parties ready to proceed a fell acknowledged that whether the are shocked permits of such citations is a question that's arguable both ways because this court analyzed the statute and determined that in its view the better answer was no in the years since mellowing however the supreme court has made clear in chevron and in need that when you have a question of statutory interpretation that can go either way and when an agency exercises its congressionally delegated lawmaking authority to reasonably interpret that ambiguity the agencies interpretation is entitled to deference the supreme court has further specified in the c f and i case that when the secretary of labor issues a citation to an employer for violating health and safety standard as it did in this case that citation is an exercise of delegated  lawmaking authority and the interpretations contained therein are entitled to difference if reasonable now mellowing in this court do not consider the secretary's interpretation relating to multiemployer citations the secretary was in a party to that case for that reason and because of the intervening supreme court decisions mellowing should not be binding on this panel for this case the standard in the circuit is that earlier panel decisions can be revisited if an intervening supreme court or on bank decision  should be revisited using chevrons lens in less that earlier decision stated old the statute is totally unambiguous and melanie didn't say that to the contrary now of course they did actually consider the commission's views in if and i was about who's entitle to deference the commission of the secretary and and so i think i also think that in our brief discusses why se contractors is not on point for writing other reasons but it i think that would be a distraction to get into that  now but of course the secretary's interpretation here today is only entitled to difference if it's reasonable and i'd like to explain why we think it is reasonable and why we urge this court to join the seven other circuits that have upheld multiemployer citations of the law exercise of the secretary's authority some of those cases have focused on the statute and some of focused on the regulation what do you think's it seems to me you're pushing more the statute but what do you think is the better position for your side the the authority comes from the statute itself  says that it ties an employer's duty to remove recognize how it's from the workplace to his own employees and says huge employer shall provide to his employees a workplace free from recognise hazards that could cause death or serious physical harm to his employer so twice in there is that i section five eighty two says sometimes called the specific duty clause says employers shall comply with occupational safety and health standards promulgated under the act period that's it there's no mention or tie of who's employees have to be affected whose employees you know connection there between the employers lawyer and the employees and so stopping right there the statute isn't clear about whether multiemployer citations are or aren't allowed under five a but you can draw the in general contractor at the library's site and had undisputed authority to prevent the subcontractors employees from being exposed to the unsafe excavation either right halting the work or by ensuring that the proper protective systems were put in place and there's one more aspect of the statute i'd like to talk about before turning to the regulation and that's the definition section in the act and the definition of safety and health standards found in section three eight of the act and that defines a standard as requiring conditions or practices necessary to provide safe or healthful employment and places of employment that's a phrase that also occurs in the regulation of the secretary interpret those two phrases employment and places of employment to mean two different things and to extend an employer's obligation from not only protecting the employment of his own employees but protecting their his employees places of employment places such as the library work site in this case even if the hazards they're in danger of different employers employees now and w control you have to control the place of employment that's the that's the stuff that's the approach of the secretary has taken yes to have the control the of the access the authority to and the knowledge which is also a always an element in an in an osha case and here you know here the supervisors from hensel phelps were standing right next to the unsafe excavation they were watching the subcontractors employees work right beneath this unsecured excavation wall and they it's undisputed that they had the power to  this work or we're going to you know we need to put in a protective think that they didn't do anything but it was their work site that's the point they it was their work site that they were in charge of the entire project now i understand that and it's amicus have a different interpretation of what employment versus places of employment mean and there may well be other ways to look at those two phrases but the question for this court under chevron c f and i and brand x is whether the secretary's interpretation is reasonable and if so it's entitle turning now to the to the to the regulation your honor mentioned twenty nine c f r nine hundred ten points for all day that regulation osha use that regulation in one thousand seventy one shortly after the object was passed to adopt preexisting construction standards there was an act called the construction safety act that applied only to it was safety standards but applied only to construction employers who had contracts with the federal government and one purpose of the object was to expand coverage from just those kinds of employers to all employers so that the regulations states that these preexisting construction standards are adopted as osha standards and that those standards apply to every employment and place of employment of every employee engage in construction work and further that each employer shall protect the employment and places of employment of each of his employees by complying with these standards and the excavation standard at this in this case is one of those standards in other words employers have to comply with the standards and they need to do so number one to protect their own employees employment and number two to protect their employees places of employment and and this comes up most often in construction because construction work site there's often many different employers in play and it's common for one person or entity to create or control a hazard that might then end up in danger and only in other employers employees and our final reason why the secretary is interpretation is reasonable is that it furthers the purpose of the i shopped and now that's a broad purpose but it's a clear and confident purpose to provide safe and helpful employment for america's working men and women again using the facts of this case as an example the hands of phelps employers are right there observing the unsafe work they have the power to stop it and they didn't do anything and given the broad language of section five eight to the purpose of the statute to make workers safer and the secretary has a longstanding use of multiemployer citations it was reasonable for the secretary to cite himself for violating the excavations yet in this case what is the value in having the secretary interpret this as opposed to the court the statute is unclear well i think that isn't the primary isn't the agency better positioned to make that interpretation as opposed to court well i think that's what chevron and you can see if i have said is that you know when it that that when you haven't even sees when you have an issue interpretation that's that's within an agency's purview in their area of specialty and to that to that point i think it's worth noting that the the object specifically charges the secretary with first of all promulgating safety ambiguity in the statute and if there isn't then if we do determine that it exists it seems to me that as you've pointed out from the chevron case and others that it would the secretary would be better position to resolve that as opposed to us due to the specialty of the agency involved yes your honor we agree with that and we you know as i mentioned for forty seven years the secretary has consistently  interpretation that under certain circumstances i mean nobody's saying that an employer who was you know five hundred miles away in a nothing to do with this library project should have to have come by and checked the excavations but there is a very strong connection here i mean is the general contractor they say they supervise they were in charge of the entire thing and they were right there and they knew about it and that those one interesting facts on the case and the facts were all stipulated to here on there wasn't he a hearing   some contractor did and the that's that's why these issues are suppressed pervasive in the construction wellness case it seems that the interpretation of the statute by holding the general contractor  promote safety which would be in favor of what the statute is intended to do in the first place would it not we certainly agree your honor and that's one of the reasons that we were putting forth for why the interpretation is reasonable again it is a broad a broad on this question of chevron deference you will on the margin case from one thousand nine hundred one that says the enforcement act itself is and is the agency's action the secretary's action the other side says that mead which came many years later changes that principle and need requires more formal agency action which is at least that's how i read their argument how do you how do you respond to that we are i think that even the meat was later in time what means says is that when one into the asking for difference their their their action is entitled to difference if it's an exercise of law making authority and there's different ways that different depending on the agency structure there's different ways that that could happen it could or it could be a rule making it could be you know sort of and administrative adjudication kind of thing depending on the agency set up but turning back to to the martin case what mar an exercise of the secretary's delegated lawmaking authority just as much as it would be if the secretary promulgated the safety and health regulation and so so it very clear that it's not like this isn't there's some talk about  know secretary asking for difference will litigating position this is not and again see if and i made this clear this is not just a secretary's litigating position just because it happens to come out in the course of these unfortunate proceedings this is what the secretary does and is charged to do by the statute  please the court i'm michael of caring for responding pencil felt construction company there's a narrow ground on which this case can be decided and we think it's proper and perhaps should be decided on the narrow ground explicitly confines liability to the employment relationship so the court very thoughtfully used the word explicitly look back at the secretary's brief the word explicitly doesn't even appear in  now that that that appears on six fifty nine that second seven twelve the court's use of explicitly makes it unnecessary to revisit any statutory issue in th case or really to decide any deference issue because we have a panel construction of the enabling regulation the osha is litigated here the secretary is litigating now if that's true if that is correct and we certainly to reverse or modify that portion of the mehler eem decision we contend that the eight circuits the reasoning and justification is not that weighty and mel arena should not be reversed and is only applicable twell which is that osha borrowed the phrase his employees into that regulation from the osh act general duty clause which everybody including osha agrees confines liability to the employment relationship the only reason osha would have done that is because a mediately after passage of the act it understood that congress intended to confine responsibility under the act to the employment relationship only and employers own employees and for further evidence or proof or understanding of that and that osha so believe it is during the earliest days of osha failed to adapt the general contractor liability rules of section one nine hundred twenty six point six team secretaries council alluded to the fact that this particular regular regulation was derived from earlier regulations and those included expansion of liability to contractors and sub contractors specifically osha rejected that approach and indeed included in its own early field operations manuals there was no controlling employer liability there was creating and it has been that case for decades this test they're applying now has been in place for a number of years  documented in our brief in the brief of our amaechi the department of labor is flip flopped in the years following the passage of the act on who gets notified and cited for what controlling employer concept under the multiemployer citation policy came way downstream it wasn't in the first interpretations of the first enforcement manuals from osha notification was just given to controlling employers the sub contractor on a work site may have created or exposed employees to a hazard so when the secretary argues this has been a consistent policy but we would urge the court of course to to look at the historical recapitulation is in the briefs that is not correct that's not true well this is earning what's concerning about this particular fact pattern is that the apple e was on the work site and saw the danger that was present under your reading all that is correct your honor and let me explain the pencils else was not penalty mccleon control the city of austin texas was and the original instructs it of austin didn't have anyone on the work site it was that lee who is in control of the work site is the general contractor correct they were on site as a general contractor but the city of austin also had people present on the work site competent persons as well as c b i which was the contractor whose employees were exposed let me ask question different way yes or did your client have the authority to change the dangerous condition that existed they did or they did your honor that does get to the argument about whether any purpose that arguably furthers safety is in compass within the law and can be so interpreted the answer is no you have to go to the statute and you have to go to the regulations if the statutes not reading your client would have the right the authority to change the dangerous condition under this fact pattern it was aware of the dangerous condition but in your reading of this they would not be required to or could be held liable for not changing the dangerous condition correct or they could be held liable for not changing the dangerous well no to the extent the way that you're reading this is that if someone came out and saw that there was a potential landslide condition that your client was aware of had the authority that change they could not be issue a citation if they decided not to change it correct no that is not correct ok well maybe i missed and we should be whether their employees words exactly so if their employees were not al fear but even though that they had the other they were aware of the condition at the authority to change the condition if their employees were not exposed to the condition but other workers at the site were exposed to the condition your position is that your client should even be hill responsible via a citation for not changing the condition they cannot be in force if challenge and they certainly cannot be enforced under the mel arenas i agree with you said if the statute is where you start and you were before attacking the date circuits analysis of the regulation but tell me why the other circuits that have looked at the statute and said the statute gives the secretary authority to issue a citation in this situation what's wrong with their statutory analysis forgetting the regulation for a second here your honor if you if you look at those decisions i have read them i read all of them they do little more than analyze the absence of the word his employees from the second portion of five day now and man  i agree with judge beames dissent in that in that case but there's a more important reason all of those cases were decided or did not apply the rule of i telecom the rule of the rule of m c i telecom is the interpretation cannot go beyond the scope of the ambiguity what's the ambiguity the ambiguity is in the word comply in five a to what is compliance in five a to me the government's position means says it means whatever the secretary of labor thinks makes things safer in what you might do out there that is not correct the wor comply cannot be torture and be construed as meaning you must police other entities at the work site is an occupational safety and health standard and then the definition of that we were the other side would say the ambiguity exist because then the definition of that says you have to provide a safe health or health full employment and places of employment are using that step either they're using that statutory definition out of places of employment they are the i believe as i understand sectors position is places of employment is without regard to whose employees are exposed we believe that's incorrect because we think there is a total neglect of looking at the legislative history two is the secretary of labor has issued reasonable here we're arguing there's no ambiguity you know many cases where the supreme court or our court has said the tax is ambiguous it's subject to reasonable debate but yet the legislative history makes this clear that only one side is right so we're not going to defer to the agencies view while i believe all of the cases the talk about deference to the secretary of your deference in general to agency in forstmann interpretation of state in the absence of ambiguity there's nothing to defer to there's not a space where interpretation is needed for the age agree with that but you're saying that that even if the text is ambiguous it it can become an ambiguous that can become crystal clear in other words because of legislative history well that's right you're saying was a vision is part of  if you are arguing then that you need to look at legislative intent you need to look at the legislative history to determine the legislative intent and then that brings clarity to something that you determine already just by reading it is  is that the legislative history is part of always construing congressional intent it is only in the event but you only need you'd only need to look beyond the statute if the statute was ambig in that right you begin with a car with an ordinary language reading of the words of the stature of and if that's clear game over right if the language is clear there's nothing further that needs to be clear and or yes and if we drop your argument that the statute is clear would we not stand apart by my reading from the second circuit for circuit six circuit seventh circuit eighth none of those cases looked at the legislative history to determine congressional intent none of them none of them analyzed the fact that the parlance used in the senate and floor committee reports talked extensively about employment i'll take you at your word that they didn't do that so but your argument is as it stands today they're wrong and we can get it right by saying that the statute is clear this year arena panels reasoning for its holding and look at the cases from the other circuits mel arenas a far more complete analysis of the statutory history that includes those things that i just mentioned in coming to that conclusion the those of the decisions on the other circuits do little more rely on the absence of language without looking at how that language was created and what was intended by congress and understood that in the early days and has just changed course in years since but it took many years to change course this wasn't something that happened overnight of figured it out and also they were wrong at first in the early documents and they changed them up they took twenty years changing these documents to finally get to the current formulation of controlling employers being cited will instead of just getting notified about violations by subcontractors and then taking action  appropriate based on that notification that to your honor furthers the purposes of safety and protection of employees in the workplace back to judge gray's point these other circuits that i just mentioned they got it wrong because they did not go to the legislative history they looked at the statute can determine that it was clear then they failed to go to the legislative history to make it clear and then they reached their decision that it wasn't clear no your honor i don't believe that's how in those other cases they arrived at that result i believe in the majority of those cases and i'm sorry i can't address them individually what they did is much like the eighth circuit or adopting the analysis of the circuit in some instances from some of the contractors they said absence of the words in five a to his employees means it's different than five a one where his employees as used  might wonder was the scriveners decision to break that into two paragraphs without any explanation of the legislative history that there was an intention to not have his employees applied all of it the reason and the only reason for that i guess we'll never know but the point is those decisions were based on a construction of the statute that endorsed working a circuit has said and some don't and if there's something we would never know that seems to me the definition of ambiguity well i guess i disagree slightly that we don't we don't know those words are there maybe there maybe those words aren't there because it's a scrivener's error and you're ultimately right maybe those words weren't there is a deliberate decision to differentiate as these other circuits of hell the fact that we don't know  not just seems to me the definition of ambiguity but your honor we believe mel arena examined all of those issues came to a conclusion now if if that is the state of the record and affairs at this point unambiguous reading of the statute it's the only reading them then chevron changes nothing and we were sweet we should absolutely apply our per hour pre show from precedent but brain that says it all turns on whether that decision  question right well you raise a good point the bellary court talked about a complex question concerning osha regulations as standards and evidence of negligence violations they didn't say the complex question reading i don't think it's got to say it's the only permissible read i believe taken as a whole them ellerey unfolding in the explanation as to how the court arrived at it says there is only one construction of a statute it recognizes that other circuits address if we determine that the statute is unclear as to the secretary's interpretation of the statute in that case do you believe it was on a reasonable reading of the statute i do in a simple reason for that is nobody could know what you're supposed to do there as i'm sure the panel is well aware of the supreme court justices of the supreme court have i don't this is too strong s these are written by non warriors they are the most informal of documents in the labor and employment force meant world and congress wanted an act of the act just like it did of the national labor relations act knew how to include more than employers own field operations manual which is an internal document that oceans factors can consult to make sure that they're issuing of efficiently and consistent consistently and that kind of thing i don't know the exact year that osha began first citing controlling employers but the second circuit case that's cited in the brief brennan versus occupational safety and health review commission from one nine hundred seventy five that is five thirteen s second ten thirty two that was a controlling employer a general contractor i think who left open a regular it was actually i think a fifteen story high building that had no garbage on the side and the somebody else's employees were opposed exposed to it on the second circuit said hey that this employer controlled had access authority so that's been at least since one thousand seventy five  and then just quickly on the legislative history i think it's pretty indisputable that the legislative history even if it were necessary to turn to it which we don't think it is doesn't answer this question one way or the other indeed the seventh circuit went so case to say in an acting this law congress apparently gave little thought to the unique relationship which arises when employees of different employers work in and around the same job site so i don't think that the legislative history provides any answers here and again we urge the court to join the seven other circuits who have a palps dr thank you thank you