On October 13, 2015, the Eighth Circuit Court of Appeals ruled in favor of Loren Cook in an 8–4 en banc decision in the carefully-watched machine guarding case of Perez v. Loren Cook Company, Eighth Circuit Court of Appeals, No. 13-1310 (October 13, 2015).
Background
The case arose from a 2009 incident during which a Loren Cook Company lathe operator was killed when a 12-pound rotating metal workpiece broke free from the lathe, flew out of the machine at a speed of 50 to 70 miles per hour, and struck the operator in the head. After striking the operator, the workpiece traveled at least 20 feet along the floor before crashing into metal shelving. The lathe once had protective guards, but the company had removed the guards from all small lathes prior to the fatality. The Occupational Safety and Health Administration (OSHA) issued Loren Cook seven violations under 1910.212(a)(1) and a $490,000 fine for failing to use barrier guards to shield workers from ejected workpieces on lathes.
OSHA interpreted the standard to require guarding against the ejection of the workpiece. After a 20-day hearing, the Occupational Safety and Health Review Commission’s (OSHRC) Administrative Law Judge (ALJ) Ken Welsch ruled that section 1910.212(a)(1) does not address catastrophic failures of lathes resulting in the ejection of workpieces and instead considers only point-of-contact risks and risks associated with the routine operation of lathes. OSHRC adopted the unmodified recommendation of the ALJ. OSHA then petitioned the Eighth Circuit for review.
On May 9, 2014, a three-judge panel of the Eighth Circuit reversed OSHRC’s decision in a 2–1 decision, concluding that OSHA’s interpretation was reasonable and thus deserved deference. The Eighth Circuit then granted en banc review and conducted a rehearing on April 15, 2015.
The Eighth Circuit’s Decision
In the recent decision, the majority rejected OSHA’s interpretation of section 1910.212, relying on the 2012 decision by the Supreme Court of the United States in Christopher v. SmithKlineBeecham. OSHA’s interpretation strained “a commonsense reading” of section 1910.212. The majority stated that the five examples listed in section 1910.212(a)(1) create two distinct categories: (1) “sources or causes of the hazard (point of operation, ingoing nip points, and rotating parts)”; and (2) “by-products from routine operation of the machinery (flying chips and sparks).” The court reasoned that the catastrophic ejection of a 12-pound workpiece falls under neither category. The Eighth Circuit concluded that OSHA’s “interpretation does not comport with the language of the regulation itself,” and that OSHA “failed to provide evidence that it “has consistently interpreted section 1910.212(a)(1) to apply to the ejection of large objects from a lathe.”
The Eighth Circuit also found that OSHA’s interpretation runs counter to the prevailing opinion about the scope of this section, which, according to a 1977 case interpreting the section, “simply requires that when a machine is a source of danger to operatives at the point of operation, that point must be guarded by some appropriate means or device for the purpose of preventing any part of the body of the operator from being in the danger zone during the machine’s operating cycle.”
Finally, the Eighth Circuit concluded that OSHA’s interpretation “amounted to unfair surprise.” In 1982, the Second Circuit Court of Appeals in Carlyle Compressor Co. v. Occupational Safety and Health Review Commission had rejected OSHA’s attempt to interpret section 1910.212(a)(1) to include large objects thrown from a spinning machine. OSHA seemed to acquiesce to this decision and issued no citations for such events until the Loren Cook fatality in 2009.
The Dissent
In a 14-page opinion, the dissent argued the court “should exercise restraint and defer to the evolving views of the Secretary in this matter,” citing Bowles v. Seminole Rock & Sand Co. The four dissenters provided in-depth analysis of what they deemed was substantial textual support for OSHA’s position under section 1910.212.
Key Takeaways
The key questions now are: (1) Will the U.S. Department of Labor seek review by the Supreme Court of the United States? (2) If so, will the Supreme Court grant certiorari and take the case? Several signs point to the potential for Supreme Court review, such as the 8–4 split opinion. Also in recent decisions, at least four justices signaled a desire to review the wisdom of court deference to agency interpretations of their own regulations under Seminole Rock, including Chief Justice Roberts. Justice Scalia, in particular, has actively and repeatedly complained that it is time to completely eradicate both Chevron and Seminole Rock deference. The Eighth Circuit references this stated interest by some in reevaluating the continued validity of such deference in a footnote in the majority opinion.
