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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 14-12061
                        Non-Argument Calendar
                      ________________________

                           Agency No. 13-0709



SECRETARY OF LABOR,

                                             Petitioner,

versus

COPOMON ENTERPRISES, LLC,

                                             Respondent.



                      ________________________

                Petition for Review of a Decision of the
           Occupational Safety and Health Review Commission
                      ________________________

                           (February 9, 2015)



Before HULL, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       The Secretary of Labor petitions for review of the Occupational

Safety and Health Review Commission’s (“Commission’s”) order

granting summary judgment in favor of Copomon Enterprises, LLC. 1

The Commission concluded that the Secretary’s citation against

Copomon was barred by the doctrine of res judicata. 2 No reversible

error has been shown; we deny the petition and affirm the Commission’s

decision.

       We review the Commission’s factual findings to ensure they are

supported by substantial evidence in the record. Daniel Int’l Corp. v.

Occupational Safety & Health Review Comm’n, 683 F.2d 361, 363-64

(11th Cir. 1982). Substantial evidence is more than a mere scintilla but

less than a preponderance. Hale v. Bowen, 831 F.2d 1007, 1011 (11th


1
  Because the Commission did not direct review of the Administrative Law Judge’s (“ALJ’s”)
decision granting Copomon’s motion for summary judgment, the ALJ’s decision became the
final order of the Commission. See 29 C.F.R. § 2200.90(d).
2
  The Commission also concluded, in the alternative, that the Secretary’s citation was barred by
collateral estoppel. Because we conclude that the Secretary’s citation is precluded by res
judicata, we do not reach the collateral estoppel issue.
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Cir. 1987). We review legal determinations by the Commission to

determine if they are arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law. 5 U.S.C. § 706; Fund for

Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). “Barring a

claim on the basis of res judicata is a determination of law” that we

review de novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238

(11th Cir. 1999).

     Copomon distributes and markets hair straightening and smoothing

products used by professional hair stylists. Following an Occupational

Safety and Health Act (“OSHA”) inspection of one of Copomon’s

facilities in 2011, the Secretary issued Copomon a citation (“Citation

1”). Among other things, Citation 1 alleged a serious violation of 29

C.F.R. § 1910.1048(m)(3)(i) for failing to ensure that containers of

formaldehyde-containing products -- including, but not limited to

Natural Keratin Smoothing Treatment, Natural Keratin Smoothing

Treatment Blonde, and Express Blow Out -- contained labels warning of

the hazards associated with formaldehyde exposure.
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       Copomon contested the citation. 3 The parties ultimately reached a

settlement agreement, which was approved by the ALJ and became part

of the Commission’s final order. Under the terms of the Settlement

Agreement, Copomon agreed to “revise the labeling on all hair

smoothing/hair straightening products at issue in this case to include the

language agreed upon by the parties at the April 25, 2012 voluntary

mediation in compliance with 29 C.F.R. § 1910(m)(3)(i).” The language

to which the parties agreed was this language:

       Hazard Warning

       OSHA Compliant. Product is safe if used as directed. If not
       used as directed may cause irritation and sensitization of the
       skin and respiratory system, eye and throat irritation, acute
       toxicity, and carcinoma per IARC. Physical and health
       hazard information is readily available at [Company address
       and phone number] and MSDS.
Following the ALJ’s order, Copomon revised its product labels in

compliance with the approved terms of the Settlement Agreement.


3
 Although Copomon contends that its products do not contain formaldehyde in and of
themselves, Copomon concedes that the products named in Citation 1 are “capable of releasing
formaldehyde into the air, under reasonably foreseeable conditions of use, at concentrations
reaching or exceeding 0.1 ppm” and, thus, are subject to regulation under 29 C.F.R.
1910.1048(m) (2011).
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       A few months later, following another inspection of Copomon’s

facilities, the Secretary issued Copomon a second citation (“Citation 2”).

Citation 2 alleged a “repeat” violation 4 of 29 C.F.R.

§ 1910.1048(m)(3)(ii) for failing to “ensure that the labels of

formaldehyde-containing products such as but not limited to Express

Blow Out, Natural Keratin Smoothing Treatment Blonde and Natural

Keratin Smoothing treatment were updated to indicate that the products

contained formaldehyde.” Citation 2 noted that Copomon had already

been “cited for a violation of this [OSHA] standard or its equivalent

standard” in Citation 1.

       Copomon contested Citation 2. Among other things, Copomon

asserted -- based on the final order approving the Settlement Agreement

reached about Citation 1 -- that Citation 2 was barred by res judicata.




4
 The Secretary later moved successfully to amend the classification of the violation in Citation 2
from “repeat” to “other-than-serious,” but did not otherwise alter the alleged violation
description.
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The ALJ granted summary judgment in favor of Copomon, concluding

that Citation 2 was precluded. 5

       “Res judicata bars the filing of claims which were raised or could

have been raised in an earlier proceeding.” Ragsdale, 193 F.3d at 1238.

A claim is barred by earlier litigation if these four elements are met:

“(1) there is a final judgment on the merits; (2) the decision was

rendered by a court of competent jurisdiction; (3) the parties, or those in

privity with them, are identical in both suits; and (4) the same cause of

action is involved in both cases.” Id. “[I]f a case arises out of the same

nucleus of operative fact, or is based upon the same factual predicate, as

a former action, . . . the two cases are really the same ‘claim’ or ‘cause

of action’ for purposes of res judicata.” Id. at 1239.

       The Commission determined that each of these four elements was

met and, as a result, that Citation 2 was barred by res judicata. We

agree. The parties do not dispute that elements (2) and (3) are met.

About element (1), the Commission’s order approving the parties’

5
 The ALJ also denied the Secretary’s motion for summary judgment. The Secretary does not
challenge this denial on appeal.
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settlement agreement constituted a final judgment on the merits. See

Juris v. Inamed Corp., 685 F.3d 1294, 1340 (11th Cir. 2012) (“For

purposes of determining res judicata, an order approving a settlement

agreement provides a final determination on the merits.”).

     Element (4) is also satisfied. In both cases, the Secretary alleged

that Copomon failed to ensure that containers of formaldehyde-

containing products (specifically Natural Keratin Smoothing Treatment,

Natural Keratin Smoothing Treatment Blonde, and Express Blow Out)

reflected adequately (1) that the products contained formaldehyde and

(2) the hazards of formaldehyde exposure. Thus, both cases arise out of

the same nucleus of operative fact and are based upon the same factual

predicate. That the Secretary initially categorized Citation 2 as a

“repeat” violation based on Copomon’s earlier citation (in Citation 1) of

an “equivalent standard” further evidences that both cases involve the

same cause of action.

     On appeal, the Secretary does not challenge the Commission’s

determination on the four elements and does not otherwise contend that
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these four elements have not been shown. Instead, the Secretary argues

that the Commission should have applied a modified res judicata

analysis, based on our decision in Norfolk Southern Corp. v. Chevron,

371 F.3d 1285 (11th Cir. 2004).

     In Norfolk Southern, we said that where parties consent to a

voluntary dismissal with prejudice under Fed.R.Civ.P. 41, “a somewhat

modified form of res judicata applies to the written settlement agreement

upon which such dismissal is predicated, if one exists.” 371 F.3d at

1291. Under this modified res judicata analysis, we determine whether a

claim is precluded from future litigation by looking at the terms of the

settlement agreement itself (as interpreted based on traditional principles

of contract law), instead of by looking at the claims in the original

complaint. Id. at 1289. “In determining the res judicata effect of an

order of dismissal based upon a settlement agreement, we should also

attempt to effectuate the parties’ intent. The best evidence of that intent

is, of course, the settlement agreement itself.” Id.



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     Even if we assume -- without deciding -- that a modified res

judicata analysis similar to that discussed in Norfolk Southern is

appropriate in this case, Citation 2 would still be precluded. Based on

the express terms of the settlement agreement, the parties intended -- and

agreed -- that the mutually agreed-upon language for Copomon’s revised

product labels did, in fact, comply with 29 C.F.R. 1910.1048(m)(3)(i).

And, among other things, compliance with 29 C.F.R.

1910.1048(m)(3)(i) required that the product label identify the hazardous

chemical that is the subject of the warning (in this case, formaldehyde).

See 29 C.F.R. 1910.1048(m)(3)(i) (2011) (requiring hazard warning

labels to comply with 29 C.F.R. § 1910.1200(f)).

     The crux of Citation 2, meanwhile, is that Copomon’s revised label

(which contained the mutually agreed-upon language) failed to identify

properly that Copomon’s products (the same three products identified in

Citation 1) contained formaldehyde. Because the settlement agreement

already established that the agreed-upon label language satisfied the

requirement that the hazardous chemical be identified properly, and
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because the settlement agreement evidences the parties’ intent that the

agreement may be used for other OSHA actions, we conclude that

Citation 2 is precluded under the modified version of the res judicata

doctrine.6

       PETITION DENIED; AFFIRMED.




6
 Given the facts of this case -- where Copomon revised its product labels in compliance with 29
C.F.R. 1910.1048(m)(3)(i) and with the terms of the approved Settlement Agreement -- nothing
evidences that the application of res judicata to bar Citation 2 restricts improperly the Secretary’s
enforcement discretion.
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