UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

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OSHRC Docket No. 06-1990 

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AKM LLC dba VOLKS CONSTRUCTORS,l 

Respondent. 

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VOLKS CONSTRUCTORS' 

REPLY BRIEF ON REVIEW 

Arthur G. Sapper 

Robert C. Gombar 

James A. Lastowka 

McDERMOTT WILL & EMERY LLP 

600 13th Street, N.W. 

Washington, D.C. 20005 

Attorneys for Respondent 
TABLE OF CONTENTS 

Page 

I. Argument In Reply to the Secretary's Brief ...................................................... 1 

A. Citation 2, Item 2: Form 300 Log (§ 1904.29(b)(3)) ............................... 1 

1. Neither § 1904.29(b)(3) Nor Any Regulation in Part 1904 

Imposes A Continuing Duty to Record A Case on A 

Log ..................................................................................................... 1 

2. The Secretary Is Unable to Refute Volks's Showing That 

Construing § 1904.29(b)(3) to Impose A Continuing 

Duty to Record A Case on A Log Would Nullify Other 

Provisions in Part 1904 ................................................................... 6 

3. Subsequent Judicial Decisions Have Undermined 

Johnson Controls; Stare Decisis Is No Obstacle Here ................ 11 

4. The Commission Did Not Address Volks's Staleness 

Concerns in General Dynamics ..................................................... 14 

5. The Secretary May Not Rely On A Discovery Rule ................. 15 

6. The Secretary's View is Not Entitled To Deference ................. 17 

B. Citation 2, Item 1: Form 301 Incident Report (§ 1904.29(b)(2)) ......... 18 

C. Citation 2, Item 3: Review of Log at End of Calendar Year 

(§ 1904.32(a)(I)); Item 4: Wrong Certifier of Log (§ 

1904.32(b )(3)) ............................................................................................. 19 

D. Citation 2, Item 5: Too-Brief Posting of Summary (§ 

1904.32(b )( 6)) ............................................................................................. 19 

II. Conclusion ............................................................................................................ 19 

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TABLE OF AUTHORITIES 

Page 

CASES 

3M v. Browner, 17 F.3d 1453, 1460-63 (D.C. Cir. 1994) ......................................... 15, 16 

A.E. Staley Mfg. Co. v. Secretary of Labor, 295 F .3d 1341, 1345 

(D.C. Cir. 2002) .................................................................................................... 17 

Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1302 (D.C. Cir. 

1995) ...................................................................................................................... 17 

Arcadian Corp., 20 BNA aSHC 2001, 2013 (No. 93-0628, 2004) ................................ 15 

Auto Workers v. OSHA, 938 F.2d 1310, 1319 n.9 (D.C. Cir. 1991) ............................. 17 

Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978) .............................. 3 

Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993) ...................................................... 18 

Center for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335 

(11th Cir. 2006) ..................................................................................................... 13 

Chao v. OSHRC (Eric K. Ho), 401 F.3d 355, 368 (5th Cir. 2005) ................................. 11 

Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 

837 (1984) ........................................................................................................ 17, 18 

Christensen v. Harris County, 529 U.S. 576, 583 (2000) ................................................. 8 

Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 

1976) ........................................................................................................................ 3 

Diamond v. United States, 427 F.2d 1246, 1247 (Ct. Cl. 1970) ..................................... 13 

Fabi Constr. Co. v. Secretary of Labor, 508 F.3d 1077 (D.C. Cir. 

2007) ........................................................................................................................ 3 

Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007) ......................................... 14 

General Dynamics Corp., 15 BNA aSHC 2122, 2177-78 (No. 87-

1195, 1993) .................................................................................................. 9, II, 14 

Gersman v. Group Health Ass'n, 975 F.2d 886 (D.C. Cir. 1992) .................................. 17 

Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 

502 n.15 (1967) ...................................................................................................... 13 

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TABLE OF AUTHORITIES 

(continued) 

Page 

Hartford Roofing, Inc., 17 BNA aSHC 1361 (No. 92-3855, 1995) ............................... 11 

Indep. Ins. Agents v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000) ................................... 8 

Interamericas Investments, Ltd. v. Federal Reserve Sys., 111 F .3d 

376, 382 (5th Cir. 1997) .................................................................................... 6, 13 

Johnson Controls, Inc., 15 BNA aSHC 2132, 2135-36 

(No. 89-2614, 1993) ....................................................... I, 9, 10, II, 12, 13, 14, 17 

Ledbetter v. Goodyear Tire & Rubber Co., 

127 S. Ct. 2162, 2170 (2007) ........................................................................... 12, 14 

Machinists Local v. Labor Board, 362 U.S. 411, 422 (1960) ........................................... 15 

Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144 (1991) ......................................... 18 

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ..................... I, 2, II, 14 

Orlando Food Corp. v. United States, 423 F.3d 1318, 1324 (Fed. 

Cir. 2005) ................................................................................................................. 8 

Phillips v. United States, 843 F.2d 438, 443 (11th Cir. 1988) ......................................... 6 

Reich v. Arcadian Corp., 110 F.3d 1192 (5th Cir. 1997) ................................................ 11 

S.G. Loewendick & Sons v. Reich, 70 F.3d 1291 (D.C. Cir. 1995) ................................. 17 

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) ........................................................ 18 

Tolbert v. Ohio Dep't of Transp., 172 F.3d. 934, 940 (6th Cir. 1999) ............................ 14 

Toussie v. United States, 397 U.S. 112 (1970) ................................................................ 13 

TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) .......................................................... 15, 16 

United States v. Marion, 404 U.S. 307, 322 n. 14 (1971) ................................................. 6 

United States v. Mead Corp., 533 U.S. 218 (2001) ......................................................... 18 

CONSTITUTIONS AND STATUTES 

Due Process Clause of the Fifth Amendment to the 

Constitution ........................................................................................................... 4 

aSH Act § 3(8) ................................................................................................................ 11 

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TABLE OF AUTHORITIES 

(continued) 

Page 

aSH Act § 8(c)(2) ........................................................................................................ 3,10 

aSH Act § 9(c) .................................................................................. I, 2, 9, 10, 15, 16, 17 

Title VII of Civil Rights Act of 1964 ............................................................................. 12 

REGULATIONS AND RULES 

29 C.F.R. Part 1904 ................................................................................................ 3, 10, 17 

29 C.F .R. § 1904.29 ...................................................................................................... 4 

29 C.F.R. § 1904.29(b)(2) ........................................................................................... 18 

29 C.F .R. § 1904.29(b )(3) ........................................................ I, 2, 3, 4, 5, 6, 8, 12, 18 

29 C.F.R. § 1904.32(a)(1) ................................................................................... 5, 7, 19 

29 C.F.R. § 1904.32(a)(2) ............................................................................................. 7 

29 C.F.R. § 1904.32(a)(4) ............................................................................................. 7 

29 C.F.R. § 1904.32(b)(6) ........................................................................................... 19 

29 C.F.R. § 1904.33 .................................................................................................. 5, 6 

29 C.F.R. § 1904.33(b)(1) ................................................................................... 7, 8, 10 

29 C.F .R. § 1904.4 ........................................................................................................ 5 

29 C.F.R. § 1910.5(c) .......................................................................................................... 3 

66 Fed. Reg. 5916 (2001) ................................................................................................... 5 

66 Fed. Reg. at 6023 col. 1 .......................................................................................... 5 

66 Fed. Reg. at 6083 col. 2 .......................................................................................... 5 

MISCELLANEOUS 

BLACK'S LAW DICTIONARY 1080 (6th edt 1990) ............................................................. 2 

BLACK'S LAW DICTIONARY 974 (5th edt 1979) ............................................................... 2 

BLACK'S LAW DICTIONARY 1231 (4th edt 1951) ............................................................. 2 

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, 

TABLE OF AUTHORITIES 

(continued) 

Brief by Federal Respondents in Opposition to Petition for 

Certiorari at 6, Perna v. United States, No. 02-727 (U.S. 

Jan. 2003) (cert. denied 2003), available at 

http://www . usd oj. gOY / osg/briefs/2002/0responses/2002-

Page 

0787.resp.pdf ........................................................................................................ 16 

RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1340 (2d 

ed. 2001) .................................................................................................................. 2 

WEBSTER'S THIRD INTERNATIONAL DICTIONARY 1561 (1986) ...................................... 2 

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1561 

(1993) ....................................................................................................................... 1 

-v-
UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. 

AKM LLC dba VOLKS 

Respondent. 

OSHRC Docket No. 06-1990 

VOLKS CONSTRUCTORS' REPLY BRIEF ON REVIEW 

I. Argument In Reply to the Secretary's Brief 

A. Citation 2, Item 2: Form 300 Log (§ 1904.29(b)(3» 

1. Neither § 1904.29(b)(3) Nor Any Regulation in Part 1904 Imposes A 

Continuing Duty to Record A Case on A Log. 

The Secretary states (Br. 6) that neither section 9( c) nor any other part of 

the OSH Act defines an "occurrence" of a "violation." Inasmuch as she places 

"occurrence" within quotation marks, one would expect her to then cite a 

dictionary definition of "occurrence." But she does not. The likely reason for her 

reticence is that, in 2002, after Johnson Controls was decided, the Supreme Court 

held in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-115, 109 n. 5 

(2002), that "occurred" in a statute of limitations bears its ordinary, common 

meaning of having "happened."l Inasmuch as the ordinary, common meaning of 

1 "A discrete retaliatory or discriminatory act 'occurred' on the day that it 'happened."' 

[d. at 109-110 & n. 5. The Court explained (id. at n. 5): 

"In the absence of an indication to the contrary, words in a statute are assumed 

to bear their 'ordinary, contemporary, common meaning,'" .... WEBSTER'S 

THIRD NEW INTERNATIONAL DICTIONARY 1561 (1993) defines "occur" as "to 

present itself: come to pass: take place: HAPPEN." See also BLACK'S LAW 
"occurrence" is "something that takes place," or the "action or process of 

happening or taking place,"2 Morgan teaches that section 9( c) requires a violative 

act to have happened or, for a failure to act, a duty-triggering fact to have 

happened - within the limitations period. Yet, the Secretary never points to any 

violative or duty-triggering fact that happened during the limitations period 

even though Yolks prominently argued its necessity (Opening Br. 18, 20). 

Similarly, the Secretary never relies on the words of the allegedly-violated 

regulation (§ 1904.29(b )(3)) to define the term "violation," even though she 

placed that word too within quotation marks. Although she asserts that a 

DICTIONARY 1080 (6th ed. 1990) (defining I/[o]ccur" as I/[t]o happen; ... to take 

place; to arise"). 

2 WEBSTER'S THIRD INTERNATIONAL DICTIONARY 1561 (1986) states in part: 

1: something that takes place; esp : something that happens unexpectedly and 

without design: HAPPENING (a happy--) (a disastrous -) (an unusual--) 

2a: the action or process of happening or taking place (the - of a genuine 

dispute R.M. Dawson) (b: the action or process of being met with or coming 

into view: APPEARANCE (the..w of mammal remains falls sharply throughout 

the summer Ecology) (a fish of regular -- along the southern coast of 

California) : the fact of being met with or of taking place 

3 : the presence of a natural form or material at a particular place; also: the 

mineral, rock, or deposit thus occurring <evidence of oil ,...,) <the ..w of shallow 

coal beds in this region) ... 

syn ... OCCURRENCE is a general term for taking place or happening 

and lacks much connotational range; it may suggest a happening without plan, 

intent or volition (occurrences which we not only do not, but cannot perceive 

Bertrand Russell) .... 

RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1340 (2d ed. 2001) defines 

"occurrence" as "1. the action, fact, or instance of occurring. 2. something that happens, 

event, incident."; and principally defines "occurring" as "to happen; take place; come to 

pass[.]" Both BLACK'S LAW DICTIONARY editions that pre- and post-dated the Act's passage 

define "occurrence" as "[a] coming or happening; any incident or event, especially one 

that happens without being designed or expected." ld. at 1231 (4th ed. 1951); at 974 (5th 

ed.1979). 

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violation continues to occur until the case is recorded or the five-year logretention period elapses (Br. 8), she never claims, or points to any language in the 

regulation to show, that its words impose a duty for either of those periods, and 

hence that a "violation" occurs then. What she does rely upon falls far short. 

aSH Act § 8(c)(2). The Secretary relies on section 8(c)(2)'s command to the 

Secretary to "prescribe regulations" requiring employers to "maintain accurate 

records." Instead of pointing to the regulations that she "prescribed" to show 

how they impose a continuing duty by their terms, the Secretary asks the 

Commission to suppose that she must have prescribed whatever she now thinks 

is needed even if it cannot be found in the regulation's actual words. If the 

Secretary thinks that her regulations as written do not meet her statutory 

mandate or do not impose the continuing duty that she believes should be there, 

she should re-write them. 3 

Provisions in Part 1904 Other Than the Cited Provision. The Secretary 

points to various Part 1904 provisions other than § 1904.29(b)(3). There are, 

however, fundamental problems with relying on them. If any such provision 

does "make clear" that the duty to record is a "categorical" one, then they 

preempt § 1904.29(b)(3) under either § 1910.S(c) or under the general rule of 

construction that the specific prevails over the general, and the Secretary should 

have cited Yolks for having violated them, or for having violated the most 

specific of them. Inasmuch as the Secretary never moved to amend to allege a 

3 Fabi Constr. Co. v. See'y of Labor, 508 F.3d 1077, 1088 (D.C. Cir. 2007) (citing Bethlehem 

Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978); and Diamond Roofing Co. v. 

OSHRC, 528 F.2d 645, 650 (5th Cir. 1976)). 

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violation of any these provisions, Item 2 must be vacated. In any event, none of 

the uncited provisions impose any such duty. Moreover, inasmuch as no 

reasonable employer would ever read them to carry the meaning now ascribed to 

them by the Secretary, her position would deprive Yolks of the fair notice 

required by the Due Process Clause of the Fifth Amendment to the Constitution. 

Paragraphs (b)(l) and (b)(2) of § 1904.29. The Secretary claims that the 

two paragraphs that precede § 1904.29(b)(3) "make clear" that the duty to record 

is a "categorical" one. The argument makes little sense. Paragraphs (b)(l) and 

(b )(2) of § 1904.29 state: 

(b)(l) Implementation. What do I need to do to complete the OSHA 

300 Log? You must enter information about your business at the top 

of the OSHA 300 Log, enter a one or two line description for each 

recordable injury or illness, and summarize this information on the 

OSHA 300-A at the end of the year. 

(2) What do I need to do to complete the OSHA 301 Incident 

Report? You must complete an OSHA 301 Incident Report form, or 

an equivalent form, for each recordable injury or illness entered on 

the OSHA 300 Log. 

As the introductory questions indicate, these provisions deal only with the 

manner of completing the Form 300 log (paragraph (b)(l)), and what triggers the 

duty to complete a Form 301 (paragraph (b)(2)). Neither states when a case must 

be entered. Neither indicates that, despite the specific seven-day recording 

period in paragraph (b )(3), the recording period for cases actually continues for 

five years. The Secretary also ignores her own preamble statement, placed under 

the heading, "Deadline for Entering a Case," that it is "Paragraph 1904.29(b)(3) 

[that] establishes the requirement for how quickly each recordable injury or 

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illness must be recorded into the records." 66 Fed. Reg. 5916, 6023 col. 1 (2001) 

(emphasis added). 

§ 1904.4. The Secretary then relies on § 1904.4, entitled "Recording 

criteria." As its title indicates, this provision and its ten paragraphs state only 

recording criteria (i.e., what cases must be recorded). They nowhere indicate when 

the recording duty applies or even hint that the recording duty continues after 

the expiration of the specific recording period in § 1904.29(b)(3). 

§ 1904.32(a)(1). The Secretary then relies on § 1904.32(a)(1), which tells 

employers that "[a]t the end of each calendar year," they must "[r]eview the 

OSHA 300 Log to verify that the entries are complete and accurate, and correct 

any deficiencies identified." First, the duty to "review" entries and correct 

"identified" deficiencies expressly applies at the "end of each calendar year," not 

for five years, so it is impossible to see in it a duty to record for five years. 

Second, the regulation requires a review of only the last calendar year, not years 

before that. 4 Third, it is not clear that this provision applies to cases that are 

entirely missing from a log; by its terms, it requires that the "entries" be verified 

to be complete and accurate, not that the "log" be so verified. (If it does include 

the latter, then its express limitation to the end of the calendar year would be 

nullified by the Secretary's reading. See p. 7 below.) 

§ 1904.33. The Secretary relies on § 1904.33, "Retention and updating." 

The Secretary does not point to or quote any particular one of the provision's 

4 See, in addition to the words of § 1904.32(a)(1), the preamble at 66 Fed. Reg. at 6083 col. 2 

(liThe final rule also requires the employer to review the records at year end for accuracy 

.... ") (emphasis added). 

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four paragraphs. And indeed nothing in it imposes a duty to "record" cases after 

the seven-day recording period expires; the provision does not even use the verb 

"record." Paragraph (a) requires employers to "save" the log for five years. 5 

"Save" does not mean "record" (and the Secretary does not argue that it means 

"record"), so it cannot impose a continuing duty to record. Paragraph (b) 

requires employers to "update" the logs "to include "newly discovered" cases 

and to show any" changes that have occurred in the classification of previously 

recorded" cases not to record previously unrecorded cases. The Secretary also 

never disputes that the preamble to this provision shows that its narrow wording 

was deliberate. Opening Br. 22. 

The Secretary is unable to point to any language that imposes a duty to 

record after the expiration of the specific seven-day recording period in 

§ 1904.29(b)(3).6 That should be the end of the matter. 

2. The Secretary Is Unable to Refute Yolks's Showing That 

Construing § 1904.29(b)(3) to Impose A Continuing Duty to Record 

A Case on A Log Would Nullify Other Provisions in Part 1904. 

Beginning at 10, the Secretary tries to refute an additional argument by 

Yolks that c011struing § 1904.29(b)(3) to impose an unlimited, continuing duty 

5 Paragraph (a) of 1904.33 states: "You must save the OSHA 300 Log, the privacy case 

list (if one exists), the annual summary, and the OSHA 301 Incident Report forms for 

five (5) years following the end of the calendar year that th.ese records cover." 

6 These provisions do not indicate a continuing duty with enough clarity to overcome 

the rule that I/[s]tatutes of limitations, both criminal and civil, are to be liberally 

interpreted in favor of repose." Phillips v. United States, 843 F .2d 438, 443 (11 th Cir. 

1988). The Secretary relies in a footnote on the view of Interamericas Investments, Ltd. v. 

Federal Reserve Sys./ 111 F.3d 376, 382 (5th Cir. 1997) , that "statutes of limitations in the 

civil context are to be strictly construed in favor of the Government against repose." 

With all respect to that circuit, the more specifically applicable rule to statutes of 

limitations governing agency imposition of civil penalties is that stated in Phillips. 

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to record a case on a log would make several other provisions in Part 1904 

redundant, and would nullify their limitations. The effort is not a success. 

§ 1904.32(a)(1). That provision requires employers "[a]t the end of each 

calendar year" to "[r]eview the OSHA 300 Log to verify that the entries are 

complete and accurate, and correct any deficiencies identified[.]" Yolks argued 

that an unlimited, continuing duty to ensure that the log is correct would nullify 

the express limitation of § 1904.32(a)(1) to the end of the calendar year. The 

Secretary responds that § 1904.32(a)(2) and (4) require preparation and posting of 

an annual summary for the information of employees. "[T]he requirement to 

check the accuracy of the log at the end of each calendar year serves a more 

specific purpose than" the alleged continuing requirement that the log be 

accurate throughout the five-year retention period; that purpose being, 

apparently, to ensure that accurate information is posted for employees. Br. at 

11. The Secretary's response just ignores the obvious: A continuous duty to be 

mindful of and record all omitted cases for every day of five years would 

swallow up the rule as written, erasing its contours and nullifying the 

rulemaking in which those contours were hammered out.7 

§ 1904.33(b)(1). That provision requires employers to "update" the logs 

during the five-year retention period "to include newly discovered recordable 

injuries or illnesses and to show any changes that have occurred in the 

classification of previously recorded injuries and illnesses." Yolks argued that 

7 The Secretary argues, in a footnote, that redundant provisions might "emphasize 

points that have been previously stated or implied." She fails to show where in her 

regulations any duty to continuously review and update the log is stated or implied. 

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construing this provision "to impose an ever-ongoing obligation to update the 

log would make § 1904.33(b)(1) superfluous and nullify its limitation to 'newly 

discovered' cases and information." Opening Brief at 22. 

The Secretary does not deny this. Instead, she first builds up a straw man and 

knocks it down. She claims that Yolks had invoked the maxim "expressio unius 

est exclusio alterius." But that is wrong; Yolks did not rely on that maxim. Yolks 

argued instead that the Secretary's interpretation of § 1904.29(b)(3) would make 

§ 1904.33(b)(1) redundant and nullify its limitations, as the quotation above from 

Yolks's brief makes clear. Courts have long distinguished between expressio 

unius and a claim that a broad construction would render other language 

redundant. E.g., Orlando Food Corp. v. United States, 423 F.3d 1318, 1324 (Fed. Cir. 

2005) ("The government's argument rests on two principles of statutory 

construction: (1) statutes should be construed to avoid holding language to be 

redundant, and (2) expressio unius est exclusio alterius."). Moreover, expressio 

unius is indeed "a useful aid" in the administrative setting "where the context 

shows that the 'draftsmen's mention of one thing, ... does really necessarily, or at 

least reasonably, imply the preclusion of alternatives' .... " Indep. Ins. Agents v. 

Hawke, 211 F.3d 638,644 (D.C. Cir. 2000) (quoting Shook v. District of Columbia Fin. 

Responsibility & Mgmt. Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998)); see also 

Christensen v. Harris County, 529 U.S. 576, 583 (2000) (using the maxim in the 

administrative context). This case fits that circumstance precisely. 

The Secretary then claims that she did not "spell out" a continuing, 

unlimited obligation to record unrecorded cases "because she was entitled to 

presume that employers would follow the law in the first place." What "law" 

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does the Secretary mean? She points to no place in the current regulations where 

that obligation can be found; instead, she admits that the regulations do not 

"spell out" the duty. The Secretary then retreats to Johnson Controls and General 

Dynamics,8 implying that they held "that the duty to record was an ongoing one 

throughout the five-year period" and arguing that the Secretary did not intend to 

"eliminate th[at] duty." This assumes that Johnson Controls rested on a 

construction of former Part 1904. But a careful analysis shows that it did not. 

The Secretary had argued that the former retention regulation was the locus of 

such a duty (15 OSHC at 2135 & n.2), but the Commission refrained from so 

holding. Moreover, the Commission stated in General Dynamics, 15 OSHC at 

2127 n.S that it was refraining from holding that the former regulations imposed a 

"continuing obligation." As Yolks has observed without dispute, "the 

Commission identified no words in the former regulations that imposed such an 

unlimited, continuing obligation." Opening Br. 20. Nor did Johnson Controls base 

its holding on the language of section 9( c). 

Instead, Johnson Controls rested on a general observation that violations 

continue to be violations until abated. 9 The Secretary does not dispute Yolks's 

point (Opening Br. 20) that whether an unlogged case continues to be a 

"violation" of the duty to record after the expiration of the recording period was 

only "assumed." The Secretary does not dispute our showing that a 

8 Unless otherwise indicated, references to Johnson Controls include General Dynamics. 

9 15 OS He at 2135-36: "Just as a condition that does not comply with a standard ... 

violates the Act until it is abated, an inaccurate entry on an OSHA form 200 violates the 

Act until it is corrected .... [A] failure to record ... does not differ in substance from any 

other condition that must be abated .... " 

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housekeeping violation continues to be a violation until abated only because the 

duty-triggering fact continues into the limitations period. She does not dispute 

our showing that, with respect to a failure to log a case, the duty-triggering fact 

("receiving information" of a recordable case) does not continue into the 

limitations period. It is crucial that the Secretary fails to defend the central 

assumption of Johnson Controls. 

Much of the Secretary's brief is instead built on the assertion that she could 

not have intended to write her regulations so as to depart from Johnson Controls. 

The Commission might wonder why the Secretary did not explicitly codify 

Johnson Controls when she overhauled Part 1904. Why did she instead continue 

to depend on the Commission to "spell it out"? 

The reason is that the Secretary knew that she lacks the statutory authority 

to codify Johnson Controls. Her only authority under section 8(c)(2) is to state the 

regulatory duty of an employer to record injuries. She may decide (based on 

substantive statutory factors and the rulemaking record) what facts trigger the 

duty, what the duty is, and by when it must be fulfilled. But section 8(c)(2) does 

not authorize her to state a violation period. She cannot write a regulation 

stating how long a violation continues, or artificially extending a violation so that 

it remains citable under section 9(c). She could not have written a regulation 

stating, "The duty imposed here continues until the case is recorded" or "record 

a case within seven days, and thereafter if not previously recorded." She could 

only do what she did: Write a regulation with a duty-triggering fact - such as to 

"include newly discovered recordable injuries" (§ 1904.33(b )(1)). 

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The situation is analogous to the unit-of-violation problem that the 

Commission faced in Reich v. Arcadian Corp., 110 F.3d 1192 (5th Cir. 1997); 

Hartford Roofing, Inc., 17 BNA aSHe 1361 (No. 92-3855, 1995); and other cases. In 

Arcadian, the Secretary argued that she may directly set a unit of violation (and 

thus a penalty multiplier) by rulemaking. The Fifth Circuit bluntly disagreed, 

holding that setting a unit of violation was outside the Secretary's authority to 

adopt "standards" and that any unit of violation must reflect the substantive 

duty imposed by a standard. 10 The same is true here. The "occurrence" of a 

"violation" must reflect the substantive duty spelled out by the cited regulation. 

3. Subsequent Judicial Decisions Have Undermined Johnson 

Controls; Stare Decisis Is No Obstacle Here. 

The Secretary asserts that subsequent judicial decisions have not eroded 

Johnson Controls. For example, the Secretary claims that subsequent decisions do 

not affect General Dynamics's statement that a "violation" need not be an overt act 

but merely a "noncomplying" condition. The argument is an invitation to error. 

First, the Supreme Court's 2002 Morgan decision is inconsistent with that 

view, for it held that, where a statute of limitations uses the term "occur," there 

10 The Fifth Circuit stated (110 F .3d at 1198-99): 

[Section 3(8)] permits the Secretary to promulgate standards governing 

"conditions" and "practices" of employment and within the workplace . 

... As such, the Secretary cannot set a unit of prosecution because, in most 

cases, a unit of prosecution has nothing to do with employment or 

workplace practices or conditions. An employee could be a unit of 

violation ... only if the regulated condition or practice is unique to the 

employee (i.e., failure to train or remove a worker). 

See also Chao v. OSHRC (Eric K. Ho), 401 F.3d 355, 368 (5th Cir. 2005) (multiple citation 

"is restricted 'to those standards which are capable of such interpretation."'). 

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must be a "happening" within the limitations period, not merely a passive 

continuation of a once-citable condition. 

Second, Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2170 (2007), 

is inconsistent with that view. Ledbetter demands that all elements of a violation 

must themselves occur during the limitations period; the continuation of a onceviolative practice into the limitations period is insufficient. For Title VII claims, 

this meant that discriminatory intent had to persist along with all other Title VII 

elements into the limitations period.ll Ledbetter no longer permits one to assume 

that a once-citable condition violates the Act until it is abated; one must inquire 

into whether and precisely what language of the cited regulation was violated 

during the limitations period. 

Johnson Controls did not make the inquiry required by Ledbetter. The 

Secretary nowhere disagrees with Volks (Opening Br. 20) that Johnson Controls 

merely "assumed" that an unrecorded case violates the Act until it is abated and 

that it "identified no words in the former regulations that imposed such an 

unlimited, continuing obligation." She never disagrees with Volks (Opening Br. 

19) that "the duty-triggering fact in § 1904.29(b)(3) - 'receiving information that a 

recordable injury or illness has occurred' - occurs at one specific point in time, 

11 Ledbetter stated: "these arguments fail because they would require us in effect to 

jettison the defining element of the legal claim on which her Title VII recovery was 

based. . .. Ledbetter asserted disparate treatment, the central element of which is 

discriminatory intent. ... However, Ledbetter does not assert that the relevant 

Goodyear decisionmakers acted with actual discriminatory intent either when they 

issued her checks during the [limitations period] or when they denied her a raise in 

1998 .... Ledbetter's argument [would] effectively eliminate the defining element of her 

disparate-treatment claim ... ," 

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not every day" and that "it was stipulated [that] the receipt of information 

occurred on the injury date, not thereafter." This alone should end the matter. 

As to Toussie v. United States, 397 U.S. 112 (1970) , the Secretary does not 

dispute Yolks' reading of Toussie, or that Johnson Controls is inconsistent with 

Toussie. Instead, she states only that it is "far from clear" that Toussie applies to 

civil cases; she does not unqualifiedly argue that it does not apply. She neither 

mentions nor disputes the recent holding of Center for Biological Diversity v. 

Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006), that Toussie does apply to civil 

cases. Her citation to Diamond v. United States, 427 F.2d 1246,1247 (Ct. Cl. 1970), 

is unavailing because that case held only Toussie is inapplicable to a pay dispute 

over monies owed; it did not deal with a civil penalty prosecution for a violation 

of a regulation or statute. 

As to Interamericas Investments, Ltd. v. Federal Reserve Sys., 111 F .3d 376, 382 

(5th Cir. 1997) , which states that a violation of a duty to record or report within a 

specified time cannot be a continuing violation, the Secretary argues that this was 

based not on the court's own view but on its deference to an agency's view. That 

is just wrong; this part of Interamericas was not based on deference but on only 

the holding of Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 

n.15 (1967) , that a violation "which, if it occurs at all, must occur within some 

specific and limited time span" is not a continuing violation. In any event, the 

Secretary nowhere disputes the authoritativeness of Hanover Shoe. 

As to stare decisis, it is unnecessary for the Commission to conclude that 

Johnson Controls was wrongly decided in 1993. It concerned different regulations 

with different wording, and emerged from a different legal environment. It was 

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issued before Morgan made clear what an "occurrence" is and before Ledbetter 

made clear that, before one can find a continuing violation, one must find that all 

elements of a violation have "happened" during the limitations period. It was 

issued before appellate courts made clear that passive violations cannot be 

continuing violations. 12 It was issued before the Supreme Court and several 

appellate courts issued decisions disapproving or barring a discovery rule in civil 

penalty prosecutions, a rule that figured strongly in Johnson Controls. Whether 

Johnson Controls was correct when issued, it cannot be considered authoritative 

now and must be re-examined in light of these developments, particularly 

because a reviewing court would do so. 

4. The Commission Did Not Address Yolks's Staleness Concerns in 

General Dynamics. 

The Secretary claims that the following footnoted statement in General 

Dynamics, 15 aSHC at 2130 n.16, has "already addressed" staleness concerns: 

"tl10se concerns do not arise where, as here, the alleged violations existed within 

six months before the citations were issued." 

This statement cannot survive Morgan or Ledbetter, which require during 

the limitations period an "occurrence" - i.e., happening - of each element of a 

"violation." They do not permit the absence of an event to be considered an 

"occurrence" of a "violation." The statement also cannot survive the many court 

12 E.g., Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007); Tolbert v. Ohio Dep't of 

Transp., 172 F.3d 934, 940 (6th Cir. 1999) . 

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.. 

of appeals opinions holding that inaction is not a continuing violation. 13 And 

neither these cases nor logic permit one to say, and no reviewing court will 

agree, that nearly five-year-old facts are not stale. A court will follow the 

holding of Machinists Local v. Labor Board, 362 U.S. 411, 422 (1960), that finding a 

violation "inescapably grounded on events predating the limitations period is 

directly at odds with the purposes of" a limitations period. 

S. The Secretary May Not Rely On A Discovery Rule. 

The Secretary's position on the discovery rule is unclear. At first, she 

seemed to abandon her principal argument before Chief Judge Sommer (upon 

which he prominently relied) that "Section 9( c) incorporates a discovery rule."14 

See J.D. at 5, citing Arcadian Corp., 20 BNA aSHC 2001, 2013 (No. 93-0628, 2004), 

among other cases. She at first implies that, as to Items 1 and 2, she is relying 

solely on the continuing-violation theory. Later, she tacks the other way and 

defends a discovery rule. With respect to Items 3 through 5, however, she relies 

on only a continuing-violation theory. 

As to whether 3M v. Browner, 17 F.3d 1453, 1460-63 (D.C. Cir. 1994), applies 

and whether a discovery rule can be read into Section 9(c), the Secretary's brief 

says nothing that Yolks has not already addressed in its opening brief. 

As to TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001), it is surprising that the 

Secretary fails to admit what the Solicitor General has admitted - that TRW 

13 Ironically, one of these is Connecticut Light & Power Co. v. Sec'y of Labor, 85 F .3d 89 (2d 

Cir. 1995), which the Secretary cites. It too requires a violative "action taken pursuant to 

[an unlawful] policy during the [limitations] period .... " [d. at 96 (emphasis added). 

14 Secretary's Response to Motion to Dismiss at 1 (filed Jan. 23, 2007). 

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"rejected the view that' a generally applied discovery rule' is implicit in federal 

statutes of limitations."ls Although the Secretary tries to invoke the "cries out" 

branch of TRW's first holding, she does not deny that the doctrine applies only to 

a sub-class of tort cases. She does not deny that OSHA is nowhere close to being 

the kind of devastated plaintiff the discovery rule contemplates. She does not 

deny that no devastating loss or damages cry out for redress, nor does she deny 

that a lack of recording devastates no one, causes no tragedies, is an "other than 

serious" violation, and is of low gravity. She does not deny that, unlike a tort 

plaintiff, OSHA has alternative remedies. Nor does she deny that Section 9(c) 

could be equitably tolled on the ground of fraudulent concealment by a false 

report. 

What she does offer is thin gruel indeed - that recordkeeping violations 

are "inherently undiscoverable." She does not deny that the discoverability of 

such violations depends entirely on appropriations from Congress, the efficiency 

with which the Secretary uses them, and the priorities she chooses. She does not 

deny the holding of 3M that to pass judgment on such matters would be 

inappropriate for a judicial or quasi-judicial body. And she again does not deny 

that she could require some or all employers to electronically report their 

injuries, hours worked and SIC Code (all required on Form 300A), and analyze 

the returns to find patterns of under-recording. That alone defeats her inherentindiscoverability argument. 

15 Fed. Resps. Br. Opp. Cert. at 6, Perna v. United States, No. 02-727 (U.S. Jan. 2003) (cert. 

denied 2003), available at www.usdoj.gov/osg/briefs/2002/0responses/2002-0787.resp.pdf. 

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," 

The Commission should hold: (a) that the discovery rule is inconsistent 

with and may not be applied under Section 9(c); and (b) that a violation is not 

"continuing" unless, within the limitations period, a violative act happened or, in 

the case of a failure to act, a duty-triggering fact happened. 

6. The Secretary's View is Not Entitled To Deference. 

The Secretary argues that her views of both Section 9(c) and the Part 1904 

regulations are entitled to Chevron-level deference. She fails, however, to show 

ambiguity, the threshold qualification for deference. As to Section 9(c), she never 

points to any word in it that is ambiguous; indeed, she studiously ignores its 

wording. As to the regulations, she points to nothing in them that is ambiguous. 

Instead, she relies on Johnson Controls, which never construed these regulations 

and did not rest its holding on the wording of the previous regulations. The 

Secretary's deference argument can be rejected on this threshold ground. 

The Secretary maintains that, although the Commission held that it owes 

the Secretary no deference on statutory construction, the D.C. Circuit has "held" 

the opposite. That is untrue, for all such expressions have been dictum,16 which 

does not bind a subsequent panel. 17 This is particularly true here, for in neither 

16 In A.E. Staley Mfg. Co. v. Secretary of Labor, 295 F .3d 1341, 1345 (D.C. Cir. 2002), the 

Commission and the Secretary agreed; see ide at 1351. Anthony Crane Rental, Inc. v. 

Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995), which Staley cited, involved a standard, as did 

S.C. Loewendick & Sons v. Reich, 70 F.3d 1291 (D.C. Cir. 1995). Auto Workers v. OSHA, 938 

F.2d 1310, 1319 n.9 (D.C. Cir. 1991), a section 6(£) decision, noted in dictum that precisely 

because CF&I Steel was limited to "regulations," it only "may" have impaired deference 

to the Commission as to the "statute." 

17 Cersman v. Croup Health Ass'n, 975 F.2d 886,897 (D.C. Cir. 1992), ("Binding circuit 

law comes only from the holdings of a prior panel, not from its dicta."). 

-17-
t' 

cited case was the point actually litigated, and in neither was Senator Javits's 

statement considered. See Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993). 

As to the regulations, the crux of the Secretary's argument is that "nothing 

in Mead diminished ... CF&I's [holding] that 'the Secretary's litigating position 

before the Commission is as much an exercise of delegated lawmaking powers as 

is the Secretary's promulgation of a workplace health and safety standard.'" The 

statement is wrong. The whole point of Mead was to overrule the notion that 

mere litigating positions deserved anything more than Skidmore weight. Mead 

even cited CF&I Steel as an example of a case in which Skidmore weight rather 

than Chevron deference was to be afforded. Mead, 533 U.S. at 235. 

B. Citation 2, Item 1: Form 301 Incident Report (§ 1904.29(b)(2» 

Yolks argued that § 1904.29(b)(2) is inapplicable because it requires an 

OSHA 301 Incident Report form only for injuries "entered on the OSHA 300 

Log." The Secretary never denies that this reading is compelled by the 

provisiol1'S plain language and its regulatory history. She points to 

§ 1904.29(b )(3) but it is inapposite, for it answers only the question, "How 

quickly must each injury or illness be recorded?," not whether it must be 

completed. Paragraph (b)(2) is the most specific provision on that issue. 

Applying the regulation as written results in the most rational and fair 

outcome. An employer who erroneously concludes that a case is not recordable 

and hence does not record it on either the Form 300 log or the Form 301 is 

penalized once - for the one underlying wrong recordkeeping decision. This 

rational and fair result also avoids, as the Commission correctly suggested, 

duplicative penalties. Item 1 must be vacated. 

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C. Citation 2, Item 3: Review of Log at End of Calendar Year 

(§ 1904.32(a)(1»i Item 4: Wrong Certifier of Log (§ 1904.32(b)(3» 

The Secretary makes no argument that warrants a response. 

D. Citation 2, Item 5: Too-Brief Posting of Summary (§ 1904.32(b)(6» 

'To make this item timely, the Secretary asks the Commission to re-write 

her regulation: Instead of employers being required to post the annual summary 

for the period from February 1st until April 30th, she asks that employers be 

required to post it "for any three-month period" during the calendar year if it 

had not been previously posted until April 30th. This is not permissible. 

First, the Secretary does not claim or show that the regulation is 

ambiguous; hence, any "interpretation" is unwarranted. Second, an employer is 

not guilty of violating a regulation that does not exist. The argument illustrates 

how far the theory of continuing violation underlying the Secretary's case strays 

from the words of her regulations. 

II. Conclusion 

Items 1 through 5 of Citation 2 should be vacated. 

Art r G. Sapper 

Robert C. Gombar 

James A. Lastowka 

McDERMOTT WILL & EMERY LLP 

600 13th Street, N.W. 

Washington, D.C. 20005 

(202) 756-8246, (202) 756-8087 (fax) 

Attorneys for Respondent 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 12, 2008, the foregoing was served Up011 

the following by first class mail on: 

Michael P. Doyle, Esq., Counsel for Appellate Litigation 

Robert W. Aldrich, Esq., Attorney 

Room S-4004 

Office of the Solicitor 

U.S. Department of Labor 

200 Constitution Avenue, N.W. 

Washington, D.C. 20036-3419 

Arth 

WDC991504712-2.076211.0011