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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 144

## Text

-

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0739%3A10. Public record. Not legal advice.