United States Court of Appeals, District of Columbia Circuit
Argued November 12, 2013.
On Petition for Review of a Final Order of the Occupational Safety & Health Review Commission.
Eugene Scalia argued the cause for petitioner. With him on the briefs were Baruch A. Fellner and Daniel P. Rathbun.
Amy S. Tryon, Attorney, U.S. Department of Labor, argued the cause for respondent. With her on the brief were Joseph M. Woodward, Associate Solicitor, Charles F. James, Counsel for Appellate Litigation, and Kristen M. Lindberg, Attorney.
Before: GARLAND, Chief Judge, and ROGERS and KAVANAUGH, Circuit Judges.
Rogers, Circuit Judge:
SeaWorld of Florida, LLC, operates a theme park in Orlando, Florida, that is designed to entertain and educate paying customers by displaying and studying marine animals. Following the death of one of SeaWorld's trainers while working in close contact with a killer whale during a performance, the Occupational Safety and Health Review Commission found that SeaWorld had violated the general duty
clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), by exposing the trainers to recognized hazards when working in close contact with killer whales during performances, and that the abatement procedures recommended by the Secretary of Labor were feasible. SeaWorld challenges the order with respect to one citation. Concluding its challenges are unpersuasive, we deny the petition for review.
On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a killer whale, during a performance before a live audience in a pool at Shamu Stadium in Orlando. Ms. Brancheau was reclined on her back on a platform a few inches below the water surface. Tilikum was supposed to mimic her behavior by rolling over. Instead, the killer whale grabbed her and pulled her off the platform into the pool, refusing to release her. She suffered traumatic injuries and drowned as a result of Tilikum's actions.
The Secretary of Labor issued three citations to SeaWorld after an investigation by an Occupational Safety and Health Administration (" OSHA" ) compliance officer. Only the second citation is at issue. It alleged two instances of a " willful" violation of the general duty clause for exposing animal trainers to the recognized hazards of drowning or injury when working with killer whales during performances. The first instance related to animal trainers working with Tilikum being exposed to " struck-by and drowning hazards" by being " allowed unprotected contact with Tilikum" while conducting " 'drywork' performances on pool ledges, slideouts and platforms." Citation 2, Instance (a). In SeaWorld's terms, when trainers are out of the pool or on submerged ledges called " slideouts" in water no deeper than their knees, their interactions with killer whales are called " drywork." Any interaction in deeper water is " waterwork." According to the Secretary, " [a]mong other methods, one feasible and acceptable means of abatement would be to not allow animal trainers to have any contact with Tilikum unless they are protected by a physical barrier." Id. The second instance concerned animal trainers working with killer whales other than Tilikum who were exposed to struck-by and drowning hazards when they were " allowed to engage in 'waterwork' and 'drywork' performances with the killer whales without adequate protection." Citation 2, Instance (b). The Secretary listed as possible abatement methods " prohibit[ing] animal trainers from working with killer whales, including 'waterwork' or 'dry work,' unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems or other engineering or administrative controls that provide the same or greater level of protection for the trainers." Id. The Secretary proposed a penalty of $70,000.
Following an evidentiary hearing, the Administrative Law Judge (" ALJ" ) found that on February 24, 2010, a " performance" was still in progress when Tilikum seized Ms. Brancheau and pulled her into the pool water. SeaWorld of Fla., LLC, 2012 WL 3019734, at *12 (No. 10-1705, 2012). (A customer had taken a video of the performance.) The ALJ found that the first and third elements of a violation of the general duty clause -- existence of a workplace condition presenting a hazard that likely caused death or serious physical harm -- were established by the events on February 24, 2010: Ms. Brancheau's death demonstrated that close contact with killer whales was a hazard likely to cause death or serious injury. Based on evidence regarding
three previous deaths involving killer whales (beginning in 1991 with Tilikum), SeaWorld's written training manuals and safety lectures as implemented specifically to Tilikum, and SeaWorld's incident reports, the ALJ found that the Secretary had established by " abundant" record evidence that " SeaWorld recognized the hazard created when its trainers worked in close contact with Tilikum during drywork
performances," satisfying the second element of a violation. [WL] at *19.
Further, the ALJ found that evidence, including SeaWorld's incident reports,
established that SeaWorld recognized the hazard when trainers worked in close
contact with other killer whales; SeaWorld's statistics regarding the
predictability of killer whale behavior, on the other hand, were unpersuasive
because not based on rigorous, scientific data. The ALJ concluded that
SeaWorld's claim that " it was unaware working with killer whales presents a
recognized hazard is difficult to reconcile with numerous comments made over the
years by SeaWorld management personnel, including [two] corporate curators of
animal training . . . [whose] comments were documented and circulated among all
of the SeaWorld parks." [WL] at *22.
The ALJ also found that the Secretary had established
the fourth element of a violation: feasible abatement of the hazard for trainers
working with Tilikum and other killer whales. SeaWorld had not argued, the ALJ
noted, that it is infeasible to install barriers or implement a minimum distance
between trainers and whales, but rather " considers the extensive safety
training of its trainers and the operant conditioning of its killer whales to be
an adequate means of abatement that materially reduces the hazard the killer
whales present to the trainers." [WL] at *25. The ALJ found the Secretary had met her burden to show SeaWorld's safety program is inadequate. Despite SeaWorld's contention that its operant conditioning " materially reduces the recognized hazard," id.,
the ALJ concluded that " SeaWorld's reliance on its trainers to recognize
precursors and prevent unpredictable behavior by the killer whales runs counter
to the requirements of the Act. 'The duty to comply with section 5(a)(1) . . .
rests with the employer.'" [WL] at *27 (quoting Armstrong Cork Co., 8 BNA OSHC
1070, 1074, 1980 WL 10754, at *5 (No. 76-2777, 1980)). The ALJ further concluded
that " SeaWorld holds trainers to a near-impossible standard set by upper
management, who engage in a form of Monday morning quarterbacking." [WL] at *28. Additionally, the ALJ noted that SeaWorld had already implemented the means of abatement recommended by the Secretary for trainers working with Tilikum -- namely, maintaining a minimum distance from the killer whale, or imposing a physical barrier between the killer whale and trainers -- and concluded the same or similar abatement involving other killer whales was no less feasible.
Although crediting the testimony of a SeaWorld
curator of animal training regarding the educational and inspirational
justification for continuing " waterwork" with killer whales, the ALJ concluded
that justification " must be measured against the risk incurred by allowing
trainers to interact closely with killer whales." [WL] at *31. Observing that OSHA
has " no specific standard" regulating employees working in close contact with
killer whales, and that the Secretary had presented no evidence SeaWorld had a "
heightened awareness of the illegality of its conduct" or manifested " plain
indifference to employee safety," [WL] at *33, the ALJ found that violations were " serious," not " willful," and imposed a fine of $7,000 for the general duty clause violation in Citation
2, emphasizing that his order was limited to show performances. [WL] at *34-35. SeaWorld unsuccessfully sought discretionary review by the Commission, whereupon the ALJ's decision and order became final. See 29 C.F.R. § 2200.90(d). SeaWorld petitions for review of the general duty violation.
The general duty clause, § 5(a)(1) of the Occupational Safety and Health Act, provides: " Each employer [ ] shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). As explained by the House Committee on Education and Labor, " [b]earing in mind the fact that there is no automatic penalty for violation of the general duty, this clause enables the Federal Government to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation." H.R. Rep. No. 91-1291, at 21-22 (1970) (emphasis in original). In a seminal case this court, in turn, observed that " [t]hough novel in approach and sweeping in coverage, the legislation is no more drastic than the problem it aims to meet." Nat'l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1260-61, 160 U.S.App. D.C. 133 (D.C. Cir. 1973) (footnote omitted). Notwithstanding the " unqualified and absolute" textual imperative that the workplace be " free" of the recognized hazard, id. at 1265, the court further observed that " Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one," id. at 1265-66. So understood, the court held that " [a]ll preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace." Id. at 1266-67. See also Cont'l Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980); Gen. Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453, 458, 464 (1st Cir. 1979); Titanium Metals Corp. of Am. v. Usery, 579 F.2d 536, 543-44 (9th Cir. 1978); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976); Brennan v. OSHRC, 501 F.2d 1196, 1198, 1200 (7th Cir. 1974); Brennan v. OSHRC, 502 F.2d 946, 951-52 (3d Cir. 1974); REA Express, Inc. v. Brennan, 495 F.2d 822, 826 (2d Cir. 1974).
" To establish a violation of the General Duty Clause, the Secretary must establish that: (1) an activity or condition in the employer's workplace presented a hazard to an employee, (2) either the employer or the industry recognized the condition or activity as a hazard, (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed." Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077, 1081, 378 U.S.App. D.C. 380 (D.C. Cir. 2007) (citation omitted). Tempering the range of potential remedies that might be imposed upon finding a violation of the clause, the court explained: " In other words, 'the Secretary must prove that a reasonably prudent employer familiar with the circumstances of the industry would have protected against the hazard in the manner specified by the Secretary's citation.'" Id. (quoting L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507, 513, 225 U.S.App. D.C. 341 (D.C. Cir. 1983)) (emphasis in original).
SeaWorld contests only the second and fourth elements regarding recognized hazard and feasibility. In challenging the general duty citation, SeaWorld does not perforce contend that the Secretary of Labor or the Occupational Safety and Health Review Commission lack legal authority to require employers to provide a reasonably safe working environment for employees.
Rather, SeaWorld takes issue with the interpretation by these officials of what constitutes a recognized hazard that would subject an employer to citation under the Occupational Safety and Health Act. First, SeaWorld contends that the finding that it exposed its employees to a " recognized hazard" is unsupported by substantial evidence. Second, it contends that " when some risk is inherent in a business activity, that risk cannot constitute a 'recognized hazard.'" Pet'r Br. at 33. Third, it contends that the ALJ's decision was based on unreliable expert testimony about the extent of killer whale predictability after SeaWorld's training and precautions. As regards the feasibility of physical barriers and minimum distances SeaWorld contends that the Secretary failed to prove feasible abatement methods (or that SeaWorld had already implemented these measures), and that the ALJ failed to consider evidence these abatement measures present additional hazards and erred because eliminating close contact changes the nature of a trainer's job. Finally, SeaWorld contends the general duty clause is unconstitutionally vague as applied because SeaWorld lacked fair notice of the Secretary's abatement measures.
The court must uphold the Commission's decision unless it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Fabi Constr. Co., 508 F.3d at 1080 (quoting 5 U.S.C. § 706(2)(A)) (internal quotation marks omitted); see A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d 1341, 1345, 353 U.S.App. D.C. 74 (D.C. Cir. 2002). The factual findings of the Commission, " if supported by substantial evidence on the record considered as a whole, shall be conclusive." 29 U.S.C. § 660(a); see, e.g., Fabi Constr. Co., 508 F.3d at 1081. Under this standard, the court must " uphold Commission findings so long as there is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" AJP Constr., Inc. v. Sec'y of Labor, 357 F.3d 70, 73, 360 U.S.App. D.C. 55 (D.C. Cir. 2004) (citations omitted). Likewise, the court " must accept the ALJ's credibility determinations . . . unless they are patently unsupportable." Id. (ellipsis in original) (citation omitted). The court will " defer to the Secretary's interpretation of the Act and regulations, upholding such interpretations so long as they are consistent with the statutory language and otherwise reasonable." Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1302, 315 U.S.App. D.C. 86 (D.C. Cir. 1995) (citing Martin v. OSHRC, 499 U.S. 144, 150-51, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991)).
Whether a work condition poses a recognized hazard is a question of fact. See Baroid Div. of NL Indus., Inc. v. OSHRC, 660 F.2d 439, 446 (10th Cir. 1981). Substantial evidence supports the finding that " drywork" and " waterwork" with killer whales were recognized hazards. Tilikum is a 32-year-old male killer whale with known aggressive tendencies who in 1991 killed a whale trainer at a marine park in Vancouver, British Columbia. SeaWorld had established special protocols for Tilikum, which prohibited " waterwork" and, among other things, required non--killer whale personnel and guests to stay five feet behind pool walls or three feet from Tilikum's head, indicating that SeaWorld recognized the possibility of harm to people standing outside of the pool on land. Although " drywork" with Tilikum continued, SeaWorld limited it to a team of experienced trainers who used extra caution. The caution with which SeaWorld treated Tilikum even when trainers were poolside or on " slideouts" in the pool indicates that it recognized the hazard the killer whale posed, not that it considered its protocols rendered Tilikum safe.
As to other killer whales, SeaWorld suggests that close contact with these whales was not a recognized hazard because all whales behave differently and its incident reports help SeaWorld improve training. But SeaWorld's incident reports demonstrate that it recognized the danger its killer whales posed to trainers notwithstanding its protocols. At the time of Ms. Brancheau's death, seven killer whales were at the Orlando park. Even though SeaWorld had not recorded incident reports on all of its killer whales, a substantial portion of SeaWorld's killer whale population had at least one reported incident. The ALJ also relied on the many comments by SeaWorld management personnel, including corporate curators of animal training, who described the need for caution around killer whales generally, not only around certain killer whales. Killer whales bit trainers' body parts on several occasions (although not generally puncturing skin) and in 2006 a killer whale pulled a trainer underwater by the foot and submerged him repeatedly for approximately 10 minutes. Although this incident occurred during " waterwork," substantial evidence supports the finding with regard to " drywork" as well. On numerous occasions, trainers fell or were pulled into the water, as later happened with Tilikum and Ms. Brancheau, or killer whales lunged out of the water toward trainers. These incidents constitute substantial evidence to support the ALJ's finding that " drywork" was also a recognized hazard.
SeaWorld's position is that working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk. To train its killer whales, SeaWorld uses " operant conditioning" to reinforce desired behaviors with food or other rewards. It also trains its employees who work with killer whales to recognize particular behaviors that it calls " precursors," which indicate that the killer whales may act aggressively, and keeps detailed incident reports of when its killer whales had behaved aggressively or otherwise undesirably toward trainers, including pulling trainers into the pool. The Secretary presented evidence that the killer whales posed a hazard in spite of SeaWorld's safety measures. On multiple occasions, including the death of Ms. Brancheau, SeaWorld's incident reports indicated that the killer whales showed no immediate precursors of aggressive behavior or ignored SeaWorld's emergency procedures designed to make them cease aggressive behavior. Statements by SeaWorld managers do not indicate that SeaWorld's safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld's recognition that the killer whales interacting with trainers ...