*1 sum, in de- District Court erred summary motion for nying the defendants’ majority’s visceral I share the
judgment. of John the intrusive search
dislike of a sad fact daughter, but young
Doe’s children sometimes use drug dealers to avoid their business and carry out legal principle I of no know
prosecution. searching from a child an officer bars manner)
(in if a warrant has been proper illegal on its and the warrant is
issued in this case the warrant
face. Because are chal- the searches that
authorized officer, a reasonable
lenged because —and event, certainly thought could have any conferred such authori- the warrant
ty would reverse. —I UNION, UNITED
INTERNATIONAL
AUTOMOBILE, & AEROSPACE AG IMPLEMENT WORK
RICULTURAL AMERICA, UAW; United
ERS OF America, Petitioners
Steelworkers Labor; CHAO,
Elaine Safety and Health
Administration, Respondents.
No. 03-4146. Appeals,
United States Court
Third Circuit.
Argued Jan. 2004.
Filed March 2004. high is not met That standard probable S.Ct. 1092. cause as render in indicia unreasonable.” official belief in its existence here. 344-45, Malley Briggs, 475 U.S. at *2 Rabinowitz, (Argued), Randy S. Wash- Sherrick, ington, and Daniel Catherine UAW, Traffton, Union, De- International Whitehead, Goldman, troit, and Paul David America, Pitts- Steelworkers of United burgh, for Petitioners. Labor, Radzely, M.
Howard Solicitor Woodward, Joseph M. Associate Solicitor Health, Safety and Ann Occupational for Rosenthal, Justh, (Argued), Bruce Charles James, Hull, De- F. Joanna United States Labor, Solicitor, partment of Office Washington, Respondents. for Cox, Gibson, Dunn Douglas R. & Crutcher, for Washington, Amicus Cham- Mfg. ber of Commerce U.S. and Natl Assn Leiter, McLean, for Jeffrey L. Amicus Machine, Precision National Precision Tooling Mfg. and Ind Lubricant BARRY, SMITH, Before Circuit POLLAK,* Judges, Judge. District THE OPINION OF COURT BARRY, Judge. Circuit 9, 1993, the On December International Automobile, Aerospace Union of United & Agricultural Implement Workers of Amer- (“UAW”) petitioned ica Safety and Health Administration (“OSHA”) to take “immediate action to protect workers from the health effects of occupational machining urged promul- fluids[J” UAW * Poliak, Pennsylvania, sitting by The Honorable Louis H. District Eastern District of Judge, designation. United States District Court for the cut- machining, grinding, a standard cants for metal that would establish gate a rule in man- machining, ting, forming, tooling, treating occupational exposure (“MWFs”). ufacturing operations. Approximately 1.2 metalworking, fluids others, (including, among million workers peti- formally respond to UAW’s did not *3 machinists, mechanics, workers), and metal a rulemaking until more than dec- tion for 185,- employed approximately are who when, by letter dated December ade later establishments, exposed are Henshaw, MWFs Assistant Secre- John by breathing means of skin contact or Occupational Safety and tary of Labor for ingesting from particles or otherwise mists Health, petition. denied UAW’s or aerosols. response 16th was sub- The December doubt, and it is not disput- There is little Court, a brief to this together mitted with here, exposure that to MWFs can have ed 21, 2003, understandably for on October nature and debilitating health effects. The UAW, delay, joined now with the impatient from prevalence of health effects MWF America, by the Steelworkers of United is, however, exposure hotly disputed. Court, to section petitioned pursuant this Asthma, hypersensitivity pneumonitis 6(f) Safety & Health (“HP”), diseases, respiratory other 655(f) (OSH Act), Act of 29 U.S.C. potential among cancer are the effects the “un- they what described as review effects that UAW claims result from MWF delay” respondents OSHA reasonable exposure. While there is little debate issuing the Secretary of Labor and the link exposure about between MWF 6(b)(5) of standard under section requested respiratory disorders and dermatitis Proce- Act. The Administrative the OSH severity (again, the debate is over (“APA”), together Act with the OSH dure a con- prevalence), supporting the evidence Act, courts petition a to the federal permit equivocal. to cancer is nection agency action appeals to review federal (or inaction). 706; 29 U.S.C. Initially, responded in December OSHA 655(f). We, thus, jurisdiction have over 1995, informally, pe- to UAW’s 1993 albeit parties, us which.the petition before designated regu- as a tition when MWFs Court, appropriately re- agree and the latory empaneled OSHA priority. to review final petition characterized as Advisory Metalworking Fluids Standards In re International agency action. See “Committee”). (“MWFSAC” or Committee Union, Chemical Workers of 15 members had five The Committee (when (D.C.Cir.1987) to com- petition industry repre- five representatives, labor agen- pending was and the pel sentatives, representatives. five public rulemaking, appropriate it was cy denied 15, 1999, issued its July the Committee On petition pending petition to treat the report and recommendations. final denial). for review of the unanimously recom- The Committee follow, find that For the reasons limit take action to mended request for Secretary’s denial of the The recom- exposure to MWFs. worker on MWFs was rulemaking proceedings the “demon- upon was based mendation We, capricious. nor exposure neither strated health effects” therefore, deny asthma, HP, for review. dermatitis, will and other MWFs: The Committee
respiratory disorders. Background I. members, however, on the agree did not exposure to way to limit worker in a wide best Metalworking fluids are used A rec- majority of Committee as coolants and lubri- MWFs. variety of industries rule, or in the foreseeable rule for MWFs “now that OSHA ommended concluded, First, and we non-manda- future.” minority thought that while a broadly, regulating MWFs programs educational summarize tory guidelines and appropriate A ma- because the science problem. better address would exposure neither ade- regarding concluded jority of the also Committee way illuminated an effective to de- quately formulations of exposure old expo- appropriate permissible cancer at caused skin cancer and termine limit, supported nor the conclusion Only minority of the Com- sure sites. other however, exposure causes cancer. Sec- mittee, that there was that MWF concluded ond, agency priori- link of cur- identified three evidence to adequate *4 pose “toxic substances that regulate of to skin cancer ties to rent formulations MWFs MWFs,” sum, health than do sites. In the more serious risks or cancer other could unanimously recognized agency a link and asserted that resources Committee non-malig- not accommodate the “enormous resource exposure and between MWF (i.e., dermatitis, that a on MWFs respiratory nant commitment” illnesses asthma) found, however, disorders, and, HP, require. based and would OSHA majority non-regulatory a recom- measures will upon recognition, this various exposures a The enable to hazards to be promulgation mended of rule. Com- MWF mea- effectively, course of action controlled and those mittee’s recommended already underway. large part a connection between sures were in premised was not on MWFs and cancer. II. Discussion 1999, in
Beginning seemingly and re- review, considering petition In sponse to the Committee’s recommenda- (1) statutory examine the relevant tion, began OSHA to include MWFs its (2) framework, assess whether OSHA had Regulatory Agenda. published MWFs, statutory duty regulate to and “Long were identified as a Term Action” (3) evaluate whether OSHA’s refusal item, of a meaning that the issuance stan- regulate capri- MWFs was and year’s By in a anticipated dard time. cious. 2001, however, no standard had been is-
sued, and from its OSHA removed MWFs Statutory Background A. instead, Regulatory Agenda, publishing, Best Practices Guide. The Guide is There are two statutes relevant our non-binding and unenforceable. Safety and review: Act Proce- Health and the Administrative 2003, filed the October UAW Act. dure us, asserting for review now before Secretary had of Labor (1) The Act OSH faded, by delay, of an virtue unreasonable Act, act, required Congress 29 enacted the “to as- U.S.C. OSH 655(b)(5), working § man employee possible every “to assure that no sure so far as impairment suffer material of and woman the Nation safe health- health[J” conditions!)]” working In the Henshaw letter of December ful 29 U.S.C. 651(b). § accompanied which its brief to this “The Act authorizes the Secre- establish, Court, formally finally tary of Labor to after notice —and —de- comment, mandatory petition requesting opportunity nied UAW’s 1993 ac- letter, governing health gave tion. In the two main nationwide standards American safety deciding promulgate workplace.” reasons for not to in the
253 (2) Donovan, Institute, The APA Inc. v. Textile Mfrs. 490, 493, 69 S.Ct.
452 U.S.
Act
The Administrative Procedure
di-
(1981) (citing 29 U.S.C.
L.Ed.2d
agency
[within
rects an
“to conclude
(b)).
655(a),
de
When
§§
presented
to it.”
reasonable
matter
time]
“dealing with
a rule
cides to
555(b).
empowers
It also
re-
5 U.S.C.
physical
harmful
or
toxic substances
viewing
compel agency
courts to
action
as
“adequately
rule must
agents,”
“unlawfully
unreasonably
de-
withheld
706(1).
feasible,
],
layed[.]”
Reviewing
on the basis
Id. at
to the extent
sure[
evidence,
to “hold
and set aside
courts are
unlawful
that no em
of the best available
action, findings, and conclusions
impairment
material
will suffer
ployee
arbitrary,
capricious,
found to be
after a
capacity”
functional
even
health or
discretion,
or otherwise not in
abuse
exposure.
lifetime
706(2);
accordance with
Id. at
law[.]”
655(b)(5).
agency’s priorities are
§§
The
Transp.
Borough
Columbia v.
Surface
Public
judicially
Citizen
reviewable.
(3d Cir.2003).
Bd.,
Chao,
Group v.
Health Research
(3d Cir.2002).
reviewing
A
court
Duty
Regu-
*5
B. Does OSHA Have
however,
instructed,
that “determina
is
late MWFs?
Secretary
be conclusive
tions of the
shall
Act
contends that the “OSH
UAW
in the
if
substantial evidence
supported
Secretary pub
demands either that
the
a whole.” 29
record considered as
U.S.C.
days
a
60
after
proposed
lish
rule within
655(f)-
Secretary
ac
§
And while the
is
advisory
recom
receiving an
committee
of discretion in
corded a broad measure
warranted or
regulation
mendation that
is
Secretary
the
setting
agency agenda,
the
issued.” Peti
decide no rule should be
“In
not have absolute discretion.
does
(citing
Br. at 21
29
tioners’
U.S.C.
establishing
determining
priority
the
for
655(b)(2)).
majority
§
a
of the
Because
Secretary
give
the
shall
due
standards
a
promulgation
recommended
of
MWFAC
urgency
to
of the need for
regard
the
July
certainly
more
rule
than
standards
mandatory safety and health
rulemaking
days prior to the denial
industries, trades, crafts,
particular
oc
urges
UAW
us to re
December
businesses,
cupations,
workplaces
work
a
Secretary
promulgate
to
rule
quire the
§ 655(g).
Id. at
The Act
environments.”
regulate
Whether and when
MWFs.
Secretary “give
that the
due
requires
also
Act
duty
a
to act under the OSH
there is
the
regard to the recommendations of
of law.
is de novo.
question
is a
Review
Health, Education, and
Secretary of
Wel
(3d
Rothermel,
223, 225
v.
327 F.3d
Chao
Id.
fare[J”
Cir.2003).
Act,
Finally,
Secretary
the
the
under
points
29 U.S.C.
UAW
advisory committee to as-
may appoint an
655(b)(2),
§
states that “[w]here
which
development
of a rule. 29
sist
the
and the
advisory
appointed
committee is
655(b)(1).
advisory
§
“Where an
U.S.C.
that a rule should be
Secretary determines
Secretary
and the
appointed
committee is
issued,
proposed
the
publish
shall
[s]he
issued,
be
he
determines that
rule should
the
sixty days
within
after
submission
rule
sixty
within
publish
proposed
shall
rule
advisory committee’s recommenda
of the
655(b)(2).
advisory
days after the submission of the
UAW
tions[.]”
sixty day requirement
is
Id.
that the
recommendations[.]”
committee’s
contends
655(b)(2).
mandatory.
disagree.
We
statutory
legitimate
action due to
First,
which UAW defer
very language to
preserved”).
of the
considerations
acknowledges the discretion
points
regulatory action
pursue
if
Finally, looking beyond
specific pro
discretion, “de-
she, in
of that
the exercise
creating a
misreads as
vision
UAW
Id.
should be issued.”
termines that
rule
larger
to the
mandate
duty
regulate
in the statute
re-
nothing
There is
itself,
Act
is
the OSH
obvious
discretionary
Secretary to cede
quires
initi
required to
lightly
cannot
be
advisory committee. The
authority to the
likely thou
rulemaking: “There are
ate a
as to the duties of
statute is silent
may pose
signif
sands of substances
event,
here, that
Secretary in the
she
harm to
icant risk of
workers.
promul-
not
a rule should
be
determines
to under
possibly
required
not
be
could
if
uncertain as to whether
gated, or
she is
all of them simulta
take
on
no
promulgated.
rule
be
There is
should
Br. at 36-37. See
neously.” Respondents’
limit the
reason to construe the statute to
Bowen,
System
Health
also South Hills
Secretary’s
in this area.
discretion
Cir.1988)
(3d
(“Nor
may
gen
... an
exercise ‘a
mally
Second,
language
and structure
respecting
of discretion
erous measure
whole, confirm,
rather
taken as
”)
launching
rulemaking proceedings.’
restrict,
than
the discretion
Secre
FCC,
(quoting Geller
regulatory agenda under
tary to set the
(D.C.Cir.1979)).
§ 655(g).
Act.
id. at
The
the OSH
See
course,
Of
once OSHA undertakes
advisory
Secretary, by appointing an
com
standard,
it must reduce risk
mittee,
thereby stripped
of discre
*6
feasible,
extent
or not to
tion over whether
655(b)(5),
sup-
§
and its actions must be
of
or
to the time constraints
rule
bound
Id. at
ported by substantial evidence.
§ 655. The D.C. Circuit has addressed
655(f). Here, however,
de-
OSHA never
occasions,
on a
of
and
this issue
number
MWFs,
regulate
cided to
much less for-
that
convincingly
has each time
confirmed
mally
rulemaking proceedings
initiated
655,
“statutory
§in
deadlines do not
publication
proposed
of a
rule.
with
the discretion of the’ Admin
‘circumscribe
istration;
its ‘failure to act within
Arbitrary
Action
and
C.
OSHA’s
Was
not,
itself,
an abuse of
their limits’ is
Capricious?
discretion;
agency may ra
and that the
tionally ‘delay
agree
parties
of a
We
with the
development
standard
”
any stage
regulate
at
demand.’ Ac OSHA’s decision not to
priorities
as
Smoking
Dep’t
upheld
tion on
& Health v.
should be
absent
determination
of
(D.C.Cir.1996)
Labor,
“arbitrary”
“capri
or
100 F.3d
993
the decision was
706(2)(A).
The arbi
Congress
Hispanic
cious.” 5 U.S.C.
(quoting National
of
Marshall,
trary
applies to
capricious
Am.
v.
626 F.2d
and
standard
Citizens
(D.C.Cir.1979))
decisions,
agencies’
including
most
denials
citing
888
and
National
Congress Hispanic
petitions
pro
Am.
to institute
Citizens Us
(D.C.Cir.
See,
ceedings.
e.g., American Horse Pro
ery, 554 F.2d
1199-1200
1977) (“El
Ass’n,
Lyng,
4
Congreso”).
Congreso,
El
tection
Inc. v.
See
655(b)
(D.C.Cir.1987).
note,
also
(discussing
Respondents
1. The “human lives ... stake” extraordinary A role in Public risk assess- critical Because of combination Citizen. circumstances, ment of hexavalent chromium had concluded we take the were about to exposure at the level then current over a compelling extraordinary step of OSHA to act year working expected lifetime could be to finally long-prom- instituted the when 88 and 342 excess cancer result in between apart rulemaking process. Separate and ised per F.3d at deaths thousand workers. 314 that case and from other differences between “grave recognition risk to 147. In of this this, OSHA, although in November 1999 here health,” public OSHA made hexavalent chro- Agen- Regulatory having placed MWF’s on its high priority and announced it was mium a Action,” heading "Long-Term da under the rulemaking. beginning a Id. at 145. More rulemaking, much less need for a never found later, however, years "nothing than nine a rule- announced an intention to commence happened” and OSHA admitted that it ha[d] making proceeding. might promulgate a rule for another ten not be, studies, it out to as “inexorable” as turned all less to a number points UAW delays see again that we will not health effects we trust the detrimental showing doubt, having That been perfect in a as were seen here. No such exposure. said, world, capricious to and would suffer it was no worker MWFs, certainly sympathetic Secretary regulat- refrain from and we are for the to 1 million workers ex- for review will be ing petition the more than The MWFs. So, too, perfect in a posed to MWFs. denied.
world, appar- the not have had we would surely ently unnecessary and lamentable POLLAK, concurring. Judge, year delay between UAW’s
ten
only
I
join
opinion.
I
the court’s
would
inBut
response.
formal
OSHA’s
in
what is at issue
this case is
add that
world,
Secretary has broad discre-
real
with
change
regulatory policy
coincident
agenda of the
regulatory
tion to
set
change
administration. Counsel
agency,
the decision to direct OSHA’s
argu-
respondents said as much on oral
neither ar-
scant resources elsewhere was
metalworking fluids ... were
ment: “The
capricious.
bitrary nor
high priority only following
listed as a
III. CONCLUSION
process
prior
of a
adminis-
priority-setting
differ-
priorities
tration ... and those
are
essence,
peti-
“Distilled to its
[UAW’s]
noth-
than the current ones.” There is
ent
...
into the
tion
would have us intrude
obscure,
nothing suspect,
about
ing
Secretary
quintessential discretion of the
im-
phenomenon.
this
That’s one
of Labor to allocate OSHA’s resources
Oil, Chem.,
portant
things that elections are about.
& Atomic
priorities.”
set its
priorities
OSHA,
policy
OSHA’s current
Whether
Union v.
145 F.3d
Workers
(3d Cir.1998).
time,
previous-
or
than those
are wiser
less wise
Certainly, at one
ly pursued
not for a court to determine.1
regulatory priority.
made
is
however,
alone,
job
respon-
compel
fact
does not
Our
is to determine whether
This
say
priorities
a rule. To
dents’ selection of new
should be
does,
say,
“arbitrary”
“capricious.”
either
it
would have us
would deemed
UAW
say
agency
making
respect
this determination with
any
to also
time
be
initiative,
declination to institute rulemak-
explores
potential regulatory
process
begun,
ing,
typical
the inexorable
“as more
reviews
“once
statutory
agency’s
grind
must
on and on to its
end must consider whether
deci-
”
though
long
even
has
before
sion was ‘reasoned.’ American Horse
Ass’n,
adopt
Lyng,
it. This makes Protection
Inc. v.
decided
refuse
(D.C.Cir.1987);
*8
absurdity
of the Act and a
out of 5
Public Citizen
fool
cf.
Chao,
Congress.”
Congreso,
Group
El
In Re: SUNTERRA
Debtor. Technology Corporation, former
RCI
ly Computer known as Resort Cor
poration, Plaintiff-Appellant, Corporation, Defendant-
Sunterra
Appellee.
No. 03-1193. Appeals,
United States Court of
Fourth Circuit.
Argued: Dec. 2003.
Decided: March 2004.