Farmworker Justice Fund, Inc. v. William E. Brock, Secretary of Labor

INC., FUND, JUSTICE FARMWORKER Petitioners, al.,

et BROCK, Secretary of E.

William al.,

Labor, Respondents. et

No. 85-1824. Appeals, Court

United States of Columbia Circuit.

District 6, 1986. Nov.

Argued 6, 1987.

Decided Feb. Judgment

Opinion and Vacated as Moot

May 7,1987.

Opinion concurring part dissenting in part filed by Judge Circuit WILLIAMS.

WALD, Judge: Chief appeal This culminates 14-year strug- gle compel of Labor under Occupational Safety Health Act (OSH Act) to issue a field sanitation stan- providing dard drinking access to water and toilets for several million American agricultural workers.1 The rulemaking beyond record dispute demonstrates drinking lack of water and toilets causes spread of contagion, disease, bladder and heat-prostration among farmworkers. Yet issuing standard, resistance to counterpart of is already place for every other type OSHA-covered employ- ment, has been intractable. An arsenal of provided administrative law doctrines has justification Petition for of an Review Order of the for ricocheting the case Occupational Safety and Health Adminis- between the and the courts for over tration. decade: decade in which field workers gone have without of drinking benefit wa- Memick, George III, H. with whom Wil- ter or rudimentary the most sanitary facili- Bradford, liam A. Jr. and Patricia A. Bran- ties. today With our ordering non, D.C., Washington, brief, were on for issue, field sanitation rule to hope we petitioners. bring disgraceful to an chapter end this Stem, Atty., Mark B. Dept, Justice, legal neglect. Willard, with whom Richard K. Atty. Asst. Gen., Schaitman, Atty., Leonard Dept, of History I. Joseph Woodward, Justice Counsel, M. September Congreso, In El or- Labor, D.C., Dept, Washington, were on ganization represents Hispanic Ameri- brief, respondents. Mollin, Alfred R. citizens, including can agricultural work- Justice, Atty., Dept, D.C., Washington, ers, petitioned the Secretary appearance respondents. entered an a field requiring sanitation standard access drinking water, handwashing facilities WALD, Judge, Before Chief portable nothing toilets. When had WILLIAMS, Judge, *, Circuit and WILL happened by Congreso December El Senior Judge. District brought suit in the United States District Court for the District of Columbia to com- Opinion for the Court filed Chief pel the Secretary to issue the standard. Judge WALD. Advisory December the Standards Concurring opinion Agriculture, filed Senior Committee on to whom the Judge District WILL. Secretary had El Congreso’s peti- referred * Act, theOf United States District Court for the North- standards under the OSH U.S.C. Illinois, sitting by designation ern District of through Occupational Safety and Health Ad- pursuant 294(d). to 28 U.S.C. § (OSHA). parties ministration refer interchangeably. and OSHA We will 1. The of Labor administers his au- practice. follow this thority occupational safety to set and health recommendation, in 1971. Facilities for sanitation lations factfinding and a tion for required back to the Sec- in the have also been construc- approved sent an retary. industry temporary and in labor camps. later, in months Ten time, present there are no such At the held that Court District “[t]he rule proposed agricultural employ- for publish the health standards [or failure to do in the Federal working explain his failure ees in the field. Those who are so] after the Advis- sixty days Register within engaged field labor have the same violates recommendation ory needs, hygienic Committee’s physiological and and are Occupa- mandatory limits time exposed risks to similar health hazard 2Act.” Safety Health .National tional counterparts. industrial These American Citizens Congress Hispanic as a result of risks are often exacerbated of (El Dunlop, F.Supp. Congreso) v. exposure to and severe toxic substances (D.D.C.1975). then The District Court climatic conditions. “proceed within ordered the publishing fi- time limits toward the Act’s medical evidence There substantial Id. standards.” field sanitation nal ... of strain which results human appealed this decision to The working adequate without water intake pending, appeal While the this court. conditions____ hot environmental under 27,1976, of Labor Department drinking potable Making quality water of proposed field sanita- of a published notice help pre- will easily accessible workers public comment invited tion standard and problems. vent such Proposed The July Notice until following expla- Rulemaking contained for a field sanitation the need

nation of Incidents of infection and disease standard: by insect- are transmitted both which sani- inadequacy or basic absence contagion may and hand-to-mouth borne recog- long been hygiene has tation and the use of toilet and hand- be reduced principal as a by medical science nized facilities____ [Also,] especially washing of fecal-bom in the transmission factor women, pro- among been [there] diseases and and viral bacterial resulting in often longed retention debilitating infections. parasitic painful bladder disease. development improved safe- direct effect of ... The 17,576, 17,576-77 (April drinking proper excreta dis- water and 1976). exemplified by the eradication posal is Proposed Rulemak- Despite the Notice cholera, para- country typhoid and this describing for a field sanita- ing the need evidence typhoid fevers and reduced standard, Secretary still had not diarrhea, hookworm dysentery, infant by April of the follow- parasitic infec- issued the and other intestinal and time, court reversed ing year. At that tions. to issue the Court’s mandate the District for sanitation has been A standard language ground that the standard on the workplaces since permanent for all effect 655(b), upon by the regu- relied U.S.C. began promulgating first OSHA § hear- conduct and the expressly provides timetable comments OSH Act Third, First, advisory ings. rulemaking. an "[w]here Secretary deter- appointed and the committee completion any [wjithin sixty days after the issued, he shall should be mines that rule (3), paragraph hearing the Secre- held under days sixty after publish proposed rule within modify- promulgating, tary a rule shall issue advisory committee’s recom- submission safety occupational or revoking ing, 655(b)(2) (emphasis § U.S.C. mendations.” 29 added). a determination or make health standard Second, has issued once the be issued. should not rule standard, provides for a time proposed the Act added). 655(b)(4) (emphasis Id. § persons period can submit in which interested Court, given District could literal submit such a timetable for rulemaking to light 655(g), court, effect states: the Secretary but § re- turn determining priority sponded: “In time, establish- present “At the the devel- section, under opment the Secre- of a field sanitation standard does regard give urgency due tary shall not appear on the agency’s plan- 18-month mandatory safety ning of the need for horizon generally because both lim- industries, particular health standards for ited resources and the relatively trades, crafts, businesses, occupations, assigned priority low particular to these workplaces or work environments.” In our standards.” 626 F.2d at (quoting view, 655(g) preserved agen- submission). Secretary's “traditional Frustrated priorities to alter cy discretion provide defer refusal to clues as legitimate statutory action due to consider- plans, to his future the District or- Court ations, any step of rulemaking pro- dered complete develop- Congress Hispanic cess.” National ment of a field sanitation standard “as v. Usery, American Citizens 554 F.2d possible.” soon as Opinion Memorandum (El 1196, (D.C.Cir.1977) I). (December Congreso 1200 21, 1978) at 5 (quoted in El II, case was remanded the District Congreso 884). 626 F.2d at require Court with instructions to the Sec- again, Once Secretary appealed the the retary to report submit a status on the District again, Court’s decision. Once field sanitation standard and a timetable reversed, holding court the District completion rulemaking for the proceed- Court had improperly substituted “its own ings; if the District Court doubted the sinc- appropriate view of priorities for standards erity Secretary’s explanation for the development” by requiring the Secretary to delay, it “should take such action as the complete rulemaking possi- “as soon as require.” circumstances Id. II, ble.” El Congreso 626 F.2d at 889. We 1977, September In Secretary filed held that “the Secretary reasonably ha[d] report with the District Court. exercised his postponing discretion” on field in sanitation order regards to confront more field sanitation pressing priorities. Id. standard as a priority. matter low The hazards from lack of such a stan- Nevertheless, we also held that the Sec- dard transmission of include bacteria and retary could not the field sanitation infection, and bladder disease. In the rulemaking indefinitely. We noted that agency’s judgment, these hazards are prior opinion our had “made clear that El neither presented as serious as those Congreso was entitled to some timetable substances, agents physical or condi- development for the of a field sanitation tions with respect to rulemaking which (emphasis standard.” Id. at origi- 890 in initiated, has been nor as serious as nal). acknowledged Given the need for presented those by other substances for sanitation, field we Secretary said that the rulemaking begun. must eventually: a standard Congress National Hispanic American Secretary Where the problem deems a (El Marshall, Congreso) Citizens significant enough to warrant initiation (D.C.Cir.1979)(El F.2d Congreso setting process, of the standard the Act II) (quoting the Secretary’s report). In the requires plan shepherd that we have a Secretary’s view a field sanitation standard through development of the stan- simply had to longer. wait a while pains, regardless dard —that he takes press priorities, of other Court, however, The District ensure found the inadvertently the standard is not Secretary’s report inadequate because process. lost lacked “a completion timetable for the rulemaking proceedings” per appellate enough Secretary merely It is not for the court’s August instruction. state that the standard will not be District Court ordered the issued over next 18 months. If specific too certain of its re- promulgation age of a preclude priorities ti- invited further quirements,” within that field sanitation pro- meframe, develop appropriate must “to new then comment stan- least timetable —at Id. at 8495. proposal.” vide a larger covers a question dard —which in March year later the Secre- One period. withdrawing issued his decision tary remanded again, we 890-91. Once Id. at 27, 1976, proposed standard of “require Court to the District the case to proposed it with a new field sani- replacing Secretary to such timetable provide Fed.Reg. tation standard. at 891. opinion.” Id. accordance with this (March 1, 1984). dif- proposal The new years for It took another two-and-a-half primarily in its from the old one fered agree Under on a timetable. parties to farms 11 or more em- limitation “where agreement approved by the a settlement engaged opera- in hand ployees are labor July Court in District Fed.Reg. at 7599. in the field.” tions good faith effort to promised to make a had prohibited the interim months, within 31 complete the standard regu- using funds to OSHA (J.A.) February Appendix i.e., Joint late farms with 10 fewer workers. Secretary could not meet at 13. If the 1928.110, Compare proposed 29 C.F.R. § deadline, required petition he was (March 1, 1984), 7604-05 approval of an extension. court for 1928.110, 41 proposed 29 C.F.R. with 27, 1976). 1, Fed.Reg. 17,578-79 (April Secretary issued On March Proposed Rulemak- an Notice Advance Proposed Rulemak- In his new Notice of Register, stating that in the Federal however, Secretary first ing, for the pro- reconsidering the Department was question raised a the need for a time about published posed field sanitation standards light all: “in federal standard at April years earlier seven standards of state field sanitation existence publication repeated Fed.Reg. 8493. This covering portion of such a substantial proposed rule: for the earlier the basis workers[,] light and in fact of volun- exists in the histo- Considerable evidence [drinking items wa- tary provision of these public health development ry of handwashing ter, toilet facilities] past few centuries over the practices is a serious agricultural employers[,] there efficacy providing demonstrate evidence establishes question whether the water, drinking proper disposal of clean field stan- need for federal sanitation hy- employment of human wastes and Fed.Reg. The Secre- at 7591. dard.” trans- practices preventing in gienic public hear- tary directed to conduct OSHA diseases. mission communicable at 7591-92. ings addressing this issue. Id. is no in the record There evidence January one month before agricultural field show that workers forth in settle- deadline set 31-month susceptible exposed to disease less when out, the agreement due to run ment was organisms other producing than workers. request with the District Secretary filed a Secretary again pointed Id. at 8495. The time, claiming for an extension Court out, re- “[currently, OSHA standards ... rulemaking proceeding could the new quire provided facilities to be sanitation 16,1985, April completed until not be groups workplace of workers earliest. except ag- Agency’s jurisdiction within the 6, 1985, ruling on the Never- March without Id. at 8494. On ricultural workers.” issue, transfer- theless, go the District Court unwilling to extension court under the authori- original red the case proceedings with on the forward Union, Auto- Rather, ty United some com- of International proposed rule. because Imple- mobile, Aerospace Agricultural & original proposed ments on the America, Dono- UAW v. being it “for too broad in cover- ment Workers criticized (D.C.1985).3 Then, van, particular on and agriculture.” 756 F.2d conditions in 29, 1985, Id. this court decided the is- March “Respondents have met their burden sue: Eight days decision, after this “final” demonstrating proposed that the devia- newly appointed Secretary Labor, Wil- the time frame set out in the tion from Brock, during liam E. stated his confirma- agreement good faith.” settlement hearings that he would reconsider this added, however,

J.A. at 35. We this note Respondents' no-standard decision. See “we caution: will look with extreme 21, 1985, Brief at 7. On displeasure on variance from the Brock in fact April did revoke the 16 deci- schedule and set will hesitate to a date sion, but he did not a field completion of certain for the administrative Rather, sanitation standard in its stead. he proceeding they unreasonably delay.” if delay promulgation announced he would Id. a national standard for an additional two years give governments order On issued a opportunity to develop implement “[fjinal ... a federal [determination adequate their own field sanitation stan- field sanitation standard be will not issued 15,087. dards. At end of the first 18 months of 15,086, at this time.” 50 two-year period, cited two reasons for this decision, characterized as “Priori- response. OSHA will evaluate the states’ “Priorities,” ties” and “Federalism.” As to If Agency determines that the states stated: protect have acted to adequately farm- workers, no standard, further action would field sanitation if [A] However, required. would, be if OSHA deter- promulgated, accordance response mines states’ is inade- policy, given very well-settled OSHA quate, then within 6 months after that priority low enforcement relative to determination OSHA will issue its own already most field sanitation standard. development asbestos, (e.g., effect and in lead, carcinogens). various chemical It 42,660, 42,662. Fed.Reg. appropriate would not to divert re- be justified Secretary this decision as sources from the enforcement of other follows: in already OSHA health standards effect ... the clear in the evidence record to protecting and workers from more life- unacceptable date of risks the health threatening exposures. chemical arising of farmworkers from the cur- Fed.Reg. rently inadequate provision sanitary “Federalism,” As to drinking stated: facilities water at “ concept ‘Federalism’ involves a designed worksites means that decision not appropriate restore an balance of re- issue a federal must be set now sponsibility between state and rejecting policy aside. While not rea- government applied and is appropriately in sons set forth in the 16 determina- tion, already those instances where states are now finds that a dif- taking charge police power respon- of their ferent balance must be struck in order to 15,090. Thus, give weight proper sibilities.” to the health risks Thus, appropri- posed. of the more based his review “believe[d] states, record, ate that increasingly has reached a de- moving regulate problem, this be al- termination that is further required lowed to do so accordance with each to deal with farmworkers’ However, specific state’s public problems. concerns for health he continues jurisdiction agency application 3. Donovan an was to OSH Act rule- sive over claims of making principle decisionmaking set forth in Telecommu- when this court has exclusive FCC, nications Research & Action Center v. jurisdiction agency over the final decision. (D.C.Cir.1984), F.2d 70 has this court exclu- responsive prior on three to sanitation standard occa- that state action to believe sions, to, compelled we feel to address anew preferable be need would principles judicial apply review that He than federal action. effective more a to withhold decision has to afford the therefore decided delay promulgation of a standard. On adequate to take action opportunity an occasions, more than one these we have farmworkers, offering is protect and he Act, that, OSH stated under the the Secre- to the states this task. assistance amount tary has certain of "discretion” fail within the event that the states when, determining whether, and how to set advantage of this specified time to take “to purposes serve the of [the Secretary is committed opportunity, the 655(b)(1). Act],” 29 See El U.S.C. § promulgating a federal standard to Nevertheless, Congreso I II. we have & provide protection. such Because the is suggested also that this discretion regula- Secretary believes that further agency’s unlimited and that the failure to level, tion, on state is need- preferably promulgate a field sanitation standard protect adequately farmers and be- ed to judicial immune scrutiny. See El April 16 determination not to cause the II; Congreso Order of March ade- a federal standard did not issue Principles judicial governing review risks quately into account the health take agency discretion not take action remain hereby supersed- posed, that decision is continuing controversy, source how- ed. ever, developments and recent law 42,600 added). (emphasis Id. at require that revisit the issue. we Now, original petition years after the In Citizens to Preserve Overton Secretary, petitioners’ filed with the Park, Volpe, 401 U.S. 91 S.Ct. Inc. the Sec- challenge to this latest (1971), Supreme 28 L.Ed.2d 136 the standard is before retary not to issue that, Court established unless another stat us.4 review, Adminis precludes judicial ute (APA), Procedure Act 5 U.S.C. trative Scope II. Judicial Review seq., provides decision- 701 et Agency Discretion Exercise making may judicially reviewed for com First, Although pliance basic criteria.5 this court reviewed with two in a agency cannot exercise its discretion Secretary’s failure to a field action, 85-1824, technically sepa- properly before this court in action. No. This Order, 7, 1986). (May original filed in No. 85-1359 one from the case rate District Court December 1973 transferred challenge October 21 deci- Petitioners here 1985, court in March No. 85-1176. After agreement as a violation of the settlement sion decision, April 16 this court dismissed No. the the as a of the OSH Act and as well violation provision pursuant in the settle- 85-1176 answer, alternatively, Respondents either APA. agreement agree to that "Plaintiffs the ment agreement their duties under the settlement complete dismissal this action when and final fully performed by April 16th "final” were decision, promulgated, a field sanitation standard petitioners’ rights under the or that publish Defendants a determination un- when extinguished agreement by the settlement were Occupational Safety and Health Act of der the deny rein- of this court to dismiss and decisions promulgate a sanitation stan- 1970 not to field for 85-1176. Because we rule statement No. (citation omitted). Chal- dard." J.A. 12-13 statutory grounds, petitioners we need April lenge to 16 decision went forward relating any issues settle- not consider action, separate in a No. 85- before this court agreement. ment 1349; agreement having provided the settlement any rights only opinion, reserve substan- that "Plaintiffs In we need address this challenges decisionmaking. challenge agency We decision not to a ... [a] tive panel of this under the APA standard.” Id. at 13. Another will not discuss agency procedures, set judicial dismissed No. 85-1349 after the court review 417, Park, 91 S.Ct. 401 U.S. 16 decision. At the same forth in Overton revoked the time, 824, petitioners’ Nuclear Power panel and Vermont Yankee denied motion to at Corp. 1197, 519, Inc., 85-1176, NRDC, 98 S.Ct. 435 U.S. presumably reinstate No. because (1978). challenges 21 55 L.Ed.2d 460 and all to the October decision are 620 Park, Overton contrary scope 416, of an to law. The 401

manner U.S. at 91 S.Ct. at law; by example, an 823. For agency’s agency’s discretion bounded an decision justify by may upon precise decision refer agency cannot a be based factors that intended, if discretionary authority, Congress balancing ence to its but its scope agen beyond may those factors be decision lies so as to unreasonable Therefore, discretion.” Id. court is constitute cy’s discretion. an “abuse “[t]he required Supreme stressed, however, the Secre The first decide whether Court has scope tary judicial arbitrariness, acted within of his authori review Park, lawlessness, ty.” Overton 401 91 U.S. contrast is “narrow” and may A statute define as to agency judgment. 5.Ct. at 823. deferential The re viewing agency particular may an basis court judg off-limits to not “substitute its decision, just Motor Ve may agency.” for a as it foreclose ment for that of the hicle altogether. example, For Association v. State particular result Manufacturers Co., of Labor Farm Mutual Automobile Insurance the OSH Act directs the regulate 29, 43, 2856, 2866, toxic materials “to the extent U.S. 103 S.Ct. feasible,” Park, 655(b)(5), (1983); 29 U.S.C. and the L.Ed.2d Overton Su § preme language Nevertheless, Court has held that this U.S. at at 823. S.Ct. using precludes agency’s may cost- an decision on occasion tran deciding analysis benefit how to exercise scend reasonableness and become a “clear Farm, standard-setting authority State judgment.” under error of 463 U.S. “[a]ny 43, 103 Park, 2867; statute: on a Overton based bal S.Ct. at ancing by of costs and benefits the Secre U.S. at 91 S.Ct. at 824. It was this second, tary that strikes a different balance than “abuse discretion” standard Congress that struck be found Overton Park that this court ap inconsist Congreso in El II. See 626 F.2d at plied ent with the command set forth 655(b)(5)].” American Textile Manu 88-89. [§ Donovan, Institute v. 452 U.S. facturers Chaney, Heckler v. After 470 U.S. 490, 509, 2478, 2490, 101 S.Ct. 69 L.Ed.2d (1985), 105 S.Ct. 84 L.Ed.2d 714 how (1981). Thus, agency if an rests a ever, there has some uncertainty been on statutorily impermissible decision con principles apply about how these in cases siderations, reviewing court must set Chaney, involving agency inaction.'7 beyond scope aside the decision as Supreme precluded judicial Court re agency’s discretion.6 Drug view of a decision the Food and

Second, agency may an abuse Administration not to an institute enforce discretion. Even proceeding against parties within au- ment allegedly thority by statute, agency’s violating Food, established an Drug, the Federal and Cos may “arbitrary” be nonetheless or metic Act. generally, Supreme More “capricious.” 706(2)(A); 5 U.S.C. see Court stated that “an agency’s decision not Supreme deed, easy 6. The Court has stated provides that "an American Textiles exam- arbitrary capricious rule agency ple: would be if analysis cost-benefit arbi- has relied on factors which the trary, but circumstance it would contra- consider____’’ has not intended it to Motor Ve- vene the characterization, dictates of OSH Act. Whatever the hicle Ass’n v. State Farm Mutual Manufacturers State Farm makes clear that 43, Co., 29, Automobile Insurance 463 U.S. 103 reviewing under the APA a set court shall aside 2856, 2867, (1983). S.Ct. alytically, 77 L.Ed.2d 443 An- agency agency an decision "if has on the relied agen- it makes more sense to treat an Congress factors which the has not it intended cy’s reliance a factor "which has to consider." being contrary not intended it to as consider” to scope agency’s law and outside the of the discre- Sunstein, generally Reviewing Agency In- tion, "arbitrary” "capricious” rather than an or Chaney, action After v. U.Chi.L.Rev. Heckler 52 powers exercise of those within the (1985); Note, Impact 653 of Heckler v. Cha- The agency’s agency imagine discretion. We can Decisions, Agency ney on Judicial Review of decision that could not be as characterized “ar- (1986). Colum.L.Rev. 1248 bitrary” yet impermissible would be under by Congress. the constraints established In- inherently pre Apart from unreviewable should be such action take enforcement to factors, acknowledges judicial Chaney opinion the review ... immune sumed grounds rest may agency rebut decisions that most [although] presumption pro judicial review susceptible statute that are to for where the substantive ted cases, agency follow in In guidelines for the to “abuse of discretion.” these vided 701(a)(2) powers.” Id. at exercising proper its enforcement construction of §§ (footnote 832-33, 706(2)(A) requires omit a court to at 1656 determine 105 S.Ct. ted). agency’s whether the decision was “arbi- Furthermore, trary” “capricious.” holding Chaney from an on- The derives Supreme to Chaney Court’s citation reconcile the APA’s di- going effort to Bachowski, in Dunlop earlier decision “reviewing court shall ... set rective that a 560, 1851, 44 95 S.Ct. L.Ed.2d 377 U.S. to ... found be ... an agency action aside (1975), principle makes clear that discretion,” 706(2)(A), 5 U.S.C. abuse of § reviewability applies agency inaction as judi- counterpart provision APA that awith agency well as action. apply 706 does not “to cial under review § is com- agency that action Dunlop, Supreme the extent ... In held Court that by law.” agency discretion mitted to a decision Labor not to 701(a)(2). Supreme ob- Court U.S.C. bring suit to set aside a union election in § in some circum- Chaney served Labor-Management Report- violation decisionmaking legit- agency stances judi- subject and Disclosure Act was imately rely on factors whose evaluation abuse cial review for of discretion. Al- agency’s on the own ex- depends so much cautioning though that “since the statute for not a court to pertise that is feasible knowledge special relies on the and discre- error,” decision even for “clear review the tion of the for the determination substituting its own improperly without probable probable and the violation In agency’s. for the the Court’s judgment effect, clearly reviewing court is not words, manageable stan- judicially “if no judgment to substitute its authorized how and judging are available dards bring the decision its discre- agency when an should exercise suit,” 1860, at id. S.Ct. at the Court agency is evaluate impossible tion then it [reviewing] say went on to that “the court ” 470 of discretion.’ U.S. action for ‘abuse however, may, ultimately come con- 105 S.Ct. at clusion that statement necessary reasons on its face renders reasoned that circumstanc- Court is conclusion that his decision to sue so competence has no es where court constitute the decision arbi- irrational agency if an has abused its dis- determine trary capricious.” Id. S.Ct. cretion, precluded under judicial review explaining Dunlop, at 1861. Cha- 701(a)(2). Thus, pre- terms of “clearly noted defined ney opinion sumption agency nonenforcement present” factors were statute to “an stems from the fact that unreviewable 470 U.S. guide judicial review that case. in- agency decision not enforce often (internal quotation at 1657 S.Ct. complicated balancing of number volves a “Therefore,” omitted). Chaney Court peculiarly which are within its of factors stated, Dunlop decision in expertise.” 470 U.S. at 105 S.Ct. beyond capacity judicial “was not such 1656. The Court identified factors: (internal quotations supervise.” omit- Id. spent “whether resources are best ted). Thus, ju- assumes continued another, Heckler on this violation or ... whether agency inaction for abuse review of dicial particular likely action is enforcement is based on indeed, the decision acts, of discretion where if it whether the to suceed competent to eval- factors that the court is agency enough to has resources undertake uate. at all.” Id. the action

622 important, holding Cha

More ular toxic material of his because reliance way precludes judicial ney no analysis, review of on cost-benefit decision are agency contrary decisions that to law. “would be inconsistent with the command Indeed, possible interpret is not to it the OSH and must be set aside. [of Act]” 701(a)(2) pro Textiles, to reach that result. 509, That American 452 § U.S. at 101 vision, repeat, precludes judicial to review see also State 2490; S.Ct. at Iowa ex. of “to the extent that only Block, agency ... action rel. Miller v. 347, (8th 771 F.2d 352 agency by is committed discretion law.” Cir.1985) (holding Chaney does not added). 701(a)(2) (emphasis 5 U.S.C. As judicial bar of Secretary review of discussed, agency we have discretion is de Agriculture’s to promulgate failure rules by and circumscribed What fined law. implementing programs disaster relief ever the extent particular of agency’s when “it duty is the clear the Secretary statute, particular discretion under it promulgate regulations carry which out encompass authority does not to contra Congress”), cert. denied sub intent — statutory Thus, commands. nom., vene even Lyng, Iowa ex rel. Miller v. U.S. impossible when “it is eval —, 3312, 3313, [for 106 court] S.Ct. 92 L.Ed.2d 725 agency uate action for abuse discretion” (1986). Moreover, Chaney itself (as on agency to those factors which the that, even in the context of nonenforce peculiarly has relied that are within its ment, [Congress] has indicated an in “[i]f competence), Chaney, 830, at U.S. 105 tent agency to circumscribe enforcement 1655, S.Ct. at court can —and must —re discretion courts require ... that the agency’s view determine agency 834, follow the law.” 470 U.S. at agency scope that the has acted “within the S.Ct. 1657.9 Park, authority,” Overton 401 U.S. [its] Thus, even after Chaney, the two basic rely S.Ct. did not principles judicial review set forth in “factors that the has not intend Overton Park apply. still grounds If the Farm, ed it to consider.” State U.S. at upon relied his Octo- fact, S.Ct. 2867. this court ber impermissible 1985 decision were has already held Chaney that Heckler v. Act, under the OSH then we must set aside does not bar judicial agency review of deci beyond scope decision as of his sionmaking agen to determine whether the authority and contrary long As law. cy statutorily relied “impermissible permissible relied on consid- Reagan, Robbins irrelevant factors.” erations, however, are precluded we (D.C.Cir.1985) (per curiam).8 F.2d conducting any judicial further review if principle applies agency This in the evaluation of depends these factors so If, agency action as well as agency’s action. for much on the expert judgment own example, impossible decided for this court to review relating partic- a standard to a decision even for er- “clear aFor list of cases in which "[c]ourts have ... cial review to determine whether it was an agency held that claims that an has acted out- delegation Secretary’s congres- unlawful statutory authority side its even reviewable sionally-determined responsibilities. We find though might its decision on the merits be unre- persuasive authority this case is for our review discretion,” agency viewable as committed present- of the not dissimilar "federalism” issues see Assiniboine and Sioux Tribes Fort Peck ed of Labor’s October 21 deci- Indian Reservations v. Board Oil and Gas sion. Conservation, (9th Cir.1986). 792 F.2d 782 That statutory challenge case involved a to the Secre- Thus, Chaney acknowledges itself that courts tary “coop- of Interior's decision to into enter decisionmaking agency can review to determine agreement” erative State of Montana whether the exceeded Secretary’s responsibilities for transfer authority. following Much of the confusion Leasing under The Indian Mineral Act of 1938. distinguish Chaney stems from the failure contended that the decision was separate judicial between the two criteria of unreviewable anas exercise of discretion. The set review forth Overton Park. judi- Chaney Ninth Circuit held that did not bar

623 limitations [including] the severe provided Act if OSH has But the ror.” pri- for de- OSHA’s other manageable standards” resources OSHA’s “judicially [and] Secretary has review, the termining whether that At end of orities.” Id. discretion, that must conduct his we abused Secretary a determination “reached review.10 required is to deal that further problems,” with farmworkers’ op the October III. The Merits is- OSHA to the explicitly “committed] 21 Decision of field sanitation stan- suance a federal 21 decision Secretary’s October 24 months in the event the dard within re- question judicial for a presents novel necessary do not take the action completion Secretary after of view: can Thus, it 18 months.” Id. within the next not rulemaking proceedings, decide reviewing keep in mind in is critical to that safety occupational proposed a promulgate decision, 21 Secretary’s October necessary he standard finds or health evaluating the fun- Secretary’s is court not OSH Act purposes of the to fulfill decision about damental administrative governments solely hope that state in the agency’s his resources how best to allocate equivalent protection within provide will priorities. or to order its case, the new years? In this the next two in already made that decision favor of has reversing he Secretary announced was regulation of farmworkers’ sanita- regula- a not to issue predecessor’s decision needs, on current conditions. tion based of his assessment that own because Rather, reviewing only the court in the record “clear evidence” there was Secretary’s part of the decision second of farm- “unacceptable risks to the health that, particular occupa- a once the need for arising currently inade- workers a has in tional health standard been shown sanitary facilities and quate provision of rulemaking proceeding, the FecLReg. at drinking water.” 42,660. it, be- refuse to nonetheless predecessor’s April reconsidering his In hope that the states desire or cause a a field sanitation stan- not to issue decision regulatory gap. We con- will fill the will all, emphasized that dard at in this review accordance with duct only] the “thoroughly reviewed he had [not opin- II of this forth Part standards set policy in the record ... evidence [but] determination, that ion.11 reasons behind [earlier] against judicial for review presumption presumption for or held court has that This in "conditional-withdrawal- unreviewability apply to abuse discretion does cases which Rather, be- of-proposed-rulemaking” cases. agencies "unreasonably delayed” rulemak have 706(1). appropriateness Chaney that contrary dictates proceedings cause to 5 U.S.C. Secretary’s for Oil, judicial decision Int'l Un review See and Atomic Workers Chemical (D.C.Cir. OSH turns on whether the Zegeer, abuse discretion 768 F.2d ion v. manageable "judicially provides standards" 1985). present Act case has some fea While the review, directly case, proceed we it distinctive for of a also other tures III, inquiry, As we set forth in Part Octo features. is, essentially, conditional ber 21 decision completion proposed rule Judge of a after a concern withdrawal Williams concludes that played major rulemaking. as the October deci role allocating Insofar scarce resources promul explicitly See sion commits decision. prevails gate a certain Conc./Diss.Op. a rule unless condition at 638-40. did not. .It time, decision, types “priorities” within a certain differs from where contrast to discussion, reviewed separate, that this court has inaction own extended received its single only past. precedent is a condi The closest is mentioned this consideration implementation postponement tional in the midst sentence buried promul regulations previously why, although have been discussion of court, prior Chaney, gated, regulation, preferable a decision to federal capriciousness. if the reviewed for arbitrariness issue a federal nonetheless will Mountains, Inc. act. See Council Southern states fail to Donovan, (D.C.Cir.1981) single priorities and (per Except resources, sentence 653 F.2d for the curiam). any general focuses on today We establish the October do Impermissibility Indeed,

A. The Secre- decision, in the October the Sec- tary’s First Two retary emphasized that without “[s]tates Justifications field sanitation standards can draw on their import consider the Secre- We first relationship constituents, closer with their tary’s frequent assertions that “state regu- growers farmworkers, both and and their preferable is of field sanitation lation long experience analogous public with regulation,” terminology repeated federal problems health and enforce separate points in at three his October standards,” appropriate 42,661 added); continued that Id. at (emphasis decision. “[sanitation, many like 42,660 (“further public other see also id. regulation, at issues, level, traditionally primary been a preferably on a state is needed to and local officials.” Id. concern of state protect adequately”). farmers This lan- 42,661. guage open suggest is These to several different but not remarks interpreta- necessarily mutually motivated, exclusive part, October decision tions. Secretary’s concept proper about the roles governments of the federal and state Secretary’s “appro- 1. The about belief system. in our April The earlier 16 deci- priate” relations federal-state explicit sion respect: was even more in this “ ‘Federalism’ concept designed involves a appears argue 21 decision appropriate restore an system balance of re- govern- our American ment, sponsibility regulation in aid of between state & social needs federal government 15,090. “preferable” usually or welfare is to feder- —” regulation al Because in Secretary for two reasons: citizens October the feel stated more in touch or at that he home with their state “continues to believe that state governments or local than with the action ... preferable would be to ... feder- bureaucracy action,” in Washington al we must assume that the Octo- governments generally competent based, more ber decision was at least to some regulate counterpart. than their federal degree, upon particular his “ap- view of altogether point previ- different regulation which was also (cid:127)affect these other areas of OSHA ously prior Secretary April noted, made in the previously all. As we Secretary have regulation preferable decision: that state is enforces sanitation standards for workers Thus, regulation. Secretary’s jurisdiction, new except within his farmworkers. emphasize Thus, choice of what to emphasize and what not to Secretary simply incorporate could from the former budget farmworkers into his overall sanitation telling important, very indeed. More touching without enforcement in other OSHA turnabout nature of the October decision dic- Anticipating areas like toxic chemicals. argument, Judge tates this choice. The decision in October is suggests Williams that farms regardless priorities, of other "inspection are different because of isolated regulate will pre- field sanitation but would still inspector driving farms would consume time regulation. arguments support fer state disproportionate safety pay- and health necessarily this new decision must differ Conc./Diss.Op. argu- off." at 639. But this supporting regu- from those the old one not to fundamentally ment flawed: all, reasoning late at and thus the behind the already regulates farms under other OSH stan- transported decision cannot be wholesale See, e.g„ (1986) dards. 29 C.F.R. 1928.57 decision, uphold though the October even Thus, (safety equipment). of farm field agency’s deference to an on decisions resource Secretary already devotes some resources to understandably allocation is the most comforta- regulation. way farm We no wish to state legal justify upholding ble basis portion what budget, farm agency decision. budget, or overall sanitation should be Moreover, contrary Judge sugges- Williams' devoted to of field sanitation. tion, Conc./Diss.Op. simply his We note that the current never decision, October release never stated that he was forced said in his October nor can we see reason, regulating why to make a "choice" between field he cannot enforce a field sanitation nonfarm, regulating occupational disrupting sanitation standard without nonsani- jurisdiction, hazards within OSHA’s like asbes- tation areas enforcement. The fact remains Indeed, reasonably

tos and toxic chemicals. we cannot read the October 21 deci- gives why no priority indication at all enforcement sion as resource allocation deci- federal field sanitation standard would have to sion. foreign na- 50 Fed. the several States and relations. federal-state prropriate” provide general tions and to wel- Reg. at fare, possible every so to assure far extent, then, that the Octo To working and woman in the Na- man preference, the rests such ber decision working condi- safe healthful beyond the Secretary acted preserve re- and to our human tions Secretary might Although the discretion.12 by authorizing sources ... regulate governments state prefer that occupational mandatory set of Labor to they have because health issues” “public applicable standards safety health of “traditionally primary a concern been affecting interstate com- business officials,” Congress, in and local state merce____ Act, that decided adopting the OSH 651(b) added). (emphasis 29 U.S.C. § in the lead government take federal occupational health. regulating field of regulate that decision to Recognizing its Secretary might towish much the occupational safety However and health at the na- ap he considers to be “an “restore” what of subordinate the role tional level would responsibility field, of between propriate Congress balance in state is he governments,” whereby adopted specific state and federal a mechanism Congress already what to enforce as- governments subsequently bound could state “appropriate balance develop- determined be responsibility sume for further and federal safety between state responsibility workplace of ment and enforcement occupational the field of governments” in after initial issuance and health standards Textile, safety. 18(b) American health and See Secretary. Section the OSH at 101 S.Ct. at 2490. 452 U.S. Act states: short, Secretary may or not withhold which, time, State, Any any desires within his standard issuance development responsibility for assume holds a different because he

jurisdiction occupational enforcement therein of in government’s role of the federal vision relating to safety and health standards role envisioned Con than the this field occupational safety health issue in into law the OSH gress and enacted respect to which a Federal statute. promulgated under section 655 has been plan for shall submit a state of this title explicit most about its own Congress was standards and development of such time had come for that the determination their enforcement. primary government to assume the federal in developing standards responsibility 667(b). 18(c) goes on to Section 29 U.S.C. § safety. occupational health the field of shall of Labor provide that the premised if, on the follow- Act was plan among OSH other approve a state finding: things, plan “will be at least as effec- employ- providing safe and health pur- tive in it to be its declares employment stan- places of through of ment and policy, [as the exercise pose and which among section 655 this title under regulate commerce powers dard] already quoted Secre- disputes have We note that we tary Although colleague our conclu- 12. our See, supra, Part I. factored into in full in this belief in "federalism" 618-619. sion that decision, disagree- Secretary’s Judge is Frankly, he how we do not understand holding the OSH Act particular that under ment with our that view Williams can conclude regula- appropriate role views on appropriate roles of the federal matters, public differ from tion in "public did governments health” in the field Congress’ enacted into own determination Secretary’s not motivate statute, grounds impermissible Sec- agree other concerns While we at all. enforcing decisionmaking the statute. retary’s decision, have contributed Conc./Diss.Op. language the conclusion necessitates own inserting ellipses Judge us for Williams faults played sub- impermissible consideration quoting sentences two of the stantial role. opinion. See III of this id. 618 n. 3. Part issues____” to the same begun cal has in another State where relate[s] added). 667(c) (emphasis legislation U.S.C. inadequate. § allows, Thus, and indeed encour- S.Rep. Cong., § No. 91st 2d Sess. ages,13 charge to take enforce- (1970), Cong. U.S.Code & Admin.News development standards, ment and but in pp. requires a structure the context of Report The House strong- contained even government approve the state language er about the need for federal meeting plan for a national standard. Al- initiatives in regulating occupational safety though 18(a) lets state stay and health: place until there are federal standards in Clearly, the life a worker in one state effect, there is no textual authorization important as a worker’s life in an- whatsoever for the to withhold a state, and uniform standards must simply federal standard because he would required protect all workers from prefer governments to take over the dangerous substances [and conditions]. See U.S.C. § responsibility. 667(a). need, Despite this response obvious legislative The of history the OSH Act is has been minimal. leadership Federal replete Congress explic- with evidence that are necessary change assistance itly considered the issue of federal-state of record inaction. relations and determined that the federal government, within limits of its re- nation, As simply we up have not faced soúrces, must responsibility assume for ini- men, women, to the truth: our and chil- tiating standards in occupational health being dren are needlessly; killed they Reports field. emphasized Both the need maimed, are being injured, disabled and federal, opposed state, regulations job by infected on the largely preventa- workplace. Report The Senate stat- injuries ble and diseases. ed: It is not accurate for oppose those who problem The of assuring safe and health- occupational safety legislation and health workplaces ful working for our men and at the Federal level to state: “We are women importance ranks in with any doing better.” engage the national attention to- well-being ... The every of American day— working man and woman is an essential right human can longer deny. that we no Nor has state proven suffi- H.R.Rep. No. Cong., 91st 2d Sess. need____ cient Moreover, in a (1970). state-by-state approach, the efforts of The same permeated sentiments the floor vigorous more inevitably states are legislation. debates the OSH Senator undermined shortsightedness Cranston, Alan a member of the Subcom- others. The inadequacy anything less mittee Labor that conducted extensive than comprehensive, ap- nationwide hearings country around the on the OSH proach has exemplified by experi- been legislation, stated: ence betanaphthyla- with the chemical The Congress mine—a Nation and the expo- chemical so toxic must rec- any ognize problem sure at all is likely develop- is one of nation- cause the scope, ment of bladder al period cancer over a that it should be a national years. responsibility. Pennsyl- Commonwealth of The hazards which char- vania industry discovered this extreme effect acterize modern are not betanaphylamine use, problem single employer, banned of a single manufacture, storage, holding industry, single jurisdiction. or in that or a State State, production but of this special lethal chemi- interrelationship industry 13. The OSH development Act plans. authorized the See 29 U.S.C. grant Labor to funds to states to aid in their § 672. Thus, that the com- we conclude our workforce mobility of and the protect withholding delaying action foreclosed from oc- require national bine to safety the worker. safety cupational health and the health jurisdiction because he believes within 37,629 (November Cong.Rec. at governments have a “closer rela- that state 1970). tionship than the with constituents” very Indeed, to have been appears there government, or because the states point. on this As one disagreement little experience considerable in confront- have said, bill debate con- the House sponsor of ing “public problems.” health These put the we should “not whether cerned only grounds sufficiently are not broad in the Federal Government resources of occupational apply nature how best to do problem, but work on this Secretary’s jurisdic- standard within (November 38,370 Cong.Rec. at it.” 116 tion, they clearly articu- but conflict Rep. Steig- 23, 1970) (remarks of William short, premises of Steiger-Sikes lated the OSH Act. er).14 sponsor Another respon- not abdicate the the theme: bill reiterated him, sibility entrusted to that we I not one who believes am because he differs with allocation Federal Government inject the should responsibility encapsulated in activity serious federal-state any area of without into However, we all the effects. Act. Insofar as the state- thought to talking a field where corrective about of field ment that “state sanita- steps legislation or constructive have preferable regulation” to federal of hands the States. We been left the particular a reliance on his vision reflects solving regulation is find that State issuing as a of “federalism” reason growing it is ... problem, the and now, hold farmworker standard we the Congress already has enacted The ... the October decision ex- this basis for for a of the more safety programs few scope of discre- ceeded of occupations. plight The hazardous Act. tion under the OSH important just is as and other workers In group. encompasses a much broader workers on small 2. Concern for fact, increasingly clear that the haz- it is farms in- the modern ards which characterize regulation of problems single finding of a In state field sanita- dustry are not industry, single or a single “preferable” to a federal field sanita- employer, tion safety standard, Secretary of relied on other State. health are a national concern. As a worker to his beliefs addition considerations result, Johnson Presi- both President relations. appropriate federal-state about urged enactment of a dent Nixon have justification put forth for the Sec- Another to meet the to- comprehensive program issue federal retary’s decision not to occupational safety and tal range of years was based for at least two standard requirements. against Congress’ express prohibition regulating farms or Sikes) 38,703-04 (remarks Rep. Id. at of appears to added).15 workers.16 The fewer (emphasis 38,374 (remarks Yarborough); comment, referring id. at Rep. Steiger of Sen. 345 (remarks 38,387-88 Cohelan); Rep. id. at among legislators dispute over whether 38,389 (re- (remarks Rep. Gaydos); id. at authority delegat- standard-setting should 38,392 (re- Annunzio); Labor, Rep. id. at "indepen- marks or to an ed to the 38,709 Karth); (remarks Rep. id. marks Rep. modeled after other federal dent commission" Helstoski). ICC, SEC. like the FCC commissions legislation All of the OSH contained versions appro- years, several 16. In the last 36,519. provision. Cong.Rec. at See 116 §a budget annual priating for OSHA’s funds the funds key “none of by a condition that members attached appropriated For statements expended federal, obligated opposed shall be or Congress state, ... issue, as need administer, 37,- see, prescribe, or enforce Cong.Rec. regulation, e.g., prohibition as rely on employers affirmative while regulated OSHA larger give year a two reason the states mora- employers, adoption ... because of a feder- regulation torium on federal farms of al standard would preempt state argues He whatever size. because of farms of over ten employees except in is imposed “no such limitation on the plans, states with state the actual effect of protected ... fewer farmworkers would be might federal standard be to discour- under a federal age standard than could be new states adopting protected by state standards.” 50 Fed. to discourage active enforcement of 42,661 added). Reg. (emphasis standards, existing While even for those farms true, literally this statement is it is also with ten or fewer workers.” Respondents’ misleading and its relevance True, to the October Brief at 21.17 the October decision delay 21 decision is so itself is ambiguous a bit the precise remote as border on the nonexistent. preemption by envisioned Nonetheless, Secretary.18 because ear- Judge posits Williams that the lier, more extreme of preemption notion erroneously promulgation believed the erroneous,19 undoubtedly later, and the proposed standard would more limited of preemption view clearly preempt of field sanitation correct, enumerated the brief is pre- we even as to farms with 10 fewer workers. give fer to the benefit of the Cone./Diss.Op. at 640-641. If such ambiguity and assume that the October true, promulgation belief were of a adopts decision preemption the correct the- might federal standard actually reduce ory. wrong, If we are there indisputably overall number of workers covered no rational basis for his grounded standard, field sanitation since in concern over regulation. small farm wipe existing out regulations, some And if we right, preemption argu- of which cover farms with under 11 work- ment still rationally cannot advance the previous ers. The inwas fact so October decision issuance. misinformed, as revealed We, decision. 50 decision, how- terms, its own ever, do not conclude that the new Secre- makes the fate of a federal standard de- tary’s 21 October decision similarly pend upon “pro- whether or states in misconceived error. In his brief before vide protection equivalent to the federal court, this Secretary clearly rejects field proposed sanitation standard in 1984 (49 extreme view of 7589).” a federal 42,661. standard’s Fed.Reg. FR 50 The preemptive effect and standard, offers an proposed however, instead applies only theory why congressional alternate to farms with more than 10 workers. See regulation ban on OSHA of 10-and-under Fed.Reg. Hence, 49 at 7604. regula- state relevant, is farms on based a much more tion will be considered equivalent to afford preemptive theory: limited protection “While the “preclude” so as to a federal might states theoretically regulate small standard even if regu- all states choose to standard, rule, regulation, or order under the 18. The October notice states that "a federal stan- Occupational Safety and Health Act of 1970 preempt dard would all state standards in states applicable any person which is who en- is approved programs that do not have OSHA state gaged farming operation in a which does not health, occupational safety for including temporary camp employs maintain a labor standards, Texas’, state like that be more people." E.g., ten or fewer 99 Stat. protective proposed than the federal standard.” (1985). 42,661. Fed.Reg. Because this sentence interpreted referring can as to either of the Appendix 17. See also (April Joint 50at theories, preemption alternative it is an insuffi- Acting Secretary statement of Assistant for inferring incorporated cient basis for our that it during congressional hearings OSHA on field theory the erroneous contained in the de- sanitation) (“it is true that the states would be cision. regulate free in case to field sanitation on prohibited small farms where OSHA is coverage”). 19. Conc./Diss.Op. at 640-41. when, given judgment, his actually own 10 workers. more than only farms with late terms, then, deci- the October to be authority its own needs exercised By encourage motivation to provides no when, sion Thus, employees jurisdiction. his farms. regulation 10-and-under here, Secretary has determined that as regulation affecting the need exists But, basically, if the even more jurisdiction, is within his it not an workers regulation of smaller of state prospect adequate regula- one, postpone reason to we still would a reasonable farms was regulation permissible encourage basis for Secre it a tion in order to find argument is made tary’s decision.20 The Congress expressly employees has seeking Secretary justified authority.22 of his placed outside the through persuasion for protection possible, of farmworkers greatest number Expectation state action withholding by do if he has to so even power provide appears it his also protection is within jurisdict under his those farmworkers hope have motivated fervent been disagree. do not think the We ion.21 We in the near future achieve the states would Secretary may gamble with the health equivalent to field sanitation safety individuals whose welfare of those standard, thereby proposed hope Congress in the to him entrusted “preclud[ing] a need for federal action.” over those can wield his influence that he Congress specifically placed individuals thought he identified a trend: Presumably jurisdiction. beyond legal his ini- have Many states shown considerable removing Congress had own reason for regulating ag- tiative sanitation farms from the 10-and-under Currently, fields. ricultural retaining authority to while his jurisdiction, Of have field sanitation standards. employ regulate those farms with over states, issued their stan- these five have was, it that reason flouts ees. Whatever years. few Anoth- dards within the last congressional intent to allow the process er are in the of devel- two states prohibition authority as a use oping authority comparable he was standards. reason not to exercise the Indeed, regulation. Congress poses why If had did of federal is obvious promulgation proposed safety not condition the of on-the-farm wanted regulate "unified, standard on the states’ failure to be in a coordinat- conducted farmworkers, including field sanitation for all (but want- under no circumstances ed” manner farms, those 10-or-under within 18 months. regulating government small ed the federal so, he have If the had done farms), prohibited easily could have rider, attempt- openly congressional violated regulating all farms. But the indirectly not direct- do what he could do to Congress evidently federal aware that the ly- safety occupational regulation of health and with more than workers risks on farms Conc.Diss.Op. at necessary might prove sufficiently to warrant colleague surprise that our regula- 22. We must confess dividing categories into for farms two ]”; “baffling[ seems Moreover, finds this conclusion tory purposes. the value of unified Conc./Diss.Op. straightforward quite us. See to only regulation subordinat- on the state level pro- suspect his bewilderment n. 4. We at 638 ceeds from mistaken ed, regulate eliminated: if states wish not premise con- a about the single large a stan- and small farms under both dard, Judge gressional Williams finds that the rider. they Act. the § can do so under prohibition strongly "congressional colors this Secretary permit- Finally, were ever even if the regulation large both and case” because "the safety of gamble with the health ted to unified, coordi- small farms can be done a jurisdiction his secure workers within only if the it.” Id. at- nated basis states do judgment regulation his through what in state (emphasis original). While that statement masse, the greater en benefits would be even true, obviously equally it is obvious that particularly a made it case circumstances adopting the rider subordinated explain wager, in Part we for reasons foolish "unified, regulation of value of coordinated” III.B. large both small farms to the value categories pur- dividing for the farms into two 42,661 (citations FecLReg. specific occupational safety health, if, except as omitted). Additionally, he states noted the mechanism set forth in § existing the 13 state standards cover- that states lost their role traditional in this field. at least farmworkers that 37,361 ed 75% (remarks Saxbe); Id. at of Sen. id. protected by proposed federal 38,376 would be (remarks Cohelon). Rep. two-year The additional standard. Id. de- Moreover, Congreso El II’s reference to resting lay be seen as can thus implementation the eventual of a field sani- months, expectation that within another 18 tation can be supporting standard read as action, a of additional as result state position. enough farmworkers be covered But there does exist a reasonable alter- adequate regulation state that the need for interpretation native allowing the Secre- longer a federal standard would no exist. tary adequacy to consider the present or court, then, The issue for this is whether even regulation imminent state aas rele- Secretary may permissibly defer determining vant factor in need a promulgation acknowledgedly of an needed granting federal standard. the Secre- occupational safety or health standard on tary authority or decide whether not hope expectation or even that par- federal standard on a provide may equivalent protection issue, Congress ticular meant the Secretary period. defined ques- within certain This proposed consider the need for regu- tion is without difficulty. Certainly lation, and adequacy of state regulation that, argument reasonable can be made logical can be viewed as a factor that Act, Secretary under the OSH once the every need assessment.23 If farmworker that regulation determined the need for protected by proposed who would be exists the states have not ade- federal field sanitation were cov- quately up addressed this need protective equally ered at the time, present he ready withhold a level, local then the federal hopes they can reasonably could conclude that there was pushed Rather, to do so in the future. no need for standard and could requires the Act to take the legitimately decline to Similarly, issue it. initiative, leaving the states proceed un- if the had a reasonable basis for they der 18 if responsi- choose assume § concluding within reasonably short bility. period of virtually time all farmworkers There support is considerable for this protected by who would be proposed interpretation legislative in the history. equiva- field sanitation standard would be Williams, Senator Chairman the Sen- protected by lently regulation, then ate Committee on Labor and Public Wel- permissibly pro- could defer principal fare and a legisla- author of the mulgation of the federal standard for that tion, enforcing talked about states period. short own standards absence merely period.” “in the Given uncertainty interim some as Con Cong.Rec. gress’ point, And leg- give several intent on the we spoke allowing islators states to the benefit of the doubt. Chev “regain” or jurisdiction “re-establish” over ron U.S.A. Inc. Natural Resources De- Indeed, member, ply submitting plan one House Committee who a State of actively participated the in effort to reach a Hopefully, throughout Labor. all the States compromise between the bill Committee country plans submit the will immedi- substitute, Steiger-Sikes the used the existence ately so the ... that Federal Government will of suggest every the to § 18 mechanism that if area, get have into to the and states can quickly plan state approval submitted a that met the jurisdiction to in still continue exercise Secretary, then there would be important matter. pursue no need to federal enforcement: 38,383 (remarks Rep. Hathaway). Id. at provision We do have a ... to allow the States jurisdiction by assume over matter sim-

631 contexts, have in other OSHA we Council, 837, 104 we said S.Ct. 467 U.S. fense delays upon favorably as do not look (1984). In contrast 81 L.Ed.2d health is at stake.” Inter decision, “where human for grounds the October other two Automobile, Union, national United existing or adequacy that we find Aerospace Agricultural & Workers permissible regulation is a imminent state Donovan, America, UAW v. 756 F.2d Act. The under the OSH consideration also (D.C.Cir.1985); see Public Citizen in this case whether then becomes question Auchter, Group Health Research in reasonably delaying Secretary acted (D.C.Cir.1983) (“Delays F.2d on this basis. standard the federal in might altogether reasonable that be the Two B. Unreasonableness less to sphere of economic Delay Year stake.”). lives are at lerable when human “ju us with provides OSH Act determining Finally, the Sec- whether manageable apply dicially standards” retary adequate had reasons based to consid Secretary’s limited discretion determining enough for that states record state action equivalent time, er the likelihood a we act within reasonable a delaying needed justification as for a than ratio- look further his own need no First, determining standard. nale, requires for Act him to state the “enough” be workers would cover whether issue or not for his determination to basis regula anticipated state present ed by rulemaking. a after to issue standard action, for federal the need 655(e). case, rely tion to forestall In this he did 29 U.S.C. § provided has the clear standard currently that a number fact regulation for all standards, nationwide uniform had had several of which jurisdiction.24 OSHA’s We workers within years,” the last issued within “few been say today far as to go so “pro- need not were in the and another few states coverage necessary, certainly however, is If, but passing similar ones. 100% cess” mark to that must come close participation the states group of states whose a federal to withhold permit the necessary coverage sufficient to make addressing process what begun promul- standard had neither “unacceptable called risks pre- himself nor gating adequate rules shown particular so, class of workers health” of doing the Secre- disposition then toward Indeed, as the Oc jurisdiction. within federal stan- tary’s postpone states, “the being itself unless vast tober decision indeed be vulnerable dard would working “arbitrary capricious” in the majority of hand laborers struck under presently are not covered who field standard. protected” will new be

state standards, find we against Tested these must regulation, a reasoned one. Secretary’s decision issue. 50 delay a field thing, decision to For one again un- yet appears Second, determining how much sanitation standard prolonged delay reasonable, light of the legisla- and its reasonable in Act OSH A case. already occurred in this speed achiev- that has history indicated that tive for pending has been para- proposed for ing protection workers and, conducting several after a decade Congress.25 And as over importance to mount safety stan- set health and ... up goal of evident need itself "safe 24. The statute set See, e.g., "every working workers.” man American conditions” dards healthful 23, 1970) (re- 38,393 (November U.S.C. Cong.Rec. in the Nation.” 29 and woman added). says Report Broomfield) added). (emphasis (emphasis The House Rep. marks of impor- one state is life of the worker in "[t]he tant as a Rep. state,” H.R. worker’s life in another by Sen- explanation of this sentiment For an single suggesting if a No. 1291 Williams, principal Chairman ate Committee adequately, protect neglects to its workers see, e.g., legislation, of the OSH author appropriate. federal standard then a 37,325-27. Cong.Rec. at legislators also reiterated "this self- Individual proceedings, has rulemaking 47,661; standards. 50 Fed.Reg. at that, acknowledged regardless of Respondents’ himself Brief at 20 n. 8. But this government priorities, the federal hardly enough was justify expecta- hurry up the states do not must act if tion that within one a half years, any- legislative Act so. OSH and its do The thing approaching a majority of the remain- action; speedy, history emphasize national states, previous which had shown no emphasis reconcile that with an it hard to sanitation, interest in field would act “to year delay in additional two these circum- assure that the vast majority of hand labor- stances. working ers in the presently field who are by pro- not covered state standards will be case, recapitulate, In this the Secre- by regulation equivalent pro- tected” to the tary petition for a field received sanita- posed federal Fed.Reg. standard. at September tion standard 1972. Further- Secretary’s expectation The other- more, officially 42.662. acknowl- will-of-the-wisp was wise at best. edged long the need the standard as April recently as ago as as Octo- argument can Nor we credit the that his yardstick, Under any ber 1985. the state regulation “threat” would governments already ample had oppor- had prompt enough states into action meet tunity develop own their field sanitation goal. his announced can What threat there by 1985. In the standards absence a preemptive be in federal standard to in- any extraordinary developments, new a laggard regulate? duce state to If it year delay another two was unreasonable. standard, does less than the federal it will any find no mention or We evidence such preempted anyway. be If it is anxious to extraordinary developments justify more, why long? do has it waited so In- Secretary’s optimism significant about new deed, hindsight supports our conclusion state action the near future.26 Secretary’s that the expectation was unrea- sonable at the time he Conversely, Secretary’s “expecta- made his decision. adequate As tion” that had would November states indi- basis, they materialize within 18 months had no cated that did not tell, develop so far as can in the we record. As the intend field sanitation standards. states, (Novem- October notice itself Respondents’ time of Letter to This Court decision, many 1986). Secretary’s as ber According 25% estimates, the farmworkers Secretary’s jur- within the own these states alone contain by any isdiction were covered field sani- farmworkers within the 9% Secre- standard,27 jurisdiction. tation and of the tary’s 37 states with- Id. unreasonable- regulation, only out pro- original expecta- two were ness the Secretary’s developing cess of own proved standards. 50 tions has out: state can- 42,661. Fed.Reg. That goal means that 35 not meet of “as- given they surfing] states had no majority indication vast farm- [of moving. only were interested in possi- presently who are not covered workers] encouragement ble had will protected.” be Id. at years, decision, however, fact within the last four Our five is not 42.662. based adopted hindsight states had their own field sanita- but rather on the total Judge simply ignores impor- Williams incorporates ly the number of farmworkers already longstanding tance of the in this 10- and-under farms which outside assessing case in reasonableness Octo- jurisdiction. Secretary's See 50 ber decision. 15,092. (25%) Again, up to one-fourth of all Secretary’s jurisdiction farmworkers within the Judge Williams field unprotect- protection are still who receive sanitation standard "could at best increase cov- regulation. byed field sanitation In October erage by an 4% to additional 9%.” Conc./Diss. acknowledged himself that this numbers, Op. at 639. But these taken from the very large represents "a number of workers.” 50 decision, percentage refer to the of all Fed.Reg. at newly covered farmworkers who would Thus, improper- figure the federal standard. to be issued forthwith. In sanitation rules in the record on inadequacy of the evidence view, Labor’s my the October deci- support the to 21, delay to the proposed 1985 decision issuance of delay the promulgation to sion years for an additional two vio- for another two standards sanitation standards field agreement settlement be- lated the 1982 years. parties. tween the Conclusion 16, 1982, the district court en- July On Steed, F.2d In Public Citizen agreement in the Case No. tered settlement (D.C.Cir.1984), context of a 98, 105 the “[i]n 85-1176, predecessor to this case involv- a and enforce year gap twixt law thirteen parties the same issue. ing the same and hard ment,” “it is to we observed agreement n. The See ante at performance sorry a imagine a more would make a provided that carried than that congressional mandate complete to a field sanita- good faith effort predecessors.” its Un- by NHTSA and out (February 31 months tion standard within stranger than fortunately, is often truth 1985) plaintiffs would and that have case, years farm- fantasy. In this prepared in documents access to OSHA petition- unsuccessfully have been workers development connection with provide to Labor Department addition, agreement stat- standard. equivalent to those sanitation standards ed as follows: government under the the federal which agree complete to final and Plaintiffs guaranteed to all other work- Act has OSH a of this action when field sani- dismissal jus- jurisdiction. ers promulgated, or when tation standard to for the latest decision tification publish determination un- Defendants a (1) particular his a reflected combination Occupational Safety and der Health “federalism,” categorical- a vision vision seq., Act of 29 U.S.C. 651 et not originally by Congress when it ly rejected promulgate a field sanitation stan- Act, (2) misplaced con- a passed OSH dard____ any Plaintiffs reserve and all Congress has cern for farmworkers challenge rights ... (3) an jurisdiction, his and removed from a standard. hope that unsupported unrealistic agreement thus contem- settlement move, suddenly en governments would, within plated that the Thus, masse, need. the Secre- to fill the prescribed, commit one of frame time authori- tary has exceeded issuing action: two courses of contrary relying acted law ty and adopt final decision not to making or (2), (1) delayed agency action un- plaintiffs assured the This standard. (3). reasonably Because 5 relying or, sought the full relief obtaining either 706(1) reviewing directs U.S.C. § “[t]he least, judicial review. prompt What unlawfully “compel action court” agree- clearly foreclosed under unreasonably delayed,” we or now withheld delay by further Secre- ment was Secretary to issue the federal order the issuing a standard decid- standard, tary either he has ad- field sanitation ing not issue standard. necessary for the health safe- mitted farmworkers, days from the ty within 30 months after the two On of this mandate. issuance agreement, the settlement deadline under so It is ordered. his “final” decision Secretary published field standards. adopt any sanitation WILL, concurring. Judge, Senior District subject of a new became This decision 85-1349, filed on challenge, No. June court Judge Wald’s ex- fully I concur Chief settle- In accordance only opinion. separately I cellent write agreement, of which terms ment additional out what I believe is an point satisfied, apparently had ordering the field compelling ground for case, the original Secretary’s court No. dismissed 85- the 1985 conduct is July on as of viewed a breach or merely contract long another in a arbitrary series of and if point, At the had not this capricious tactics, delaying and whether it changed course decided to forestall in good Machiavellian, was faith the an agency action for final additional two obvious result to deprive plaintiffs the finally years, the farmworkers would have of of rights both under the settlement judicial they determination had secured agreement and to further delay the is- given pursuing since 1978. And been suance of uniform only massive, indicating uncontradicted record group of protected workers not by such inadequacy existing of field condi- standards. The Secretary’s conduct was tions, of history which is canvassed in particularly egregious since the admittedly Judge opinion, Chief the farmwork- Wald’s unsanitary conditions continue adversely had, minimum, very good at a a chance ers only affect not the farmworkers but all of success. agricultural consumers products of handled 21, 1985, however, the On October new by the farmworkers. Labor, making findings while viewed, So this is case not about adminis- necessity documenting the for field sanita- Rather, trative inaction at all. it is about standards, delay issued his tion decision agency taking an steps affirmative promulgation of standard for two more performance legal of its years, during time the duties while states were to evading judicial compel- review. A given the more opportunity develop ling judicial case for equal intervention diffi- proposed standards at least is imagine. cult to primary national standard. Since the rea- son the enactment of the OSH Act and WILLIAMS, Judge, Circuit concurring provisions for uniform national stan- dissenting: inaction, dards was state it cannot have surprised only six states Moved compelling evidence standards, adopted some which fall be- farmworkers, plight many majority proposed minimum, low the a substantial speeds to their rescue. In so doing at- action, number states took no and 12 tempts what courts are least suited do: they others indicated no have intention of to allocate the resources of administra- adopting any standards. agency. Differing tive issues, on several I separately. write

The Secretary’s October decision had the vacating effect April decision; ac- agree I majority with the that Heckler v. 85-1349, cordingly, Case No. the action for Chaney, 470 U.S. 105 S.Ct. decision, review of the was mooted (1985), L.Ed.2d 714 does bar review. I before, and dismissed. As the farmwork- separately point only write on this because compelled case, ers were file new I find path slight- toward reconciliation present time the action for review of the But, ly more difficult. scope where of re- October decision. The October decision stake, is view at nuance all. Justice had the further effect placing the Secre- Frankfurter noted in Universal Camera tary in default of agree- the settlement Board, Corp. v. National Labor Relations judicial review, ment. prompt Instead of 474, 487, 456, 463, 340 U.S. S.Ct. posi- which was the farmworkers' fall-back (1951), L.Ed. 456 in the Taft- tion agreement, under the settlement the Hartley expressed had Act “mood” on left, farmworkers again, were once review, may say one more neither of the they alternatives to which generally always that such issues are ones were entitled. in which the court strives to achieve certainly get farmworkers I did correct mood. believe the mood com- bargain the benefit of they pelled by Chaney slightly entered into more defer- under the agreement. settlement majority suggests, particu- Whether ential than majority the one discounted. decision Part larly in review alleged discretion. III considers the abuse discre- for abuse of in the delay. review, I myself find Once we undertake Finally, impact Part addresses the IV majority. complete odds with at almost agree- dispute of settlement an earlier law, majority reviewing for errors parties. ment between the general- Secretary relied finds that the preference for state incon- ized agree statute. While I sistent with Nonpromulgation I. Review of law, be an that such reliance would error Chaney Rules After fairly said I cannot be believe the Chaney capital In persons condemned concluding In that he to have so relied. injection requested punishment by lethal has, agency language majority wrests Drug the Food and Administration in order to obscure the Sec- out context (“FDA”) to take enforcement action retary’s effort reconcile well-intentioned against drugs question. in The FDA adequate working an his duties to assure found the decision refused the Court for farmworkers and others environment agency “committed to discretion be law” Congress’s express jurisdic- denial of thus, 701(a)(2), under 5 U.S.C. unre- employing fewer than tion over farms apply. viewable want of law In however, Oddly enough, the ma- workers. reaching presump- that result it invoked a Secretary’s genuine

jority er- discounts against judicial tion review of ad hoc en- understanding mistaken ror law—his steps. forcement of a field preemptive effect sanitation standard. Chaney directly applicable; is not expressly Court there noted that case Second, majority finds an abuse question of agency did not “involve the agency’s decision to with- discretion in the rulemaking pro- discretion not to invoke in regulation temporarily hold ceedings.” n. 470 U.S. at 825 S.Ct. state action. Here the effort to induce n. 2. inaction at 1652 The form of here—a may majority that the concedes aimed promoting adequacy of state consider the the need for federal in order eliminate act, and, determining implicit- in whether to presents reviewability quite issues ly, employ device that he of threat- action— similar Chaney’s in finessed foot- those if, regulations ening impose federal Nonetheless, principles an- note.1 period stays he within the for which in a considerable Chaney nounced cast hand, respond adequately. the states fail to case. present shadow over the improp- majority But the finds his decision case. The defect in er the facts of this arriving negative presumption, at its analysis lies in its majority’s failure on three fea- Chaney the Court relied reach whether the health key issue: First, decisions. tures of nonenforcement action farm- benefits from immediate agency usually require ex- such decisions greater or less than the health workers are setting priorities pertise and coordination may be achieved use of the benefits that use of resources. See id. at for the scarce tactics, arising pressure including benefits Second, 831-32, they 1655-56. S.Ct. at deployment of his en- from the agency’s decision not to usually involve the workplaces. resources forcement an indi- power “exercise its over coercive rights.” liberty property Id. opinion explores appro- I vidual’s

Part of this (emphasis origi- light in the S.Ct. at priate scope of review of Cha- Third, nal). prosecutorial they are akin to errors ney. Part II considers asserted law, indict. Id. erroneously by decisions the one found both is, identify essary problem and to to assess the between the 1. The salient distinction two page, noted that here remedial rules. suitable infra already most of the nec- has invested resources element, allocation, Supporting analysis first resource is the Court’s clearly garden-variety both to the relevant distinction agency of cases where an “has rulemaking proceed- not to initiate ‘consciously expressly adopted gener- Here, present how- ings and to the case. policy’ al so extreme as to amount to ever, simple the issue differs from noniniti- statutory responsibili- an abdication its rulemaking that the ation ties.” 470 U.S. n. at 833 105 S.Ct. at already resources to in- committed presum- n. 4. Such abdications would working quiry into farm conditions and and, ably infrequent they when oc- Thus, regulation. advisability of as in Mo- curred, present legal issues of inter- Ass’n tor v. State Vehicles Manufacturers pretation rarely typical seen in the fact-in- Co., 463 Mutual Insurance U.S. Farm against tensive decision enforcement. (1983), 77 L.Ed.2d 443 103 S.Ct. prosecutorial appears Thus it that the dis- rulemaking conducted where analogy (apart cretion from recapitula- culminating in of a proceedings withdrawal Chaney’s factors) first two does not rule, prior judicial intervention involves a forcefully apply to a decision not to initiate relatively slight agency’s intrusion into the (or rulemaking act as has rulemaking agenda. promul- Affirmative here). however, gation, obviously will en- require Moreover, resources, under the Administrative forcement and the choice of allo- Pro- farm, (“APA”) cating opposed them to to cedure Act refusal of petition to workplaces, Chaney is a other resource-al- rulemaking provides initiate a focus for large. location issue writ judicial present review not in conventional In distinguishing nonenforcement cases. element, The second non-use of the nonenforcement, action enforcement power against coercive state’s citizen’s Chaney the Court in noted that “when an property, or liberty also relevant both to enforce, agency does act to that action conventional decisions to initiate rule- provides judicial review,” itself a focus for making proceedings and to present allowing As in Chaney, case. inac- a court “at least ... to determine acting tion here will leave the agency state not whether the exceeded statutory its against liberty property rights or of 832, powers.” Chaney, 470 U.S. at 105 citizens. (emphasis in original). S.Ct. 1656 element, third analogy prose- provides Here the APA a similar focal discretion, appears distinguish cutorial point. requires every agency provide It from Chaney. Chaney case opportunities “petition issuance, for the identify Court does not the characteristics amendment, rule,” or repeal of a 5 U.S.C. by prosecutorial shared discretion and 553(e) (1982), give and to notice of denial § (other agency nonenforcement than two applications petitions or and “a brief previously mentioned), elements but two denial,” grounds statement of the id. First, such leap characteristics to mind. 555(e). The combination of these re- prosecutors agencies typically have to quirements suggests legislative expecta- make innumerable decisions not to enforce agencies declining either to initi- Second, or to seek indictment. each such rulemaking, delaying promul- ate or final fact-rich, typically very requir- gation here, theory alleged the sort of ing deep involvement the details of the processes. thought must reveal their That legal individual case issue and little expectation suggests in turn that courts contrast, analysis. By decisions ini- not to may review such determinations for errors rulemaking likely tiate are less fre- law. quent and likely more to turn on the sum, I find noninstitution of a rule- agency’s authority. defi- Almost nition, making distinguishable making, negative, rule or from nonenforce- entails consideration tend likely of broad issues that ment decisions former become, (2) (1) upon, frequent, typically to turn issues of law. be less more

637 (and adopt any though even therefore whole fraught legal analysis (3) error), [rulemaking] process characteristi- has legal been exhausted.” potential justification public accompanied by Congress Hispanic cally National American 1196, I believe that Cha- APA. Thus 554 Usery, under the v. F.2d Citizens prior decisions allow- But, overturn ney (D.C.Cir.1977). by reading does not the Secre- initi- not to decisions review commitment to issue a tary’s standard if inference, and, deci- rulemakings ate adequate steps states do not take made sort the sions regulate the area as an commit- absolute here. allocating federal resources to this ment 11, problem, Maj.Op. see at 623-624 n. however, empha- cases, rightly have Our majority sidesteps precisely point degree deference to which high sized the judicial restraint: that counsels rulemaking is enti- to initiate a decision not use re- effectiveness of Communications, tled, Inc. see ITT World expense in this area comes at the (D.C.Cir. sources FCC, F.2d 1245-46 v. using his not those resources 1983), 466 U.S. of grounds, on other rev’d (1984); acquiring grasp L.Ed.2d 480 Without a solid areas. S.Ct. potential Bureau uses Drivers Council v. alternative Professional 706 F.2d Safety, required Motor Carrier resources that will be for enforce- (D.C.Cir.1983), such a refusal and that regulations, ment of the farmworker no “only in the rarest and is to be overturned intelligently weigh the court can issue. circumstances,” compelling most aspect To hold that this of the decision is WWHT, FCC, F.2d Inc. utterly beyond judicial tempting; review is interventions, (D.C.Cir.1981). judicial Such is, however, unnecessary it to decision of observed, plain “primarily we have involve long the case. So as we bear mind the law, suggesting that the errors of decision, is clear no nature that delegat- has been source of its blind ascertainable abuse of discretion judicially power.” ed Mutual Automo- State Farm exists. Department bile Insurance Co. (D.C. Transportation, F.2d 221 680 Cir.1982), II. Errors grounds, 463 vacated on other of Law 443 103 S.Ct. 77 L.Ed.2d U.S. Regulation A. State Preference for (1983). II.A(1) quarrel I have no with Part open This leaves review opinion simply majority insofar as it con- Secretary’s delay promul- discretion to may that cludes gating field sanitation standard in the of field sanitation standards promulgation hope encouraging action. Ma- state he thinks that farmworkers because for jority Opinion (“Maj.Op.”) at This regulation generally preferable state precisely discretion involves exercise of regulation. occupa- area of federal by the resource-allocation issue identified safety, Congress health and obvious- tional Chaney presuming as a reason Court ly decided otherwise. But unreviewability question whether —the reasoning in fact narrower. He far gains from enforcement will OSHA responded practical way in a merely Secretary’s strategy by maximized regard to operating with special factors This court has majority. or that of the farmworkers, notably Congress’s de- most recognized Secretary’s discre- explicitly regula- federal absolutely to cision “priorities the various tion set between forbid 11 workers.2 fewer than tion of farms with occupations may require that standards” Confining footnote a discussion Secretary’s right to a and “the refuse maintaining applicable to farms not appropriating order” bills or 2. Annual riders attached to prevent camps employing temporary from ten funds spending any money ister, OSHA labor issue, (1985). "prescribe, E.g., admin- Stat. 1106 workers. 99 fewer standard, rule, regulation, or enforce surgery by majority strongly verbal tion colors the case. The vast reasoning,3 majority travestied the I of farmworkers work on small pass points directly Secretary in that only farms regulate. comparing Moreover, federal with made in regulation fact state both large of field action the context sanitation small unified, farms can be done aon coor- only rules. dinated basis if the states do it.4 Thus, congressional a deliberate restriction Congress’s ten-and-under restriction. authority distinguishes of OSHA farm- Secretary correctly identified a circum- regulation safety worker and health complicates regulation stance regulation of all other industries. opposed to of farms worksites: Congress’s determination that OSHA not Release resources. The Secre- offederal regulate employing farms ten or tary argued fewer also reg- that reliance on state See, e.g., ulation, workers. Stat. in an area where states had (1985); 42,660, Fed.Reg. 42,661 (Oct. 21, already active, been extremely would free 1985); Fed.Reg. 15,086, 15,088 (Apr. 16, combating federal resources use in oth- 1985). 42,661; estimated such er Fed.Reg. hazards. 50 at 50 Fed. 15,087-90. employ approximately found, farms Reg. 64% He and no one 42,661. Fed.Reg. hand disputes laborers. point, states, Be- that 13 encom- lieving of large passing approximately of all person 75% preempt farms years expended agricultural production, farms, small he pro- concluded that federal already adopted had their own field sanita- mulgation re- actually standard would 42,661. Fed.Reg. standards. duce total farmworker coverage (including relatively energetic This activity se- farms). large those on both and small 50 verely possible limited the maximum in- II.B, explain In Part I protection crease that a federal standard why I he committed an supply. Indeed, believe error of law could in his point. quite apart on this But from any not to at all esti- congressional preemption, prohibi- such again mated —and the estimate is dis- example, Secretary's 3. For as evidence of the employed OSHA’s resources better on other purported reshape motivation to appropriately the state-feder- issues more handled an undif- relationship personal liking, al to majori- ferentiating Id.) his the Basically, federal standard. ty reproduces, Maj.Op. Secretary argued at a sentence of the in favor of state critical, Secretary stripped qualifying its particular because factors in involved sentence, ellipses replaced words. full The with such case are that state would lead to language (emphasized), comprehensive actual protec- most and effective However, Secretary workers, reads as follows: contin- including of the Nation’s farmworkers, responsive ues to believe that state action to irrespective type all of of the to, preferable 42,660 they need would be E.g., and more Fed.Reg. of farm work on. 50 effective 42,660, 42,660 (Oct. 1985); 15,086 Fed.Reg. than action.” federal 50 Fed.Reg. (Apr. 50 21, 1985) (Oct. (emphasis 1985); added pp. to reflect omis- see 638-640. That the Secre- infra majority opinion). orphaned sions tary provide in Another relied on his desire to the best workers, appearing page major- possible clause coverage same to all a ity opinion (with following general preference regulation, is the the omitted state evi- language emphasized): by his restored "‘Federal- denced commitment a concept designed ism’ a federal standard do involves to restore an if not take ade- action, 42,660, quate appropriate responsibility Fed.Reg. balance between at and his government appro- state & that appropriately statements priate only deference to the states and is applied acting protect where states in those instances where states are al- workers, 15,090. ready Fed.Reg. taking charge their police respon- at power 15,086, 15,090 Fed.Reg. (Apr. sibilities.” 50 1985) (emphasis majority bafflingly Congress’s added to reflect omissions in 4. The finds that majority (The opinion). passage goes prohibition prevents on to note under-11 congressional that because of considering limitations on from welfare of workers on authority III, many Maj.Op. OSHA’s states can such farms. infra, reach more at 629. Part de- workers, adopt velops regulations majority’s that states inferring can error better in such con- gressional variety suited to the wide indifference to conditions found the welfare of two- throughout on farms thirds of the country, nation's farm and that workers. April. at said all this in standard could puted —that very he noted that “OSHA has coverage by of farmworkers increase best limited resources it has enforcement Fed.Reg. additional 9%.5 an 4% protecting primarily devoted workers 15,092. life-threatening injuries from and illness- congressional con- activity As 42,661. es.” 50 He also ob- possible diminished the maximum straints policy that the reasons served behind the secure, intervention could gain that federal April decision included “the severe limita- compared mod- Secretary naturally that resources, tions on OSHA’s OSHA’s other in re- gain with the cost enforcement est priorities, and appropriateness of state (and gains thus the health sources (em- protect action to farmworkers.” Id. of those resources elsewhere deployment added). he phasis Two sentences later achieve). April con- might His said, rea- rejecting policy “While not (a he the issue consideration that sidered April 16 sons set in the determina- forth October, explained renewed explicitly tion, finds now that a differ- below), length and described at some give proper ent balance must be struck possible regulation might save areas where posed.” weight risks Id. scale: on a an asbestos lives substantial added). invoking (emphasis Besides thus 8,500 that would avoid cancer standard the resource-allocation issue and his ethylene-oxide an years; over deaths it, in October treatment expected to relat- that was reduce standard closely reargued point detail related 1,017 range of 532 to a ed deaths already activity greatly had re- 146; inorganic arsenic range of 75 duced the extent to which federal stan- expected lung cancer coverage.7 Despite to avert standard dard could increase allocation, alone; a concern per year copper smelters continued over resource deaths health risk tilted the 822 he concluded that the expected to save benzene in favor of a to feder- balance commitment working lifetime. 50 Fed. deaths over upon regulation contingent the states’ al 15,088-89. Reg. He noted the limited action in next failing adequate to take inspectors (1200 “per- number available 18 months. worth). And he years” Id. son of isolated farms

argued inspection con- resource-allocation inspector driving time dis- consume 18(b) Act, not undercut cern is § safety pay- proportionate to the and health 18(b) 667(b) (1982). U.S.C. Section off, compared inspector focus on hazard- displace federal enforce- permits a state to highly typically industries located specific ous issue regulatory ment on a plan areas. Id. Thus confronted adopting industrialized an enforcement of its own. giving priority a choice n. 9. The could rea- between See infra non- his device generally sonably industrial hazards and conclude that threat lethal prompting ones,6 more effective he elected the former. would be lethal farm 7,589, 7,593 (1984), goes finding, Fed.Reg. argument only to the num- 5. This of course cf. by beyond dispute. proposition appears a general ber of workers covered standard and stringency (“The of state and federal stan- the relative at 23 record See Brief Petitioners state dards. The record indicates that some reported least cases of farmwork- reflects at two stringent proposed standards more than heatstrokes.”). dying in 1984 from ers less. Fed. federal standard and some See 50 15,086, 15,091. Reg. at principle applied unable I am to discern 7. majority deciding by the relevance of the sanita- "[t]he 6. The did note field Despite deliber- April statement. major standard deal with one would cross-references, resource-alloca-_ April his ate 15,089, effect, heatstroke,” Fed.Reg. at he but Maj.Op. 623- tion discussion doesn’t count. at pose relatively implicitly to found heatstroke n. 11. But on feder- an half-sentence compared to other ma- low risk death when alism, revelatory majority regarded by Although Secretary pro- jor health hazards. legal Maj.Op. error. does. at buttressing figures latter no concrete vides thereby up to take action and states free “the vast in agricultural differences condi- promulgating than would Fed.Reg. 42,661. federal resources tions.” at specifi- He waiting cally pointed “size, a federal standard for the to climate, variations of 18(b) option. terrain, to states exercise density workforce inten- § labor sity” that dominate farm produce work and majority, seemingly conceding that diversity rarely if ever equaled in other agen- the issue of “how best to allocate his occupations. Id. Because reg- each state’s cy’s Secretary, resources” is for ulations relatively would cover a narrow Maj.Op. denies that the October range conditions, regulating states decision was based resource allocation agricultural working enjoy conditions an all, Maj.Op. at 623-624 & n. 11. I comparative advantage unusual in provid- wholly myself grasp confess unable ing protection. undifferentiating Under an Apart from slighting contention. af- standard, farms would chafe under concern, firmative reliance on the ma- regulation designed things to be all jority support in the seeks com- people, and expend OSHA would have to mitment to a standard if the evaluating predictable deluge resources act, saying states do that “The Secre- requests. of variance U.S.C. tary already made resource-alloca- [the 655(d) (1982). § Cf. regulation favor tion] needs, short, of farmworkers’ sanitation based on the Secretary in way no relied current conditions.” Maj.Op. generalized preference on a regu- But for state a commitment of contingent resources congressional lation inconsistent with in- altogether failure act different tent. Moved special factors —the most from an absolute one. Had the prominent of which had been created latter, made the we would either have no simply itself—he noted that the case be confronted with a complete situation was one where a threat device Instead, might about-face. took enable him to have his cake and eat perfectly sensible decision to threaten protection it: state nearly farmworkers with future in the equal possibly superior federal, to and hope they pro- would increase farmworker with a release of pro- federal resources for adequately tection and thus enable OSHA tection of other workers. to use the protect released resources to Preemption B. The Secretary’s Theory

workers elsewhere. Of one course can eas- ily the Secretary’s caricature effort to bal- One the Secretary’s reasons for at- ance concern for the farmworkers with tempting encourage state action was his concern for other by turning workers lan- that, by view preemptive virtue ef- guage (“unac- addressed former fect, promulgation of a federal field risks”) ceptable into absolute that was sanitation standard could well result clearly unintended. But such caricature is decrease in the number of farmworkers appellate not the business courts. protected by regulations.8 field sanitation High degree 18(a) Finally, local variation. Section expressly OSH Act Secretary argued in favor of his permits threat “issue ground on the device respect states were bet- no is in [federal] adopt ter able responsive 667(a) (1982). effect.”9 29 U.S.C. Evi- preemption also notes vides a mechanism for them to do so. See infra deprive farmworkers of the stricter stan n. 9. currently in dards effect in certain states. 50 42,661. Act, Fed.Reg. 18(b) While this is true 9. Section insofar as of the OSH U.S.C. 29 farms, apply large 667(b) (1982), regulation such standards permits to § the Secre state of is- tary justifiably potential does not accord this sues for which federal if in effect Id.; 15,092. weight. Fed.Reg. gets plan loss much 50 the state its certified OSHA as If states, number, meeting appear these to the standards set out 29 U.S.C. be few in 667(c). states, 15,086, 15,091, including having see 50 Certain keep § three desire to standards, (California, Oregon, 18(b) stricter pro- field sanitation standards § of the Act

641 large agents. dose of enforcement But regarding field sanitation a farm dently “issue,” time, single cannot, employ farms as a at the same and small both ten- promulgation Secretary concluded that or-fewer and eleven-or-more workers. standard, though necessarily a federal duplication Thus the conflict and cannot more than ten work- limited to farms with except in the sense that a farm’s occur— regulation ers, preempt state even would employees shift in will on number occa- That ten or fewer workers. farms with push sion it from one side of the ten-and- unequivocally in his spelled out belief thereby other change under line to the and statement, 15,092 (cit- Fed.Reg. at 50 regulator. duplication But the and con- Jersey New State Chamber Com- implicit flict in such a scenario seem de (D.N.J. F.Supp. Hughey, merce v. compared Congress’s minimis when to un- statement, 1985)); though less the October “every working mistakable intent that man idea, clear, upon the same seems to draw in the nation and woman safe [be assured] supposition Fed.Reg. at If the conditions,” working and healthful true, large-farm federal relief for were 651(b) (1982). U.S.C. § torpedo relief for workers would I Accordingly, would remand to the Sec- small-farm workers. light retary to reconsider his action 18(a) reading seems unrea Such § understanding such the law. therefore, notwithstanding the sonable under deference we owe III. Reasonableness v. National Re Inc. Chevron U.S.A. Delay Decision to 837, 104 Council, 467 U.S. sources Defense (1984), subject L.Ed.2d 694 acutely S.Ct. aware Congress declared that its our correction. nonregulation health hazards that policy were “to so far purpose and assure inflict on farmworkers —it was the acute- working possible every man and woman as perception him ness of that led working in the Nation safe and healthful modify predecessor’s his decision not to 651(b) (1982). In conditions.” 29 U.S.C. § promulgate a standard at all. But it was adopting the ten-and-under restriction (and right perhaps duty) his also riders, clearly qualified appropriations possible delay, benefits of consider in- safety intent: and health for the cluding, solving practical as he saw it: subject were not to be a small-farm worker problems deriving Congress’s from ten-and- regulation of direct federal but were to by using restriction the threat of under through operation of mar come about improve the lot of all federal action forces, regulation, ket or other farmworkers, releasing enforcement re- make little sense for factors. But it would against sources for use hazards grant with one hand to industries, regu- achieving system rights regulate small farms exclusive adapted variety wide lation better grant subject the other to and with throughout coun- conditions on farms promulgated if a stan divestiture OSHA try. aspects All of the decision—the large applying dard farms. strong speculation element of involved issue, intangible 18(a)’s deciding the character preemption rule serves Section stake, necessary and the protecting employers of the values the useful function of ignorance severity of the conflicting judicial standards and a double standard, long Carolina), adoption appear of a federal so to have acted un- and North of 29 U.S.C. provision supplant state standards meet the criteria der this 667(c) (1982). currently regulating respect safety States § health and issues. See all sanitation, safety lacking Occupational Safety but field United Airlines v. 762, 772, Board, entirely supplanting Appeals acts Health 32 Cal.3d issues, 157, 163-64, safety could maintain their Cal.Rptr. health and 393-94 P.2d (1982) (en banc); issuance of a standards after the field sanitation § N.C.Gen.Stat. 95- steps by taking appropriate 126(b)(2)(c) (1985). federal standard The field sanitation stan- (1982). 667(b)-(h) promulgated by survive under 29 U.S.C. dards such states would Secretary’s agen- hazards sional competing indifference the welfare of two- judicial deference. thirds da—counsel nation’s farmworkers. Congress’s expression of Citing impute intent There no Congress need possible every working mean-spirited “to so far as such assure view. The Secretary’s position, man and woman in Nation safe and that he consider their welfare conditions,” working long directly healthful U.S.C. so as he regulate, does not (1982), 651(b) majority fully seeks to compatible derive seems with likely the most § judicially manageable explanation restrictions on the the riders: Secretary’s authority. Maj.Op. regarded at 630- it as Washington unsuitable for he it finds that lacks Specifically, officials decree working small-farm con any throughout country. Yet, discretion to withhold immediate ditions de spite promulgation teaching of a standard unless of Chevron U.S.A. Inc. “predispos[ed]” adopt Council, the states were v. Natural Resources Defense 837, 104 reaching standards “close to” of all 467 100% U.S. S.Ct. 81 L.Ed.2d 694 (1984), large id. majority rejects workers farms. See interpretation canvassing without even pos rule of thumb not readily But this does congressional purposes, sible much less as language flow from the of the OSH Act. sessing their plausibility. Indeed, Congress expressed also its intent goal implemented “by Having develop- set mechanical ap- standards for approaches dealing innovative ... praising the minimum acceptable state re- occupational safety with prob- sponse, and health the majority relies on states’ lems,” 651(b)(5)(1982), inaction, 29 U.S.C. earlier by hindsight, buttressed § “encouraging the States to assume the full- conclude could not rea- est responsibility for the sonably administration have expected adequate favorable occupational enforcement of their safe- action to occur. Maj.Op. at 631-632. ty ...,” and health 651(b)(ll). laws Surely id. the issue of how a likely § state is Secretary interprets expressions these respond experiment to a novel of this sort permitting intent as him to type withhold is not the of judgment the courts are promulgation immediate Moreover, a field equipped sanita- well to make. the his- tion standard to secure the already tory benefits of limited prior state action I interpretation discussed. do not find this Secretary’s employment of his threat de- outside the realm of reason. hardly vice is prediction relevant to a they respond how will to that device. And majority’s generation of mechanical hindsight while indeed reveals that 12 depends on supple use of the they states have told the Secretary will not legislative preamble's to assuring reference adopt standards. Maj.Op. at these possible “so far every working man and only states account for of all farmwork- 9% woman in the safe Nation and healthful ers, Respondents’ Letter Court working conditions,” 651(b) 29 U.S.C. § (Nov. 13, 1986). Hindsight also shows that (1982). It language invokes the as a basis six standards, adopted have since requiring universalism, a sort of yet it actively engaged others rulemaking qualifiers introduces not mentioned Con- as of November 1986. Id. gress deny in order to the Secretary’s dis- cretion to consider the welfare small- Here committed himself to Compare farm workers. language promulgation of a federal if 651(b) with clear activity “the standard of during period uni- fell form nationwide for workers short of his I standard. would find the jurisdiction,” within Maj.Op. OSHA’s promul- withhold immediate added). (emphasis gation effect the arbitrary capricious only ma- if jority reads the appropriations expect restrictive Secretary had no reason to riders as manifesting unqualified congres- significance action of to occur. The standard, return, id. 12-14. In no basis such a conclu- such a provides record agreement petitioners the committed sion. dis- proceedings the Secretary miss once the Secretary sought to the The benefits that bargain. his end performed Id. at ones he threat were by his device achieve were on their to consider and was entitled compari- intelligent Their

face substantial. 16, 1985, April period On the time within action the benefits immediate son with (as agreement settlement extended Secretary. required expertise of the the order), published the by Secretary court today impermissibly substi- majority The promulgate “final” decision not to a field judgment tutes its his. 15,086. Fed.Reg. standard. sanitation Secretary’s delay challenged Secretary’s if were an Petitioners then the Even the discretion, remedy violating sure- agree- would as abuse of decision the settlement ly Secretary remand to the with an be to ment and contested the decision In- proceedings. order to accelerate Secretary The on the merits. moved for stead, the court orders him to dismissal of both actions. he immediately regulations a set that pending, these While motions were a new Thus only contingently suitable. viewed office, causing petitioners took commits the enforce- court request April reconsideration of de- farms, ment resources nation’s promulgation cision and immediate a against lethal expense of enforcement field sanitation standard. J.A. at 41-48. elsewhere, without so much as al- hazards Secretary agreed to reconsider the opportunity him an to review the lowing matter, 21, and on October 1985 vacated majority’s under the view of situation 16 decision April and committed himself reviewing is not the

law. That role of a if promulgating federal standard Chenery Corp., 318 U.S. court. SEC v. regulate adequately failed to within 94-95, 63 S.Ct. 87 L.Ed. 626 years. two Petition- (1943). assert that the ers now decision agreement. I violates settlement dis- Agreement IV. Settlement agree. contend, separate and the Petitioners required agreement The settlement agrees, concurrence that the settlement come Secretary to to a final resolution of agreement parties entered into dur- specified the field sanitation issue within ing litigation phase earlier of this com- time. J.A. 12-14. If the be- pels order the to immedi- us to deadline, not he lieved he could meet ately promulgate a field sanitation stan- file required to an affidavit support does dard. The record petitioners explaining District Court contention. thought the could not be why he timetable petitioners In action chal- filed an and, met, petitioners objected, if to demon- lenging Secretary’s delay promulgat- proposed deferral was in strate field sanitation standard. good faith. Id. at 13-14. litigation, including years after nine two court, appeals parties petitioners tired of asked the to this When decision, brought they thrashing legal quagmire in this and reconsider the about contemplated agreement. The a situation not entered into a settlement about (1) agreement. of course the agreement compelled original While deprive them in itself did good request effort undertake and “make a faith Secretary’s neg- development right challenge complete of a field sani- grounds, standard,” (“J.A.”) it substantive Appendix tation Joint ative act in risk he would (2) clearly ran the publish, prescribed within a case, as, for ex- mooted stan- manner that period, time either a field sanitation promulgating a standard that ample, by issue dard a final determination not to protection pending less than the provided minimum, At a seem that

draft. request waiving had the effect compliance

right insist on technical with (ie., the Secretary’s filing

the settlement time). the District Court additional with, most, an

This left them entitlement good

to review of the action for

faith. large good part faith issue is problem

resolved consideration him,

before discussed above. With refer- special problem of delay

ence to under agreement,

the settlement I find hard it Secretary’s partial responsive-

see how petitioners’ in any

ness to own demands

way good manifested lack faith. event,

In any agreement the settlement delay. solely

related to the matter No

violation justify could

ordering him to the draft as a regulation, denying

final him chance to intervening

consider state ac-

tivity issuing or the merits overall such

a rule.

NATIONAL TREASURY EMPLOYEES

UNION, Appellant GRIFFIN,

William J. et al.

No. 85-5971.

United Appeals, States Court of

District of Columbia Circuit.

Argued Sept.

Decided Feb.

Case Details

Case Name: Farmworker Justice Fund, Inc. v. William E. Brock, Secretary of Labor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 7, 1987

Citation: 811 F.2d 613

Docket Number: 85-1824

Court Abbreviation: D.C. Cir.