12-4272-cv
Domino Window Cleaning, Inc. v. Acting Sec’y of Labor

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 17th day of October, two thousand thirteen.

PRESENT: REENA RAGGI,
         CHRISTOPHER F. DRONEY,
              Circuit Judges,
         JOHN F. KEENAN,
              District Judge.*
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DOMINO WINDOW CLEANING, INC.,
                 Petitioner,

                               v.                                                       No. 12-4272-cv

ACTING SECRETARY OF LABOR, UNITED STATES
DEPARTMENT OF LABOR,
                   Respondents.**
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FOR PETITIONER:                                    Wendy Tobias, of Counsel, Cullen & Dykman LLP, New
                                                   York, New York.

FOR RESPONDENTS:                                   M. Patricia Smith, Solicitor of Labor, Joseph M.
                                                   Woodward, Associate Solicitor of Labor for


          *
         The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
          **
               The Clerk of Court is directed to amend the official caption as shown above.
                                   Occupational Safety & Health, Heather R. Phillips,
                                   Counsel for Appellate Litigation, Anne R. Ryder, United
                                   States Department of Labor, Washington, D.C.

       Petition for review of an order of the Occupational Safety and Health Review

Commission.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review of the order issued on August 16, 2012, is

DISMISSED for lack of jurisdiction.

       Petitioner Domino Window Cleaning, Inc. (“Domino”), petitions for review of an

order of the Occupational Safety and Health Review Commission (“Commission”) finding

it in violation of the general duty clause of § 5(a)(1) of the Occupational Safety and Health

Act of 1970 (“Act”), see 29 U.S.C. § 654(a)(1), as well as N.Y. Comp. Codes R. & Regs. tit.

12 § 21 (“Rule 21”), and imposing a $4,200 penalty. We assume the parties’ familiarity with

the underlying facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to dismiss for lack of jurisdiction.

       Under § 11(a) of the Act, when “persons adversely affected or aggrieved” by a

Commission ruling seek judicial review, “[n]o objection that has not been urged before the

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

objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 660(a); see

D.A. Collins Constr. Co. v. Sec’y of Labor, 117 F.3d 691, 694 (2d Cir. 1997) (noting that

§ 11(a) is jurisdictional limitation).    In its petition for discretionary review to the

Commission, Domino failed to challenge the administrative law judge’s determination that

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it violated the general duty clause under § 5(a)(1) of the Act. In its petition for review to this

court, Domino has not argued that extraordinary circumstances justified its failure to raise

its § 5(a)(1) argument before the Commission. Accordingly, we lack jurisdiction to review

this claim. See D.A. Collins Constr. Co., Inc. v. Sec’y of Labor, 117 F.3d at 695.

       Even if we had jurisdiction, we would conclude from a review of the record that the

Commission’s § 5(a)(1) violation ruling is supported by substantial evidence and not

arbitrary and capricious. See 29 U.S.C. § 660(a) (stating that reviewing court must affirm

Commission’s findings of fact if “supported by substantial evidence on the record considered

as a whole”); 5 U.S.C. § 706(2)(A) (stating that reviewing court may not set aside agency

decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law”).

       We agree with the parties that the Commission’s finding of a Rule 21 violation is

dictum. The Commission’s order did not purport to impose a penalty for violation of that

rule or even suggest that the Commission had authority to do so. Rather, the order addressed

Rule 21 only in rejecting Domino’s argument that compliance with that rule was a defense

to liability under § 5(a)(1). See Aug. 18, 2012 Order, Special App. 11. (“[C]ompliance with

an applicable state law does not create an exemption from the general duty clause.”). The

order then went on to state that, in any event, Domino did not comply with Rule 21. In light

of the order’s former conclusion, which Domino does not challenge, the latter conclusion that

Domino violated Rule 21 was not necessary to resolving the issue before the Commission,

i.e., whether Domino violated the general duty clause under § 5(a)(1). The latter conclusion

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thus is dictum, and we lack jurisdiction to review it. See McCord ex rel. Bean v. Agard (In

re Bean), 252 F.3d 113, 118 (2d Cir. 2001).

       In urging otherwise, Domino argues that the Commission’s Rule 21 determination will

have preclusive effect in an action proceeding against it in state court. Because Domino only

raised this argument in its reply brief, we deem it forfeited. See McCarthy v. SEC, 406 F.3d

179, 196 (2d Cir. 2005) (stating that “arguments not raised in an appellant’s opening brief,

but only in his reply brief, are not properly before an appellate court”). Even if we were to

consider the argument, however, it would fail. As respondents acknowledge, because the

Commission’s Rule 21 determination is dictum, it does not have preclusive effect in the state

court proceeding. See In re Bean, 252 F.3d at 118 (identifying as one of four elements for

finding of collateral estoppel requirement that issue was necessary to support valid and final

judgment on merits and concluding that dictum did not have collateral estoppel effect).

       We have considered Domino’s remaining arguments in its petition for review and

conclude that they are without merit. The petition is DISMISSED for lack of jurisdiction.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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