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

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAB

SUMMARY OF ARGUMENT 0.

UNDER THE APPROPRIATE STANDARD OF

REVIEW, THE TENTH CIRCUIT PROPERLY

UPHELD THE COMMISSION’S DECISION ___.

A.

a

The Commission Is an Autonomous Adjudicative

Tribunal That Is Neither Subordinate to the

Secretary Nor Obligated to Defer to the Secre-

tary's Interpretation of Her Regulations

The Tenth Circuit’s Scope of Review Was Prop-

erly Limited to Determining the Reasonableness

Expertise of the Commission

Deference to the Commission Maintains the

Political Balance Between Business and Labor

Interests Struck by the OSH Act...

This Court's —— . ———

Liability of Respondent ...

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12

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TABLE OF AUTHORITIES

CASES:

ABKCO Indus., Inc. v. Commissioner, 482 F.2d 150

WM nl

Acadian Gas Pipeline Sys. v. Federal Energy Reg-

ulatory Comm'n, 878 F.2d 865 (5th Cir. 1989)

American Iron and Steel Inst. v. Occupational

Safety and Health Admin., 577 F.2d 825 (3d Cir.

— W

B&B Insulation, Inc. v. Occupational Safety and

Health Review Comm'n, 583 F.2d 1364 (5th Cir.

9 ——ů̃

Bethlehem Steel Corp. v. EPA, 723 F.2d 1303 (7th

Cir. 1983) .

Bowman — “Jee. * Arbansas-Best Freight

Sys., Inc., 419 U.S. 281 (7

Bradley v. Commissioner, 324 F.2d 610 (4th Cir.

1963) ..

Brennen v. . Occupational ‘Safety end ‘Health Re-

view Comm'n, 491 F.2d 1340 (2d Cir. 1974).

Brennan v. Occupational Safety and Health Review

Comm'n, 501 F.2d 1196 (7th Cir. 1974)

Brennan v. Occupational Safety and Health Review

Comm n, 511 F.2d 1139 (9th Cir. 19795

Brennan v. Occupational Safety and Health Review

Comm'n, 513 F.2d 713 (8th Cir. 19755 —

Brock v. Bechtel Power Corp,, 803 F.2d 999 (9th

Cir. 1986)

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

533 (D.C. Cir. 1986)

Brock v. Chicago Zoological See’y, 820 F.2d 909

(7th Cir. 1987) . *

Brock v. Williams Enterprises of G. Ine. 832

F.2d 567 (11th Cir. 18877 „„ñ,

Commissioner v. Duberstein, 363 U.S. 278 (1960) ..

Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir.

1978) .

Director, Office 1 Workers’ “Compensation Pro-

grams v. General Dynamics Corp., 900 F.2d 506

(2d Cir. 1990) . =

Dobson v. Commissioner, 320 us. 429 (1943). tas

Page

11

14

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iii

TABLE OF AUTHORITIES—Continued

Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61

Ee

Donovan v. Anheuser-Busch, Inc., 666 F.2d 315

CE

Dunlop v. Rockwell Int'l, 540 F.2d 1283 (6th Cir.

EE

Estate of Simmie v. Commissioner, 632 F.2d 93

CC EE

Federal Labor Relations Auth. v. U.S. Dep’t of the

Treasury, 884 F.2d 1446 (D.C. Cir. 1989), cert.

denied, 110 S. Ct. 863 (19900:

Fluor Constructors v. Occupational Safety and

Health Review Comm'n, 861 F.2d 936 (6th Cir.

1111

Guy F. Atkinson Co. v. Commissioner, 814 F.2d

1388 (9th Cir. 1987), cert. denied, 485 U.S. 970

———

Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.),

cert. denied, 462 U.S. 1119 (1983)

Magneson v. Commissioner, 753 F.2d 1490 (9th

EEE

Marshall v. Cities Serv. Oil Co., 577 F.2d 126 (10th

r .

Marshall v. Western Elec. Inc., 565 F.2d 240 (2d

EEE EE

Merryman v. Commissioner, 873 F.2d 879 (5th

EE ES

Nickell v. Commissioner, 831 F.2d 1265 (6th Cir.

.

Potomac Elec. Power Co. v. Director, Office of

Workers’ Compensation Programs, 449 U.S. 268

EEE

Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278

SES LT

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

ä

Si bla v. Commissioner, 611 F.2d 1260 (9th Cir.

r ..

United Steelworkers v. Schuykill Metals Corp.,

628 F234 314 (Sth Cir. 1967) ................................

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TABLE OF AUTHORITIES—Continued

Page

Vukasovich, Inc. v. Commissioner, 790 F.2d 1409

1 — ne eee Seen 11

Welch v. Helvering, 290 U.S. 111 (1933 6

STATUTES:

Administrative Procedure Act, 5 U.S.C. § 70 8

Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 823 (a), (b) ................ . 6

Internal Revenue Code,

r .. 10

e . 10

e . TE 12

26 U.S.C. § 7443 (b), (e), (f)) 6

e . 10

r . EE TIS 10

Longshore and Harbor Workers’ Compensation

Act,

r X...... 5

r — 5

Occupational Safety and Health Act of 1970, 29

J EE . passim

I — 4

ee 6

ES ⁊ sae 6

REGULATIONS:

1111 ee 7

LEGISLATIVE HISTORY:

Legislative History of the Occupational Safety and

Health Act of 1970, Senate Committee on Labor

and Public Welfare (19717 passim

S. Rep. No. 181, 95th Cong., Ist Sess. 49 (1977),

reprinted in 1977 U.S. Code Cong. & Admin.

Sees 6 OS ee 4,6

MISCELLANEOUS:

Tax Court Rule 142, 26 U.S.C. foll. § 7458 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1541

ELIZABETH H. DOLE, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

1 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 OF AMERICAN IRON AND STEEL INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

The American Iron and Steel Institute (“AISI”)

respectfully files this brief as amicus curiae in support of

Respondents. Written consents have been obtained from

counsel for Petitioner and Respondents pursuant to Su-

preme Court Rule 37.3. The letters reflecting consent

have been filed with the clerk’s office.

INTEREST OF AMICUS CURIAE

The American Iron and Steel Institute is a national

trade association whose 40 domestic member companies

account for approximately 80 percent of the raw steel

production of the United States. The issue presented by

this case is relevant to issues commonly encountered by

AISI’s member companies. AISI’s member companies

have a strong interest in the interpretation and enforce-

ment of regulations governing coke production, such as

those at issue in this case, because coke production is

important to the manufacture of iron and steel. AISI

was a party to the development of and the initial chal-

lenge to the coke oven emissions standards that were the

basis of the citation issued by Petitioner the Secretary

of Labor the Secretary“ to Respondent CF&I Steel

Corporation. See American Iron and Steel Inst. v. Oc-

cupational Safety and Health Admin., 577 F.2d 825

(3d Cir. 1978).

SUMMARY OF ARGUMENT

Properly formulated, the question facing this Court is

whether the United States Court of Appeals for the Tenth

Circuit utilized the appropriate standard of review in its

review of the decision of the Occupational Safety and

Health Review Commission the Commission“). The

answer to that question is yes.

The Commission is an autonomous independent adjudi-

catory beard that is neither subordinate to the Secretary

nor obligated to defer to the Secretary’s interpretation of

her regulations under the Occupational Safety and Health

Act. The Commission is, therefore, fundamentally dif-

fereat from any of the boards created by Congress under

other statutory schemes that the Solicitor General claims

to be analogous.

Moreover, the independence the Commission enjoys

from the Secretary was a conscious legislative choice to

break a political deadlock that existed between labor and

management over passage of the Occupational Safety and

Health Act. The Commission’s role in the statutory

scheme is far more substantial than a mere finder of

fact as the Secretary would have it. This Court should

not destroy the political balance struck by Congress;

rather, it should enforce the legislative compromise.

Congress intended that the decisions of the Commission

be reviewed under the narrow “arbitrary and capricious”

standard of the Administrative Procedure Act. Consist-

ent with this standard, the Tenth Circuit properly held

that the Commission’s decision was reasonable.

The Tenth Circuit also appropriately deferred to the

specialized expertise of the Commission in matters of oc-

cupational safety and health. The Commission is due

the same level of deferential review granted to other

specialized tribunals, such as the United States Tax Court.

Finally, since the Commission only decided that the

Secretary had charged Respondcnt under the improper

regulatory provision and not that no violation had oc-

curred, upholding the Tenth Circuit would not, as the

Solicitor General suggests, sanction the activity which

brought about the charge in the first place.

ARGUMENT

UNDER THE APPROPRIATE STANDARD OF RE-

VIEW, THE TENTH CIRCUIT PROPERLY UPHELD

THE COMMISSION’S DECISION

Petitioner’s arguments can be distilled into a simple

syllogism: The Secretary is the policy-making authority

under the Occupational Safety and Health Act of 1970,

29 U.S.C. §§ 651-678 (“OSH Act”); the Commission has

only adjudicatory authority. When the policymaker dis-

agrees with an adjudicatory body over the interpretation

of a regulation, the policymaker’s interpretation must

prevail. Therefore, in this case the Secretary’s interpre-

tation is entitled to judicial deference, and the Tenth Cir-

cuit erred in according deference to the Commission’s in-

terpretation. Petitioner’s reasoning is simple enough, but

4

it does not accurately portray existing law nor properly

state the issue before this Court.“

The proper issue is the appropriate standard of review

to be used by a court of appeals reviewing a decision of

an independent, specialized adjudicatory tribunal—in this

case, the Commission. In deciding that question, this

1 Potomac Elec. Power Co. v. Director, Office of Workers’ Com-

pensation Programs (“Pepceo”), 449 US. 268 (1980), relied on

by the Solicitor General, does not support the broad proposition

for which the Solictor General cites it. Pepco, and the cases cited

therein, involved appeals from a nonindependent adjudicatory tri-

bunal that is fundamentally different in makeup from the Com-

mission. Other cases supporting deference to the policymaker re-

lied on by the Solicitor General involved direct appeals from an

agency or department to a court. Different issues are involved

when the statute has interposed an autonomous expert tribunal

between the policymaker and the courts.

2? Implicit in Petitioner’s formulation of the question presented

is the assertion that, where the Secretary and Commission dis-

agree, the proper role of the Court is to review directly the reason-

ableness of the Secretary’s actions. Such a position flatly contra-

dicts the plain language of the OSH Act, which provides that per-

sons, including the Secretary, may obtain review only of a

“final order of the Commission.” 29 U.S.C. 5 660 (a), (b). In

other words, at issue is not the Secretary's view but the Com-

mission’s decision. Were it otherwise, the Commission would be

only a fact-finding body with authority similar to an administra-

tive law judge. There is nothing in the legislative history to

support this result, even though it is inherent in the Solicitor

General’s formulation of the issue.

The Federal Mine Safety and Health Act of 1977, upon which

Petitioner relies, is unlike the OSH Act in this regard because its

legislative history explicitly provides that “the Secretary's interpre-

tations of the law and regulations shall be given weight by both the

Commission and the courts.” S. Rep. No. 181, 95th Cong., Ist Seas.

49 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 3401,

3448 (emphasis added). This admonition suggests that the Secre-

tary’s actions under the Federal Mine Safety and Health Act mmy be

directly reviewed by courts; there is no similar suggestion in the

OSH Act.

Petitioner, the Longshore and Harbor Workers’ Compen-

sation Act the “LHWC Act”) establishes a Benefits Re-

view Board (“Benefits Review Board”) which is com-

posed of members who are appointed by the Secretary for

no fixed term and who serve at her pleasure. 33 U.S.C.

§ 921(b); Kalaris v. Donovan, 697 F.2d 376, 397 (D.C.

Cir.), cert. denied, 462 U.S. 1119 (1983). The Bene-

poena records and has no investigatory or contempt power.

See 33 U.S.C. §921 (establishing authority of Benefits

Review Board). Thus, the Benefits Review Board is but

an appendage of the Secretary. Indeed, it has been char-

acterized as a quasi-judicial body of “lesser dignity.”

Kalaris, 697 F.2d at 396 n.82. The decisions of tri-

bunals such as the Benefits Review Board are therefore

properly accorded no special deference by the courts.

Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1283

(6th Cir. 1987); see also Director, Office of Workers’

Compensation Programs v. General Dynamics Corp., 900

F.2d 506, 510 (2d Cir. 1990).

In contrast, the Commission is composed of members

who are appointed by the President, with the advice and

consent of the Senate, for a fixed term and are removable

by the President only “for inefficiency, neglect of duty, or

malfeasance in office. 29 U.S.C. § 661(a)}, (b. Unlike

the Benefits Review Board, the Commission is authorized

to promulgate its own internal rules, to order deposition

testimony, and to subpoena records, and has certain in-

vestigatory and contempt powers. Compare 29 U.S.C.

§ 661(g)-(i) with 33 U.S.C. 5921. Thus, in its makeup

and authority, the Commission is more like the United

States Tax Court Tax Court”), the Federal Mine

Safety and Health Review Commission (“Mine Safety

Commission”), and other specialized independent tribuals

that play a significant policy role apart from individual

departmental or agency heads. See 26 U.S.C. § 7443(b),

(e), (f; 30 U.S.C. § 823/a), (b.

However, unlike either the Mine Safety Commission

or the Tax Court, which have been instructed by Con-

gress to defer to the head of the administrative agency

whose decision they are reviewing,’ the Commission is,

in the words of its sponsor, Senator Javits, “an autono-

mous, independent commission which, without regard to

In the legislative history of the Federal Mine Safety and

Health Act, Congress unambiguously stated that “the Secretary's

interpretations of the law and regulations shal] be given weight by

beth the Commission and the courts.” S. Rep. No. 181, 95th Cong

Ist Sess. 49 (1977), reprinted in 1977 U.S. Code Cong 4 Admin.

News 3401, 3448. Under the Internal Revenue Code, the taxpayer

has the burden of proving the invalidity of the Internal Revenue

Service Commissioner's determination of tax deficiency, which is

presumptively correct. Tax Court Rule 142, 26 U.S.C. foll. § 7453

(1989). Welch v. Helvering, 290 U.S. 111, 115 (1933); Merryman

v. Commissioner, 873 F 2d 879, 882 (Sth Cir. 1989).

7

the Secretary, can find for or against him on the basis

of individual complaints. See Legislative History of the

Occupational Safety and Health Act of 1970, Senate

Committee on Labor and Public Welfare (1971) (“Leg-

islative History”) at 463.*

In contrast, nothing in the OSH Act or its legislative

history suggests that the Commission is to accord defer-

ence to the Secretary or treat the Secretary’s actions as

presumptively correct. Indeed, as courts have held under

the OSH Act, the Secretary has the burden of proving all

elements of an alleged OSH Act violation, which suggests

that the Commission owes no deference to the Secretary.

See, e. g., B&B Insulation, Inc. v. Occupational Safety and

Health Review Comm'n, 583 F.2d 1364, 1372 (5th Cir.

1978); Brennan v. Occupational Safety and Health Re-

view Comm'n, 511 F.2d 1139, 1143 (9th Cir. 1975

* See also Legislative History at 462 (Commission is al utono-

mous and independent” and “is expressly set forth to be an inde-

pendent commission”) (statement of Sen. Javits); id. at 463

(Commission “would not be a Labor Department instrument”)

(statement of Sen. Javits); id. at 473 (“an independent enforce-

burden of proof on the Secretary, the Commission stated that

“Commission case law on burdens of proof is in no way affected

by the deletion of present § 2200.73 .. parties . may continue

to be guided by that case law.” 51 Fed. Reg. 32,002, 32,013 (1986).

8

B. The Tenth Circuit’s Scope of Review Was Properly

Limited to Determining the Reasonableness of the Com-

mission’s Interpretation

The OSH Act does not set forth the standard of ju-

dicial review of Commission decisions. Given the absence

of any specific congressional direction, AISI believes that

the Commission’s final decision should be subject to the

standard of review of final agency action governed by

the Administrative Procedure Act (“APA”). 5 U.S.C.

§ 706. That was the standard the Commission's sponsor

stated would govern Commission decisions. According to

Senator Javits, the Administratice Procedure Act ap-

plies anyway, whether the Secretary is the enforcing

agent or the Commission is the enforcing agent.” Legis-

lative History at 463. Under the APA standard, courts

must uphold agency action unless it is arbitrary and

capricious, an abuse of discretion, or otherwise not in

accordance with law. 5 U.S.C. § 706. Numerous appel-

late courts have subscribed to precisely this standard in

reviewing Commission decisions. F. g., Fluor Construc-

tors, Inc. v. Occupational Safety and Health Review

Comm'n, 861 F.2d 936, 939 (6th Cir. 1988); accord

Brock v. Bechtel Power Corp., 803 F.2d 999, 1000 (9th

Cir. 1986); Donovan v. Anheuser-Busch, Inc., 666 F.2d

315, 324-25 (8th Cir. 1981); Marshall v. Cities Serv.

ence to the Secretary as required by the legislative history of the

LHWC Act. See Secretary of Labor v. Cannelton Indus, Inc., 867

F.2d 1482 (D.C. Cir. 1989) ; Brock v. Cathedral Bluffs Shale Oil Co.

796 F.2d 533 (D.C. Cir. 1986).

* Another possible standard, raised in passing by the First Cir-

cuit, would be de novo review with “the court making up its

mind independently about the rule’s meaning,” Donevan v. A.

Amorello 4 Sons, lune, 761 F.2d 61, 63 (ist Cir. 1985). Neither

the First Circuit, nor any other court, has seriovsly considered

such a course of action, which would overturn gene ally accepted

principles of administrative law. See, e.g. Federal i «bor Rela-

tions Auth. v. U.S. Dep't of the Treasury, 884 F.2d 1446, 1454

(D.C. Cir. 1989), cert. denied, 110 8. Ct. 863 (1990); Acadian

Gas Pipeline Sys. „. Federal Energy Regulatory Comm'n, 878 F.2d

865, 868 (5th Cir. 1989).

Oil Co., 577 F.2d 126, 130 (10th Cir. 1978); see also

Marshal! v. Western Elec. Inc., 565 F.2d 240, 244 (2d

Cir. 1977) (reviewing court’s “role ‘is to decide whether

the Commission’s interpretation of the regulation is un-

reasonable and inconsistent with its purpose, the normal

standard for review of the interpretation of a regula-

tion by the agency charged with its administration?“

(quoting Brennan v. Occupational Safety and Health Re-

view Comm'n, 491 F.2d 1340, 1344 (2d Cir. 1974))." By

definition, the “arbitrary and capricious” standard of

Bowman Transp., Inc. v. Arkansas-Best Freight Sye.,

Inc., 419 U.S. 281, 285 (1974).

The Tenth Circuit properly limited its review to exam-

ining whether the Commission's interpretation of the

coke oven respiratory regulation was reasonable. Pet.

App. 9a-lla.* Cireumscribed as it was by the narrow

scope of review mandated by the APA, the Tenth Circuit

was correct to limit its inquiry to the reasonableness of

the Commission's interpretation without ruling on the

reasonableness of the Secretary’s interpretation, to which

the Commission is not obligated to defer.”

In Brock v. Chicago Zoological Soc, 820 F.2d 909 (7th

Cir. 1987); United Steelworkers v. Schuykill Metals Corp., 828

F.2d 314 (5th Cir. 1987); and Brock v. Williams Enterprises of

Ga., Inc., 882 F.2d 567 (1ith Cir. 1987), relied upon by the

Solicitor General, the Seventh, Fifth, and Eleventh Circuits did

not address the appropriate scope of review of Commission deci-

sions.

* References to “Pet. App.” refer to the appendix to the Petition

for a Writ of Certiorari filed by the Solicitor General in this

Court on April 2, 1990.

* Although the Tenth Circuit stated that “it is certainly possible

to reach an alternate interpretation of the ambiguous regulatory

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513 F.2d 713, 715-716 .

Marshall, 585 F.2d 1327, 1332, 1334 n.1

‘Commission entitled to great deference in

interpretation of OSH Act regulations;

“is founded primarily on the special expertise” of

Commission

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U.S.C. $8 7401-7410) ; this, however, is a distinction without

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1199 (7th Cir. 1974)); Dunlop o. Rockwell Jnl, 540 F.2d 1283,

(6th Cir. 1976) ‘(court owes Commission's

3

:

IE

istory at 193. The bill that had been re-

Senate

sssuring a fair and independent method of furthering

the purposes of the OSH Act. As Representative Scherle

The true goal of any occupational safety and health

legislation can be simply stated. It is to foster im-

proved standards of safety and health for workers,

and to do it in a way that is both reasonable and

Legislative History at 1014.“ The need for fairness that

was identified by Representative Scherle was a prime

% The committee bill to which Representative Scherle objected

an independent adjudicatory commission. This

faults that the Representative identified with

bill followed] the oversimplified

F

883

2

5

:

While labor unions supported this scheme, it was roundly criticized

by employers. As Senators Dominick and Smith noted in their

dissent in the Committee Report, “the bill is opposed by the

Administration, employers, State occupational health and safety

agencies, and by national standards producing organizations while

its primary support comes from the leadership of large unions.”

Legislative History at 200. These Senators objected to the fact

that the Committee’s bill settled [all functions, including stand-

ard setting, investigation, prosecution, adjudication, and review”

in the Secretary of Labor. /d.

In contrast, Senator Javits’ amendment, which was added on

the floor of the Senate, established the Commission, which Repre-

measure of reassurance .. . by so simple a means as an autonomous

enforcement board . I see no reason why we should not do it.”

Legislative History at 470 (statement of Senator Javits).

14

motivating factor behind the Javits amendment. The

notion that an independent Commission would be fair to

both labor and business interests prompted Senator Jav-

its’ amendment. To adopt the Secretary’s position in this

case would be to reduce the Commission’s function to

that of a fact finder and remove the keystone to winning

business acquiescence to the OSH Act.

As the Seventh Circuit has reminded us, when a legis-

lative provision is the result of a compromise, it is not

the function of a court to undo the political balance

which has been reached:

{[W]here a statute strikes a political balance but

administration of the statute is entrusted to an

agency that may not embody that balance, it is dan-

gerous to defer automatically to the agency’s view.

An agency that may be dominated by one faction in

the legislative struggle that led to enactmert of a

compromise is not authorized to hand that faction a

victory that was denied it in the legislative arena

through the efforts of another faction. The court

must enforce the compromise, not the maximum

position of one of the interest groups among which

the compromise was struck.

Bethlehem Steel Corp. v. EPA, 723 F.2d 1303, 1309 (7th

Cir. 1983).

E. This Court’s Decision Does Note Relate to Any Lia-

bility of Respondent

Finally, the Solicitor General suggests that to uphold

the Court of Appeals would permit Respondent to escape

liability, although it had been explicitly warned and had

violated the Act. Brief for Petitioner at 37. The Com-

mission, however, did not suggest that Respondent’s fail-

ure to provide properly fitting respirators did not violate

the Act. All it held was that the Secretary had charged

Respondent under the wrong provision of the Regula-

tions. See Pet. App. at 40a-44a. This is precisely what

15

one would expect from a commission established to pro-

vide “an effective and fair method of enforcement,” of

the OSH Act. Legislative History at 880 (emphasis in

original)“

The Tenth Cireuit was therefore correct to uphold the

Commission’s decision.

CONCLUSION

The Tenth Circuit exercised appropriate judicial re-

view over the Commission’s order and, accordingly, its

decision should be affirmed.

Respectfully submitted,

Of Counsel:

BARTON C. GREEN ALBERT J. BEVERIDGE, III *

AMERICAN IRON AND STEEL CHRISTOPHER W. MAHONEY

INSTITUTE DIANE L. GILDERSLEEVE

1133 15th Street, N.W. BEVERIDGE & DIAMOND, P.C.

Washington, D.C. 20005 1350 I Street, N.W., Suite 700

(202) 452-7143 Washington, D.C. 20005

(202) 789-6000

Counsel for Amicus

Dated: September 19, 1990 * Counsel of Record

The Commission’s job is to reach the proper result, not to

reach the result advocated by one of the parties simply because of

who that party is. See General Dynamics, 900 F.2d at 510 (defer-

ence to agency head in role of litigant would deprive claimants

of impartial review).