 20, 24
Consol. Edison Co. of New York v. N.L.R.B., 305
U.S. 197 (1938) ........................................................13
DeNucci Constructors, L.L.C. v. Occupational
Safety & Health Rev. Comm’n, No. 20-60710,
2021 WL 2843852 (5th Cir. July 7, 2021) ...............15
Dickinson v. Zurko, 527 U.S. 150 (1999)............... 12-15
Goldberg v. Kelly, 397 U.S. 254 (1970) ................. 25, 26
Gonzales v. Oregon, 546 U.S. 243 (2006) ....................23
Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400,
3 L. Ed. 2d 1377 (1959) ...........................................26
Int’l Union of Elec., Radio & Mach. Workers,
AFL–CIO v. NLRB, 502 F.2d 349 (D.C. Cir.
1974) ..........................................................................2
viii
TABLE OF AUTHORITIES—Continued
Page
Irving v. United States, 909 F.2d 598 (1st Cir.
1990) ........................................................................12
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ........... 20, 21, 24
Marshall v. Milwaukee Boiler Mfg. Co., Inc., 626
F.2d 1339 (7th Cir. 1980) .........................................27
Mathews v. Eldridge, 424 U.S. 319 (1976) .......... 26, 27
N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 82
S. Ct. 853, 7 L. Ed. 2d 829 (1962) ...........................16
N.L.R.B. v. Columbian Enameling & Stamping
Co., 306 U.S. 292 (1939) ..........................................13
P. Gioioso Sons v. Occupational Safety, 115 F.3d
100 (1st Cir. 1997) ...................................................12
Richardson v. Perales, 402 U.S. 389 (1971) .......... 26, 28
Riverdale Mills Corp. v. Sec’y of Lab., No. 221226, 2023 WL 4146272 (D.C. Cir. June 23,
2023) ..........................................................................1
Savina Home Indus., Inc. v. Sec’y of Lab., 594
F.2d 1358 (10th Cir. 1979) .................................... 27
Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S. 379 (2008) ........................................................29
U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d
1126 (9th Cir. 2011) ...................................................2
United States v. Abel, 469 U.S. 45 (1984) ...................29
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ..................................................25
ix
TABLE OF AUTHORITIES—Continued
Page
STATUTES AND REGULATIONS
5 U.S.C. § 556(d) ..........................................................28
28 U.S.C. § 1254(1) ........................................................2
29 U.S.C. §§ 651 et seq. ...............................................12
29 U.S.C. § 660(a) .............................................. 2, 11, 12
29 U.S.C. § 666 ............................................................27
29 C.F.R. § 1910.1020(e)(1)(i) ................................. 2, 17
29 C.F.R. § 1910.1200(a)(1) .........................................23
29 C.F.R. § 1910.1200(e)(1)(i) .....................................22
29 C.F.R. § 1910.1200(g)(11) ............. 2, 3, 10, 16, 19, 20
29 C.F.R. § 1910.1200(g)(6)(iv) ...................................22
29 C.F.R. § 1910.1200(h)(1) ................................ 2, 8, 25
29 C.F.R. § 1910.147 .....................................................2
29 C.F.R. § 1910.147(c)(6)(i).................................... 7, 14
29 C.F.R. § 2220.71 ............................................... 29, 30
RULES
S. Ct. R. 10(a) ..............................................................16
S. Ct. R. 10(c)...............................................................16
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Riverdale Mills Corporation (“RMC”)
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the District of Columbia Circuit. The Court of Appeals’
review of the administrative decision failed to apply
the substantial evidence standard required by this
Court’s precedent. The Court of Appeals also did not
consider any aspect of the ALJ’s erroneous decision to
admit a prior, out-of-court written statement by an
hourly employee as the sole support for OSHA’s citation. The lack of meaningful review sanctioned the
ALJ’s clear departure from the accepted and usual
course of judicial proceedings and conflicts with Supreme Court precedent.
---------------------------------♦---------------------------------
OPINIONS BELOW
The decision by the United States Court of Appeals for the District of Columbia Circuit is unreported
as Riverdale Mills Corp. v. Sec’y of Lab., No. 22-1226,
2023 WL 4146272 (D.C. Cir. June 23, 2023) and is attached in the Appendix (“App.”) at 1. The Administrative Law Judge’s decision, which became the final
decision of the Occupational Safety and Health Review
Commission is attached at App. at 7.
---------------------------------♦---------------------------------
2
STATEMENT OF JURISDICTION
The United States Court of Appeals for the District of Columbia Circuit entered judgment on June 23,
2023. This Court has jurisdiction under 29 U.S.C.
§ 660(a) and 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
The following relevant constitutional, statutory,
and regulatory provisions involved are set forth at
App. at 84-91.
•
Fifth Amendment to the United States Constitution
•
29 U.S.C. § 660(a)
•
29 C.F.R. § 1910.147
•
29 C.F.R. § 1910.1200(g)(11)
•
29 C.F.R. § 1910.1200(h)(1)
•
29 C.F.R. § 1910.1020(e)(1)(i)
•
Federal Rule of Evidence 403
---------------------------------♦---------------------------------
PRELIMINARY STATEMENT
Administrative agencies “are creatures of statute,
bound to the confines of the statute that created
them. . . .” U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641
F.3d 1126, 1135 (9th Cir. 2011) (quoting Int’l Union of
Elec., Radio & Mach. Workers, AFL–CIO v. NLRB, 502
3
F.2d 349, 354 n. * (D.C. Cir. 1974)). Thus, “[w]hen Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of
those agencies is circumscribed by the authority
granted.” Stark, 321 U.S. 288 at 309. When a federal
agency like OSHA oversteps its statutorily granted authority and infringes on the rights of an individual, the
Courts have the authority to determine whether such
agency actions are a lawful exercise of their administrative power. Lujan, 504 U.S. at 578. Through enactment of the Administrative Procedure Act (“APA”),
Congress has specifically delegated to the courts of appeals the responsibility of determining whether an
agency’s factual findings are supported by substantial
evidence. Universal, 340 U.S. at 491. It is, therefore, imperative that the courts of appeals follow this Court’s
well-established precedent of conducting a meaningful
review of the record evidence as a whole.
Here, the ALJ made factual findings that were not
supported by substantial evidence. Instead, the ALJ’s
decision depended on evidence that was either not
within the record or proven at trial. In determining
whether substantial evidence existed to support the
ALJ’s decision, the United States Court of Appeals for
the District of Columbia Circuit (“Court of Appeals”)
failed to apply the requisite meaningful review. The
Court of Appeals’ affirmation of the ALJ’s decision creates an unduly relaxed standard for federal agencies
in prosecuting their cases.
Furthermore, the Court of Appeals erred when it
granted the Secretary’s interpretation of 29 C.F.R.
4
§ 1910.1200(g)(11), applying Auer deference without
first conducting the appropriate analysis. The plain
language of the regulation required that OSHA actually request, or demand, the SDSs it was seeking. Thus,
the regulation is not genuinely ambiguous and the Secretary’s interpretation of the regulation is unreasonable. Auer deference should not have been applied to the
Secretary’s interpretation of the regulation.
Additionally, the admission of a prior out-of-court
statement by a non-managerial employee during
OSHA’s interview of the employee and written by
OSHA’s compliance officer violated RMC’s due process
rights under the Fifth Amendment. The written statement was inconsistent with documentary evidence and
the employee was never called to testify at trial, depriving RMC of any ability to cross-examine the employee and to challenge the veracity of his statement.
The written statement should also have been excluded
pursuant to Federal Rule of Evidence 403 and the
ALJ’s failure to do so was an abuse of discretion.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
I.
Background
Petitioner Riverdale Mills Corporation manufactures welded wire mesh fabrics for use in various industries at its facility in Northbridge, Massachusetts.
As part of the manufacturing process, the wire mesh is
coated with PVC on a production line comprised of a
series of machinery and is hundreds of feet in length
5
(the “coating line”). The machines on the coating line
have varying functions and operations, including rolling the wire mesh, coating the wire mesh in product,
and baking or curing the wire mesh. Each of these
machines has specific and unique lockout/tagout
(“LOTO”) procedures to de-energize and lockout the
power source(s).
Throughout RMC’s existence, RMC has long engaged in free speech activities dedicated to protecting
its interests against federal agency overreach.
Throughout RMC’s history, RMC’s founder, James
Knott, Senior, was a well-known critic of federal agencies including the United States Occupational Safety
and Health Administration and United States Environmental Protection Agency. RMC and Mr. Knott’s
stance with respect to federal agencies’ authoritative
overreach were well-known at the time of the subject
OSHA inspections and influenced OSHA’s actions towards RMC. Throughout the trial and appeal of this
case, the Secretary has sought to retroactively fill in
the evidentiary gaps and justify OSHA overstepping
its statutory and regulatory authority. Where the Administrative Law Judge (“ALJ”) made unreasonable
inferences from these evidentiary gaps, the DC Circuit
Court of Appeals merely “rubber-stamped” the ALJ’s
factual findings.
A. Docket No. 19-1566 (the “Safety Case”)
On April 3, 2019, Arthur Talmadge was working as
a spindle operator for RMC. On that date, Talmadge
6
ignored his training by bypassing a clearly marked
machine guard (a closed gate) while the machine was
still operating. Talmadge had no reason to enter the
area behind the closed, yellow gate, which bore a sign
stating, “DANGER. DO NOT ENTER THIS AREA
WHILE MACHINE IS RUNNING.” No coating line operator ever opened the gate to perform work while the
machine was running. After bypassing the gate,
Talmadge reached his hand into the coating line to adjust the mesh moving through the line just upstream
of the drive rollers. Upon doing so, Talmadge’s hand
and arm became caught in the drive roller, resulting in
his injuries. OSHA opened an inspection as a result of
the accident.
During the inspection, RMC produced a LOTO log.
Two entries on that log indicated that RMC employees
Tom Borden and Edgar Melendez performed LOTO on
a “C-Spindle” on April 26, 2019. The LOTO log did not
state what exactly had been done on that date. At the
time of the entries, Borden was RMC’s maintenance
supervisor. Borden testified that the April 26, 2019 entries on the log indicated that LOTO was applied, and
the C-Spindle was serviced. However, Borden could not
remember the specific work that was performed on the
C-Spindle on that date. Borden also testified that the
term “C-Spindle” on the log meant “coating line spindle.” Critically, however, there were not one, but three
coating line spindles on the coating line.
No evidence was presented regarding which of the
three, if any, was the “big spindle” identified in Citation
1, Item 2.
7
After the investigation, the Secretary issued Citation 1, Item 2, alleging a violation of 29 C.F.R.
§ 1910.147(c)(6)(i), which provision provides that, “The
employer shall conduct a periodic inspection of the energy control procedure at least annually to ensure that
the procedure and the requirements of this standard
are being followed.” The Secretary alleged that RMC
violated this standard by failing to “conduct[ ] a periodic inspection of Energy Control Procedure RMC-022
for the Big Spindle” during the three years prior to
April 26, 2019.
B. Docket No. 19-2011 (the “Health Case”)
i. Citation 1, Item 3
The OSHA inspection giving rise to Docket No. 192011 relates to an inspection of the same worksite arising out of a complaint regarding alleged air-contaminant hazards (the “Health Case”). At some point in
April 2019, OSHA received a complaint that alleged
that RMC “does not provide access to medical supplies
such as . . . a first aid kit . . . ” and that employees “may
be exposed to poor indoor air quality from powder coating and galvanizing chemicals due to inadequate ventilation on the factory floor.”
Pursuant to the anonymous air quality complaint,
on June 27, 2019, compliance officer Anne Hart conducted an opening conference in which she requested
“any [Safety Data Sheets] not already provided.” There
was no specific request for safety data sheets (“SDSs”)
related to the coating or galvanizing line at the
8
opening conference. After the opening conference, Hart
conducted a walkaround inspection of RMC’s facility.
Hart also later returned to RMC and collected air samples.
As part of her investigation, Hart interviewed a
non-managerial employee, Louis Trinidad. According
to Trinidad’s written statement and Hart’s testimony,
admitted over objection, Trinidad said he had not received chemical training and had had a dermal exposure to a chemical while working. Trinidad’s written
statement was inconsistent in that, despite his allegation that he had not received training, he knew the
industry name for the chemical, what personal protective equipment (“PPE”) to wear to protect himself from
related hazards, and what to do in event of exposure.
Moreover, a document signed by Trinidad on “Right to
Know/Hazard Communication” training when he
onboarded, as well as another document Trinidad had
received and reviewed, evidenced that Trinidad had
been trained on the hazards associated with the chemical. Trinidad was not available to testify for trial; he
was no longer an employee of RMC at that time and
could not be located.
Based only on Trinidad’s out-of-court statement,
which was written by Compliance Officer Hart, OSHA
issued Citation 1, Item 3 of the Health Case. The citation item alleged that RMC violated 29 C.F.R.
§ 1910.1200(h)(1) and that “hazardous chemicals were
used in the coating line work area, such as ‘soap’, fluid
bed chemicals, washer chemicals, and cooling chemicals” without training for its employees.
9
ii. Citation 2, Item 1
The timing of OSHA’s “request” for SDSs is of
crucial importance. On June 17, 2019, RMC provided
OSHA with several SDSs. On that same date, OSHA
responded that they “appreciate[d] that [RMC] provided all the Safety Data Sheets associated with the
power coating and galvanizing operations at Riverdale
Mills.” Thereafter, on June 27, 2019, Compliance Officer Hart, gave RMC an “Employer Data & Information Request” that requested “SDSs”—specifically,
“any not already provided.” Hart’s inspection was specifically opened as a result of a complaint about aircontaminant hazards. Thus, as of June 27, 2021, RMC
had already fully complied with OSHA’s requests for
SDSs related to potential air contaminants. At the very
least, RMC believed that it had fully complied with
OSHA’s requests for SDSs, as confirmed by OSHA’s
email.
OSHA’s first explicit request for SDSs beyond the
scope of the air contaminants complaint upon which
the inspection was opened, occurred on August 26,
2019. On that date, and for the first time, Hart asked
for SDSs for “all materials used on the galvanizing and
coating lines” by email. However, Hart’s email was sent
to an email account of Mr. Knott, the deceased founder
of RMC. At the time that Hart sent her email, no one
was using or monitoring Mr. Knott’s email. On the
same date that Hart sent her email to Mr. Knott’s unused email account, Hart received an email informing
her that “no delivery notification was sent by the destination server[.]” Despite that alert, Hart did not
10
follow up with anyone at RMC regarding the SDSs or
her August 26, 2019 email.
Thereafter, in September of 2019, during the closing conference of the Health Inspection, OSHA made
counsel for RMC aware that it was seeking additional
SDSs. The SDSs were then provided, more than two
months before the end of the six-month inspection period and while Hart was still conducting investigation
activities. OSHA did not request any additional SDSs
during the inspection period.
Despite providing OSHA with all SDSs related to
the coating and galvanizing lines once OSHA had requested them, OSHA issued Citation 2, Item 1 of the
Health Case, which incorrectly alleged that RMC violated 29 C.F.R. § 1910.1200(g)(11) by not making all
SDSs requested readily available to the compliance
officer. Specifically, although OSHA had never actually
requested the SDSs for the galvanizing and coating
lines, Citation 2, Item 1, citing 29 C.F.R.
§ 1910.1200(g)(11), alleges that RMC did not make the
SDSs for the hazardous materials used on the galvanizing and coating lines for Chemicals 4, 5, and 6 available on 6/27/19 or 8/26/19.1
1
Chemicals 4, 5, and 6 are chemicals that were used in
RMC’s galvanizing and coating lines, the identities and SDSs
were filed under seal in the lower courts.
11
II.
Proceedings Below
Administrative Law Judge Sharon D. Calhoun entered her Decision and Order on the 1st day of July
2022. By Notice of Final Order entered by the Commission on August 22, 2022, the Decision and Order became a final order of the Commission on August 19,
2022.
Pursuant to 29 U.S.C. § 660(a), RMC appealed the
Decision and Order with respect to Citation 1, Item 2
of the Citation and Notification of Penalty issued for
Inspection No. 1391183, Docket No. 19-1566, and to
Citation 1, Item 3 and Citation 2, Item 1 of the Citation
and Notification of Penalty issued for Inspection No.
1411675, Docket No. 19-2011, to the United States
Courts of Appeals for the District of Columbia.
The Court of Appeals denied the petition for review, holding that substantial evidence supported the
ALJ’s order. However, the Court of Appeals’ decision
did not conduct a meaningful review of the record evidence as a whole in abrogation of Supreme Court precedent. The decision also improperly applied Auer
deference to the Secretary’s interpretation of a regulation and failed to address any aspect of the ALJ’s erroneous decision to admit a prior, out-of-court, written
statement by an hourly employee as the sole support
for the OSHA citation.
---------------------------------♦---------------------------------
12
REASONS FOR GRANTING THE PETITION
I.
The Court of Appeals’ Decision Conflicts
with Supreme Court Precedent’s Substantial
Evidence Standard Because No Meaningful
Review was Conducted.
OSHA was created pursuant to The Occupational
Safety and Health Act of 1970 (the “Act”). Irving v.
United States, 909 F.2d 598, 603 (1st Cir. 1990) (citing
29 U.S.C. §§ 651 et seq.). OSHA’s congressionally
granted authority, therefore, is limited to the confines
of the Act. Stark, 321 U.S. at 309. Congress has specifically delegated to the courts of appeals the responsibility of determining whether an agency’s factual
findings are supported by substantial evidence. Universal, 340 U.S. at 491. Thus, this Court has consistently reiterated the importance of the courts of
appeals’ meaningful review of an agency’s factual findings. See Dickinson v. Zurko, 527 U.S. 150, 162 (1999).
Judicial review of a federal administrative
agency’s findings of fact are governed by the Administrative Procedure Act. Pursuant to 29 U.S.C. § 660(a),
to be conclusive, the Occupational Safety and Health
Review Commission’s (“OSHRC”) findings of fact must
be “supported by substantial evidence on the record
considered as a whole.”2 “Substantial evidence” has
been defined by this Court as requiring “more than a
2
“The OSH Act, see 29 U.S.C. § 660(a), incorporates the basic
judicial review provisions of the Administrative Procedure Act.”
P. Gioioso Sons v. Occupational Safety, 115 F.3d 100, 107-08 (1st
Cir. 1997).
13
mere scintilla[,]” such that “a reasonable mind might
accept as adequate to support a conclusion.” Universal,
340 U.S. at 477 (quoting Consol. Edison Co. of New York
v. N.L.R.B., 305 U.S. 197, 229 (1938)).
“The APA requires meaningful review[.]” Dickinson, 527 U.S. at 162. Accordingly, creation of suspicion
as to the existence of the fact to be established is insufficient to constitute substantial evidence. Id. Instead,
“it must be enough to justify, if the trial were to a jury,
a refusal to direct a verdict when the conclusion sought
to be drawn from it is one of fact for the jury.” Id. at 477
(quoting N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939) (cleaned up)).
In Universal, this Court evaluated the effect of the
APA on judicial review of administrative decisions.
Review of the APA’s legislative history demonstrated
that Congress intended to “impose on courts a responsibility which has not always been recognized.” Id. at
489. The courts of appeals must, therefore, evaluate
whether substantial evidence exists to support the
ALJ’s findings of fact on the record as a whole. Id. at
490. In recognition of Congress’s placement of this review within the purview of the courts of appeals, this
Court held that it would intervene to review the correctness of applying the substantial evidence standard
when it was “misapprehended or grossly misapplied.”
Id. at 491.
The substantial evidence standard was reiterated
in Dickinson, where “the Court stressed the importance of not simply rubber-stamping agency
14
factfinding.” Dickinson, 527 U.S. at 162. Instead, it requires a “stricter judicial review of agency factfinding[.]” Id. Judicial review of federal administrative
decisions, therefore, “requires judges to apply logic and
experience to an evidentiary record . . . ” and there
must be “judicial confidence in the fairness of the factfinding process.” Id. at 163 (citing Universal, 340 U.S.
at 489).
The Court of Appeals’ review of the ALJ’s decision
in this case does not meet the substantial evidence
standard established by this Court. Where this Court
has emphasized the importance of meaningful review,
the Court of Appeals’ decision merely “rubberstamped” the ALJ’s decision despite glaring evidentiary gaps.
A. The Court of Appeals Erroneously
Made Inferential Leaps to Hold that
Substantial Evidence Existed to Support the ALJ’s Finding that RMC Violated 29 C.F.R. § 1910.147(c)(6)(i).
In finding that a reasonable mind may have found
that the Big Spindle is the same as the C-Spindle, the
Court of Appeals relied on the following facts: (1) Borden testified that the C-Spindle refers to the coating
line spindle; (2) “the coating line feeds mesh only to the
biggest of the three spindles near it[;]” (3) Borden was
“probably” referring to a certain spindle and referred
to Big Spindle and C-Spindle “somewhat interchangeably[.]” (Op. at 3). Such a review and holding do not
15
evince the requisite “judicial confidence in the fairness
of the factfinding process.” Dickinson, 527 U.S. at 163.
At the hearing of this case, the Secretary failed to
establish that the specific equipment referenced in the
citation item (Big Spindle) was the same as the equipment referenced on the employer’s lockout/tagout log
(C-Spindle). Additionally, the Secretary did not establish what lockout/tagout procedure was used by Borden
on the date at issue when multiple lockout/tagout procedures would have applied to different parts of the
coating line. In fact, OSHA’s compliance officer had
testified that he didn’t know if “the same procedure
for the big spindle lockout can be used to lockout a different machine” because there were “multiple energy
control procedures that were provided.” (J.A., Vol. 2,
p. 263).
Despite these obvious evidentiary gaps, the ALJ
found that the Secretary had proven its case by a preponderance of the evidence by making inferential leaps
from evidence that was not within the record. On appeal, the Court of Appeals simply accepted the ALJ’s
factual finding and made inferences such as finding
that Borden was “probably” referring to a certain spindle and referred to Big Spindle and C-Spindle “somewhat interchangeably. Pursuant to this Court’s
precedent, such leaps in inferences do not constitute
substantial evidence that the Big Spindle was the CSpindle or that RMC in fact violated the standard as
set out in OSHA’s citation. DeNucci Constructors,
L.L.C. v. Occupational Safety & Health Rev. Comm’n,
No. 20-60710, 2021 WL 2843852, at *2 (5th Cir. July 7,
16
2021) (“Contentions based on speculation or derived
from inferences upon inferences ‘do not add support
to a finding of substantial evidence.’ ”) (quoting Brown
& Root, Inc. v. NLRB, 333 F.3d 628, 639, 641 (5th Cir.
2003)); N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 406,
82 S. Ct. 853, 854, 7 L. Ed. 2d 829 (1962) (stating that
to constitute substantial evidence, “surmise or suspicion, even though reasonable, is not enough.”).
By ignoring these evidentiary gaps, the Court of
Appeals has sanctioned the ALJ’s clear departure from
the accepted and usual course of judicial proceedings.
S. Ct. R. 10(a), (c). This is in clear conflict with the requirements for the substantial evidence standard set
out by this Court.
B. The Court of Appeals Erroneously
Made Inferential Leaps to Hold that
Substantial Evidence Existed to Support the ALJ’s Finding that RMC Violated 29 C.F.R. § 1910.1200(g)(11).
The Court of Appeals continued its lack of meaningful review when it held that RMC was required to
produce safety data sheets for all chemicals used in the
coating and galvanizing lines because the request for
SDSs “not already provided” occurred during a tour
that included the coating and galvanizing lines. (Op.
at 3). This conclusion was in error. The evidence in the
record was that OSHA’s compliance officer’s request
for safety data sheets “not already provided” occurred
at the opening conference for air contaminants, not
17
during the tour. (JA Vol. 2 at 276). If the Court of Appeals had conducted the requisite meaningful review
of the record evidence as a whole, the court would not
have made such an error.
Moreover, when applying the plain meaning of
29 C.F.R. § 1910.1020(e)(1)(i), Compliance Officer Hart
was required to “request” the SDSs, which would have
triggered RMC’s obligation to produce them. However,
the evidence as a whole demonstrated that Hart had
failed to request them. The Court of Appeals did not
consider the plain meaning of the term “request” as
used in the regulation in light of the record evidence.
Instead, the Court of Appeals merely accepted the
ALJ’s conclusion and then made an inaccurate factual
finding that Hart had “requested” safety data sheets
“not already provided” during the tour, rather than
during the opening conference for the air contaminant
complaint.
The term “request” is not defined within the standard. The term’s regular meaning is defined as “the act
or an instance of asking for something” and “the state
of being sought after: DEMAND[.]” Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/
request (Accessed 10 Aug. 2023). Meaningful review of
the record evidence as a whole would have revealed to
the Court of Appeals that there is no evidence that
OSHA’s compliance officer sufficiently requested SDSs
unrelated to air contaminants. Without a request or
demand for those specific SDSs, it belies common sense
that RMC would have known to provide OSHA with
SDSs unrelated to the complaint regarding air
18
contaminants and for which the Health Case inspection was opened, unless those SDSs were requested.
The evidence at trial was clear that OSHA’s compliance officer simply did not.
C. Allowing the Court of Appeals’ Decision
to Stand Would Gut the Substantial Evidence Standard and Federal Agencies’
Burden of Proof at Trial.
The effect of allowing the Court of Appeals’ decision to stand would be to permit the Secretary to forgo
his burden of proving his citations in all future prosecutions. Century Steel Erectors, Inc. v. Dole, 888 F.2d
1399, 1402 (D.C. Cir. 1989) (“The Secretary has the
burden of proving all the elements of the OSHA violation with which an employer is charged.”) (citing Brock
v. L.R. Willson Sons, Inc., 773 F.2d 1377, 1383 (D.C. Cir.
1985)). By failing to conduct a meaningful review of the
record evidence as a whole, the Court of Appeals sanctioned the ALJ’s clear departure from the accepted
and usual course of judicial proceedings. The Court of
Appeals accepted the ALJ’s factual inferential leaps
despite the ALJ’s reliance on multiple facts that were
never proven at trial, including but not limited to
OSHA’s failure to present adequate evidence that the
cited “Big Spindle” is in fact the “C-Spindle” referenced
in the lockout/tagout log and that OSHA’s compliance
officer requested SDSs unrelated to air contaminants.
The Court of Appeals’ application of the substantial
evidence standard in this case is in direct contradiction
to this Court’s precedent which has stressed the
19
Congressional intent apparent in the APA: that courts
of appeals must conduct meaningful review of the
record evidence as a whole.
Permitting the continued application of the Court
of Appeals’ version of the substantial evidence standard
allows courts of appeals to merely “rubber-stamp” ALJ
factual findings, rendering any appeal to the courts
meaningless. The decision’s effect is to essentially give
OSHA officials, and all other federal government agencies prosecuting cases, an incredibly relaxed legal
standard by which they must prove their citations.
This is in abrogation of the accepted and usual course
of judicial proceedings. It would permit federal agencies to sloppily present its case and allow agency action
and appellate judicial review to unearth any facts to
make inferential leaps in support of a citation.
Inferences on inferences do not constitute substantial evidence and a meaningful review of the record evidence as a whole, as required by this Court’s
precedent, would have led the Court of Appeals to find
that no reasonable person could have accepted the
ALJ’s holding.
II.
The Court of Appeals Erred in Granting
the Secretary’s Unreasonable Interpretation of 29 C.F.R. § 1910.1200(g)(11), Applying Auer Deference Without Applying the
Appropriate Analysis.
The ALJ and the Court of Appeals erroneously deferred to the Secretary’s interpretation of 29 C.F.R.
20
§ 1910.1200(g)(11) to hold that Compliance Officer
Hart had actually requested the SDSs unrelated to air
contaminants. As discussed above, the plain meaning
of the term “request” within 29 C.F.R. § 1910.1200(g)(11)
required that OSHA’s compliance officer actually ask
for the specific SDSs unrelated to air contaminants.
Even if this Court finds that the plain language of the
term “request” is ambiguous, the ALJ and Court of
Appeals’ deference to the Secretary’s interpretation of
the term within the regulation is unwarranted because
the regulation is not genuinely ambiguous, and the
Secretary’s interpretation is unreasonable.
Pursuant to Auer or Seminole Rock, this Court has
held that courts should defer to an agency’s reasonable
interpretation of its own genuinely ambiguous regulations. Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019) (citing Auer v. Robbins, 519 U.S. 452 (1997); Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410 (1945)). To determine whether Auer deference applies, a court is to
determine whether the regulation is genuinely ambiguous based on the text, structure, history, and purpose
of the regulation. Kisor, 139 S. Ct. at 2424. In addition,
“a court must make an independent inquiry into
whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416
(citing Christopher v. SmithKline Beecham Corp., 567
U.S. 142, 155 (2012)). If there is more than one reasonable meaning, the agency’s interpretation is still required to be reasonable. Id. at 2415. Only after a court
has gone through this analysis would Auer deference
apply.
21
Without undergoing the analysis set out by this
Court, the ALJ and Court of Appeals relied upon the
Secretary’s interpretation of the term “request” within
the regulation to find that Hart’s request for “any
[Safety Data Sheets] not already provided” was sufficiently a request for SDSs related to the coating and
galvanizing lines. (Op. at 3). In addition, the Court of
Appeals failed to undertake the proper Auer analysis
and relied upon an erroneous fact that was contrary to
the evidence. Id. (“[B]ecause that statement was made
during a tour that included the coating line and galvanizing line, Riverdale was required to produce safety
data sheets for all chemicals used in the coating line
and galvanizing line—not just possible air contaminants.”).
The ALJ and Court of Appeals erred by applying
Auer deference to the Secretary’s interpretation of the
term “request” within the regulation. The regulation is
simply not genuinely ambiguous and “[t]he regulation
. . . just means what it means . . . ” Kisor, 139 S. Ct. at
2415. First, as discussed above, the plain meaning of
the term “request” requires an individual to “demand”
what they are asking for. The Secretary in his brief to
the Court of Appeals contended that Hart’s “broad”
and “general” request for SDSs “not already provided”
during the opening conference of an air contaminant
complaint inspection was a sufficient “request” for
those specific SDSs. (See Sec’y Br. at 47). The Court
of Appeals improperly accepted the Secretary’s interpretation of the regulation to find that Hart’s request
for “any [SDSs] not already provided” meant that Hart
22
had actually requested SDSs for the coating and galvanizing lines when, in fact, Hart requested SDSs “not
already provided” during an opening conference for air
contaminants.
Second, the structure, history, and purpose of the
regulation demonstrates that the regulation is not genuinely ambiguous. The regulation requires “[a] list of
the hazardous chemicals known to be present using a
product identifier that is referenced on the appropriate
safety data sheet (the list may be compiled for the
workplace as a whole or for individual work areas) . . . ” 29 C.F.R. § 1910.1200(e)(1)(i) (emphasis
added). The structure of the regulation itself allows for
a differentiation between the availability of safety data
sheets based on the workplace as a whole versus for
individual work areas. Thus, when Hart asked for
SDSs “not already provided,” after conducting an opening conference for air contaminants, this did not constitute a request for SDSs that also included those for
the coating and galvanizing lines. The term “upon request” appears within the regulation eight (8) times.
When considering the use of that term within the regulation, it is apparent that “request” means “demand.”
For example, 29 C.F.R. § 1910.1200(g)(6)(iv) requires
that, “[t]he chemical manufacturer or importer shall
also provide distributors or employers with a safety
data sheet upon request.” Thus, a distributer or employer would have to request, or demand, the SDS for
the specific chemical provided by the chemical manufacturer or importer in order to receive the SDS for
that chemical. The distributor or employer cannot
23
request SDSs for chemicals “not already provided”
within the broader array of the potentially multitude
of different types of chemicals received. Such an interpretation would lead to confusion and be contrary to
the entire purpose of the regulation: “to ensure that
the hazards of all chemicals produced or imported are
classified, and that information concerning the classified hazards is transmitted to employers and employees. . . .” 29 C.F.R. § 1910.1200(a)(1).
In promulgating the final rule on November 25,
1983, OSHA stated that, “Many of the decisions to be
made were of a policy, rather than technical, nature.”
Hazard Communication, 48 FR 53280-01. Thus, the
Secretary’s interpretation of the term “request” within
the regulation is not one that is within the agency’s
specialized or technical knowledge. This further undercuts any application of Auer deference to the Secretary’s interpretation of the regulation. Gonzales v.
Oregon, 546 U.S. 243, 269 (2006) (“The deference here
is tempered by the Attorney General’s lack of expertise
in this area . . . ”).
Moreover, the Secretary’s interpretation and the
ALJ and Court of Appeals’ deference to the Secretary’s
interpretation of the regulation is unreasonable.
Where the regulation allows differentiation between
the chemicals used within an individual work area and
the workplace as a whole, the Secretary’s interpretation of the term “upon request” would allow OSHA inspectors and administrative agency investigators as a
whole to vaguely and broadly ask for documents “not
already provided” when they are actually seeking a
24
specific set of documents. The agency could then, despite the failure to adequately clarify what it is seeking, issue a citation against the employer for failing to
understand what the inspector was seeking in the first
place. The Secretary’s “interpretation is ‘plainly erroneous or inconsistent with the regulation[ ]’ ” and
therefore, “[d]eference is undoubtedly inappropriate[.]”
SmithKline Beecham, 567 U.S. at 155 (quoting Auer,
519 U.S. at 461). Thus, the Court of Appeals and ALJ
erred when it accepted the Secretary’s interpretation
of the regulation by applying Auer deference without
conducting the appropriate Auer analysis. Auer deference did not apply in the first instance as the regulation is not genuinely ambiguous. Kisor, 139 S. Ct. at
2418 (“When it applies, Auer deference gives an agency
significant leeway to say what its own rules mean. . . .
But that phrase ‘when it applies’ is important—because it often doesn’t.”).
This Court should grant this petition pursuant to
its supervisory power. Allowing the Court of Appeals’
decision to stand would permit administrative agencies to vaguely ask for a specific document it seeks,
then punish the employer for the agency’s failure to
actually request or demand what it is seeking.
III. The Court’s Decision Permits Administrative
Agencies to Rely on a Prior Out-of-Court
Statement of a Non-Managerial Employee as
the Sole Evidence in Support of a Citation.
The Secretary relied on a single out-of-court statement made by a non-managerial employee to prosecute
25
the citation alleging that RMC violated 29 C.F.R.
§ 1910.1200(h)(1). Notably, the statement was not
written by that employee. Instead, it was written by
OSHA’s compliance officer during an OSHA inspection. The employee was never called to testify at trial
and RMC did not have the opportunity to cross-examine him. This written statement was admitted over
RMC’s objection. The ALJ’s failure to exclude this written statement violated RMC’s due process rights and
was in violation of the Federal Rule of Evidence 403.
The Court of Appeals’ decision failed to even mention
these issues.
A. Admission of the Written Statement Violated RMC’s Due Process Rights.
The Fifth Amendment provides that “[n]o person
shall be . . . deprived of life, liberty or property, without
due process of law . . . ” U.S. Const. amend. V. A fundamental requirement of due process is the opportunity
to be heard in a meaningful manner. Goldberg v. Kelly,
397 U.S. 254, 267 (1970). Thus, this Court has recognized that “[i]n almost every setting where important
decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine
adverse witnesses.” Id. at 269. As stated by the Court:
For two centuries past, the policy of the AngloAmerican system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief
that no safeguard for testing the value of
human statements is comparable to that
26
furnished by cross-examination, and the
conviction that no statement (unless by
special exception) should be used as
testimony until it has been probed and
sublimated by that test, has found increasing strength in lengthening experience.
Greene v. McElroy, 360 U.S. 474, 497, 79 S. Ct. 1400,
1414, 3 L. Ed. 2d 1377 (1959) (quoting 5 Wigmore on
Evidence (3d ed. 1940) § 1367) (emphasis added).
It is well-settled law that procedural due process
applies to adjudicative administrative proceedings.
Richardson v. Perales, 402 U.S. 389, 401 (1971). The
procedural requirements that must be met in adjudicative administrative proceedings vary based on the
circumstances and “a determination of the precise
nature of the government function involved as well as
of the private interest that has been affected by governmental action.” Id. at 389 (quoting Goldberg, 397
U.S. at 262-63); Arnett v. Kennedy, 416 U.S. 134, 155
(1974). The Supreme Court in Mathews v. Eldridge,
424 U.S. 319 (1976), set out the following factors to
determine whether due process requirements have
been met prior to deprivation of a property interest:
First, the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value,
if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function involved and the
fiscal and administrative burdens that the
27
additional or substitute procedural requirement would entail.
Id. at 335.
The admission of a hearsay, prior out-of-court
statement made by a non-managerial employee and
written by OSHA’s own employee, when used as the
sole basis in support of a citation, should not be permitted. At the very least, such unreliable evidence
should not be sufficient to constitute substantial evidence of the alleged violation. Should such procedure
be allowed, employers like RMC would be deprived of
its property interest and future business opportunities
due to the impact upon its reputation. Furthermore,
the impact of an OSHA citation far outreaches a simple
monetary fine. It potentially opens employers to repeat
citations with higher penalties, identification as a severe violator, inspections by other federal agencies, and
creates potential for collateral litigation. Criminal penalties are also provided for by the Occupational Safety
and Health Act. 29 U.S.C. § 666. Thus, circuit courts
have acknowledged the severity of OSHA’s penalties,
describing OSHA administrative proceedings as
“quasi-criminal.” See Savina Home Indus., Inc. v. Sec’y
of Lab., 594 F.2d 1358 (10th Cir. 1979); Marshall v.
Milwaukee Boiler Mfg. Co., Inc., 626 F.2d 1339, 1342
(7th Cir. 1980) (“While the present proceedings are
civil in nature, there are at least quasi-criminal aspects.”).
The risk of an erroneous deprivation of RMC’s
property interest is substantial. Where the statement
28
itself was contradictory in nature, was not written by
the employee but by an investigator who was looking
to support her case, and was the sole evidence used to
support the citation, the inability to cross-examine
the employee creates a substantial risk of erroneous
deprivation. Unlike in Richardson, the credibility and
veracity of the statement were the heart of the issue
in this case. Yet there was no opportunity to crossexamine the employee. Furthermore, RMC could not
subpoena the employee as his whereabouts were unknown. The burden is on the Secretary to prove his
case at trial and, where the Secretary seeks to impose
penalties upon an employer, a meaningful and fair
administrative hearing requires that such unreliable
written statements be excluded. Otherwise, employers
like RMC would lose their protected property rights
under the Fifth Amendment.
There would be little to no administrative burden
by requiring that federal agencies, like OSHA, produce
the witness at trial under these circumstances. Where
the Secretary seeks to prove its citation based on a single written statement, the Secretary would be required
to subpoena one individual.
Furthermore, the APA provides that evidence received must be reliable. 5 U.S.C. § 556(d). The circumstances surrounding the admission of such a written
statement all contribute to its obvious unreliability.
Thus, employers should have the right “to conduct
such cross-examination as may be required for a full
and true disclosure of the facts.” Id. The Commission’s
failure to abide by due process requirements and the
29
protections afforded by the APA should not be allowed
to stand. Without the ability or requirement that more
is required of administrative prosecutions, the result
of which may deprive an individual of its property interest, employers across the country like RMC are
stripped of their due process rights.
B. Admission of the Written Statement Was
Abuse of Discretion Federal Rule of Evidence 403.
The ALJ erred in admitting the written statement
at issue and the Court of Appeals undertook no analysis or determination of this issue. The Federal Rules
of Evidence apply to OSHRC hearings. 29 C.F.R.
§ 2220.71. Pursuant to Federal Rule of Evidence 403,
“The court may exclude relevant evidence if its probative value is substantially outweighed by . . . unfair
prejudice . . . ” Although “[a] district court is accorded
wide discretion in determining the admissibility of
evidence under the Federal Rules[,]” the lower court’s
Rule 403 ruling is improper if the court abused its discretion. Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S. 379, 384 (2008) (quoting United States v. Abel, 469
U.S. 45, 54 (1984)).
The ALJ abused her discretion by admitting the
written statement without any analysis or consideration of the statement’s prejudicial effect. The ALJ
solely relied upon the fact that RMC’s counsel was present during OSHA’s interview of the employee. However, the presence of RMC’s counsel at the interview
30
should not have affected the ALJ’s Rule 403 analysis.
Instead, the ALJ and the Court of Appeals should have
considered the surrounding circumstances bearing on
whether admission of the written statement was unfairly prejudicial to RMC. Moreover, the employee’s
written statement was contradicted by other documentary evidence admitted during trial. The evidence
showed that RMC had complied with the standard by
providing training and information to that employee.
However, because the employee was never called to
testify at trial, RMC did not have any opportunity to
cross-examine him. On appeal, the Court of Appeals
simply accepted the statement’s admissibility, also
without any analysis, and found that the employee
“said he had not received any training on hazardous
chemicals.” (Op. at 3).
Where the unfair prejudice clearly outweighed the
probative value of the written statement, the Court of
Appeals’ failure to discuss the ALJ’s abuse of discretion ignores the requisite application of 29 C.F.R.
§ 2220.71 and the Federal Rules of Evidence to
OSHRC hearings.
---------------------------------♦---------------------------------
31
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
This the 21st day of September, 2023.
Respectfully submitted,
TRAVIS W. VANCE
FISHER & PHILLIPS LLP
227 W. Trade Street, Suite 2020
Charlotte, NC 28202
Telephone: (704) 334-4565
Facsimile: (704) 334-9774
E-mail:
tvance@fisherphillips.com
DANIEL E. FARRINGTON
FISHER & PHILLIPS LLP
1401 New York Avenue, NW,
Suite 400
Washington, DC 20005
Telephone: (202) 429-3707
Facsimile: (202) 978-3788
E-mail:
dfarrington@fisherphillips.com
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.