18-1282-ag
Sec’y of Labor v. N.E. Precast LLC
                                  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 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 12th day of July, two thousand nineteen.

PRESENT:           RALPH K. WINTER,
                   JOSÉ A. CABRANES,
                   REENA RAGGI,
                                Circuit Judges.



R. ALEXANDER ACOSTA, SECRETARY OF LABOR,

                             Petitioner,                 18-1282-ag

                             v.

NORTH EASTERN PRECAST LLC, MASONRY
SERVICES, INC. DBA MSI,

                             Respondents.



FOR PETITIONER:                                       SCOTT GLABMAN, Senior Appellate
                                                      Attorney, Heather R. Phillips, Counsel for
                                                      Appellate Litigation, and Edmund C.
                                                      Baird, Acting Associate Solicitor for
                                                  1
                                                           Occupational Safety and Health, United
                                                           States Department of Labor, for Kate S.
                                                           O’Scannlain, Solicitor of Labor,
                                                           Washington, D.C.

FOR RESPONDENTS:                                           JONATHAN W. GREENBAUM, Coburn &
                                                           Greenbaum, PLLC, Washington, D.C.

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

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is hereby DENIED.

        The Secretary of Labor (the “Secretary”) seeks review of a February 28, 2018 decision of the
Occupational Safety and Health Review Commission (the “Commission”). See N.E. Precast, LLC, 26
BNA OSHC 2275, 2018 WL 1309480 (Nos. 13-1169 & 13-1170, Feb. 28, 2018). On appeal, the
Secretary takes issue with the Commission’s conclusion that two of the regulatory violations for
which the Secretary cited Respondents North Eastern Precast LLC and Masonry Services, Inc. dba
MSI are duplicative. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.

         We will uphold the Commission’s decision unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Under this standard, we
review the Commission’s legal conclusions de novo, deferring as appropriate to the Secretary’s
reasonable interpretation of the [Occupational Safety and Health] Act. We must uphold the
Commission’s findings of fact if they are supported by substantial evidence.” Solis v. Loretto-Oswego
Residential Health Care Facility, 692 F.3d 65, 73 (2d Cir. 2012) (citation omitted).

         The Secretary first contends that the Commission lacks the authority to vacate proven
regulatory violations as duplicative absent a showing that penalizing an employer for both violations
would violate its due process rights. To determine whether an employer has made such a showing,
the Secretary contends, the Commission must engage in “a fact-intensive inquiry . . . based on
multiple factors.” Secretary Br. 16. In the Secretary’s view, the Commission exceeded its authority by
emphasizing one factor—that “both violations could be abated by the same . . . method,” J.A. 110—
in lieu of the multi-factor approach the Secretary favors.

        As an initial matter, the Secretary does not appear to question that the Commission has
authority to review violations to determine whether they are duplicative, nor that it can vacate those
violations that it determines are duplicative. Indeed, such views would likely come as a surprise to
the Commission, which has been analyzing violations for duplicativeness and vacating duplicative
violations—apparently without incident or complaint from the Secretary—since the mid-1970’s. See

                                                  2
J.A. 135–42 (Appendix A to Dissent of Commissioner Cynthia L. Attwood) (listing cases). The
Secretary has provided no reason, and we see none, to conclude that the Commission’s general
practice in this respect exceeds its statutory authority.

        Insofar as the Secretary contends that the Commission lacked authority to employ a specific
analytical framework—the single-abatement standard—we reject his position. As Commissioner
Attwood observed in her dissent, the Commission’s precedent in this area is “confusing and
conflicting.” Id. at 117; see also id. at 118–19 & n.10 (describing four different approaches the
Commission has applied to determine whether violations are duplicative). In our view, certain of the
Commission’s past decisions support its focus in this case on whether the same abatement—and
only that abatement—could have remedied both regulatory deficiencies. See id. at 135–41 (listing
Commission decisions, some of which apply the single-abatement standard). This is not to say that
we approve the single-abatement standard to the exclusion of the other frameworks Commissioner
Attwood identified in her dissent. But we cannot conclude that the Commission exceeded its
authority by choosing to apply this approach here.

        The Secretary’s final line of attack fares little better. He contends that the Commission’s
decision is “arbitrary and capricious” because the Commission departed from its prior precedent
concerning whether two regulatory violations are duplicative. The Secretary is of course correct that
“[a]n agency . . . acts in an arbitrary and capricious manner if [it] departs from its own precedent
without a reasoned explanation.” New York & Atl. Ry. Co. v. Surface Transp. Bd., 635 F.3d 66, 71 (2d
Cir. 2011) (internal quotation marks omitted); see also, e.g., FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009) (“An agency may not . . . depart from a prior policy sub silentio or simply disregard
rules that are still on the books.”). As we noted above, however, the Commission has applied several
different standards in determining whether violations are duplicative.1 And the Secretary points to
no authority suggesting that the decision to apply certain aspects of muddled and inconsistent
jurisprudence can be described as an “arbitrary and capricious” departure from settled precedent.

       We have reviewed all of the arguments raised by the Secretary on appeal and find them to be
without merit. For the foregoing reasons, the petition for review is DENIED.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk of Court




    1
     We disagree with the Secretary’s suggestion that the Commission clearly rejected the same
abatement standard in H.H. Hall Constr. Co., 10 BNA OSHC 1042 (No. 76-4765, 1981). As the table
of decisions attached to Commissioner Attwood’s dissent shows, the Commission has continued to
apply this standard even after Hall. See J.A. 135–41 (listing cases).

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