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case number eight

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Morning, Your Honors.

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May it please the Court.

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My name is Daniel Mooney, arguing today on behalf of Petitioner Manuas, Inc.

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And I'd like to reserve three minutes for rebuttal, if I might.

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Manuas was cited for multiple violations of OSHA's cranes and derricks and construction standard.

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After a boom truck operated by Manuas, a crane contractor, which I'll call Apex today,

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made contact with a live power line, tragically killing three of Manua's employees.

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Now we don't dispute that the accident on January 14th, 2017, way down in the territory of American Samoa, involved multiple ocean violations.

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And they all stem from the operation of a boom truck near an electrical hazard.

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But we ask the court to carefully review today whether Manua's was chargeable for failing to address that electrical hazard

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particularly on summary judgment, where it lacked the expertise to anticipate that hazard and instead relied on its specialty contractor to anticipate that hazard.

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In Sasser Manufacturing and Electric Company, the commission squarely addressed, quote, the extent of an employer's duty under the act, unquote, when an employer with no expertise in the subject matter of the work hires a specialty contractor who has such expertise.

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And the commission held that where that disparity in expertise exists, the employer is naturally justified in relying on the specialist to anticipate and guard against hazards within that specialist's expertise where that reliance is reasonable.

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So here the hallmarks of SASR were clearly present.

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There was a stark disparity in expertise between Manuas and its contractor.

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Manuas was a retailer.

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Apex was a credentialed crane operator.

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How many employees of the petitioner were working on the crane?

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Approximately 12, Your Honor.

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Out of how many?

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Out of approximately 100.

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The petitioner has three retail stores and three warehouses in American Samoa and about 100 employees at that time.

[00:03:42] Speaker 04:
No, no, no, excuse me.

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I'm asking out of how many working on the crane?

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Oh, certainly, Your Honor.

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The record was ambiguous in that regard, in terms of how many APEX employees showed up for the work.

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But we do know that there was a crane operator, there was a supervisor, which had worked with Minua's on prior projects, and there were at least, depending on who you believe at the deposition testimony, up to six other APEX employees.

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So the majority of employees were the employees of the petitioner.

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Working on the crane.

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Yes, in terms of numbers, yes, that's correct, Your Honor.

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But the record below was ambiguous as to what all of those employees were doing.

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Were they helping with the crane?

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It's very unclear from the record below.

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So the hallmarks of SASR are present here, and that includes that the electrical hazard, which is the boom truck's proximity to a power line, was clearly and uniquely related to APEX expertise, not MANUA's.

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So the commission was obligated to apply SASR to this case and then proceed to a full and fair analysis under the SASR and summary judgment standards of whether MANUA's reliance on APEX was unreasonable as a matter of law.

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Instead, the commission's attention was diverted by cases imposing a heightened duty on a general contractor employer.

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to affirmatively anticipate and ensure that its subcontractor will address the hazards at issue.

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And that makes sense because a general contractor rather than a retailer has the necessary skills to generally know what hazards exist on a construction project or at least to know what questions to ask of its sub to ensure that those hazards are addressed.

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So what do you understand the commission to have said

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your client should have asked.

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What the commission said, Judge Roberts, the

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that my client should have asked of the, well I think that the commission basically said and bought into the secretary's argument that Manuas simply did nothing to ensure its employees' safety.

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And that's a splashy argument and it certainly provoked the ire of the ALJ and the commission.

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So what did the commission say your client should have asked?

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The commission didn't specify that.

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It simply cited the cases regarding general contractors for the propositions that MANUA should have taken reasonable steps to address and ensure that the contractor addressed the hazards.

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But that's a meaningless inquiry because MANUA, as a retailer, certainly didn't know what questions to ask.

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It could have said...

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I have 12 employees working on this job at your request.

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What safety precautions have you to protect my employees?

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Certainly, Minua's could have asked that question.

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Did the commission require it to ask anything more?

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It did, Your Honor.

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What more?

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I think the Commission is requiring MANUAS to anticipate and guard against the cited hazard, which is an electrical hazard.

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And that hazard is something that MANUAS simply did not have the expertise to anticipate and guard against.

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Well, what I'm getting at, MANUAS is a business operation.

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It has some knowledge about how the world works.

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And one of the arguments you make is that it hired these people to work on electrical matters before.

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So when your MNU's employee says to the crane operator, can you move and unload these steel bars closer to something?

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And the crane operator says, no, can't do that because that would bring us too close to the electrical wire.

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So your client is on notice at that point, right?

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We've got a dangerous situation here if the crane operator moves.

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Certainly, and I'm glad that you picked up on that because the ALJ completely ignored that exchange, which I think is extremely relevant to the notice issue.

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So it cuts both ways, doesn't it?

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That's the interesting thing I thought about it.

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Yes.

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Your client may not have any expertise, but it knew there was this dangerous wire

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in the working area.

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Certainly, Your Honor, but the distinction there is that that wire was a completely different electrical hazard than the one at issue.

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So when Manuas asked that question and got that information,

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it bolstered Manua's reliance on that contractor that they were aware of and were anticipating generally electrical hazards.

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It didn't put them on notice of the wire that actually caused the accident.

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And it certainly didn't give Manua's any information with which Manua's could then go and make its own assessment.

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That's why I asked you, what is your understanding of what the commission required your client to ask?

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And you say, if you didn't say,

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because it found your client didn't do anything.

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So you take that to mean your client would have to come up with a notebook of questions, tales about how this operator is going to function, et cetera.

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I don't see that in the commission's opinion anyway.

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Correct.

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Yeah, Your Honor.

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But where is that?

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But the commission didn't specify anything that Manuas could have done that would have actually meaningfully kept its employees safe.

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It said, can't do nothing.

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Sure.

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And that's, I think that that language that the commission bought into is both legally misguided in light of Sasser.

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And it's factually incorrect.

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Your Honor, too, was.

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Because your argument primarily

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contention that you should have been able to have more evidence and the summary judgment was improper?

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Certainly, Your Honor, yes.

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And what is our scope of review on this question?

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Your Honors are entitled to look at the Commission's decision and determine whether those factual conclusions as a matter of law were supported by substantial evidence in the record.

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there is substantial evidence in the record that shows that Manuas took steps within its ability, its limited ability, as a retailer to keep its employees safe.

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It couldn't make... But with respect to the summary judgment question, which one of the commissioners descended on, did the petitioner propose to introduce specific evidence to show

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the reason he relied on the contractor.

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Oh, absolutely, Your Honor.

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No, no.

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What specific evidence?

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What specific evidence?

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I took, perhaps I misread the record, but I thought the petitioner wanted to show that how he had relied in the past on the contractor, but didn't indicate

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in what way the contractor was working and in what way the petitioner relied.

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Thank you for that question, Your Honor.

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The Manuas had worked with Apex in the past, and in the record, there is testimony that those projects that Apex performed for Manuas in the past included electrical work, and they included work with heavy equipment, such as an excavator.

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From the perspective of a lay person,

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One is reasonable in believing that someone who... Was this evidence in the record?

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Absolutely, Your Honor.

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So why then is there a contention that you should have been entitled to produce further evidence?

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Because the evidence was ambiguous in terms of to what extent that work was done.

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You could have put that evidence in, right?

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Certainly, and we did.

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And the question then is whether or not the substantial evidence on the whole record supports.

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I don't see that there's a big issue on whether summary judgment was appropriate.

[00:12:43] Speaker 04:
Well, Your Honor, the problem is, in addition to the... In other words, the agency may be right or wrong, but I don't see the procedural point here.

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Right.

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Because I don't see that there was any evidence that your client was prepared to introduce

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that they didn't have an opportunity to produce.

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Well, certainly, Your Honor.

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The commission both erred on the fact that it disregarded substantial evidence and it applied the wrong legal standard, which it's not entitled to deference on.

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This court can sit and question that.

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That court's application of cases like Fabi, which deals with a general contractor, and cases like

[00:13:24] Speaker 04:
Well, it drew its distinction with Fabi, didn't it?

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It applied the rule in Fabi rather than the rule in Sasser.

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Oh, excuse me, it distinguished Sasser.

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It paid lip service to Sasser.

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It's not as if the agency ignored the... They read them differently than you read them.

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That's correct, Your Honor.

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That's the point.

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That's where I'm concerned about our deference.

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Even if we conclude we would have decided differently, that doesn't mean we are allowed to reverse.

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The agency is bound to apply similar cases similarly.

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And that, if they don't, that is arbitrariness.

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That's Caprice.

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They drew a distinction between those two cases.

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They did, but it was a distinction without a difference, Your Honor.

[00:14:18] Speaker 01:
So I don't understand that, because I know you wanted to reserve time, but we usually give you time for rebuttal.

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Here's what I understand about the notion that it's an arbitrary distinction, which is what Sasser was about, and I'm reading from Sasser, there's no evidence that anyone realized that the operator might swing the boom too close to the power lines.

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Because what happened there was it was kind of this momentary thing.

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The boom got swung.

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Nobody thought that it could get within 10 feet, but then for some reason the operator swung it in the way that it got within 10 feet on the spur of the moment.

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Correct.

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But that's a spur of the moment type of thing.

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This case, part of what the commission is saying here, and part of the distinction drawn in 5E, was that these two cases are not spur of the moment type of things.

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Because for example, demarcating a zone.

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Demarcating a zone, which is one of the violations, that's not something that happens on the spur of the moment.

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That can happen substantially in advance.

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So it's just a different kind of concern that was at issue in Sasser.

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That was a spur of the moment swing of the boom that nobody could have foreseen.

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Whereas here, the failure to demarcate the zone is something that everybody can foresee.

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Certainly.

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In Fabi, the court found that because the employer was a general contractor, it had reason by way of, and I think this is a quote, expertise, control, and time to anticipate that hazard.

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Here and in Sasser,

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The time that the work was performed only gave Manuwa's reason to believe that the work was performed safely.

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It was performed safely over an entire day of operation, a previous day, when nothing happened and there were no citations from OSHA.

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But there still wasn't a zone demarcated.

[00:16:03] Speaker 02:
Certainly, but how does MANUAS know, without the expertise to do so, what the maximum working radius of that crane is in order to demarcate a work zone?

[00:16:14] Speaker 01:
Only APEX had that expertise.

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You can ask the question of whether it was even done.

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It seems quite different to have a demarcating boundaries issue.

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which is something that doesn't occur on the spur of the moment and something that occurs on the spur of the moment as to which there can't be any reasonable foreseeability because nobody foresaw it.

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If anybody can foresee

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whether there's a boundary demarked.

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The other similarity I would draw between this case and Sasser that I think the commission completely ignored is that it was a spur of the moment accident.

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Even the OSHA inspector found, just like in Sasser when the crane was swinging one way and unexpectedly swung the other way and made contact, the OSHA inspector found that the entire duration of the work on the day of the accident involved the crane boom

[00:17:01] Speaker 02:
not being fully extended, so that no layperson, without knowing what the specifications of that crane were, could extend to... But what about the identifying?

[00:17:11] Speaker 01:
I don't understand what that has to do with identifying the work zone.

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With identifying the work zone, that's just by definition, that's not a spur of the moment thing.

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Unless, does the work zone shift?

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during the project on a minute-to-minute basis?

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Absolutely.

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On each work site, the work zone is defined by the maximum working radius of the crane.

[00:17:30] Speaker 01:
Right, but it's not like something that fluctuates.

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It's not like the work zone at 302 is 75 feet, and then the work zone, because of the way the crane swings at 302 and 30 seconds, is 47 feet.

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Am I wrong about that?

[00:17:43] Speaker 02:
No, I think that's right.

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If the boom truck remains in the same place, stationary, the work zone would be the same.

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But my point is that Manuas could not be reasonably expected to make that determination or to even know what the work zone should have been.

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It doesn't have to be demarcated with flags.

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It just has to be established.

[00:18:06] Speaker 04:
But isn't it reasonable to expect him to inquire about that?

[00:18:11] Speaker 02:
No, because he doesn't know that... He's got 12 employees in an inherently dangerous situation.

[00:18:21] Speaker 02:
No, because he's never operated a crane before.

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He doesn't know what that crane's working radius is, and there aren't physical

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visual demarcators every time in a work zone delineation.

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The crane contractor has to do that, just has to establish what that is based on that maximum work area.

[00:18:41] Speaker 01:
It still seems to me to be indisputable, and you might think it might be indisputable, but that doesn't matter as a legal matter, but it seems to me to be indisputable that there's a distinction between coming within 10 feet on the spur of the moment and demarcating a work zone, and that demarcating a work zone is something that can be done in advance.

[00:18:59] Speaker 01:
Coming within 10 feet, the way that the commission construed what happened at Sasser, is something unexpected that happened on the spur of the moment.

[00:19:06] Speaker 01:
Demarcating a work zone is not something unexpected that happens on the spur of the moment.

[00:19:09] Speaker 01:
It's just something that you have to do in advance.

[00:19:11] Speaker 01:
But it's certain... Isn't that just a fair... Isn't what I've described an actual distinction?

[00:19:17] Speaker 01:
Now you might think as a matter of law that distinction shouldn't matter, but it just seems to me it's a physical fact about the world that what I just described is a real distinction.

[00:19:24] Speaker 02:
Sure, Your Honor, it's not a spur-of-the-moment thing, but it did have to happen on the morning of that accident, and Manuas did not have, within its experience, time to go to—or the knowledge to go to Apex and say,

[00:19:42] Speaker 02:
Give me the technical details of this crane.

[00:19:47] Speaker 02:
Tell me the maximum working radius.

[00:19:48] Speaker 01:
It's a question of how the commission should have been compelled to read SASR.

[00:19:56] Speaker 01:
Because if you think that what SASR means is

[00:19:59] Speaker 01:
If there's a disparity in expertise, then the employer just gets to siphon off everything to the contractor.

[00:20:06] Speaker 01:
If that's the way to read sassers, then right.

[00:20:08] Speaker 01:
I mean, your argument has more force.

[00:20:10] Speaker 01:
But if the way to read sassers is what the commission was concerned with was unforeseeable spur of the moment dangers that come about, then

[00:20:18] Speaker 01:
then what the commission did this time wouldn't be out of source with SASR because it would be in keeping with SASR and drawing that very distinction.

[00:20:26] Speaker 02:
Yeah, and we're not even arguing that because of that disparity in expertise you can just siphon off everything.

[00:20:32] Speaker 02:
You still have to be reasonable.

[00:20:33] Speaker 02:
You still have to not have evidence that would have given a lay employer notice of that particular hazard.

[00:20:41] Speaker 02:
We're arguing that

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That reasonableness was here.

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That notice was not present.

[00:20:47] Speaker 02:
And at least for purposes of summary judgment, that determination couldn't be made for this matter of law.

[00:20:51] Speaker 03:
So let me ask you a question about the summary judgment aspect of this.

[00:20:58] Speaker 03:
This may not be your argument, but I almost read it to say that if SASA were to come before the commission today,

[00:21:06] Speaker 03:
it wouldn't come out the way it did, or at least the majority wouldn't.

[00:21:09] Speaker 03:
It would go with the dissent, which describes a very different picture of the factual situation that the majority relied on.

[00:21:22] Speaker 03:
So here, is it clear from the record that while the contract was general, but the obligation of the crane was to move these steel bars out of the containers

[00:21:35] Speaker 03:
and put them on the ground, that there was no anticipation that the crane operator would move the bars anywhere near 20 feet of this dangerous wire.

[00:21:56] Speaker 03:
And that the inspector, the ocean inspector, couldn't figure out how this happened.

[00:22:04] Speaker 03:
And in thinking about this case, I thought, I wonder how it did happen.

[00:22:09] Speaker 03:
Did the operator lose control?

[00:22:10] Speaker 03:
Or was he trying to meet your client's preference to have these steel bars deposited on the ground closer to the area

[00:22:28] Speaker 03:
so that your client wouldn't have to transport them as far.

[00:22:31] Speaker 03:
I don't know.

[00:22:31] Speaker 03:
And the record doesn't tell us.

[00:22:33] Speaker 03:
And that's what I'm trying to understand about this case.

[00:22:36] Speaker 03:
If the zone was clearly from A to B and the dangerous crane is at point C, then why isn't this a spur of the moment situation in terms of even the ocean inspector?

[00:22:57] Speaker 03:
can't figure out what happened, but he does cite your client for these four violations, would you agree?

[00:23:06] Speaker 03:
You're not challenging that you didn't violate those.

[00:23:10] Speaker 02:
We're not challenging that there were violations, and I do think that the record does make clear that

[00:23:17] Speaker 02:
that it's unclear why this accident happened the way it did.

[00:23:21] Speaker 02:
There's nothing in the record that would support that the reason that boom extended at the last moment and touched the power line was because of where Manua's directed Apex to put the beams.

[00:23:35] Speaker 02:
Apex, by all testimony in the record, was simply just putting them the way that they could, for convenience or whatever.

[00:23:45] Speaker 02:
But the question about putting the beams closer to the construction site was the day before, the prior day of unloading.

[00:23:52] Speaker 02:
And as soon as Apex said, no, we can't do that safely because of this other power hazard, Manu is backed off.

[00:24:00] Speaker 02:
They said, okay, you're the boss, you're the expert, we won't do that because that's unsafe, you told us.

[00:24:06] Speaker 02:
So that's not the reason why these beams are being placed closer to the power lines.

[00:24:15] Speaker 02:
Does that answer your question, Your Honor?

[00:24:19] Speaker 03:
All right, let us hear from the... Quite a ways over my time, so thank you.

[00:24:24] Speaker 03:
Gordon, I'll give you some time on the ball.

[00:24:41] Speaker 00:
We're here today because Manuas failed to ensure the safety of its warehouse and maintenance employees when it sent them to participate in a dangerous construction operation.

[00:24:57] Speaker 00:
As a result, three employees were killed and a fourth was seriously injured.

[00:25:01] Speaker 00:
The only issue before the court today is whether the commission is within its discretion when awarding summary judgment to the Secretary, where the undisputed evidence establishes that Manuwa's employees were exposed to the cited violations while assisting in dangerous construction work, and Manuwa's reliance on APEC's to ensure its employees' safety was unreasonable.

[00:25:19] Speaker 00:
Turning to the issue of reasonable reliance, under the OSHAC, an employer is responsible for the safety of its employees.

[00:25:27] Speaker 00:
What Manuas did in this case was plainly inadequate to satisfy its duties under the act.

[00:25:30] Speaker 00:
It sent its own employees to do construction work, though it knew the work was dangerous and knew that its employees were not qualified.

[00:25:37] Speaker 00:
It didn't discuss safety with APEX at all.

[00:25:40] Speaker 00:
Nothing in SASR or any other case law permits an employer to do what Manuas did.

[00:25:45] Speaker 04:
Can I suggest something for you, Council?

[00:25:46] Speaker 04:
Yes.

[00:25:49] Speaker 04:
lawyers arguing before us to read the argument.

[00:25:52] Speaker 04:
Yes.

[00:25:53] Speaker 04:
And it's also hard to hear.

[00:25:55] Speaker 04:
I apologize.

[00:25:56] Speaker 04:
So I suggest that you just speak extemporaneously.

[00:25:59] Speaker 04:
You must know the case.

[00:26:00] Speaker 00:
I do.

[00:26:00] Speaker 00:
Yes.

[00:26:01] Speaker 00:
Thank you, Your Honor.

[00:26:03] Speaker 00:
SASRA does not permit an employer to simply send its employees into a dangerous work site without doing anything to ensure their safety.

[00:26:12] Speaker 03:
So what do you think the commission is requiring an employer?

[00:26:16] Speaker 00:
I think this court need not reach the issue of what would have been reasonable here under these circumstances, because here, Manua didn't do anything at all in order to.

[00:26:26] Speaker 03:
Well, Manua argues it did some things.

[00:26:30] Speaker 03:
And the commission says, not enough.

[00:26:33] Speaker 03:
And the commission says, well, look at all these other cases.

[00:26:38] Speaker 03:
Manua comes back and says, but look at Sasser.

[00:26:43] Speaker 03:
And so you heard the discussion.

[00:26:45] Speaker 03:
that Shmita Vossan had with counsel.

[00:26:47] Speaker 00:
Yes.

[00:26:50] Speaker 00:
Sasser differs from this case on several other factual distinctions in addition to the spur of the moment issue.

[00:26:59] Speaker 03:
Well, the commission found four distinctions.

[00:27:03] Speaker 03:
All right.

[00:27:03] Speaker 03:
The question is substantial evidence in the record to support, even though Manoa can point to evidence that goes the other way.

[00:27:15] Speaker 00:
I'm afraid I don't understand the question.

[00:27:17] Speaker 03:
You don't understand whether the four distinctions that the Commission made are supported by substantial evidence in the record, even though there's evidence pointing the other way?

[00:27:28] Speaker 00:
I do understand that those are supported by substantial evidence in the record, and the distinctions between this case and SAS are supported by the undisputed record.

[00:27:37] Speaker 00:
It's undisputed that Manoa has sent 12 of its employees into a dangerous work site.

[00:27:45] Speaker 00:
It's undisputed that the contractor asked Manoa

[00:27:56] Speaker 03:
to have its employees assist it in carrying out the contract.

[00:28:03] Speaker 00:
Yes, to the extent that Apex arrived and asked for a construction and told them that they needed a construction.

[00:28:08] Speaker 03:
What I'm getting at is we're in summary judgment, and the non-moving party gets the benefit of favorable inferences.

[00:28:17] Speaker 03:
So I'm trying to get you to focus on substantial evidence here to support the Commission's findings.

[00:28:24] Speaker 03:
And we're talking principally about SASA and the distinctions between SASA.

[00:28:29] Speaker 03:
And the fact there was evidence in the record that Manoa is arguing should have entitled it to some favorable influences.

[00:28:40] Speaker 03:
It doesn't argue the case this way, but that's the implication of its brief

[00:28:45] Speaker 03:
And therefore, summary judgment was inappropriate.

[00:28:51] Speaker 00:
I disagree that summary judgment was inappropriate.

[00:28:53] Speaker 00:
APEC's arrived and told Manuas that it needed a construction crew.

[00:28:57] Speaker 00:
And at that point, Manuas agreed to send its own untrained, unqualified employees to do construction work.

[00:29:05] Speaker 03:
Well, they were to what?

[00:29:09] Speaker 03:
Exactly.

[00:29:10] Speaker 00:
They were to rig?

[00:29:11] Speaker 03:
Onload the bars.

[00:29:14] Speaker 00:
They were to rig the 40-foot steel beams to the crane and then unrig them.

[00:29:20] Speaker 03:
And that means what?

[00:29:23] Speaker 00:
That means they chained the beams.

[00:29:25] Speaker 00:
They climbed into the shipping containers.

[00:29:28] Speaker 03:
And it's steel chains.

[00:29:30] Speaker 00:
I believe so, yes.

[00:29:32] Speaker 03:
Well, I mean, we've got to be clear.

[00:29:34] Speaker 03:
I mean, that's not rocket science.

[00:29:37] Speaker 00:
No, but it's still dangerous construction work.

[00:29:40] Speaker 03:
Yes.

[00:29:41] Speaker 00:
And they were still retail employees.

[00:29:44] Speaker 00:
They were warehouse and maintenance employees.

[00:29:46] Speaker 00:
Their jobs were to mow the lawn and to sweep the warehouse and to stack boxes.

[00:29:50] Speaker 03:
Oh, presumably these were sturdy guys, strong guys who could move these chains around.

[00:29:58] Speaker 03:
And then they left when the crane pulled the bars out and put them on the ground.

[00:30:05] Speaker 00:
They left the shipping containers?

[00:30:08] Speaker 00:
I'm sorry, I think I misunderstood the last thing that you said.

[00:30:14] Speaker 03:
I'm trying to understand, and Judge Silberman was exploring this with counsel, the nature of summary judgment.

[00:30:21] Speaker 03:
Yes.

[00:30:24] Speaker 03:
For various reasons, Manua takes issue with the distinctions in SASA.

[00:30:34] Speaker 03:
And on summary judgment, as a non-moving party,

[00:30:38] Speaker 03:
Why isn't it entitled to some of these inferences?

[00:30:42] Speaker 03:
It's arguing here.

[00:30:44] Speaker 03:
Why is the commission's finding conclusive?

[00:30:50] Speaker 00:
It is entitled to those inferences under summary judgment.

[00:30:53] Speaker 00:
But even with those inferences, the record shows that the NUIS did not reasonably rely on APEX.

[00:30:59] Speaker 00:
And it sent its own unqualified employees into a dangerous construction site without doing anything to ensure their safety whatsoever.

[00:31:06] Speaker 00:
And SASR does not hold that that's appropriate.

[00:31:08] Speaker 03:
Well, Manoa says it did tell its employees to wear the safety equipment that it required.

[00:31:17] Speaker 03:
And somebody told them, be careful, or something like that.

[00:31:22] Speaker 00:
It did not discuss safety with the contractor at all.

[00:31:24] Speaker 00:
It didn't tell the contractor that the contractor would be responsible for those employees' safety.

[00:31:29] Speaker 00:
It didn't ask about safety issues at all.

[00:31:34] Speaker 00:
merely telling your employees to be careful when they go into a dangerous construction site is something other than, you know, delegating object responsibility.

[00:31:41] Speaker 03:
So at a minimum, the contract should have said something explicit about whose responsibility it was to ensure the safety of any of Manoa's employees who are working on the job?

[00:31:55] Speaker 00:
I think that that would have made it more reasonable, Your Honor.

[00:32:01] Speaker 00:
I think that's at least an agreement with APEX to make it clear who would be responsible for the employees.

[00:32:06] Speaker 04:
Well, no, you don't really mean, excuse me.

[00:32:08] Speaker 00:
Go ahead.

[00:32:09] Speaker 04:
You don't really mean to say that the petitioner could have avoided all liability by simply contracting with APEX.

[00:32:23] Speaker 00:
No, but I think that a clear agreement between Apex and Manu is about who was responsible.

[00:32:28] Speaker 04:
Your basic position, if I understand it, is with 12 employees working for Apex, in circumstances which even a retail man may see presented some risk, it was incumbent upon the petitioner to question the contractor as to what he would do to protect

[00:32:53] Speaker 04:
And certainly, simply signing a contract whereby the contractor would have all responsibility would not, if I understood your commission's determination, would not have excused petition.

[00:33:15] Speaker 00:
No, but I believe that it would have certainly been a step in the right direction.

[00:33:18] Speaker 00:
It's something that you know.

[00:33:19] Speaker 03:
No, but this is critical, it seems to me, what Judge Silverman is asking you.

[00:33:26] Speaker 00:
To delegate OSHA responsibility to the other party alone without doing anything else, I don't think would be enough, no.

[00:33:33] Speaker 04:
You have to, as I understand your position, is that the petitioner should have asked questions concerning in what way its employees would be protected against rather obvious hazards.

[00:33:50] Speaker 00:
My position is that the petitioner should have at least asked questions and made clear which party was responsible.

[00:33:56] Speaker 04:
Is that the same thing I just said?

[00:33:58] Speaker 00:
It is.

[00:33:59] Speaker 00:
It's at least.

[00:34:01] Speaker 00:
It's at least.

[00:34:03] Speaker 00:
It would require at least that much.

[00:34:05] Speaker 04:
That's what I took to be the opinion of the commission.

[00:34:09] Speaker 00:
Yes, in that case we agree.

[00:34:10] Speaker 01:
In other words, for summary judgment purposes, what matters is if there's a genuine issue of material fact.

[00:34:15] Speaker 01:
And what you're saying is the things that Manuas has pointed to aren't material fact, aren't material, given the way the commission assessed the case and the way you're defending the commission's assessment of the case.

[00:34:26] Speaker 00:
That's right.

[00:34:27] Speaker 00:
And I would also say that some of them aren't factual disputes at all.

[00:34:30] Speaker 00:
They're just disagreements with legal conclusions.

[00:34:32] Speaker 00:
They're what?

[00:34:33] Speaker 00:
Just speak up.

[00:34:33] Speaker 00:
I'm sorry.

[00:34:34] Speaker 00:
They're disagreements with legal conclusions.

[00:34:36] Speaker 00:
I can offer an example from their brief.

[00:34:39] Speaker 00:
They argue that the prior experience with APEX should have, that the judge ignored it and it should have been considered.

[00:34:46] Speaker 00:
But that information is in the record and the judge actually mentions it in the decision.

[00:34:52] Speaker 00:
They merely disagree with the judge's legal conclusion that the relevant prior experience with APEX would have been prior crane work as it was in SASR.

[00:35:00] Speaker 03:
Well, they say evolving electrical and moving heavy equipment.

[00:35:07] Speaker 00:
Yes, and the judge considered that but found that what would have been relevant to reasonable reliance was prior crane work, specific crane work experience with the contractor.

[00:35:21] Speaker 00:
So to the extent that they argue that those facts were ignored, they weren't ignored, not only were they not ignored, they're in the decision.

[00:35:28] Speaker 01:
I thought, because to me the commission says this at the end of its decision, indeed in SASA there was no violation of the cited standard until seconds before the crane's contact with the power line because prior to that moment the contract was in compliance with the standard then in effect.

[00:35:41] Speaker 01:
which required that the maximum extension of the boom be no less than 10 feet away from the power lines.

[00:35:44] Speaker 01:
And then to contrast it with this case, here there were several violations of the cranes and derricks and construction standard from the moment the unloading work began, such as a failure to identify the work zone, and then to determine if the boom could get closer than 20 feet, and to demarcate the 20 foot boundary.

[00:36:03] Speaker 01:
So the main distinction the commission was relying on, as I understand it, is that in Sasser,

[00:36:09] Speaker 01:
There was nothing that happened until the moment that there was a boom swing.

[00:36:15] Speaker 01:
Whereas here, there were all kinds of things that happened way before that, and there was no effort made by Manu as to raise any inquiries about any of that.

[00:36:23] Speaker 01:
And it could have been reasonably expected to have done all of that, notwithstanding anything that was said in Sasser, because Sasser was about a situation in which there was, quote, no violation of the sighted standard until seconds before the crane's contact.

[00:36:35] Speaker 00:
Yes, I agree.

[00:36:35] Speaker 00:
I do think that that is a distinction that the commission drew and that there were other additional factual distinctions that brought this case even further from Sasser.

[00:36:42] Speaker 01:
But do you think this distinction is not enough, or do you – you don't read the commission to think that this distinction is enough?

[00:36:49] Speaker 00:
I do read the commission to think that this distinction is enough.

[00:36:52] Speaker 00:
To think that this distinction is enough.

[00:36:53] Speaker 00:
And in addition, there were other distinctions that make this case wholly different from SASSR.

[00:36:59] Speaker 00:
Moving on.

[00:37:06] Speaker 00:
Vanuas incorrectly argues that the secretary's position in this case would require it or any employer to become an expert in the specialty work that a specialty contractor does that is not the secretary's position.

[00:37:18] Speaker 00:
An employer can rely on specialty contractors to perform work with a crew of specialty workers, with the contractor's own workers, but where they've lent their own employees to this operation, to a different employer, a specialty contractor or otherwise,

[00:37:35] Speaker 00:
They would – they need to take adequate steps to ensure those workers' safety, which, as we said, would involve at least inquiry and delegating object responsibility.

[00:37:46] Speaker 00:
I see that I'm very close to being over time.

[00:38:03] Speaker 02:
Your Honor, just briefly, the Secretary continues to argue that Manuas did nothing and that that determination by the Commission was sufficient under its obligations to follow precedent that looks exactly like this case and apply the summary judgment standard.

[00:38:19] Speaker 02:
And again, that's a splashy argument that makes Manuas look bad.

[00:38:25] Speaker 02:
But I think it's legally misguided and it's just factually incorrect.

[00:38:29] Speaker 02:
We have cited numerous facts in our briefing that show Manuas did take reasonable steps as a retailer within its limited experience as a retailer.

[00:38:42] Speaker 02:
and Your Honor pointed out some of them, to make sure that its employees were able to safely perform the limited task that its specialty contractor asked them to perform, to tie the beams.

[00:38:57] Speaker 04:
Now, the Secretary says that... Counsel, you're arguing in this case as if we were the Occupational Safety and Health Review Commission, rather than the Court of Appeals reviewing a decision of the Commission.

[00:39:12] Speaker 02:
Well, I think that's because the court, this court, has the same authority to apply and analyze legal precedent and whether the commission applied like precedent to this like case.

[00:39:26] Speaker 04:
Yes, but as Judge Srinivasan said, and as I implied earlier, there was enough of a distinction between Foley and Sasser.

[00:39:36] Speaker 04:
for the agency to reasonably draw a distinction, not necessarily one I would have drawn, but reasonably draw one.

[00:39:44] Speaker 04:
And once that's done, where are you without an argument based on Favi and Sasser?

[00:39:54] Speaker 02:
Well, Your Honor, I don't think that the distinction drawn by the Commission was reasonably supported by the Substantial Advocacy Record.

[00:40:02] Speaker 04:
Let me repeat my question.

[00:40:03] Speaker 04:
Where are you without that distinction?

[00:40:05] Speaker 02:
Where am I without that distinction?

[00:40:07] Speaker 02:
Yes.

[00:40:08] Speaker 04:
Where's your case without that distinction?

[00:40:10] Speaker 04:
Without talking about those two cases.

[00:40:14] Speaker 04:
Let's suppose this is a new case.

[00:40:17] Speaker 02:
Certainly, Your Honor.

[00:40:18] Speaker 02:
I think we're back to trial to show the steps that Manuas did take and to prove to the judge that those steps were reasonable under the circumstances.

[00:40:29] Speaker 04:
Why isn't it under our limited scope of review, why isn't it

[00:40:34] Speaker 04:
incumbent upon us to determine that the agency's decision was at least reasonable.

[00:40:42] Speaker 04:
Because the court... It was based on evidence, substantial evidence.

[00:40:47] Speaker 02:
Because I don't think the substantial evidence exists to support the commission's determination that Sasser did not squarely apply in this case.

[00:40:56] Speaker 04:
Well, no, counsel, I ask you to put aside Sasser and Fabig for a moment because

[00:41:03] Speaker 04:
I agree with my colleague that there is a distinction between those two cases.

[00:41:08] Speaker 04:
But put aside those two cases.

[00:41:10] Speaker 04:
Let's assume this case came up ab initio.

[00:41:15] Speaker 04:
What is your argument as to why the commission is wrong to the point that we should reverse?

[00:41:23] Speaker 02:
Because the commission failed to analyze the record as a whole and to determine that manuas

[00:41:34] Speaker 02:
reliance on its special contractor was unreasonable.

[00:41:37] Speaker 04:
In what way had they failed to analyze the record as a whole?

[00:41:41] Speaker 02:
Because they omitted complete and very important key facts that we did put in the record.

[00:41:47] Speaker 02:
They said that Manuas specified no specific facts to rebut the Secretary's position.

[00:41:53] Speaker 02:
That's just not the case.

[00:41:55] Speaker 02:
The Commission stuck its head in the sand in terms of a lot of the things, a lot of the testimony down

[00:42:02] Speaker 02:
below at the ALJ level.

[00:42:06] Speaker 02:
So we would just argue, and we pointed these out in our briefs, the electrical hazard assessment that Manua's witnessed APEX make, which put it on notice only that APEX was looking out for the employees, was looking out for hazards, was taking responsibility and control over the safety of the work site.

[00:42:25] Speaker 04:
How can we reverse OSHA's determination

[00:42:29] Speaker 04:
that the petitioner did not do an adequate job in inquiring as to what the contractor would do to protect its employees.

[00:42:45] Speaker 02:
Because of this court's rule that it is required to apply like cases alike.

[00:42:54] Speaker 04:
But I do think that your case totally depends on the proposition that Sasser governs.

[00:43:03] Speaker 02:
Absolutely.

[00:43:04] Speaker 04:
That's your case.

[00:43:05] Speaker 04:
If we disagree with you, you lose your face on that ground.

[00:43:08] Speaker 02:
I think that Sasser sets out precedent, and it's long-standing precedent.

[00:43:12] Speaker 02:
I don't think that the Commission adequately and fairly extinguished Sasser under the circumstances.

[00:43:18] Speaker 02:
If I might, the judge... That's an arbitrary and capricious question, right?

[00:43:22] Speaker 01:
It is, yes.

[00:43:23] Speaker 01:
Typically, when the argument's made that administrative determination is out of step with prior administrative determinations,

[00:43:31] Speaker 01:
It's not a substantial evidence question.

[00:43:33] Speaker 01:
It's an arbitrary and capricious question.

[00:43:34] Speaker 02:
Right.

[00:43:35] Speaker 02:
I think both standards are applicable here.

[00:43:37] Speaker 02:
But in terms of application of standard, Sasser's standard or not to this case, this court has said the commission's dissimilar treatment of evidently identical cases seems the quintessence of arbitrariness and caprice.

[00:43:51] Speaker 02:
There's no question with that.

[00:43:53] Speaker 04:
So it really comes down to that's your fundamental argument.

[00:43:59] Speaker 02:
Certainly, our fundamental argument is that SASR controls and should have been fairly applied to this case because all the material facts fall under SASR and any distinctions that the commission made were immaterial and distinctions without a difference, Your Honors.

[00:44:18] Speaker 03:
All right.

[00:44:22] Speaker 03:
We have your argument.

[00:44:23] Speaker 03:
We'll take the case under advisement.

[00:44:24] Speaker 03:
Thank you, Counsel.

[00:44:27] Speaker ?:
Thank you.