803 F.3d 935
8th Cir.2015Background
- Loren Cook operates lathes; in May 2009 a 12-pound workpiece was ejected from a lathe at 50–70 mph, killing an operator.
- OSHA (the Secretary) cited Loren Cook for seven violations of 29 C.F.R. § 1910.212(a)(1) (machine guarding) and assessed $70,000 per violation ($490,000 total), alleging failure to use barrier guards to prevent ejected workpieces.
- An ALJ held after a 20-day hearing that § 1910.212(a)(1) addresses point-of-operation and routine by-product hazards (e.g., flying chips/sparks), not catastrophic ejection of an entire workpiece, and vacated the citations.
- The Occupational Safety and Health Review Commission adopted the ALJ’s decision; the Secretary petitioned for review to the Eighth Circuit.
- The Eighth Circuit majority denied the Secretary’s petition, concluding the Secretary’s contrary interpretation was not entitled to deference (Seminole Rock/Auer framework) because it was inconsistent with the regulation’s text, prior agency practice, and gave regulated parties unfair surprise.
- A dissent argued the Secretary’s interpretation is a reasonable, plain-text reading entitled to deference under Martin and that notice issues should affect penalty, not validity of the interpretation.
Issues
| Issue | Secretary/PLAINTIFF Argument | Loren Cook/DEFENDANT Argument | Held |
|---|---|---|---|
| Does § 1910.212(a)(1) cover catastrophic ejection of a workpiece from a lathe? | The regulation’s phrase “hazards such as those created by … rotating parts” reasonably includes ejection of workpieces. | The regulation targets point-of-operation and routine by-products (chips/sparks); it does not encompass anomalous ejection of large workpieces. | Held: The regulation does not cover the catastrophic ejection at issue. |
| Is the Secretary’s interpretation entitled to Seminole Rock/Auer deference? | Yes — the Secretary’s interpretation is reasonable and should be controlling. | No — the Secretary’s interpretation is plainly erroneous, inconsistent with the regulation’s text, and with prior practice. | Held: Deference withheld; the Secretary’s interpretation is unreasonable here. |
| Has the Secretary consistently applied this interpretation historically? | Interpretation is a permissible evolution; Martin permits deference to the Secretary’s evolving views. | Secretary conceded no prior similar citations or guidance applying the rule to ejected large workpieces. | Held: Secretary failed to show consistent prior application; inconsistency weighs against deference. |
| Did announcing this interpretation in enforcement proceedings create unfair surprise? | Any notice concerns should affect penalty, not the validity of the interpretation. | Issuing a novel interpretation in a citation after long inaction imposes unfair surprise. | Held: The announcement in enforcement context after long inaction amounted to unfair surprise; supports withholding deference. |
Key Cases Cited
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (framework for deference to agency interpretations of their own regulations)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its rules unless plainly erroneous or inconsistent)
- Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (allocation of interpretive deference between Secretary and Review Commission under OSHA)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (limitations on Auer deference where interpretation causes unfair surprise or is post hoc)
- Solis v. Summit Contractors, Inc., 558 F.3d 815 (Eighth Circuit discussion of deference and standards of review)
- Carlyle Compressor Co. v. Occupational Safety & Health Review Comm’n, 683 F.2d 673 (2d Cir. 1982) (holding §1910.212(a)(1) does not extend to large thrown workpieces)
- Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir. 1981) (construing “such as” as illustrative, not exhaustive)
- Long Mfg. Co. v. Occupational Safety & Health Review Comm’n, 554 F.2d 903 (8th Cir. 1977) (interpreting §1910.212 as focused on point-of-operation hazards)