959 F.3d 381
D.C. Cir.2020Background
- Congress enacted the Occupational Safety and Health Act (OSH Act) in 1970. Section 6(a) allowed the Secretary of Labor, for two years, to adopt existing "national consensus" or "established Federal" standards as OSHA standards without notice-and-comment rulemaking.
- The Walsh‑Healey quick‑drenching eyewash requirement (41 C.F.R. § 50‑204.6(c)) was adopted into OSHA general‑industry rules at 29 C.F.R. § 1910.151(c); OSHA shortly revoked a limiting provision (§ 1910.5(e)) that had confined Walsh‑Healey standards to federal‑contract workplaces.
- OSHA later (1993) designated certain general‑industry standards, including the quick‑drenching requirement, as construction standards at 29 C.F.R. § 1926.50(g) without notice‑and‑comment.
- In 2011 OSHA cited Kiewit Power Constructors under § 1926.50(g); Kiewit challenged the citation arguing the Secretary unlawfully extended the Walsh‑Healey standard to construction without notice and comment. An ALJ and the OSH Review Commission vacated the citation.
- The Secretary sought review, arguing his construction of § 6(a) was reasonable and entitled to Chevron deference; the D.C. Circuit upheld jurisdiction to hear Kiewit’s procedural challenge, granted Chevron deference to the Secretary, reversed the Commission, and remanded for adjudication on the citation’s merits.
Issues
| Issue | Plaintiff's Argument (Kiewit) | Defendant's Argument (Secretary) | Held |
|---|---|---|---|
| Whether § 6(a) authorized the Secretary to apply an "established Federal standard" to industries beyond the source standard's original scope without notice‑and‑comment | Extending Walsh‑Healey to construction changed the standard’s scope and was a substantive modification requiring § 6(b) rulemaking | § 6(a) is ambiguous and reasonably read to permit cross‑industry application where hazards exist; Congress exempted § 6(a) from APA procedures | Court: statute ambiguous; Secretary’s interpretation is permissible and entitled to Chevron deference (Secretary may extend standards where reasonable) |
| Whether the Commission must defer to the Secretary when they offer conflicting interpretations | Commission: withheld deference because the Secretary’s position rested on a procedurally defective revocation and was unreasonable | Secretary: as policymaker, his interpretation merits Chevron deference even when defended in litigation | Court: when Secretary and Commission divide, defer to the Secretary; Commission erred in refusing Chevron deference |
| Whether the 1971 revocation of § 1910.5(e) was an unexplained, arbitrary reversal (so deference is unwarranted under Encino) | Revocation was a "complete about‑face" lacking reasoned explanation, so the resulting interpretation is arbitrary and undeserving of Chevron | Revocation was brief, not relied upon by industry, resolved a textual/regulatory conflict, and was within § 6(a)’s exemption from APA procedures | Court: Encino distinguishable; revocation did not bar Chevron deference given context, brevity, and § 6(a)’s procedural exemption |
| Whether Kiewit’s procedural challenge to a § 6(a) standard is timely (jurisdictional question) | Kiewit: Simplex permits raising procedural challenges in enforcement proceedings before OSHRC | Secretary: later cases (e.g., JEM) counsel strict limits on late procedural attacks; challenges should be time‑barred | Court: Simplex remains binding for OSH Act § 6(a) standards; procedural challenge in enforcement proceeding is permissible and court has jurisdiction |
Key Cases Cited
- Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (establishes two‑step deference framework for ambiguous statutes)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (an unexplained, significant agency reversal can preclude Chevron deference)
- Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575 (D.C. Cir. 1985) (permits procedural challenges to § 6(a) standards in enforcement proceedings)
- JEM Broadcasting Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) (limits on belated procedural attacks under other statutes; court contrasted with Simplex)
- Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991) (distinguishes policymaking role of Secretary from Commission’s adjudicatory role)
- United States v. Mead Corp., 533 U.S. 218 (2001) (framework for when agency interpretations merit deference)
- Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003) (when Secretary and Commission disagree, courts defer to Secretary as policymaker)
- Deering Milliken, Inc. v. Occupational Safety & Health Review Comm’n, 630 F.2d 1094 (5th Cir. 1980) (discusses timeliness and availability of procedural challenges to § 6(a) standards)
- Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978) (precedent on limits of § 6(a) adoption of preexisting standards)