OSH-Related Cases Applying the Chevron Doctrine 2017 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED ATTORNEY ADVERTISING

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1 OSH-Related Cases Applying the Chevron Doctrine

2 Courts Role in Interpreting Admin. Rules S.Ct. and other fed. courts have started taking a dim view of judicial deference doctrines New appeal to Courts power of judicial review Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its special expertise to formulate the best rule But purpose of interpretation is to determine the fair meaning of the rule - to say what the law is, Marbury v. Madison 5 U.S. 137 (1803) not to make policy, but to determine what policy has been made by the agency, to which the public owes obedience. Decker v. Nw. Envtl. Def., 568 U.S. 597 (2013) (Scalia)

3 Deference = Bias? Prof. Hamburger argues Chevron deference violates private litigants 5 th Amendment right to due process: Under the 5 th Amendment right to the due process of law, judges cannot engage in systematic bias. Therefore, when they defer to agency interpretations of the law, it must be asked whether they are engaged in systematic bias in favor of the government and against Americans, thus denying them due process of law. 3

4 Deference = Bias? Prof. Hamburger on Chevron bias: The difficulty is Chevron sets forth a test under which judges defer to the gov t interpretation even when the gov t is a party... The result is systematic deference to one of the parties and its judgments about the law that is, a pre-commitment to one of the parties. Judges have a duty to exercise independent and thus unbiased judgment, and under the 5 th Am., [judges] at the very least are barred from engaging in systematic bias. Nonetheless, when they defer to administrative interpretation, they systematically favor executive and other gov t interpretations over interpretations of other parties. They thus systematically exert bias toward the gov t and against other parties, in violation of the 5 th Am. 4

5 Extraordinary Cases King v. Burwell, 135 S. Ct. 2480, (2015) Affirmed 4 th Cir. decision re: meaning of state in ACA to allow it to encompass both fed & state insurance exchanges Embraces Chevron test except in extraordinary cases When analyzing agency interpretation of a statute, we often apply the 2-step framework announced in Chevron, 467 U.S Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency s interpretation is reasonable. Id. at 842 This approach is premised on the theory that a statute s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. FDA v. Brown & Williamson Tobacco, 529 U.S. 120 (2000). In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. Ibid.

6 Which Agency is Entitled to Deference OSHA or OSHRC? Martin v. OSHRC, 499, U.S. 144 (1991) Decided question whether to defer to the Secretary or the Review Commission regarding a question of OSHA rule interpretation The question before us in this case is to which administrative actor -- the Secretary or the Commission -- did Congress delegate this interpretive lawmaking power under the OSH Act B/c historical familiarity and policymaking expertise account in the 1 st instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than the reviewing court, we presume that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes

7 Which Agency is Entitled to Deference OSHA or OSHRC? Chao v. Russell P. Le Frois Builder, 291 F.3d 219 (2d Cir. 2002) Applying Skidmore, we conclude in this instance the Secretary s view merits deference. The case law stresses the delicacy and importance of the Secretary's role, contrasting it with the more limited function assigned by Congress to the Commission. Institutional competence thus militates in favor of deference to the Secretary's view. Furthermore, Congress made enforcement of the Act the exclusive prerogative of the Secretary Finally, we note courts construing statutes enacted specifically to prohibit agency action ought to be especially careful not to allow dubious arguments advanced by the agency to thwart congressional intent expressed with reasonable clarity.

8 Recent OSHA-Related Deference Cases AKM LLC v. Sec'y of Labor, 675 F.3d 752 (DC Cir. 2012) ( Volks ) Court assumed w/out deciding Chevron deference applied, but found term occurrence to be unambiguous, so no deference Judge Brown s concurring opinion addressed Chevron question, and echoed Justices Scalia s and Gorsuch s skepticism: [W]e have come to a place where an agency asks us w/ a straight face to defer to its interpretation of a statute of limitations: a simple, legislatively-imposed time limit on its own prosecutorial authority. Too often, we reflexively defer whenever agencies claim statutory ambiguity, but resolving disputes over statutory meaning is ordinarily the province of the courts. What makes an agency's interpretation of a provision special is that Congress has manifested its intent that the agency's interpretation of that provision be special. It is by Congress's "delegation of authority to the agency to elucidate a specific provision of the statute" that an agency's interpretation is deserving of the court's deference.

9 Judge Brown s Reasoning in Volks To determine whether Congress intended an agency to make an interpretive choice, we look to whether it is such a monumental policy choice that, although the agency may be expert, separation-of-powers considerations mean there may be reason to hesitate before concluding Congress intended such implicit delegation. If the interpretive question neither requires agency expertise nor involve[s] reconciling conflicting policies, we may conclude Congress has delegated nothing to the agency. Finally, we can infer delegation or its absence by asking if the question [is] one the agency or the court is more likely to answer correctly, or whether the question concern[s] common law or constitutional law, or matters of agency administration, or whether the agency can be trusted to give a properly balanced answer rather than use interpretive opportunity to expand [its] power beyond authority Congress gave [it].

10 Judge Brown s Conclusion in Volks Our narrower disposition of this case, instead assuming without deciding that Chevron applies, should not be read as foreclosing a future panel of this Court from tackling anew the deference owed to agency interpretations of statutes of limitations, even those reached and conveyed in the proper form. When that time comes, I hope this Court will carefully consider why and when we are meant to defer before we endow an agency's mere invocation of Chevron with talismanic authority. We must steadfastly guard our prerogative to say what the law is and resist the reflex of deference (citing Marbury v. Madison)

11 Delek Refining Delek Refining v. OSHRC, 845 F.3d 170 (5th Cir. 2016) Another OSH Act statute of limitations case Secretary asserted that citations issued in 2008 for process hazard analysis (PHA) and compliance audit violations from as much as 14 years earlier were timely 5 th Circuit followed the reasoning of the D.C. Circuit in Volks determining that the violations fell outside of the 6- month period of enforcement under the OSH Act.

12 Maxxim Rebuild Co. v. FMSHRC Maxxim Rebuild Co. v. FMSHRC, 848 F.3d 737 (6th Cir. 2017) Determined whether off-site maintenance facility for repair of mine equipment fell under MSHA jurisdiction If we uphold the government s position, that would give MSHA exclusive jurisdiction over the entirety of the Maxxim facility. This is not a case in which the regulated entity seeks to hide from any regulation. It just thinks, quite reasonably, the Secretary's authority applies to it through OSHA, not MSHA. When gov t lawyers seek Chevron deference, the question is not whether they can identify any ambiguity in a statute. The question is whether they can identify a competing reasonable interpretation of the statute. But the Secretary s competing interpretation is not a reasonable one and not just because it overlooks all of the textual & precedential clues... The Secretary s interpretation also has no stopping point.

13 Other Notable Case Util. Air Regulatory Grp. v. EPA, 134 S. Ct (2014) (Scalia) Reviewing EPA rule governing greenhouse gas emissions When agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement w/ a measure of skepticism We expect Congress to speak clearly if it wishes to assign an agency decisions of vast economic & political significance Power to require permits for construction & modification of tens of thousands, & the operation of millions of small sources nationwide, falls comfortably w/in the class of authorizations we have been reluctant to read into ambiguous statutory text

14 Impact of New Chevron Hostility? Future separation of policymaking and procedure Agency deference will continue with respect to: Pure policymaking Highly technical topics within an agency s expertise Health and Safety Standards Courts will reassert authority with respect to: Scope of agency jurisdiction Statutes of limitation Due process questions