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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2003 Decided February 13, 2004
No. 03-1073
AJP CONSTRUCTION, INC.,
PETITIONER
v.
SECRETARY OF LABOR,
RESPONDENT
On Petition for Review of an Order of the
Occupational Safety and Health Review Commission
Joseph P. Paranac Jr. argued the cause and filed the brief
for petitioner.
John Shortall, Attorney, U.S. Department of Labor, argued
the cause for respondent. With him on the brief were Joseph
M. Woodward, Associate Solicitor, and Bruce F. Justh, Coun-
sel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, SENTELLE, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Petitioner, a construction company,
challenges the Occupational Safety and Health Review Com-
mission’s affirmance of several citations for fall-protection
violations issued after one of the company’s employees fell to
his death. Because the Commission’s decision is well sup-
ported by substantial evidence and because the company had
fair notice of the applicable regulations, we deny the petition.
I.
Adopted ‘‘to assure so far as possible TTT safe and healthful
working conditions,’’ 29 U.S.C. § 651(b) (2000), the Occupa-
tional Safety and Health Act requires employers to ‘‘comply
with occupational safety and health standards promulgated
under [the] Act,’’ id. § 654(a)(2) (2000). The Occupational
Safety and Health Administration (OSHA) regularly inspects
workplaces and issues citations for violations of its safety
standards. OSHA classifies citations as not serious, serious,
or willful; penalties increase with the severity of the violation.
Id. § 666(a)-(c) (2000). Employers may challenge citations
before the Occupational Safety and Health Review Commis-
sion. To establish a violation, the Secretary of Labor has the
burden of proving: ‘‘(a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms,
(c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation
(i.e., the employer either knew, or with the exercise of
reasonable diligence could have known, of the violative condi-
tions).’’ Sec’y of Labor v. AJP Constr. Inc., 19 O.S.H. Cas.
(BNA) 2204 (2003), available at 2003 WL 145418, at *2;
accord Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254,
1261 (D.C. Cir. 2003).
Petitioner AJP Construction, Inc. (AJP) served as the
concrete subcontractor for the construction of a high-rise
residential building in Hoboken, New Jersey. Responding to
a hot-line call reporting fall-related accidents and other safety
hazards, OSHA began an inspection of the construction site in
3
the fall of 2000. While OSHA’s investigation was pending,
AJP employee James Sherengo fell to his death while work-
ing at the site. At the time of the fatal accident, Sherengo
and two other AJP employees were working on a seventh-
floor ‘‘outrigger scaffold.’’ OSHA regulations define an out-
rigger scaffold as ‘‘a supported scaffold consisting of a plat-
form resting on outrigger beams (thrustouts) projecting be-
yond the wall or face of the building or structure, the inboard
ends of which are secured inside the building or structure.’’
29 C.F.R. § 1926.450(b) (2003). The accident occurred when
a crane hit construction materials hanging over the edge of
the twelfth floor, toppling them onto the seventh-floor scaf-
fold and causing Sherengo’s deadly fall.
After the fatal accident, OSHA cited AJP for several
violations relating to Sherengo’s death. First, and central to
this case, OSHA found that AJP knowingly failed to use
personal fall-arrest or guardrail systems to protect the em-
ployees on the outrigger scaffold in willful violation of 29
C.F.R. § 1926.451(g)(1)(vii) (2003). Specifically, OSHA found
that the outrigger scaffold had no guardrails and that Sheren-
go wore no fall-protection equipment. Although the other
two employees working on the outrigger scaffold wore har-
nesses, the harnesses were entirely unsecured. OSHA also
found that the large stack of construction material that fell
from the twelfth floor was neither secured nor placed away
from the edge of the building in violation of 29 C.F.R.
§ 1926.451(h)(1); that the scaffold was not ‘‘erected TTT under
the supervision and direction of a competent person qualified
in scaffold erection’’ in violation of 29 C.F.R. § 1926.451(f)(7);
that the scaffold had not been constructed in accordance with
a professional engineer’s design in violation of 29 C.F.R.
§ 1926.452(i)(8) (2003); that the employees working on the
scaffold had never been ‘‘trained by a person qualified TTT to
recognize the hazards associated with the type of scaffold
being used and to understand the procedures to control or
minimize those hazards’’ in violation of 29 C.F.R.
§ 1926.454(a) (2003); and finally, that AJP had failed to
protect employees exposed to the elevated unguarded edge of
the building itself in violation of 29 C.F.R. § 1926.501(b)(1)
4
(2003). In addition, OSHA cited the company for several fall-
protection violations unrelated to the fatal accident.
AJP contested all of the citations before the Commission.
Pursuant to 29 U.S.C. § 661(j) (2000), the Commission ap-
pointed an administrative law judge who held a five-day
evidentiary hearing. With respect to the willful violation of
29 C.F.R. § 1926.451(g)(1)(vii), the company did not dispute
that the outrigger scaffold lacked guardrails or that the three
employees wore insufficient fall protection. Instead, AJP
argued that it lacked the level of knowledge required for a
violation. It also challenged the willful classification. Reject-
ing AJP’s arguments, the ALJ affirmed the willful violation
as well as a majority of the other citations. AJP filed a
petition for review with the Commission. When the Commis-
sion declined to review the case, the ALJ’s decision became
the Commission’s final order. See 29 U.S.C. § 661(j).
In its petition for review in this court, AJP challenges all of
the Commission’s adverse determinations, arguing that they
are unsupported by substantial evidence. The company also
argues that the scaffolding regulations fail to provide the fair
notice required by the Fifth Amendment’s Due Process
Clause. See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328-29
(D.C. Cir. 1995) (recognizing that agency regulations must
provide fair notice before penalties are imposed).
II.
We will affirm the Commission’s decision unless it is ‘‘arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.’’ 5 U.S.C. § 706(2)(A); see also Am.
Wrecking, 351 F.3d at 1261. Commission findings of fact are
conclusive ‘‘if supported by substantial evidence on the record
considered as a whole.’’ 29 U.S.C. § 660(a) (2000). Under
that standard, we uphold Commission findings so long as
there is ‘‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’’ Whirlpool Corp.
v. OSHRC, 645 F.2d 1096, 1101 (D.C. Cir. 1981) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951))
(internal quotation marks omitted). Moreover, ‘‘[t]he ques-
5
tion we must answer TTT is not whether record evidence
supports [petitioner’s] version of events, but whether it sup-
ports [the agency’s].’’ Fla. Mun. Power Agency v. FERC,
315 F.3d 362, 368 (D.C. Cir.), cert. denied, 124 S. Ct. 386
(2003). We ‘‘must accept the ALJ’s credibility determinations
TTT unless they are patently unsupportable.’’ Tasty Baking
Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001).
We begin with AJP’s primary challenge—that the ALJ
erred in finding that the company willfully violated 29 C.F.R.
§ 1926.451(g)(1)(vii)’s requirement that employers use guard-
rails or personal fall-protection equipment to protect employ-
ees on outrigger scaffolds. Repeating arguments soundly
rejected by the ALJ and urging us to re-weigh evidence and
to substitute our judgment for the ALJ’s, AJP contends both
that it lacked the level of knowledge required for the violation
and that the ALJ had no basis for finding that the violation
was willful. Applying our deferential standard of review, we
have little trouble concluding that substantial evidence in the
record supports the ALJ’s findings on both issues.
In finding that AJP had the requisite knowledge, the ALJ
relied largely on the testimony of general contractor employ-
ee Keith Healy that he had repeatedly informed AJP both
verbally and through written safety memoranda that the
company’s employees were working on platforms without
adequate fall protection. AJP Constr., 19 O.S.H. Cas. (BNA)
2204, 2003 WL 145418, at *12. AJP does not challenge
Healy’s testimony that he warned the company about safety
violations. Instead, the company argues that it lacked actual
knowledge that the employees working on the outrigger
scaffold were wearing insufficient fall protection at the time
of the accident that caused Sherengo’s death. In support,
AJP points to testimony by its own employees that the men
working on the scaffold had been provided with fall-protection
equipment, that they had been instructed to use it, and that,
except for the day of the fatal accident, they had always
followed those instructions.
AJP’s argument suffers from several flaws. To begin with,
even if the company lacked actual knowledge of the unlawful
6
condition, Healy’s testimony is more than sufficient to sup-
port a finding that AJP could have known of the unlawful
condition through the exercise of reasonable diligence—all
the Act requires. See Am. Wrecking Corp., 351 F.3d at 1261.
Moreover, the ALJ expressly credited Healy’s testimony and
safety memos over evidence that AJP’s employees usually
wore fall protection, relying on Healy’s ‘‘opportunity and
capacity to observe, the consistency of his testimony, his lack
of bias, and the overall reasonableness of his testimony.’’
AJP Constr., 19 O.S.H. Cas. (BNA) 2204, 2003 WL 145418, at
*12. Reinforcing the ALJ’s finding that the company had the
requisite knowledge, the OSHA inspector testified that the
two surviving employees told him that when they questioned
their foreman about using fall-protection equipment on the
outrigger scaffold, the foreman warned them simply not to
‘‘go out too far’’ and to ‘‘[b]e careful.’’ See Tr. 214 (6/25/2002),
reprinted in App. 87. The ALJ found the inspector more
credible than AJP’s witnesses, relying on the inspector’s
demeanor, his capacity to observe, and the fact that ‘‘his
observations and conclusions were consistent with the other
evidence in the record.’’ AJP Constr., 19 O.S.H. Cas. (BNA)
2204, 2003 WL 145418, at *2 n.4. AJP offers no basis for
questioning the ALJ’s well-supported credibility determina-
tions, particularly given the high level of deference to which
they are entitled. See, e.g., Tasty Baking, 254 F.3d at 124.
With respect to the willfulness finding, our case law estab-
lishes that ‘‘a willful violation of the Act constitutes an act
done voluntarily with either an intentional disregard of, or
plain indifference to, the Act’s requirements.’’ A.J. McNulty
& Co. v. Sec’y of Labor, 283 F.3d 328, 337-38 (D.C. Cir. 2002)
(quoting cases) (internal quotation marks omitted). In find-
ing AJP plainly indifferent to OSHA’s fall-protection require-
ments, the ALJ relied on the company’s disregard of Healy’s
warnings, its failure to make any effort to address the safety
problems, and OSHA’s issuance of fall-protection citations
against AJP-related enterprises in the past. See AJP
Constr., 19 O.S.H. Cas. (BNA) 2204, 2003 WL 145418, at *13.
Challenging the ALJ’s conclusion, AJP again observes that
the record contains no evidence that the company had actual
7
knowledge of the unlawful condition. Neither of the two
cases on which AJP relies, however, indicates that direct
proof is required to find willfulness. Both cases make clear
that to sustain a willful violation, ‘‘[t]he Secretary must show
that the employer was actually aware, at the time of the
violative act, that the act was unlawful, or that it possessed a
state of mind such that if it were informed of the standard, it
would not care.’’ Sec’y of Labor v. Propellex Corp., 18 O.S.H.
Cas. (BNA) 1677, 1684 (1999), available at 1999 WL 183564,
at *8 (emphasis added); see also Sec’y of Labor v. Midwest
Generation, LLC, 19 O.S.H. Cas. (BNA) 1520 (2001), avail-
able at 2001 WL 799559, at *11. As the First Circuit has
explained ‘‘an act may be ‘willful’ if the offender shows
‘indifference’ to the rules; he need not be consciously aware
that the conduct is forbidden at the time he performs it, but
his state of mind must be such that, if he were informed of
the rule, he would not care.’’ Brock v. Morello Bros. Constr.,
Inc., 809 F.2d 161, 164 (1st Cir. 1987).
The Commission has found willfulness ‘‘where an employer
has been previously cited for violations of the standards in
question, is aware of the requirements of the standards, and
is on notice that violative conditions exist.’’ Propellex Corp.,
18 O.S.H. Cas. (BNA) at 1684, 1999 WL 183564, at *8. The
unrefuted evidence in this case tracks that standard precisely.
The ALJ found that AJP knew of the fall-protection require-
ments from previous OSHA citations and that Healy’s safety
memos put AJP on notice of the fall-protection deficiencies at
the work site. Moreover, six previous OSHA compliance
inspections had reported rampant fall-protection violations at
the site. This evidence amply supports the ALJ’s finding
that AJP possessed the state of mind necessary for a willful
violation.
AJP also challenges the willfulness finding on the ground
that the ALJ erred in concluding that the company had failed
to address fall-protection deficiencies at the site. In support,
the company again relies on testimony that employees work-
ing on the outrigger scaffold usually wore fall protection. As
we noted above, however, the ALJ discredited that testimony.
AJP also points to its fall-protection plan, evidence of fall-
8
protection discussions at safety meetings, and the OSHA
inspector’s initial report, which noted that AJP was planning
to adopt an extensive fall-protection plan. According to AJP,
such evidence establishes that the company had stringent fall-
protection measures in place and belies the ALJ’s plain
indifference finding. We disagree.
Read in its entirety, the record easily supports the ALJ’s
conclusion that, far from adopting stringent fall-protection
measures, AJP’s efforts were incomplete, ineffective, and
unenforced. As to the fall-protection plan, the ALJ found—
and AJP does not dispute—that the four-page handwritten
plan was prepared months after work had started, was dis-
seminated to neither supervisors nor workers, made no men-
tion of OSHA requirements, and did not even address work
performed on scaffolds. Other than a fifteen-minute talk to
the carpenters, the record contains no evidence of any discus-
sion of fall protection, and AJP points to no instance in which
it actually enforced fall-protection requirements. Indeed,
even AJP foremen charged with fall-protection training and
enforcement were seen violating OSHA standards. See Nat’l
Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1267 n.38
(D.C. Cir. 1973) (‘‘[T]he fact that a foreman would feel free to
breach a company safety policy is strong evidence that imple-
mentation of the policy was lax.’’). Corroborating this evi-
dence, an OSHA video of the AJP work site shows employees
working on scaffolds without fall-protection equipment. Fi-
nally, although it is true that the OSHA inspector initially
reported that AJP was attempting to establish an effective
fall-protection plan, nothing in the record suggests that the
company ever implemented any adequate safety measures.
The sufficiency of the evidence in this case becomes plain
by contrasting it with our recent decision in American Wreck-
ing. Reversing a willfulness finding, we concluded there that
the ALJ had not only failed to make a coherent credibility
determination and ignored contrary evidence, but also found
that the cited employer possessed a willful state of mind
because the unsafe condition was ‘‘so obvious’’ that the em-
ployer should have known of the hazard. 351 F.3d at 1264.
As we explained, the ALJ in American Wrecking ignored the
9
well-established distinction between willful and lesser viola-
tions: although constructive knowledge or mere negligence
suffices for a non-willful violation, willfulness requires con-
scious disregard or plain indifference to the Act’s require-
ments. Id. at 1264-65. In contrast to American Wrecking,
the ALJ here found that AJP possessed a willful state of
mind not because the company should have known of the fall-
protection hazards, but because prior citations and warnings
coupled with AJP’s failure to act demonstrated that it was
aware of the unsafe conditions and yet chose not to correct
them. Indeed, our cases clearly hold that evidence of an
employer’s failure to take corrective measures despite prior
warnings and citations for similar violations provides a suffi-
cient basis for sustaining a willfulness finding. See A.J.
McNulty, 283 F.3d at 338; Donovan v. Williams Enters. Inc.,
744 F.2d 170, 179 (D.C. Cir. 1984).
III
This brings us to AJP’s claim that OSHA provided constitu-
tionally inadequate notice that the fall-protection regulations
applied to its outrigger scaffold. Although we defer to agen-
cies’ reasonable interpretations of their own regulations, ‘‘the
due process clause prevents that deference from validating
the application of a regulation that fails to give fair warning
of the conduct it prohibits or requires.’’ Gates & Fox Co. v.
OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). As we explained
in General Electric:
In such cases, we must ask whether the regulated
party received, or should have received, notice of the
agency’s interpretation in the most obvious way of
all: by reading the regulations. If, by reviewing the
regulations and other public statements issued by
the agency, a regulated party acting in good faith
would be able to identify, with ascertainable certain-
ty, the standards with which the agency expects
parties to conform, then the agency has fairly noti-
fied a petitioner of the agency’s interpretation.
10
53 F.3d at 1329 (citation and internal quotation marks omit-
ted).
AJP argues that the scaffolding regulations are ‘‘broad and
exceedingly vague,’’ and that as a result it had no notice that
its work platform would be considered an outrigger scaffold.
OSHA regulations define a ‘‘scaffold’’ as ‘‘any temporary
elevated platform (supported or suspended) and its support-
ing structure (including points of anchorage), used for sup-
porting employees or materials or both.’’ 29 C.F.R.
§ 1926.450(b). As noted earlier, an ‘‘outrigger scaffold’’ is ‘‘a
supported scaffold consisting of a platform resting on outrig-
ger beams (thrustouts) projecting beyond the wall or face of
the building or structure, the inboard ends of which are
secured inside the building or structure.’’ Id. The regula-
tions even include an illustration of an outrigger scaffold
‘‘intended to provide visual guidance to assist the user in
complying with the requirements.’’ Id. pt. 1926, subpt. L,
app. E (2003).
Given the specificity of the outrigger definition and the
clarity of the illustration, AJP’s claim that it had no way of
knowing that its work platform would qualify as an outrigger
scaffold is utterly unconvincing. Although it is true, as AJP
points out, that OSHA’s scaffolding standard describes more
than twenty-six different types of scaffolds, AJP never ex-
plains why it could not have known that the platform at issue
fit the definition of an outrigger scaffold simply by ‘‘reading
the regulations.’’ Gen. Elec., 53 F.3d at 1329. At oral
argument, moreover, AJP’s counsel conceded that the plat-
form matched the illustration attached to the regulations.
AJP also claims that the scaffolding regulations are imper-
missibly vague because they could apply to temporary work
decks that the company erects on each floor in order to pour
concrete. Perhaps so, but OSHA did not sanction AJP for
violations on its work decks. It sanctioned the company for
safety violations on its outrigger scaffold, to which the regula-
tion clearly applies. Even if the definitions could be viewed
as overly broad, that would not support AJP’s baseless argu-
ment that they failed to provide fair notice with respect to the
11
platform at issue in this case. Cf. Robinson v. Cheney, 876
F.2d 152, 163 (D.C. Cir. 1989) (‘‘One to whose conduct a
statute clearly applies may not successfully challenge it for
vagueness.’’ (quoting Parker v. Levy, 417 U.S. 733, 756 (1974))
(internal quotation marks omitted)).
IV
Having thoroughly reviewed the record, we find each of the
ALJ’s other findings well supported by substantial evidence
in the record as a whole. The petition for review is denied.
So ordered.