DeNucci Constructors v. OSHC
20-60710
| 5th Cir. | Jul 7, 2021Background:
- DeNucci performed trenching/excavation on July 30, 2018 in Austin; two laborers (Paz and Ponce) entered the trench to hand-shovel exposed pipes around 10:15 a.m.
- OSHA Compliance Assistance Specialist Natarajan observed the trench from about 15–20 feet for ~30 seconds, judged it unsafe, and reported it; CSHO Beck arrived ~11:40 a.m., photographed, measured, and interviewed workers.
- OSHA issued a citation for violation of 29 C.F.R. § 1926.652(a)(1) (failure to protect employees from cave-ins by required sloping/benching for Type B soil); a different citation was withdrawn at hearing.
- At the OSHRC hearing, the ALJ found the trench was 8–9 feet deep, walls were not sloped/benched to a 1:1 ratio, DeNucci’s claim of material alteration between employee exposure and inspection lacked merit, and assessed a $4,746 penalty.
- OSHRC declined discretionary review; DeNucci petitioned the Fifth Circuit, arguing (1) ALJ findings lacked substantial evidence and (2) ALJ failed adequately to explain credibility determinations under the APA.
- The Fifth Circuit denied review, holding the ALJ’s factual findings were supported by substantial evidence and the ALJ’s implicit credibility determinations were not contradicted by incontrovertible documentary evidence or physical fact.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ's factual findings that trench walls were noncompliant when employees were exposed are supported by substantial evidence | DeNucci: ALJ relied on speculative, unsupported observations (CAS Natarajan) and the trench may have been altered before inspection | Secretary: Findings rest on CSHO Beck measurements/photos and testimony of DeNucci employees as well as Natarajan | Held: Substantial evidence supports ALJ; multiple non-speculative witnesses and photographs permit a reasonable person to find noncompliance |
| Whether the trench was materially altered between employee exposure and CSHO Beck’s inspection | DeNucci: Excavator removed soil after employees exited, so inspection condition differed from exposure condition | Secretary: Testimony and photos show at least portions of walls were vertical and could not have been altered to that condition without obvious changes (e.g., cutting sidewalk) | Held: Reasonable person could conclude trench was not materially altered; ALJ’s inference was supported by record |
| Whether ALJ failed to satisfy APA by not explaining credibility determinations | DeNucci: ALJ’s terse statement that contrary evidence was not credited fails to justify credibility choices and requires reversal | Secretary: ALJ made implicit credibility choices supported by record; court may review record and uphold findings absent incontrovertible contrary evidence | Held: ALJ’s implicit credibility findings are permissible; they are not contradicted by incontrovertible documentary evidence or physical fact and are reasonable |
Key Cases Cited
- S. Hens, Inc. v. Occupational Safety & Health Review Comm'n, 930 F.3d 667 (5th Cir. 2019) (standard of review for OSHRC/ALJ factual findings and legal conclusions)
- Sanderson Farms, Inc. v. Perez, 811 F.3d 730 (5th Cir. 2016) (substantial-evidence review explanation)
- Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th Cir. 2003) (speculation does not support substantial-evidence findings)
- NLRB v. Motorola, Inc., 991 F.2d 278 (5th Cir. 1993) (court may review record and reach independent conclusion where ALJ fails to justify credibility choice)
- Boeta v. Fed. Aviation Admin., 831 F.3d 636 (5th Cir. 2016) (ALJ credibility findings binding absent incontrovertible documentary or physical contradiction)
- Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003) (weight of the evidence may rely little on a specific witness’s credibility)