Case: 17-60543 Document: 00514735856 Page: 1 Date Filed: 11/26/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60543 FILED November 26, 2018 Lyle W. Cayce R. ALEXANDER ACOSTA, Secretary, Department of Labor, Clerk Petitioner, v. HENSEL PHELPS CONSTRUCTION COMPANY, Respondent. On Petition for Review of a Final Order of the Occupational Safety and Health Review Commission Before GRAVES and COSTA, Circuit Judges, and BENNETT, District Judge. * JAMES E. GRAVES, JR., Circuit Judge: Thirty-seven years ago, this court, in a tort case, announced that “OSHA regulations protect only an employer’s own employees.” Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. Unit A Oct. 1981). That decision has endured despite the seismic shift brought about by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the dec- ades of administrative-law aftershocks that followed. Today we reexamine Melerine, and the precedent on which it relies, 1 in * District Judge of the Southern District of Texas, sitting by designation. 1 Se. Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975) (per curiam); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 321 (5th Cir. 1979); Barrera v. E.I. DuPont de Nemours & Co., 653 F.2d 915 (5th Cir. Unit A Aug. 1981). Case: 17-60543 Document: 00514735856 Page: 2 Date Filed: 11/26/2018 No. 17-60543 the light of that shift. In this appeal, the Secretary of Labor asks the court to decide whether he has the authority—under either the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (the Act), or Occupational Safety and Health Administration (OSHA) regulations—to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees. We conclude that he does have that authority under the Act. I The parties have stipulated to the relevant factual and procedural history in this action. In 2010, Respondent Hensel Phelps Construction Company en- tered into a contract with the City of Austin to build a new public library. Hen- sel Phelps, as general contractor, maintained control over the worksite through the presence of on-site management personnel, including superintendents, pro- ject engineers, and project managers. In 2014, Hensel Phelps contracted with subcontractor Haynes Eaglin Watters, LLC (HEW), to do certain work on the project’s Seaholm Substation East Screen Wall. Later that year, HEW contracted with sub-subcontractor CVI Development, LLC, to complete demolition, exca- vation, and other work as required for the East Screen Wall. As the excavation at the worksite progressed, a nearly vertical wall of “Type C” soil 2 was allowed to develop, measuring approximately 12 feet in height and 150 feet in length. OSHA regulations mandate that excavations in this type of soil use protective systems, such as sloping, to protect employees from cave- ins. See 29 C.F.R. §§ 1926.652(a)(1) & (b). No such protective systems were put in place at this excavation. 2 ...
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