Downrite Engineering v. OSHC, No. 06-12604 (11th Cir. 2007)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 06-12604 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT FEBRUARY 1, 2007 THOMAS K. KAHN CLERK OSHC No. 05-0710 DOWNRITE ENGINEERING & DEVELOPMENT CORP., Petitioner, versus OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, Respondent. ________________________ On Petition for Review of an Order of the Occupational Safety and Health Review Commission ________________________ (February 1, 2007) Before TJOFLAT, HULL and COX, Circuit Judges. PER CURIAM: Downrite Engineering & Development Corp. ( Downrite ) appeals the Order of the Occupational Safety and Health Review Commission ( Commission ), whose Administrative Law Judge ( ALJ ) affirmed citations issued to Downrite for violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678. The ALJ determined Downrite to be in violation of the following: (1) 29 C.F.R. § 1926.20(b)(2) for failing to have a designated competent person make frequent and regular inspections of the worksite; (2) 29 C.F.R. § 1926.100(a) for failing to ensure employees were protected from falling objects with protective helmets; (3) 29 C.F.R. § 1926.501(b)(4)(i) for failing to provide fall protection to employees exposed to falls greater than six feet; and (4) an other violation of 29 C.F.R. § 1926.21(b)(6)(i) for failing to instruct employees in confined space safety. (R.3-24 at 12.) The ALJ found the first three violations to be serious, and assessed penalties totaling $3600 for these three violations. (R.3-24 at 12.) Downrite petitioned the Commission for discretionary review, which the Commission declined. The ALJ s decision then became the final order of the Commission. (R.3-28 at 1.) Downrite filed a timely petition for review by the court. Downrite contends the Order of the ALJ should be reversed for three reasons: (1) Downrite did not consent to the warrantless inspection by OSHA Compliance Safety and Health Officers, and such an inspection was a violation of its Fourth Amendment rights; (2) Downrite had no actual or constructive knowledge of the violations; and (3) none of the citations constituted a serious violation of an OSHA safety standard. 2 This court s review of Commission decisions is limited and highly deferential. See Fluor Daniel v. OSHRC, 295 F.3d 1232, 1236 (11th Cir. 2002). The court must sustain the Commission s fact-finding as long as it is supported by substantial evidence on the record considered as a whole, 28 U.S.C. § 660(a), and the Commission s determinations will be upheld unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law. Flour Daniel, 295 F.3d at 1236 (quoting 5 U.S.C. § 706(2)(A)). We find no error in the ALJ s determination that the search was consensual, and therefore not in violation of the Fourth Amendment. And, we conclude that substantial evidence supports the ALJ s factfinding, and that the ALJ s conclusions are not shown to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). AFFIRMED. 3
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