Amicus Curiae Brief — Martin v. Occupational Safety and Health Review Comm'n

-

ya *

a

* CF&I STEEL CorPoraTION,

ö 15 N Respondents.

3

*

* on Writ of Certiorari to the United States

| Court of Appeals for the Tenth Circuit

*

5 >

i -

N FOR LEAVE TO FILE BRIEF AND

FOR OCCUPATIONAL SAFETY AND

Supreme Court of the United States

OcTOBER TERM, 1990

No. 89-1541

ELIZABETH H. DoLe, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

7 Petitioner,

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

and

CF&I STEEL CoRPORATION,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

MOTION FOR LEAVE TO FILE

BRIEF FOR THE OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Pursuant to the instructions of the Clerk of the Court,

the Occupational Safety and Health Review Commission

(Commission) respectfully moves for leave to file the

attached brief amicus curiae in support of the Re-

spondents. The Solicitor Genera] has authorized and con-

sented to the filing of this brief, and Respondent CF&I

Steel Corporation has also consented to its filing. These

consent letters have been filed with the Clerk. However,

because the Solicitor General has limited his authoriza-

tion to the filing of an amicus brief ‘even though the

Commission is named as a Respondent in the proceeding),

the Clerk has instructed the Commission to move for

leave to file the attached brief.

QUESTION PRESENTED

Whether an order of the Occupational Safety and

Health Review Commission adopting a permissible inter-

pretation of an ambiguous regulation that implements the

Occupational Safety and Health Act is controlling on the

courts when the Secretary of Labor disagrees with the

Commission’s interpretation.

(i)

TABLE OF CONTENTS

Oe

INTEREST OF THE AMIS

— ———————— —

SUMMARY OF ARGUMENT —

— —p—— — — —„—½3

A COURT MUST DEFER TO A REASONABLE

INTERPRETATION OF AN AMBIGUOUS OSH

ACT REGULATION THAT IS EMBODIED IN

AN ORDER OF THE COMMISSION EVEN

THOUGH THE SECRETARY OF LABOR DIS-

AGREES WITH THAT INTERPRETATION .....

A. An Administrative Interpretation Is Entitled

To Controlling Weight Under Chevron Only

When It Constitutes An Authoritative Exercise

Of Delegated Lawmaking Power By An Agency

Charged With Filling In The Interstices Of A

B. Only The Commission Has Engaged In An

Authoritative Exercise Of Delegated Lawmak-

ing Power In This Case .

C. The Secretary Misapplies The Allocation Of

Administrative Authority Under The 08H

1 — Ä—— —

(iii)

Page

iv

10

10

10

15

18

iv

TABLE OF AUTHORITIES

Cases Page

Adams Fruit Co. v. Barrett, 110 S. Ct. 1384

Ce 2 ee SL eR 11

Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977) 3, 19

Batterton v. Francis, 432 U.S. 416 (1977) 12-15, 17

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

| 12-15, 21-22

Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255

r. 22-23

Brennan v. OSH RC, 492 F.2d 1027 (2d Cir. 1974) 23, 25

Brennan v. OSHRC, 501 F.2d 1196 (7th Cir.

KKK a RR tee a re 16, 25

Brennan v. OSHRC, 513 F.2d 713 (8th Cir. 1975) 25

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d

fe RR Ee I SES. 12, 17, 28

Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C.

e ee a a ee 28

Campos-Guardado v. INS, 809 F.2d 285 (5th Cir.),

cert. denied, 484 U.S. 826 (1987) 23

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 6 passim

Church of Scientology v. IRS, 792 F.2d 153 (D.C.

Cir. 1986), af d, 484 U.S. 9 (19877 14

Cornelius v. Nutt, 472 U.S. 648 (1985) 0. 23

Cuyahoga Valley Ry. v. United Transp. Union, 474

rr / AST eS AS 3

FDIC v. Philadelphia Gear Corp., 476 U.S. 426

r — . j — 14

Ford Motor Co. v. NLRB, 441 U.S. 488 (19799 16

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

Enea ee ee ae 12

Fort Stewart Schools v. FLRA, 110 S. Ct. 2048

EN ee OO ee 14, 16

Gardebring v. Jenkins, 485 U.S. 415 (1988) 15, 18

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) 11, 15

Heckler v. Chaney, 470 U.S. 821 (1985) N 12

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 23

IRS v. FLRA, 110 S. Ct. 1623 (1990) 11

International Bhd. of Teamsters v. Daniel, 439

e A Ree ee a 11

*

TABLE OF AUTHORITIES—Continued

Page

Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir.

1 cininishsliniaiiaeiadnsitntasncesaieemsiecntandatinnstibintgnmens 14

McKee v. Sullivan, 903 F.2d 1436 (11th Cir. 1990) 14

Morton v. Ruiz, 415 U.S. 199 (1974) -.................... 12

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) 22

NLRB v. Hearst Publications, Inc., 322 U.S. 111

Statutes

22. 10-11

Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C.

Xr 14

Pattern Makers’ League v. NLRB, 473 U.S. 95

— a en 14

Perlera-Escobar v. Executive Office for I:amigra-

tion, 894 F.2d 1292 (11th Cir. 1990) 23

Potomac Elec. Power Co. v. Director, OWCP, 449

CG Oya 8 7,27

SEC v. Chenery Corp., 332 U.S. 194 (19477 21-22

Secretary of Labor v. Cannelton Indus., Inc., 867

P.24 1498 (D.C. Cir. 1968) ..................-.............. 28

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 11. 15, 18

Sullivan v. Everhart, 110 S. Ct. 960 (19900) 14

Young v. Community Nutrition Inst., 476 U.S. 97

11111 — — —b 14

United States v. Paddack, 825 F.2d 504 (D.C

23

Administrative Procedure Act (APA), 5 U.S.C. |

§ 661 et seg — <igteieadaatiacatiaeniamiiati passim

5 U.S.C. § 551(4) _.................. — 13

. —n— 13

— 13

8” 13

5 U.S.C. § 657 (e) (3) (o ———j——— 24

RY 4,17

Civil Service Reform Act of 1978, Pub. L. No. 95-

CN — n - &

. 22

I Ee 22

vi

TABLE OF AUTHORITIES—Continued

Page

5 U.S.C. § 1204 (e) (2) (B) 22

I 22

Federal Mine Safety and Health Act of 1977 (Mine

Act), 30 U.S.C. § 801 et seg. 27-28

Longshoreman’s and Harbor Worker’s Compensa-

tion Act (LHWCA), 33 U.S.C. §§ 901-950 7, 27

Occupational Safety and Health Act of 1970 (OSH

Act), Pub. L. No. 91-596, 84 Stat. 1590, 29

— passim

ä a oa 1

29 U.S.C. § 661(b) (3) 2. 16, 19, 24

—. — 2, 4, 25

A 2

TL — 2

. 2, 3, 19

— — — 2

e eee 2, 3, 19

e 2,19

Ee ee 3, 25

TTT PE 3

V 3, 16, 21, 23-24

... 16, 24

r oT 3-4

Es ae 3

ä — 21

... / 2, 16, 24

9999 3

r ...... 3

. — 3

... 3

29 U.S.C. § 160 (e)) ee aoe 24

SE nee a 24

29 U.S.C. § 160(f) 0. a 24

Regulations

EEE ee 12-14

e 22

8c 23

vii

TABLE OF AUTHORITIES—Continued

Page

r . 23

e

29 C. F. R. § 1910. 134 (e) () 5-6, 16-17, 25

r = 1

r : 4

Zl eases) 4,8

29 C. F. R. § 1910.1029(g) (3) ead 4-8, 17, 25

29 C. F. R. § 1910.1029(g) (4) r x

29 C. F. R. § 1910.1029(g) (4) (i) 4-6, 27

Legislative Materials

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) 19, 20

S. Rep. No. 181, 95th Cong., Ist Sess. (1877) 28

S. Rep. No. 969, 95th Cong., Ist Sess. (1978) 22

Federal Register

36 Fed. Reg. 10,466 (1971) 4

36 Fed. Reg. 10,593 (1971777777 4

40 Fed. Reg. 32,286 (1979 — 17

41 Fed. Reg. 46, 742-90 (1970 4,17

Miscellaneous

Anthony, Which Agency Interpretations Should

Bind Citizens and Courts?, 7 Yale J. on Reg. 1

CE . 12-14

OSHA Instruction CPL 2-2.29, reprinted in [1980-

81 Transfer Binder]! Employment Safety &

Health Guide (CCH) § 12,107 D000 17

Shapiro, The Choice of Rulemaking or Adjudica-

tion in the Development of Administrative Pol-

icy, 78 Harv. L. Rev. 921 (1983) 21, 26

Staff of the Subcomm. on Labor of the Senate

Comm. on Labor and Public Welfare, 92d Cong.,

Ist Sess., Legislative History of the Occupa-

tional Safety and Health Act of 1970 (Comm.

1. — 19-20

In THE

Supreme Court of the United States

OcToBEer TERM, 1990

No. 89-1541

ELIZABETH H. DoLe, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

8 Petitioner,

OCCUPATIONAL SAFETY AND HEALTH

REVIEW C/MMISSION

and

CF&I STEEL CORPORATION,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF FOR THE OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS

The interest of the amicus is set forth in the motion

accompanying this brief.

STATEMENT

1. In the Occupational Safety and Health Act of 1970

(Act or OSH Act), Pub. L. No. 91-596, 84 Stat. 1590,

29 U.S.C. $§ 651-678, Congress attempted “to assure so

far as possible [that] every working man and woman

in the Nation has] safe and healthful working condi-

tions .” 29 U.S.C. §651(b). To achieve this goal,

Congress among other things “authoriz[ed] the Secretary

of Labor to set mandatory occupational safety and health

standards l,.) . and... ecreat{ed) an Occupational

Safety and Health Review Commission for carrying out

adjudicatory functions.” Id. § 651(b) (3). The Occupa-

tional Safety and Health Review Commission (Commis-

sion) is an administrative body established by the Act

that is composed of three members appointed by the

President, with the advice and consent of the Senate,

who possess the “training, education, or experience”

Tee. 9 ro j

a).

With regard to the establishment of safety and health

standards under the Act, Congress provided that the Sec-

retary must promptly by “rule promulgate as an oc-

cupational safety or health standard any national con-

sensus standard, and any established Federal standard,

unless [she] determine({d] that the promulgation of such

a standard would not result in improved safety or health

for specifically designated employees.” 29 U.S.C. § 655

fa). Congress further provided that, in the event of

conflict among any such standards, the Secretary shall

promulgate the standard which assures the greatest pro-

tection of the safety or health of the affected 1

Id. Congress. however, also established elaborate pro-

cedures involving use of advisory committees, notice and

comment requirements, hearings, and delays in effective

dates that the Secretary must follow in promulgating,

modifying, or revoking any such safety or health stand-

ard. Id. § 655(b). Finally, it provided that any person

adversely affected by any such safety or health standard

could directly challenge the legality of that standard in

an appropriate court of appeals. Id. § 655(f).

With regard to the implementation of promulgated

safety and health standards, Congress provided the Sec-

retary with certain enumerated enforcement powers. Sce

29 U.S.C. $$ 657-659. Among other things, it authoria«d

the Secretary to enter, inspect, and investigate places of

employment for compliance with such safety and health

standards. Id. at §657(a). Congress further provided

that, if upon inspection or investigation, “the Secretary

or his authorized representative believes that an employer

has violated” any such standard, she may issue a citation

which describes with particularity the nature of the al-

leged violation, sets a reasonable time period for abate-

ment of the violation, and, depending upon the circum-

stances, proposes a civil penalty ranging from zero to

$10,000 per violation). Id. §§ 657-658, 666(a)-(c). Con-

gress also provided, however, that such a citation is en-

forceable only as a final “order” of the Commission, and

that the authority actually to assess a civil penalty lies

exclusively with the Commission. Id. §§ 659(a), 666(j).

Specifically, an uncontested citation is by statute

“deemed a final order of the Commission and not subject

to review by any court or agency.” 29 U.S.C. 659 (a),

(b). Where a citation is contested (by either an em-

ployer, an employee, or a representative of an employee or

group of employees), the Commission must hold a hearing

in accordance with the provisions of the Administrative

Procedure Act (APA), 5 U.S.C. § 551 et seq. See 29

U.S.C. § 659(c). “At [the] hearing the burden is on the

Secretary to establish the elements of the alleged viola-

tion and the propriety of his proposed abatement order

and proposed penalty.” Atlas Roofing Co. v. OSHRC,

430 U.S. 442, 446 (1977). The Commission must “there-

after issue an order, based on findings of fact, affirming,

modifying or vacating the Secretary’s citation or pro-

posed penalty, or directing other appropriate relief.

29 U.S.C. § 659/¢).'

Any private party “adversely affected or aggrieved by

an order of the Commission” may petition for review of

that order in an appropriate court of appeals. 29 U.S.C.

660 (a). The Secretary also may petition for judicial

“review or enforcement of any final order of the Com-

mission.” Id. 660 (b). The Act generally limits judi-

cial review to objections that were “urged before the

Commission,” and specifically provides that the Commis-

1 Prior to the issuance of any such order, the Secretary retains

her traditional prosecutorial discretion to withdraw a citation. See

Cuyahoga Valley Ry. v. United Transp. Union, 474 US. 3, 6-7

(1985) (per curiam).

4

sion’s factual findings, “if supported by substantial evi-

dence on the record considered as a whole, shall be

conclusive.” Id. § 660(a}. Concomitantly, the Commis-

sion’s ruling on questions of law, pursuant to inter-

stitial provisions of the APA, must be sustained unless

“arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.” 5 U.S.C. § 706(2)(A).

2. In 1976, the Secretary adopted a standard regu-

lating exposure to coke oven emissions. See 41 Fed. Reg.

46,742-90 (1976) ; 29 C.F.R. § 1910.1029. Subsection g

properly.” Id. § 1910.10291g) (4) (i). It also requires

the employer to “institute a respiratory program in ac-

cordance with 29 C. F. R.] 1910.134.“ 29 C.F.R.

1910.102908 (3).

The standard at 29 C. F. R. §1910.134, which was

adopted by the Secretary without resort to “notice and

comment” rulemaking pursuant to the provisions of 29

U.S.C. §$655(a), is the general industry standard for

respiratory protection. 36 Fed. Reg. 10,466 (1971). It

was not created by the Secretary, but instead was de-

veloped by the American National Standards Institute

(ANSI), a private standards-setting organization, and

is based on the ANSI standard designated Z88.2-1969.

Standard Practice for Respiratory Protection. 36 Fed.

Reg. 10,593 (1971); 29 C. F. R. § 1910.139. The general

respiratory protection standard provides in relevant part:

For safe use of any respirator, it is essential that

the user be properly instructed in its selection, use,

and maintenance. Both supervisors and workers

shall be instructed by competent persons. Training

shall provide the men an opportunity to handle the

tor, have it fitted properly, test its face-piece-

to-face seal, wear it in normal air for a long fa-

miliarity period, and, finally, to wear it in a test

atmosphere.

29 C. F. R. § 1910.134(e) (5).

3. In August 1979, a compliance officer from the

Occupational Safety and Health Administration (OSHA),

an office within the Department of Labor to which the

Secretary has delegated many of her OSH Act responsi-

bilities, conducted a follow-up inspection of a Pueblo,

Colorado coke oven facility of CF&I Steel Corporation

(CF&I) to assess whether the coke

ard was being followed there. Pet. 19a. The com-

pliance officer found that, before they

regulated area, CFél employeees were given rators,

told when to use them, and shown how to perform a “posi-

tive negative pressure test ie,, how to place the respi-

rators on their faces and to check for leaks by inhaling

and exhaling. Id. at 37a-38a. The compliance officer

same respirators in areas where exposure to

emissions was possible. /d. at 38a-39a.

Based on these findings, the Secretary, through her

compliance officer, cited CF&I for a “willful violation” of

the coke oven emissions standard and proposed that a

$10,000 penalty be assessed by the Commission. Pet. App.

Sa, 43a. In doing so, however, the Secretary only cited

CF&I for a violation of 29 C. F. R. 1910.10 290g (3) and

the general standard on respiratory protection incorpo-

rated therein (ie. 29 C.F.R. §1910.134). Pet. App.

43a-44a. The Secretary purposefully did not cite CF&l

for a violation of 29 C. F. R. § 1910.1029/g) (4) (i), which

citation. Id. at 43a-44a, 45a n.15.

+ When CF&I contested the citation, an administra-

rr

section 1910.10 29 g 3.“ Pet. App. 40a. It further de-

termined— based on the language of the regulations in

issue, the source standard from which the

regulation ‘ie. 29 C. F. R. £ 1910.134) was derived, and

the inconsistency of OSHA compliance instructions con-

cerning this issue—that 29 C.F.R. 1910. 1029 6% (3),

through the incorporation of 29 C. F. R. § 1910.134/e) (5),

is a “training standard” and does not require “the em-

ployer to assure proper fit of an employee's respirator.”

Pet. App. 40a-43a. Finally, the Commission determined

that CF&I’s training program satisfied the

of the incorporated standard, 29 C.F.R. 1910.134/e)

(5). Pet. App. 43a-45a. Accordingly, the Commission

concluded that the Secretary had failed to prove a viola-

tion of 29 C. F. R. 1910.10 29% g (3) and ordered that the

citation be vacated. Pet. App. 45a."

5. On petition by the Secretary for review of the Com-

mission's order, the court of appeals affirmed. Pet. App.

One C dissented. Pet. App. Sla-G4a. While this

Commissioner did not “take serious issue” with the conclusion that

CFR § 1910.134 is a “training standard,” he beliewed that the

requirements of that standard had been :

7

la-lla. It found itself facing two competing interpreta-

tions: the Secretary supported the compliance officer’s

construction of § 1910.1029(g) (3) as a testing standard

for proper respirator fit, while the Commission construed

it as a training standard. Pet. App. 4a. For the court,

the question became: “to whom is deference owed?” /d.

In answering this question, the court determined that,

although both the Commission and the Secretary have

administrative roles under the Act, the statutory text is

“unclear” concerning who has “final interpretive author-

ity over OSHA regulations.” Pet. App. 5a-Ga. The court

found in the legislative history, however, a clear indica-

tion that “Congress sought to endow the Commission

with the norma! complement of adjudicative powers pos-

sessed by traditional administrative agencies” and that

“lsjuch an adjudicative function necessarily encompasses

the power to ‘declare’ the law.” Id. at 7a. Accordingly,

the court concluded that, “where the Secretary has failed

to convey the meaning of an OSHA regulation to those

charged with construing it, . . . we will defer to [a rea-

sonable] interpretation of the Commission.” /d.

The court conceded (Pet. App. 7a) that several courts

of appeals have reached a different conciusion due, in

part, to a statement concerning the Benefits Review

Board’s interpretive authority under the Longshoreman’s

and Harbor Worker’s Compensation Act (LHWCA), 35

U.S.C. §§ 901-950, that is contained in a footnote in

Potomac Elec. Power Co. v. Director, OWCP, 449 US.

268, 278 n.18 (1980) (Pepceo). The court below, how-

ever, considered the Pepco footnote to be “dicta,” and re-

fused to extend the conclusion of that footnote to the OSH

Act setting. Pet. App. 7a-Sa. The court additionally ob-

served (id. at 8a) that administrative adjudication under

the LHWCA is distinguishable in several significant ways

from administrative adjudication under the OSH Act.“

In particular, the court noted that LHWCA adjudications are

nonaccusatory, with a private citizen acting as prosecutor. Pet. App.

8a. OSH Act adjudications, in contrast, are accusatory in nature.

Id. Moreover, the agency acts as prosecutor in the OSH Act scheme,

8

Finally, the court determined that “it cannot be said

that the Commission’s interpretation of § 1910.1029(g)

(3) in this case was unreasonable.” Pet. App. 10a. The

court found the structure of § 1910.1029(g)—requiring

training through subsection (g)(3) and proper fit

through subsection (g)i4), as well as § 1910.134’s tex-

tual limitation to “training,” to support the Commission’s

view. Pet. App. 10a. Although the court found possible

support for the Secretary’s view as well, it deemed itself

. obliged to defer to the Commission’s view and advised the

Secretary to “amend or clarify” her regulations if she

continues to disagree. Id. at lla.

SUMMARY OF ARGUMENT

A. This Court has long instructed that administrative

interpretations of statutes and regulations are, in appro-

priate circumstances, entitled to deference from the

courts. Where an agency has special expertise in a par-

ticular area, the Court has directed the courts to look to

that agency’s interpretations for guidance in resolving

questions arising in that area. Where an agency has a

delegation of lawmaking power in a particular area, the

Court has instructed that the courts should give con-

trolling weight” to reasonable agency interpretations of

ambiguous regulatory provisions in that area. Contrary

to the Secretary’s suggestion, however, the Court has not

indicated that conferral of such lawmaking power on the

agency is itself sufficient to bind the courts to the agency’s

interpretations; rather, the Court has indicated that, to

bind the courts, the administrative interpretations must

be in a form that Congress intended to have the force

and effect of law.

B. In this case, the only administrative interpretation

in a form that has the force and effect of law is the order

of the Commission. The Commission’s interpretation is

based on both its special expertise and its delegated ad-

ministrative adjudicatory powers; and it was expressed

making the need for a separation of administrative functions “far

more acute.” Id.

in a formal, self-executing, legal order issued at the con-

clusion of a full adjudication of questions of law and fact.

It is thus binding on the parties and the courts. By’

contrast, the Secretary’s interpretation was expressed

only in a citation issued by one of her compliance officers

and in her lawyers’ pleadings. An interpretation ex-

pressed in such unauthoritative forms does not establish

a legally binding norm and thus is not entitled to “con-

trolling weight” in the courts.

C. The Secretary’s contrary argument rests on a mis-

application of the allocation of administrative author-

ity under the OSH Act. While Congress did delegate rule-

making and enforcement power to the Secretary, it ex-

pressly declined to give the Secretary the power to de-

velop binding interpretations through the adjudicative

process. Rather, it denied the Secretary adjudicative

powers, and endowed the Commission with the full com-

plement of such powers, including the power to declare

the law; indeed, the legislative history shows that the

Commission was modelled after the National Labor Rela-

tions Board and the Federal Trade Commission, two

agencies which have long exercised policymaking author-

ity through adjudication. Congress specifically required

the Commission to have the technical expertise and expe-

rience in the field of job safety that the Secretary errone-

ously claims the Commission lacks, and it designated the

Commission as the final authority with respect to legal

and factual issues arising in the adjudicative process in

order to reassure the regulated community that this proc-

ess woud be a fair and efficient one. To accomplish Con-

gress’ objective, deference must be given to the Commis-

sion, not to the Secretary.

10

* ARGUMENT

A COURT MUST DEFER TO A REASONABLE INTER-

PRETATION OF AN AMBIGUOUS OSH ACT REGULA-

TION THAT IS EMBODIED IN AN ORDER OF THE

COMMISSION EVEN THOUGH THE SECRETARY OF

LABOR DISAGREES WITH THAT INTERPRETA-

TION

In Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), this Court reaffirmed

that, where a governing statute or regulation is ambigu-

ous, the courts must give controlling weight to a reason-

able interpretation of that statute or regulation by an

administrative agency charged with responsibility for fill-

ing in the interstices of that regulatory scheme. The Sec-

retary apparently does not contend that the regulations

at issue in this case are unambiguous or that the Com-

mission’s order rests on a wholly impermissible interpre-

tation of them. See Pet. Br. 20-21 n.17, 37-38 n.37.

Nevertheless, the Secretary contends that the court below

erred in deferring to the Commission’s views instead of

her’s. This contention is wrong.

A. An Administrative Interpretation Is Entitled To Con-

trolling Weight Under Chevron Only When It Con-

stitute An Authoritative Exercise Of Delegated Law-

making Power By An Agency Charged With Filling In

The Interstices Of A Regulatory Scheme

In arguing that the courts must give controlling weight

to her views (and not to the Commission’s views), the

Secretary repeatedly asserts that her status as a “policy-

maker” under the OSH Act is some sort of talisman

automatically triggering Chevron-style deference. See

Pet. Br. 18-20, 22, 27, 29. This argument misunder-

stands Chevron and the administrative law principles

underlying it.

1. This Court has long recognized that administrative

interpretations of statutes and regulations are, in appro-

priate circumstances, entitled to deference from the

courts. See, e.g., NLRB v. Hearst Publications, Inc., 322

11

U.S. 111, 131 (1944). The traditional justificatiorf for

the courts doing so is that, in carrying out their func-

tions, agencies typically develop expertise in regulated

subject areas and have superior insights into the proper

resolution of the polycentric problems that arise in those

areas. See International Bhd. of Teamsters v. Daniel,

439 U.S. 551, 556 n.20 (1979). As the Court made clear

in Chevron, however, judicial deference can also be a

product of the “legislative-delegation to an agency.” 467

U.S. at 844. Congress often explicitly or implicitly leaves

“a gap for the agency to fill” and, “[{i]n such a case,

federal judges—who have no constituency—have a duty

to respect legitimate policy choices made by those who

do.” Id. at 844, 866.

When deference is prompted by such a legislative dele-

gation, it has a different, and more significant, effect

than does deference prompted by mere agency expertise.

Accord, General Elec. Co. v. Gilbert, 429 U.S. 125, 141-

142 (1976); Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944). When judicial deference is prompted by mere

agency expertise, agency interpretations are “not con-

trolling upon the courts by reason of their authority,

but merely! . . constitute a body of experience and in-

formed judgment to which courts and litigants may prop-

erly resort for guidance.” Skidmore, 323 U.S. at 140.

In contrast, when judicial deference is prompted by a

legislative delegation, reasonable interpretations of am-

biguous regulatory provisions may be entitled to “con-

trolling weight”—.e., they may bind the courts to the

agency’s view. Chevron, 467 U.S. at 844, 865-66. See

also IRS v. FLRA, 110 S. Ct. 1623, 1624 (1990).

2. Of course, while fa] precondition to deference

under Chevron is a congressional delegation of admin-

istrative authority,” Adams Fruit Co. v. Barrett, 110 8.

Ct. 1384, 1390 (1990), such a legislative delegation is

only a necessary condition for Chevron-style deference; it

is not by itself sufficient to bind the courts. Rather, this

Court has indicated that the administrative interpreta-

tion being reviewed must also be in a form that Congress

12

intended to have the force and effect of law. See Batter-

ton v. Francis, 482 U.S. 416, 425 n.9 (1977); Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).

a. As courts and commentators (such as the Admin-

istrative Conference of the United States) have recog-

nized, there are sound reasons why “controlling weight”

should be given only to administrative interpretations

that are in a form which Congress intended to have the

force and effect of law. See 1 C. F. R. § 305.89-5 Ad-

ministrative Conference Recommendation 89-5). See gen-

erally Anthony, Which Agency Interpreiations Should

Bind Citizens and Courts?, 7 Yale J. on Reg. 1, 4-5, 30-

36 (1990). Such a requirement ensures that an agency

cannot bind the courts (or the public) without also bind-

ing itself. See Anthony, supra, 7 Yale J. on Reg. at 4-5;

see also Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d

533, 536-39 (D.C. Cir. 1986) (Scalia, J.). Moreover,

such a requirement prevents an agency from evading the

procedures that Congress has established for ensuring

that administrative rules do not become legally enforce-

able without public or adversarial debate. Accord, Mor-

ton v. Ruiz, 415 U.S. 199, 230-36 (1974). And, finally,

such a requirement provides assurance that binding legal

rules will be established only by agency heads and other

politically accountable officers—and not by lower-level

officials or staff counsel. See Heckler v. Chaney, 470 US.

821, 836-37 n.5 (1985).

b. Occasionally, Congress will expressly specify which

agency interpretations it intends to have the force and

effect of law and thus be binding on the courts. See Chev-

ron U.S.A., Ine. v. Nateral Resources Defense Council,

Inc., 467 U.S. at 842-44; Fort Motor Credit Co. v. Mu-

hollin, 444 U.S. 555, 566-68 (1980). In the absence of

such an express specification, however, the APA provides

the governing standards. See Bowen v. Georgetown Univ.

Hosp., 488 U.S. at 221 (Scalia, J., concurring). It distin-

guishes between administrative actions generally having

the force and effect of law and those that do not. See id.

“orders” that result from

and,

judication cannot be departed from in future adjudica-

tions without reason,” a rule “is a statement that has

legal consequences only for the future.” Bowen v. George-

town Univ. Hosp., 488 U.S. at 216 (Scalia, J., concur-

ring). Ultimately, however, “rules” and “orders” have as

their purpose the expression of governing legal standa: us

—“|a}djudication deals with what the law was: rule-

making deals with what the law will be.” Id. at 221

Scalia. J., concurring). “Rules” and “orders” are thus

the principal means by which agencies establish the kinds

of binding legal norms that are eligible for Chevron-style

deference. Accord, Batierton v. Francis, 432 U.S. at 425

. 3 generally, 1 C. F. R. § 305.89-5 Administra-

tive erence Recommendation 89-5; Anthony, su

7 Yale J. on Reg. at 4-5. 5

Rule“ is defined in relevant part as

the whole or a part of an agency statement of general or par-

ticular applicability and future effect designed to implement,

interpret, or prescribe law or policy . ...

5 U.S.C. $551(4). “Order,” in turn, is defined in relevant part as

the whole or a part of a final disposition, whether affirmative.

negative, injunctive, or declaratory in form, of an agency in a

Id. § 551(6).

14

By contrast, under the APA, interpretive rules, mere

statements of agency policy, manuais, guidelines, staff

instructions, and agency litigation positions generally do

not establish binding legal norms. See Batterton v.

Francis, 432 US. at 425 n.9; McKee v. Sullivan, 903

F.2d 1436, 1438 n (11th Cir. 1990); Church of Scien-

tology v. IRS, 792 F.2d 153, 162 n4 (D.C. Cir. 1986 |

(en banc), aff'd, 484 U.S. 9 (1987); Mada-Luna v. Fitz-

patrick, 813 F.2d 1006, 1017 (9th Cir. 1987); Pacific

Gas & Elec. Co. v. FN, 506 F.2d 33, 38 D.C. Cir.

1974). Accordingly, they are not eligible for Chevron-

style deference. Accord, Batterton v. Francis, 432 US.

at 425 n.9: Bowen v. Georgetown Univ. Hosp., 488 US.

at 213. See generally 1 C.F.R. § 305.89-5 Administra-

tive Conference Recommendation); Anthony, supra, 7

Yale. J. on Reg. at 55-61.

c. This Court’s administrative law cases follow the

basic approach of the APA to the Chevron-style deference

issue. Interpretations developed through formal rule-

making procedures have been the paradigm candidates

for Chevron-style deference. See, e. g., Sullivan v. Ever-

hart, 110 8. Ct. 960, 963, 964-66 (1990). Less formal

agency rules have also, in appropriate circumstances, re-

ceived Chevron-style deference. See Young v. Community

Nutrition Inat., 476 U.S. 974, 978 (1986); FDIC rv. Phil-

adelphia Gear Corp., 476 U.S. 426, 438-39 (1986). And,

of course, final agency orders entered in the process of

adjudication have been recognized as appropriate candi-

dates for Chevron-style deference. See, „g. Fort Stew-

art Schoola „., FLRA, 110 8. Ct. 2043, 2046 1990

Pattern Makers’ Leaque «. NLRB, 473 US. 95, 114

19883 But the Court has never applied the Chevron

deference principle “to agency litigating positions that

are wholly unsupported by regulations, culings, or admin-

istrative practice.” Bowen v. Georgetown Univ. Hosp.

488 US. at 212. Indeed, it has indicated that interpre-

tive guidelines are not binding on the courts. See Batter-

ton v. Francia, 432 US. at 425 2.9

EEE —— ² ' m ⁰•ůùd1 Eee

15

3. That mere statements of policy and litigation posi-

tions are not binding rules or “orders” (and thus not

entitled to “controlling weight” under Chevron) does not

mean that they are not entitled to any weight at all.

See Gardebring v. Jenkins, 485 U.S. 415, 429-30 (1988).

It does mean, however, that the Commission and the

“courts properly may accord less weight to such in-

terpretations| than to administrative regulations which

Congress has declared shall have the force of law.” Gen-

eral Elec. Co. v. Gilbert, 429 U.S. at 141. “ The weight

of such a judgment in a particular case will depend upon

the thoroughness evident in [the agency’s| consideration,

the validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors which

give it power to persuade... .'” Id. at 142 (quoting

Skidmore, 323 U.S. at 140). In no event, however, will

the general rulemaking or enforcement authority of an

agency give such non-binding statements of policy and

procedure the power to control the courts. Id.; see also

Bowen v. Georgetown Univ. Hosp., 488 U.S. at 204: Bat-

terton v. Francis, 432 U.S. at 425 n.9.

4. Thus, the Secretary seriously errs in suggesting

(Pet. Br. 18-20) that the deference issue here turns on

Congress’ conferral on her of so-called “policymaking”

authority. Courts do not give agency interpretations

Chevron-style deference simply because the agency has

the capacity for exercising “policymaking” authority.

Rather, courts give agency interpretations Chevron-style

deference because, and only because, the interpretations

constitute authoritative exercises of delegated lawmaking

power. When the agency interpretations do not consti-

tute such authoritative exercises of delegated lawmaking

power, they do not receive Cherron-style deference.

B. Only The Commission Has Engaged In An Authorita-

tive Exercise Of Delegated Lawmaking Power In This

(ase

The deference iseue here thus turns not on which

agency can make a greater claim to so-called “policy-

making authority, but which agency, if either, cur

1. The Commission’s interpretation of 29 C.F.R.

§ 1910.1029(g)(3) and, by incorporation, 29 U.S.C.

§ 1910.134(e) (5), constitutes an authoritative exercise

of delegated lawmaking authority. The Commission de-

veloped its interpretation of these standards through its

delegated administrative role of adjudication under the

OSH Act. See 29 U.S.C. § 651(b) (3). It did so on the

e.g., Fort Stewart Schools v. FLRA, 110

Stevens, stated:

We note at the outset that the Occupational Safety

and Health Review Commission is to have

and analysis of the Commission unless such findi

are without substantial basis in fact . The

itself states: “The findings of the Commission with

shall be conclusive.” ... In addition, the Commis-

sion’s in tions regarding the meaning of the

Act should be given substantial deference by a court.

Brennan v. OSHRC, 501 F.2d 1196, 1198-99 (7th Cir.

1974) ‘citations omitted).

2. By contrast, the Secretary's interpretive position is

not embodied in any authoritative “rule” or “order.”

17

The text of 29 C. F. R. § 1910.1029(g) (3) does not itself

require fit testing of respirators in a test atmosphere.

Moreover, 29 C. F. R. § 1910.134/e) (5) is on its face only

a

7

|

:

tion. These expressions of the Secretary's apparent in-

ing norm.’ Accordingly, they are not entitled to Chevron-

style deference from the courts.“

3. Of course, as noted above ‘at 14-15) and in the

decision below (Pet. App. 9a), the fact that the Secre-

tary's interpretation is not eligible for Chevron-style

deference does not mean that it is entitled to no weight

from. the courts. " 8.

Frock «. Cathedral Blu ffa Shale Oil Co., 796 F 2d at 536-30.

For this reason, contrary to the Secretary's suggestion (Pet. Br.

24), there le no anomaly in the fact that the Secretary may receive

Chevron-atyle deference in cases where she has advanced in court

an authoritative position that has the force and effect of law (and

thus the power to bind) Such authoritative interpretations would

effectively receive Chevron-deference even if initially presented to

the Commission. if the Commiasien rejected an authoritative “rule”

or “order” of the Seeretary that ie not contrary to the statute, the

Commission's decision would not be “in accordance with law.” 5

U.S.C. § 706(2 (A).

C. The Secretary Misapplies The Allocation Of Adminis-

trative Authority Under The OSH Act

In arguing to the contrary, the Secretary relies on a

series of arguments concerning the allocation of adminis-

trative authority under the OSH Act. These arguments

are seriously misguided.

1. The Secretary principally argues (Pet. Br. 20,

28-31) that, because Congress conferred all rulemaking

and enforcement power on her, her interpreations of the

OSH Act and its implementing regulations are entitled to

“controlling weicht“ ever if developed in the course of

a prosecution. As explained above (at 10-15), this argu-

ment conflicts with sound principles of administrative law

he AFL-CIO thus errs in suggesting (AFL-CIO Br. 3-4, 12-

13 that the decision below ignores the rule that a court should not

substitute its judgment as to the meaning of ru for that of the

rules maker. The question for the court below was not whether

to substitute ite view for that of the Seeret«ry; that was the ques

tion which the Commission fated. The que ‘ion for the court be-

low was whether to substitute its jadgmem for that of the only

legally binding agency position in the case «+, the Commission's

order The court below property did not do so

been established. See id.; see also Atlas Roofing Co. v.

OSHRC, 430 U.S. at 446. The statutory structure thus

indicates that the Secretary's prosecutorial positions are

not entitled o Chevron-style deference; rather, only her

rulemaking-related interpretations are judicially binding.

b. As explained in greater detail in the brief amici

curtae of the Chamber of Commerce of the United States

et al. ‘at 13-19), the legislative history confirms the

rulemaking, prosecutorial, and adjudicatory functions in

the Secretary. See, eg., S. Rep. No. 1282, biet Cong.

2d Sess. 8 15 (1970), reprinted in Staff of the Subcomm.

on Labor of the Senate Comm. on Labor and Public Wel-

fare, 92d Cong. Ist Sess, Legislative History of the Or-

cupational Safety and Health Act of 1970 at 148, 155

Comm. Print 1971) (Legis. Mist. A competing pro-

the

creation of two independent boards to perform the

making and adjudicatory functions, leaving only

tion with the Secretary. See id. at 54, reprinted

Hist. at 193 individual views of Sen Javits).

nents of the Administration bill saw their

analogous to other “multimember independent

trative agencies,” such as “the National Labor

Board,” whose performance of “quasi-judicial

tion” was seen as a more positive experience

resulting from concentration of all power in one

ment. Id. at 55, reprinted in Legis. Hist. at 194

vidual views of Sen. Javits). Indeed, one of the

points of attack was that the Committee versions

visioned the Secretary “essentially acting as prosecutor

and judge.” Id. at 56, reprinted in Legis. Hist. at 195

(individual views of Sen. Javits).

Ultimately, the dispute spilled out onto the Senate

floor. Senator Javits introduced a floor amendment to the

Committee bill proposing to establish only one independent

beard, which would perform the adjudicatory function.

and would possess “the same type of authority that the

Federal Trade Commission exercises.” Legis. Hist. at

462 ‘remarks of Sen. Javits}. During the ensuing de-

bate, Senator Javits defended his proposal in part by

pointing to the National Labor Relations Board (NLRB)

as precedent; in doing so, he noted that Congress had

installed a General Counsel to act as an investigative and

prosecutorial counterpart to the NLRB’s “quasi-judicial

functions” for “precisely the reason” that he was arguing

1

i

1

Javits). The Javits amendment passed by a 43-38 vote,

and the structure that it established was adopted by the

Conference Committee. Legis. Hist. at 1147 (remarks of

Sen. Williams). ~~;

The legislative history thus confirms that the final

administrative structure of the OSH Act represented a

deliberate legislative compromise. While the Secretary

21

was given full rulemaking power, Congress also avoided

conferring too much power on her. Instead, it imposed

substantial procedural requirements on the exercise of

her rulemaking powers; and, importantly, it generally

declined to give the Secretary the power to develop bind-

ing interpretations through adjudication, thereby deny-

ing the Secretary a regulatory choice that most adminis-

trative agencies have. See SEC v. Chenery Corp., 332

U.S. 194, 202-03 (1947); Shapiro, The Choice of Rule-

making or Adjudication in the Development of Adminis-

trative Policy, 78 Harv. L. Rev. 921 (1965).*

2. The Secretary also argues (Pet. Br. 21-24, 31-33)

that Congress conferred no “policymaking” authority on

the Commission and, accordingly, that its view cannot

qualify for Chevron-style deference. Of course, as noted

above (at 11-15, 16-17, 18-21), even if this argument

were valid, it would not establish that the Secretary’s

views are entitled to judicial deference. In all events,

the argument is unfounded.

a. As the court below noted (Pet. App. 7a), the OSH

Act endows the Commission with the normal complement

of adjudicative powers possessed by traditional adminis-

trative agencies. See 29 U.S.C. § 659(c), 661. The nor-

mal complement of adjudicative powers possessed by ad-

ministrative agencies includes the power to “declare” the

law—or, more specifically, to declare “what the law was.”

Bowen v. Georgetown Univ. Hosp., 488 U.S. at 221

(Sealia, J., concurring). And, as this Court has long

recognized, the power administratively to declare “what

* The Secretary makes much of the Senate committee’s belief that

a sounder safety and health program would result if the respon-

sibility for formulating rules was assigned to the same administra-

tor who was responsible for those rules’ enforcement. See Pet.

Br. 30-31. But the Senate committee's belief simply shows that the

Congress believed that better rules would result if these functions

were combined. It does not show that Congress intended for the

administrator who had these two functions to be able in administra-

tive litigation to trump the Commission's interpretation of what

ambiguous rules were intended to require.

the law was” includes a substantial policymaking com-

ponent. See NLRB v. Bell Aerospace Co., 416 U.S. 267,

292-94 (1974); SEC v. Chenery Corp., 332 U.S. at

202-03. Thus, there is every reason to conclude that “the

Commission was designed to have a policy role“ (Bren-

nan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th

Cir. 1974) ); indeed, as noted above (at 19-21), the legis-

lative history of the OSH Act makes it clear that the

Commission was modelled after the NLRB and the Fed-

eral Trade Commission, two agencies which have long

been recognized to exercise policymaking authority

through adjudication.

b. The Secretary plainly errs in suggesting (Pet. Br.

23-24) that the adjudicatory power to “declare” the law

may serve as a vehicle for the formulation of policy only

when the rulemaking power also resides in the agency.

The adjudicatory and rulemaking powers are separate

and independent administrative powers and have, as

their principle differences, only the immediacy of their

consequences and the procedural requisites for their

change). See NLRB v. Bell Aerospace Co., 416 U.S. at

292-94; Bowen v. Georgetown Univ. Hosp., 488 U.S. at

221 (Scalia, J., concurring). Divesting an agency of one

of these powers does not by itself diminish the agency’s

authority with respect to the other power.’ It simply

* For example, in the Civil Service Reform Act of 1978, Pub.

L. No. 95-454, 92 Stat. 1111, Congress divided the administrative

functions of the old Civil Service Commission between two new

agencies: The Office of Personnel Management (OPM) and the Merit

Systems Protection Board (MSPB). S. Rep. No. 969, 95th Cong.,

Ist Sess. (1978) 4-5, reprinted in 1978 U.S. Code Cong. & Ad. News

2723, 2726-27. OPM was to have central responsibility for “per-

sonnel management,” while the MSPB was designed to “adjudicate

cases.” Id. at 5-6, reprinted in 1978 U.S. Code Cong. & Ad. News

at 2727-28; see also 5 U.S.C. § 1204(a) (1); 5 C. F. R. § 1200.1. The

MSPB’s members, like the Commission's, must have expertise and

are appointed by the President with the advice and consent of the

Senate. 5 U.S.C. $1201. And, like the Commission, the MSPB has

no substantive rulemaking authority. See id. §§ 1204(e)(2)(B),

1204(h). Yet, the courts of appeals, recognizing the MSPB’s status

— — — —

denies the agency the flexibility that derives from having

both powers available to it.“

e. The Secretary and the AFL-CIO further err in

suggesting (Pet. Br. 22 & n.19, 23 n.21, 33; AFL-CIO

Br. 7-8, 12-14) that the Commission’s role in this scheme

is, at most, like that of a district court.“ Unlike a dis-

as an “independent adjudicatory bod[y],” have granted the agenc

Chevron-style deference. See, ¢.g., United States v. Paddack, —

F. 2d 504. 513 (D.C. Cir. 1987). Indeed, this Court's decision in

Cornelius v. Nutt, 472 U.S. 648, 659 (1985), was grounded in part

on Chevron-style deference to the MSPB.

Similarly, the Board of Immigration Appeals (BIA) has been

established by the Attorney General to “perform the quasi-judicial

function of adjudicating cases” under the Immigration and Na-

tionality Act. 8 C. F. R. § 3.1(a)(3). Despite a lack of any substan-

tive rulemaking power, id. §3.1(d)(3), the BIA’s statutory and

regulatory interpretations have often been accorded Chevron-style

deference. Indeed, in INS v. Cardoza-Fonseca, 480 U.S, 421, 445-49

& n.29 (1987), the Solicitor General argued that the BIA’s con-

struction of the Immigration and Nationality Act was entitled to

controlling weight under Chevron, and the Court made clear that

it believed such deference would have been due the BIA had the

analysis progressed to that point in that case. The courts of ap-

peals have routinely granted Chevron-style deference to the BIA.

See, e.g., Perlera-Escobar v. Executive Office for Immigration, 894

F.2d 1292, 1296 (11th Cir. 1990); Campos-Guardado v,. INS, 809

F. 2d 285, 289 (5th Cir.), cert. denied, 484 U.S. 826 (1987).

See NLRB . Bell Aerospace Co, 416 U.S. at 292-94 (describ-

ing flexibility) ; SEC v. Chenery, 332 U.S. at 202-08 (same): Sha-

piro, supra, 78 “larv. L. Rev. at 921 (same).

The AFL-CIO goes so far as to suggest (AFL-CIO Br. 7-8)

that the Commission is a mere “fact-finder” and has no role “in

interpreting the law or the Secretary’s standards.” Even the See-

retary does not make such an outlandish suggestion. See Pet. Br.

21-23 (conceding that, like a district court, Commission has power

to make declarations of law). While the statute does state that the

Commission's orders must be based on “findings of fact,” it does

not say that those orders may not include conclusions of law (which

of course they may and do). Accord, Brennan v. Gilles & Cotting,

Ine, 504 F.2d at 1262; Brennan „ OSHRC, 492 F.2d 1027, 1032

(2d Cir. 1974). Indeed, by directing the Commission (29 U.S.C.

$59.6) conduct itself in accordance with the APA, the OSH

trict court, the Commission is part of the very adminis-

trative framework in which Congress vested the discre-

tion for implementing the OSH Act. 29 U.S.C. § 651

(b) (3). Moreover, unlike a district court, the Commis-

sion is technically expert and experienced in the field of

job safety and health. Id. § 661 (a). Finally, unlike a

district court, the Commission is composed of political

appointees who are, at least indirectly, democratically

accountable. Jd. It is precisely these factors that led the

Court in Chevron to hold that courts must give “con-

trolling weight” to the authoritative judgments of ad-

ministrative agencies like the Commission. See Chevron,

467 U.S. at 842-45, 864-66.

d. Finally, the Secretary errs in suggesting (Pet. Br.

31-83) that a rule requiring deference to the Secretary's

interpretation (and not the Commission's interpretation

is consistent with the purposes for which the Commission

was created. As explained in greater detail in the brief

amici curiae of the Chamber of Commerce of the

United States et al. (at 13-19), the legislative history

shows that the regulated community viewed the Secre-

tary as the “voice of labor” and that the Commission was

created in order to reassure the regulated community

that the adjudicatory process would be a fair and efficient

one. Conferring Chevron-style deference on the Secre-

tary’s interpretation of an ambiguous regulation (and

denying it to the Commission) would be directly incon-

sistent with this objective: It would confer on the very

administrative official whom the regulated community

feared vast discretion unfairly to bend the law to the

facts of particular cases. And it would seriously cripple

the administrative agency that was supposed to provide

Act contemplates that the Commission will decide questions of law.

See & U.S.C. $ 557(e)(3)( A). Moreover, the statutory provisions

authorizing the NLRB to iseve „fair labor practice orders are

almost identically worded to the OS Act previsions ‘hat authorize

“orders” by the Commission, compere 29 USC. 8 MOrc), fe), (f)

with 29 U.S.C. 88 659 % 600, aed there ic no plausible argument

that the NLRB is a more “fact-finder.”

Brennan v. OSHRC, 492 F.2d at 1032.

3. The Secretary next suggests (Pet. Br. 24-27) that

a number of “practical considerations” support deference

to her interpretations. They do not do 80.

a. The Secretary first suggests (Pet. Br. 25-26) that

only she has a sufficiently broad perspective to interpret

the meaning of the regulations that she has crafted.

Of course, the Secretary did not even craft the regulation

which, by incorporation, is in issue in this case.“ In any

event, the Commission is statutorily “presumed to have

technical expertise and experience in the field of job

safety.” Brennan v. OSHRC, 501 F.2d at 1198. More

over, “it is the Commission and not the Secretary which

is charged with the final administrative adjudication of

the Act.“ Brennan v. OSHRC, 513 F.2d 713, 715-16

(8th Cir. 1975). Indeed, while the Commission reviews

only contested citations, every citation is deemed a final

order of the Commission. 29 U.S.C. § 659%. Thus, the

Secretary's alleged vision with respect to the regulations

cannot properly form th» basis for judicial deference to

her; Congress deemed the Commission to have this vision,

and gave it the authority to resolve interpretive questions

arising in the adjudicative process.“

" As noted above (at 4-6), the substantive standard at issue is

29 C. F. R. 1910.134(e)(5), which is incorporated by and made ap-

plicable through 29 CFR. 191% 0% % %% The Secretary did

not craft 29 C.F.R. § 1910.184(e)(5). It was part of a general

respiratory protection standard developed by a private organization,

ANSI, and later adopted by the Secretary pursuant to 29 U S.C

£ 655. a) without notice and comment procedures

“In any event, the evidence that the Secretary “cites does not

support the conclusion that she reaches. While only a small portion

adjudicatory process to attempt to persuade the Commis-

sion that her interpretations of ambiguous rules are, he

most reasonable ones. And, in all events, as Professor

(now-Deputy Solicitor General) Shapiro has noted, the

Secretary has available to her “the many less formal

alternatives that can constitute the beginning and end of

. . . or of publicity, [Which] can be an effective means

of declaring and applying policy free from the restraints

of judicial review.” Shapiro, supra, 78 Harv. L. Rev. at

923. In short, the fears that the Secretary expresses here

are incredible and, in the final analysis, simply constitute

an objection to the congressional division of administra-

tive authority under the OSH Act.

e. Finally, the Secretary makes the outrageous sug-

gestion (Pet. Br. 27, 37) that a rule of deference to her

is necessary in order to ensure that CF&I does not

“eseape liability.” This suggestion shows absolutely no

respect for either the rule of law or orderly procedure.

of OSHA's overall activities lead to contested citations, the abso-

lute number of such contested actions is still quite large-—by the

Secretary's own count, approximately 15,695 citations in fiseal year

1988 alone. Moreover, the cases in which legal issues are involved,

and in which the defere ee issue is likely to be relevant, are just

these contested cases the uncontested cita*ions are consensual reso-

lutions that involve no significant issue about the scope of OSHA's

standards and thus do little to enhance anyo es “vision of the

program.”

ee — — a Boe

27

so. Indeed, CF&I is subject to the obligations contained

in that regulation (29 C.F.R. § 1910.1029(g) (4) (i),

which remains in force. That the compliance officer and

the Secretary’s solicitors elected to make a “test case” out

which, in contrast to the LHWCA scheme, involves an in-

dependent agency established for the very purpose of

dividing administrative authority.

b. The Secretary also argues (Pet. Br. 35-36) that the

deference afforded to her interpretations under the Fed-

eral Mine Safety and Health Act of 1977, 30 U.S.C. § 801

et seqg., should de afforded to her interpretations under

28

the OSH Act. But, again, these are two different statu-

tory schemes, and the Secretary does not even begin to

justify her assertion that the intent of Congress under

the OSH Act is the same as the intent of Congress under

the Mine Act. In any event, as the Secretary concedes

(Pet. Br. 36 n.35), courts have disagreed about the ap-

propriate deference to be accorded to the interpretations

of her and the Federal Mine Safety and Health Review

Commission under the Mine Act; and the cases and -legis-

lative history that she cites are generally consistent with

the argument advanced here—i.e., that only administra-

tive actions creating binding legal norms should have the

“power to control,” while administrative actions lacking

such authority should have only the “power to per-

suade.“

14 See Secretary of Labor v. Cannelton Indus, Inc., 867 F. 2d 1432,

1436-38 (D.C. Cir. 1989) (giving “controlling weight” to authori-

tative pronouncement of Secretary); Brock v. Cathedral Bluffs

Shale Oil Co., 796 F.2d at 537-38 (taking Secretary’s interpretation

for its persuasive value); Brock v. Peabody Coal Co., 822 F.2d 1134.

1136 (D.C. Cir. 1987) (rejecting Secretary’s construction and af-

firming Mine Safety Commission); S. Rep. No. 181, 95th Cong.,

Ist Sess. 49 (1977) (“weight” shall be given to Secretary’s inter-

pretations).

The Secretary errs in repeatedly citing Justice (then-Judge)

Scalia's opinion in Cathedral Biuffs as support for her position in

this case. That opinion merely held that, in reviewing whether an

enforcement policy of the Secretary is a “binding norm,” a court

owed no deference to the Mine Safety Commission, and a “not over-

whelming” degree of deference to the Secretary. 796 F.2d at 537.

Both conclusions appear correct to us (since neither the Mine

Safety Commission nor the Secretary administers the APA, and

since the guideline in issue concerned the Secretary’s prosecutorial

discretion). In any event, in reaching the former conclusion, the

opinion was simply following prior circuit precedent; and, in reach-

ing the latter conclusion, the opinion was merely recognizing that

the Secretary’s view of the legal effect of her own actions, while

worthy of consideration, is not entitled to Chevron-style deference.

29

CONCLUSION

The judgment of the court below should be affirmed.”

Respectfully submitted,

ROBERT C. GOMBAR

(Counsel of Record)

GLEN D. NAGER

Of Counsel: STEVEN T. CATLETT

EARL R. OHMAN, JR. DEENA B. JENAB

General Counsel JONES, DAY, REAVIS & POGUE

Occupational Safety and 1450 G Street, N.W.

Health Review Commission Washington, D.C. 20005-5701

1825 K Street, N.W. (202) 879-3939

Washington, D.C. 20006 _Attorneys for the

(202) 634-4015 Occupational Safety and

Health Review Commission

September 1990

15 The filing of this brief amicus curiae in support of the Respond-

ents has been authorized by the Solicitor General.