Ames Construction, Inc. v. MSHR, et al

Filing

OPINION filed [1369191] (Pages: 9) for the Court by Judge Williams [11-1303]

USCA Case #11-1303

Document #1369191

Filed: 04/17/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 5, 2012

Decided April 17, 2012
No. 11-1303

AMES CONSTRUCTION, INC.,
PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
AND SECRETARY OF LABOR,
RESPONDENTS
On Petition for Review of a Decision of the
Federal Mine Safety and Health Review Commission
Mark N. Savit argued the cause for petitioner. With him
on the briefs were Caroline A. Davidson-Hood and Gregory
Louer.
Robin A. Rosenbluth, Senior Attorney, U.S. Department
of Labor, argued the cause for respondent. With her on the
brief was W. Christian Schumann, Counsel. John T. Sullivan,
Attorney, Mine Safety and Health Review Commission,
entered an appearance.
Before: GARLAND, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: This case arises out of
a tragic accident in which William Kay, an 81-year-old truck
driver for Bob Orton Trucking Co., was killed by a large pipe
that fell off of his truck during a delivery of such pipes to the
Kennecott Utah Copper Mine. Petitioner Ames Construction,
Inc. is an independent contractor hired by the mine’s owner,
Kennecott Utah Copper Corporation, to construct a tailings
dam; it was responsible for receiving deliveries of materials
such as the pipes in question. It is uncontested that Kay
himself was negligent and equally uncontested that Ames was
not his employer. Neither the Secretary nor the Commission
relies on any finding of negligence on the part of Ames. The
Mine Safety and Health Administration (“MSHA”) cited
Ames for a violation of the Federal Mine Safety and Health
Act of 1977, Pub. L. No. 95-164, 91 Stat. 1290 (codified at 30
U.S.C. §§ 801 et seq.).
On review, the Federal Mine Safety and Health Review
Commission upheld the citation. It found that Ames, though
not the principal operator of the mine, “supervised a process,
the unloading of pipes,” and that as a supervisor of that
process it could be liable without fault for violations occurring
in the process. See Secretary of Labor v. Ames Construction,
Inc., Docket No. WEST 2009-693-M, 2011 WL 3794313, at
*4-5 (FMSHRC July 25, 2011). Ames challenges that
conclusion both as a matter of statutory interpretation and on
the facts. Though the statutory structure invites considerable
confusion, we find the Commission’s conclusion consistent
with the act, and we find substantial evidence in support of its
necessary factual findings.

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* * *
We first summarize the facts and procedural history. On
October 29, 2008 Kay arrived at the Kennecott Tailings
Facility to deliver nine large (50-foot long, 3000-pound) pipes
to be used in the tailings dam that Ames was building.
Pursuant to Kennecott’s internal policy and an MSHA order
relating to Kennecott’s use of unbermed roads, Kay and his
truck were escorted by three Ames employees to an unloading
location, where he was told to “wait right here” with one of
the Ames employees (Juan Florez) while the others went to
get a forklift. A safety document from the pipe manufacturer,
found in Kay’s truck, warned that the straps on the pipes
should not be loosened or removed until the load had been
checked for stability. At a point when Florez’s attention was
on the road, Kay began loosening the straps on the truck; one
of the pipes fell and crushed him.
An MSHA inspector investigated the accident and cited
Ames for violating 30 C.F.R. § 56.9201, which prohibits the
unloading of supplies in a hazardous manner. MHSA Citation
No. 6328009 (Dec. 11, 2008), J.A. 1. Although the ALJ who
initially considered Ames’s challenge sustained the citation on
the theory that Orton (Kay’s employer) was Ames’s
subcontractor, see Secretary of Labor v. Ames Construction,
Inc., 32 FMSHRC 347, 350-53 (2010), we need not dwell on
that theory, as the Secretary repudiated it before the
Commission. The latter, as we said, affirmed on the view that
as supervisor of “a process, the unloading of pipes,” Ames
was liable without regard to fault for violations occurring in
that process. Ames petitioned this court for review under 30
U.S.C. § 816(a)(1).

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* * *
Section 110(a) of the act creates liability for operators of
coal or other mines:
The operator of a coal or other mine in which a violation
occurs of a mandatory health or safety standard or who
violates any other provision of this chapter, shall be
assessed a civil penalty by the Secretary. . . .
30 U.S.C. § 820(a). Section 3(d) of the act defines who is an
operator:
“operator” means [1] any owner, lessee, or other person
who operates, controls, or supervises a coal or other mine
or [2] any independent contractor performing services or
construction at such mine.
30 U.S.C. § 802(d) (bracketed numbers added). In Secretary
of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir.
2006), we adopted a regulatory usage characterizing the first
set of operators—those who operate, control, or supervise a
mine—as “production-operators.” Id. at 152; see 30 C.F.R.
§ 45.2(d) (definition of “production-operator”).
Ames concedes that it is an operator under the second
part of § 3(d), as an “independent contractor performing
services.” See Petitioner’s Br. 10. But it contends that
“[o]perators . . . are not all alike,” id., and that only
“production-operators” can be cited for violations without
fault. It is quite true that our cases finding § 110(a) to create
liability without regard to fault have applied that proposition
exclusively to production-operators. See, e.g., International
Union, United Mine Workers of America v. FMSHRC, 840
F.2d 77, 83-84 (D.C. Cir. 1988) (“UMWA”). Indeed, we said
recently: “[A]n entity cannot be held liable [under § 110(a)]
unless it ‘operates, controls, or supervises’ the mine,”

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Secretary of Labor v. National Cement Co., 573 F.3d 788, 795
(D.C. Cir. 2009) (emphasis added), incorporating verbatim the
first part of § 3(d)’s definition. But we need not decide here
whether liability without fault could ever be assigned to an
operator satisfying only the second part of § 3(d). The
Commission concluded, and the Secretary argues here, only
that independent contractors who exercise supervision or
control—in other words, ones also covered by the productionoperator portion of § 3(d)—are so liable. As long as the
Secretary’s and Commission’s conclusions as to Ames’s
exercise of supervision or control are sustainable, Ames’s
argument is of no avail.
Putting aside for the moment the purely factual aspect of
the Commission’s finding, we address Ames’s conceptual
attack on its liability as one “who operates, controls, or
supervises a . . . mine” under § 3(d). First, it says that the
phrase “the operator” in § 110(a) (emphasis added) must refer
to a single (production-) operator. As a simple matter of
language it is hard to see why use of the definite pronoun
necessarily entails a one-mine, one-operator principle. It is
true that our cases reading the provision to allow joint and
several liability among multiple operators, see Twentymile
Coal Co., 456 F.3d at 155;UMWA, 840 F.2d at 83-84, were
ones where one firm was a production-operator and another
merely “perform[ed] services or construction.” But the Ninth
Circuit has explicitly rejected the notion that there can be only
one production-operator at a mine, Blattner v. Secretary of
Labor, 152 F.3d 1102, 1108 (9th Cir. 1998), and we agree.
Where supervision or control of a distinct aspect of the mining
activity is farmed out to a firm different from the principal
production-operator, refusal to apply the act’s liability without
fault provision would thwart the act’s purposes.
We assume that Ames is correct in its argument that nofault liability under § 110(a) would be unreasonably

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expansive if it made all independent contractors—including
those who were “operators” solely by virtue of “performing
services” at a mine—liable for all safety violations, even
violations completely outside the scope of a given
independent contractor’s work. But the argument doesn’t get
Ames anywhere, given the Secretary’s resting on the
proposition, adopted by the Commission, that Ames is liable
simply for “an unsafe condition that occurred in connection
with an activity for which it had supervisory responsibility.”
Ames, 2011 WL 3794313, at *4.
Ames finally argues that the “Independent Contractor
Rule” stated in the Secretary’s 1980 enforcement guidelines
supports Ames’s view that independent contractors can only
be cited for safety violations “committed by them and their
employees.” See 45 Fed. Reg. 44,494, 44,494-97 (July 1,
1980). This line of argument is arguably waived, given that
Ames raises it here for the first time. See 30 U.S.C.
§ 816(a)(1). In any event we don’t find the language relied on
by Ames relevant where, as here, an independent contractor
also meets the definition of production-operator due to its
supervision or control of part of the mine. See 30 C.F.R.
§ 45.2(d).
We therefore conclude that the Secretary’s construction
of the act is not precluded by its language or otherwise
unreasonable. Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984); see also
Secretary of Labor v. Cannelton Industries, 867 F.2d 1432,
1435 (D.C. Cir. 1989) (Chevron deference afforded to
Secretary’s—as opposed to Commission’s—interpretations of
law). Her citation of Ames for a safety violation was
therefore also permissible, as long as Ames did in fact
supervise or control unloading operations so as to render it a
production-operator of that part of the mine under § 3(d). We
now turn to that issue.

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* * *
Ames argues that even if an independent contractor who
supervises or controls a mine or portion of a mine can be
liable without fault under § 110(a), the Commission’s finding
that Ames supervised the unloading of deliveries to the mine
here was not supported by substantial evidence, see 30 U.S.C.
§ 816(a)(1), and that Ames’s opportunity to present
countervailing evidence on this point was deficient. We are
not persuaded on either score.
Ames’s first theory is that because of presumed error in
the ALJ’s finding that Orton was Ames’s subcontractor, none
of her opinion can support the Commission’s holding resting
on Ames’s supervision of the unloading process. 1 But Ames
does not seriously contest the key facts on which the
Commission relied. In particular, the record establishes that:
(1) Kay was escorted to the delivery drop-off location by a
crew of three Ames employees, as required per an agreement
with MSHA; (2) Kay was left with Ames employee Juan
Florez and told to “wait right here” while the other two
employees went to retrieve a forklift; (3) truck drivers like
Kay typically loosen the straps on the truck but “the
remainder of the process is left to the contractor who is in
charge of the site”; and (4) Ames had the authority to stop
work that created a danger to employees or property and to
ensure unsafe conditions were corrected. See Ames, 32
FMSHRC at 349; Ames, 2011 WL 3794313, at *5.
These uncontested propositions easily support the
conclusion that Ames supervised the unloading process.
1

The Commission reserved the question of whether Ames was
also liable under § 110(a) due to “controlling” the physical area of
the mine where the violation occurred. Ames, 2011 WL 3794313,
at *4 n.5.

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Ames itself even stipulated that “Orton drivers are instructed
to follow the policies and procedures of the recipient
regarding safety and the unloading process. Orton drivers are
instructed to follow the instructions of the supervisor of the
unloading process.” Ames, 2011 WL 3794313, at *5. Ames
argues that it had “no authority to require Mr. Kay to abide by
their policies or to discipline him if he [did] not.” Petitioner’s
Br. 32. True enough, but Ames’s conceded authority to stop
danger-creating work, as well as the specific authority its
employees actually exercised in this case (e.g., “wait right
here”), clearly support the conclusion that it had assumed a
supervisory role. Indeed, Ames said in its post-hearing brief
before the ALJ that it “was responsible for the unloading
process,” and “asserted its control of the unloading process
when [its employee] instructed Mr. Kay to ‘Wait right here.
We’ll be right back with a forklift to unload you.’” Ames’s
Post-Hearing ALJ Br. 11, J.A. 152.
Ames argues that it should have been able to present
evidence directed at disproving its supervision and control of
unloading, on the grounds that the trial before the ALJ did not
focus heavily on the Secretary’s theory of strict liability under
§ 110(a). But “[n]o objection that has not been urged before
the Commission shall be considered by the [reviewing circuit]
court, unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances.” 30
U.S.C. § 816(a)(1).
The circumstances do not seem
extraordinary. Ames was on notice that supervision and
control were at issue no later than when it filed its reply brief
before the Commission, yet it never argued that it needed an
opportunity to present evidence focused on those issues. See
Ames’s FMSHRC Reply Br. 8-10, J.A. 265-67; see also
Ames’s FMSHRC Br. 15-16, J.A. 225-26 (Ames arguing in
opening brief to the Commission that it “was not in a
supervisory position at the time Mr. Kay began unstrapping
the load”). Moreover, a party applying to a circuit court for

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leave to adduce additional evidence must “show to the
satisfaction of the court that such additional evidence is
material and that there were reasonable grounds for the failure
to adduce such evidence in the hearing before the
Commission,” 30 U.S.C. § 816(a)(1); yet Ames has not even
attempted to satisfy that standard here.
Finally, Ames argues that the citation must be vacated
because subjecting it to the Secretary’s “new policy of
enforcement against third parties,” violates the Due Process
Clause of the Constitution, amend. v, cl. 4. See Petitioner’s
Br. 38; Gates & Fox Co. v. Occupational Safety & Health
Rev. Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986) (“[D]ue
process . . . prevents . . . deference from validating the
application of a regulation that fails to give fair warning of the
conduct it prohibits or requires.”); see also General Electric
Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995)
(reaffirming fair notice requirement in civil administrative
context). Given what we have said about the adequacy of
notice to Ames of the Secretary’s reliance on its supervision
and control of the unloading process, plus the long-established
liability of production-operators for violations without regard
to fault, the claim is without substance.
* * *
Accordingly, the petition for review is
Denied.

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