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

Bite “et? OCCUPATIONAL SAFETY AND HEALTH

aR seek or 3 REVIEW COMMISSION

CF&I STEEL CorPoraTIoN,

‘ m Respondents.

eh ih On Writ of Certiorari to the United States

4 ad .. Court of Appeals for the Tenth Circuit

ee ‘

Paya! | ’

STEPHEN A. BOKAT

(Counsel of Record)

Rosin S. CONRAD

ge ZEIBERG

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 of 1970 is con-

trolling on the courts when the Secretary of Labor dis-

agrees with the Commission’s interpretation.

(i)

TABLE OF CONTENTS

Page

Eg iv

ae 1

ESS A TE 4

SUMMARY OF ARGUMENT ...............--20200.. 6

EEE ESS SENT 9

A. Deference To The Commission’s Interpretations

Of Ambiguous Statutory And Regulatory Pro-

visions Is An Essential Part Of The Com-

promise Developed By Congress In Enacting

TT 9

B. The Secretary And The AFL-CIO Misapply Gen-

eral Principles Of Administrative Law _....... 19

C. The Statutory Analogues To Which The Secre-

tary Points Do Not Support Her Cause _............ 24

i cnmunibunsotanante 27

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977)... 12

Batterton v. Francis, 482 U.S. 416 (1977) ........... 20

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

RA ae Sa Re nr Nerd MN Mo NED Eo aot 10, 12, 20-22

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

PO SO ST la ies 12, 20

Brennan v. OSHRC, 492 F.2d 1027 (2d Cir. 1974)... 21

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

SI cidinenesoeaiiealiattitiadiia shane ititatnaigenttatieiidiit nite aladdin 12

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

i 26

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

RARE ca Tartan nen baie He 1 26

Chevron U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 887 (1984) —.......... passim

Donovan v. Carolina Stalite Co., 734 F.2d 1547

Cai Cees, I alter iiiidal iaceertaitaictatietclientunente 27

Donovan v. Dewey, 452 U.S. 594 (1981) 00. 26

Gardebring v. Jenkins, 485 U.S. 415 (1988)........ 22

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).. 23

Investment Co. Inst. v. Camp, 401 U.S. 617

IE enetncsienericenitinstntanstinaseaicacncetttnciiachait atin Nahi 20

Laborers Health & Welfare Trust Fund v. Ad-

vanced Lightweight Concrete Co., 484 U.S. 539

SERRE ESSEC pe cae cts a ns a 2, 24

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)... 21

NLRB v. United Food & Commercial Workers

SPU, Ge Se I COD cetcceececcececeeeessnnteneczenees 10-11

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

SEE ee eee ae Oe SoC ee 2

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

I i 24

SEC v. Chenery Corp., 332 U.S. 194 (1947) _......... 12, 21

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

if pb fi a Se eee 26

Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir.

SESE REM AGS IRL Rees ANE ee RS TORR 26

Skidmore v. Swift & Co., 823 U.S. 184 (1944) ........ 22-23

Trans World Airlines, Ine. v. Independent Federa-

tion of Flight Attendants, 109 S. Ct. 1225

v

TABLE OF AUTHORITIES—Continued

Statutes Page

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

TO Ff Sea passim

I scesntscnttiepeentennntsonrcenteaneninannaitciias 10, 25

Federal Mine Safety and Health Act of 1977

(Mine Act), 30 U.S.C. § 801 et seq. .................... 9, 25

a cceeteinpeineinnannesiehiines 26

AT A AE 26

Toco cerieemnstnighigncemmseennoneypeaniats 26

ST. ccicinsemapepenennennembaienlendibneatgnganigitl 26

OA a 26

I cicesaleenninidpenpneaneneagn 26

Labor-Management Relations Act (LMRA), 61

GI TIT nic asicetesrines hieeianrinnainieneanneliainatiletibaelbesen 10

Longshoreman’s and Harbor Worker’s Compensa-

tion Act (LHWCA), 33 U.S.C. §§ 901-950........ 8, 24-25

I an cccttisdnnuttiieststnetilgiibinibiitiaiiaietiaiviy 25

I oe ncicsiiencinsceentiinnsnabsitnnsinitninin 25

ar atenincctensnestinseemnteedennetastn 25

Occupational Safety and Health Act of 1970 (OSH

PE passim

IID ciccrccrsinnsniscesesesenesereansennsie 12

aii cneniciisccnsdenscoceyeentnncntnmnmnecsnintin 11, 26

I CD vcteccecnececenssceressveseneeqnnnciias 25

I oo scrseentsticnsnmnmenenrennnnosenssessinninatl 11, 138, 26

IID So necccoccoceyenneetserassnnnsntinntstnnibttions 21-22

IID oc csnesctencenssnsentnsocunncsnvinnedibvese 12

i inicrrcrtcipcnnenousveemeninaeusesueantienineeton 18, 26

| ee eee 11, 26

IID a niccanedenieastednasesacnesineisiiines 13

IID. siiciccnsniapennnentignbncittiinsiincninnentinitt 14

dis ctienesncincansidtianniineniticienenatninentnill 11, 26

eee 11-13, 26

IIE a scicinrmeetinstnssenenensstintensteitiinon 12, 21

as crcencsannntononnntinnsnieninsetiiuiadiion 21, 26

SII. <ccsssesnnnncenseucsmssoneentovnieosiinentiia 5

an assaeentnsitnenccenstiiciecntinmtnseneneiits 25-26

ID... ssiscrsesieaidianiapinmieennsislaaneile 12, 21, 23

I TI acd iinscesnigesinsenrbeiniannaninnesemnmiennntaminetita 13, 25

vi

TABLE OF AUTHORITIES—Continued

Page

Ns Ie I voice einccooicnceecctocaceesens shiantsiaibaiscabinnchs 21

TLS eK AP SS 21

Regulations

EE ee a a SS 10

Ee 20

29 C.F.R. § 1910.184(e) (G6) -.................-..--..ecccceccee.. 4, 5, 21

ee 4

CR ee 4

Te 4

29 C.F.R. § 1910.1029(@) (8) ..................................... 4-6

29 C.F.R. § 1910.1029 (g) (4) (i) ................................ 5

Legislative Materials

Hearings on H.R. 13373 Before the Select Sub-

comm. on Labor of the House Comm. on Educa-

tion and Labor, 91st Cong., Ist Sess. (1969)... 3

S. 4404, 91st Cong., 2d Sess. (1970) 0. 3

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970)... 13-16,

19, 25

Miscellaneous

Anthony, Which Agency Interpretations Should

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

EE Se a a Oe ae 20

41 Fed. Reg. 46,742-90 (1976)............0. ee. 4

B. Mintz, OSHA: History, Law, and Policy

EE eo a oe ee 4

Shapiro, The Choice of Rulemaking or Adjudica-

tion in the Development of Administrative Pol-

icy, 78 Harv. L. Rev. 921 (1965) 0.00. 12, 19, 23

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.

| EIT TIT EES LT FS 8, 13-19, 25

IN THE

Supreme Cowt of the United States

OCTOBER TERM, 1990

No. 89-1541

ELIZABETH H. DOLE, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

= 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

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA,

THE INDUSTRY COUNCIL ON THE ENVIRONMENT,

SAFETY, AND HEALTH, AND THE UNITED STATES

HISPANIC CHAMBER OF COMMERCE

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI’

The Chamber of Commerce of the United States of

America (Chamber), a nonprofit corporation organized

and existing under the laws of the District of Columbia,

1 This brief amici curiae is filed with the consent of all parties.

Letters acknowledging this consent have been filed with the Clerk

of the Court.

2

is the largest federation of business, trade, and profes-

sional organizations in the United States. It represents

the interests of over 180,000 corporations, partnerships,

and proprietorships, as well as state and local chambers

of commerce and trade associations. The vast majority

of its members are subject to the Occupational Safety

and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651-

678. The Chamber regularly represents the interests of

its member-employers in important employment matters

before the courts, the United States Congress, the Execu-

tive branch, and independent regulatory agencies of the

Federal Government.’

The Industry Council on the Environment, Safety, and

Health (ICESH) is an organization of companies formed

to address compliance and enforcement issues arising out

of government enforcement activities under federal oc-

cupational safety, health and environmental laws. At

present, ICESH has twenty member companies repre-

senting the following industries: paper, hazardous waste

handling and. control, transportation, glass, basic miner-

als, chemical, petrochemical, petroleum, and consumer

products. Such industries are covered by the OSH Act.

The United States Hispanic Chamber of Commerce

(Hispanic Chamber), a nonprofit corporation organized

and existing under the laws of the State of New Mexico,

is the foremost national Hispanic business organizaticn.

It represents the interests of the nearly 400,000 Hispanic

business enterprises operating in the United States, as

well as state and local Hispanic chambers of commerce.

The Hispanic Chamber regularly monitors legislative,

regulatory, and judicial developments that affect His-

panic entrepreneurs.

2 The Chamber has sought to advance those interests in a wide

spectrum of employment law litigation before this Court. See, e.9.,

Trans World Airlines, Inc. v. Independent Federation of Flight

Attendants, 109 S. Ct. 1225 (1989); Laborers’ Health & Welfare

Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539

(1988) ; Pattern Makers’ League v. NLRB, 473 U.S. 95 (1985).

A

3

The Chamber, ICESH, and the Hispanic Chamber have

a significant interest in the question presented in this

case. Their members frequently appear before the Occu-

pational Safety and Health Review Commission (Com-

mission) in challenges to the enforcemert actions of the

Secretary of Labor under the OSH Act. The ability of

the Commission to function effectively as the OSH Act’s

adjudicator on issues of both fact and law is vitally im-

portant to the members of the Chamber, ICESH, and

the Hispanic Chamber. Therefore, the Chamber, ICESH,

and the Hispanic Chamber are seriously concerned that

the balance of administrative power struck by Congress

in the OSH Act be preserved.

Indeed, during congressional consideration of the bills

which gave rise to the Occupational Safety and Health

Act, the Chamber and other business groups supported

passage of a substitute bill proposed by Senator Domi-

nick. That bill laid the ground work for the establish-

ment of the Commission by proposing both a standards

board and an adjudicatory board. S. 4404, 91st Cong.,

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

Labor of the Senate Comm. on Labor and Public Welfare,

92nd Cong., 1st Sess., Legislative History of the Occu-

pational Safety md Health Act of 1970 at 73 (Comm.

Print 1971) (Leg. Hist.). The establishment of an in-

dependent agency was crucial to business support. As

Walter J. Burke, the then-Secretary-Treasurer of the

United Steelworkers of America, stated in opposition to

the Dominick substitute:

Last year a number of employer-oriented organiza-

tions and trade associations testified in opposition to

the need for Federal occupational health and safety

legislation. This year the field has been reversed.

The one substantively new thing, which has been

added, is the board.

Hearings on H.R. 13373 Before the Select Subcomm.

on Labor of the House Comm. on Education and Labor,

91st Cong., Ist Sess. 927, 935-38 (1969), quoted in B.

4

Mintz, OSHA: History, Law, and Policy 23 (1984).

While the Dominick bill was ultimately defeated, the con-

cept of an independent review commission survived.

Amici believe that, if the Secretary’s position is accepted

here, it will undo the legislative compromise that ulti-

mately gained the support of the business community and

a passage of the Occupational Safety and Health

ct.

STATEMENT

The Occupational Safety and Health Act of 1970 (OSH

Act), 29 U.S.C. §§ 651-678, calls for adoption of a broad

range of safety and health standards by the Secretary of

Labor. In 1976, pursuant to this direction, the Secretary

adopted a standard on exposure to coke oven emissions.

41 Fed. Reg. 46,742-90 (1976). The standard requires

that employers limit their employees’ exposure to coke

oven emissions to a permissible level and specifies a num-

ber of techniques to be used to achieve this goal. See

29 C.F.R. §§ 1910.1029(c), (f). The standard also recog-

nizes, however, that in some instances it will not be

feasible to reduce emissions sufficiently, and calls for use

of respirators to limit employee exposure in such circum-

stances. Jd. § 1910.1029(g).

In 1979, a compliance officer from the Occupational

Safety and Health Administration (OSHA), an office in

the Department of Labor to which the Secretary has dele-

gated most of her OSH Act responsibilities, inspected

respondent CF&I Steel Corporation’s (CF&I) coke oven

facility in Pueblo, Colorado. The compliance officer is-

sued a citation for an alleged violation of the respirator

portion of the coke oven emissions standard. Specifically,

the compliance officer found that 28 of CF&I’s employees

had been issued respirators that did not fit properly when

worn in a “test atmosphere.” The compliance officer con-

cluded that this failure to ensure a proper fit violated

29 C.F.R. §1910.134(e) (5), a general standard on

respirators incorporated by reference into the coke oven

emissions standard. See id. § 1910.1029(g)(3). Curi-

ously, the compliance officer did not cite CF&I for a vio-

lation of subsection (g)(4) of the coke oven emissions

standard, which provides:

The employer shall assure that the respirator issued

to the employee exhibits minimum facepiece leakage

and that the respirator is fitted properly.

Id. § 1910.1029(g) (4) (i). The compliance officer ap-

parently chose not to rely on this subsection out of a mis-

taken belief that its enforcement had been suspended.

Pet. App. 43a n.13.

Following the administrative procedures set out in the

OSH Act, CF&I contested the citation before the Com-

mission. An administrative law judge from the Com-

mission affirmed, but on review the Commission vacated

the citation. The Commission noted that the standard

“make[s] a distinction between training in respirator

use and assurance of proper respirator fit,” regulating

the former through subsection (g)(3) and the latter

through subsection (g) (4) (i). See Pet. App. 41a. The

Commission concluded that the Secretary had relied on

the wrong portion of the standard in citing CF&I for vio-

lation of $ 1910.1029(g) (3); and the Commission noted

that the possible application of subsection (g) (4) (i) had

been raised in the proceedings, and that the Secretary had

chosen to defend the compliance officer’s construction of

subsection (g)(3) (and 29 C.F.R. § 1910.134(e)(5))

rather than move to amend the citation. Pet. App. 43a-

44a & n.13.

The Secretary sought review of the Commission’s deci-

sion in the United States Court of Appeals for the Tenth

Cireuit. See 29 U.S.C. § 660(b). Noting that the two

agencies with administrative responsibilities under the

OSH Act were taking opposing positions on the inter-

pretive issue before it, the Tenth Circuit saw the ques-

tion as “to whom is deference owed?” Pet. App. 4a.

The Court concluded that the Commission was entitled

to deference because it is assigned adjudicatory respon-

6

sibilities under the OSH Act and thus by statute has the

final say on questions of law arising in adjudicatory

proceedings. Pet. App. 5a-7a. Finally, the court found

that the Commission’s construction of § 1910.1029(g) (3)

was reasonable and, accordingly, affirmed. Pet. App.

9a-1la.

SUMMARY OF ARGUMENT

A. Combining some or all of an agency’s functions—

particularly, the prosecutorial and adjudicatory func-

tions—carries with it a recognized potential for unfair-

ness. Congress generally has sought to alleviate this

potential! for unfairness by requiring that these func-

tions be separated within an agency. On occasions, Con-

gress has gone further by separating out responsibility

for one of these functions and giving it to an independent

agency. The OSH Act is such an occasion.

In the OSH Act, Congress has delegated exclusive

authority for “adjudicative functions” to the Commis-

sion. Rulemaking and enforcement authority were con-

ferred upon the Secretary, but each power was carefully

limited by Congress. The Secretary must follow certain

procedures in exercising the rulemaking power. In the

enforcement process, Congress placed the burden on the

Secretary to establish all elements of an alleged viola-

tion—factual and legal. Moreover, the Secretary’s en-

forcement authority is subjugated to the Commission,

which Congress has authorized to issue orders affirming,

modifying, or revoking proposed citations. This delega-

tion of adjudicative authority to the Commission belies

any argument that Congress intended the courts to give

“controlling weight” to the positions taken by the Sec-

retary in litigation; on the contrary, it suggests that

Congress intended the courts to give such deference to

the Commission’s decisions.

The legislative history confirms that Congress intended

the Commission, and not the Secretary, to have the final

say in the administrative process concerning the meaning

of ambiguous OSH Act provisions and implementing

7

regulations. It shows that, in creating the Commission,

Congress intended to limit the Secretary’s prosecutorial

power and to confer upon the Commission the full com-

plement of adjudicative powers available to the National

Labor Relations Board and the Federal Trade Commis-

sion, two agencies which have long been recognized to

exercise policymaking authority through adjudication.

It further shows that Congress created this split in ad-

ministrative authority in order to address concerns in

the regulated community that the Secretary was the

“voice of labor’; stated differently, it did so in order to

reassure the regulated community that alleged violations

of the statute would be resolved independently and objec-

tively. Giving deference to the Secretary rather than the

Commission would deprive the regulated community of

the reassurance of independence and objectivity that it

was promised and thus unravel the political compromise

struck by Congress.

B. The Secretary and the AFL-CIO seek to justify

their attempt to undo the legislative compromise by refer-

ence to general principles of administrative law. But

general principles of administrative law do not support

their effort.

Contrary to their argument, the Secretary’s status as

a “policymaker” under the OSH Act does not require

deference to the interpretations that she develops in the

adjudicative process. This Court has never given “con-

trolling weight” to agency litigation positions that are

wholly unsupported by regulations, rulings, or adminis-

trative practice.

Their suggestion that the conferral of administrative

adjudicatory authority on the Commission does not in-

clude a policymaking function also is incorrect. Under

established principles of administrative law, the power

of an administrative agency to adjudicate legal questions

presumptively includes a substantial policymaking com-

ponent. The legislative history of the OSH Act confirms

that the Commission was intended to have such power.

The Secretary and the AFL-CIO similarly err in sug-

gesting that the Secretary’s role in promulgating the

coke oven emissions standard requires that her interpre-

tation be given “controlling weight” by the courts. The

Secretary did not draft the relevant portion of this reg-

ulation. Moreover, involvement in the regulatory draft-

ing process would at most establish the authority to reach

an interpretive issue; it would not establish that that

authority has been exercised in a form sufficient to have

the force and effect of law.

Nor does the alleged expertise and experience that the

Secretary has acquired in enforcing these regulations

allow “controlling weight” to be given to her prosecutorial

determinations. It is the Commission, not the Secretary,

who is by statute deemed expert in these matters. In-

deed, the Commission is just as involved as the Secre-

tary in matters that are likely to raise the deference

question—i.e., contested cases. In any event, while ex-

pertise and experience may contribute to an agency’s

ability to persuade the courts, it does not properly con-

tribute to its power to control the courts.

Finally, there is no basis for suggesting that a rule

of deference to the Commission will undermine the sta-

bility of the OSH Act regime. A rule of deference to

the Commission has thus far prevailed in a large number

of circuits without any such consequences occurring; and

the Secretary has ample means available to her for pre-

venting any such destabilization from occurring. In all

events, such policy arguments are more appropriately

addressed to Congress.

C. The statutory analogues to which the Secretary

points do not support her cause. The Longshoreman’s

and Harbor Worker’s Compensation Act, 33 U.S.C.

$$ 901-950, is a completely different statutory scheme,

and conclusions about deference owing the Benefits Re-

view Board under that regime obviously cannot be im-

ported here. The Federal Mine Safety and Health Act

9

of 1977, 30 U.S.C. § 801 et seqg., is more like the OSH

Act, but again differences in statutory language and

purpose make any attempted analogy between the two

schemes difficult at best. In all events, the case law under

these two statutes does not clearly establish any kind of

deference rules; thus, there are no clear statutory

analogues that the Court can rely on in reaching its

decision here.

ARGUMENT

The OSH Act, like many landmark statutes, reflects a

compromise among several competing versions. The Act’s

administrative structure was a particular focus of con-

gressional debate, and the final system installed by Con-

gress represents a delicate balance of power between the

two agencies charged with its administration: the Secre-

tary and the Commission. The Secretary’s position in

this case seeks to upset that balance and to undo the

compromise struck by Congress. Specifically, she seeks

to arrogate to herself a decisionmaking authority—i.c.,

the authority to resolve regulatory ambiguities in the

adjudicatory process—that Congress expressly denied her

and conferred instead on the Commission. In doing so,

the Secretary ignores the OSH Act’s structure and legis-

lative history and, furthermore, misconceives the basis

for judicial deference to administrative agencies.

A. Deference To The Commission’s Interpretations Of

Ambiguous Statutory And Regulatory Provisions Is

An Essential Part Of The Compromise Developed By

Congress In Enacting The OSH Act

1. Modern administrative agencies perform a variety

of functions in carrying out the tasks assigned to them

by Congress. Agencies formulate rules, inspect the regu-

lated parties to monitor compliance with statutory obliga-

tions, investigate potential violations, prosecute alleged

violations, and adjudicate alleged violations. Combining

some or all of these roles—particularly, the prosecutorial

and adjudicatory roles—in a single agency carries with

10

it a potential for unfairness. Congress generally has

sought to alleviate this potential for unfairness by requir-

ing that these functions be separated within a given

agency. Thus, the Administrative Procedure Act (APA),

5 U.S.C. § 551 et seg., the “embodiment” of “general

principles of administrative law,” generally requires that

participants in the prosecutorial and adjudicatory func-

tions in an agency be separated. See Bowen v. George-

town Univ. Hosp., 488 U.S. 204, 216 (1988) (Scalia, J.,

concurring); 5 U.S.C. §554(d) (APA); 1 C.F.R.

$ 305.86-4 (Administrative Conference Recommendation

86-4).

With such an internal separation of functions in place,

the concerns over unfair agency adjudications are eased

somewhat. Yet, ultimately, functions that are informally

separated “come together at the top in the person of the

head . . . of the agency, who, through subordinates, [is]

responsible for all three functions”’—rule formulation,

prosecution, and adjudication. 1 C.F.R. § 305.86-4 (Ad-

ministrative Conference Recommendation 86-4). Thus,

“internal separation of functions has never entirely

silenced the critics who argue that it is impossible to

achieve evenhanded justice when enforcement and adjudi-

cative functions are lodged in the same agency.” Id.

Such concerns over the fairness of administrative ad-

judication have led Congress on several occasions spe-

cially to separate one or more of these agency functions.

One prominent example is the General Counsel of the

National Labor Relations Board (NLRB) and the NLRB

itself. As the Court noted in NLRB v. United Food &

Commercial Workers Union, 484 U.S. 112, 117-18

(1987), “[o}ne of the major goals” of the Labor-Manage-

ment Relations Act (LMRA), 61 Stat. 136 (1947), was

to “divide the old Board’s prosecutorial and adjudicatory

functions between two entities,” the Board and the

newly-created position of General Counsel of the Board.

Congress determined that the General Counsel “should be

11

independent of the Board’s supervision and review,” and

therefore installed him as the final authority on investi-

gatory and prosecutorial matters. 484 U.S. at 118. The

Board retained its role as the rulemaker and administra-

tive adjudicator.

The OSH Act is another variant on this theme of

separated powers. In the OSH Act, Congress granted

general rulemaking powers to the Secretary. See 29

U.S.C. § 655. In addition, it authorized the Secretary to

conduct investigations and, if warranted, issue citations

alleging a violation of established standards or the gen-

eral duty clause of the Act. See id. §§ 654, 657-658.

It established the Commission, however, as the final ad-

ministrative adjudicator on any citation. See id. § 659.

The statutory scheme thus reflects a special concern on

the part of Congress that the prosecutorial and adjudi-

ative functions under the OSH Act should be completely

separated.

2. The Secretary and the AFL-CIO argue (Pet. Br.

20-33; AFL-CIO Br. 6-15) that deference to interpreta-

tions developed by the Secretary in litigation is not only

consistent with Congress’ special concern for the separa-

tion of prosecutorial and adjudicatory functions under

the OSH Act, but is in fact mandated by Congress’ deci-

sion to confer rulemaking power on the Secretary. This

argument is inconsistent with both the structure and

legislative history of the OSH Act scheme.

a. In terms of statutory structure, the OSH Act quite

clearly confers authority on the Commission—not on the

Secretary—to resolve legal issues arising in the adjudi-

catory process. Moreover, while Congress conferred rule-

making power on the Secretary, it required that she

exercise that power only pursuant to specified rulemaking

procedures; and, in the adjudicatory process, Congress

clearly intended for the Commission to be supreme.

The OSH Act delegates to the Commission exclusive

authority for “adjudicative functions” under the statute.

12

29 U.S.C. §651(b)(3). It requires the President to

appoint to the Commission persons who have the “train-

ing, education, or experience” to fulfill these functions.

Id. § 661(a). The Act also authorizes the Commission to

issue orders, based on findings of fact, affirming, modify-

ing, or revoking proposed citations. Jd. §659(c). The

authority to issue such “orders” carries with it the

authority to declare “what the law was.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. at 221 (Scalia, J.,

concurring); see also SEC v. Chenery Corp., 332 U.S.

194, 202-03 (1947); Shapiro, The Choice of Rulemaking

or Adjudication in the Development of Administrative

Policy, 78 Harv. L. Rev. 921, 927 (1965). For this

reason, courts have long concluded that “the Commission

was designed to have a policy role” (Brennan v. Gilles &

Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974)), and

that “the Commission’s interpretations . . . should be

given substantial deference by a court.” Brennan v.

OSHRC, 501 F.2d 1196, 1198-99 (7th Cir. 1974).

Concomitantly, while the OSH Act confers rulemaking

authority on the Secretary, it places special limitations on

the exercise of that authority and subordinates the Sec-

retary’s authority in the enforcement process to that of

the Commission. Specifically, the OSH Act requires the

Secretary to follow elaborate procedures—involving use

of advisory committees, notice and comment procedures,

hearings, and delays in effective dates—in promulgating,

modifying, or revoking any safety or health standard.

29 U.S.C. § 655(b). Moreover, although the OSH Act

authorizes the Secretary to conduct inspections and issue

citations, it places “the burden . . . on the Secretary to

establish the elements of the alleged violation and the

propriety of his proposed abatement order and proposed

penalty.” Atlas Roofing Co. v. OSHRC, 430 U.S. 442,

446 (1977). Indeed, the Act makes it clear that, with

respect to contested citations, the Commission is fully

authorized to affirm, vacate, or modify either the cita-

tions or the proposed penalties. 29 U.S.C. § 659. Fur-

13

thermore, the Act provides that all citations, whether con-

tested or not, become enforceable only as final “orders”

of the Commission—orders that are self-executing after

issuance by the Commission. Jd. Thus, there is no basis

for the suggestion that the conferral of rulemaking power

on the Secretary indicates a congressional desire that

deference should be given to the interpretations that the

Secretary advances in the adjudicative process as well;

on the contrary, the statutory structure indicates that

Congress intended precisely the opposite result.

b. This conclusion is reinforced by examination of the

legislative history. That history shows that the adminis-

trative structure of the OSH Act was the source of

considerable debate in Congress, and it explains that the

ultimate, formal separation of functions in the OSH Act

was a deliberate compromise aimed at severely limiting

the power of the Secretary in the adjudicative process.

As originally conceived by the Senate and House Com-

mittees responsible for developing the legislation, the OSH

Act vested the Secretary with responsibility for rule-

making, prosecution, and adjudication. See, e.g., S. Rep.

No. 1282, 91st Cong., 2d Sess. 8, 15 (1970) (Senate

Report), reprinted in Leg. Hist. at 148, 155. As the

Secretary notes (Pet. Br. 28), this concentration of ad-

ministrative power was favored by organized labor. See

Leg. Hist. at 323 (statement of Sen. Saxbe). Business

interests were wary, however, of placing sole responsibil-

ity for such a wide-ranging and intrusive legislative initi-

ative in a single administrative actor, and thus supported

the competing Administration bill.* The Administration’s

®The OSH Act was viewed by employers as groundbreaking

legislation in many ways. In addition to establishing mandatory

nationwide safety and health standards on a wide range of topics

and subjecting employers to significant penalties for violations of

those standards (29 U.S.C. §§ 655, 666), the Act vested the Secre-

tary with broad inspection powers (id. § 657(a)), and subjected em-

14

proposal gave the Secretary only the prosecutorial func-

tion, and proposed creation of two independent boards to

perform the rulemaking and adjudicatory functions. See

Senate Report at 54 (individual views of Sen. Javits),

reprinted in Leg. Hist. at 193.

The Committee debate over these competing adminis-

trative structures was substantial, and “bec[a]me so bit-

ter as to jeopardize seriously the prospects for enact-

ment” of the statute. Jd. at 55 (individual views of Sen.

Javits), reprinted in Leg. Hist. at 194. In the Senate,

for example, the Committee on Labor and Public Welfare

rejected the Administration’s proposal by a 10-7 vote,

concluding that placement of “the responsibility and ac-

countability for administration of the total program in

the Secretary” was preferable to “establish[ing] a new

agency and creat[ing] an unnecessary division of respon-

sibility.” Jd. at 15, reprinted in Leg. Hist. at 155.

Moreover, the Committee majority pointed out that the

APA would ensure an informal separation of functions

within the Department of Labor. Id.

Four members of the Committee remained unconvinced,

and repeatedly attacked the concentration of all adminis-

trative authority in the Secretary. See, e.g., id. at 56

(individual views of Sen Javits), reprinted in Leg. Hist.

at 195. Senators Dominick and Smith noted that, under

the Committee’s structure, “[f]ew safeguards or restric-

tions [we]re to be placed on the authority of the Secre-

tary.” Id. at 62 (minority views of Sen. Dominick and

Sen. Smith), reprinted in Leg. Hist. at 201. Without

such restrictions on the Secretary’s authority, they

feared abuse of power:

A single man is easier to harass than an independent

standards board or quasi-judicial panel. With the

ployers to potentially burdensome recordkeeping requirements.

Id. § 657(c) ; see also Leg. Hist. at 469 (statement of Sen. Javits)

(noting “unbelievable ramifications of [OSH Act] and the reach

of thfe] law into countless numbers of workplaces throughout the

country”).

15

concentration of power in the hands of one man, he

will be subject to intense political pressure to act a

particular way.

Id. The dissenting Senators also noted that, under the

Committee’s administrative structure, agency adjudica-

tion would not alleviate these concerns. To the contrary,

they found the adjudication envisoned by the Committee

proposal to lack “the procedural safeguards necessary for

fair determination of rights, responsibilities, and obli-

gations of all parties.” Jd.

The primary difficulty the dissenting Senators saw

was that the only route for an employer to challenge a

citation issued by the Secretary was “through an ap-

peal . . - to the Secretary for relief.” Jd. As Senator

Javits noted, “[a]ny finding by the Secretary in favor

of [the employer] would be essentially a repudiation by

the Secretary of [her] own Department’s employees.”

Id. at 56 (individual views of Sen. Javits), reprinted in

Leg. Hist. at 195. Forcing the Secretary to “essentially

act|] as prosecutor and judge,” with “one officia! of the

Department (e.g., the Deputy Solicitor) . . . tak{ing]

the position of prosecutor and another official (e.g., the

Solicitor) . . . tak[ing] the position of a neutral in order

to advise the Secretary,” would, they believed, completely

destroy any confidence that employers might have in the

fairness of the proceedings. Jd. Senators Dominick and

Smith added that any perceived lack of fairness in the

adjudicatory process would undermine Congress’ desire

to promote voluntary compliance with the Act. See id.

at 62 (minority views of Sen. Dominick and Sen. Smith),

reprinted in Leg. Hist. at 201.

Overall, the Committee minority continued to prefer

the Administration’s approach, arguing that the broad

reach of the OSH Act warranted a formalized division of

authority. Jd. at 54 (individual views of Sen Javits),

reprinted in Leg. Hist. at 193. Senator Javits, in par-

ticular, concluded that a separation of functions, while

16

not necessarily required by notions of due process, would

enhance the confidence of all parties in the administrative

adjudicatory process. Jd. He used the NLRB as an ex-

ample, and asserted that independent administrative

agencies such as the NLRB had established a better rec-

ord “in the area of quasi-judicial adjudication” than had

agencies with power concentrated in “cabinet-level offi-

cials.” Jd. at 55 (individual views of Sen. Javits), re-

printed in Leg. Hist. at 194.

The debate over administrative structure that began

in the Committee continued on the Senate floor, where

ultimately the minority views found a more receptive

audience. Before the Senate had formally taken up the

Committee’s bill and report, Senator Saxbe began the de-

bate by announcing that a substitute bill mirroring the

Administration bill would be introduced by Senator

‘Dominick. Senator Saxbe then submitted a statement in

support of the substitute, noting that “(t]he difference

between the bills lies not in their purpose but in the

type of structure each.sets up for achieving that pur-

pose.” Leg. Hist. at 298 (statement of Sen. Saxbe). The

statement detailed the Committee minority’s criticism of

the majority’s approach, arguing that “[t]he reported

bill is, in a word, unfair’:

[A]ll the good that could be achieved through a

bill’s education, research and enforcement provisions

should not be rendered ineffective by inevitable dis-

illusionment with its unfair regulatory procedures.

Unfair regulatory procedures will only alienate em-

ployers from State and Federal officials who ought to

to be guiding employers toward compliance.

Id. In Senator Saxbe’s view, the unfairness stemmed di

rectly from the “simplistic approach of placing all func-

tions in the Secretary of Labér,” which he considered

comparable “to having the Chief of Police, in addition

to his regular duties of conducting inspections, also write

the criminal laws and then act as judge and jury.” /d.

17

The more preferable approach, Senator Saxbe con-

tinued to believe, was “refocus[ing] responsibility for job

safety and health by distributing the regulatory func-

tions.” Thus, under the substitute bill, “the Secretary of

Labor would be authorized to conduct inspections and in-

vestigations . . . [but] would not hear the case and pass

judgment on the offender.” That function would be dele-

gated to the Commission, which would “conduct hearings

on alleged violations discovered by the Secretary .. .

[and] on the basis of its decision, issue any necessarv

corrective orders, as well as assess civil penalties.” Jd.

Full Senate debate opened with Senator Williams de-

fending the Committee’s choice of administrative struc-

ture. Jd. at 414 (statement of Sen. Williams). He ar-

gued that the Administration’s approach “would result

in such diffusion of responsibility and accountability

as to seriously undermine the effectiveness of th{e] pro-

gram.” Id. at 417 (statement of Sen. Williams). Sup-

porters of a separation-of-powers approach countered

that “(t]he enormous amount of power given to the

Secretary of Labor [by the Committee version] could

easily be abused, culminating in a breakdown of existing

_Government neutrality in labor-management relations.”

Id. at 448-4statement of Sen. Tower). Indeed, the con-

flict on this issue ran so ‘deep that Senator Dominick’s

substitute bill, which would have reinstated the ad-

ministrative structure of the Administration’s original

proposal, was defeated by only a narrow, 41-39, margin.

Id. at 449.

The next day, Senator Javits proposed a compromise.

He abandoned his prior insistence on two independent

boards to set standards and adjudicate violations, and

caled instead for a single independent entity to serve as

the agency adjudicator. Id. at 462 (statement of Sen.

Javits). Senator Williams immediately opposed the

Javits proposal, arguing that, due to the APA’s provi-

sions, “there is no real or basic difference in the enforce-

18

ment procedures that would be followed under the com-

mittee bill and those provided for in the pending amend-

ment.” Jd. at 466 (statement of Sen. Williams). For

Senator Javits and those supporting .1is amendment, how-

ever, the informal separation of the APA was not

enough; they believed that an independent adjudicative

authority was necessary to enhance public confidence and

to serve as an autonomous check on the prosecutorial

power of the Secretary. Jd. at 470 (statement of Sen.

Javits) ; id. at 472 (statement of Sen. Dominick) ; id. at

473 (statement of Sen. Holland).

Senator Javits pointed out that the administrative

structure that he proposed would mirror the relationship

between the NLRB and its General Counsel: the Com-

mission would perform the same “quasi-judicial func-

tions” as the NLRB, and the Secretary would perform

the prosecutorial functions given to the Board’s inde-

pendent General Counsel. Jd. at 477 (statement of Sen.

Javits). Senator Javits also analogized the role of the

Commission to that of the Federal Trade Commission,

suggesting that the Commission would have “the same

type of authority that the Federal Trade Commission

exercises. .. .” Jd. at 462 (statement of Sen. Javits).

The Javits amendment passed, 43-38, and was retained

in the final version of the bill. Jd. at 1147 (statement of

Sen. Williams).

In short, the legislative history confirms that Congress

intended that the Commission, not the Secretary, would

have the final say in the administrative process concern-

ing the meaning of ambiguous OSH Act provisions and

implementing regulations. It shows that, while Congress

conferred broad rulemaking powers upon the Secretary,

it intended that the Secretary could exercise those powers

only through the rulemaking process. Moreover, it shows

that, in creating the Commission, Congress intended to

limit the Secretary’s prosecutorial power and to confer

upon the Commission the full complement of adjudicative

powers available to the NLRB and the Federal Trade

Commission, two agencies that have long been recog-

nized to exercise policymaking authority through adjudi-

cation. See Shapiro, supra, 78 Harv. L. Rev. at 927-29.

Congress did so in order effectively to reassure the regu-

lated community that the adjudicatory process would be

a fair and efficient one.

Given the deep concerns over separation of powers ex-

pressed throughout the congressional debates, it is incred-

ible to suggest, as the Secretary does, that her prosecu-

torial constructions of ambiguous regulations are entitled

to Chevron-style deference. See Chevron U.S.A., Ine.

v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). The administrative structure of the OSH Act

was the “key issue” that “polarized labor and manage-

ment” during Congress’ deliberations. Senate Report at

54 (individual views of Sen. Javits), reprinted in Leg.

Hist. at 193. There was great concern “on the part of

employers . . . [and] in the mind of the average citizen,

that the Labor Department always . . . is most sympa-

thetic in its attitude toward the labor organizations.”

Leg. Hist. at 476 (statement of Sen. Holland). For these

reasons, Congress installed “an agency that will be re-

spected and is capable, impartial, and objective in its

approach.” Jd. Accepting the Secretary’s position would

prevent the Commission from fulfilling this role and

would unravel the political compromise struck by Con-

gress; indeed, it would allow the Secretary to act as

prosecutor and judge, and it would deprive the Commis-

sion of the authority necessary for it independently and

effectively to resolve the legal and factual questions pre-

sented to it. There is simply no statutory basis for tak-

ing these steps.

B. The Secretary And The AFL-CIO Misapply General

Principles Of Administrative Law

The Secretary and the AFL-CIO attempt to justify

their effort to unravel the legislative compromise struck

in the OSH Act by reference to general principles of ad-

ministrative law. See Pet. Br. 18-20; AFL-CIO Br. 3-6.

But the general principles of administrative law that they

cite do not support their effort.

First, contrary to the Secretary’s suggestion (Pet. Br.

18-20), her status as a “policymaker” under the OSH

Act does not require the courts to give “controlling

weight” to the interpretations that she develops in the

adjudicative (i.e., prosecutorial) process. As this Court

noted in Bowen v. Georgetown Univ. Hosp., 488 U.S. at

212, the deference principles of Chevron “have never

[been] applied . . . to agency litigating positions that are

wholly unsupported by regulations, rulings, or admin-

istrative practice.” See also Investment Co. Inst. v.

Camp, 401 U.S. 617, 628 (1971). On the contrary, the

deference principles of Chevron have been applied only to

agency interpretations that are in a form that Congress

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

ton v. Francis, 4832 U.S. 416, 425 n.9 (1977). See gen-

erally 1 C.F.R. § 305.89-5 (Administrative Conference

Recommendation 89-5); Anthony, Which Agency Inter-

pretations Should Bind Citizens and Courts?, 7 Yale J.

on Reg. 1, 4-5, 30-36 (1990). There is no basis for sug-

gesting that Congress intended citations issued by the

Secretary (or pleadings filed in support of those cita-

tions) to create such legally binding norms.

Second, the Commission’s function as the administra-

tive adjudicator under the OSH Act in fact includes a

policymaking function. As the Secretary concedes | Pet.

Br. 20-22), the adjudicatory function of the Commission

necessarily encompasses the power to make declarations

of law.‘ When this power is placed in an administrative

4The AFL-CIO plainly errs in suggesting (AFL-CIO Br. 7-8)

that the Commission’s adjudicatory function is simply that of a

fact-finder. The statute authorizes the Commission to issue “orders”

and assess penalties, as well as to find facts, and that authorization

presumptively, if not necessarily, includes the power to declare the

law. See Brennan v. Gilles & Cotting, Inc., 504 F.2d at 1262;

21

agency, it implicitly encompasses a substantial policy-

making component. See NLRB v. Bell Aerospace Co., 416

U.S. 267, 292-294 (1974); SEC. v. Chenery Corp., 332

U.S. at 202-03; Bowen v. Georgetown Univ. Hosp., 488

U.S. at 221 (Scalia, J. concurring). Indeed, as noted

above (at 16, 18-19), the legislative history of the OSH

Act makes clear that the Commission’s adjudicatory

powers were conceived by Congress as a mirror-image of

the adjudicatory powers of the NLRB and the FTC, two

agencies that have long been recognized to exercise policy-

making authority through adjudication.°

Third, contrary to the suggestion of both the Secreta

and the AFL-CIO (Pet. Br. 20-21 n.17, 25; AFL-CIO Br.

3-6, 12-13), the Secretary’s role in promulgating the coke

oven emissions standard does not require that her in-

terpretation of those regulations be given “controlling

weight” by the courts. To begin with, the Secretary did

not draf:. the relevant section of those regulations,’ and

Brennan v. OSHRC, 492 F.2d 1027, 1032 (2d Cir. 1974). See

generally Bowen v. Georgetown Univ. Hosp., 488 U.S. at 216, 221

(Scalia, J., concurring). Indeed, the Commission's statutory author-

ization is essentially identical to that of the NLRB (compare 29

U.S.C. §§ 659(c), 660 with 29 U.S.C. §§ 160(c), (e)), and there is

no plausible argument that the NLRB is a mere “fact-finder.”

®* The attempt of the Secretary and the AFL-CIO (Pet. Br. 22-

24; AFL-CIO Br. 7-8) to equate the Commission's law-declaration

powers with the law-declaration powers of a district court is un-

founded. The Commission, unlike a district court, is part of the

administrative framework in which Congress vested the discretion

for implementing the OSH Act. Moreover, the Commission, unlike

a district court, reports to the President and thus, at least in-

directly, is democratically accountable. Finally, the Commission,

unlike a district court, is required to have expertise in the field of

occupational safety and health. 29 U.S.C. § 661(a).

* The relevant provision, 29 C.F.R. § 1910.134(e)(5), which is

incorporated by reference into the coke oven emissions standard,

is a so-called “national consensus standard.” It was drafted by

the American National Standards Institute and adopted by the

Secretary pursuant to the requirements of 29 U.S.C.

a don oe. § 655(a). See

she therefore cannot properly claim any special insights

into its original meaning.’ Moreover, although the Secre-

tary’s involvement in the promulgation of the regulation

establishes that she has a delegation of congressional au-

thority wide enough to reach this interpretive issue, it

does not establish that she has actually exercised that

authority in a form sufficient to have the force and ef-

fect of law; on the contrary, as noted above (at 20), her

means of expression on this issue—i.e., her citation of

CF&I, and her solicitor’s pleadings—plainly fail to do so.

See Bowen v. Georgetown Univ. Hosp., 488 U.S. at 212.

Finally, even if the author of a regulation is ordinarily

entitled to say what it means, the OSH Act clearly denies

the Secretary the authority to do so in the adjudicative

process (because, under this statute, the Commission has

the final say on questions of law and fact at issue in

that process) .*

Fourth, the expertise and experience that the Secretary

has acquired in enforcing these regulations similarly does

not, as the Secretary and the AFL-CIO suggest ( Pet. Br.

25-26; AFL-CIO Br. 13-14 & n.10), justify giving “con-

7 The Secretary misses the mark in suggesting (Pet. Br. 25 n.23)

that her role in adopting the standard is a “policy” determination

worthy of deference in its own right. The underlying interpretive

question here is not whether adoption of the standard would “result

in improved safety or health,” the determination to be made by the

Secretary under 29 U.S.C. § 655(a), but whether the language of

the regulation (that she did not draft) was intended by its drafters

to require fit testing in a test atmosphere.

* Of course, the Secretary’s views are still entitled to weight.

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

v. Swift & Co., 323 U.S. 134, 140 (1944). But the Commission

reasonably rejected the Secretary's interpretation—because it is

a product of a compliance officer’s mistake, is inconsistent with

the structure of the regulations in issue, and is inconsistent with

prior positions of OSHA. See Pet. App. 4la-44a & n.14. Thus,

the court below had to give “controlling weight” to the Commis-

sion’s interpretation—because it is reasonable, within the delegated

authority of the Commission, and in a form intended by Congress

to have legal effect.

23

trolling weight” to her prosecutorial interpretations. For

one thing, it is the Commission, not the Secretary, who is

by statute deemed expert and experienced with respect

to these matters. See 29 U.S.C. § 661(a). For another,

while the Commission reviews only contested citations,

the absolute number of such contested citations is quite

large; and, as a practical matter, it is only these con-

tested citations that involve issues sufficiently substantial

to provide any “vision” about the OSH Act program as

a whole. In all events, expertise and experience are not

the sole basis for Chevron-style deference from the courts:

140.

Finally, there is no basis for the Secreta ’s suggesti

(Pet. Br. 26-27) that a rule of aan te the _—

tary, rather than to the Commission, is necessary to pre-

vent “the stability of the OSH Act regime” from being

undermined. A rule of deference to the Commission,

rather than the Secretary, has prevailed in a large num-

ber of the courts of appeals, and the Secretary offers no

evidence that compliance efforts have been unduly im-

paired in those judicial circuits. Indeed, there is no rea-

sonable basis for believing that any such impairment has

or will occur: the Secretary has an inherent advantage

in the prosecutorial process (since she can pressure em-

ployers to settle merely by the threat of penalties and ad-

verse publicity), and she is always free to clarify or

amend her regulations through the rulemaking process.

See Shapiro, supra, 78 Harv. L. Rev. at 923. In any

event, the administrative law and statutory principles es-

tablishing the rule of deference to the Commission (and

not to the Secretary) are “so plain that policy arguments

of this kind must be addressed to the body that has the

authority to amend the legislation, rather than to one

24

whose authority is limited to interpreting it.” Laborers

Health & Welfare Trust Fund v. Advanced Lightweight

Concrete Co., 484 U.S. at 551.

C. The Statutory Analogues To Which The Secretary

Points Do Not Support Her Cause

Finally, the Secretary points to “analogous statutory

schemes” and argues (Pet. Br. 33-36) that they inform

interpretation of the OSH Act’s administrative structure.

This contention is incorrect.

1. The Secretary first points (Pet. Br. 33-34) to the

Longshoreman’s and Harbor Worker’s Compensation Act

(LHWCA), 33 U.S.C. §§ 901-950, and this Court’s deci-

sion concerning the LHWCA in Potomac Elec. Power Co.

v. Director, OWCP, 449 U.S. 268 (1980) (Pepeo). But

neither Pepco nor the LHWCA supports the Secretary's

position here.

In Pepeo, the Court ruled that, under the plain lan-

guage of the Act, a partially disabled individual’s com-

pensation award was limited to a statutory schedule and

could not be increased through use of a more generous

formula applicable to non-scheduled injuries. 449 U.S.

at 273-74. In a footnote, the Court dismissed the Benefits

Review Board’s (BRB) contrary conclusion, and com-

mented that the Board “is not a policymaking agency”

and thus is entitled to no special deference. Jd. at 278

n.18. This statement, however, plainly constitutes dicta;

the Court already had found the statutory language un-

ambiguous, which was the “end of the matter.” Chevron,

467 U.S. at 842. The Pepco footnote thus cannot carry

authoritative weight here.’

* Indeed, the Secretary's effort to rely on Pepco’s statement is

undercut by her own admission (Pet. Br. at 34 n.33) that at least

two courts of appeals have declined to follow it. Surely the Court

should resolve the split in judicial authority under the LHWCA

before considering the extension of any LHWCA-based conclusion

to this separate statutory scheme.

ED

25

In any event, there is no basis for importing Pepco’s

comments on the BRB’s role under the LHWCA into the

vastly different OSH Act scheme. The BRB is appointed

by the Secretary and exercises adjudicatory authority

only “as delegated by the Secretary.” 33 U.S.C. § 921

(b) (1). Moreover, proceedings before the BRB do not

seek to identify violations of a regulatory command or

impose a penalty, and the Secretary does not appear be-

fore the BRB in a prosecutorial role; rather, the BRB

serves to review compensation orders issued by Deputy

Commissioners appointed by the Secretary to review dis-

ability or death claims filed by private parties. Jd. §§ 919,

940. The Commission, by contrast, is established as an

independent agency outside the Department of Labor, and

the individual Commissioners are appointed by the Presi-

dent with the advice and consent of the Senate. 29 U.S.C.

§ 661. In addition, proceedings before the Commission in-

volve violations of statutory and regulatory commands,

and may result in imposition of substantial penalties. /d.

$§ 654(a)(2), 666. The Secretary appears before the

Commission in a prosecutorial capacity, thus triggering

a greater concern with separation of functions, see, e.g.,

5 U.S.C. § 554(d), a concern reflected throughout the

OSH Act’s legislative history. See, e.g., Senate Report

at 56 (individual views of Sen.Javits), reprinted in Leg.

Hist. at 195; Leg. Hist. at 298 (statement of Sen. Saxbe).

In short, the Secretary is mixing apples and oranges in

analogizing the deference issue under the OSH Act to the

deference issue under the LHWCA.

2. The Secretary next looks (Pet. Br. 35-36) to the

Federal Mine Safety and Health Act of 1977 (Mine Act),

30 U.S.C. § 801 et seqg., to support her deference argu-

ment. But the Mine Act does not do so.

To begin with, while the administrative structures of

the Mine Act and the OSH Act have much in common,

there are also important differences. The statutory lan-

guage creating and empowering the Commission and the

Federal Mine Safety and Health Review Commission

(FMSHRC) is not the same. Compare 29 U.S.C. §§ 659-

661 with 30 U.S.C. $§ 815, 823. Nor are the delegations

of authority to the Secretary under the two statutes the

same. Compare 29 U.S.C. §§ 654-658 with 30 U.S.C.

$$ 811, 813-816. Moreover, as this Court held in Dono-

van v. Dewey, 452 U.S. 594, 600-03 & n.7 (1981), the

OSH Act and the Mine Act are distinct in their scope

and purposes. Thus, there is every reason to doubt that

conclusions about deference under one of these statutes

can automatically be imported into the other.

In any event, the cases do not estabiish that the Sec-

retary’s prosecutorial interpretations are in fact given

“controlling weight” under the Mine Act. On the con-

trary, much as the lower courts have reached conflict-

ing decisions in evaluating the OSH Act’s allocation of

administrative authority, they have developed a checkered

pattern in evaluating the respective roles of the Secre-

tary and the FMSHRC under the Mine Act. For ex-

ample, in Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C.

Cir. 1988), the court found FMSHRC’s interpretation to

be entitled to Chevron-style deference, although it noted

that the degree of deference is “diminished . . . when the

Secretary of Labor favors an interpretation at odds with

that adopted by the Commission.” Moreover, in Secre-

tary of Labor v. Cannelton Indus., Inc., 867 F.2d 1432,

1436-38 (D.C. Cir. 1989), the court merely granted def-

erence to an authoritative pronouncement of the Secre-

tary; while, in Brock v. Peabody Coal Co., 822 F.2d 1134,

1136 (D.C. Cir. 1987), the court rejected the Secretary’s

construction and affirmed the FMSHRC. Finally, in

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533

(D.C. Cir. 1986) (Sealia, J.), the court did not give the

Secretary’s views the type of controlling weight that she

seeks here; instead, Justice (then-Judge) Scalia observed

that “there is deference and there is deference—and the

deference accorded to the agency on a point such as this

is not overwhelming.” Jd. at 537. And, in evaluating the

27

administrative structure of the Mine Act, Justice Scalia

was simply adhering to prior circuit precedence—specifi-

cally, Donovan v. Carolina Stalite Co., 734 F.2d 1547,

1552 (D.C. Cir. 1984), where the court granted deference

to the Secretary because it had before it “just the sort

of determination the Secretary was empowered by Con-

gress to make.” That is not the case here.

CONCLUSION

The judgment of the court below should be affirmed.

Respectfully submitted,

STEPHEN A. BOKAT

(Counsel of Record)

ROBIN S. CONRAD

MONA C. ZEIBERG

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

SEPTEMBER 1990 (202) 463-5337