                Case: 15-15720       Date Filed: 03/20/2017      Page: 1 of 5


                                                                  [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-15720
                              ________________________

                                    Agency No. 14-1385



FILM ALLMAN, LLC,

                                                         Petitioner,

versus

SECRETARY OF LABOR,

                                                         Respondent.

                              ________________________

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

                                      (March 20, 2017)

Before ROSENBAUM and JULIE                          CARNES,         Circuit     Judges,     and
SCHLESINGER, * District Judge.

PER CURIAM:

         *
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
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       This case comes before the Court on appeal from the Occupational Safety

and Health Review Commission’s (“Commission”) final decision finding that

Appellant Film Allman LLC (“Film Allman”) willfully violated § 5(a)(1) of the

Occupational Safety and Health Act (“OSHA”), 29 U.S.C. §§ 651-678, which is

often referred to as the “general duty clause.” We find that the Commission did

not err.

       This case involves a tragic train accident that occurred on February 20,

2014, during the first day of shooting for the film “Midnight Rider,” a biopic about

the Allman brothers.1 As the Film Allman crew set up to shoot a scene that

afternoon on the Doctortown train trestle—an active trestle owned by CSX

Transportation (“CSX”) that spans the Altamaha river in Jesup, Georgia—a freight

train barreled through, killing 27-year-old camera assistant Sarah Jones and

seriously injuring several other Film Allman crew members.

       As the Commission explained in its written order, Film Allman and its

supervisors on the set that day failed at every opportunity to ensure the safety of its

employees: Film Allman “knew the railroad tracks were live tracks, in active use

by CSX, and that CSX had refused permission to film on the tracks. . . .

Supervisors Miller, Savin, Sedrish, Schwartz, and Ozier were aware no CSX


       1
          Because the Administrative Law Judge (“ALJ”) in this case completed an extensive and
accurate account of the relevant facts in this case as part of her September 15, 2015, order, and
further, because we write for the parties, we provide only a brief summary here.
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representatives were present at the site to control train traffic while the employees

were on the trestle. None of Film Allman’s supervisors informed the crew and cast

members that CSX would not be on site and would not be controlling train traffic

while they were filming on the tracks.” In short, Film Allman put its employees in

harm’s way, and the results were catastrophic.

      The Secretary of Labor (“Secretary”) conducted a fatality investigation of

the accident at the Doctortown trestle and, based on the findings, issued a Citation

and Notification of Penalty to Film Allman on August 14, 2014.            While the

Secretary cited Film Allman for multiple violations of OSHA, the only citation on

appeal to this Court is Item 1 of Citation No. 2, asserting that Film Allman

committed a willful violation of § 5(a)(1) of OSHA (the general duty clause) by

failing to implement safety procedures for filming on the trestle and thereby

exposing its employees to the hazard of being struck by a train.

      The ALJ affirmed this willful violation and imposed the statutory maximum

penalty of $70,000.00 against Film Allman. Because the Commission declined

Film Allman’s request to review the ALJ’s decision under its discretionary review

power, the ALJ’s decision became a final order of the Commission on October 30,

2015. See 29 U.S.C. § 661(j).

      On appeal to this Court, Film Allman raises three issues. First, Film Allman

challenges the Commission’s decision to uphold the Secretary’s invocation of the


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informer’s privilege to withhold certain portions of witness statements that OSHA

obtained during its investigation. Second, Film Allman challenges the sufficiency

of the evidence underlying the Secretary’s classification of Film Allman’s

violation as willful. And third, Film Allman contests the ALJ’s imposition of the

statutory maximum $70,000.00 penalty against it. We find no error.

      Commission decisions “are entitled to considerable deference on appellate

review.” Fluor Daniel v. Occupational Safety & Health Review Comm'n, 295 F.3d

1232, 1236 (11th Cir. 2002). This Court reviews the Commission’s findings of

fact to determine “whether they are supported by substantial evidence on the

record as a whole; if so, they are deemed conclusive.” J.A.M. Builders, Inc. v.

Herman, 233 F.3d 1350, 1352 (11th Cir. 2000) (reviewing the Commission’s

finding that a violation was “willful”); see 29 U.S.C. § 660(a); see also Niemand

Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir. 1996). “Substantial evidence is

more than a scintilla and is such relevant evidence as a reasonable person would

accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436,

1440 (11th Cir.1997). The Commission’s “finding of willfulness is a finding of

fact.” Fluor Daniel, 295 F.3d at 1236.

      This Court will overturn the legal determinations of the Commission only if

they are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law.” 5 U.S.C. § 706(2)(A); see Fluor Daniel, 295 F.3d at


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1236; Reich v. Trinity Indus., 16 F.3d 1149, 1152 (11th Cir. 1994) (“This court

reviews the Commission’s order to determine whether it is in accordance with the

law.”). The Commission’s imposition of a particular penalty is reviewed under

this standard for an abuse of discretion. D & S Grading Co. v. Sec’y of Labor, 899

F.2d 1145, 1148 (11th Cir. 1990).

      We have carefully reviewed the entirety of the administrative record in this

case, considered the parties’ arguments, and heard oral argument. For all of the

reasons expressed in the Commission’s well-reasoned and thorough decision, we

conclude that the Commission correctly upheld the Secretary’s invocation of the

informer’s     privilege,   substantial   evidence   underlies   the      Commission’s

classification of Film Allman’s violation of § 5(a)(1) as willful, and the

Commission did not abuse its discretion in imposing the statutory maximum

penalty against Film Allman.              We therefore affirm the Commission’s

determination that Film Allman willfully violated § 5(a)(1) of the OSHA, 29

U.S.C. §§ 651-678, and find that the $70,000 statutory maximum penalty is

appropriate.

      AFFIRMED.




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