Film Allman, LLC v. Secretary of Labor , 682 F. App'x 860 ( 2017 )

Case: 15-15720 Date Filed: 03/20/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15720
________________________
Agency No. 14-1385
FILM ALLMAN, LLC,
Petitioner,
versus
SECRETARY OF LABOR,
Respondent.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
________________________
(March 20, 2017)
Before ROSENBAUM and JULIE CARNES, Circuit Judges, and
SCHLESINGER, * District Judge.
PER CURIAM:
*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
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This case comes before the Court on appeal from the Occupational Safety
and Health Review Commission’s (“Commission”) final decision finding that
Appellant Film Allman LLC (“Film Allman”) willfully violated § 5(a)(1) of the
Occupational Safety and Health Act (“OSHA”), 29 U.S.C. §§ 651-678, which is
often referred to as the “general duty clause.” We find that the Commission did
not err.
This case involves a tragic train accident that occurred on February 20,
2014, during the first day of shooting for the film “Midnight Rider,” a biopic about
the Allman brothers.1 As the Film Allman crew set up to shoot a scene that
afternoon on the Doctortown train trestle—an active trestle owned by CSX
Transportation (“CSX”) that spans the Altamaha river in Jesup, Georgia—a freight
train barreled through, killing 27-year-old camera assistant Sarah Jones and
seriously injuring several other Film Allman crew members.
As the Commission explained in its written order, Film Allman and its
supervisors on the set that day failed at every opportunity to ensure the safety of its
employees: Film Allman “knew the railroad tracks were live tracks, in active use
by CSX, and that CSX had refused permission to film on the tracks. . . .
Supervisors Miller, Savin, Sedrish, Schwartz, and Ozier were aware no CSX
1
Because the Administrative Law Judge (“ALJ”) in this case completed an extensive and
accurate account of the relevant facts in this case as part of her September 15, 2015, order, and
further, because we write for the parties, we provide only a brief summary here.
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representatives were present at the site to control train traffic while the employees
were on the trestle. None of Film Allman’s supervisors informed the crew and cast
members that CSX would not be on site and would not be controlling train traffic
while they were filming on the tracks.” In short, Film Allman put its employees in
harm’s way, and the results were catastrophic.
The Secretary of Labor (“Secretary”) conducted a fatality investigation of
the accident at the Doctortown trestle and, based on the findings, issued a Citation
and Notification of Penalty to Film Allman on August 14, 2014. While the
Secretary cited Film Allman for multiple violations of OSHA, the only citation on
appeal to this Court is Item 1 of Citation No. 2, asserting that Film Allman
committed a willful violation of § 5(a)(1) of OSHA (the general duty clause) by
failing to implement safety procedures for filming on the trestle and thereby
exposing its employees to the hazard of being struck by a train.
The ALJ affirmed this willful violation and imposed the statutory maximum
penalty of $70,000.00 against Film Allman. Because the Commission declined
Film Allman’s request to review the ALJ’s decision under its discretionary review
power, the ALJ’s decision became a final order of the Commission on October 30,
2015. See 29 U.S.C. § 661(j).
On appeal to this Court, Film Allman raises three issues. First, Film Allman
challenges the Commission’s decision to uphold the Secretary’s invocation of the
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informer’s privilege to withhold certain portions of witness statements that OSHA
obtained during its investigation. Second, Film Allman challenges the sufficiency
of the evidence underlying the Secretary’s classification of Film Allman’s
violation as willful. And third, Film Allman contests the ALJ’s imposition of the
statutory maximum $70,000.00 penalty against it. We find no error.
Commission decisions “are entitled to considerable deference on appellate
review.” Fluor Daniel v. Occupational Safety & Health Review Comm'n, 295 F.3d
1232, 1236 (11th Cir. 2002). This Court reviews the Commission’s findings of
fact to determine “whether they are supported by substantial evidence on the
record as a whole; if so, they are deemed conclusive.” J.A.M. Builders, Inc. v.
Herman, 233 F.3d 1350, 1352 (11th Cir. 2000) (reviewing the Commission’s
finding that a violation was “willful”); see 29 U.S.C. § 660(a); see also Niemand
Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir. 1996). “Substantial evidence is
more than a scintilla and is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir.1997). The Commission’s “finding of willfulness is a finding of
fact.” Fluor Daniel, 295 F.3d at 1236.
This Court will overturn the legal determinations of the Commission only if
they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A); see Fluor Daniel, 295 F.3d at
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1236; Reich v. Trinity Indus., 16 F.3d 1149, 1152 (11th Cir. 1994) (“This court
reviews the Commission’s order to determine whether it is in accordance with the
law.”). The Commission’s imposition of a particular penalty is reviewed under
this standard for an abuse of discretion. D & S Grading Co. v. Sec’y of Labor, 899
F.2d 1145, 1148 (11th Cir. 1990).
We have carefully reviewed the entirety of the administrative record in this
case, considered the parties’ arguments, and heard oral argument. For all of the
reasons expressed in the Commission’s well-reasoned and thorough decision, we
conclude that the Commission correctly upheld the Secretary’s invocation of the
informer’s privilege, substantial evidence underlies the Commission’s
classification of Film Allman’s violation of § 5(a)(1) as willful, and the
Commission did not abuse its discretion in imposing the statutory maximum
penalty against Film Allman. We therefore affirm the Commission’s
determination that Film Allman willfully violated § 5(a)(1) of the OSHA, 29
U.S.C. §§ 651-678, and find that the $70,000 statutory maximum penalty is
appropriate.
AFFIRMED.
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